USA v. Moller

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
__________________________________________
)
UNITED STATES OF AMERICA 	)
)
v. 	) 	No. 1:20-cr-00088-MSM
)
MICHAEL MOLLER, 	)
Defendant. 	)
__________________________________________)
ORDER
Mary S. McElroy, United States District Judge.
I. 	INTRODUCTION
On October 14, 2021, Michael Moller was sentenced for one count of bank fraud
to a period of 70 months of incarceration, followed by three years of supervised
release, $599,251 in restitution, and a $100 special assessment, as a result of a plea
agreement. 	(ECF No. 14.) 	On the same day, he was sentenced on CR 20-81-MSM,
for a violation of probation (imposed in connection with armed robbery), to one year
and one day incarceration. 	The sentences were to be served consecutively, for an
aggregated total of 82 months, one day. 	The Court agreed to Mr. Moller’s express
request, agreed to by the government, to impose the violation sentence first, to be
followed by the fraud sentence. Mr. Moller, who has a significant previous record of
federal crimes and has served in federal prisons before, believed that he would have
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a greater chance of being eligible for sentence reduction programs were the 70-month
sentence to follow the one-year sentence instead of the other way around.
Within two months Mr. Moller began filing motions for relief from the sentence
and its execution, beginning with a Motion to be transferred to a different prison
(ECF No. 44). 	That was followed a month later by his declaration that he intended
to file a motion for compassionate release (ECF No. 45) and, ultimately, he filed seven
motions for compassionate and/or immediate release (ECF Nos. 58, 81, 83, 92, 101,
103, 120), along with motions to alter the judgment (ECF No. 68) and to vacate the
sentence (ECF No. 130).1 	The government opposes compassionate release. (ECF No.
61). 	A hearing was held on June 22, 2023, and Mr. Moller has since filed a motion
for a second hearing and a Motion for Stay (ECF No. 148), as well as a motion to
appoint counsel (ECF Nos. 150, 151).
This Order DENIES all pending Motions, as explained below, and includes a
direction to Mr. Moller that, with approximately 111 documents filed in the 18
months
after the date of sentencing, he is restricted from filing any additional
documents challenging, modifying, or affecting his conviction or sentence without
express permission of the Court.
A. 	COMPASSIONATE RELEASE
The federal law governing imposition of sentence, 18 U.S.C. § 3582(c)(1)(A), as
amended by the First Step Act (FSA), Pub. L. No. 115-391, § 603(b), 132 Stat. 5194,
1 Many motions have been previously denied without prejudice (ECF No. 81, 83, 92,
101, 103, text order of May 9, 2023).
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5239 (2018) permits courts to reduce a term of imprisonment, once administrative
remedies are exhausted, if it finds that “extraordinary and compelling reasons
warrant such a reduction.”
United States v. Graham, No. C.A. 13-cr-132-MSM, 2022
WL 15434513, at *1 (D.R.I. Oct. 27, 2022), quoting 18 U.S.C. § 3582(c)(1)(A). 	Mr.
Moller has exhausted his administrative remedies; his request has been denied by
the Bureau of Prisons (“BOP”). (ECF No. 58-2). The Court must therefore review his
motion to determine whether extraordinary and compelling reasons exist to warrant
a sentence reduction and, if so, if such a reduction would be consistent with applicable
policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A).
“Put another way, the district court must find that the defendant's situation
constitutes the type of ‘extreme hardship’ that the compassionate release statute is
designed 	to 	ameliorate.”
United 	States 	v. 	Saccoccia, 	10 	F.4th 	1, 	4 	(1st 	Cir.
2021) (quoting
United States v. Havener, 905 F.2d 3, 6 (1st Cir. 1990)). Finally, “the
district court must consider any applicable section 3553(a) factors and ‘determine
whether, in its discretion, the reduction ... is warranted in whole or in part under the
particular circumstances of the case.’”
United Territories v. Texeira-Nieves, 23 F.4th
48, 52 (1st Cir. 2022) (quoting
Saccoccia, 10 F.4th at 4 (alteration in original)).
18 U.S.C. § 3582(c)(1)(A)(i), vests this Court with the authority to modify a
sentence of imprisonment if “extraordinary and compelling reasons warrant such a
reduction.” “[O]nce a defendant shows that he has exhausted the Bureau of Prisons’
administrative process for compassionate release, or thirty days have lapsed without
a decision, whichever occurs first, a district court may reduce a defendant’s term of
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imprisonment provided the court determines: (1) extraordinary and compelling
reason warrant the reduction; (2) the defendant will not be a danger to the safety of
any other person or the community; and (3) the sentencing factors outlined in 18
U.S.C. § 3553(a) favor release.”
United States v. Saad, No. 16-cr-00035-JJM, 2022
WL 35806, *1 (D.R.I. Jan. 4, 2022) (internal citations omitted). The statute itself does
not define “extraordinary and compelling reasons” that justify a sentence reduction
or 	modification; 	therefore, 	any 	information 	the 	court 	finds 	relevant 	may 	be
considered, with the explicit exception of that related only to rehabilitation.
	United
States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022). 	“[U]ntil the Sentencing
Commission speaks, the only limitation on what can be considered an extraordinary
and compelling reason to grant a prisoner-initiated motion is rehabilitation.”
United
States v. Trenkler, 47 F.4th 42, 48 (1st. Cir. 2022).
[A] 	district 	court, 	reviewing 	a 	prisoner-initiated 	motion 	for
compassionate 	release 	in 	the 	absence 	of 	an 	applicable 	policy
statement, may consider any complex of circumstances raised by a
defendant 	as 	forming 	an 	extraordinary 	and 	compelling 	reason
warranting relief. It follows that a district court adjudicating such a
motion may consider the FSA's non-retroactive amendments to the
scope 	of 	the 	mandatory 	minimum 	penalties 	under 	section
841(b)(1)(A) on a case-by-case basis grounded in a defendant's
individualized 	circumstances 	to 	find 	an 	extraordinary 	and
compelling reason warranting compassionate release.
Id. at 47
Mr. Moller’s Motion for Compassionate Release (ECF No. 58), which has been
updated and renewed several times, is predicated largely on his medical condition as
a diabetic. In the Affidavit accompanying his original motion, he contended that the
institution in which he is confined was providing him substandard treatment, not
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administering 	his 	insulin 	as 	prescribed, 	and 	not 	providing 	him 	with 	a 	diet
appropriate for a diabetic. He has submitted medical records in support of his claims
and the government has submitted updated records. (ECF No. 58-3, 80-2, 146.) More
recent paperwork, while repeating the assertions of inadequate medical treatment,
alleged that, among other ill effects, his vision is deteriorating. 	(ECF No. 103, at 4,
130-2). Other motions cite additional burdens caused by his incarceration.
To determine whether the circumstances in any case are extraordinary and
compelling and warrant compassionate release, the Court relies on the plain meaning
of the words.
United States v. Canales-Ramos, 19 F.4th 561, 566 (1st. Cir. 2021).
The plain meaning of "extraordinary" suggests that a qualifying
reason must be a reason that is beyond the mine-run either in fact or
in degree. 	See Webster's Third New International Dictionary of the
English Language Unabridged 807 (1981) (defining "extraordinary" as
"going beyond what is usual, regular, common, or customary"); see
also United States v. Hunter, 12 F.4th 555, 562 (6th Cir. 2021)
(suggesting that such reason must be "most unusual," "far from
common," or "hav[e] little or no precedent"). 	By the same token, the
plain meaning of "compelling" suggests that a qualifying reason must
be a reason that is both powerful and convincing. 	See Webster's
Third, supra at 462 (defining "compelling" as "forcing, impelling, [or]
driving [circumstance]" and as "tending to convince or convert by or as
if by forcefulness of evidence"); see also Hunter, 12 F.4th at 562.
Canales-Ramos, 19 F.4th at 566-67. Mr. Moller has presented no circumstances that
could fairly be deemed to be extraordinary and compelling. His health condition can
be managed within the BOP and is not so extraordinary that continued care within
the institution would be difficult or impossible. 	In fact, in a proposal he has put
forth to be confined at the Wyatt Detention Center, he praised the care there,
reporting that his sugar was under control and his diet was good when confined at
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Wyatt. (ECF No. 152.) If in fact he is receiving substandard medical care elsewhere,
and if he can prove that, he has recourse to other remedies and early release is not
the answer. 	The Motion for Compassionate Release (ECF No. 58) is DENIED; the
Motions to Supplement his filings regarding release (ECF No. 80), for expedited
decision (ECF No. 111), and for Emergency Release (ECF No. 120) are also DENIED.
The motion for a hearing (ECF No. 127) GRANTED
pro forma, as the hearing was
held on June 22, 2023. The Motion for updated medical records is DENIED as moot,
as Mr. Moller submitted those records. (ECF No. 140, 146.)
B. 	MOTION TO VACATE AND RE-SENTENCE
Mr. Moller has put forth an argument that because the expectations of the
Court, defense, and the government when his sentence was imposed have not come
to pass, he is entitled to re-sentencing to carry out what he terms “intent” of the Court
and parties at the time. 	Failing compassionate release, his fallback position is that
he should be re-sentenced to a single 82-month term.2
At the original sentencing much attention was given to the ordering of the two
sentences: one year and a day on the probation violation, and 70 months on the bank
fraud. 	Mr. Moller requested that the fraud sentence be consecutive to the violation
sentence, and not the other way around. (ECF No. 76, at 39.) He was convinced that
if that were the ordering, he would be eligible for reductions in the time he had to
serve under the First Step Act
and because he would be eligible for the Residential
2 The government does not, in the abstract, object a single 82-month term, but it does
not agree with the bases of Mr. Moller’s arguments that he is entitled to that result.
(ECF No. 128.)
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Drug Abuse Program (“RDAP”)3 which carried a possible one-year reduction. Thus,
he believed, the ordering of the sentences the way he wanted would give him the
potential of two years off the pronounced incarceration term. 	(ECF No. 76, at 39,
42.)4
The government did not object and the Court complied. 	Now Mr. Moller
complains that he has not been found eligible for these reductions and, although he
still prefers compassionate release, he requests that the Court vacate the sentences
and impose a single 82-month and one day sentence which he believes would cement
his eligibility. (ECF No. 152.)
As to eligibility for First Step reduction, the government represented at the
hearing that, based on its lengthy discussion with the BOP, it appears that Mr. Moller
has in fact received reductions under the First Step Act and may receive more. While
Mr. Moller refutes that representation, he could not produce any documentation from
the BOP supporting his belief, and the Court accepts the representation of the
3 RDAP is a federal program that operates residential-based treatment within larger
prison facilities. A reduction in time to serve is possible of up to one year. “Offenders
live 	in 	a 	unit 	separate 	from 	general 	population; 	they 	participate 	in 	half-day
programming and half-day work, school, or vocational activities. RDAP is typically
nine 	months 	in 	duration.” 	https://www.bop.gov/inmates/custody_and_care/
substance_abuse_treatment.jsp
4 He also contends that even with his own experience serving federal time and
navigating that system, and even though he himself requested the ordering of the
sentences based on his professed knowledge of federal calculations and eligibility, it
was his counsel’s fault for not knowing better and overriding his wishes. 	(ECF No.
130.) 	The Court does not agree. 	Clearly, based on the prosecutor’s discussions
directly with the Bureau of Prisons, which he described at the June 22, 2023, hearing,
this is a complicated administrative matter and cannot be predicted with certainty at
the time of sentencing.
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government. As to reductions for participation in the RDAP program, there are two
reasons why the Court is not willing to alter the sentence on that account. First, Mr.
Moller admits that he told the BOP he had no substantive drug abuse problem; an
existing substance abuse disorder, not surprisingly, is a requirement of eligibility. It
appears to have been
that representation that affected his eligibility, not the ordering
of the sentences. While Mr. Moller has an explanation for why he said that, and even
if there were some tactical advantages that prompted him to do so, that was
something 	over 	which 	he 	had 	control 	and 	he 	can 	perhaps 	correct 	the 	BOP
understanding if it is in error. Second, there is a disconnect in terms. At sentencing,
Mr. Moller’s concern was
eligibility for the program. 	It does not appear that the
ordering of sentences affects his eligibility: 	it
may affect whether he receives credit
for completion of the program because it is not automatic. Persons whose current or
past criminal history includes a serious violent offense are eligible to participate but
are ineligible for a sentence reduction.5 Mr. Moller’s history includes armed robbery,
the crime giving rise to the probation violation at issue here.
Mr. Moller appears to be eligible to participate in the program, for the obvious
benefit of drug abuse treatment whether he receives a sentence reduction or not. All
that he could have expected when the Court granted his preferred ordering of
sentences was to be considered
eligible for participation. The Court does not control,
and made no representations about, his ability to actually obtain reductions. For that
5 https://oig.justice.gov/reports/BOP/e302/app1.html#:~:text=An%20%20inmate
%20must%20meet%20%2C%20(5)%20serving%20a%20
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reason, the Court sees no disparity between what was anticipated, and may have
been intended, at the sentencing and the reality that has played out. The Motion to
Vacate (ECF No. 130) is DENIED. 	The Motions for retroactive application of
sentencing guidelines are DENIED (ECF Nos. 71, 73), as is the Motion to Stay
Decision and for leave to submit a post-hearing Memorandum (ECF No. 148). 	The
Motions for a second evidentiary hearing, and for appointment of counsel are
DENIED. (ECF No. 150, 151.) 	Finally, Mr. Moller’s Proposal for a resolution of this
conflict is noted, but not accepted. (ECF No. 152.)
C. 	FINAL NOTE
Mr. Moller has learned the hard way of the additional punishments criminal
activity imposes, beyond confinement. His most recent motion recounts that he was
in jail in 2011 when one of his brothers committed suicide and he was unable to grieve
with his family. Very recently, a second brother died, and he learned of the death by
telephone. (ECF No. 103, at 1.) While the Court understands that these secondary
effects of confinement can be emotionally devastating, the separation from his family
at a time when it needed him apparently had little effect on his behavior in 2011, as
he was confined again when his second brother died. The Court is sympathetic, but
separation from family, and the “helpless” feeling that Mr. Moller reports,
Id., is
intrinsic to incarcerative punishment for crime and not a reason warranting early
release.
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IT IS SO ORDERED:
____________________________________
Mary S. McElroy,
United States District Judge
Date: July 25, 2023
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