Amended Order Granting Motion for Reduction of Sentence — USA v. Ozkar (N.D. Cal., Dkt. 55, August 25, 2022)

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An Amended Order Granting Motion for Reduction of Sentence in USA v. OZKAR, Case No. 21-cr-00144-CRB-1, Case 3:21-cr-00144-CRB, Document 55, filed 08/25/22, in the U.S. District Court for the Northern District of California. A footnote states that the order amends the court's order of August 23, 2022 (Dkt. 54). The court grants Defendant Ester Ozkar's renewed motion and reduces the sentence to time served. It orders an additional eight months of supervised release with the special condition of home incarceration, after which the three-year term of supervised release commences as originally ordered, and directs the Bureau of Prisons to release the defendant. The signature block names Charles R. Breyer, United States District Judge.

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“Amended Order Granting Motion for Reduction of Sentence — USA v. Ozkar (N.D. Cal., Dkt. 55, August 25, 2022).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-n-d-cal-no-3-21-cr-00144-dkt-55-n-d-cal-78e91346d6/, SHA-256 e292e56d3da350b967e41a0f33e90548f8a099038e86bb4d08954d1c123b5a6b.

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Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 1 of 7

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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,
AMENDED ORDER GRANTING
10 v. MOTION FOR REDUCTION OF
SENTENCE
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 the 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 sentence. See Mot. (dkt 46); Reply (dkt.
20 51). The Court GRANTS Ozkar’s motion and reduces his sentence to time served. The
21 Court amends the terms of his supervised release to begin with an additional term of eight
22 months during which the Court imposes the condition of home incarceration.1
23 I. BACKGROUND
24 At the start of the COVID-19 pandemic, Ozkar was in debt to the Internal Revenue
25 Service. Instead of liquidating his cryptocurrency to help pay his debts, he obtained
26 $483,132 through eight fraudulent applications for PPP and EIDL Advance, federal
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28 1
This order amends the Court’s order of August 23, 2022. Dkt. 54.
Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 2 of 7

1 programs that provided COVID-19 relief for suffering small businesses. Ozkar later
2 rendered substantial cooperation to the government and pleaded guilty to making a false
3 statement to a financial institution in violation of 18 U.S.C. § 1014. Dkts. 7, 8.
4 The applicable Sentencing Guidelines range was 21 to 27 months. The government
5 asked for a custodial sentence of 14 months in light of his substantial cooperation. See
6 Gov’t Memorandum (dkt. 22). The probation officer recommended a custodial sentence of
7 12 months. PSR (dkt. 23). Ozkar argued that the Court should impose only home
8 confinement. Ozkar Memorandum (dkt. 21). The Court noted that many aspects of this
9 case could support a sentence of home confinement, including Ozkar’s low risk of
10 recidivism, his advanced age (67 years old), his lack of criminal history, and his
11 cooperation with the government. See generally Transcript (dkt. 32). But the Court
imposed a custodial sentence of 12 months and 1 day largely for general deterrence of

United States District Court
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13 white-collar crime. See id.; Judgment (dkt. 25), Statement of Reasons (dkt. 26).
14 In January 2022, before Ozkar was in custody, he moved for a reduced sentence
15 because of his recent diagnoses for diabetes and elevated cholesterol. First Mot. (dkt. 37).

Northern District of California
16 Counsel explained that, “[a]t the time of sentencing, it was unknown to counsel and the
17 Court that Mr. Ozkar suffered from these conditions as Mr. Ozkar had not been to the
18 doctors for many years. However, with the imposition of a custodial sentence and the
19 onset of insomnia, Mr. Ozkar had to consult a doctor for medical treatment,” and tests
20 revealed that he was diabetic. Id. at 2. On April 4, the Court denied Ozkar’s motion
21 because he was not yet in custody. See Order Denying Compassionate Release. The
22 Court did not reach whether his circumstances might otherwise qualify him for release. Id.
23 Ozkar then self-surrendered to USP Atwater on April 26 and, on May 16, requested
24 that the warden reduce his sentence. Mot. Ex A. After the warden did not respond for 30
25 days, Ozkar filed this motion. Mot. at 2.
26 Ozkar is vaccinated and boosted. Karwande Decl. Ex 1. However, “his medical
27 conditions have worsened, he has received inadequate care at USP Atwater, and COVID-
28 19 is on the rise in the community.” Mot. at 1. For a few months after his diagnosis and
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Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 3 of 7

1 prior to his incarceration, Ozkar was receiving treatment for diabetes and high cholesterol.
2 Id. at 2. After being taken into custody, he was not provided with any medications for 18
3 days. Id. He has since been provided these medications. Id. He told his wife that, while
4 working in extreme heat one day, he couldn’t talk for a while, had numbness in his arm,
5 and fainted. Id.; see Mot. Ex. D (dkt. 46-4). As of the filing of the renewed motion, Ozkar
6 was waiting on a refill of his medications. Mot. at 3.
7 II. LEGAL STANDARD
8 A defendant may only move for relief under 18 U.S.C. § 3582(c)(1)(A) if he has
9 “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons” to
10 bring the motion on his behalf, or after “the lapse of 30 days from the receipt of such a
11 request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C.
§ 3582(c)(1)(A).

United States District Court
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13 “[A]fter considering” the sentencing factors from 18 U.S.C. § 3553(a) “to the extent
14 that they are applicable,” a court may grant the motion to reduce the defendant’s sentence
15 in one of two circumstances. First, it may grant the motion “if it finds that . . .

Northern District of California
16 extraordinary and compelling reasons warrant such a reduction.” Id.
17 § 3582(c)(1)(A)(i). Second, it may grant the motion if the defendant is at least 70 years of
18 age, and meets other conditions not applicable here. See id. § 3582(c)(1)(A)(ii).
19 The Sentencing Commission has promulgated a policy statement articulating
20 circumstances that constitute “extraordinary and compelling reasons” to reduce a
21 sentence. U.S.S.G. § 1B1.13 cmt n.1. But because the Commission promulgated this
22 policy statement before Congress authorized defendants to file compassionate release
23 motions, the statement is not “binding” as to motions brought by defendants. United States
24 v. Aruda, 993 F.3d 797, 801-02 (9th Cir. 2021). Nonetheless, the policy statement “may
25 inform a district court’s discretion.” Id., see, e.g., United States v. Rekhi, 2021 WL
26 411376, at *2-3 (N.D. Cal. Feb. 4, 2021).
27 The policy statement lists five circumstances that establish “extraordinary and
28 compelling reasons.” First, the standard is satisfied if “[t]he defendant is suffering from a
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Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 4 of 7

1 terminal illness (i.e., a serious and advanced illness with an end of life
2 trajectory).” U.S.S.G. § 1B1.13 cmt. n.1(A)(i). Second, it is satisfied by “a serious
3 physical or medical condition, . . . serious functional or cognitive impairment, or . . .
4 deteriorating physical or mental health because of the aging process . . . that substantially
5 diminishes the ability of the defendant to provide self-care within the environment of a
6 correctional facility and from which he or she is not expected to recover.” Id. § 1B1.13
7 cmt. n.1(A)(ii). Third, the standard is met if “[t]he defendant (i) is at least 65 years old;
8 (ii) is experiencing a serious deterioration in physical or mental health because of the aging
9 process; and (iii) has served at least 10 years or 75 percent of his or her term of
10 imprisonment, whichever is less.” Id. § 1B1.13 cmt. n.1(B). Fourth, the standard is
11 satisfied if family circumstances requiring the defendant to care for minor children or a
spouse or registered partner. Id. § 1B1.13 cmt. n.1(C). Finally, a catch-all provides for

United States District Court
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13 relief if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the
14 defendant’s case an extraordinary and compelling reason other than, or in combination
15 with, the reasons described in subdivisions (A) through (C).” Id. § 1B1.13 cmt. n.1(D).

Northern District of California
16 The policy statement also sensibly concluded that a court should reduce a sentence
17 only if it finds that “[t]he defendant is not a danger to the safety of any other person or to
18 the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). Courts “take
19 into account” four factors when determining dangerousness: (1) “the nature and
20 circumstances of the offense charged,” (2) “the weight of the evidence against the person,”
21 (3) “the history and characteristics of the person,” and (4) “the nature and seriousness of
22 the danger to any person or the community that would be posed by the person’s
23 release.” 18 U.S.C. § 3142(g).
24 III. DISCUSSION
25 The Court concludes that the revelation of Ozkar’s diabetes, combined with his age
26 and the increased risk of COVID-19, constitutes an “extraordinary and compelling
27 reason” under § 3582(c)(1)(A). Because the sentencing factors permit a reduction in
28 sentence and Ozkar is not dangerous, the Court reduces Ozkar’s sentence.
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Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 5 of 7

A. Extraordinary and Compelling Reason
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Although this case does not perfectly fit one of the circumstances of the Sentencing
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Commission’s nonbinding policy statement, Ozkar’s new diagnosis of diabetes combined
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with his advanced age and the seriousness of the COVID-19 pandemic justify a reduction
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in his sentence. It is true that Ozkar is fully vaccinated and boosted, which reduces the risk
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of more serious symptoms. See United States v. Chambers, 2021 WL 4951444, at *4
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(N.D. Cal. Oct. 25, 2021). Nonetheless, advanced age and diabetes significantly increase
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one’s risk of COVID-19. See Centers for Disease Control, People With Certain Medical
8
Conditions (May 2, 2022), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
9
precautions/people-with-medical-conditions.html (“Having either type 1 or type 2 diabetes
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can make you more likely to get very sick from COVID-19.”). At the time of sentencing
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in December 2021, Ozkar’s advanced age was before the Court, but Ozkar’s diabetes was

United States District Court
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diagnosed only later. See PSR (stating that Ozkar had “reported no major health issues”).
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The Court concludes that Ozkar meets the standards of “extraordinary and compelling
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reasons” in the Commission’s policy statement. U.S.S.G. § 1B1.13 cmt. n.1.2
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B. Sentencing Factors

Northern District of California
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Further, the Court concludes that compassionate release is appropriate under the
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sentencing factors in 18 U.S.C. § 3553(a). Section 3553(a)(2) notes “the need for the
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sentence imposed[] to reflect the seriousness of the offense, to promote respect for the law,
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and to provide just punishment for the offense” and “to afford adequate deterrence to
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criminal conduct.” At sentencing, when considering Ozkar’s unique history and
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characteristics, the Court emphasized that other facts could support a non-custodial
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sentence but these factors militated for custody. The Court explained that “it’s rare in a
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white-collar case that I [find] home confinement appropriate” because of the importance of
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“general deterrence” of white-collar fraud. See Transcript at 22-23. The Court persists in
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26 2
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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Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 6 of 7

1 its view that general deterrence of white-collar fraud requires custodial time in all but
2 “rare” instances. But now that Ozkar has now served approximately four months in
3 custody, this goal of general deterrence is satisfied. The Court continues to conclude that
4 the other sentencing factors permit this sentence reduction.
5 C. 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 of his
11 sentence to time served. The Court previously ordered a three-year term of supervised
release. See Amended Judgment (dkt. 36). The Court now orders an additional term of

United States District Court
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13 supervised release of eight months, to begin immediately after his release, during which
14 Ozkar is subject to the special condition of home incarceration. The terms of his release
15 are therefore amended as follows:

Northern District of California
16 a. Following his release, Ozkar shall be transported directly to the proposed release
17 address in Novato, California (the residence);
18 b. Commencing at the time of his arrival at the residence, the Court imposes a
19 special term of supervision period of eight months of home incarceration;3
20 c. During these eight months, all previously ordered conditions of supervised
21 release shall be in effect where applicable;
22 d. After those eight months are concluded, the three-year term of supervised release
23 will commence as originally ordered. See Amended Judgment (dkt. 36).
24 The BOP is directed to release Ozkar. The government shall serve a copy of this
25 order on the Warden at USP Atwater immediately.
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Under home incarceration, Ozkar is restricted to his residence at all times except for
28 medical necessities and court appearances or other activities specifically approved by the
court.
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Case 3:21-cr-00144-CRB Document 55 Filed 08/25/22 Page 7 of 7

1 IT IS SO ORDERED.
2 Dated: August 25, 2022
CHARLES R. BREYER
3 United States District Judge
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