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explaining that compassionate release remains “an extraordinary and rare event”
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CRIMINAL ACTION 3:20cr30
11-07-2022
UNITED STATES OF AMERICA, v. MARK HAROLD LOEWEN, Defendant.
MEMORANDUM OPINION
John A. Gibney, Jr. Senior United States Judge.
This matter comes before the Court on Mark Harold Loewen's motion for compassionate release under 18 U.S.C. 3582(c)(1)(A). (ECF Nos. 39, 51.) Loewen requests compassionate release because of his “debilitating” ulcerative colitis and the ongoing risk posed by the COVID-19 pandemic. (See ECF No. 40, at 11, 13.) Loewen asks the Court to order his immediate release or, in the alternative, allow him to serve the remainder of his sentence on home confinement. (ECF Nos. 40, at 11; 51, at 11.) The government opposes his motion. (ECF No. 47.) Because Loewen does not establish an extraordinary and compelling reason warranting relief and the § 3553(a) factors do not support his release, the Court will deny his motion.
L BACKGROUND
Between 2013 and 2018, Loewen and Henry Alexander McLarty, Sr., conned numerous victims into “investing” their money through a carbon offset investment firm called “World Wide Carbon, LLC.” (ECF No. 45, at 4.) Investors turned over hundreds of thousands of dollars each after Loewen promised return rates from five to twenty percent. (See ECF No. 45, at 5, 78.) Rather than use that money to purchase carbon offset credits, Loewen “spent almost all of the . . . investor funds on purposes other than buying carbon offset credits” and “personally received over $310,000 of investor funds.” (Id. at 4-5.) On March 3, 2020, a grand jury returned a five-count criminal indictment charging Loewen with conspiracy to commit wire fraud (Count One), wire fraud (Counts Two through Four), and unlawful monetary transaction (Count Five). (ECF No. 3.) On December 1, 2020, Loewen pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349. (ECF No. 22.) In exchange for his plea, the government moved to dismiss the remaining counts against him. (Id. at 4; see ECF No. 34, at 1.)
Prior to sentencing, the Court calculated Loewen's total offense level as twenty. (See ECF No. 45, at 9.) This reflected both a three-point downward adjustment for acceptance of responsibility and a sixteen-point upward adjustment because Loewen's crimes involved a loss amount exceeding $1.5 million dollars. (Id.) On April 6, 2021, the Court sentenced Loewen to thirty-six months' imprisonment-below the median of his guidelines range-and three years of supervised release. (ECF No. 37, at 2, 3.) At sentencing, the Court made a non-binding recommendation that the BOP place Loewen in “a facility with a strong medical program.” (Id. at 2.) Loewen's BOP incarceration began on May 21, 2021. (Id.) He is currently housed at FPC Montgomery, a minimum-security federal prison camp in Montgomery, Alabama. Find an Inmate, BOP, https://www.bop.gov/inmateloc/ (select “Find By Number”; then select “BOP Register Number”; then search for “05734-509”) (last visited September 26, 2022). To date, he has served approximately sixteen months of his sentence, and his projected release date is August 11, 2023. Id.
Loewen suffers from several medical conditions including ulcerative colitis. He attests to “increasing discomfort” from his ulcerative colitis and argues that both a lack of adequate treatment from the BOP and his susceptibility to contracting COVID-19 while incarcerated constitute an extraordinary and compelling reason for his release. (ECF Nos. 40, at 10; 50, at 3.) As explained below, the Court finds that neither Loewen's health conditions nor the ongoing pandemic presents an extraordinary and compelling reason for relief and that, even if they did, the § 3553(a) factors do not support his release. Accordingly, the Court will deny his request for release.
II. LEGAL STANDARD
Generally, a district court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C § 3582(c). Pursuant to § 3582(c)(1)(A), however, a district court may reduce a criminal defendant's sentence if “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that they are applicable, it finds that . . . extraordinary and compelling reasons warrant such a reduction.” Id. § 3582(c)(1)(A)-(i). “[P]rior to the First Step Act, courts could consider compassionate release only upon motion by the BOP.” United States v. McCoy, 981 F.3d 271, 276 (4th Cir. 2020). But today, § 3582(c)(1)(A) empowers a defendant to file his own motion for compassionate release so long as he first “fully exhaust[s] all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf' or waits thirty days “from the receipt of such a request by the warden of [his] facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A).
Although Congress did not define extraordinary and compelling reasons in § 3582(c)(1)(A), “the Sentencing Commission . . . addressed the issue in a policy statement, United States Sentencing Guideline § IB 1.13.” McCoy, 981 F.3d at 276. Section IB 1.13 provided the BOP with several categories of “extraordinary and compelling reasons,” to consider. Id. Following the passage of the First Step Act, however, the Sentencing Commission failed to update § IB 1.13 to account for motions filed by defendants. Id. at 281-82. Accordingly, the policy does not bind courts presented with a defendant's motion for compassionate release. Id. at 284. A court is thus “empowered ... to consider any extraordinary and compelling reason for release that a defendant might raise.” Id. (quoting United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020)) (alteration and emphasis in original). Nevertheless, compassionate release remains “an extraordinary and rare event,” and a defendant seeking compassionate release must demonstrate that the totality of his circumstances warrants such relief. United States v. Lottier, No. 7:16cr30, 2022 WL 1522220, at *2 (W.D. Va. May 13, 2022) (citation omitted).
During the COVID-19 pandemic, “courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility.” United States v. Feiling, 453 F.Supp.3d 832, 841 (E.D. Va. 2020).
III. DISCUSSION
Loewen has exhausted his administrative remedies. As explained below, the Court finds that Loewen fails to establish an extraordinary reason for the Court to modify his sentence. Further, even if that did not bar the Court from granting him compassionate release, the § 3553(a) factors do not support a sentence modification in this case. Thus, the Court will deny Loewen's motion.
A. Administrative Exhaustion
Prior to seeking compassionate release on his own behalf, a defendant must “fully exhaust[] all administrative rights to appeal a failure of the [BOP] to bring a motion on [his] behalf or [wait thirty] days from the receipt of such a request by the warden of [his] facility, whichever is earlier.” 18 U.S.C. 3582(c)(1)(A); see also Feiling, 453 F.Supp.3d at 837. The government freely concedes that Loewen “properly exhausted his administrative remedies by filing a request for home confinement... on or about June 21, 2021,” and waiting thirty days before filing his motion for compassionate release with this Court. (ECF No. 47, at 6-7 n.l.) The Court thus proceeds to the merits of Loewen's motion. See United States v. Muhammad, 16 F.4th 126, 129 (4th Cir. 2021) (concluding that the exhaustion requirement is “non-jurisdictional, and thus waived if it is not timely raised” by the government).
B. Analysis
1. Extraordinary and Compelling Reasons
Loewen was first diagnosed with ulcerative colitis in 2017, several years before his conviction. (See ECF No. 45, at 13.) He now asserts that his condition is “rapidly worsening” and causing him “severe abdominal pain and daily bleeding from the colon.” (ECF No. 40, at 10-11.) He laments that the BOP has only screened him to confirm the presence of ulcerative colitis and is not treating the disease itself. (ECF No. 50, at 2.) Loewen also argues that his medical conditions, including elevated blood pressure and prediabetes, may increase his potential for severe illness should he contract COVID-19. (ECF No. 40, at 12.) Further, he argues that his incarceration at FPC Montgomery poses a particularized risk to his health and contends that “any percentage [of positive cases within the facility] poses a risk of suffering serious injury or complications if he contracts COVID-19.” (ECF No. 50, at 3.) Loewen received both doses of the Pfizer-BioNTech COVID-19 vaccine in April and May of 2021. (ECF No. 40, at 7.) Loewen argues that his vaccination status should not undermine his request for relief because “it is unknown how long immunity from the vaccine will last” and any vaccine “immunity could decrease over time.” (Id. (emphasis added).) Finally, he says that BOP data does not accurately capture the prevalence of COVID-19 in prisons. (Id. at 15-16.)
The government argues that Loewen's ulcerative colitis is being managed by BOP care and contends that Loewen has failed to demonstrate that he is particularly susceptible to contracting a serious or fatal case of COVID-19 despite his vaccinations. (See ECF No. 47, at 10-11.) The Court agrees.
The government correctly notes that Loewen's medical records reveal that Loewen has received ongoing assessment, monitoring, and some treatment related to his ulcerative colitis. (See ECF No. 43-1.) In comparison, Loewen was apparently not receiving any monitoring or treatment prior to his incarceration. (Id. at 8 (explaining the Loewen reported self-managing his symptoms using coffee, cigarettes, and over the counter laxatives due to lack of medical insurance and noting that Loewen never had a colonoscopy before his incarceration).) Indeed, absent from Loewen's release plan is any explanation of how he would receive medical care or ensure that his conditions are managed upon release. (See ECF No. 40-3.; see also ECF No. 501, at 2 (explaining that Loewen chose to live near “[t]hree [m]ajor [h]ospitals” following his diagnosis in 2017 but offering no explanation for why he did not seek medical treatment prior to his incarceration).) Thus, although “Loewen may be displeased with the current state of his health, he has not established [that the] BOP cannot adequately manage his medical needs.”(ECF No. 47, at 11.)
Turning to Loewen's argument that his medical conditions render him more suspectable to serious or fatal illness from the COVID-19 virus, the Court agrees with the government that Loewen's medical records do not reflect that he suffers from either hypertension or diabetes.(See ECF No. 47, at 10 n.2.) Loewen attempts to circumvent this reality by hypothesizing about the potentially increased susceptibility he will face should his conditions worsen. Such speculation is neither extraordinary nor compelling. Furthermore, ulcerative colitis is not listed by the CDC as a condition which renders a person more susceptible to serious illness from COVID-19 infection. See People with Certain Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medicalconditi ons.html. Indeed, ulcerative colitis does not inherently cause immunosuppression. Data suggests that some immune-suppressant drugs prescribed to treat inflammatory bowel diseases may increase a person's risk of severe illness or death if exposed to COVID-19, id., but Loewen does not argue that his medical regime renders him particularly susceptible to serious complications from COVID-19 infection. Loewen provides the Court with general information and conclusions and fails to explain why his conditions render him more susceptible to COVID-19 than other prisoners. Finally, while Loewen asserts that his vaccine immunity “could decrease over time,” (ECF No. 40, at 7), the Court finds that-even combined with Loewen's existing health concerns-this hypothetical risk falls short of the exacting burden required for compassionate release. Because the Court finds that Loewen does not establish that he is particularly susceptible to serious illness or death from COVID-19, the Court need not access whether he faces a particularized risk of contracting the virus at FPC Montgomery.
In summary, the Court finds that Loewen's health concerns do not present an extraordinary and compelling reason for modification of his sentence. To the contrary, the Court knew when it originally sentenced Loewen that (1) he suffered from a chronic medical issue and (2) the ongoing pandemic could or would affect the conditions of his confinement.
2. Section 3553(a) Factors
Even if a court finds that extraordinary and compelling reasons exist for relief, a court may not reduce a defendant's sentence unless, after considering the § 3553(a) factors to the extent they are applicable, it determines that the defendant's resentencing or release is merited by all the available facts. 18 U.S.C. § 3582(c)(1)(A). Section 3553(a) requires that a district court impose a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing. 18 U.S.C. 3553(a). The Court finds that reducing Loewen's sentence at this time would not serve these goals.
Loewen positions himself as a law-abiding citizen who committed an out-of-character crime, took responsibility for his actions, and then showed genuine remorse. (ECF No. 40, at 17.) He recounts his history of steady employment and points to his “long time significant other” and close family ties. (Id. at 17-18.) The United States Probation Office reports that Loewen has not received any disciplinary infractions during his incarceration. (ECF No. 46.) Further, Loewen has completed several classes including “commercial driver's license” and “ACE Math and Natural Disaster.” (Id.) Loewen provides no letters in support of his release from prison personnel or fellow inmates or other documentation demonstrating unusual efforts at rehabilitation.
The Court begins by noting that Loewen's original sentence reflected his generally clean record and the fact that he accepted responsibility by pleading guilty. In exchange, the government moved to dismiss two charges against him, and Loewen received a three-point reduction to his offense level. See supra Sec.I. Further, as it noted at his sentencing, the Court considered the statements of people close to Loewen who described him as helpful and kind. But Loewen's original sentence also bore out the Court's opinion that a substantial prison sentence was necessary to reflect the serious impact Loewen's schemes had on his victims and the fact that Loewen stole from those victims seemingly without conscience. Finally, the Court seriously contemplated the need to avoid unwanted sentencing disparities and noted that unlike McLarty, Loewen served as the front man of World Wide Carbon, LLC and shamelessly lied to investors.
The Court recognizes, however, that it must evaluate the § 3553(a) factors considering Loewen's post-sentencing conduct. See McDonald, 986 F.3d at 411-12. Loewen asserts that despite limited BOP programming due to the pandemic, he “has done every bit of rehabilitation that he can during” his time in prison. (ECF No. 40, at 18.) Loewen's infraction-free record is commendable, but the Court finds that Loewen does not provide meaningful evidence of rehabilitation or otherwise identify any circumstances which change the Court's assessment of the need for Loewen's existing sentence. To the contrary, a shorter sentence in this case would not adequately deter others contemplating similar schemes, justly punish Loewen for his crimes, or reflect the serious harms caused to his victims.
IV. CONCLUSION
The Court finds that Loewen has not demonstrated “extraordinary and compelling reasons” justifying his release under 18 U.S.C. § 3582(c)(1)(A). Further, the § 3553(a) factors do not support any modification to his sentence. Accordingly, the Court DENIES his motion. (ECF Nos. 39,51.)
An appropriate Order shall issue.
Let the Clerk send a copy of this Memorandum Opinion to alt counsel of record and to the United States Probation Office, Richmond Division.