USA v. Wanner

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. )
)
Kevin D. Wanner, ) Case No. 1:17-cr-170
)
Defendant. )
------------------------------------------------------------------------------------------------------------------------
Before the Court is the Defendant’s pro se motion to reduce sentence under 18 U.S.C. §
3582(c)(1)(A), filed on June 25, 2024. See Doc. No. 214. The Government filed a response in
opposition to the motion on July 30, 2024. See Doc. No. 219. The Defendant filed a reply brief
August 14, 2024. See Doc. No. 221. For the reasons set forth below, the motion is denied.
I. BACKGROUND
On July 23, 2018, Wanner pled guilty to one count of mail fraud and one count of money
laundering. See Doc. No. 32. The Court sentenced Wanner to 135 months imprisonment, with credit
for time served, on count one; and 120 months imprisonment, with credit for time served, on count
two. See Doc. No. 34.
On April 7, 2020, Wanner filed his first pro se motion seeking compassionate release under
18 U.S.C. § 3582(c)(1)(A), which this Court denied, without prejudice, because Wanner had not
exhausted his administrative remedies. See Doc. Nos. 56 and 60.
On June 24, 2020, Wanner filed a second pro se motion seeking compassionate release to
serve the remainder of his sentence on home confinement under 18 U.S.C. § 3582(c)(1)(A) citing the
COVID-19 pandemic as an “extraordinary and compelling” reason for a sentence reduction. See Doc.
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No. 62. The Government filed a response in opposition to the motion contending Wanner had not
provided an appropriate basis for compassionate release. See Doc. No. 73. The Court denied the
motion on August 25, 2020. See Doc. No. 75. On October 2, 2020, Wanner filed a pro se motion for
reconsideration of the Court’s Order denying a sentence reduction. See Doc. No. 76. The Court
denied Wanner's motion to reconsider on October 27, 2020. See Doc. No. 81.
On December 31, 2020, Wanner filed his third pro se motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A) citing his health and the COVID-19 pandemic as “extraordinary and
compelling” reasons for a sentence reduction. See Doc. No. 82. The Government filed a response
in opposition to the motion contending Wanner had again failed to provide an appropriate basis for
compassionate release. See Doc. No. 92. Wanner filed a reply on March 8, 2021. See Doc. No. 96.
The Court denied Wanner’s third motion on March 12, 2021. See Doc. No. 101. Wanner appealed
the Court's Order on March 26, 2021, and the Eighth Circuit Court of Appeals affirmed the Order on
April 20, 2021. See Doc. No. 107.
On November 23, 2021, Wanner filed his fourth pro se motion seeking compassionate release
and asked to serve the remainder of his sentence on home confinement under 18 U.S.C. §
3582(c)(1)(A) citing his gambling addiction and the lack of treatment or services to address his
addiction as “extraordinary and compelling” reasons for a sentence reduction. See Doc. No. 120. The
Government filed a response in opposition to the motion contending Wanner has again failed to
provide an appropriate basis for compassionate release. See Doc. No. 126. On January 24, 2022, the
Court denied Wanner’s fourth motion. See Doc. No. 133.
In August and September of 2022 Wanner filed his fifth and sixth pro se motions seeking
compassionate release under 18 U.S.C. § 3582(c)(1)(A) citing his own health problems as
“extraordinary and compelling” reasons for a sentence reduction. See Doc. Nos. 158 and 174. On
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February 6, 2023, the Court denied Wanner’s fifth and sixth motions for a sentence reduction. See
Doc. No. 203.
Now before the Court is Wanner’s seventh pro se motion seeking a sentence reduction under
18 U.S.C. § 3582(c)(1)(A) filed on June 25, 2024. See Doc. No. 214. Wanner cites his need to act
as a caregiver for his parents as “extraordinary and compelling reasons” justifying the requested
sentence reduction. The Government filed a response in opposition to the motion contending Wanner
had failed to provide an appropriate basis for a sentence reduction. See Doc. No. 219. Wanner filed
a reply brief on August 14, 2024. See Doc. No. 221. Wanner is currently serving his sentence at a
residential reentry (halfway house) facility in Minneapolis, Minnesota. His presumptive release date
is March 26, 2027.
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.” In this case, it is undisputed Wanner 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
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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).
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 First Step Act was signed 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
applicable Sentencing Commission policy statement can be found at Section 1B1.13 of the 2023
Sentencing Guidelines Manual. Section 1B1.13 provides as follows:
(a) In General.--Upon motion of the Director of the Bureau of Prisons or the
defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of
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imprisonment (and may impose a term of supervised release with or without
conditions that does not exceed the unserved portion of the original term of
imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the
extent that they are applicable, the court determines that–
(1) (A) Extraordinary and compelling reasons warrant the reduction; or
(B) The defendant (i) is at least 70 years old; and (ii) has served at least
30 years in prison pursuant to a sentence imposed under 18 U.S.C. §
3559(c) for the offense or offenses for which the defendant is
imprisoned;
(2) The defendant is not a danger to the safety of any other person or to the
community, as provided in 18 U.S.C. § 3142(g); and
(3) The reduction is consistent with this policy statement.
(b) Extraordinary and Compelling Reasons.--Extraordinary and compelling reasons
exist under any of the following circumstances or a combination thereof:
(1) Medical Circumstances of the Defendant.--
(A) 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.
(B) 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.
(C) The defendant is suffering from a medical condition that requires
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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.
(D) The defendant presents the following circumstances–
(i) the defendant is housed at a correctional facility affected or
at imminent risk of being affected by (I) an ongoing outbreak
of infectious disease, or (II) an ongoing public health
emergency declared by the appropriate federal, state, or local
authority;
(ii) due to personal health risk factors and custodial status, the
defendant is at increased risk of suffering severe medical
complications or death as a result of exposure to the ongoing
outbreak of infectious disease or the ongoing public health
emergency described in clause (i); and
(iii) such risk cannot be adequately mitigated in a timely
manner.
(2) Age of the Defendant.--The defendant (A) is at least 65 years old; (B) is
experiencing a serious deterioration in physical or mental health because of the
aging process; and (C) has served at least 10 years or 75 percent of his or her
term of imprisonment, whichever is less.
(3) Family Circumstances of the Defendant.--
(A) The death or incapacitation of the caregiver of the defendant's
minor child or the defendant's child who is 18 years of age or older and
incapable of self-care because of a mental or physical disability or a
medical condition.
(B) 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.
(C) The incapacitation of the defendant's parent when the defendant
would be the only available caregiver for the parent.
(D) The defendant establishes that circumstances similar to those listed
in paragraphs (3)(A) through (3)(C) exist involving any other
immediate family member or an individual whose relationship with the
defendant is similar in kind to that of an immediate family member,
when the defendant would be the only available caregiver for such
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family member or individual. For purposes of this provision,
‘immediate family member’ refers to any of the individuals listed in
paragraphs (3)(A) through (3)(C) as well as a grandchild, grandparent,
or sibling of the defendant.
(4) Victim of Abuse.--The defendant, while in custody serving the term of
imprisonment sought to be reduced, was a victim of:
(A) sexual abuse involving a “sexual act,” as defined in 18 U.S.C.
2246(2) (including the conduct described in 18 U.S.C. 2246(2)(D)
regardless of the age of the victim); or
(B) physical abuse resulting in “serious bodily injury,” as defined in
the Commentary to § 1B1.1 (Application Instructions);
that was committed by, or at the direction of, a correctional officer, an
employee or contractor of the Bureau of Prisons, or any other individual who
had custody or control over the defendant.
For purposes of this provision, the misconduct must be established by a
conviction in a criminal case, a finding or admission of liability in a civil case,
or a finding in an administrative proceeding, unless such proceedings are
unduly delayed or the defendant is in imminent danger.
(5) Other Reasons.--The defendant presents any other circumstance or
combination of circumstances that, when considered by themselves or together
with any of the reasons described in paragraphs (1) through (4), are similar in
gravity to those described in paragraphs (1) through (4).
(6) Unusually Long Sentence.--If a defendant received an unusually long
sentence and has served at least 10 years of the term of imprisonment, a
change in the law (other than an amendment to the Guidelines Manual that has
not been made retroactive) may be considered in determining whether the
defendant presents an extraordinary and compelling reason, but only where
such change would produce a gross disparity between the sentence being
served and the sentence likely to be imposed at the time the motion is filed,
and after full consideration of the defendant's individualized circumstances.
(c) Limitation on Changes in Law.--Except as provided in subsection (b)(6), a
change in the law (including an amendment to the Guidelines Manual that has not
been made retroactive) shall not be considered for purposes of determining whether
an extraordinary and compelling reason exists under this policy statement. However,
if a defendant otherwise establishes that extraordinary and compelling reasons warrant
a sentence reduction under this policy statement, a change in the law (including an
amendment to the Guidelines Manual that has not been made retroactive) may be
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considered for purposes of determining the extent of any such reduction.
(d) 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. However, rehabilitation of the defendant while serving the
sentence may be considered in combination with other circumstances in determining
whether and to what extent a reduction in the defendant's term of imprisonment is
warranted.
(e) 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.
U.S.S.G. § 1B1.13
Even when extraordinary and compelling reasons exist, a court should only grant a motion for
release if it determines that the defendant is not a danger to the public. See U.S.S.G. § 1B1.13(2).
A court should also consider whether the 18 U.S.C. § 3553(a) factors weigh in favor of release. See
18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13. Whether to grant relief under Section 3582(c)(1)(A)
is vested in the sound discretion of the district court. United States v. Vangh, 990 F.3d 1138, 1140
(8th Cir. 2021).
Wanner seeks compassionate release or home confinement to care for his elderly parents, who
are in poor health and require assistance. Upon information and belief, Wanner’s father passed away
while this motion was pending. The Court does not doubt Wanner’s mother is need of a high level
of care and needs assistance from family and likely placement in a nursing home. However, the Court
agrees with the Government that Wanner has not established that he is the “only available caregiver”
for his mother under U.S.S.G. § 1B1.13(b)(3)(C) and has thus not demonstrated an “extraordinary and
compelling reason” that would warrant a sentence reduction.
There are three individuals who could possibly assist Wanner’s mother besides the Defendant:
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Wanner’s sister, Michelle Wanner; his wife, Debra Wanner; and his adult son. Michelle Wanner is
a physician assistant who lives in the Minneapolis, Minnesota area. Michelle Wanner took a leave
of absence from her job to care for her parents, but financial circumstances required her to return to
her job in Minnesota. Wanner’s mother could possibly relocate from Dickinson, North Dakota, to
Minneapolis to be near her daughter and receive assistance. While such a move would undoubtably
be difficult, it is a common challenge faced by many families dealing with elderly parents. Thus,
Michelle Wanner is available as a potential caregiver which takes the case out of the “extraordinary
and compelling.”
The other potential caregivers are Wanner’s wife, Debra, and his adult son, both of whom live
in Wanner’s home in Bismarck, North Dakota. The record reveals that Wanner’s plan is for his
mother to live with himself, Debra, and their adult son in the family home in Bismarck. Wanner fails
to adequately explain why neither is an available caregiver beyond stating they work full-time. If
Wanner’s mother is in need of 24-hours a day care then she likely needs to be placed in an assisted
living facility or a nursing home and his release will not change the situation. There is no doubt
incarceration often creates significant hardship for family members. The situation Wanner describes
in his motion is not “extraordinary.” Rather, it is a common scenario for incarcerated individuals with
elderly parents in need of assistance and care.
In addition, the Court concludes the Section 3553(a) factors weigh against any sentence
reduction. The offense conduct in this case was egregious. Wanner utilized a sophisticated financial
Ponzi scheme to steal more than $3 million dollars from 39 victims, including his own parents. The
advisory Sentencing Guideline range was 135-168 months of imprisonment. The Defendant was
sentenced at the low end of the advisory Sentencing Guidelines which was intended to reflect the
seriousness of crimes committed, to promote respect for the law, and to provide just punishment.
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Wanner has now been released by the BOP to a residential reentry facility in the Twin Cities. While
sympathetic to the hardships his family is facing, the Court cannot ignore the financial hardships
Wanner visited on many other families. The Court concludes Wanner has failed to sustain his burden
of proof to demonstrate an “extraordinary and compelling reason” that would warrant a sentence
reduction.
III. CONCLUSION
For the reasons set forth above, the Defendant’s motion to reduce sentence (Doc. No. 214) is
DENIED.
IT IS SO ORDERED.
Dated this 3rd day of February, 2025.
/s/ Daniel L. Hovland
Daniel L. Hovland, District Judge
United States District Court
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