Order — United States v. Moller (Dkt. 154, D.R.I.)

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An order by United States District Judge Mary S. McElroy in United States v. Michael Moller, No. 1:20-cr-00088-MSM, in the U.S. District Court for the District of Rhode Island, filed July 25, 2023 as Document 154. It recites that on October 14, 2021 Moller was sentenced for bank fraud to 70 months, three years of supervised release, $599,251 in restitution and a $100 assessment, consecutive to one year and one day for a probation violation, for 82 months and one day in all. It addresses his many post-sentencing motions, including seven for compassionate or immediate release, and restricts him from filing further documents challenging his conviction or sentence after about 111 filings in 18 months.

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Case 1:20-cr-00088-MSM-LDA       Document 154      Filed 07/25/23   Page 1 of 10 PageID #:
                                        1770



                        UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF RHODE ISLAND



  __________________________________________
                                            )
  UNITED STATES OF AMERICA                  )
                                            )
                    v.                      )          No. 1:20-cr-00088-MSM
                                            )
  MICHAEL MOLLER,                           )
                    Defendant.              )
  __________________________________________)



                                        ORDER


  Mary S. McElroy, United States District Judge.

  I.    INTRODUCTION

        On October 14, 2021, Michael Moller was sentenced for one count of bank fraud

  to a period of 70 months of incarceration, followed by three years of supervised

  release, $599,251 in restitution, and a $100 special assessment, as a result of a plea

  agreement. (ECF No. 14.) On the same day, he was sentenced on CR 20-81-MSM,

  for a violation of probation (imposed in connection with armed robbery), to one year

  and one day incarceration. The sentences were to be served consecutively, for an

  aggregated total of 82 months, one day. The Court agreed to Mr. Moller’s express

  request, agreed to by the government, to impose the violation sentence first, to be

  followed by the fraud sentence. Mr. Moller, who has a significant previous record of

  federal crimes and has served in federal prisons before, believed that he would have



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  a greater chance of being eligible for sentence reduction programs were the 70-month

  sentence to follow the one-year sentence instead of the other way around.

        Within two months Mr. Moller began filing motions for relief from the sentence

  and its execution, beginning with a Motion to be transferred to a different prison

  (ECF No. 44). That was followed a month later by his declaration that he intended

  to file a motion for compassionate release (ECF No. 45) and, ultimately, he filed seven

  motions for compassionate and/or immediate release (ECF Nos. 58, 81, 83, 92, 101,

  103, 120), along with motions to alter the judgment (ECF No. 68) and to vacate the

  sentence (ECF No. 130). 1 The government opposes compassionate release. (ECF No.

  61). A hearing was held on June 22, 2023, and Mr. Moller has since filed a motion

  for a second hearing and a Motion for Stay (ECF No. 148), as well as a motion to

  appoint counsel (ECF Nos. 150, 151).

        This Order DENIES all pending Motions, as explained below, and includes a

  direction to Mr. Moller that, with approximately 111 documents filed in the 18

  months after the date of sentencing, he is restricted from filing any additional

  documents challenging, modifying, or affecting his conviction or sentence without

  express permission of the Court.

        A.     COMPASSIONATE RELEASE


        The federal law governing imposition of sentence, 18 U.S.C. § 3582(c)(1)(A), as

  amended by the First Step Act (FSA), Pub. L. No. 115-391, § 603(b), 132 Stat. 5194,



  1 Many motions have been previously denied without prejudice (ECF No. 81, 83, 92,

  101, 103, text order of May 9, 2023).
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  5239 (2018) permits courts to reduce a term of imprisonment, once administrative

  remedies are exhausted, if it finds that “extraordinary and compelling reasons

  warrant such a reduction.” United States v. Graham, No. C.A. 13-cr-132-MSM, 2022

  WL 15434513, at *1 (D.R.I. Oct. 27, 2022), quoting 18 U.S.C. § 3582(c)(1)(A). Mr.

  Moller has exhausted his administrative remedies; his request has been denied by

  the Bureau of Prisons (“BOP”). (ECF No. 58-2). The Court must therefore review his

  motion to determine whether extraordinary and compelling reasons exist to warrant

  a sentence reduction and, if so, if such a reduction would be consistent with applicable

  policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A).

  “Put another way, the district court must find that the defendant's situation

  constitutes the type of ‘extreme hardship’ that the compassionate release statute is

  designed to ameliorate.” United States v. Saccoccia, 10 F.4th 1, 4 (1st Cir.

  2021) (quoting United States v. Havener, 905 F.2d 3, 6 (1st Cir. 1990)). Finally, “the

  district court must consider any applicable section 3553(a) factors and ‘determine

  whether, in its discretion, the reduction ... is warranted in whole or in part under the

  particular circumstances of the case.’” United Territories v. Texeira-Nieves, 23 F.4th

  48, 52 (1st Cir. 2022) (quoting Saccoccia, 10 F.4th at 4 (alteration in original)).

        18 U.S.C. § 3582(c)(1)(A)(i), vests this Court with the authority to modify a

  sentence of imprisonment if “extraordinary and compelling reasons warrant such a

  reduction.” “[O]nce a defendant shows that he has exhausted the Bureau of Prisons’

  administrative process for compassionate release, or thirty days have lapsed without

  a decision, whichever occurs first, a district court may reduce a defendant’s term of



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  imprisonment provided the court determines: (1) extraordinary and compelling

  reason warrant the reduction; (2) the defendant will not be a danger to the safety of

  any other person or the community; and (3) the sentencing factors outlined in 18

  U.S.C. § 3553(a) favor release.” United States v. Saad, No. 16-cr-00035-JJM, 2022

  WL 35806, *1 (D.R.I. Jan. 4, 2022) (internal citations omitted). The statute itself does

  not define “extraordinary and compelling reasons” that justify a sentence reduction

  or modification; therefore, any information the court finds relevant may be

  considered, with the explicit exception of that related only to rehabilitation. United

  States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022).         “[U]ntil the Sentencing

  Commission speaks, the only limitation on what can be considered an extraordinary

  and compelling reason to grant a prisoner-initiated motion is rehabilitation.” United

  States v. Trenkler, 47 F.4th 42, 48 (1st. Cir. 2022).

        [A] district court, reviewing a prisoner-initiated motion for
        compassionate release in the absence of an applicable policy
        statement, may consider any complex of circumstances raised by a
        defendant as forming an extraordinary and compelling reason
        warranting relief. It follows that a district court adjudicating such a
        motion may consider the FSA's non-retroactive amendments to the
        scope of the mandatory minimum penalties under section
        841(b)(1)(A) on a case-by-case basis grounded in a defendant's
        individualized circumstances to find an extraordinary and
        compelling reason warranting compassionate release.

  Id. at 47

        Mr. Moller’s Motion for Compassionate Release (ECF No. 58), which has been

  updated and renewed several times, is predicated largely on his medical condition as

  a diabetic. In the Affidavit accompanying his original motion, he contended that the

  institution in which he is confined was providing him substandard treatment, not

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  administering his insulin as prescribed, and not providing him with a diet

  appropriate for a diabetic. He has submitted medical records in support of his claims

  and the government has submitted updated records. (ECF No. 58-3, 80-2, 146.) More

  recent paperwork, while repeating the assertions of inadequate medical treatment,

  alleged that, among other ill effects, his vision is deteriorating. (ECF No. 103, at 4,

  130-2). Other motions cite additional burdens caused by his incarceration.

        To determine whether the circumstances in any case are extraordinary and

  compelling and warrant compassionate release, the Court relies on the plain meaning

  of the words. United States v. Canales-Ramos, 19 F.4th 561, 566 (1st. Cir. 2021).

          The plain meaning of "extraordinary" suggests that a qualifying
          reason must be a reason that is beyond the mine-run either in fact or
          in degree. See Webster's Third New International Dictionary of the
          English Language Unabridged 807 (1981) (defining "extraordinary" as
          "going beyond what is usual, regular, common, or customary"); see
          also United States v. Hunter, 12 F.4th 555, 562 (6th Cir. 2021)
          (suggesting that such reason must be "most unusual," "far from
          common," or "hav[e] little or no precedent"). By the same token, the
          plain meaning of "compelling" suggests that a qualifying reason must
          be a reason that is both powerful and convincing. See Webster's
          Third, supra at 462 (defining "compelling" as "forcing, impelling, [or]
          driving [circumstance]" and as "tending to convince or convert by or as
          if by forcefulness of evidence"); see also Hunter, 12 F.4th at 562.

  Canales-Ramos, 19 F.4th at 566-67. Mr. Moller has presented no circumstances that

  could fairly be deemed to be extraordinary and compelling. His health condition can

  be managed within the BOP and is not so extraordinary that continued care within

  the institution would be difficult or impossible.   In fact, in a proposal he has put

  forth to be confined at the Wyatt Detention Center, he praised the care there,

  reporting that his sugar was under control and his diet was good when confined at



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  Wyatt. (ECF No. 152.) If in fact he is receiving substandard medical care elsewhere,

  and if he can prove that, he has recourse to other remedies and early release is not

  the answer.    The Motion for Compassionate Release (ECF No. 58) is DENIED; the

  Motions to Supplement his filings regarding release (ECF No. 80), for expedited

  decision (ECF No. 111), and for Emergency Release (ECF No. 120) are also DENIED.

  The motion for a hearing (ECF No. 127) GRANTED pro forma, as the hearing was

  held on June 22, 2023. The Motion for updated medical records is DENIED as moot,

  as Mr. Moller submitted those records. (ECF No. 140, 146.)

        B.      MOTION TO VACATE AND RE-SENTENCE

        Mr. Moller has put forth an argument that because the expectations of the

  Court, defense, and the government when his sentence was imposed have not come

  to pass, he is entitled to re-sentencing to carry out what he terms “intent” of the Court

  and parties at the time. Failing compassionate release, his fallback position is that

  he should be re-sentenced to a single 82-month term. 2

        At the original sentencing much attention was given to the ordering of the two

  sentences: one year and a day on the probation violation, and 70 months on the bank

  fraud. Mr. Moller requested that the fraud sentence be consecutive to the violation

  sentence, and not the other way around. (ECF No. 76, at 39.) He was convinced that

  if that were the ordering, he would be eligible for reductions in the time he had to

  serve under the First Step Act and because he would be eligible for the Residential


  2 The government does not, in the abstract, object a single 82-month term, but it does

  not agree with the bases of Mr. Moller’s arguments that he is entitled to that result.
  (ECF No. 128.)

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  Drug Abuse Program (“RDAP”) 3 which carried a possible one-year reduction. Thus,

  he believed, the ordering of the sentences the way he wanted would give him the

  potential of two years off the pronounced incarceration term. (ECF No. 76, at 39,

  42.) 4

           The government did not object and the Court complied. Now Mr. Moller

  complains that he has not been found eligible for these reductions and, although he

  still prefers compassionate release, he requests that the Court vacate the sentences

  and impose a single 82-month and one day sentence which he believes would cement

  his eligibility. (ECF No. 152.)

           As to eligibility for First Step reduction, the government represented at the

  hearing that, based on its lengthy discussion with the BOP, it appears that Mr. Moller

  has in fact received reductions under the First Step Act and may receive more. While

  Mr. Moller refutes that representation, he could not produce any documentation from

  the BOP supporting his belief, and the Court accepts the representation of the



  3 RDAP is a federal program that operates residential-based treatment within larger

  prison facilities. A reduction in time to serve is possible of up to one year. “Offenders
  live in a unit separate from general population; they participate in half-day
  programming and half-day work, school, or vocational activities. RDAP is typically
  nine months in duration.”              https://www.bop.gov/inmates/custody_and_care/
  substance_abuse_treatment.jsp

  4 He also contends that even with his own experience serving federal time and
  navigating that system, and even though he himself requested the ordering of the
  sentences based on his professed knowledge of federal calculations and eligibility, it
  was his counsel’s fault for not knowing better and overriding his wishes. (ECF No.
  130.) The Court does not agree. Clearly, based on the prosecutor’s discussions
  directly with the Bureau of Prisons, which he described at the June 22, 2023, hearing,
  this is a complicated administrative matter and cannot be predicted with certainty at
  the time of sentencing.
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  government. As to reductions for participation in the RDAP program, there are two

  reasons why the Court is not willing to alter the sentence on that account. First, Mr.

  Moller admits that he told the BOP he had no substantive drug abuse problem; an

  existing substance abuse disorder, not surprisingly, is a requirement of eligibility. It

  appears to have been that representation that affected his eligibility, not the ordering

  of the sentences. While Mr. Moller has an explanation for why he said that, and even

  if there were some tactical advantages that prompted him to do so, that was

  something over which he had control and he can perhaps correct the BOP

  understanding if it is in error. Second, there is a disconnect in terms. At sentencing,

  Mr. Moller’s concern was eligibility for the program. It does not appear that the

  ordering of sentences affects his eligibility: it may affect whether he receives credit

  for completion of the program because it is not automatic. Persons whose current or

  past criminal history includes a serious violent offense are eligible to participate but

  are ineligible for a sentence reduction. 5 Mr. Moller’s history includes armed robbery,

  the crime giving rise to the probation violation at issue here.

        Mr. Moller appears to be eligible to participate in the program, for the obvious

  benefit of drug abuse treatment whether he receives a sentence reduction or not. All

  that he could have expected when the Court granted his preferred ordering of

  sentences was to be considered eligible for participation. The Court does not control,

  and made no representations about, his ability to actually obtain reductions. For that




  5 https://oig.justice.gov/reports/BOP/e302/app1.html#:~:text=An%20%20inmate

  %20must%20meet%20%2C%20(5)%20serving%20a%20
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  reason, the Court sees no disparity between what was anticipated, and may have

  been intended, at the sentencing and the reality that has played out. The Motion to

  Vacate (ECF No. 130) is DENIED.         The Motions for retroactive application of

  sentencing guidelines are DENIED (ECF Nos. 71, 73), as is the Motion to Stay

  Decision and for leave to submit a post-hearing Memorandum (ECF No. 148). The

  Motions for a second evidentiary hearing, and for appointment of counsel are

  DENIED. (ECF No. 150, 151.) Finally, Mr. Moller’s Proposal for a resolution of this

  conflict is noted, but not accepted. (ECF No. 152.)

        C.     FINAL NOTE

        Mr. Moller has learned the hard way of the additional punishments criminal

  activity imposes, beyond confinement. His most recent motion recounts that he was

  in jail in 2011 when one of his brothers committed suicide and he was unable to grieve

  with his family. Very recently, a second brother died, and he learned of the death by

  telephone. (ECF No. 103, at 1.) While the Court understands that these secondary

  effects of confinement can be emotionally devastating, the separation from his family

  at a time when it needed him apparently had little effect on his behavior in 2011, as

  he was confined again when his second brother died. The Court is sympathetic, but

  separation from family, and the “helpless” feeling that Mr. Moller reports, Id., is

  intrinsic to incarcerative punishment for crime and not a reason warranting early

  release.




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 IT IS SO ORDERED:




 ____________________________________
 Mary S. McElroy,
 United States District Judge


 Date: July 25, 2023




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