Order Granting Motion for Reduction of Sentence to Home Confinement — USA v. Ozkar (N.D. Cal., Dkt. 54)

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An Order Granting Motion for Reduction of Sentence to Home Confinement in USA v. OZKAR, Case No. 21-cr-00144-CRB-1, Case 3:21-cr-00144-CRB, Document 54, filed 08/23/22, in the U.S. District Court for the Northern District of California. The order states that after surrendering to the Bureau of Prisons and exhausting remedies, Defendant Ester Ozkar renewed a motion for a reduced sentence, citing a new diabetes diagnosis and an elevated risk of COVID-19. In its discussion, the court concludes that these circumstances constitute an extraordinary and compelling reason under 18 U.S.C. § 3582(c)(1)(A) and grants the motion. It states that the defendant obtained $483,132 through eight fraudulent applications for PPP and EIDL Advance and was sentenced to 12 months and 1 day. The signature block names Charles R. Breyer.

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“Order Granting Motion for Reduction of Sentence to Home Confinement — USA v. Ozkar (N.D. Cal., Dkt. 54).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-n-d-cal-no-3-21-cr-00144-dkt-54-n-d-cal-1752427f32/, SHA-256 2fd3c7b1bc8185c913d377af89565e6c884be35783094d740d958e2358c7561f.

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Case 3:21-cr-00144-CRB Document 54 Filed 08/23/22 Page 1 of 6

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5 IN THE UNITED STATES DISTRICT COURT
6 FOR THE NORTHERN DISTRICT OF CALIFORNIA
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8 USA, Case No. 21-cr-00144-CRB-1
9 Plaintiff,
ORDER GRANTING MOTION FOR
10 v. REDUCTION OF SENTENCE TO
HOME CONFINEMENT
11 OZKAR,
Defendant.

United States District Court
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13 On April 4, 2022, the Court denied Defendant Ester Ozkar’s motion for a reduced
14 sentence because he was not in custody, and “compassionate relief is not available to
15 defendants prior to incarceration.” See Order Denying Compassionate Release (dkt. 45)

Northern District of California
16 (quoting United States v. Fower, 30 F.4th 823 (9th Cir. 2022)). After surrendering to BOP
17 and exhausting his remedies, Ozkar renewed his motion, arguing that his elevated risk of
18 COVID-19 from his high cholesterol and new diabetes diagnosis, in combination with the
19 conditions themselves, justify a reduction of his custodial sentence to home confinement.
20 See Mot. (dkt 46); Reply (dkt. 51). The Court GRANTS his motion.
21 I. BACKGROUND
22 At the start of the COVID-19 pandemic, Ozkar was in debt to the Internal Revenue
23 Service. Instead of liquidating his cryptocurrency to help pay his debts, he obtained
24 $483,132 through eight fraudulent applications for PPP and EIDL Advance, federal
25 programs that provided COVID-19 relief for suffering small businesses. Ozkar later
26 rendered substantial cooperation to the government and pleaded guilty to making a false
27 statement to a financial institution in violation of 18 U.S.C. § 1014. Dkts. 7, 8.
28 The applicable Sentencing Guidelines range was 21 to 27 months. The government
Case 3:21-cr-00144-CRB Document 54 Filed 08/23/22 Page 2 of 6

1 asked for a custodial sentence of 14 months in light of his substantial cooperation. See
2 Gov’t Memorandum (dkt. 22). The probation officer recommended a custodial sentence of
3 12 months. PSR (dkt. 23). Ozkar argued that the Court should impose only home
4 confinement. Ozkar Memorandum (dkt. 21). The Court noted that many aspects of this
5 case could support a sentence of home confinement, including Ozkar’s low risk of
6 recidivism, his advanced age (67 years old), his lack of criminal history, and his
7 cooperation with the government. See generally Transcript (dkt. 32). But the Court
8 imposed a custodial sentence of 12 months and 1 day largely for general deterrence of
9 white-collar crime. See id.; Judgment (dkt. 25), Statement of Reasons (dkt. 26).
10 In January 2022, before Ozkar was in custody, he moved for a reduced sentence of
11 home confinement because of his recent diagnoses for diabetes and elevated cholesterol.
First Mot. (dkt. 37). Counsel explained that, “[a]t the time of sentencing, it was unknown

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13 to counsel and the Court that Mr. Ozkar suffered from these conditions as Mr. Ozkar had
14 not been to the doctors for many years. However, with the imposition of a custodial
15 sentence and the onset of insomnia, Mr. Ozkar had to consult a doctor for medical

Northern District of California
16 treatment,” and tests revealed that he was diabetic. Id. at 2. On April 4, the Court denied
17 Ozkar’s motion because he was not yet in custody. See Order Denying Compassionate
18 Release. The Court did not reach whether his circumstances might otherwise qualify him
19 for release. Id.
20 Ozkar then self-surrendered to USP Atwater on April 26 and, on May 16, requested
21 that the warden reduce his sentence to home confinement. Mot. Ex A. After the warden
22 did not respond for 30 days, Ozkar filed this motion. Mot. at 2.
23 Ozkar is vaccinated and boosted. Karwande Decl. Ex 1. However, “his medical
24 conditions have worsened, he has received inadequate care at USP Atwater, and COVID-
25 19 is on the rise in the community.” Mot. at 1. For a few months after his diagnosis and
26 prior to his incarceration, Ozkar was receiving treatment for diabetes and high cholesterol.
27 Id. at 2. After being taken into custody, he was not provided with any medications for 18
28 days. Id. He has since been provided these medications. Id. He told his wife that, while
2
Case 3:21-cr-00144-CRB Document 54 Filed 08/23/22 Page 3 of 6

1 working in extreme heat one day, he couldn’t talk for a while, had numbness in his arm,
2 and fainted. Id.; see Mot. Ex. D (dkt. 46-4). As of the filing of the renewed motion, Ozkar
3 was waiting on a refill of his medications. Mot. at 3.
4 II. LEGAL STANDARD
5 A defendant may only move for relief under 18 U.S.C. § 3582(c)(1)(A) if he has
6 “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons” to
7 bring the motion on his behalf, or after “the lapse of 30 days from the receipt of such a
8 request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C.
9 § 3582(c)(1)(A).
10 “[A]fter considering” the sentencing factors from 18 U.S.C. § 3553(a) “to the extent
11 that they are applicable,” a court may grant the motion to reduce the defendant’s sentence
in one of two circumstances. First, it may grant the motion “if it finds that . . .

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13 extraordinary and compelling reasons warrant such a reduction.” Id.
14 § 3582(c)(1)(A)(i). Second, it may grant the motion if the defendant is at least 70 years of
15 age, and meets other conditions not applicable here. See id. § 3582(c)(1)(A)(ii).

Northern District of California
16 The Sentencing Commission has promulgated a policy statement articulating
17 circumstances that constitute “extraordinary and compelling reasons” to reduce a
18 sentence. U.S.S.G. § 1B1.13 cmt n.1. But because the Commission promulgated this
19 policy statement before Congress authorized defendants to file compassionate release
20 motions, the statement is not “binding” as to motions brought by defendants. United States
21 v. Aruda, 993 F.3d 797, 801-02 (9th Cir. 2021). Nonetheless, the policy statement “may
22 inform a district court’s discretion.” Id., see, e.g., United States v. Rekhi, 2021 WL
23 411376, at *2-3 (N.D. Cal. Feb. 4, 2021).
24 The policy statement lists five circumstances that establish “extraordinary and
25 compelling reasons.” First, the standard is satisfied if “[t]he defendant is suffering from a
26 terminal illness (i.e., a serious and advanced illness with an end of life
27 trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). Second, it is satisfied by “a serious
28 physical or medical condition, . . . serious functional or cognitive impairment, or . . .
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Case 3:21-cr-00144-CRB Document 54 Filed 08/23/22 Page 4 of 6

1 deteriorating physical or mental health because of the aging process . . . that substantially
2 diminishes the ability of the defendant to provide self-care within the environment of a
3 correctional facility and from which he or she is not expected to recover.” Id. § 1B1.13
4 cmt. n.1(A)(ii). Third, the standard is met if “[t]he defendant (i) is at least 65 years old;
5 (ii) is experiencing a serious deterioration in physical or mental health because of the aging
6 process; and (iii) has served at least 10 years or 75 percent of his or her term of
7 imprisonment, whichever is less.” Id. § 1B1.13 cmt. n.1(B). Fourth, the standard is
8 satisfied if family circumstances requiring the defendant to care for minor children or a
9 spouse or registered partner. Id. § 1B1.13 cmt. n.1(C). Finally, a catch-all provides for
10 relief if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the
11 defendant’s case an extraordinary and compelling reason other than, or in combination
with, the reasons described in subdivisions (A) through (C).” Id. § 1B1.13 cmt. n.1(D).

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13 The policy statement also sensibly concluded that a court should reduce a sentence
14 only if it finds that “[t]he defendant is not a danger to the safety of any other person or to
15 the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). Courts “take

Northern District of California
16 into account” four factors when determining dangerousness: (1) “the nature and
17 circumstances of the offense charged,” (2) “the weight of the evidence against the person,”
18 (3) “the history and characteristics of the person,” and (4) “the nature and seriousness of
19 the danger to any person or the community that would be posed by the person’s
20 release.” 18 U.S.C. § 3142(g).
21 III. DISCUSSION
22 The Court concludes that the revelation of Ozkar’s diabetes, combined with his age
23 and the increased risk of COVID-19, constitutes an “extraordinary and compelling
24 reason” under § 3582(c)(1)(A). Because the sentencing factors permit a reduction in
25 sentence and Ozkar is not dangerous, the Court reduces Ozkar’s sentence to home
26 confinement.
27 1. Extraordinary and Compelling Reason
28 Although this case does not perfectly fit one of the circumstances of the Sentencing
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Case 3:21-cr-00144-CRB Document 54 Filed 08/23/22 Page 5 of 6

1 Commission’s nonbinding policy statement, Ozkar’s new diagnosis of diabetes combined
2 with his advanced age and the seriousness of the COVID-19 pandemic justify a reduction
3 to home confinement. It is true that Ozkar is fully vaccinated and boosted, which reduces
4 the risk of more serious symptoms. See United States v. Chambers, 2021 WL 4951444, at
5 *4 (N.D. Cal. Oct. 25, 2021). Nonetheless, advanced age and diabetes significantly
6 increase one’s risk of COVID-19. See Centers for Disease Control, People With Certain
7 Medical Conditions (May 2, 2022), https://www.cdc.gov/coronavirus/2019-ncov/need-
8 extra-precautions/people-with-medical-conditions.html (“Having either type 1 or type 2
9 diabetes can make you more likely to get very sick from COVID-19.”). At the time of
10 sentencing in December 2021, Ozkar’s advanced age was before the Court, but Ozkar’s
11 diabetes was diagnosed only later. See PSR (stating that Ozkar had “reported no major
health issues”). The Court concludes that Ozkar meets the standards of “extraordinary and

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13 compelling reasons” in the Commission’s policy statement. U.S.S.G. § 1B1.13 cmt. n.1.1
14 2. Sentencing Factors
15 Further, the Court concludes that compassionate release is appropriate under the

Northern District of California
16 sentencing factors in 18 U.S.C. § 3553(a). Section 3553(a)(2) notes “the need for the
17 sentence imposed[] to reflect the seriousness of the offense, to promote respect for the law,
18 and to provide just punishment for the offense” and “to afford adequate deterrence to
19 criminal conduct.” At sentencing, when considering Ozkar’s unique history and
20 characteristics, the Court emphasized that other facts could support a non-custodial
21 sentence but these factors militated for custody. The Court explained that “it’s rare in a
22 white-collar case that I [find] home confinement appropriate” because of the importance of
23 “general deterrence” of white-collar fraud. See Transcript at 22-23. The Court persists in
24 its view that general deterrence of white-collar fraud requires custodial time in all but
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While Ozkar alleges that BOP failed to get him his medications in his first few months of
27 incarceration, the Court’s finding of an “extraordinary and compelling reason” is not based on this
allegation. This motion is not the proper procedural avenue for his complaint. See BOP Program
28 Statement 1330.18, available at https://www.bop.gov/policy/progstat/1330_018.pdf (describing
the BOP’s Administrative Remedy Program).
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1 “rare” instances. But now that Ozkar has now served approximately four months in
2 custody, this goal of general deterrence is satisfied. The Court continues to conclude that
3 the other sentencing factors permit a reduction to home confinement for the rest of the
4 sentence.
5 3. Other Factors
6 There is no dispute in this case that Ozkar exhausted his remedies. Further, the
7 Court finds (as the government does not dispute) that Ozkar, who was incarcerated for a
8 non-violent offense, is not a danger to the community. See 18 U.S.C. § 3142(g).
9 IV. CONCLUSION
10 For the foregoing reasons, the Court GRANTS Ozkar’s motion for reduction to
11 home confinement. As the probation office does not recommend any changes to the
conditions of supervised release that have already been approved, the Court simply adopts

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13 those conditions.
14 IT IS SO ORDERED.
15 Dated: August 23, 2022
CHARLES R. BREYER

Northern District of California
16 United States District Judge
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