USA v. Kostelecky

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
United States of America,
Plaintiff,
vs.
Joseph A. Kostelecky,
Defendant.
Case No. 1:17-cr-00015
ORDER DENYING MOTION TO REDUCE SENTENCE
[¶1] 	THIS MATTER comes before the Court on a Motion to Reduce Sentence filed by the
Defendant on July 14, 2023. Doc. No. 217. The United States filed a Response on August 8, 2023.
Doc. No. 219. For the reasons set forth below, the Motion is DENIED.
[¶2] 	According to the Defendant, he has been granted compassionate release by the Bureau of
Prisons (“BOP”) due to his terminal illness. He has been given less than six months to live. Due
to the regulations on his home confinement, he is unable to travel to see his children and
grandchildren. The United States argues (1) the Defendant failed to exhaust his administrative
remedies because he has not shown he made an administrative request to modify his conditions of
release to permit visiting his children and grandchildren; and (2) the BOP has already granted him
release from custody and no further reduction is required. The Court agrees with the United States.
[¶3] 	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
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counsel in Section 3582(c) proceedings. United States v. Brown, 565 F.3d 1093, 1094 (8th Cir.
2009). Nor is there a 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). It should also be noted that the CARES Act does not provide the Court with any
expanded authority to grant a motion to reduce sentence under 18 U.S.C. § 3582(c). See CARES
Act, Pub. L. No. 116-136, 134 Stat 281 (2020).
[¶4] 	Prior to the passage of the First Step Act in 2018, district courts could only grant
compassionate release sentence reductions if the Director of the BOP filed a motion, the filing of
which rarely occurred. This changed when the First Step Act became 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. § 3582(c)(1)(A)(i) (emphasis added).
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[¶5] 	The First Step Act does not define “extraordinary and compelling reasons.” The Sentencing
Commission policy statement can be found at Section 1B1.13 of the 2018 Sentencing Guidelines
Manual. However, the policy statement pertains to the old law rather than the new law and thus
is of questionable applicability. 	See United States v. Beck, No. 1:13-CR-186-6, 2019 WL
2716505, at *6 (M.D.N.C. June 28, 2019) (concluding the old policy statement provides helpful
guidance 	but 	does 	not 	control 	the 	district 	court’s 	independent 	assessment 	of 	whether
“extraordinary and compelling reasons” warrant a sentence reduction.). This Court agrees that the
Sentencing Commission’s existing policy statement1 provides only limited guidance. See United
States v. Fox, No. 2:14-CR-03, 2019 WL 3046086, at *3 (D. Me. July 11, 2019). The Application
Note to U.S.S.G. § 1B1.13 provides as follows:
1. 	Extraordinary and Compelling Reasons.—Provided the defendant meets
the requirements of subdivision (2), extraordinary and compelling reasons
exist under any of the circumstances set forth below:
(A) 	Medical Condition of the Defendant.—
(i) 	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.
1 Although the Sentencing Commission has not published a 2023 edition of the Sentencing
Guidelines Manual, there are proposed amendments to the Guidelines. See United States
Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Feb. 2, 2023)
found 	at 	https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-
amendments/20230201_RF-proposed.pdf. The proposed amendments would revise the list of
“extraordinary and compelling reasons” in several ways. Relevant to the defendant’s Motion, it
would move them from the Commentary to the guideline. Id. at p. 2. Second, it would add a
“Medical Condition of the Defendant” that would allow for consideration of “a medical condition
that requires long-term or specialized care, without which the defendant is at risk of serious
deterioration in health or death.” Id. This amendment would not be applicable under the
circumstances because, as discussed below, the medical condition does not require long-term or
specialized care needed lest she suffer a serious health deterioration.
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(ii) 	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.
(B) 	Age of the Defendant.—The defendant (i) is at least 65 years old;
(ii) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (iii) has served at least 10
years or 75 percent of his or her term of imprisonment, whichever is
less.
(C) 	Family Circumstances—
(i) 	The death or incapacitation of the caregiver of the
defendant's minor child or minor children.
(ii) 	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.
(D) 	Other Reasons—As determined by the Director of the Bureau of
Prisons, there exists in the defendant's case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
2. 	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.
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3. 	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.
4. 	Motion by the Director of the Bureau of Prisons—A reduction under this
policy statement may be granted only upon motion by the Director of the
Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A). The Commission
encourages the Director of the Bureau of Prisons to file such a motion if the
defendant meets any of the circumstances set forth in Application Note 1.
The court is in a unique position to determine whether the circumstances
warrant a reduction (and, if so, the amount of reduction), after considering
the factors set forth in 18 U.S.C. § 3553(a) and the criteria set forth in this
policy statement, such as the defendant's medical condition, the defendant's
family circumstances, and whether the defendant is a danger to the safety
of any other person or to the community.
This policy statement shall not be construed to confer upon the defendant
any right not otherwise recognized in law.
5. 	Application of Subdivision (3)—Any reduction made pursuant to a motion
by the Director of the Bureau of Prisons for the reasons set forth in
subdivisions (1) and (2) is consistent with this policy statement.
U.S.S.G. § 1B1.13.
[¶6] 	The Court has considered the record in this matter and concludes a further sentencing
reduction is not warranted because the Defendant has not shown extraordinary and compelling
circumstances justify a further reduction in sentence beyond the home confinement granted by the
Bureau of Prisons. As an initial matter, it appears the Defendant has made no efforts to request the
BOP modify his conditions of release to travel to see his children and grandchildren. His request,
therefore, is premature. See 18 U.S.C. § 3582(c). In addition, he is already on home confinement
monitored by the Bureau of Prisons. He can get the healthcare he needs, and he has not alleged he
is completely unable to visit his grandchildren. Any further reduction in sentence is not warranted
under 18 U.S.C. § 3553(a). Accordingly, the Defendant’s Motion to Reduce Sentence is DENIED.
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[¶7] 	IT IS SO ORDERED.
DATED August 29, 2023.
Daniel M. Traynor, District Judge
United States District Court
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