Opinion
1:15-CR-00204 EAW
2021-01-05
UNITED STATES of America, v. James A. MACCALLUM, Defendant.
Brian J. Counihan, Michael DiGiacomo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Brian J. Counihan, Michael DiGiacomo, U.S. Attorney's Office, Buffalo, NY, for United States of America.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
I. INTRODUCTION
Defendant James A. MacCallum (hereinafter "MacCallum" or "Defendant"), through his counsel, has filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 150). For the reasons set forth below, MacCallum's motion is denied.
II. BACKGROUND
MacCallum, a 49-year old disbarred attorney, was convicted by a jury on March 24, 2017, of one count of mail fraud in violation of 18 U.S.C. § 1341. (Dkt. 66; Dkt. 70). On July 3, 2018, the undersigned sentenced MacCallum to 84 months in prison, to be followed by three years of supervised release. (Dkt. 116; Dkt. 117). MacCallum was also ordered to pay $2,036,397 in restitution. (Dkt. 117 at 6). The 84-month incarceration sentence was toward the high end of the 70-to-87-month Guidelines range calculated by the Court. MacCallum has served just over 45 months of that 84-month sentence.
As the Court noted at sentencing, MacCallum's criminal conduct was "not a simple mail fraud" (Dkt. 132 at 17), but rather involved a sophisticated Ponzi scheme resulting in a loss of over $2 million. The Court summarized the proof in its Decision and Order resolving MacCallum's objections concerning the Sentencing Guidelines, as follows:
At trial, the Government presented evidence that from 2008 until 2010, Defendant received money from numerous victim investors and used the incoming money to pay other investors in furtherance of a classic Ponzi scheme, where one investor's money funded payments to other investors. The jury heard testimony from five victim investors, each of whom described how he or she sent money to Defendant with the intent that Defendant would invest the money with guaranteed rates of return in excess of 12 percent. Those victims did not receive the return that Defendant promised, and the evidence established that Defendant did not use the money as promised. Instead, Defendant paid his own personal expenses and used the money to further his fraudulent scheme. In some cases, Defendant invested victims’ money in other schemes that turned out to be fraudulent. The evidence established that, as part of the scheme, one of the victims (A.M.)—who was a citizen and resident of Canada—received a promissory note dated December 13, 2010,
from Defendant sent by commercial interstate carrier. The note promised to pay $500,000, but at the time, Defendant had only approximately $5,000 available to make any such payment.
In addition to the victim investors, the jury heard testimony from Defendant's former business associates, employees of the Federal Bureau of Investigation ("FBI"), and perhaps most importantly, Defendant himself when he confessed to FBI Special Agent Brent Isaacson that he had perpetrated the Ponzi scheme.... In his written statement, Defendant affirmed that he received about $4 million from his former father-in-law, R.G., from 2002 through 2010, for purposes of investing the money in properties and real estate development. The investments failed, causing Defendant to owe a significant debt to his father-in-law. In an effort to recover those losses, starting in approximately 2008, Defendant recruited other investors, falsely telling them that he would return a significant interest rate, typically 12 to 15 percent annually. Defendant then used the money from new investors to make payments to earlier investors.
United States v. MacCallum , No. 1:15-CR-00204 EAW, 2018 WL 2999907, at *2-3 (W.D.N.Y. June 15, 2018).
MacCallum appealed his conviction and by a Summary Order dated July 16, 2020, the Second Circuit Court of Appeals affirmed the conviction and sentence. United States v. MacCallum , 821 F. App'x 11 (2d Cir. 2020). MacCallum is currently housed at Moshannon Valley Correctional Institution ("MVCI") and his scheduled release date is March 9, 2023. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Jan. 4, 2021). The Bureau of Prisons ("BOP") identifies MVCI as a "contracted correctional institution, operated by a private corporation" located in Philipsburg, Pennsylvania, with an inmate population of 1,642. See Fed. Bureau of Prisons, https://www.bop.gov/locations/ci/mvc/ (last visited Jan. 4, 2021). According to the BOP's website tracking COVID-19 cases in its facilities, as of January 4, 2021, MVCI currently has 30 inmates testing positive for the virus causing COVID-19, two inmates have died, and 152 inmates have recovered. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Jan. 4, 2021).
The Second Circuit issued a limited remand because of MacCallum's challenge to a standard supervised release condition that implemented this District's Risk Notification Condition. 821 F. App'x 11, 15 (2d Cir. 2020). Based on the subsequent decision in United States v. Traficante , 966 F.3d 99 (2d Cir. 2020), no further action was required by the Court with respect to that limited remand. (See Dkt. 148).
This scheduled release date provides MacCallum with good-time credit so that he would effectively serve a sentence just shy of 72 months in prison.
MacCallum asks that this Court reduce his sentence to time served because of the extraordinary and compelling circumstances that exist due to the COVID-19 pandemic, the "surge" of COVID-19 cases at MVCI, and his pre-existing medical condition of poorly controlled hypertension that places him at an increased risk of serious illness or death from COVID-19. (Dkt. 150). MacCallum argues that he has been incarcerated for nearly four years, that he has only 27 months left on his prison sentence, and that "service of the Court's sentence has been atypical and harsh as a result of the pandemic." (Dkt. 150 at 12-13). MacCallum states that MCVI is in lockdown because of the pandemic, and his mental health condition of bipolar disorder makes it even more challenging to manage the stress of the situation. (Id. at 13). MacCallum cites to the collateral consequences of his conviction, including his likely deportation and separation from his three children who are U.S. citizens. (Id. at 13-14).
The COVID-19 numbers at MCVI have fluctuated since the filing of the pending motion. MacCallum's initial motion papers stated that as of December 16, 2020, the BOP was reporting 43 positive inmates and 52 recovered at MCVI. (Dkt. 150 at 9). The government's response indicated that as of December 28, 2020, 66 inmates had tested positive for COVID-19 "along with zero staff," and "83 inmates have recovered and there have been no inmate deaths." (Dkt. 154 at 12). In MacCallum's reply, he states that at the time he submitted his motion on December 17, 2020, there were 29 positive inmates and 44 recovered (which is different than what is stated in his initial motion papers), but "as the government itself reports, as of December 28, 2020, those numbers rose to 66 positive inmates with 83 recovered (a total of 149 inmates)." (Dkt. 155 at 2). MacCallum's reply papers go on to state: "In other words, the number of inmates with COVID-19 more than doubled in 11 days, with 9.39% of the population infected. And, worse yet, as of yesterday one inmate at Moshannon Valley has died of COVID-19.... Today (December 30, 2020), two days since the government filed its pleading, the BOP website indicates there are 52 positive inmates, one death and 115 recovered for a total of 168." (Id. at 2-3). According to a memorandum submitted from the United States Probation Office, dated December 28, 2020, MCVI has 68 positive cases and 75 inmates who have recovered. (Dkt. 157 at 1).
The government opposes MacCallum's motion on the ground that the factors set forth at 18 U.S.C. § 3553(a) do not justify a reduction in MacCallum's sentence. (Dkt. 154). The government does not oppose MacCallum's request on grounds of either administrative exhaustion or the lack of extraordinary and compelling reasons. (Id. ). The United States Probation Office ("USPO") has also responded to MacCallum's motion at the direction of the Court, indicating in a memorandum dated December 28, 2020, that it is opposed to the motion "given the fact that Moshannon Valley Correctional Facility is following the same COVID-19 safety and health precaution procedures in place for BOP facilities and [MacCallum's] medical ailments are managed." (Dkt. 157 at 1-2).
MacCallum submitted a reply in further support of his motion, wherein he argues, among other things, that the § 3553(a) factors must be viewed "now—through the lens of a worldwide deadly pandemic," (Dkt. 155 at 4), that reducing MacCallum's sentence to time served would still result in a sentence "well-above the national average," (id. at 5), and that MVCI is on full lockdown as a result of the COVID-19 outbreak (Dkt. 156).
III. LEGAL STANDARD AND ANALYSIS
"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:
The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the [BOP] ..., or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [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, 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 ... 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). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney , No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd , No. 20-1834, 833 F. App'x 850 (2d Cir. Nov. 2, 2020).
Although the statute references the Sentencing Commission's policy statements, the Second Circuit has held that U.S.S.G. § 1B1.13 Application Note 1(D) does not apply to compassionate release motions brought directly to the court, and therefore a court is not constrained by the Sentencing Guideline's policy statements as to what constitutes "extraordinary and compelling." United States v. Brooker , 976 F.3d 228, 236 (2d Cir. 2020).
A. Exhaustion
Here, MacCallum states that he submitted a request for compassionate release to MVCI's Warden on May 29, 2020, and it was denied on June 2, 2020. (Dkt. 150 at 5; Dkt. 150-1). Accordingly, the exhaustion requirement of the statute is satisfied.
MacCallum apparently filed another application with the Warden one day before the pending motion was filed, which was also denied. (Dkt. 154 at 1; Dkt. 154-1).
B. Extraordinary and Compelling Reasons
The government does not contest the presence of extraordinary and compelling circumstances. (Dkt. 154 at 8). This concession is apparently based on MacCallum's hypertension. (Id. at 7). However, notwithstanding the government's concession, the question as to whether there are extraordinary and compelling reasons is a determination for the Court—not the parties. See Roney , 833 Fed.Appx. at 852 ("The determination as to what constitutes extraordinary and compelling reasons warranting a reduction is committed to the sound discretion of the district court." (citing Brooker , 976 F.3d at 236-37 )).
MacCallum's submission and the associated medical records establish that he is prescribed medication for hypertension, but even with that medication his blood pressure readings are high, with his systolic pressure consistently in the mid-150's and his diastolic pressure in the mid-80's. (See Dkt. 150 at 3). The science is "mixed" on whether hypertension causes serious illness or death if infected with the virus causing COVID-19, at least according to the Centers for Disease Control and Prevention ("CDC"). See Evidence used to update the list of underlying medical conditions that increase a person's risk of severe illness from COVID-19 , Ctrs. for Disease Control & Prevention, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/evidence-table.html (last visited Jan. 4, 2021). By contrast, the studies and data cited by MacCallum suggest that hypertension definitely leads to severe illness or death with COVID-19. (Dkt. 150 at 10-12).
The facility's stated goal is a blood pressure reading of 140/90. (Dkt. 150 at 3). As MacCallum contends, even that goal is above normal (id. ), although as the government points out, the medical records do not reflect that MacCallum's blood pressure medications have been changed notwithstanding these higher readings (Dkt. 154 at 8). MacCallum's average systolic pressure is above the facility's stated goal, but his average diastolic pressure is below the stated goal.
The CDC's opinion concerning hypertension has evolved. Previously, it opined that people with high blood pressure and no other underlying health condition were not more likely than others to become severely ill from COVID-19. See United States v. Lebrecht , No. 1:16-CR-00166 EAW, 2020 WL 2519721, at *3 n.3 (W.D.N.Y. May 18, 2020) (citing Frequently Asked Questions: COVID-19 and Hypertension , Ctrs. for Disease Control & Prevention (May 12, 2020), https://www.cdc.gov/coronavirus/2019-ncov/faq.html#COVID-19-and-Hypertension).
In terms of the conditions at MCVI, prison settings present unique challenges in controlling the spread of COVID-19. The number of COVID-19 cases at MCVI appears to be fluctuating—but taking the most recent evidence, it suggests that there have been 184 cases of COVID-19 at the facility, out of a total inmate population of 1,642—in other words, approximately 11% of the inmate population has become infected with the virus causing COVID-19. Moreover, MacCallum states (and the government does not dispute) that MCVI is only testing symptomatic inmates (Dkt. 150 at 9), thus suggesting that the level of infection in the facility is higher. The Court is not sure that it would necessarily characterize the COVID-19 infections at MCVI as a "surge" at this point, as argued by MacCallum, but at a minimum it appears that the virus has infiltrated the facility, and notwithstanding the drastic measures taken at the facility to lockdown inmate movements, the reality is that this highly contagious virus may spread quickly through MCVI's inmate population, as has been seen in other correctional facilities.
MacCallum takes the position that his poorly controlled hypertension, combined with the conditions at MCVI, satisfy the extraordinary and compelling requirement of § 3582(c)(1)(A). (Id. at 5-12). And the government appears to agree. (Dkt. 154 at 7-8). But this Court is not convinced. In other words, while MacCallum suffers from a medical condition that, at a minimum, may place him at a heightened risk of complications from COVID-19, and while there are cases of COVID-19 within MCVI, the Court is doubtful that without more, these facts warrant a finding of extraordinary and compelling reasons for a sentence reduction. See United States v. Osbourne , Case # 14-CR-6136-FPG, 2020 WL 3969364, at *2 (W.D.N.Y. July 14, 2020) (while acknowledging that some courts have found living in a prison setting with medical conditions that place one at a heightened risk of complications if contracting COVID-19 constitutes extraordinary and compelling reasons, "this Court remains unconvinced ... because Defendant's conditions ... are likely shared by a significant portion of the federal prison population and because Defendant has not shown the degree of increased risk.").
Instead, this Court agrees with those courts that have taken the position that a number of factors must be considered when "a defendant argues that medical vulnerability to COVID-19 constitutes ‘extraordinary and compelling reasons’ justifying compassionate release," because the inquiry is "fact-intensive" and must consider, among other factors, "the defendant's age, the severity and documented history of the defendant's health conditions, defendant's history of managing those conditions in prison, the proliferation and status of infection at defendant's facilities, and the proportion of the term of incarceration that has been served." United States v. Gibson , 117-CR-0657, 2020 WL 7343802, at *3 (E.D.N.Y. Dec. 14, 2020).
This Court has previously rejected arguments from defendants with hypertension who have claimed extraordinary and compelling reasons justifying a sentence reduction. See , e.g. , United States v. Stacharczyk , 1:15-CR-00142 EAW, 507 F. Supp. 3d 462 (W.D.N.Y. Dec. 17, 2020) (defendant with various medical conditions, including hypertension, obesity, and Type II diabetes, had not established extraordinary and compelling reasons); United States v. Beaton , 469 F. Supp. 3d 61, 64 (W.D.N.Y. 2020) (71-year old defendant with hypertension who was housed at FCI Elkton failed to establish extraordinary and compelling circumstances); cf. United States v. Chester , 463 F. Supp. 3d 342, 347 (W.D.N.Y. 2020) (defendant's "pulmonary hypertension" combined with other medical conditions and other factors, including that just two months remained on original sentence, constituted extraordinary and compelling reasons). Other courts have reached similar conclusions. See , e.g. , Gibson , 2020 WL 7343802, at *3-4 (finding that defendant with hypertension and other health conditions had not established extraordinary and compelling reasons, and collecting cases reaching similar result); United States v. Rodriguez , No. 3:18-cr-00090-7 (JAM), 2020 WL 7321394, at *2 (D. Conn. Dec. 10, 2020) (50-year old defendant with hypertension "has not shown that the risk he personally faces from COVID-19 while imprisoned is enough to constitute an extraordinary and compelling reason for his release from imprisonment"); United States v. Petersen , No. 3:16-cr-109 (SRU), 2020 WL 7129705, at *7-8 (D. Conn. Dec. 3, 2020) (discussing cases that have recognized hypertension as supporting finding of extraordinary and compelling reasons, and those that have not, and ultimately concluding that the defendant's "hypertension alone, without more, does not constitute an extraordinary and compelling reason warranting his release"); United States v. Sturgis , 6:10-CR-6022-CJS-MWP-4, 2020 WL 7063359, at *5 (W.D.N.Y. Nov. 23, 2020) (obese defendant with poorly controlled hypertension who was housed at FCI Fort Dix, which had the second-highest number of confirmed COVID-19 cases, had not established extraordinary and compelling reasons for a sentence reduction).
In its survey of various decisions addressing this issue, including some cited in the foregoing cases, the Court recognizes that some courts have reached contrary conclusions and found the extraordinary and compelling requirement satisfied by the presence of a medical condition that makes an inmate vulnerable and COVID-19 cases in the facility where a defendant is housed. But as explained, the Court does not agree that those factors alone satisfy the standard. Since those are the factors that MacCallum cites to in support of his argument that he has established extraordinary and compelling reasons, the Court concludes that he has failed to meet his burden in that regard.
Nonetheless, because of the contrary case law and the fact that both parties apparently agree that MacCallum's hypertension constitutes extraordinary and compelling reasons, the Court will assume arguendo that MacCallum has established extraordinary and compelling reasons. See Roney , 833 Fed.Appx. at 853 ("We need not decide whether Roney has proffered an extraordinary and compelling reason that warrants his release under 18 U.S.C. § 3582(c)(1)(A)(i) because, even assuming arguendo that he has, we discern no abuse of discretion in the district court's conclusion that release is nevertheless unwarranted upon consideration of the § 3553(a) factors."). Accordingly, the Court now turns to the § 3553(a) factors. See United States v. Ebbers , 432 F. Supp. 3d 421, 430 (S.D.N.Y. 2020) (The existence of extraordinary and compelling circumstances "determines only whether a defendant can be considered for release—the existence of such reasons does not mandate release.").
C. Section 3553(a) Factors
Based on its consideration of all the § 3553(a) factors, the Court concludes that reducing MacCallum's sentence would undermine the fairness and purpose of the original sentence in this case. See Roney , 833 Fed.Appx. at 854 ("[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence.").
1. MacCallum's Canadian Citizenship
The Court first addresses the somewhat unique aspect of this compassionate release motion, in that MacCallum is a Canadian citizen and, therefore, upon release from prison he will be subject to removal proceedings. It is not clear whether MacCallum intends to contest his deportation—nor is it clear whether MacCallum will be held in immigration custody pending a final order of removal. (See Dkt. 154 at 1 n.3 (noting that ICE placed a detainer on MacCallum on December 22, 2020)). However, assuming MacCallum is removed to Canada, he will not be under any type of supervision—and indeed, it appears that because of his immigration status, he has not been deemed eligible by the BOP for release to home confinement. (See Dkt. 154-1 at 4-5). It is because of this that MacCallum seeks a sentence reduction to time served—which seems to be the only practical remedy that he could seek under § 3582(c)(1)(A).
MacCallum argues that this should not undermine his request for sentencing relief and that "[m]any other courts have granted compassionate release to defendants under similar circumstances." (Dkt. 150 at 15). However, the Court has reviewed each of the cases cited by MacCallum (see id. at 15-16) and finds that they are largely distinguishable from the present case. Many of the cases dealt with illegal reentry cases where the defendant had relatively little time left to serve of his sentence and in many instances the government supported the defendant's motion. See United States v. Reyes-De La Rosa , No. 5:18-CR-55, 2020 WL 3799523, at *1 (S.D. Tex. July 7, 2020) (for defendant who was citizen of Mexico and who had served 37 months of 46-month prison sentence for illegal re-entry, government supported the defendant's request for compassionate release and a sentence of time served, so that he could be deported back to Mexico, although noting that the "the transfer process to ICE custody is uncertain" and "deportation may be delayed"); United States v. Morrison , No. 19-CR-284-PWG, 2020 WL 3447757, at *1 (D. Md. June 24, 2020) (defendant had less than three months left on 18-month sentence for crime of illegal re-entry; government supported the defendant's request for compassionate release and a sentence of time served so that he could be taken into immigration custody and deported back to Jamaica); United States v. Guzman Soto , No. 1:18-CR-10086-IT, 2020 WL 2104787, at *2 (D. Mass. May 1, 2020) (granting motion for compassionate release for defendant sentenced to six months for violating supervised release for illegal reentry after prior deportation). Other cases involved defendants with more significant medical issues than those presented here, and again, the government in some instances consented to the request. See United States v. Arreola-Bretado , 445 F. Supp. 3d 1154, 1159 (S.D. Cal. 2020) (the defendant suffered from multiple, significant medical issues, including cardiovascular conditions; she had tested positive for COVID-19; she had served 281 days of an 18-month prison sentence for importation of methamphetamine; and she would be deported back to Mexico on her release); United States v. Bayuo , No. 15-CR-576 (JGK), 2020 WL 3415226, at *2 (S.D.N.Y. June 20, 2020) (49-year old convicted of tax fraud and aggravated identity theft and sentenced to 36-month prison sentence, granted compassionate release where she suffered from diabetes and hypertension ); United States v. Ardila , No. 3:03-CR-264 (SRU), 2020 WL 2097736, at *1 (D. Conn. May 1, 2020) (granting compassionate release motion, with no objection from government, of 71-year old defendant who suffered from diabetes, cardiovascular disease, hypertension, asthma, and obesity, and who would be taken into immigration custody).
MacCallum also cites to an unreported case from the Eastern District of Washington, United States v. Kalkat , Case No. 2:17-CR-0022-WFN-1, Dkt. No. 327 (E.D. Wa. July 6, 2020), but that defendant had cirrhosis of the liver as well as hypertension, and a review of the docket reveals that the Department of Justice had approved the defendant's request to be transferred to Canada as part of the International Prisoner Transfer Program (see id. at Dkt. 319). Finally, MacCallum cites to United States v. Bennett , No. 05 CR. 1192-1, 2020 WL 2539077, at *1-2 (S.D.N.Y. May 18, 2020), where the court reduced the sentence to time served of a 71-year old defendant who had served 73% of a 16-year prison sentence for a massive fraud scheme, and where defendant consented to his removal to the United Kingdom.
According to the government, MacCallum has a pending application to be transferred to Canada as part of this program. (See Dkt. 154 at 1 n.2).
In all, the Court does not find these cases particularly persuasive. The Court acknowledges that MacCallum's Canadian citizenship prevents him from being released to home confinement for the remainder of his prison sentence. But if deported to Canada, MacCallum will be unsupervised, and thus the effective prison sentence he will have served is just over 45 months with no supervised release to follow. As discussed further below, considering the goals of sentencing as articulated in § 3553(a) —including the need to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; and to protect the public from further crimes that Defendant might commit—the Court finds that Defendant's request for a time served sentence weighs against granting the requested sentence reduction.
2. MacCallum's History and Characteristics
It is important to note that "a compassionate-release motion ‘is not an opportunity to second guess or to reconsider’ the sentencing court's original decision." Roney , 833 Fed.Appx. at 854 ; see Ebbers , 432 F. Supp. 3d at 429 ("What justifies compassionate release is a finding that new mitigating ‘extraordinary and compelling’ circumstances exist to reduce that sentence; it is not an opportunity to second guess or to reconsider whether the original sentence was just."). Not surprisingly, MacCallum disagreed with the Court's sentence in this case—and took those disagreements up on appeal, arguing that the Court's sentence was " ‘shocking[ly]’ high given the nature of his offense and his personal history and characteristics." 821 F. App'x at 14-15. However, the Second Circuit concluded that this Court had not abused its discretion in imposing the 84-month within-Guidelines sentence in this case, reasoning:
While MacCallum may be "a very involved father" and a first-time offender who stands to suffer "significant collateral consequences" as a result of his trial and conviction, the District Court did not abuse its discretion in concluding that he committed a serious offense that warranted a within-Guidelines sentence. The court reasonably gave significant weight to its observation that MacCallum was "an attorney who had a solemn obligation to abide by the trust that clients and members of the community placed in [him]," and that he instead "manipulated and took advantage" of numerous victims, in violation of that duty.
Id. at 15. Thus, the question now is not whether the 84-month prison sentence was justified by consideration of the § 3553(a) factors, but rather whether the circumstances have changed so as to warrant a reduction in that sentence.
Many of the factors that MacCallum cites in his motion papers—the collateral consequences of his conviction, his being a "good father," his lack of significant criminal history, his solid employment record (Dkt. 150 at 14)—were the very same factors that this Court considered at the time of the initial sentencing, but nonetheless concluded that an 84-month prison sentence was warranted. MacCallum additionally cites to his lack of any disciplinary history while incarcerated, his taking advantage of programs and employment opportunities while incarcerated, and the "atypical and harsh" circumstances of his incarceration as a result of the pandemic which have been exacerbated by MacCallum's mental health condition of bipolar disorder. (Id. at 13-14). The Court takes all of this into account in assessing the current motion. However, the Court also notes that still to this day, MacCallum has not accepted responsibility for his conduct. (See Dkt. 113 at ¶ 43; Dkt. 132 at 11-12). Certainly, he had every right to contest the charges, proceed to trial, and appeal his conviction. But MacCallum's failure to accept responsibility supports the Court's conclusion as articulated at sentencing (Dkt. 132 at 17) that he presents a significant risk of recidivism.
In December 2013, MacCallum was convicted of Driving While Ability Impaired, an infraction, and he was sentenced to a conditional discharge, a $500 fine, and a license suspension for 90 days. (Dkt. 113 at ¶ 58). This resulted in one criminal history point in the Presentence Investigation Report. In addition, right before the commencement of the jury trial in this case, MacCallum was arrested for Aggravated Unlicensed Operation of a Motor Vehicle, 3rd degree, a class U misdemeanor and Unregistered Motor Vehicle, an infraction, for driving with a suspended driver's license and an unregistered vehicle. (Dkt. 113 at ¶ 63). As a result of that incident, the Court modified MacCallum's bail conditions. (Dkt. 62).
Admittedly, MacCallum confessed to the FBI in May 2014, prior to charges being filed in this case (see Dkt. 113 at ¶ 35), but the Court does not view that pre-indictment confession when confronted by the FBI as the same as accepting responsibility—which MacCallum plainly has never done in this case.
3. The Offense Conduct
MacCallum, a licensed attorney, took advantage of a number of individuals to perpetrate his fraud—and he did so in a callous manner. The Court witnessed many of the victims testify at trial, and their stories were heartbreaking. The impact of MacCallum's fraud devastated many individuals. For example, through one of his business associates, Menasheh Petscher, MacCallum fraudulently mispresented to L.C. that he could achieve an 18 to 20 percent rate of return if he invested with him. As a result of these false claims, L.C. gave Mr. Petscher a check for $350,000, which was turned over to MacCallum. But the next day L.C. had a heart attack and told his wife to get the money back—and MacCallum refused. Ultimately some of the money was returned, but L.C. and his wife were never repaid almost $200,000 of the moneys paid to MacCallum. L.C.’s wife testified at trial, but L.C. passed away from the heart attack, never seeing any of his moneys returned.
Other victims included N.W. and J.W.—who owned a dairy farm and went to MacCallum for legal work. (Dkt. 113 at ¶ 18). MacCallum falsely told N.W. and J.W. that he wanted to open an orphanage and convinced them to invest their whole life insurance policies and annuities with MacCallum. (Id. ). In the end, they lost over $80,000 through MacCallum's fraud. See 2018 WL 2999907, at *5. Similarly, C.C., a retired middle school science teacher, went with his wife to MacCallum for estate planning legal services. (See Dkt. 90 at 14, 17-19). MacCallum asked them if they trusted him enough to invest money with him, and unfortunately they did, ultimately losing over $65,000. (Id. at 20; see Dkt. 113 at ¶ 20).
The Court takes issue with MacCallum's characterization of his criminal conduct in the pending motion: "[MacCallum] committed the instant offense after, in the wake of the financial crash of 2008, he lost the money his father-in-law gave him to invest and in the hope of recouping his losses and saving face with his family." (Dkt. 150 at 14). Although the Court was not able to conclude that the money obtained from MacCallum's father-in-law could be included in the loss amount, the Court is highly suspicious of the circumstances surrounding MacCallum's dealings with his father-in-law based on the facts as reflected both in this Court's Decision and Order concerning the Sentencing Guidelines objections, 2018 WL 2999907, at *7, and the Presentence Investigation Report (Dkt. 113 ¶¶ 6-7). For instance, MacCallum mortgaged his father-in-law's home without his knowledge (id. at ¶ 7), and transferred money out of a trust account created by his father-in-law, 2018 WL 2999907, at *8. Thus, the Court rejects the notion that this was just a case where MacCallum made poor investments with his father-in-law's money, and in a desperate attempt to "save face" he engaged in poor decision-making. The Court views MacCallum's fraud as far more nefarious.
The Court believed at the time of sentencing, and continues to believe, that MacCallum is a fraudster—it is part of his character, and because of that, he presents a significant risk of recidivism. Thus, the Court also disagrees with MacCallum's characterization that he is not a danger. (Dkt. 150 at 14). He may not be violent, but the Court believes there is a significant risk that he will return to his previous pattern of manipulating and defrauding unwitting victims. His deportation to Canada does not alter the Court's assessment of his risk in that regard, as the underlying offense conduct involved crimes committed in both Canada and the United States.
4. Conclusions Regarding § 3553(a) Factors
The Court has considered all of the relevant § 3553(a) factors, including the nature and circumstances of the offense of conviction; MacCallum's history and characteristics; the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; the need to afford adequate deterrence to any future criminal conduct by MacCallum and protect the public from any further crimes that he might commit; the need to provide medical care in the most effective manner, particularly in view of this current pandemic; the need to avoid unwarranted sentence disparities among defendants with similar records convicted of similar conduct; and the recommendations under the Sentencing Guidelines of a 70-87 month prison sentence.
Of note, the Court has taken into consideration MacCallum's medical and mental health conditions, and it recognizes the challenges that are presented in not only addressing those conditions in a prison setting, but also in preventing the spread of COVID-19. On the other hand, the Court has reviewed the entirety of the sealed medical record evidence submitted by MacCallum from the BOP (see Dkt. 152), and it appears that MacCallum is receiving more than adequate care at MCVI.
The Court has considered that MacCallum has served his sentence under conditions that nobody could have anticipated at the time it was initially imposed, he has suffered substantial collateral consequences as a result of his conviction, and he has no significant criminal history. The Court also acknowledges that, while within the Guidelines range, an 84-month prison sentence is a significant sentence. However, particularly in view of the nature of the underlying offense, the egregious manner in which MacCallum took advantage of hard-working individuals and engaged in a fraud scheme with a loss greater than $2 million, the breach of trust engaged in by MacCallum in his role as an attorney, and the Court's view that MacCallum presents a significant risk of recidivism, the Court concludes that a time-served sentence—representing just over 45 months in prison—is not consistent with the § 3553(a) factors. Granting MacCallum's request would seriously undermine the fairness and purpose of the original sentence.
IV. CONCLUSION
For the foregoing reasons, MacCallum's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 150) is denied.
SO ORDERED.