USA v. Nishida

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JERRE NISHIDA,
Defendant.
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CR. NO. 19-00107 HG-01
ORDER DENYING DEFENDANT’S MOTION TO REDUCE SENTENCE UNDER THE
FIRST STEP ACT (COMPASSIONATE RELEASE) (ECF No. 67)
Defendant Jerre Nishida is currently incarcerated at the
Federal Correctional Institute in Waseca, Minnesota with a
projected release date of May 26, 2027.
On July 10, 2023, Defendant Nishida, proceeding pro se,
filed a Motion for Compassionate Release. (ECF No. 67).
On August 11, 2023, the Government filed its Opposition.
(ECF No. 69).
On August 28, 2023, Defendant filed her Reply. (ECF No.
70).
The Court elects to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.1(c).
Defendant’s MOTION FOR COMPASSIONATE RELEASE (ECF No. 67) is
DENIED.
STANDARD OF REVIEW
A judgment of conviction that includes a sentence of
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imprisonment constitutes a final judgment and may not be modified
by a district court except in limited circumstances. Dillon v.
United States, 560 U.S. 817, 824-25 (2010).
On December 21, 2018, Congress passed the First Step Act of
2018. PL 115-391, December 21, 2018, 132 Stat. 5194. The First
Step Act amended 18 U.S.C. § 3582(c), the statute governing the
limited circumstances under which the trial court may evaluate a
motion for reduction of sentence.
The First Step Act altered the statute in Section
3582(c)(1)(A) to allow a defendant to request the trial court
reduce his sentence through a motion for compassionate release,
but the statute requires the defendant to first present his
request for release to the Bureau of Prisons. 18 U.S.C. §
3582(c)(1)(A).
18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act
of 2018, provides, in pertinent part:
[T]he court, upon motion of the Director of the Bureau
of Prisons, or upon motion of the defendant after the
defendant has fully exhausted all administrative rights
to appeal a failure of the Bureau of Prisons to bring a
motion on the defendant’s behalf or the lapse of 30
days from the receipt of such a request by the warden
of the defendant’s facility, whichever is earlier, may
reduce the term of imprisonment...after considering the
factors set forth in section 3553(a) to the extent that
they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant
such a reduction;
...
and that such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.
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18 U.S.C. § 3582(c)(1)(A).
SECTION 3582(c)(1)(A) AS AMENDED BY THE FIRST STEP ACT
A. Mandatory Procedural Requirement
The statute allows the Court to consider a defendant’s
request for compassionate release only after the defendant has
first presented his request to the Bureau of Prisons (“BOP”). 18
U.S.C. § 3582(c)(1)(A); United States v. Keller, 2 F.4th 1278,
1282 (9th Cir. 2021).
The Parties agree that Defendant Nishida adequately
exhausted her administrative remedies for purposes of 18 U.S.C. §
3582. (Gov’t Opp. at pp. 2-3, ECF No. 69).
B. Basis For Defendant’s Motion For Compassionate Release
If a defendant has complied with the mandatory procedural
requirement set forth in 18 U.S.C. § 3582(c)(1)(A), the District
Court may reduce a term of imprisonment, including the grant of
compassionate release, upon finding “extraordinary and compelling
reasons.”
The Court has the discretion to determine whether
extraordinary and compelling reasons exist and is not bound by
the definition of “extraordinary and compelling reasons” set
forth in the United States Sentencing Guidelines § 1B1.13.
United States v. Wright, 46 F.4th 938, 944 (9th Cir. 2022);
United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021).
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Here, Defendant Nishida seeks compassionate release based on
(1) her own medical condition and (2) the medical condition of
her sister.
ANALYSIS
I. Defendant Has Not Presented Extraordinary And Compelling
Reasons For Compassionate Release
A. Defendant’s Own Medical Condition
Defendant Nishida bears the burden of establishing
extraordinary and compelling reasons warranting compassionate
release. Wright, 46 F.4th at 951. Defendant claims that she has
osteoporosis and claims she is not receiving adequate medical
treatment while incarcerated for her condition.
Contrary to Defendant’s position, the medical records
demonstrate that the Bureau of Prisons is providing Defendant
with medical treatment. The records reflect that in August 2022,
x-rays were taken of Defendant’s pelvis, lateral spine, and
cervical spine. (BOP Medical Records, attached as Ex. A to Gov’t
Opp. at pp. 1-3, ECF No. 69-1). Defendant was diagnosed with
“osteopenia” not osteoporosis. (Id.) Defendant is being treated
with Vitamin D supplements and was referred for a Dexa scan.
(Id.) Conditions that can be managed in prison are not a basis
for compassionate release. United States v. Caitano, 2022 WL
16553362, *3 (D. Haw. Oct. 31, 2022).
Defendant argues that the facility where she is being housed
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has not provided assistance nor rehabilitative opportunities for
her. Defendant’s argument is belied by the record. Defendant’s
own evidence demonstrates that while incarcerated at FCI Waseca
Defendant has received over 739 hours of education, she has
completed 17 courses, and she received a certificate in
horticulture. (Def.’s BOP Records attached as Ex. B to Def.’s
Motion, ECF No. 67-3).
Defendant’s Motion seeking immediate release based on her
own medical condition is DENIED.
B. Release To Take Care Of Defendant’s Sister
Defendant also seeks immediate release because she alleges
that she needs to be a caregiver for her sister who allegedly
suffered an aneurysm two years ago.
Pursuant to Sentencing Guideline Section 1B1.13’s Commentary
Application Notes 1(C), family circumstances may provide a basis
to establish “extraordinary and compelling reasons” for
compassionate release. This definition is not binding, but may
provide guidance for the Court’s analysis of “extraordinary and
compelling reasons.” Aruda, 993 F.3d at 802.
Courts have required a defendant to establish that an
immediate relative suffers from a terminal illness or is
incapacitated, meaning the immediate family member is unable to
carry on any self-care and is totally confined to a bed or chair,
in order to be eligible for compassionate release based on the
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family member’s illness. United States v. Bolden, 2020 WL
4286820, *4 (W.D. Wash. July 27, 2020) (relying on BOP Program
Statement § 5050.50 in evaluating a request for compassionate
release based on a spouse’s incapacitation); United States v.
Peuse, 2020 WL 5076356, *5 (N.D. Cal. Aug. 24, 2020) (denying
defendant’s motion for compassionate release based on his wife’s
self-reported illnesses).
Here, Defendant’s assertion that she is needed to help
take care of her sister is insufficient to establish a basis for
her immediate release from incarceration. Defendant mentions
only that her sister is “in need of care several hours a day.”
(Motion at p. 4, ECF No. 67). Defendant states that her other
family members are assisting with care. There is no information
in the record from any medical professional to support
Defendant’s claim that no one else may provide assistance to her
sister except the Defendant.
Defendant’s Motion seeking immediate release to care for her
sister is DENIED.
II. Section 3553(a) Factors And Defendant’s History and
Characteristics
Even if Defendant Nishida provided evidence to demonstrate
an extraordinary basis for compassionate release, the Court finds
immediate release is not warranted pursuant to the Section
3553(a) factors. Wright, 46 F.4th at 945 (explaining that a
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district court may deny a motion for compassionate release based
on evaluation of 18 U.S.C. § 3553(a) factors alone, citing
Keller, 2 F.4th at 1283-84).
In order to be eligible for compassionate release, Defendant
must establish that release is appropriate pursuant to the
factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C. §
3582(c)(1)(A).
The Section 3553(a) factors include the nature and
circumstances of the offense, the history and characteristics of
the defendant, and the need for the sentence imposed.
Defendant was sentenced to the mandatory minimum sentence of
120 months imprisonment while in Criminal History Category III
for distribution of methamphetamine. Defendant’s crime for
distribution of methamphetamine occurred while she was on
supervised release for a prior federal conviction for
distribution of methamphetamine in United States v. Nishida, 13-
cr-00021 SOM-05. (Presentence Report at ¶ 36, ECF No. 27).
Defendant also has a prior conviction in Hawaii state court
for distribution of methamphetamine and other drugs in 2002.
(Id. at ¶ 35).
Defendant’s history and characteristics do not favor a
reduced sentence. Defendant has been given numerous chances for
rehabilitation and has continued to be involved in criminal
activity. Defendant performed poorly while under probation and
supervision in the past, and had her terms of supervision revoked
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on multiple occasions for drug use and new arrests for
distribution of drugs. (Id. at ¶¶ 3, 35-36). Defendant’s drug
trafficking has involved large quantities of multiple types of
drugs as well as firearms.
Defendant’s criminal record, repeated lack of
rehabilitation, and overall poor record of behavior on parole and
probation demonstrate that she poses a danger to the safety of
others and the community. Defendant has more than three years
remaining of her sentence. Defendant’s immediate release is not
appropriate considering the totality of the circumstances.
CONCLUSION
Defendant’s Motion For Compassionate Release (ECF No. 67) is
DENIED.
IT IS SO ORDERED.
Dated: September 25, 2023, Honolulu, Hawaii.
United States v. Jerre Nishida, Crim. No. 19-00107 HG-01; ORDER
DENYING DEFENDANT’S MOTION TO REDUCE SENTENCE UNDER THE FIRST
STEP ACT (COMPASSIONATE RELEASE) (ECF No. 67)
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