USA v. Goldberg

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHISN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
MICHAEL BERNARD GOLDBERG,
Defendant.
4:18-CR-40119-01-KES
ORDER DENYING MOTION FOR
RELIEF UNDER THE
FIRST STEP ACT
Defendant, Michael Bernard Goldberg, filed a motion for compassionate
release under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 63. Plaintiff, the United States
of America, opposes the motion. Docket 67. For the following reasons, the court
denies defendant’s motion for compassionate release.
BACKGROUND
On August 20, 2018, Goldberg pleaded guilty to conspiracy to distribute a
controlled substance in violation of 21 U.S.C. §§ 841(a)(1) and 846. Dockets 40, 46.
On October 21, 2019, the court sentenced Goldberg to 132 months in custody
followed by five years of supervised release. Docket 55; Docket 56 at 2-3. Goldberg’s
sentence was later reduced to 66 months in custody. Docket 62 at 2. His projected
date of release is March 29, 2024. Docket 66 at 207.
Goldberg is incarcerated at FCI Milan, a low security federal correctional
institution in Milan, Michigan. Docket 63-1 at 2; FCI Milan, Fed. Bureau of Prisons,
(last visited Jan. 5, 2022). The total population at FCI Milan is 1,527 persons. Id.
In support of his motion, Goldberg argues the current circumstances at FCI
Milan and his rehabilitation efforts while in custody, coupled with his two-prior
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positive COVID-19 diagnoses, warrant early release. Docket 63 at 2-3; Docket 63-1
at 1. Goldberg submitted a request for compassionate release to the warden on
September 4, 2021. Docket 63-1 at 1. On October 25, 2021, Goldberg filed a pro
se motion with the court for relief under the First Step Act. Docket 63.
DISCUSSION
Because sentences are final judgments, a court ordinarily “may not
modify a term of imprisonment once it has been imposed[.]” 18 U.S.C. §
3582(c). In 2018, Congress passed the First Step Act (FSA). Pub. L. No. 115-
391, 132 Stat. 5194 (2018). In pertinent part, the FSA amends 18 U.S.C.
§ 3582(c)(1)(A) to permit incarcerated defendants in certain circumstances to
file motions with the court seeking compassionate release. Compassionate
release provides a narrow path for defendants with “extraordinary and
compelling reasons” to leave prison early. 18 U.S.C. § 3582(c)(1)(A)(i). Such a
reduction in sentence must take into consideration the 18 U.S.C. § 3553(a)
sentencing factors and be consistent with applicable policy statements issued
by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A).
The Sentencing Commission’s policy statement, which was adopted
before the FSA was passed, requires both “extraordinary and compelling
reasons” to warrant a sentence reduction and that the defendant not pose a
danger to the safety of others.” USSG § 1B1.13(1)-(2) (Nov. 2018). The burden
to establish that a sentence reduction is warranted under 18 U.S.C. § 3582(c)
rests with the defendant. See United States v. Jones, 836 F.3d 896, 899 (8th
Cir. 2016).
Goldberg argues that the global COVID-19 pandemic, his prior COVID-
19 diagnoses, his rehabilitation efforts, and the current conditions of FCI
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Milan satisfy the “extraordinary and compelling reasons” standard under 18
U.S.C. § 3582(c)(1)(A)(i). Docket 63 at 2-3; Docket 70 at 7-9. Goldberg requests
a sentence reduction of twelve months. Docket 63 at 3.
I. 	Administrative Exhaustion
Previously, only the BOP Director had the authority to bring a compassionate
release motion on a defendant’s behalf. With the enactment of the FSA, however,
Congress has now permitted courts to grant compassionate release on motions filed
by defendants “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.” 18 U.S.C. § 3582(c)(1)(A).
On September 4, 2021, Goldberg submitted a Request to Staff form asking for
a reduction in sentence due to COVID-19. Docket 63-1 at 1. Goldberg did not
indicate whether he received a response from the warden as required by the statute.
However, given that the 30-day waiting period required by 18 U.S.C. § 3582(c)(1)(A)
has lapsed, the court concludes that Goldberg’s motion is ripe for review on the
merits.
II. 	Extraordinary and Compelling Reasons
The Sentencing Commission was directed by Congress to describe what
“should be considered extraordinary and compelling reasons” for compassionate
release and fashion “the criteria to be applied and a list of specific examples.” See
28 U.S.C. § 994(t). The Sentencing Commission did so by limiting “extraordinary
and compelling reasons” to four categories. USSG § 1B1.13, cmt. n.1(A)-(C) (2018).
The four categories pertain to a defendant’s (1) terminal illness, (2) debilitating
physical or mental health condition, (3) advanced age and deteriorating health in
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combination with the amount of time served, and (4) compelling family
circumstances. Id. A fifth catch-all category also exists for an “extraordinary and
compelling reason other than, or in combination with, the reasons described in
subdivisions (A) through (C)” as determined by the BOP. USSG § 1B1.13, cmt.
n.1(D).
The court has detailed the governing law and the analysis it uses when
confronted with a compassionate release motion in many previous orders. E.g.,
United States v. Shields, 3:07-CR-30106-01-KES, 2021 WL 765001, at *2-3 (D.S.D.
Feb. 26, 2021); United States v. Muhs, 4:19-CR-40023-02-KES, 2021 WL 534517, at
*2-3 (D.S.D. Feb. 12, 2021); United States v. Adame, 4:18-CR-40117-05-KES, 2020
WL 7212096, at *2-3 (D.S.D. Dec. 7, 2020); United States v. Nyuon, 4:12-CR-40017-
01-KES, 2020 WL 7029873, at *2-3 (D.S.D. Nov. 30, 2020). The court has assumed
the policy statements still apply to compassionate release motions brought under
the FSA and utilizes USSG § 1B.13, Application Notes 1(A)-(D) to guide its analysis.
See, e.g., Muhs, 2021 WL 534517, at *3.
Goldberg contends that the ongoing COVID-19 pandemic in combination with
the current modified operations of FCI Milan, his participation in the Residential
Drug Abuse Program, and his prior COVID-19 diagnoses satisfy the “extraordinary
and compelling reasons” standard under 18 U.S.C. § 3582(c)(1)(A)(i). Docket 63 at 2-
3; Docket 70 at 2-3, 7-9. Goldberg argues that his circumstances fall under the
medical conditions category, USSG § 1B1.13 Application Note 1(A), and the catch-
all provision, USSG § 1B1.13 Application Note 1(D). Docket 70 at 8-9.
Assuming the court’s discretion to consider compassionate release is at least
as broad as the outdated policy statement of the Sentencing Commission, Goldberg
has failed to show that his reasons for release rise to the level of “extraordinary and
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compelling” circumstances justifying a reduction in sentence.
A. 	Medical Conditions Category, Note 1(A)
As relevant here, the medical conditions category applies when the defendant
is suffering from a serious physical or medical condition that substantially
diminishes his ability to provide self-care within a correctional facility and from
which he is not expected to recover. USSG § 1B1.13 cmt. n. 1(A)(ii)(I).
COVID-19 appears to pose a particular risk for individuals with certain
existing health conditions. The Centers for Disease Control and Prevention (CDC)
updated its current understanding of these risks. See People with Certain Medical
Conditions, Ctrs. for Disease Control & Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (Dec. 14, 2021). The CDC states individuals with the
following conditions are more likely to become severely ill from COVID-19: cancer,
chronic kidney disease, chronic liver disease (such as alcohol-related liver disease,
non-alcoholic fatty liver disease, autoimmune hepatitis, and cirrhosis), chronic lung
diseases (including moderate to severe asthma, bronchiectasis, bronchopulmonary
dysplasia, chronic obstructive pulmonary disease (COPD), interstitial lung disease,
cystic fibrosis, pulmonary embolism, and pulmonary hypertension), dementia or
other neurological conditions, diabetes (type 1 or type 2), down syndrome, heart
conditions (such as heart failure, coronary artery disease, cardiomyopathies, or
hypertension), HIV infection, immunocompromised state, mental health conditions
(having mood disorders, including depression, and schizophrenia spectrum
disorders), being overweight and obesity, pregnancy, sickle cell disease or
thalassemia, being a current or former smoker, having a solid organ or blood stem
cell transplant, history of stroke or cerebrovascular disease, substance abuse
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disorders (such as alcohol, opioid, or cocaine use disorder), and tuberculosis. Id.
The court has reviewed the medical records submitted in this case. Goldberg’s
medical conditions include alcohol use disorder, cannabis use disorder, stimulant
related disorder, anxiety disorder, and two prior COVID-19 diagnoses. Docket 66 at
66-67, 141-142. 	According to his medical records, his substance disorders are
classified as mild by his providers. Id. He is prescribed buspirone to manage his
anxiety. Docket 66 at 2, 148. His anxiety is the only condition that is actively being
treated with medication. Docket 66 at 40. 	Additionally, his records reflect few
clinical visits, prescribed medications, and medical conditions. See generally Docket
66. This leads the court to believe that Goldberg is adequately healthy.
Although Goldberg does suffer from medical conditions recognized by the
CDC, the court has required a more particularized showing of a risk of serious
illness from COVID-19 when evaluating compassionate release motions.
Goldberg’s substance abuse disorders and his anxiety does not prevent him from
providing self-care in a correctional facility setting, and his medical conditions do
not amount to extraordinary and compelling circumstances.
Furthermore, Goldberg has already recovered from COVID-19. Id. at 35. On
July 18, 2020, Goldberg tested positive for COVID-19 and was placed in isolation.
Id. at 91, 94. During his period of isolation, Goldberg was seen by his provider and
reported mild symptoms of COVID-19. Id. at 74-85, 88, 91, 94. His symptoms
included fatigue, body aches, headache, and pain while breathing. Id. As a result,
he was prescribed ibuprofen and acetaminophen to manage his symptoms. Id. at
86. Goldberg was advised on access to health care, infection prevention/control,
hand washing, increasing fluids for hydration status, symptom control/relief, and
his plan of care. Id. at 75-84. He completed his 14-day isolation on July 31, 2020
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after being asymptomatic for 3 days. Id. at 74.
Additionally, Goldberg also tested positive on November 18, 2020. Docket 66
at 67. He reported only suffering from a headache and was prescribed ibuprofen to
manage his pain. Id. at 57, 59, 60-62, 64, 66-67. He was released from isolation on
November 28, 2020 after 10 days. Id. at 55. On April 2, 2021, Goldberg received his
first dose of a Moderna COVID-19 vaccine. Id. at 38. He received his second vaccine
on April 28, 2021 and achieved full vaccination status on May 12, 2021.1 Id.
Additionally, the COVID-19 pandemic alone is insufficient to warrant early
release. The BOP has made significant changes to correctional operations since the
pandemic started in early 2020. See BOP Modified Operations, Fed. Bureau of
Prisons, https://www.bop.gov/coronavirus/covid19_status.jsp (2022). These
include sanitary and safety measures, restrictions on movement, and visitation
restrictions, among others. Id. The BOP has also transferred many thousands of
inmates to home confinement. See Frequently Asked Questions Regarding Potential
Inmate Home Confinement in Response to the COVID-19 Pandemic, Fed. Bureau of
Prisons, https://www.bop.gov/coronavirus/faq.jsp (last visited Jan. 5, 2022). Since
March 26, 2020, to the present, 36,530 inmates have been placed in home
confinement. Id. These measures have led to a dramatic decrease in the total BOP
population, which in turn has increased opportunities for social distancing and
reduces the strain on BOP resources.
1 The CDC states that, “Everyone 5 years and older is recommended to receive a
primary series of a COVID-19 to be considered fully vaccinated... a primary series
consists of: A 2-dose series of an mRNA COVID-19 vaccine (Pfizer-BioNTech or
Moderna), or A single-dose COVID-19 vaccine (Johnson & Johnson’s Janssen
vaccine).” See Stay Up to Date with Your Vaccines, Ctrs. for Disease Control &
Prevention, https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-
vaccinated.html (Jan. 5, 2022).
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The court believes Goldberg’s medical conditions are appropriately managed
at FCI Milan, the facility is engaged in appropriate efforts to protect inmates against
the spread of COVID-19, and the facility would act to treat any inmate who does
contract COVID-19. The fact that FCI Milan had a COVID-19 outbreak does not
negate such conclusions. The statistical information for FCI Milan demonstrates a
widespread COVID-19 outbreak, but it was not disastrous. See BOP Modified
Operations, Fed. Bureau of Prisons,
https://www.bop.gov/coronavirus/covid19_status.jsp (last visited Jan. 5, 2022).
There were three deaths as a result, and 215 inmates including Goldberg have
recovered. Id. The total population at FCI Milan is currently 1,527 persons. See FCI
Milan. This persuades the court that FCI Milan has acted appropriately to treat
inmates who do contract COVID-19. The court believes the facility will continue to
appropriately treat inmates who do so.
The BOP’s vaccination program for staff and inmates is another protective
measure warranting consideration in this stage of the COVID-19 pandemic. The
BOP has implemented a COVID-19 vaccination plan to protect inmates and staff
and limit the transmission of COVID-19 within the facilities. See COVID-19, Fed.
Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited January 5,
2022). As of January 5, 2022, 278,583 doses have been administered systemwide.
Id. At FCI Milan, 209 staff and 1037 inmates were fully inoculated as of January 5,
2022.
These efforts to limit the spread of COVID-19 and protect inmates appear to
be working. As of January 5, 2022, the BOP reported 1,736 federal inmates have
confirmed positive test results for COVID-19 nationwide. See id. There are currently
over 135,000 federal inmates in BOP-managed facilities. Id.
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In light of the above, the court finds Goldberg’s circumstances do not clear the
high bar necessary to warrant compassionate release for “extraordinary and
compelling reasons” under 18 U.S.C. § 3582(c)(1)(A)(i).
B. 	Catch-all Category, Note 1(D)
The catch-all category in Note 1(D) does not result in a different outcome. The
catch-all category allows for release if there are extraordinary and compelling
reasons other than, or in combination with, those identified in 1(A) through 1(C).
USSG § 1B1.13, cmt. n.1(D). Goldberg claims that he should be considered for a
12-month sentence reduction for his participation in the Residential Drug Abuse
Program (RDAP). Docket 63 at 2-3. He informs the court that he does not qualify
for a sentence reduction due to him possessing a firearm during the offense,
resulting in him being classified as a violent offender. Id. Goldberg contests this
categorization because he argues that his addiction and his “inability to control
impulsive behavior while intoxicated” is what made him violent, not himself as an
individual. Docket 70 at 2.
The court finds that Goldberg is a violent offender. While on pretrial release,
he was arrested and charged with seven counts of domestic abuse and simple
assault. Docket 49 ¶¶ 5, 39. Additionally, his criminal history revealed a prior
felony conviction. Id. ¶ 34. He was described as someone who always carried a
firearm and was seen with a black semi-automatic pistol on his hip. Docket 49 ¶
11. Goldberg possessed a dangerous weapon during the offense and admitted that
his methamphetamine use lead to “paranoia and irrational though[t] process[es],
which only aids in aggravating the already serious issues relating to anger and
rage.” Docket 70 at 1-2. In conclusion, his circumstances do not warrant a
sentence reduction, nor does it meet the high bar under the “extraordinary and
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compelling” provision under the First Step Act.
III. 	Sentencing Factors of § 3553(a)
The 3553(a) sentencing factors further show that compassionate release is not
warranted. Goldberg’s conviction stems from a conspiracy to distribute a
controlled substance. On April 6, 2017, Goldberg admitted to purchasing
methamphetamine from “Double” on various occasions. Docket 49 ¶ 10. The
amounts varied from gram quantities to larger ounce quantities. Id. Law
enforcement discovered that Goldberg was purchasing methamphetamine from
different distributors, at varying amounts. Id. ¶ 11-12. One distributor observed
Goldberg with a firearm at each transaction. Id. The total amount of drugs
attributed to the defendant in the conspiracy was 5.92 kilograms of
methamphetamine. Id. ¶ 14.
After being arrested for the offense, Goldberg was placed on pretrial release
and continued to commit crimes. Id. ¶¶ 5-7. He was arrested and charged with
seven counts of domestic abuse and simple assault. Id. ¶ 5. Goldberg was later
charged with petty theft. Id. ¶ 6. Additionally, he tested positive for marijuana the
day of his court hearing and was remanded to the custody of the United States
Marshals. Id. ¶ 7.
The total offense level was calculated as 33 and Goldberg was in criminal
history category II. Id. ¶¶ 28, 37. The offense had a mandatory minimum of 10
years in custody. Id. ¶ 74. The advisory guideline range was 151-188 months. Id. ¶
75. The court sentenced Goldberg below his guideline range to 132 months in
custody. Docket 56 at 2. Goldberg’s sentence was later further reduced to 66
months. Docket 62 at 2. After careful consideration, the court concludes
Goldberg’s sentence of 132 months continues to be appropriate for the seriousness
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of the crime to which he pleaded guilty.
CONCLUSION
Goldberg has failed to satisfy the extraordinary and compelling
reason standard. Thus, it is
ORDERED that the defendant’s motion for compassionate release under
the First Step Act (Docket 63) is denied.
Dated January 5, 2022.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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