USA v. Boucher

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MARK J. BOUCHER,
Defendant.
Case No. 21-cr-02872-BAS-1
ORDER DENYING MOTION FOR
COMPASSIONATE RELEASE
(ECF No. 157)
I. 	INTRODUCTION
Defendant 	Mark 	J. 	Boucher 	moves 	to 	reduce 	his 	sentence 	pursuant 	to 	18
U.S.C. § 3582(c)(1)(A)(i)—compassionate release—claiming his medical conditions are
being inadequately treated in custody, and that as a result, he is unable to care for himself
and faces the possibility of death. 	(ECF No. 157.) 	The Government opposes (ECF No.
163), and Defendant replies (ECF No. 168; see also ECF Nos. 169, 170).
There is no question Defendant has some medical concerns. 	There is also no
question that Defendant consistently demonstrates a willingness to lie and scheme about
those conditions if he thinks it will help him. 	Having reviewed the Bureau of Prisons
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(“BOP”) medical records, as well as considered Defendant’s past behavior and the
§ 3553(a) factors, the Court concludes compassionate release is not warranted. Hence, the
Court DENIES Defendant’s Emergency Motion to Reduce his Sentence pursuant to 18
U.S.C. § 3582(c). (ECF No. 157.)
II. 	BACKGROUND
Defendant was an investment adviser registered with the Securities and Exchange
Commission (“SEC”). (Presentence Report (“PSR”) ¶ 6, ECF No. 70.) From late 2010 to
2020, he misappropriated more than $3 million from his clients. 	(Id. ¶ 7.) 	He used the
stolen money to fund a lavish lifestyle including cars, dinners, and trips to a five-star resort.
(Id.) 	His thefts included forging signatures, impersonating a client on the telephone,
authorizing wire transfers from clients’ investment accounts, and diverting funds left to a
non-profit beneficiary after that client had died. 	(Id. ¶¶ 9–14.) 	In addition, Defendant
provided false documents to the SEC and to the San Diego Superior Court to conceal his
fraud. (Id. ¶ 21.)
At Sentencing, the Court considered many victim impact statements about the effect
Defendant’s abuse of their trust had had on them. One victim said Defendant had boasted
he could “beat any system.” (PSR ¶ 34.)
While serving in the United States Marine Corps, Defendant was a victim of grenade
explosions. 	As a result, he suffers from multiple mental and physical health conditions,
including PTSD, sleep apnea, hearing loss, neuropathy, back problems, and sensitivity to
light. He has been found 100% medically disabled from the Marine Corps since 2012 and
receives monthly disability payments. (PSR ¶ 101.)
During the course of the case, Defendant claimed he was physically and mentally
unable to stand trial. 	Defendant appeared in Court in a motorized mobility scooter and
appeared unable to perambulate. He also was accompanied by his emotional support dog
who allegedly could tell if he might become unconscious and lick him to warn him.
During the course of litigation about Defendant’s medical concerns, the Government
presented evidence showing Defendant was able to fly alone from South Dakota to San
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Diego without the accompanying service dog, able to pick up his suitcase and place it on a
scale and conveyor belt, walk through security with minimal use of a cane, and able to
stand on one leg to put shoes back on without apparent difficulty. The Government also
presented surveillance video footage showing Defendant left home without his mobility
scooter, walked his dogs without the assistance of a cane or walker, was able to pull trash
cans back toward the residence without difficulty, and climbed on a car to wash it. These
surveillance videos and photographs presented to the Court contradicted Defendant’s
representations about the extent of his abilities. The Court found Defendant competent to
stand trial. (ECF No. 53.)
Defendant is being held at the BOP medical facility located in Rochester, Minnesota.
The Government’s Response details all the medical services available to Defendant at that
facility, including hospitalization and treatment at the Mayo Clinic when necessary. (ECF
No. 163.) The facility has a wide variety of medical specialists, as well as individuals who
can provide assistance with activities for daily living, in-patient care, 24-hour nursing, and
a designated mental health services division. (Id.)
Contrary to the representations in Defendant’s Motion, Defendant appears to be
getting treatment for his various medical conditions. 	For example, his claim that he
struggles with sleep apnea and has not been provided a mask for his treatment despite
multiple requests (ECF No. 157, at 3) is demonstrably false. 	Defendant has been issued
his own personal BiPAP machine at FMC Rochester. (ECF No. 163, Ex. 1, at 521.) He
lied to his respiratory therapist about his use of the mask and the mask seal. 	(Id.) 	The
respiratory therapist confronted Defendant about these lies. (Id. (“You know what is even
more disappointing—you continuing to lie about your BiPAP usage.”).) Additionally, he
has been seen by dermatologists at the Mayo Clinic and has received antibiotics to address
his concerns about impetigo. 	(Id., Ex. 3, at 2155; Ex. 2, at 1404, 1423.) 	By January 2,
2026, an infectious disease consultant noted that Defendant’s skin lesions were “well
healed and noninfectious at this point in time.” (Id.) Defendant’s claims about a hematoma
above the injection site after an epidural are completely unsupported by the record. (Id.,
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Ex. 2, at 1540, 1548, 1827.) And, despite his expert doctor’s representation that there are
no specialists available to address Defendant’s TMJ issues, in fact Defendant is scheduled
for oral surgery for his TMJ on April 3, 2026. (Id., Ex. 3, at 2307.)
The doctor retained by Defendant to opine that Defendant is receiving inadequate
medical care has never observed or treated any of Defendant’s conditions, has not observed
the facility’s treatment of Defendant, and relies largely on Defendant’s self-serving
statements. This doctor is perhaps unaware of Defendant’s past history of prevarication,
exaggeration, and manipulation.
III. 	ANALYSIS
A. 	Exhaustion of Administrative Remedies
Under 18 U.S.C. § 3582(c)(1)(A), a court may, in certain circumstances, modify or
reduce 	a 	defendant’s 	term 	of 	imprisonment, 	but 	only 	after 	he 	has 	exhausted 	his
administrative remedies. 	The “district court must enforce the administrative exhaustion
requirement” when it is properly invoked by the Government. 	United States v. Keller, 2
F.4th 1278, 1280 (9th Cir. 2021).
“Requiring inmates to exhaust their administrative remedies before seeking court
intervention serves several purposes. First, it protects administrative agency authority by
guaranteeing agencies the ‘opportunity to correct [their] own mistakes.’” United States v.
Ng Lap Seng, 459 F. Supp. 3d 527, 532 (S.D.N.Y. 2020) (quoting Woodford v. Ngo, 548
U.S. 81, 89 (2006)). 	“Second, it promotes efficiency, since claims ‘generally can be
resolved much more quickly and economically in proceedings before an agency than in
litigation in federal court.’” Id.
Section 3582 provides two alternative routes to exhaustion. In the first, a petitioner
files a petition with the Warden seeking release, which is denied by the Warden and the
petitioner proceeds to continue to fully exhaust his administrative remedies by appealing
this refusal from the Warden. 	In the second, the Warden takes no action, 30 days lapse,
and because of the Warden’s failure to act, the petitioner may proceed without fully
exhausting his administrative remedies. 18 U.S.C. § 3582(c)(1)(A).
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Although the Government argues Defendant has failed to exhaust his administrative
remedies, Defendant’s counsel attaches a letter dated June 30, 2025, to the Warden at FMC
Rochester detailing Defendant’s medical conditions and explaining why these conditions
justify compassionate release. (ECF No. 168-1.) Counsel states neither he nor Defendant
received any response to this letter. Since more than 30 days have elapsed, Defendant may
proceed without further exhausting his administrative remedies. 	See Keller, 2 F.4th at
1281; 18 U.S.C. § 3582(c)(1)(A).
B. 	Extraordinary and Compelling Circumstances
If the exhaustion requirement is met, a court may modify or reduce the defendant’s
term of imprisonment “after considering the factors set forth in [18 U.S.C. § 3553(a)]” if
the Court finds, as relevant here, that “extraordinary and compelling reasons warrant such
a reduction” and “such a reduction is consistent with applicable policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). As the movant, the defendant
bears the burden to establish that he is eligible for a sentence reduction. 	United States v.
Holden, 452 F. Supp. 3d 964, 966 (D. Or. 2020). 	Because “compassionate release
derogates from the principle of finality, it is a narrow remedy . . . the court’s disposition of
a compassionate release motion is discretionary, not mandatory.” United States v. Wright,
46 F.4th 938, 944–45 (9th Cir. 2022).
The 	Policy 	Statement 	issued 	by 	the 	Sentencing 	Commission 	allows 	for
compassionate release based on the “medical circumstances of the defendant” in certain
circumstances. 	U.S.S.G. § 1B1.13(b)(1). 	Specifically, a defendant’s medical condition
can warrant release if he is suffering from a terminal illness, suffering from a serious
physical or medical condition “that substantially diminishes [his] ability . . . to provide self-
care within the environment of a correctional facility and from which he . . . is not expected
to recover,” or when he is suffering from “a medical condition that requires long-term or
specialized medical care that is not being provided and without which the defendant is at
risk of serious deterioration in health or death.” Id. § 1B1.13(b)(1)(A)–(C).
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Although Defendant suffers from serious medical conditions, he fails to demonstrate
that 	they 	are 	sufficient 	to 	constitute 	extraordinary 	and 	compelling 	circumstances
warranting release. The fact that Defendant has manipulated and lied about his medical
conditions in the past makes it more difficult to evaluate his situation, but he appears able
to provide self-care, and a review of his medical records supports that he is receiving
appropriate specialized medical care at FMC Rochester. 	He does not have a terminal
illness, nor does he provide sufficient information supporting his claim that he is facing
possible death because of his medical care. The Court discounts much of the information
provided by his expert witness doctor, since this doctor has never met with Defendant
personally, has not witnessed the medical care Defendant is receiving, and has not been
exposed to Defendant’s past deception.
Because 	Defendant 	fails 	to 	meet 	his 	burden 	to 	establish 	extraordinary 	and
compelling circumstances warranting his release, the Court finds compassionate release is
not appropriate.
C. 	Section 3553 Factors
Furthermore, the Court finds the factors listed in 18 U.S.C. § 3553(a) also do not
support Defendant’s release. Release would not reflect the seriousness of Defendant’s
offense, nor the depth to which his victims were hurt by his conduct. Release would not
provide just punishment for his offense, nor promote respect for the law. Defendant has
demonstrated a confidence that he can, as told one victim, “beat the system.” 	Release
would demonstrate that he has done so by exaggerating his medical circumstances. 	The
Court is not convinced that release would deter Defendant from future criminal conduct
and, thus, would not protect the public from Defendant’s further crimes. For all of these
reasons, the Court finds, even if Defendant had demonstrated extraordinary and compelling
reasons for release, the factors listed under § 3553(a) do not support release.
IV. 	CONCLUSION
For all the reasons stated above, the Court DENIES Defendant’s Motion for
Compassionate Release. (ECF No. 157.) Further, the Clerk of Court shall TERMINATE
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AS MOOT the pending motions related to the filing of Defendant’s Reply. 	(ECF Nos.
168, 170.) The Reply is on the docket and preserved for the record.
IT IS SO ORDERED.
DATED: February 24, 2026 Hon. Cynthia Bashant, Chief Judge
United States District Court
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