Government's Opposition to Motion for Compassionate Release — United States v. Mandy Ellen Bauer (W.D. Ky. No. 1:22-cr-00004)

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U.S. District Court for the Western District of Kentucky · No. 1:22-cr-00004-GNS · Doc. 33 · 2022-12-20 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
AT BOWLING GREEN 
 
UNITED STATES OF AMERICA 
PLAINTIFF 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
v. 
 
 
 
 
 
 
CRIMINAL NO.  
1:22-CR-4-GNS 
 
 
 
 
 
 
 
 
Filed Electronically 
 
MANDY ELLEN BAUER 
DEFENDANT 
 
OPPOSITION TO MOTION FOR COMPASSIONATE RELEASE 
 
 
The United States opposes lifelong criminal Mandy Bauer’s Motion for Compassionate 
Release.  (DN 31).  Bauer’s motion must be rejected because she cannot demonstrate any 
extraordinary and compelling reason to justify her release after serving less than half of her 
sentence.  Moreover, early release would run contrary to the sentencing factors in 18 U.S.C.       
§ 3553(a).    
 
The Covid-19 pandemic began in early 2020, causing immeasurable damage to the world 
economy.  That damage was felt acutely in the United States.  Schools, houses of worship, and 
businesses were forced to close their doors, sporting events and concerts were canceled, travel 
came to a standstill, and there were shortages of food and consumer goods.  Millions of 
Americans faced the loss of their livelihoods, on top of their fear of contracting a potentially 
deadly new illness.  
 
In March 2020, the CARES Act was signed into law.  Amongst other things, the CARES 
Act provided billions of dollars in funding to keep American business in operation, and to keep 
employees on the payroll.  These funds took several forms, like Payroll Protection Program 
(PPP) loans and Economic Injury Disaster Loans (EIDL).   
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Mandy Bauer is an incorrigible criminal whose criminal history dates back well over 20 
years.  (DN 20, ¶¶ 55-70).1  She was unconcerned about the desperate circumstances facing our 
country, its businesses and its citizens, and instead saw an opportunity get rich at taxpayer 
expense.  Between April and July 2020, while the Covid-19 pandemic ravaged the United States, 
she filed nine blatantly fraudulent applications for various CARES Act funds, seeking to steal 
over $230,000.  She claimed between 6 and 10 employees and varying payroll expenses on 
different applications, ranging from $132,000 to $162,000 per year.  All of it was false, and 
thankfully none of her applications were accepted.  (Id., ¶¶ 21-35).   
 
Bauer pleaded guilty as charged on February 2, 2022.  (Id., ¶ 4).  With a criminal history 
of IV, Bauer faced a Guideline range of 27-33 months of imprisonment.  (Id., ¶ 106).  On May 
17, 2022, this Court sentenced Bauer to twelve months and 1 day of incarceration, less than half 
the low end of the Guidelines, weighing Bauer’s unsuccessful attempt to steal from taxpayers 
against her “significant criminal history” and her failure to abide by the conditions of her bond 
pending sentencing.  (DN 29, PageID#184-187; DN 20, ¶ 10).  Bauer began serving her sentence 
on June 24, 2022.  (DN 27, PageID#158).   
LEGAL ANALYSIS 
I. 
The Standard of Review 
A district court has limited authority to modify a sentence.  United States v. Ruffin, 978 
F.3d 1000, 1003 (6th Cir. 2020).  “Generally speaking, once a court has imposed a sentence, it 
does not have the authority to change or modify that sentence unless such authority is expressly 
granted by statute.”  United States v. Hammond, 712 F.3d 333, 335 (6th Cir. 2013). 
 
1 Bauer’s convictions include facilitating the manufacture of methamphetamine, engaging in an organized crime 
syndicate, assault, facilitating burglary, theft by deception, and endangering the welfare of a minor.   
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Under 18 U.S.C. § 3582(c)(1)(A), a defendant may move her sentencing court to reduce 
her sentence based on extraordinary and compelling reasons.2  In considering such motions, 
district courts engage in a three-step inquiry: (1) “the court must ‘find’ that ‘extraordinary and 
compelling reasons warrant [a sentence] reduction,’” (2) “ensure ‘that such a reduction is 
consistent with applicable policy statements issued by the Sentencing Commission,’” and (3) 
“‘consider[ ] all relevant sentencing factors listed in 18 U.S.C. § 3553(a).’” See United States v. 
Elias, 984 F.3d 516, 518 (6th Cir. 2021).  Congress has tasked the Sentencing Commission with 
defining “extraordinary and compelling.”  28 U.S.C. § 994(t). 
The Commission defined that phrase before Congress enacted the First Step Act, which 
first gave defendants the right to move the district court to reduce their sentences under               
§ 3582(c)(1)(A).  In the USSG §1B1.13 Application Notes, the Commission defined 
extraordinary and compelling reasons to include the defendant’s advanced age, serious medical 
conditions, and the defendant’s status as the caregiver for a spouse or child.  In a fourth category, 
the Commission deferred to the Bureau of Prisons to define “other reasons.”  The Sixth Circuit 
has ruled that because the Commission has not amended §1B1.13 since the First Step Act went 
into effect, it does not apply to motions inmates file directly with the court (as opposed to 
motions the Bureau of Prisons files, which the statute still allows).  Elias, at 519. 
The Sixth Circuit explains that “district courts have discretion to define ‘extraordinary 
and compelling’ on their own initiative.”  Id. at 519-20.  But under any definition, “extraordinary 
and compelling” has its limits. “‘[D]iscretion’ does not mean ‘whim’” and “[a] court might abuse 
its discretion, for example, if it misreads the meaning of the extraordinary- reason requirement.” 
 
2 Bauer has exhausted her administrative remedies.   
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United States v. Jones, 980 F.3d 1098, 1112 (6th Cir. 2020) (citing United States v. Keefer, No. 
19-4148, 2020 WL 6112795, *4 (6th Cir. Oct. 16, 2020)).   
The compassionate-release statute does not permit “a sort of Wild West” or allow “every 
district judge [to] hav[e] an idiosyncratic release policy.”  United States v. Gunn, 980 F.3d 1178, 
1180 (7th Cir. 2020).  “The substantive aspects of the Sentencing Commission's analysis in          
§ 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and 
compelling reasons.’”  Id.  Thus, “the Commission's analysis can guide discretion without being 
conclusive.”  Id.  District courts, however, have discretion to look “into § 1B1.13—and no 
further—when they see fit.”  United States v. Villasenor, 2021 WL 5356032, at *1 (6th Cir. Nov. 
17, 2021).   
As § 3582(c)(1)(A) makes plain, a defendant’s reasons must be “extraordinary”--meaning 
exceptional or uncommon.  United States v. Shah, 2020 WL 1934930, at *2 (E.D. Mich. Apr. 22, 
2020);  United States v. Sapp, 2020 WL 515935, at *3 (E.D. Mich. Jan. 31, 2020).  They must 
also be “compelling”--meaning “so great that irreparable harm or injustice would result if the 
relief is not granted.”  Sapp, 2020 WL 515935, at *3 (internal quotation and alteration omitted).  
And they must “warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i).   
Bauer bears the burden of establishing that she is entitled to a sentence reduction under 
18 U.S.C. § 3582, see United States v. Karr, 2020 WL 774363, at *6 (E.D. Ky. Feb. 18, 2020), 
and she cannot meet her burden.   
II. 
Bauer Cannot Demonstrate Extraordinary and Compelling Reasons to Justify 
Compassionate Release 
 
Bauer claims that she is entitled to compassionate release after serving less than half of 
her sentence because her spouse is burdened caring for her son, and her spouse has suffered 
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financial hardship.  (DN 31, PageID#196).  Bauer’s motion fails to establish extraordinary and 
compelling reasons for at least three reasons.   
First, at the time of sentencing the court was aware that Bauer’s son was autistic and that 
she provided the bulk of his care.  (DN 20, ¶ 83).  In fact, at the sentencing hearing Bauer begged 
the court not to send her to prison, stating “my son’s autistic, and I take him to school every day, 
and I bring – I pick him up every day.  I take care of my son . . . I fully take care of him.”  (DN 
29, PageID#24-25).  The Sixth Circuit has held definitively that “facts that existed when the 
defendant was sentenced cannot later be construed as ‘extraordinary and compelling’ 
justifications for a sentence reduction.”  United States v. Lemons, 15 F.4th 747, 750 (6th Cir. 
2021) (citing United States v. Hunter, 12 F.4th 555, 571 (6th Cir. 2021)).  
 
Second, the Application Note to Section 1B1.13 states that the “death or incapacitation of 
the caregiver of the defendant’s minor child or minor children” is an extraordinary and 
compelling circumstance.  U.S.S.G. § 1B1.13(1)(C)(i).  Bauer’s spouse is neither dead nor 
incapacitated.  He is merely struggling with additional responsibilities while Bauer is 
imprisoned.  
 
Third, even if the court considered care for Bauer’s child a potentially extraordinary and 
compelling circumstance, Bauer has failed to show that she is the only available caregiver for her 
child, which is fatal to her claim.  United States v. Michael, 3:16-CR-00101, DN 410, PageID# 
3043-3044 (W.D. Ky. Oct. 17, 2022) (Jennings) (defendant “has not demonstrated that he is the 
only available caregiver for his family members.  Thus . . . the court finds that Michael has not 
shown extraordinary or compelling via family circumstance to alter his sentence”);  United 
States v. Cole, 2021 WL 194194, at *2 (E.D. Mich. Jan. 20, 2021) (motions for compassionate 
release have been denied “when defendants cannot show that they would be the only available 
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caregiver of a minor child, even if their incarceration imposes substantial burdens on a spouse or 
co-parent to a minor child”).  See also United States v. Corley, 2021 WL 119640, at *1 (M.D. 
Tenn. Jan. 13, 2021) (citing United States v. Lisi, 440 F. Supp. 3d, 246, 252 (S.D.N.Y. 2020) 
(noting that compassionate release based on family circumstances . . . typically requires a finding 
that the Defendant is the only available caregiver)). 
 
Bauer’s spouse is not unavailable; he is available and struggling with burdens imposed 
upon him by the foreseeable consequences of Bauer’s decision to attempt to defraud the United 
States of America nine separate times during a global pandemic.  Moreover, Bauer’s mother and 
two adult children seem to be perfect candidates to assist with her child’s care while she remains 
incarcerated, but there is no indication that any or all of them are unavailable.  (See DN 20, ¶¶ 
79-82).   
III. 
The 3553(a) Factors Preclude Early Release 
Even if Bauer could demonstrate extraordinary and compelling circumstances, her 
Motion must be denied after considering the 18 U.S.C. § 3553(a) sentencing factors.  The nature 
and circumstances of Bauer’s offense weigh heavily against reducing her sentence, 18 U.S.C.            
§ 3553(a)(1), considering she made multiple attempts to steal nearly a quarter million dollars 
from taxpayers in the middle of a nationwide economic crisis.  Her history and characteristics 
also preclude early release.  Her criminal history spans her entire adult life, and as the court 
noted during the sentencing hearing, “(t)his is not your first rodeo.  You’ve been in a lot of 
trouble.”  (DN 29, PageID#185).  She has committed criminal offenses while on probation, she 
has had probation revoked, and she violated the terms of her post-conviction bond in this case. 
(DN 20, ¶¶ 10, 55-70).   
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Bauer already received a sentence of less than half the advisory Guideline range.  A 
further fifty percent reduction3 would fail to reflect the seriousness of her offense, promote 
respect for the law, or provide just punishment for her offense, 18 U.S.C. § 3553(a)(2)(A), and 
would not provide adequate deterrence.  18 U.S.C. § 3553(a)(2)(B).  Given Bauer’s lifelong 
propensity for crime and her history of probation revocations and bond violations in this case, a 
sentencing reduction would fail to protect the public from Bauer’s further crimes.  18 U.S.C.      
§ 3553(a)(2)(C).    
Finally, a fifty percent reduction in Bauer’s sentence would cause unwarranted sentence 
disparities with similarly situated defendants.  18 U.S.C. § 3553(a)(6).  In fact, courts have 
routinely denied compassionate release for defendants who have served less than fifty percent of 
their sentence.  See e.g. United States v. Hamman, 2020 WL 3047371 (D. Or. June 8, 2020) 
(denying compassionate release despite significant medical issues because defendant only served 
fifty percent of sentence); United States v. Richardson, 2020 WL3104909 (S.D. W. Va. June 11, 
2020) (“to relieve Defendant of over fifty percent of his imposed sentence . . . would constitute 
an unwarranted sentencing disparity among similarly situated defendants”).    
For all these reasons, Bauer’s Motion should be denied.  
Respectfully submitted,  
MICHAEL A. BENNETT  
United States Attorney  
  
 
 
 
 
 
 
 
 
 
 
 
 
David Weiser  
 
 
 
 
 
 
David Weiser                    
Assistant United States Attorney  
717 West Broadway  
Louisville, Kentucky 40202  
(502) 625-7068  
david.weiser@usdoj.gov   
    
 
 
3 Bauer has served less than 6 months of her 12 month and 1 day sentence. 
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Certificate of Service 
  
I hereby certify that a copy of the foregoing was sent by electronic transmission through 
the Court=s ECF system on December 19, 2022, and was sent by first class mail on or about 
December 19, 2022, to: 
 
 
 
 
 
Mandy Bauer 
 
 
 
 
#84385-509 
 
 
 
 
FMC Satellite Camp 
 
 
 
 
P.O. Box 14525 
 
 
 
 
Lexington, KY 40512  
 
 
David Weiser                      
David Weiser 
Assistant United States Attorney  
 
Case 1:22-cr-00004-GNS     Document 33     Filed 12/20/22     Page 8 of 8 PageID #: 209

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