USA v. Larson

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA, 5:19-CR-50165-RAL
Plaintiff,
OPINION AND ORDER DENYING
vs. MOTION FOR COMPASSIONATE
RELEASE
NIKOLAS JOHN LARSON,
Defendant.
Defendant Nikolas John Larson filed a pro se motion for eompassionate release. Doc. 75.
Pursuant to the procedure established by Amended Standing Order 20-06, his ease was categorized
as Low Priority, Doe. 78, and the Federal Public Defender for the Districts of South Dakota and
North Dakota chose not to supplement Larson's motion. The Government opposes the motion.
Doc. 80. For the following reasons, this Court denies Larson's motion for compassionate release.
I. Factual Background
On June 25, 2021, Larson pled guilty to one count of receipt of child pomography^ in
violation of 18 U.S.C. § 2252A(a)(2)(A). Docs. 54, 56. On October 25, 2021, the undersigned
^ Child pornography is more appropriately called "Child Sexual Abuse Material," also referenced
as CSAM,or "Child Sexual Abuse Images." S^ What is Child Sexual Abuse Material(CSAM),
RAINN (Aug. 25, 2022), https://www.rainn.org/news/what-child-sexual-abuse-material-csam;
Investigations Div., Off. Inspector Gen., Notifications of Concerns with the Absence of Policv
Regarding FBI Emplovees Emailing Child Sexual Abuse Material and Other Contraband. U.S.
Dep't Just. 1 n.l (May 2022), https://oig.justice.gov/sites/default/files/reports/22-081.pdf; Child
Pomogranhv. U.S. Dep't Just., https://www.justice.gov/criminal-eeos/child-pomography (May
28, 2020). Pomography connotes a certain aspect of consent that is impossible when the images
or videos depict children. What is Child Sexual Abuse Material("CSAML supra. Because of the
lack of consent, it is not possible to make "pomography," instead it is evidence of a child being
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judge sentenced Larson to 60 months custody followed by five years of supervised release and to
pay $51,000 in restitution and $100 to the Victims Assistance Fund. Doc. 73. Larson petitioned
his warden for an earlier release and was denied. Doc. 76 at 5; Doc. 77-1 at 30-32.
Larson's conviction stemmed from failing a preemployment polygraph test, which
prompted him to admit that he visited the "Dark Web" to look for and intentionally view images
of child sexual abuse. Doe. 66 at ^ 5;^supra note 1. Larson signed a confession admitted to
viewing child sexual abuse materials, including images and videos. Id In October 2019,Internet
Crimes Against Children Taskforce agents executed a search warrant on Larson's devices, which
revealed over ten thousand images and over nine hundred videos depicting child sexual abuse that
Larson had collected over approximately ten years. Id The images included sexually graphic
images oftoddlers, penetration of young children, torture, and bestiality. Id
Under the sentencing guidelines, Larson's total offense level for receipt of child sexual
abuse materials was 30 and he fell into the lowest criminal history category of 1. Id at 27, 30.
The base level ofthe offense was 22, but the specific offense characteristics, including the lack of
intent to traffic, the age of victims, the sadistic or masochistic conduct, the use of a computer, and
the immense volume of the child sexual abuse material Larson had in his possession, led to a net
increase ofeight points to reach the final offense level of30. Id at|t 15-19. As a result, Larson's
advisory guideline range was 97 months to 121 months, with a mandatory minimum offive years.
Id at m 54-55. This Court varied downward to impose a sentence that was essentially half ofthe
top end of Larson's guideline range due to his voluntary disclosure of the crime and his personal
history and characteristics indicating that Larson was a voyeur and not a hands-on perpetrator.
sexually abused, making "Child Sexual Abuse Material" or "Child Sexual Abuse Images"the more
appropriate title. Id
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Larson is currently incarcerated at the Sandstone Federal Correctional Institution
(Sandstone) in Sandstone, Minnesota. Inmate Locator. Fed. Bureau Prisons,
https://www.bop.gov/inmateIoc/(last visited Jan. 3,2023)(Register Number: 18420-273). Larson
is projected to be released September 25,2025. Id Currently, Larson is 42 years old. Id.
In early 2020, a novel coronavirus, COVID-19, quickly spread across the United States
and infiltrated correctional institutions. The Centers for Disease Control and Prevention(CDC)
has identified certain imderlying health conditions that put individuals at higher risk for a severe
form of the illness if they contract the disease. Among those at higher risk are individuals with
cancer, chronic kidney disease, obesity, serious heart conditions, sickle cell disease. Type 2
diabetes, as well as several other conditions. 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 (last updated Mar. 2, 2021).
Larson filed a motion for compassionate release based on his asthma, which Larson
believes is moderate to severe and makes him more vulnerable to COVID-19, and previous
infections of COVID-19. Doc. 76 at 2, 5-6. He also claims that, due to the special needs of his
young son, his family requires his help to monitor his son and provide financially. Id. at 2-3, 5.
If released, Larson intends to live with his wife and son in Rapid City, South Dakota, where he
believes his previous employer will re-hire him. Id. at 3.
II. Discussion
In general, sentences are considered finaljudgments as a court ordinarily "may not modify
a term of imprisonment once it has been imposed." 18 U.S.C.A. § 3582(c); United States v.
Hodgin.No. 4:I5-CR-40I10-02-KES,2021 WL 928179, at *1 (D.S.D.Mar. 11,2021). However,
in 2018, Congress passed the First Step Act(FSA), Pub. L. No. 115-391, 132 Stat. 5194 (2018),
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which amended 18 U.S.C. § 3582(c)(1)(A) to permit incarcerated defendants to file motions
directly with the court seeking compassionate release once they have exhausted administrative
remedies. United States v. Rodd. 966 F.3d 740, 744 (8th Cir. 2020). "The inmate also may go
directly to the court if the warden of the inmate's facility does not respond to the inmate's
compassionate-release request within 30 days." Id. "Compassionate release provides a narrow
path for defendants with 'extraordinary and compelling reasons' to leave prison early." Hodgin.
2021 WL 928179, at *1 (citing 18 U.S.C. § 3582(c)(l)(A)(i)). "It is the defendant's burden to
establish that he warrants a [18 U.S.C.] § 3582(c) reduction." United States v. Jones. 836 F.3d
896, 899(8th Cir. 2016).
When evaluating a compassionate release petition, courts consider the sentencing factors
in 18 U.S.C. § 3553(a) and must ensure any potential reduction is consistent with the policy
statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A);^Hodgin. 2021
WL 928179, at *1. The factors in 18 U.S.C. § 3553(a), in addition to considering the advisory
guideline range in the Guidelines Manual, include:
(1) the nature and circumstances of the offense and the history and
characteristics ofthe defendant;
(2)the need for the sentence imposed—
(A)to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(B)to afford adequate deterrence to criminal conduct;
(C)to protect the public from further crimes ofthe defendant; and
(D)to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3)the kinds of sentences available[.]
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Larson's advisory guideline range was 97 to 121 months based on a total offense level of
30 and a criminal history category of 1. Doc. 66. This Court then varied downward from the
guideline range and sentenced Larson to 60 months. Doc. 73. Larson's offense was quite serious.
Larson possessed over ten thousand images and nine hundred videos of child sexual abuse
material, one depicting a child as young as two years old being sexually assaulted. Doc. 66.
Larson, however, is non-violent, has a solid work history, and had no criminal history prior to this
offense. This Court was aware of, and considered, the nature of Larson's family situation and his
son's needs, which were described in his presentence investigation report. That situation has not
changed and does not warrant Larson's release. The sentence imposed reflected the seriousness
ofthe offense, promoted respect for the law, provided just punishment, deterred the conduct, and
protected the public.
The Sentencing Commission's policy statement, which was adopted before the FSA was
passed, demands "extraordinary and compelling reasons" to warrant a sentence reduction as well
as requiring that the defendant not pose a danger to the safety ofothers. Hodgin,2021 WL 928179,
at *2(citing USSG § lB1.13(l)-(2)(Nov. 2018)). Yet Congress has not defined what constitutes
"extraordinary and compelling reasons." 28 U.S.C. § 994(t). "The Sentencing Commission
was directed to describe what should be considered extraordinary and compelling reasons and
fashion 'the criteria to be applied and a list of specific examples.'" Hodgin, 2021 WL 928179, at
*2(quoting 28 U.S.C. § 994(t)). The Sentencing Commission characterized "extraordinary and
compelling reasons" as pertaining to(1)the medical condition ofthe defendant,(2)time served in
combination with advanced age and deteriorating health conditions, (3) compelling family
circumstances, and(4)a catch-all category of"extraordinary and compelling reason[s] other than,
or in combination with, the reasons described" previously as determined by the Director of the
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Bureau ofPrisons. USSG§ 1B1.13,cmt. n.l(A)-(D). Extraordinary and compelling reasons based
on family circumstances can mean "[t]he death or incapacitation ofthe caregiver ofthe defendant's
minor child or minor children." USSG § 1B1.13, cmt. n.l(C)(i).
Larson has exhausted his administrative remedies as he filed his petition, which was
ultimately denied, with the BOP over 30 days ago. Doc. 76 at 5. However,Larson has served less
than half of his 60-month sentence. Further, neither his asthma and the corresponding COVID-19
risk nor his family circumstances quality as "extraordinary and compelling reasons" to justify his
release. Though Larson does have asthma, nothing in the medical records he provides shows the
severity ofhis condition. Doc.79 at 6,15,41. There is nothing in his medical records that indicates
when Larson had his last asthma attack. See generallv Doc. 79. Instead, Larson states that he
believes he has moderate asthma, citing his need for a medical waiver before he could proceed
with a past job application to the U.S. Customs and Border Patrol as support for his diagnosis.
Doc. 81 at 2. Without any verifiable way to discern the severity of Larson's asthma, his medical
condition does not provide an extraordinary and compelling reason to alter his sentence.
Larson argues that his son's medical conditions are an extraordinary and compelling reason
to justify a reduction. Specifically, Larson argues his release is required so that he can provide
financially for the family and so his wife can remain home to maintain "constant vigilance" over
their son, as recommended by doctors. Larson relies on United States v. Pelichet. CR 19-40033,
2020 WL 7053309 (D.S.D. Nov. 24, 2020),^ and its discussion of the financial circumstances of
the family to justify his assertion. Doc. 76 at 5; Doc. 81 at 1. However, Larson overinflates the
^ In his brief Larson actually cites United States v. Pelichet CR 19-40033, 2020 WL 6825699
(D.S.D. Nov. 20, 2020), however, this opinion was amended and superseded by the opinion cited
above. As that opinion is the binding opinion and order and has the discussion to which Larson
cites, that will be the opinion discussed.
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discussion of the Pelichet family's financial state in his briefs. The Pelichet opinion does not
deelare the struggling family business an extraordinary and compelling circumstance but mentions
it briefly after finding that the defendant's medical conditions alone eonstituted extraordinary and
compelling eircumstances to justify a release from prison. Pelichet. 2020 WL 7053309, at *8-9.
Any discussion ofthe family finances related to the defendant's payment ofrestitution and release
plan, not the determination of extraordinary and compelling circumstanees. Id While Larson's
son does have serious conditions and Larson's family is no doubt affected by his incarceration,
this Court was aware of those circumstances when Larson was sentenced. Doc. 66 at 34-35.
Further, Larson's wife is presently the caregiver of their child. She has not died or become
ineapacitated. While Larson argues that his wife entering the work force puts their child at risk
because he cannot be constantly monitored, that alone does not meet the criteria ofthe sentencing
guidelines for extraordinary and compelling reasons in this case. See USSG § 1B1.13, cmt.
n.l(C)(i).
There has been no significant change in Larson's family eircumstances since the time of
his sentencing. Thus there are no extraordinary and compelling reason to alter his sentence,
especially given that this Court already varied downward from the guideline range to impose the
lowest possible legal sentence, a mandatory minimum five-year sentence. If some change in
Larson's circumstances oceurs, he can submit another motion for compassionate release at that
time.
III. Conclusion
For the reasons discussed above, it is hereby
ORDERED that Larson's Motion for Compassionate Release, Doe. 75, is denied.
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DATED this day of January, 2023.
BY THE COURT:
ROBERTO A. LANGI
CHIEF JUDGE
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