USA v. Gamboa et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
EASTERN DIVISION
United States of America, )
)
Plaintiff, ) ORDER DENYING MOTION TO
) REDUCE SENTENCE
vs. )
) Case No. 3:02-cr-47
Michael Gerald Gamboa, )
)
Defendant. )
Defendant Michael Gerald Gamboa moves for a sentence reduction. Doc. 615. The United
States opposes the motion. Doc. 628. Gamboa seeks a reduction in his sentence based on
“extraordinary and compelling reasons” under 18 U.S.C. § 3582(c)(1)(A), as amended by the First
Step Act of 2018 (“FSA”). He also moves to appoint counsel (Doc. 634) and to appoint an expert
(Doc. 637). For the reasons below, the motions are denied.
I. BACKGROUND
On January 9, 2003, a jury found Gamboa guilty of: (1) conspiracy to possess with intent
to distribute methamphetamine, (2) possession with intent to distribute methamphetamine, (3)
simple possession of cocaine, (4) using and carrying firearms during and in relation to a drug
trafficking crime, (5) possession of firearms in furtherance of a drug trafficking crime, and (6)
possession of firearms and ammunition by a convicted felon. Doc. 417. Gamboa was sentenced to
life imprisonment on counts 1, 2, and 5; 90 days’ imprisonment on count 3; 30 years’ imprisonment
on count 4; and 10 years’ imprisonment on count 6. Id. The Court ordered counts 1, 2, 3, and 6 to
run concurrently; count 4 to run consecutively to those sentences; and count 5 to run consecutively
to the sentence imposed in count 4. Id. Gamboa appealed. The Eighth Circuit Court of Appeals,
affirmed in part and reversed in part, with the reversal vacating a conviction on a seventh count,
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 1 of 7

2
which the amended judgment reflects. United States v. Gamboa, 439 F.3d 796 (8th Cir. 2006). The
court affirmed the other six convictions. See id.
II. DISCUSSION
Because criminal sentences are final judgments, a court ordinarily “may not modify a term
of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). As one narrow exception to that
rule, a court “may reduce the term of imprisonment” when “extraordinary and compelling reasons”
exist and the “reduction is consistent with applicable policy statements issued by the Sentencing
Commission.”1 18 U.S.C. § 3582(c)(1)(A)(i). The 18 U.S.C. § 3553(a) factors must also support
the reduction. Id. The burden to establish that a sentence reduction is warranted under 18 U.S.C. §
3582(c) rests with the defendant. See United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016).
A. Administrative Exhaustion
With the enactment of the FSA, federal courts may grant compassionate release “upon
motion of the defendant after the defendant has fully exhausted all administrative rights to appeal
a failure of the Bureau of Prisons (“BOP”) 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.” 18 U.S.C. § 3582(c)(1)(A). Here, Gamboa has exhausted his administrative rights (Doc.
615-1).
B. Extraordinary and Compelling Reasons
The FSA does not define “extraordinary and compelling reasons.” Since Gamboa
originally filed his motion, several amendments were made to the United States Sentencing
Guidelines Manual, including an amendment to the applicable policy statement articulating what
1 In lieu of extraordinary and compelling reasons, the statute also permits a sentence reduction
where a defendant is at least 65 years old and certain additional conditions are met. Gamboa is 48
years old, so this avenue for relief is foreclosed.
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 2 of 7

3
constitutes “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 in relevant part:
(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
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–
***
(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 long-term or specialized medical care that is not
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 3 of 7

4
being provided and without which the defendant is at risk of
serious deterioration in health or death.
***
(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.
U.S.S.G. § 1B1.13. Section 1B1.13(b)(5)-(6) also include a modified “other reasons” category and
a new “unusually long sentences” category. Id.
Gamboa primarily argues that his “extraordinary and compelling reasons” for a sentence
reduction is the myriad of medical issues “which have compounded and been exacerbated over the
years.” Doc. 638 at 3. Compassionate release is appropriate when a petitioner is “suffering from a
serious physical or mental condition . . . 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.” U.S.S.G. § 1B1.13(b)(1)(B). The Court has reviewed well-over 1,300
pages of relevant medical records provided by the United States and Gamboa. See Doc. 615-3;
Doc. 617; Doc. 646. It is apparent that Gamboa suffers from serious medical issues. Gamboa was
hospitalized as a result of a COVID-19 and pneumonia infection in November 2020. Doc. 628 at
17-21. The medical records provided confirm he suffers from severe persistent asthma, interstitial
lung disease, hypoxia, cough and dyspnea, bilateral lung scarring, type II diabetes, hypertension,
hyperlipidemia, and morbid obesity.2 Doc. 629 at 266; Doc. 629-2 at 234; Doc. 629-3 at 180. Given
his serous medical conditions, the question then becomes whether Gamboa’s combination of
2 This is not an exhaustive list of conditions, but illustrates that Gamboa suffers from a large
number of medical issues.
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 4 of 7

5
conditions substantially diminishes his ability to provide self-care within the prison environment.
See U.S.S.G. § 1B1.13(b)(1)(B).
Courts generally rely on an inmate’s ability to perform activities of daily living to
determine whether the inmate can provide self-care. United States v. Bellamy, 2019 WL 3340699
at *4 (D. Minn. July 25, 2019); United States v. Mathison, 467 F. Supp. 3d 673, 680 (N.D. Iowa
2020). The relevant activities can include walking, eating, using the toilet, getting dressed, and
taking medication. See generally Bellamy, 2019 WL 3340699; see also United States v. Handy,
2020 WL 2041666 (D. Md. April 28, 2020).
Here, the medical records provide no evidence of physical limitations that diminish
Gamboa’s ability to provide self-care. He does not require assistance to walk, eat, use the toilet,
get dressed, take medication, or otherwise care for himself. More specifically, Gamboa’s most
recent medical status report does not list any restrictions on physical activities or note any need for
assistance with his daily routine. Doc. 629-3 at 163-64. Also, the fact that Gamboa plans to work
in the oil industry following his release (Doc. 615-8 at 5), while admirable, cuts against the
argument that he cannot perform the basic activities of daily life. See United States v. Mitchell,
No. 5:10-CR-50067-001, 2020 WL 544703, at *2 (W.D. Ark. Feb. 3, 2020) (the ability to work is
inconsistent with an inability to provide self-care within the correctional facility); see also United
States v. Warren, 456 F. Supp.3d 1083, 1087 (D. Minn. 2020) (plan to work as forklift operator
cuts against argument that inmate was unable to provide self-care). In sum, Gamboa’s medical
conditions do not substantially diminish his ability to provide self-care.
Gamboa goes on to argue that extraordinary and compelling reasons exist because his
medical issues have not been properly managed by the BOP. Doc. 638 at 12. Courts have discretion
under the “other reasons” category to determine what circumstances constitute extraordinary and
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 5 of 7

6
compelling reasons. U.S.S.G. § 1B1.13(b)(5). Some courts have held that gross mismanagement
or indifference to an inmate’s medical conditions may constitute extraordinary and compelling
reasons, though those cases predate the most recent amendments to the Sentencing Guidelines
Manual. United States v. Almontes, 2020 WL 1812713, at *7 (D. Conn. Apr. 9, 2020); United
States v. English., 2022 WL 17853361, at *5 (E.D. Mich. Dec. 22, 2022) (collecting cases).
Gamboa analogizes to United States v. Almontes, where a federal district court held the
BOP had been so indifferent to an inmate’s medical needs that it constituted extraordinary and
compelling reasons. 2020 WL 1812713. In Almontes, the inmate in question suffered from serious
spinal issues. Id. at 6. The BOP ignored a doctor’s recommendation that the inmate undergo spinal
decompression surgery. Id. at 7. As a result, his condition deteriorated, and the inmate began to
lose control of his legs. Id. This led to difficulty walking as well as a number of falls. Id. For all
practical purposes, the BOP’s failure to manage the inmate’s condition resulted in the inmate being
unable to care for himself and the Court was unconvinced the inmate could improve under further
BOP care. Id. Gamboa’s situation is not analogous. There is no evidence that BOP neglect has put
him in a position where he is no longer able to care for himself. Again, Gamboa has no physical
or work limitations.
Gamboa’s reliance on English is also misplaced. In English, the inmate was discovered to
have a tumor located on a bone behind his eye. 2022 WL 17853361, at *1. The BOP then failed to
act with any level of urgency in having a biopsy performed or confirming the results of the biopsy
despite the court’s directive to do so. Id. at 2-3. The Court cited the BOP’s repeated delays, the
serious health concerns of the inmate, and lack of treatment plan to support compassionate release.
Id. at *6. Here, Gamboa’s medical conditions have not been ignored, and there are no life-
threatening issues. While it is clear that Gamboa would like his medical conditions to be treated
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 6 of 7

7
differently, that is insufficient to grant compassionate release. United States v. Frazier, 2020 WL
4003377, at *3 (S.D. Ill. July 15, 2020) (inmates are not entitled to all preferred treatment or that
treatment take place in a certain amount of time in non-life threatening situations). Simply put,
Gamboa’s medical conditions, alone or in conjunction with the treatment he has received in prison,
do not constitute extraordinary and compelling reasons for compassionate release.
Beyond his medical concerns, Gamboa also makes a sentencing disparity argument for
compassionate release. He suggests that, if sentenced today, it is unlikely he would receive a life
sentence. Doc. 615 at 23-24. As noted above, Section 1B1.13(b)(6) now permits consideration of
changes in the law in limited circumstances and only within the framework of “unusually long
sentences.” That said, Gamboa’s motion and all of the substantive briefing were filed before
Section 1B1.13(b)(6) became effective. So, given the lack of substantive briefing on this issue, the
Court declines to address the unusually long sentences category as a basis for relief in this order.
III. CONCLUSION
The Court has extensively reviewed the entire record, the parties’ filings, and the relevant
legal authority. Gamboa’s motion to reduce sentence (Doc. 615) is DENIED. The motion to
appoint counsel (Doc. 634) and to appoint an expert (Doc. 637) are also DENIED.
IT IS SO ORDERED.
Dated this 15th day of February, 2024.
/s/ Peter D. Welte
Peter D. Welte, Chief Judge
United States District Court
Case 3:02-cr-00047-PDW Document 647 Filed 02/15/24 Page 7 of 7