USA v. SANS et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA
v.
PAUL SANS,
Defendant.
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Docket no. 2:12-cr-00030-GZS
ORDER ON MOTION FOR SENTENCE REDUCTION UNDER 18 U.S.C. § 3582(c)(1)(A)
(COMPASSIONATE RELEASE)
Before the Court is Defendant’s Motion for Compassionate Release (ECF No. 216).
Having reviewed the Motion, Defendant’s supplemental filings (ECF Nos. 217, 220-21, 223), and
the Government’s Response (ECF No. 222), the Court DENIES Defendant’s Motion.1
I. LEGAL STANDARD
18 U.S.C. § 3582(c)(1)(A) “authorizes a court to reduce a term of imprisonment when
‘extraordinary and compelling reasons warrant such a reduction’” and the prisoner seeking the
reduction has exhausted his administrative remedies. United States v. Ruvalcaba, 26 F.4th 14, 18
(1st Cir. 2022); see 18 U.S.C. § 3582(c)(1)(A). To grant a motion under section 3582(c)(1)(A),
“the district court must find both that the defendant has presented an ‘extraordinary and
1 Defendant also requested that the Court appoint him a lawyer in connection with his Motion. See Def.
Mot. (ECF No. 216), PageID #s 700-01; ECF No. 217, PageID # 704. However, he “has no constitutional
or statutory right to appointed counsel in connection with his motion for compassionate release.” See
United States v. Fleming, 5 F.4th 189, 192-93 (2d Cir. 2021) (“[A] defendant has no right to the assistance
of counsel in filing a motion for compassionate release or appealing from the denial of such a motion . . .
.”); see also United States v. Manso-Zamora, 991 F.3d 694, 696 (6th Cir. 2021) (“[E]very federal court of
appeals to address the issue has agreed that there is no constitutional (or statutory) right to appointed counsel
in § 3582(c) proceedings.”). The Court DENIES Defendant’s request to appoint counsel with respect to
the instant Motion.
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compelling’ reason warranting a sentence reduction and that ‘such a reduction is consistent with
applicable policy statements issued by the [United States] Sentencing Commission.’” Ruvalcaba,
26 F.4th at 18-19 (citations omitted); see 18 U.S.C. § 3582(c)(1)(A). With respect to a prisoner-
initiated motion under section 3582(c)(1)(A), however, there is no applicable policy statement that
is binding on the court’s review of such motion. See Ruvalcaba, 26 F.4th at 23.2 As such, when
reviewing a prisoner-initiated motion for compassionate release, “district courts enjoy broad
discretion[] and may conduct a holistic review to determine whether the individualized
circumstances, taken in the aggregate, present an ‘extraordinary and compelling’ reason to grant
compassionate release.” United States v. Trenkler, 47 F.4th 42, 47 (1st Cir. 2022); see Ruvalcaba,
26 F.4th at 18-19 (“[A] district court, reviewing a prisoner-initiated motion for compassionate
release . . . , may consider any complex of circumstances raised by a defendant as forming an
extraordinary and compelling reason warranting relief.”).
If a court determines that the defendant’s motion has presented extraordinary and
compelling reasons to warrant a sentencing reduction, it must then consider any applicable factors
under 18 U.S.C. § 3553(a) “and ‘determine whether, in its discretion, the reduction . . . is warranted
in whole or in part under the particular circumstances of the case.’” Ruvalcaba, 26 F.4th at 19
(quoting States v. Saccoccia, 10 F.4th 1, 4 (1st Cir. 2021)); see, e.g., United States v. Almeida, No.
2:11-cr-00127-DBH, 2021 WL 22332, at *2 (D. Me. Jan. 4, 2021) (denying compassionate release
based on § 3553(a) factors after finding that defendant’s medical conditions were extraordinary
and compelling in light of coronavirus pandemic).
2 USSG § 1B1.13, the Sentencing Commission’s policy statement applicable to a compassionate-release
motion brought by the Bureau of Prisons, “nonetheless may serve as a non-binding reference” for a court’s
review of a compassionate-release motion brought by a prisoner. See Ruvalcaba, 26 F.4th at 23.
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II. DISCUSSION
In February 2013, the Court sentenced Defendant Paul Sans to an imprisonment term of
180 months for bank robbery, conspiracy to commit bank robbery, and interference with commerce
by robbery. (See ECF No. 118, PageID #s 302-03.) Based on the Sentencing Guidelines Manual
in effect at the time, the Court determined that Defendant’s combined adjusted offense level was
29, factoring in his status as a career offender and his acceptance of responsibility. The Court
applied the career-offender enhancement (which added three offense levels) because it concluded
that two of Defendant’s prior convictions were for a “crime of violence” and for a “controlled
substance offense.” (See Statement of Reasons (ECF No. 119), PageID # 314); see also U.S.S.G.
§ 4B1.1 (defining “career offender”). Those two state convictions were as follows: (1) a 2003
Maine conviction for a residential burglary and theft; and (2) a 2009 New Hampshire conviction
for transport of (and conspiracy to possess) a narcotic drug with intent to sell. See Rev. PSR (ECF
No. 196-1), ¶s 76, 80. Defendant is currently serving his sentence at USP Coleman II with an
estimated release date in June 2025.3
Since Defendant’s sentencing, the Court has denied Defendant’s motions for
compassionate release on four previous occasions, most recently in June 2022. (See 6/23/20
Endorsement Order (ECF No. 200), 1/22/21 Order on Pending Motions (ECF No. 203), 1/25/22
Order on Pending Motions (ECF No. 211), 6/13/22 Order on Motion for Sentence Reduction (ECF
No. 214).) With each motion, the Court concluded that Defendant had not established
extraordinary and compelling reasons to warrant a sentence reduction.4 Additionally, in its January
and June 2022 Orders, the Court noted that Defendant’s “arguments related to his career offender
3 See https://www.bop.gov/inmateloc (last visited May 16, 2023); ECF No. 223-1, PageID # 736.
4 Additionally, in its January and June 2022 Orders, the Court determined that Defendant had not exhausted
his administrative remedies. See 1/25/22 Order, PageID # 689; 6/13/22 Order, PageID # 697.
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designation and ineffective assistance of counsel . . . are not properly addressed in the context of
compassionate release.” (1/25/22 Order, PageID # 690 n.4; see 6/13/22 Order, PageID # 697.)
The Court suggested that these challenges were appropriate for a successive petition under 28
U.S.C. § 2255, which Defendant had already been pursuing at the time. (1/25/22 Order, PageID
# 690 n.4.)
In August 2022, the First Circuit issued a decision in which it held for the first time that a
court may consider a sentencing error when determining what qualifies as “extraordinary and
compelling” reasons under 18 U.S.C. § 3582(c)(1)(A)(i). See United States v. Trenkler, 47 F.4th
42, 51 (1st Cir. 2022). In that decision, the First Circuit clarified that district courts “may conduct
a holistic review to determine whether the individualized circumstances, taken in the aggregate,
present an ‘extraordinary and compelling’ reason to grant compassionate release.” Id. at 47. The
following month, the First Circuit denied Defendant’s petition for leave to file a successive 28
U.S.C. § 2255 motion. (See 1st Cir. Judgment (ECF No. 215).)
Shortly thereafter, Defendant filed the instant Motion and cited therein the First Circuit’s
decision in Trenkler. (See Def. Mot. (ECF No. 216), PageID # 701.) Among other things, he
asserted that he would have received a lesser sentence if he were sentenced “today,” as he would no
longer be considered a career offender under the present standards. (See id., PageID # 700; ECF No.
217, PageID # 705.) The Court directed the Government to file a response “specifically address[ing]
the impact of . . . Trenkler . . . on Defendant’s arguments that various alleged sentencing errors
should be considered as part of the extraordinary and compelling reasons warranting a sentence
reduction.” (10/13/22 Endorsement Order.) The Government did so, asserting that Defendant had
not identified any extraordinary or compelling reasons to justify compassionate release because,
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under Ruvalcaba and Trenkler, a sentencing error alone cannot qualify as an extraordinary or
compelling basis. (See Gov. Opp. (ECF No. 222), PageID #s 727-29.)
At the outset of its discussion, the Court notes that it is unclear whether Defendant has
exhausted his administrative remedies with respect to his latest Motion. “For purposes of the
instant motion,” the Government has represented that it has “assume[d] that [Defendant] did in
fact request release from the [Bureau of Prisons (‘BOP’)] and has therefore exhausted his
administrative remedies.” (Id., PageID # 726 n.1.) Thus, in adjudicating Defendant’s Motion, the
Court also assumes that Defendant has exhausted his administrative remedies and therefore
proceeds to the merits of his Motion.
In light of the First Circuit’s decisions in Ruvalcaba and Trenkler, the Court has considered
Defendant’s arguments relating to his career-offender designation and his claims of ineffective
assistance of counsel, along with the other circumstances he cites, in determining whether he has
presented extraordinary and compelling reasons for his release. See Trenkler, 47 F.4th at 47.
Defendant asserts that his “burglaries are no longer violent in the First Cir[cuit] and [] conspiracy to
poss[es] cocaine in New Hampshire is no longer a controlled substance offense.” (Def. Mot., PageID
# 699.)5 The Government does not deny that Defendant no longer qualifies as a career offender
5 In support of his argument that his New Hampshire drug offense no longer qualifies as a “controlled
substance” offense for career-offender purposes, Defendant cites the Third Circuit’s decision in United States
v. Nasir, 17 F.4th 459 (3d Cir. 2021). See Def. Mot., PageID # 699. In Nasir, the Third Circuit concluded
that inchoate drug offenses do not qualify as “controlled substance” offenses under the career-offender
provision of the Sentencing Guidelines. See 17 F.4th 459 at 468. Because the district court had sentenced
the defendant in that case as a “career offender” based on a prior inchoate drug offense (attempt to possess
with intent to distribute cocaine), the Third Circuit held that he must be resentenced. See id. at 468-69. Here,
in contrast, Defendant’s 2009 New Hampshire conviction was for not only an inchoate offense (conspiracy
to possess a narcotic drug with intent to sell) but also transport of a narcotic drug with intent to sell. See
Rev. PSR, ¶ 80. Transportation of a narcotic drug with the intent to sell, as well as conspiracy to possess a
narcotic drug with intent to sell, falls plainly within the Sentencing Guidelines’ definition of a “controlled
substance offense.” See U.S.S.G. § 4B1.2(b) (defining “controlled substance offense” to include a felony
“offense under federal or state law . . . that prohibits the manufacture, import, export, distribution, or
dispending of a controlled substance”); id., Application Note 1 (“defining ‘controlled substance offense’ [to]
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under the current Sentencing Guidelines. Nevertheless, as the Government notes, the First Circuit
has made clear that “a change in sentencing law, standing alone, cannot” satisfy the “extraordinary
and compelling standard.” See Trenkler, 47 F.4th at 50. As such, even if Defendant “would not
have qualified as a career offender” today and would “have been sentenced under a lower guideline
range,” that fact alone “would not be enough to carry the day.” United States v. D’Angelo, No. 2:13-
CR-00114-NT, 2022 WL 10066359, at *3 (D. Me. Oct. 17, 2022); see Trenkler, 47 F.4th at 51.
Accordingly, the Court concludes that the sentencing changes identified by Defendant do not present
an extraordinary and compelling reason to justify a reduction in his sentence.6
The Court therefore turns to the other reasons that Defendant identifies as extraordinary and
compelling, namely that he: received ineffective assistance of counsel in his case;7 has completed
approximately 80% of his sentence and has rehabilitated himself during his incarceration;8
include the offenses of . . . conspiring . . . to commit such offenses”). Moreover, First Circuit precedent –
which is binding on this Court, unlike Nasir – is clear “that ‘controlled substance offenses’ under U.S.S.G.
§ 4B1.2 include so-called inchoate offenses such as conspiring to distribute controlled substances.” United
States v. Lewis, 963 F.3d 16, 21-25 (1st Cir. 2020). Nasir is therefore inapplicable to this case, and
Defendant’s New Hampshire drug offense remains a “controlled substance offense.”
6 The Court also acknowledges Defendant’s cursory citation to the Supreme Court’s decision in Concepcion
v. United States, 142 S. Ct. 2389 (2022). See Def. Mot., PageID # 702. In Concepcion, the Supreme Court
held that a “district court adjudicating a motion under [Section 404 of] the First Step Act may consider []
intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as
behavior in prison) in adjudicating a First Step Act motion.” 142 S. Ct. at 2396. Section 404(b) of “[t]he
First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of certain
[federal] offenses involving crack cocaine.” Id.; see Pub. L. 115–391, § 404(b), 132 Stat. 5222. Here,
Defendant was not convicted of a federal offense involving crack cocaine and therefore Concepcion – as
well as Section 404(b) of the First Step Act – is inapplicable to his request for a sentence reduction. See
United States v. Smith, 954 F.3d 446, 448 (1st Cir. 2020) (concluding that it is the statute under which a
defendant was convicted that determines whether he was sentenced for a “covered offense” within the
meaning of Section 404(a)). To the extent Defendant also relies on Section 403(b) of the First Step Act,
which reduced sentences under 18 U.S.C. § 924(c), such reliance is misplaced because he was not sentenced
under this section.
7 See Def. Mot., PageID # 699; ECF No. 217, PageID # 706; ECF No. 220, PageID # 714; ECF No. 221,
PageID # 720; ECF No. 223, PageID # 733.
8 See Def. Mot., PageID #s 699-700; ECF No. 217, PageID # 704; ECF No. 220, PageID #s 712-13; ECF
No. 221-2, PageID # 721.
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previously sustained a traumatic brain injury as a child and suffers from high blood pressure and
“hip/joint” disease;9 and has a significant other with whom he has a young daughter and a
business.10 The Court addresses each of these cited reasons in turn. First, for the reasons previously
set forth on the record, this Court concludes that Defendant’s allegations regarding ineffective
assistance of counsel lack merit. (See Recommended Decision (ECF No. 146), PageID #s 501-07;
Order Affirming Recommended Decision (ECF No. 152).) Second, while the Court acknowledges
Defendant’s rehabilitative efforts, rehabilitation alone is not a sufficient basis for finding that
extraordinary and compelling reasons exist. See Ruvalcaba, 26 F.4th at 25.11 Third, at the time of
Defendant’s sentencing, the Court was already aware of his brain injury and related behavioral
troubles, as well as his general mental health history. These issues were documented in the
Presentence Investigation Report and also emphasized by his then-counsel. (See Rev. PSR, ¶s 92-
95; Def. Sentencing Brief (ECF No. 114), PageID #s 296, 298-99; Transcript of Sentencing Hearing
(ECF No. 137), PageID #s 389, 392, 395.) “Because these issues have already factored into [the
Court’s] sentencing decision, they are not ‘extraordinary’ or ‘compelling’ in the context of a motion
for a sentencing modification.” D’Angelo, 2022 WL 10066359, at *4. With respect to his high
blood pressure and hip/joint disease, Defendant has not brought forward any documentation
establishing these conditions or any evidence that these conditions are not, or cannot be, well
managed at USP Coleman II. Finally, the Court has previously considered Defendant’s plans to
assist his significant other, who recently underwent cancer treatment, and their young child. As the
Court previously determined, these family circumstances do not present an extraordinary or
9 See ECF No. 220, PageID # 716; ECF No. 221-1, PageID # 721; ECF No. 223, PageID # 733.
10 See ECF No. 220, PageID # 716; ECF No. 223, PageID #s 733-34.
11 However, the Court has considered Defendant’s rehabilitative efforts in conjunction with the other
circumstances that he cites as extraordinary and compelling reasons.
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compelling reason justifying a sentence reduction. Additionally, taken in the aggregate, these
circumstances do not “present an ‘extraordinary and compelling’ reason to grant compassionate
release.’” Trenkler, 47 F.4th at 47.12
Even assuming the Court were to find extraordinary and compelling reasons on the present
record, the Court must also consider any applicable factors found in 18 U.S.C. § 3553(a). This
Court has done so on numerous occasions. In January 2021, for instance, in ruling on one of
Defendant’s prior motions for compassionate release, the Court concluded “that the nature and
circumstance of [his] offense, his history and characteristics, and the need to protect the public”
were “all factors that informed the Court’s initial 180-month sentence in this bank robbery case”
and supported the denial of Defendant’s request for compassionate release. (1/22/21 Order,
PageID # 645.) In January 2022, the Court again evaluated the § 3553(a) factors and concluded
“that the consideration of all of the applicable section 3553(a) factors continue[d] to provide an
independent basis to deny [Defendant’s] renewed request for a sentence reduction.” (1/25/22
12 The Court also notes that Defendant’s sentence is not so unusually long that it constitutes an extraordinary
or compelling reason for a sentence reduction. As noted previously, Defendant received a 180-month
imprisonment sentence for federal robbery crimes based on the Court’s determination that his total offense
level was 29, factoring in his status as a career offender. See Transcript of Sentencing Hearing (ECF No.
137), PageID # 399; Statement of Reasons, PageID # 314. Defendant’s sentence fell within the 151- to
188-month Guideline imprisonment range for his offense level and Category VI criminal history. See
Statement of Reasons, PageID # 315. If Defendant had not been deemed a career offender, his total offense
level would have been reduced by three levels to 26 (see id., PageID #s 314-15) and the Guideline
imprisonment range reduced to 120 to 150 months. As the Government notes, “the difference between the
sentence that he received and the sentence that he would receive if sentenced today [assuming he was again
sentenced near the top of the Guideline range] is only thirty (30) months – hardly the type of sentencing
disparity that courts found to be ‘extraordinary and compelling’ within the meaning of the First Step Act.”
Gov. Opp., PageID # 730; see, e.g., United States v. Vigneau, 473 F. Supp. 3d 31, 36-39 (D.R.I. 2020)
(finding extraordinary and compelling reasons where defendant was serving mandatory sentence from 1998
of 365 months when current national average for offense was 27 months); United States v. Urkevich, No.
8:03CR37, 2019 WL 6037391, at *2 (D. Neb. Nov. 14, 2019) (finding extraordinary and compelling that
defendant sentenced in 2004 was facing an imprisonment term forty years longer than would be the case if
sentenced today).
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Order, PageID # 690.) Having duly considered Defendant’s latest filings and the current record,
the Court does not find cause to disturb its prior determinations as to the section 3553(a) factors.
Finally, with respect to Defendant’s requests to be incarcerated elsewhere or serve the
remainder of his sentence in home confinement,13 the Court notes that it cannot review the BOP’s
decision to not place Defendant in a particular facility or home confinement in this posture. See
Tapia v. United States, 564 U.S. 319, 330-31 (2011) (“When a court sentences a federal offender,
the BOP has plenary control, subject to statutory constraints, over ‘the place of the prisoner's
imprisonment’ . . . . [D]ecisionmaking authority rests with the BOP.” (citation omitted)); 18 U.S.C.
§ 3621(b) (“[A] designation of a place of imprisonment . . . is not reviewable by any court.”).14
For the foregoing reasons, the Court hereby DENIES Defendant’s Motion (ECF No. 216).
SO ORDERED.
/s/ George Z. Singal
United States District Judge
Dated this 16th day of May, 2023.
13 See Def. Mot., PageID # 701; ECF No. 217, PageID #s 704-05; ECF No. 220, PageID # 716; ECF No.
223, PageID # 734.
14 To the extent Defendant’s filings reference ongoing safety concerns at his current facility (ECF No. 221,
PageID # 720; ECF No. 223, PageID #s 734-35), those concerns must be addressed by BOP and, on the
record presented, do not provide a basis for compassionate release.
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