USA v. Dutchuk et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America, )
)
Plaintiff, ) ORDER DENYING DEFENDANT'S
) MOTION TO REDUCE SENTENCE
vs. )
)
Christopher Allen Dutchuk, ) Case No. 1:18-cr-023
)
Defendant. )
------------------------------------------------------------------------------------------------------------------------
Before the Court is Defendant Christopher Allen Dutchuk’s motion to reduce sentence under
18 U.S.C. § 3582(c)(1)(A), filed on June 15, 2022. See Doc. No. 164. The Government filed a
response in opposition to the motion on June 24, 2022. See Doc. No. 166. The Defendant filed a
reply on July 1, 2022. See Doc. No. 167. For the reasons set forth below, the motion is denied.
I. BACKGROUND
On February 7, 2018, Dutchuk was charged in a three-count indictment of conspiracy to
possess or sell stolen firearms, possession of stolen firearms, and possession of a firearm by a
convicted felon. See Doc No. 2. Dutchuk pled guilty to all three counts pursuant to a written plea
agreement on October 16, 2019. See Doc. No. 90. Sentencing was held on January 24, 2020. See
Doc. No. 128. The Presentence Investigation Report (PSR) calculated the Sentencing Guideline range
as 63-78 months based on a total offense level of 19 and a criminal history category VI. See Doc. No.
117. The Court sentenced Dutchuk to 72 months of imprisonment on each count with all sentences
to run concurrently. See Doc No. 128.
On June 15, 2022, Dutchuk filed the instant motion to reduce sentence citing his medical
problems, the COVID-19 pandemic, the lack of programming offered by the BOP, the recent death
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of his mother and how the BOP handled the notification, and his need for addiction counseling as
extraordinary and compelling reasons justifying release. See Doc. No. 164. The Government argues
a reduction of Dutchuk’s sentence is not warranted because he has not demonstrated an extraordinary
or compelling reason and the Section 3553(a) factors weigh against release. Dutchuk is incarcerated
at FCI Oxford, a medium security facility, in Oxford, Wisconsin. Dutchuk, now age 36, has served
approximately half of his 72-month sentence and has a projected release date of January 31, 2025.
It is undisputed Dutchuk has exhausted his administrative remedies.
II. LEGAL DISCUSSION
18 U.S.C. § 3582(c)(1)(A) allows the Court to modify a term of imprisonment under two
circumstances: by motion of the Director of the BOP 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.” It is undisputed the Defendant has
exhausted his administrative remedies.
In considering a motion to reduce sentence, the Court must assess whether, after considering
the 18 U.S.C. § 3553(a) factors, “extraordinary and compelling reasons” exist which warrant a
sentence reduction, and if a sentence reduction is consistent with the Sentencing Commission’s
applicable policy statement. See 18 U.S.C. § 3582(c)(1)(A). There is no right to counsel in Section
3582(c) proceedings. United States v. Brown, 565 F.3d 1093, 1094 (8th Cir. 2009). Nor is there a
right to a hearing. See Dillon v. United States, 560 U.S. 817, 827-28 (2010) (observing that, under
Federal Rule of Criminal Procedure 43(b)(4), a defendant need not be present at a proceeding under
Section 3582(c)(2) regarding the imposition of a sentencing modification). It should also be noted
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that the CARES Act does not provide the Court with any expanded authority to grant a motion to
reduce sentence under 18 U.S.C. § 3582(c). See CARES Act, Pub. L. No. 116-136, 134 Stat 281
(2020).
Prior to the passage of the First Step Act in 2018, district courts could only grant
compassionate release sentence reductions based upon a motion filed by the director of the BOP.
Such motions were rarely filed. This all changed when the President signed the First Step Act into
law on December 21, 2018. The relevant portion of the new law now reads as follows:
(c) Modification of an imposed term of imprisonment.--The court may not modify
a term of imprisonment once it has been imposed except that–
(1) in any case–
(A) the 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 (and may impose a term of probation or
supervised release with or without conditions that does not exceed the
unserved portion of the original 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;
18 U.S.C.A. § 3582(c)(1)(A)(I) (emphasis added).
Unfortunately, the First Step Act does not define “extraordinary and compelling reasons.” The
Sentencing Commission’s policy statement can be found at Section 1B1.13 of the 2021 Sentencing
Guidelines Manual. The policy statement requires a finding that a claimant meets three requirements:
1) extraordinary and compelling reasons warrant the reduction; 2) the defendant is not a danger to the
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community; and 3) the reduction follows the Sentencing Commission’s policy statement. USSG §
1B1.13. However, the policy statement pertains to the old law rather than the new law and thus is of
questionable applicability. See United States v. Beck, No. 1:13-CR-186-6, 2019 WL 2716505, at *6
(M.D.N.C. June 28, 2019) (concluding the old policy statement provides helpful guidance but does
not control the district court’s independent assessment of whether “extraordinary and compelling
reasons” warrant a sentence reduction.). This Court agrees that the Sentencing Commission’s existing
policy statement provides only limited guidance. See United States v. Fox, No. 2:14-CR-03, 2019
WL 3046086, at *3 (D. Me. July 11, 2019).
The Application Note to U.S.S.G. § 1B1.13 provides as follows:
1. Extraordinary and Compelling Reasons.--Provided the defendant meets the
requirements of subdivision (2), extraordinary and compelling reasons exist
under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of
death within a specific time period) is not required. Examples
include metastatic solid-tumor cancer, amyotrophic lateral
sclerosis (ALS), end-stage organ disease, and advanced
dementia.
(ii) The defendant is–
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive
impairment, or
(III) experiencing deteriorating physical or mental health
because of the aging process,
that substantially diminishes the ability of the defendant to
provide self-care within the environment of a correctional
facility and from which he or she is not expected to recover.
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(B) Age of the Defendant.--The defendant (i) is at least 65 years old; (ii)
is experiencing a serious deterioration in physical or mental health
because of the aging process; and (iii) has served at least 10 years or
75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.--
(i) The death or incapacitation of the caregiver of the
defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or
registered partner when the defendant would be the
only available caregiver for the spouse or registered
partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.--For purposes
of this policy statement, an extraordinary and compelling reason need not have
been unforeseen at the time of sentencing in order to warrant a reduction in the
term of imprisonment. Therefore, the fact that an extraordinary and compelling
reason reasonably could have been known or anticipated by the sentencing
court does not preclude consideration for a reduction under this policy
statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. § 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and
compelling reason for purposes of this policy statement.
4. Motion by the Director of the Bureau of Prisons.--A reduction under this
policy statement may be granted only upon motion by the Director of the
Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission
encourages the Director of the Bureau of Prisons to file such a motion if the
defendant meets any of the circumstances set forth in Application Note 1. The
court is in a unique position to determine whether the circumstances warrant
a reduction (and, if so, the amount of reduction), after considering the factors
set forth in 18 U.S.C. § 3553(a) and the criteria set forth in this policy
statement, such as the defendant's medical condition, the defendant's family
circumstances, and whether the defendant is a danger to the safety of any other
person or to the community.
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This policy statement shall not be construed to confer upon the defendant any
right not otherwise recognized in law.
5. Application of Subdivision (3).--Any reduction made pursuant to a motion
by the Director of the Bureau of Prisons for the reasons set forth in
subdivisions (1) and (2) is consistent with this policy statement.
U.S.S.G. § 1B1.13.
Dutchuk’s primary contention is that he has cardiomyopathy, and this condition makes him
more vulnerable to COVID-19 and developing serious complications as a result. Dutchuk has not
provided any current medical records to support his contention. However, the Court was well-aware
of his heart problems at the time of sentencing and does not doubt the cardiomyopathy diagnosis. The
PSR indicates Dutchuk has an enlarged heart and was hospitalized in 2019 for cardiac heart failure.
See Doc. No. 117, ¶ 98. The PSR reported that Dutchuk was prescribed carvedilol for the condition.
Dutchuk’s Summary Reentry Plan—Progress Report dated June 7, 2022, indicates he is currently
assigned to level Care 1, which is the category for “healthy or simple chronic care” inmates. See Doc.
No. 165.
The COVID-19 pandemic, which poses a threat to every person in the country, does not, in
and of itself, provide a basis for a sentence reduction. As the Third Circuit Court of Appeals recently
commented, “the mere existence of COVID-19 in society and the possibility that it may spread to a
particular prison alone cannot independently justify compassionate release.” United States v. Raia,
954 F.3d 594, 597 (3d Cir. 2020). In United States v. Gater, the Eighth Circuit Court of Appeals
found the district court did not misapply Section 3582(c)(1)(A) or abuse its discretion in denying the
defendant’s motion for compassionate release due to COVID-19. No. 20-2158, slip op. at 4 (8th Cir.
May 24, 2021). The Eighth Circuit stated:
“The substance of the district court’s order demonstrates that the court found Gater did
not have any ‘major’ medical issues and the mere possibility of contracting COVID-19
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in prison, alone, without a showing that the BOP is unwilling or unable to guard
against or treat the infection does not meet the extraordinary or compelling standard
to warrant a sentence reduction.”
Id. The defendant in Gater disagreed with the district court’s analysis that COVID-19 is not an
extraordinary and compelling reason to warrant a sentence reduction. The Eighth Circuit noted
Gater’s care level in prison “demonstrates no particularized susceptibility to COVID-19. Id. See also,
United States v. Thompson, 984 F.3d 431, 435 (5th Cir. 2021) (noting “[f]ear of COVID doesn’t
automatically entitle a prisoner to release” and affirming denial of compassionate release request to
otherwise healthy defendant who had two, well-controlled, chronic medical conditions).
District courts have concluded similarly. See United States v. Eberhart, Case No.
13-cr-00313, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) (A general concerns about possible
exposure to COVID-19 do not meet the criteria for extraordinary and compelling reasons for a
reduction in sentence). This does not mean that COVID-19 is not relevant to the Court’s totality of
circumstances analysis when considering a motion for reduction of sentence. All factors must be
considered. COVID-19 is an extremely dangerous illness. It has caused more than 1,000,000 deaths
in the United States to date along with severe societal and economic disruption. In response to the
pandemic, the BOP has taken significant measures to protect the health of the inmates in its charge
including working with the United States Centers for Disease Control to minimize the risk of COVID-
19 transmission with its facilities. The risk of infection is very real, both within BOP facilities and
in society in general. Release from prison does not abate the risk. The Court notes Dutchuk has been
vaccinated and commends him for taking advantage of the opportunity for vaccination. While
sympathetic to Dutchuk’s concerns regarding the presence of COVID-19 in the federal prison system
and his heart condition, the Court does not find that his circumstances clear the high bar necessary
to warrant a sentence reduction.
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Dutchuk also contends other factors support a finding of “extraordinary and compelling
reasons” for release, including the BOP’s inability to provide him with proper programing, the recent
death of his mother and his displeasure at how the BOP handled notifying him of her death along with
the lack of support provided to him. Dutchuk also contends he is in need of treatment for addiction
and has been on the waiting list for admission to the residential drug abuse program (RDAP) since
January 20, 2022. These circumstances, while unfortunate, are normal incidents of incarceration and
whether considered separately or together, do not rise to the level of “extraordinary and compelling
reasons” as contemplated by Section 3582(c)(1)(A)(i). In addition, the Court concludes the Section
3553(a) factors weigh against any sentence reduction. The Court commends Dutchuk for taking
advantage of the programming available to him and maintaining his sobriety.
The Court has carefully reviewed the entire record and concludes Dutchuk has failed to
demonstrate “extraordinary and compelling reasons” that would warrant a sentence reduction. See
United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016) (the burden is on the defendant to establish
a sentence reduction is warranted under 18 U.S.C. § 3582(c)(2)).
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No. 164) is
DENIED.
IT IS SO ORDERED.
Dated this 15th day of August, 2022.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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