USA v. Chisholm

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
DAVID CHISHOLM,
Defendant.
Case No. 3:21-cr-00056-SLG-1
ORDER REGARDING MOTION FOR COMPASSIONATE RELEASE
Before the Court at Docket 51 is Defendant David Chisholm’s Motion for
Compassionate Release. 	The Government filed a response in opposition at
Docket 55, and Mr. Chisholm replied at Docket 59. As requested by the Court, the
U.S. Probation Office for the District of Alaska filed a sealed memorandum at
Docket 57 regarding Mr. Chisholm’s motion.
On January 18, 2022, this Court sentenced Mr. Chisholm to 34 months
imprisonment and 3 years supervised release after he was found guilty of one
count of Unlawful Dispensing and Distribution of a Controlled Substance.1 	Mr.
Chisholm was released to home confinement in New York on February 23, 2023,
but remains in Bureau of Prisons (“BOP”) custody; his projected release date is
February 4, 2024.2
1 Docket 40 (Judgment).
2 Docket 57 at 1 (sealed); Fed. Bureau of Prisons, Inmate Locator (available at
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In May 2023, Mr. Chisholm filed the instant motion for compassionate
release, seeking to reduce his sentence to time served.3 	For the reasons
addressed below, the Court denies Mr. Chisholm’s motion.
I. 	Applicable law
The First Step Act of 2018, enacted on December 21, 2018, amended 18
U.S.C. § 3582(c)(1)(A) to allow federal inmates to move the district court for a
sentence reduction after exhausting their administrative rights.4 	If an inmate has
exhausted his administrative rights, a district court must consider the motion on
the merits. 	On the merits, a court must find that “extraordinary and compelling
reasons warrant” a sentence reduction and that the applicable factors set forth in
18 U.S.C. § 3553(a) support a sentence reduction.5 Although a district court must
make both findings “before it grants compassionate release, a district court that
properly denies 	compassionate release need not evaluate each step.”6 	The
Sentencing Commission’s policy statement at U.S.S.G. § 1B1.13 is not binding on
www.bop.gov/inmateloc/) (last accessed June 5, 2023).
3 Docket 51-3 at 1.
4 First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Prior to this amendment,
only the Director of the Bureau of Prisons could bring a motion to reduce an inmate’s sentence.
5 18 U.S.C. § 3582(c).
6 United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (emphasis in original) (disagreeing
with the defendant that a district court must make an explicit “extraordinary and compelling”
finding before denying a motion based on the § 3553(a) factors).
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a district court considering a compassionate release motion filed by a defendant,
but that policy statement “may inform a district court’s discretion.”7
In September 2022, the Ninth Circuit held in United States v. Chen that
“district 	courts 	may 	consider 	non-retroactive 	changes 	in 	sentencing 	law, 	in
combination 	with 	other 	factors 	particular 	to 	the 	individual 	defendant, 	when
analyzing extraordinary and compelling reasons for purposes of [compassionate
release pursuant to] § 3582(c)(1)(A).”8 	Mr. Chisholm asserts that he “did not
receive the benefit of the Supreme Court’s [recent] Ruan decision,” and that the
decision constitutes a change in the law that is an “extraordinary and compelling”
reason to reduce his sentence to time served.9 	In Ruan v. United States, the
Supreme Court addressed the mens rea requirement in 21 U.S.C. § 841, the
statute of which Mr. Chisholm was convicted, which “makes it a federal crime,
‘[e]xcept as authorized[,] . . . for any person knowingly or intentionally . . . to
manufacture, 	distribute, 	or 	dispense 	. 	. 	. 	a 	controlled 	substance,’ 	such 	as
opioids.”10 	Ruan held that “the statute’s ‘knowingly or intentionally’ mens rea
applies to authorization,” such that “[a]fter a defendant produces evidence that he
or she was authorized to dispense controlled substances, the Government must
7 United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021).
8 48 F.4th 1092, 1094, 1098 (9th Cir. 2022) (“There is no textual basis for precluding district
courts from considering non-retroactive changes in sentencing law when determining what is
extraordinary and compelling.”).
9 Docket 51 at 1; see Ruan v. United States, 142 S. Ct. 2370 (2022).
10 142 S. Ct. at 2374-75 (alterations in original) (quoting 21 U.S.C. § 841(a)).
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prove beyond a reasonable doubt that the defendant knew that he or she was
acting in an unauthorized manner, or intended to do so.”11
II. 	Exhaustion of administrative rights
An inmate has exhausted his administrative rights if the warden of the
inmate’s facility has denied the inmate’s request for compassionate release or if
30 days have lapsed from the warden’s receipt of the request for compassionate
release.12 	Mr. Chisholm submitted a request for compassionate release to the
warden of FCI Otisville, where Mr. Chisholm was previously incarcerated, on
November 17, 2022.13 	The warden denied the request on December 5, 2022.14
Mr. Chisholm has exhausted his administrative rights, and the Court will consider
the motion on its merits.
III. 	Extraordinary and compelling reasons
Mr. 	Chisholm, 	who 	is 	currently 	66 	years 	old, 	submits 	that 	there 	are
extraordinary and compelling reasons for a reduction of his sentence based on the
Ruan decision, which he characterizes as a “post-sentencing change[] in the law,”
and based on his age and length of time served.15 	Mr. Chisholm cites to Chen in
support of his argument, and asserts that he “did not have the benefit of the Ruan
11 Ruan, 142 S. Ct. at 2375.
12 18 U.S.C. § 3582(c)(1)(A).
13 Docket 51-1 at 1-2; Docket 51 at 6-7.
14 Docket 51-1 at 3.
15 Docket 51 at 7.
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decision 	at 	the 	time 	he 	pled 	guilty 	and 	was 	sentenced,” 	although 	he 	also
acknowledges that the “holding of Ruan does not invalidate [his] guilty plea.”16 Mr.
Chisholm contends that Ruan “would have offered important new arguments for
mitigation at sentencing,” since it requires the Government to prove that a medical
practitioner “knowingly or intentionally” acted in an unauthorized manner as
opposed to a lesser standard.17 	Mr. Chisholm further asserts that based on his
age and the fact that he “has already served 80% of his sentence,” the Court
should reduce his sentence so as to “permit [him] to adapt to a law-abiding lifestyle
and allow him to make contributions to society.”18
Whatever merit Mr. Chisholm’s argument may have had in the two circuits
that evidently did not apply the “knowingly or intentionally” mens rea to the lack of
authorization,19 his argument falls short in the Ninth Circuit. While Ruan changed
the law in certain circuits, Ninth Circuit precedent was already consistent with Ruan
at the time of Mr. Chisholm’s sentencing. 	In United States v. Feingold, the Ninth
Circuit held that “a practitioner who acts outside the usual course of professional
16 Docket 51 at 10.
17 Docket 51 at 10; Ruan, 142 S. Ct. at 2375. The Court notes that in the factual basis for the
plea agreement, Mr. Chisholm acknowledged that he “acted with the intent to dispense these
controlled substances outside the course of professional practice.” Docket 13 at 4. And the
elements of the offense as set forth in the plea agreement included that he “intended to
dispense the controlled substance outside the course of professional practice.” Docket 13 at 3
(emphasis added).
18 Docket 51 at 14.
19 See United States v. Ruan, 966 F.3d 1101 (11th Cir. 2020); United States v. Khan, 989 F.3d
806 (10th Cir.).
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practice may be convicted under § 841(a) only if he does so intentionally.” In
Feingold, the Ninth Circuit held that the government must prove that the distribution
of the controlled substances “was outside the usual course of professional practice
and without a legitimate medical purpose,” and that the practitioner acted “with
intent to distribute [the controlled substances] and with the intent to distribute them
outside the course of professional practice.”20 	In Ruan, the Supreme Court held
that the government must prove “that the defendant knew that he or she was acting
in an unauthorized manner, or intended to do so.” 21 	Therefore, the Feingold
standard, which perhaps endorses a more stringent standard than Ruan because
it requires intent to distribute outside the usual course of professional practice and
not simply a knowing lack of authorization, was not inconsistent with Ruan at the
time of Mr. Chisholm’s sentencing.22 	The law in the Ninth Circuit has not
meaningfully changed.
Mr. Chisholm also asserts that the Court should find an extraordinary and
compelling reason for a sentence reduction because the Centers for Disease
Control and Prevention (“CDC”) have changed their opioid prescription guidelines
since his sentencing.23 	Mr. Chisholm contends that while “many of [his] patients
20 454 F.3d 1001, 1007-08 (9th Cir. 2006).
21 142 S. Ct. at 2375.
22 Mr. Chisholm does not cite to or acknowledge Feingold in his reply brief, despite the
Government’s discussion of the case in its response. See Docket 55 at 5-8; Docket 59.
23 Docket 51 at 12-13; Docket 59 at 2-4.
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were prescribed medications that exceeded the recommended Morphine Milligram
Equivalents (“MME”) provided under the CDC’s 2016 Guidelines for Prescription
Opioids,” which defined the “high-dosage opioid use” guideline as “90 MME for
daily use,” the “new [2022] guidelines . . . eliminates the numerical dose limits and
caps on length of treatment for chronic pain patients.”24
However, 	both 	the 	2016 	and 	2022 	CDC 	guidelines 	provide 	only
recommendations 	that 	are 	non-binding, 	and 	the 	Government 	asserts 	that 	it
“viewed [the 2016 guidelines] as one piece of objective criteria that helped
demonstrate that Chisholm could not have believed his prescriptions were within
the usual course of professional practice or for a legitimate medical purpose.”25
Further, the 2022 guidelines note that “[m]any patients do not experience benefit
in pain or function from increasing opioid dosages to ≥50 MME/day but are
exposed to progressive increases in risk as dosage increases.”26 Notably, one of
Mr. Chisholm’s patients that died was prescribed 1,185 MME/day by Mr. Chisholm,
a dosage that was “far outside the usual course of practice under both the 2016
24 Docket 51 at 12-13. These assertions are also the focus of Mr. Chisholm’s reply brief. See
Docket 59.
25 See Docket 55 at 16, 18; Deborah Dowell et al., CDC Guideline for Prescribing Opioids for
Chronic Pain – United States, 2016, 65 MMWR Recommendations & Reps. 1 (2016), available
at https://www.cdc.gov/mmwr/volumes/65/rr/pdfs/rr6501e1.pdf; Deborah Dowell et al., CDC
Clinical Practice Guideline for Prescribing Opioids for Pain – United States, 2022, 71 MMWR
Recommendations & Reps. 1 (2022) [hereinafter 2022 CDC Guidelines], available at
https://www.cdc.gov/mmwr/volumes/71/rr/pdfs/rr7103a1-H.pdf.
26 Docket 55 at 17 (quoting 2022 CDC Guidelines at 30).
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and 2022 CDC guidelines.”27 Accordingly, the Court finds that the CDC guideline
change does not supply an extraordinary and compelling reason that warrants a
sentence reduction in this case.
Finally, Mr. Chisholm notes he is currently 66 years old. 	And yet he is
currently on home confinement—which presents conditions much less harsh than
prison—and he has about eight months remaining on his sentence.28 	The Court
finds that Mr. Chisholm’s age and conditions of confinement are not extraordinary
and compelling reasons that would justify a reduction in sentence.
IV. 	Section 3553(a) factors
Because Mr. Chisholm has not made a threshold showing of extraordinary
and compelling reasons for a reduction in sentence, the Court need not determine
whether the § 3553(a) factors weigh in his favor.29 	The Court notes that the
Probation Office recommended denying the instant motion after reviewing Mr.
Chisholm’s current circumstances. 30
27 Docket 55 at 18-19.
28 Docket 57 at 1; Docket 51 at 4-5; see United States v. Pope, Case No. 21-1054, 2022 WL
2064682, at *4 (6th Cir. June 8, 2022) (“[A] term of imprisonment served in home confinement
would appear less onerous than an equally lengthy prison term.”).
29 “Although a district court must perform [the § 3582(c)(1)(A)] sequential inquiry before it grants
compassionate release, a district court that properly denies compassionate release need not
evaluate each step.” Keller, 2 F.4th at 1284 (emphases in original) (disagreeing with the
defendant that a district court must make an explicit “extraordinary and compelling” finding
before denying a motion based on the § 3553(a) factors).
30 Docket 57 at 2.
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CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant’s motion at Docket
51 is DENIED.
DATED this 30th day of June, 2023, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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