Court filing

Government’s Opposition to Defendant’s Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) — United States v. Kanyike (Dkt. 95, C.D. Cal.)

Summary

Federal prosecutors in the Central District of California asked the court on May 3, 2023 to deny Hassan Shaban Kanyike's motion to reduce his sentence under 18 U.S.C. § 3582(c)(1)(A). The opposition says Kanyike submitted eight false applications for COVID-19 disaster-relief loans totaling approximately $1,775,675 and obtained approximately $1,302,500 from three financial institutions and the SBA, including approximately $762,000 transferred to an offshore account in his father's name in Uganda. The court sentenced him to 51 months in prison and ordered restitution of $1,302,550 and a $20,000 fine; payments so far total $225. The government argues he has served 15 months, that his medical records show allergic rhinitis and a deviated nasal septum, and that he has shown no extraordinary and compelling reason for release.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Filed May 3, 2023 in Hassan Shaban Kanyike; one of 8 filings from this case.

Record facts

Court	U.S. District Court for the Central District of California
Filed	2023-05-03

Cite this document

“Government’s Opposition to Defendant’s Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) — United States v. Kanyike (Dkt. 95, C.D. Cal.).” U.S. District Court for the Central District of California, No. 2:21-cr-00081, Doc. 95, filed 2023-05-03. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-hassan-kanyike/2023-05-03-government-s-opposition-to-defendant-s-motion-to-reduce-sent-dkt-95/, SHA-256 981b58bdcef7afaf078968f115132904b3e593be61c1e2854705d396dbb86042.

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Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 1 of 27 Page ID #:713

1 E. MARTIN ESTRADA
United States Attorney
2 MACK E. JENKINS
Assistant United States Attorney
3 Chief, Criminal Division
RICHARD E. ROBINSON(Cal. Bar No. 90840)
4 Assistant United States Attorney
Major Frauds Section
5 1100 United States Courthouse
312 North Spring Street
6 Los Angeles, California 90012
Telephone: (213) 894-0713
7 Facsimile: (213) 894-6269
E-mail: Richard.robinson@usdoj.gov
8

9 Attorneys for Plaintiff
UNITED STATES OF AMERICA
10

11 UNITED STATES DISTRICT COURT
12 FOR THE CENTRAL DISTRICT OF CALIFORNIA
13 UNITED STATES OF AMERICA, No. CR 21-00081-VAP

14 Plaintiff, GOVERNMENT’S OPPOSITION TO
DEFENDANT’S MOTION TO REDUCE
15 v. SENTENCE PURSUANT TO 18
U.S.C. § 3582(c)(1)(A);
16 HASSAN SHABAN KANYIKE, DECLARATION OF RICHARD E. ROBINSON
AND EXHIBITS
17 Defendant.

19
Plaintiff United States of America, by and through its counsel
20
of record, the United States Attorney’s Office for the Central
21
District of California and Assistant United States Attorney Richard
22
E. Robinson, hereby files this response to defendant’s motion to
23
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A) (Docket No.
24
92). The Court should deny defendant’s motion.
25
//
26
//
27

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 2 of 27 Page ID #:714

1 This Response is based upon the attached memorandum of points

2 and authorities, attached declaration of AUSA Robinson and exhibits,

3 the confidential medical records of defendant filed under seal

4 concurrently herewith, defendant’s Presentence Investigation Report,

5 the other files and records in this case, and such further evidence

6 and argument as the Court may permit.

7 Dated: May 3, 2023 Respectfully submitted,

8 E. MARTIN ESTRADA
United States Attorney
9
MACK E. JENKINS
10 Assistant United States Attorney
Chief, Criminal Division
11

12 /s/
RICHARD E. ROBINSON
13 Assistant United States Attorney

14 Attorneys for Plaintiff
UNITED STATES OF AMERICA
15

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 3 of 27 Page ID #:715

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3 Defendant’s motion fails to satisfy either of the two principal

4 criteria that must both be satisfied for release. First, defendant

5 has not met his burden to establish an extraordinary and compelling

6 reason for release. Second, defendant also has not established that

7 the relevant 18 U.S.C. § 3553(a) factors weigh in favor of release;

8 rather, those factors support defendant’s continued incarceration.

9 Defendant’s motion should be denied.
10 II. STATEMENT OF FACTS
11 A. Defendant’s Criminal Conduct and Sentence
12 Defendant submitted eight false and fraudulent applications and
13 supporting documents for COVID-19 disaster-relief loans for his
14 businesses totaling approximately $1,775,675 from the Small Business
15 Administration (“SBA”) and four SBA-approved lenders. PSR ¶¶ 11, 20,
16 49. Defendant secured multiple EINs from the IRS in order to
17 fraudulently obtain multiple PPP loans for the same used car
18 business. PSR ¶ 23. Defendant’s bogus PPP loan applications to SBA-

19 approved lenders misrepresented total number of employees and payroll

20 expenses for his businesses, which defendant supported by submitting

21 fake federal payroll tax returns, payroll registers, and bank

22 records. PSR ¶¶ 22, 25-28. Defendant’s bogus EIDL loan applications

23 to the SBA falsely represented the gross revenues and costs of goods

24 sold for his businesses. PSR ¶¶ 34-36. Through his fraud scheme,

25 defendant obtained loan proceeds totaling approximately $1,302,500

26 from three victim financial institutions and the SBA. (PSR ¶¶ 11,

27 40, 49.) Defendant misapplied and used PPP loan proceeds for his own

28 personal benefit, including the transfer of approximately $762,000 to

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 4 of 27 Page ID #:716

1 an offshore account in his father’s name in Uganda, described in bank

2 account statements as for “construction funding investments.” PSR ¶¶

3 24, 30, 38, 51.

4 Defendant pleaded guilty to one count of wire fraud, in

5 violation of 18 U.S.C. § 1343, pursuant to a plea agreement. (ECF

6 51.) At sentencing, defendant characterized his offense conduct as

7 “a moment of panic due to Covid induced desperation” (Dkt. 63, page

8 4), but the government provided evidence to the Court showing that

9 even before the COVID-19 pandemic defendant provided fake bank
10 account statements to two other lenders to obtain business loans.
11 Dkt. 68, pages 3-4, Exhibits 1 and 2. Regarding the whereabouts of
12 the $1,302,550 defendant derived from the scheme, defendant stated to
13 the Probation Officer simply that “it was all gone.” PSR ¶ 104.
14 Defendant failed to support his claim that all the money sent to
15 Uganda was lost on a bad investment. PSR ¶ 105. Defendant also did
16 not disclose the whereabouts of any of the remaining $540,550 that he
17 did not transfer to Uganda. PSR ¶¶ 104, 106. Defendant did not, for
18 example, show that any of the loan proceeds he obtained from victim

19 lenders to were used to pay employee wages, as intended.

20 At sentencing, the Court adopted the factual recitations of the

21 PSR. Dkt. 77, page 6 (Nov. 15, 2021 sentencing hearing transcript).

22 The Court found that defendant committed a very serious offense in

23 taking advantage of the government’s extraordinary efforts during the

24 COVID-19 pandemic to alleviate the effects on small businesses and

25 companies with employees, by defendant’s depleting those sources of

26 aid by more than a million dollars due to fraud. Dkt. 77, pages 8-

27 10. The Court also concluded that the damage done in white collar

28 cases such as defendant’s is significant because a legitimate

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 5 of 27 Page ID #:717

1 business seeking a PPP loan may well not have gotten it because

2 defendant fraudulently obtained over a million dollars. Dkt. 77,

3 page 11. The Court specifically found the need to protect the public

4 from future crimes of defendant was a significant concern in this

5 case, given that defendant did not fully account for the funds he

6 stole. Dkt. 77, page 10. In particular, the Court noted that

7 defendant failed to provide any documentation to show where the

8 remaining $540,550 in loan proceeds went (i.e., the funds not

9 transferred to Uganda). Dkt. 77, pages 20-21. The Court concluded
10 that defendant’s economic circumstances allow for a full and
11 immediate payment of restitution. Dkt. 77, page 41.
12 The Court sentenced defendant to a term of imprisonment of 51
13 months (low-end of his advisory guideline range), followed by a
14 three-year term of supervised release. The Court also ordered
15 defendant to pay restitution in the total amount of $1,302,550 and a
16 fine in the amount of $20,000, with the restitution and fine to be
17 paid immediately. Dkt. 68. Defendant’s sentence was affirmed on his
18 appeal to the Ninth Circuit Court of Appeals. Dkt. 90.

19 The Court continued defendant’s surrender date to the Bureau of

20 Prisons (“BOP”) from January 14, 2022 to February 22, 2022, at

21 defendant’s request, after defendant reported that he had tested

22 positive for COVID-19, was suffering from a sinus infection, and had

23 a January 19, 2022 appointment for medical treatment. Dkt. 79, pages

24 2, 4. Defendant supported his request with medical reports from

25 2018, showing he received medical treatment of his sinus condition by

26 using a nasal spray. Dkt. 79, Exhibit B pages 10-11. Defendant’s

27 chronic sinus issues were known to the Court at time of his

28 sentencing. PSR ¶ 85. Less than a week before defendant’s scheduled

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 6 of 27 Page ID #:718

1 surrender date, defendant moved the Court for an additional 90-day

2 continuance by claiming that he had a chronic sinus condition and

3 sinus infection, and had scheduled outpatient sinus surgery for mid-

4 March 2022, to be followed by a two-month recovery period. Dkt. 85.

5 Defendant provided no justification for why he waited to schedule

6 elective sinus surgery until after his surrender date, nor did he

7 provide any evidence that the BOP is incapable of addressing his

8 sinus issues while he is in custody. Dkt. 86, pages 2-4. The Court

9 denied defendant’s motion, finding no good cause shown. Dkt. 87.
10 Defendant timely surrendered to BOP on February 22, 2022, to commence
11 serving his sentence. Robinson Decl. ¶ 3.
12 To date, defendant’s payments to satisfy his ordered $1,302,550

13 restitution, $20,000 fine, and $100 special assessment total only

14 $225. Declaration of Richard E. Robinson (“Robinson Decl.”) ¶ 17.

15 B. Incarceration, Projected Release Date, and Health

16 Defendant is currently serving his sentence at FCI Victorville

17 Medium 1. Dkt. 92, page 1-2. Defendant has served 15 months of his

18 51-month sentence, i.e., less than 30%. According to BOP, the

19 expiration of the full time of defendant’s sentence is May 5, 2026;

20 and his projected release date is April 7, 2025. Robinson Decl. ¶ 3,

21 Exhibit 1.

22 Defendant’s medical records reflect that defendant’s current

23 health problems are (1) allergic rhinitis and (2) a deviated nasal

24 septum. Robinson Decl. ¶ 7, Exhibit 3 (under seal). Defendant’s

25 Medical Duty Status Assignments are regular duty, with no medical

26 restrictions. Defendant’s Current Case Assignments are “Care 1

27 Healthy or Simple Chronic Care,” which is the lowest level of health

28 care BOP deems typically needed by a healthy inmate. Dkt. 92,

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 7 of 27 Page ID #:719

1 Exhibit B4 page 34. Robinson Decl. ¶ 8. Defendant’s medical records

2 do not indicate that his ability to provide self-care within the

3 correctional facility environment is substantially diminished by a

4 serious medical condition or any other cause. Robinson Decl. ¶ 16.

5 Defendant’s sinus problems were evaluated by BOP medical staff

6 and he was prescribed medication (nasal spray), with follow-up at

7 Sick Call as needed. Defendant was also referred to Radiology for X-

8 Rays of his sinuses. The X-Rays of defendant’s sinuses found his

9 sinuses clear, with no radiological evidence for sinusitis. Robinson
10 Decl. ¶ 9, Exhibits 5 and 6 (under seal).
11 After a full health examination and the evaluation and treatment
12 of defendant’s sinus problems in April 2022, defendant had a mental
13 health screening in May 2022 by BOP and denied the need for mental
14 health services. He specifically denied being the victim of sexual
15 abuse or harassment while in custody. Robinson Decl. ¶ 10, Exhibit
16 7 (under seal). In July, 2022, however, defendant for the first time
17 alleged an incident of sexual abuse of defendant by a BOP medical
18 staff member during the course of defendant’s health examination in

19 April 2022. Defendant claimed that mental anguish and trauma he had

20 suffered in the past had been brought back when he was asked to strip

21 down by the medical staff member conducting the examination and then

22 made a comment about defendant being circumcised. Robinson Decl. ¶

23 11, Exhibit 8 (under seal).

24 After defendant made these sexual abuse allegations, a BOP

25 Psychologist interviewed him the same day regarding them and prepared

26 a Psychology Services Sexual Abuse Intervention report. Defendant

27 told the Psychologist that he did not endorse any mental health

28 symptoms but had been staying in his cell more than usual. Defendant

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 8 of 27 Page ID #:720

1 declined advocate services offered by the Psychologist, as well as

2 offered contact information for both local and national sexual abuse

3 service. Defendant denied fear of retaliation. Defendant was then

4 placed on the waitlist for a BOP trauma and resilience workshop.

5 Robinson Decl. ¶ 12, Exhibit 9 (under seal).

6 C. Defendant’s Current Motion for Compassionate Release and
Exhaustion of Administrative Remedies
7
Defendant filed a compassionate-release request with BOP based
8
on medical debilitated condition and COVID concerns before filing his
9
request in this Court. The BOP denied the request on January 26,
10
2023. Dkt. 92, p. 26. Defendant also submitted to BOP a claim of
11
sexual abuse by a BOP staff member, which BOP denied on November 17,
12
2022. Dkt. 92, Exhibit B1 page 31; Robinson Decl. ¶ 13, Exhibit 10
13
(under seal).
14
Now, before this Court, defendant renews his request for
15
compassionate release based on claims of medical debilitated
16
condition and sexual abuse by a BOP medical staff member. The
17
government does not dispute that defendant has exhausted his
18
administrative remedies.
19
Although defendant’s compassionate release request to BOP was
20
based, in part, on his claim that COVID-19 presented a severe and
21
dangerous risk to him because of his alleged propensity for viral
22
infections (Dkt. 92, page 28), he appears to have abandoned that
23
ground in his motion to this Court. His motion makes no reference to
24
COVID-19 as a significant health risk to defendant at this time.
25
This is understandable, given the reduced COVID-19 risk and
26
mitigation efforts where defendant is incarcerated. FCI Victorville
27
Medium 1 is currently operating at BOP COVID-19 operational Level 1,
28

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 9 of 27 Page ID #:721

1 the lowest level of mitigation for risk and spread of COVID-19.

2 https://www.bop.gov/coronavirus/covid19_modified_operations_guide.jsp

3 There are 1,536 inmates at FCI Victorville Medium 1, plus 200 inmates

4 at the Camp. https://www.bop.gov/locations/institutions/vim/

5 Currently, 0 inmates are testing positive and 0 inmates are pending

6 COVID-19 tests at this facility.

7 https://www.bop.gov/coronavirus/covid19_statistics.html

8 Moreover, defendant has not tested positive for COVID-19 or reported

9 suffering from COVID-19 illness while in BOP custody. Robinson Decl.
10 ¶ 4. Defendant declined to receive the MODERNA COVID-19 vaccine.
11 Robinson Decl. ¶ 6, Exhibit 2 (under seal). 1
12 Defendant’s motion asserts these reasons for why he should

13 receive compassionate release: (1) denial of medical care with

14 respect to his sinuses for over 12 months; (2) sexual abuse of

15 defendant by the BOP medical staff member during his examination; and

16 (3) denial of psychological care after defendant’s sexual abuse by

17 the staff member. Dkt. 92, pages 8-10.

18 III. LEGAL FRAMEWORK FOR COMPASSIONATE RELEASE

19 After a sentence is imposed, the “rule of finality” generally

20 forbids its modification. Freeman v. United States, 564 U.S. 522,

21 526 (2011) (plurality opinion); Dillon v. United States, 560 U.S.

22 817, 824 (2010)(judgment of conviction that includes sentence of

23 imprisonment constitutes a final judgment and may not be modified by

24 a district court except in limited circumstances.); United States v.

26 Absent medical evidence that a particular defendant is “unable
1
to receive or benefit from a vaccine,” the incarceration of a
27 defendant who “has access to the COVID-19 vaccine” is not “an
‘extraordinary and compelling reason’ warranting a sentence
28 reduction.” United States v. Lemons, 15 F.4th 747, 751 (6th Cir.
2021).
7

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 10 of 27 Page ID #:722

1 Aruda, 993 F.3d 797, 799 (9th Cir. 2021). Compassionate release is

2 one of the “few narrow exceptions,” Freeman, 564 U.S. at 526,

3 allowing a court to “reduce the term of imprisonment” and “impose a

4 term of probation or supervised release with or without conditions

5 that does not exceed the unserved portion of the original term of

6 imprisonment,” 18 U.S.C. § 3582(c)(1)(A); Aruda, 993 F.3d at 799-800.

7 Because this relief is drastic and permanent, courts are never

8 obligated to award it. Rather, this Court “may” reduce a sentence

9 but only if the defendant satisfies three statutory requirements.
10 First, the Court can adjudicate a request for compassionate

11 release only after the defendant has met an administrative exhaustion

12 requirement. Defendant has met the exhaustion requirement here.

13 Second, in evaluating compassionate release requests, courts

14 must determine whether a defendant has presented “extraordinary and

15 compelling reasons” for release. 18 U.S.C. § 3582(c)(1)(A)(i). 2 The

16 Ninth Circuit has held that there are no currently “applicable policy

17 statements,” 18 U.S.C. § 3582(c)(1)(A), defining what reasons are

18 “extraordinary and compelling” where a defendant moves for

19 compassionate release. Aruda, 993 F.3d at 801-02. Accordingly,

20 district courts have discretion to determine whether a defendant’s

21 proffered reasons are “extraordinary and compelling,” and that

22 discretion may be informed but not strictly limited by the policy

23 statements in U.S.S.G. § 1B1.13. Aruda, 993 F.3d at 802.

24 Nonetheless, the plain meaning of the term “extraordinary and

25 compelling” reflects Congress’s intent that only rare circumstances

27 218 U.S.C. § 3582(c)(1)(A)(ii) authorizes an alternative basis
for release but only if a defendant is at least 70 years old. That
28 provision does not apply here.

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 11 of 27 Page ID #:723

1 should qualify for release. See Roberts v. Dist. Ct., 339 U.S. 844,

2 845 (1950) (per curiam) (“extraordinary” remedies are reserved for

3 “rare” cases). Section 3582 does not authorize a “plenary

4 resentencing proceeding.” United States v. Kelley, 962 F.3d 470, 477

5 (9th Cir. 2020) (the First Step Act “does not permit a plenary

6 resentencing”). As explained below, defendant has not established an

7 extraordinary and compelling reason for release.

8 Third, even if the first two requirements are met, courts must

9 consider the “factors set forth in section 3553(a) to the extent that
10 they are applicable.” 18 U.S.C. § 3582(c)(2). A court should deny a
11 sentence reduction if the defendant does not establish that the
12 balance of the applicable § 3553(a) factors weigh in favor of
13 release. United States v. Keller, 2 F.4th 12788, 1283-84 (9th Cir.
14 2021)(district court did not abuse its discretion in denying

15 compassionate release based on § 3553(a) factors). As explained

16 below, defendant has not met this requirement either.

17 IV. ARGUMENT

18 Defendant’s motion fails on either of two independent grounds.

19 First, despite his health concerns, defendant has not presented an

20 extraordinary and compelling reason for release. Second, the 18

21 U.S.C. § 3553(a) factors do not weigh in favor of release.

22 A. Defendant Has Failed to Establish an Extraordinary and
Compelling Reason for Release
23

24 Defendant has provided no evidence that BOP lacks the ability to

25 properly manage defendant’s health. His allegations that he was

26 debilitated and denied medical care with respect to his sinuses for

27 over 12 months is not supported by any medical records or other

28 evidence. To the contrary, BOP medical records show that defendant

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 12 of 27 Page ID #:724

1 was evaluated by BOP medical staff concerning his sinus problems in

2 early April 2022, including with the use of X-Rays that found no

3 evidence of sinusitis. Defendant is being provided medication (nasal

4 spray) for his sinuses. Robinson Decl. ¶ 9, Exhibit 4 (under seal).

5 Defendant’s use of nasal spray is the same course of medical

6 treatment defendant followed for his chronic sinus problem prior to

7 BOP custody, dating back to at least 2018.

8 Moreover, defendant cited his chronic sinus problems to the

9 Court when defendant sought to delay his surrender to BOP. Just as
10 the Court found that defendant’s alleged sinus problems did not show
11 good cause to delay his surrender, the Court should likewise find
12 they fail to establish an extraordinary and compelling reason to
13 release him from prison now. Defendant has not shown that his
14 chronic sinus problems, with the medical treatment provided by BOP,
15 constitute a serious physical or medical condition that substantially
16 diminishes his ability to provide self-care within the environment of
17 FCI Victorville Medium 1 and from which he is not expected to
18 recover. Robinson Decl. ¶ 16. Cf. U.S.S.G. § 1B1.13, comment.

19 (n.1(A)(ii). 3

20 Defendant’s allegations that he suffered sexual abuse by a BOP

21 medical staff member and was denied psychological care for it are

22 also not supported by any medical records or other evidence.

23 Defendant complains that he was needlessly asked to strip down and

24 have his penis examined, but his disrobing and a genitals examination

25 was inherent in BOP medical staff conducting a full health

26
3Proposed Amendments to the Sentencing Guidelines (Preliminary)
27 April 5, 2023, if adopted later this year, would incorporate the
substance of the Application Note in § 1B1.13 itself.
28 https://www.ussc.gov/sites/default/files/pdf/amendment-
process/reader-friendly-amendments/20230201_RF-proposed.pdf
10

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 13 of 27 Page ID #:725

1 examination. Robinson Decl. ¶ 14, Exhibit 4 (under seal). That

2 defendant subsequently denied during a psychology services intake

3 screening that he had ever been a victim of sexual abuse while in

4 custody, and denied the need for mental health services, also casts

5 some doubt on his claim of prior sexual abuse by BOP medical staff.

6 Robinson Decl. ¶ 12, Exhibit 9 (under seal). Contrary to defendant’s

7 allegations that he was denied psychological care, his medical

8 records show he was interviewed by a BOP Psychologist about the

9 incident the date he reported it to medical staff, receive
10 psychological counseling the same day he reported the alleged
11 incident. Id.
12 In any event, even if the incident occurred as defendant claims,

13 it is not so serious as to constitute a form of sexual abuse that

14 would warrant his early release from prison. For this alleged

15 incident, defendant makes no specific allegation that he experienced

16 any physical sexual contact with or touching of a sexual nature by a

17 BOP staff. Robinson Decl. ¶ 15. Therefore, it would not constitute

18 a “sexual act,” as defined in 18 U.S.C. § 2246(2). 4

19 B. The 18 U.S.C. § 3553(a) Factors Do Not Support Defendant’s
Request for Release
20

21 Defendant’s motion independently should be denied based on the

22 18 U.S.C. § 3553(a) factors. Those factors--which this Court

23 considered when imposing defendant’s sentence--do not support his

26 4Proposed Amendments to the Sentencing Guidelines (Preliminary)
April 5, 2023, include a revision to § 1B1.13 to include “Victim of
27 Sexual Abuse” as an extraordinary and compelling reason for reduction
of imprisonment. To qualify for Victim of Sexual Abuse, however, the
28 sexual abuse must involve a “sexual act,” as defined in 18 U.S.C. §
2246(2), which the incident as described by defendant does not.
11

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 14 of 27 Page ID #:726

1 request for premature, permanent release. Rather, they support his

2 original sentence.

3 1. Defendant Committed a Serious Offense Warranting the
Sentence the Court Imposed
4
“[T]he nature and circumstances of the offense,” and the need
5
“to reflect the seriousness of the offense, to promote respect for
6
the law, and to provide just punishment for the offense” all weigh
7
against defendant’s motion for release. 18 U.S.C. §§ 3553(a)(1),
8
(2)(A).
9
As the Court found at defendant’s sentencing, defendant
10
committed a very serious offense that warranted a 51-month sentence.
11
Defendant stole $1.3 million in loan proceeds and thereby depleted
12
sources of aid during the COVID-19 pandemic that were needed by
13
legitimate businesses. More than $1 million of the loan proceeds
14
were stolen from financial institutions, with the bulk of the
15
proceeds transferred offshore. PSR ¶¶ 51, 52.
16
Releasing defendant now, after he has served less than a third
17
of his 51-month prison sentence, would not provide just punishment.
18
2. Defendant Remains a Danger to the Community, and
19 Public Safety Counsels Against Early Release

20 The need “to afford adequate deterrence to criminal conduct” and

21 “to protect the public from further crimes of the defendant” also

22 counsel against defendant’s request for early release. 18 U.S.C.

23 §§ 3553(a)(2)(B), (C). The fact that defendant may not have engaged

24 in violence does not negate his dangerousness if released. Danger

25 may “encompass pecuniary or economic harm.” United States v.

26 Reynolds, 956 F.2d 192, 192 (9th Cir. 1992).

27 The record here reflects that defendant poses a real and

28 continuing danger to the community. At sentencing, the Court

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 15 of 27 Page ID #:727

1 specifically found the need to protect the public from future crimes

2 of defendant was a significant concern, given that defendant did not

3 fully account for the funds he stole. That concern remains.

4 Defendant has made no effort to marshal any of the missing stolen

5 funds to pay his restitution and fine obligations. Robinson Decl. ¶

6 17, Exhibit 11 attached.

7 ****

8 At bottom, granting compassionate release would undermine the 18

9 U.S.C. § 3553(a) factors, resulting in an effective sentence far
10 below the applicable Guideline range. The law, and the specific
11 facts of defendant’s case, do not support that result.
12 V. CONCLUSION
13 Defendant’s motion for release should be denied.
14 Dated: May 3, 2023 Respectfully submitted,

15 E. MARTIN ESTRADA
United States Attorney
16
MACK E. JENKINS
17 Assistant United States Attorney
Chief, Criminal Division
18

19 /s/
RICHARD E. ROBINSON
20 Assistant United States Attorney

21 Attorneys for Plaintiff
UNITED STATES OF AMERICA
22

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 16 of 27 Page ID #:728

1 DECLARATION OF RICHARD E. ROBINSON

2 I, Richard E. Robinson, declare as follows:

3 1. I am the Assistant United States Attorney who prosecuted

4 defendant Hassan Kanyike (“defendant”) in United States v. Hassan

5 Kanyike, Case No. CR 21-00081-VAP. I make this declaration in

6 support of the government’s response to defendant’s pro se motion for

7 compassionate release and sentence reduction. Dkt. 92.

8 2. In connection with preparing the government’s response, I

9 obtained from BOP Attorney JoAnna Wilson printouts of BOP records
10 concerning defendant as of April 21, 2023, including those described
11 below.
12 3. As reported in defendant’s Inmate Data, attached as Exhibit
13 1, and verbally confirmed to me by BOP attorney Wilson: Defendant
14 commenced serving his 51-month sentence in BOP custody on February
15 22, 2022, assigned to FCI Victorville Medium 1. Defendant received
16 jail credit of 15 days, for time in custody following his arrest on
17 the complaint in this case in December 2020. The expiration of the
18 full term of defendant’s sentence is May 5, 2026. Defendant’s

19 projected release date is April 7, 2025.

20 4. I have reviewed all defendant’s BOP medical records

21 provided to me by BOP Attorney Wilson, including defendant’s initial

22 Health Screen report when he surrendered to BOP on February 22, 2022,

23 and defendant’s full Heath Services History & Physical administered

24 on April 7, 2022. I find no record indicating that defendant has

25 tested positive for COVID-19 or reported suffering from COVID-19

26 illness while in BOP custody.

27 5. Because defendant’s medical reports contain confidential

28 medical information concerning defendant not otherwise made public in

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 17 of 27 Page ID #:729

1 his motion, the government will file them under seal and reference

2 them in the government’s response and this declaration as “See

3 Exhibit [] (under seal).” Attached to this declaration are Exhibits

4 1 and 11, while Exhibits 2 through 10 are filed under seal.

5 6. Defendant declined the MODERNA COVID-19 vaccine offered to

6 him by BOP on March 23, 2022, as reported in defendant’s signed

7 COVID-19 Vaccine Consent – Inmate form. See Exhibit 2 (under seal).

8 7. Defendant’s current health problems are (1) allergic

9 rhinitis and (2) a deviated nasal septum, as reflected in his Health
10 Service Health Problems report for conditions diagnosed on April 7,
11 2022. See Exhibit 3 (under seal). These are, of course, the same
12 health conditions claimed by defendant in his compassionate release

13 motion.

14 8. Defendant’s compassionate release motion at page 34

15 includes, marked as B4, the first page of his BOP Individualized

16 Needs Plan – Program Review. As this report shows, defendant’s

17 Medical Duty Status Assignments are regular duty, with no medical

18 restrictions. This reports also shows that defendant’s Current Case

19 Assignments are “Care 1 Healthy or Simple Chronic Care,” which BOP

20 Attorney Wilson advised me is the lowest level of health care BOP

21 deems typically needed by a healthy inmate.

22 9. Defendant’s most recent full health examination by BOP is

23 reflected in his Health Services History & Physical report for April

24 7, 2022, conducted and prepared by a BOP MLP (mid-level practitioner)

25 medical staff member. See Exhibit 4 (under seal). In addition, a

26 Health Services Clinical Encounter report on April 7, 2022, indicates

27 defendant was also evaluated at that time by the same medical staff

28 member responding to defendant’s chief complaint of bleeding from his

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 18 of 27 Page ID #:730

1 nose, with a reported history of chronic nasal allergies for years

2 and sinus problems. Defendant was prescribed medication (nasal

3 spray) and referred to Radiology for X-Rays of his sinuses, with

4 follow-up at Sick Call as needed. See Exhibit 5 (under seal).

5 Subsequent X-Rays of defendant’s sinuses found his sinuses clear,

6 with no radiographic evidence for sinusitis. See Exhibit 6 (under

7 seal).

8 10. Defendant had a Psychology Services Intake Screening by BOP

9 on May 12, 2022. In this screening, defendant endorsed no current
10 mental health symptoms, denied the need for mental health services,
11 reported he is adjusting to the institution, and denied having any
12 issues on the compound. Defendant was specifically screened for Risk
13 of Sexual Victimization and Abusiveness, and asked if he had ever
14 been the victim of sexual abuse or harassment while in custody, to
15 which defendant responded, “No.” See Exhibit 7 (under seal).
16 11. BOP records reflect that on July 7, 2022, defendant -- for

17 the first time -- reported to BOP Health Services that he was having

18 trouble sleeping and a lot of depression due to his physical health

19 examination on April 7, 2022. Defendant claimed that mental anguish

20 and trauma he had suffered years ago from sexual assaults had been

21 brought back when he had come in for an exam for rhinitis and was

22 asked to strip down and then a comment was made about defendant being

23 circumcised. The BOP registered nurse to whom defendant complained

24 assessed that defendant had no signs or symptoms of physical injury

25 and no complaints of physical pain. She provided defendant Access to

26 Care counseling and told defendant to follow-up at Sick Call as

27 needed. The foregoing is reported in a Health Services Clinical

28 Encounter dated July 7, 2022. See Exhibit 8 (under seal).

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 19 of 27 Page ID #:731

1 12. As reflected in a Psychology Services Sexual Abuse

2 Intervention report dated July 7, 2022, defendant was also

3 interviewed by a BOP Psychologist about the alleged sexual abuse

4 incident and claimed that he was reminded of it after watching a PREA

5 (Prisoners Rape Elimination Act) video. Defendant reported that he

6 did not endorse any mental health symptoms but had been staying in

7 his cell more than usual. Defendant declined advocate services

8 offered by the BOP Psychologist, as well as offered contact

9 information for both local and national sexual abuse service.
10 Defendant denied fear of retaliation. Defendant was placed on the
11 waitlist for the trauma and resilience workshop. See Exhibit 9
12 (under seal).
13 13. Defendant thereafter alleged staff sexual misconduct to BOP

14 and requested a transfer as an administrative remedy, by claiming

15 that during his physical examination on April 7, 2022, the BOP

16 medical staff member unnecessarily instructed defendant to “drop my

17 pants” and “complemented my penis,” and allegedly made lewd gestures.

18 (Defendant repeated this description of alleged sexual abuse by the

19 BOP medical staff member in his compassionate release motion. Dkt.

20 92, pages 6-7.) After review, BOP denied and closed defendant’s

21 administrative remedy claim on November 17, 2022. See Exhibit 10

22 (under seal).

23 14. The BOP report form used by medical staff for defendant’s

24 health examination on April 7, 2022, provides for medical staff to

25 examine defendant’s genitalia as a routine part of the exam. See

26 Exhibit 4 (under seal) page 10. A complete medical examination of

27 defendant is not optional. BOP Program Statement 5290.15 at page 4

28 provides that after an inmate’s intake screening, a complete medical

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 20 of 27 Page ID #:732

1 evaluation is subsequently conducted in accordance with BOP’s Health

2 Services Manual. https://www.bop.gov/policy/progstat/5290_015.pdf

3 [accessed May 3, 2023].

4 15. In my review of defendant’s records provided by BOP

5 Attorney Wilson, I could find no specific allegation by defendant

6 that he had experienced any physical sexual contact with or touching

7 of a sexual nature by BOP medical staff, or any evidence that would

8 show defendant was a victim of such sexual abuse.

9 16. In my review of defendant’s BOP records, I found no medical
10 record indicating that defendant is suffering from a serious physical
11 or medical condition, suffering from a serious functional or
12 cognitive impairment, or experiencing deteriorating physical or
13 mental health because of the aging process, that substantially
14 diminishes defendant’s ability to provide self-care within the
15 environment of FBI Victorville Medium 1 and from which defendant is
16 not expected to recover. As noted above, defendant’s own exhibit
17 indicates he has been cleared for regular duty by BOP, with no
18 medical restrictions.

19 17. Attached as Exhibit 11 is a Finance History report for

20 defendant, provided to me by AUSA Robert Lester of this Office’s

21 Asset Forfeiture and Recover Section. At my request, AUSA Lester

22 retrieved this report from the Department of Justice system for

23 monitoring payments by convicted defendants. The report shows that

24 to date defendant’s payments to satisfy his ordered $1,302,550

25 restitution, $20,000 fine, and $100 special assessment total only

26 $225.

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 21 of 27 Page ID #:733

1 I declare under penalty of perjury that the foregoing is true and

2 correct to the best of my knowledge and belief, and that I signed

3 this declaration on May 5, 2023, in Los Angeles, California.

5 s/ Richard E. Robinson
RICHARD E. ROBINSON
6

9
10

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 22 of 27 Page ID #:734

9
10
EXHIBIT 1
11

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 23 of 27 Page ID #:735
LOSA0 * PUBLIC INFORMATION * 04-21-2023
PAGE 001 * INMATE DATA * 07:20:54
AS OF 04-21-2023

REGNO..: 21355-509 NAME: KANYIKE, HASSAN

RESP OF: VIM
PHONE..: 760-246-2400 FAX: 760-246-2461
RACE/SEX...: BLACK / MALE
AGE: 31
PROJ REL MT: GOOD CONDUCT TIME RELEASE PAR ELIG DT: N/A
PROJ REL DT: 09-19-2025 PAR HEAR DT:

G0002 MORE PAGES TO FOLLOW . . .

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 24 of 27 Page ID #:736
LOSA0 * PUBLIC INFORMATION * 04-21-2023
PAGE 002 * INMATE DATA * 07:20:54
AS OF 04-21-2023

REGNO..: 21355-509 NAME: KANYIKE, HASSAN

RESP OF: VIM
PHONE..: 760-246-2400 FAX: 760-246-2461
FSA ELIGIBILITY STATUS IS: ELIGIBLE

THE FOLLOWING SENTENCE DATA IS FOR THE INMATE'S CURRENT COMMITMENT.

HOME DETENTION ELIGIBILITY DATE....: 11-04-2024

FINAL STATUTORY RELEASE FOR INMATE.: 09-19-2025 VIA GCT REL
WITH APPLIED FSA CREDITS.: 165 DAYS
THE INMATE IS PROJECTED FOR RELEASE: 04-07-2025 VIA FSA REL

----------------------CURRENT JUDGMENT/WARRANT NO: 010 ------------------------

COURT OF JURISDICTION...........: CALIFORNIA, CENTRAL DISTRICT
DOCKET NUMBER...................: LACR 21-00081-VAP
JUDGE...........................: PHILLIPS
DATE SENTENCED/PROBATION IMPOSED: 11-15-2021
DATE COMMITTED..................: 02-22-2022
HOW COMMITTED...................: US DISTRICT COURT COMMITMENT
PROBATION IMPOSED...............: NO

FELONY ASSESS MISDMNR ASSESS FINES COSTS
NON-COMMITTED.: $100.00 $00.00 $00.00 $00.00

RESTITUTION...: PROPERTY: NO SERVICES: NO AMOUNT: $1,302,550.00

-------------------------CURRENT OBLIGATION NO: 010 ---------------------------
OFFENSE CODE....: 820 COMMUNICATIONS ACT
OFF/CHG: 18:1343 WIRE FRAUD

SENTENCE PROCEDURE.............: 3559 PLRA SENTENCE
SENTENCE IMPOSED/TIME TO SERVE.: 51 MONTHS
TERM OF SUPERVISION............: 3 YEARS
DATE OF OFFENSE................: 06-30-2020

G0002 MORE PAGES TO FOLLOW . . .

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 25 of 27 Page ID #:737
LOSA0 * PUBLIC INFORMATION * 04-21-2023
PAGE 003 OF 003 * INMATE DATA * 07:20:54
AS OF 04-21-2023

REGNO..: 21355-509 NAME: KANYIKE, HASSAN

RESP OF: VIM
PHONE..: 760-246-2400 FAX: 760-246-2461
-------------------------CURRENT COMPUTATION NO: 010 --------------------------

COMPUTATION 010 WAS LAST UPDATED ON 02-25-2022 AT DSC AUTOMATICALLY
COMPUTATION CERTIFIED ON 03-01-2022 BY DESIG/SENTENCE COMPUTATION CTR

THE FOLLOWING JUDGMENTS, WARRANTS AND OBLIGATIONS ARE INCLUDED IN
CURRENT COMPUTATION 010: 010 010

DATE COMPUTATION BEGAN..........: 02-22-2022
TOTAL TERM IN EFFECT............: 51 MONTHS
TOTAL TERM IN EFFECT CONVERTED..: 4 YEARS 3 MONTHS
EARLIEST DATE OF OFFENSE........: 06-30-2020

JAIL CREDIT.....................: FROM DATE THRU DATE
12-08-2020 12-22-2020

TOTAL PRIOR CREDIT TIME.........: 15
TOTAL INOPERATIVE TIME..........: 0
TOTAL GCT EARNED AND PROJECTED..: 229
TOTAL GCT EARNED................: 54
STATUTORY RELEASE DATE PROJECTED: 09-19-2025
ELDERLY OFFENDER TWO THIRDS DATE: 12-06-2024
EXPIRATION FULL TERM DATE.......: 05-06-2026
TIME SERVED.....................: 1 YEARS 2 MONTHS 15 DAYS
PERCENTAGE OF FULL TERM SERVED..: 28.3
PERCENT OF STATUTORY TERM SERVED: 33.2

PROJECTED SATISFACTION DATE.....: 04-07-2025
PROJECTED SATISFACTION METHOD...: FSA REL
WITH FSA CREDITS INCLUDED...: 165

G0000 TRANSACTION SUCCESSFULLY COMPLETED

Case 2:21-cr-00081-VAP Document 95 Filed 05/03/23 Page 26 of 27 Page ID #:738

9
EXHIBIT 11
10

Case 2:21-cr-00081-VAP
5/1/23, 1:57 PM Document 95 Filed 05/03/23
Liability/Debtor Page 27 of 27 Page ID #:739

Finance History
Name CDCS Number Original Liability Current Liability Judgment Date Life Cycle Status
Hassan Kanyike 2021A23436 $1,322,650.00 $1,322,425.00 11/15/2021 ASGND

Posting Effective Related
Code Form Amount Seq User Office District PC
Date Date Seq

04/19/23 03/13/23 PMNT CB -$25.00 000012 CDCS % %

01/14/23 12/12/22 PMNT CB -$25.00 000010 PEGA_SCHEDU % %

10/25/22 09/12/22 PMNT CB -$25.00 000008 PEGA_SCHEDU % %

07/15/22 06/13/22 PMNT CB -$25.00 000006 PEGA_SCHEDU % %

04/22/22 03/11/22 PMNT CB -$25.00 000004 PEGA_SCHEDU % %

12/21/21 12/17/21 PMNT CL -$100.00 000003 PEGA_SCHEDU % %

11/22/21 11/22/21 IMPO $1,322,650.00 000001 LLIN USAO CAC

https://cdcs.doj.gov/prweb/sso2/app/CDCS_/KR8CFQVUbW0*/!TABTHREAD1?pyActivity=%40baseclass.pzProcessURLInWindow&Prompt=false&Pri… 1/1

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Government’s Opposition to Defendant’s Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) — United States v. Kanyike (Dkt. 95, C.D. Cal.)

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