Motion for a Sentence Reduction — No. CR 21-00081-VAP (Dkt. 109, C.D. Cal.)

Summary

Filed on 11/03/23 as Document 109 in Case 2:21-cr-00081-VAP (C.D. Cal.), this pro se motion by Hassan Shaban Kanyike seeks a sentence reduction under 18 U.S.C. §3582(c)(2) and Part B of Amendment 821, the new guideline 4C1.1 for certain zero-point offenders. It says Kanyike pleaded guilty to one count of wire fraud (18 U.S.C. §1343) and was sentenced on November 15, 2021 to 51 months, the low end of a 51 to 63 month range at offense level 24. With the two-level decrease, it puts the total offense level at 22 with a range of 41 - 51 months and asks to be resentenced to 41 months. It cites no violations in almost 24 months in custody, recidivism reduction programs and a minimum recidivism rating. Attachments include pages of the sentencing transcript, a declaration about delayed medication and requests to prison staff.
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Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 2o0f19 Page ID #:1050

RELEWANT PROCEDURAL HISTORY

On March 29, 7021, Pro se Defendant Hassan Kany ike, plead ‘Guilty to One Count of
Wire Fraud in Violation of 18 1.S.C. §1343 as charged in a single count Information.
(See Dokt #51)

Under the terms of the Plea Agreement, the parties stipulated to a tctal offense level
of 20 with a guideline range of 33 to 41 Months. The parties agreed not to argue or suggest
that any other specific offense characteristics adjustments or departures to the offense
be imposed.

PRESENTENCE INVESTIGATION REPORT

The Probation Office prepared Defendant's Presentence Investigation Report consistent
with the plea agreement in reference to the Base Offense Level of 7 and a 16 Level Loss
Adiustmert under USSG §2B1.1(b)(1)(I) (Psr:46-50). However, the Probation Office applied
two additiona] Enhancements:

(1) 2 Levelt Enhancement under USSG §2B1.1(b)(10)(c) (sophisticated Means)
(2) 2 Level Enhancement under USSG §2B1.1(b)(17)(A) (Gross R4ceivts)

Apply ing the above Guidelines and a Three Level Reduction for Acceptance of responsibility,
the Probation Office calculated Defendant's Total Offense level at 24 (Psr:46-61). with

a resulting advisory Guideline range of 51 to 63 Months.

No any other offense characteristics were recommended or suggested.

The Court's calculation of the Sentencing Guidelines also matched the Plea Agreement
except. the court adopted the finding of the probation officer in the PSR with respect to
the above referenced enhancements resulting to an offense level of 24 (Sentencing Range
of 51 to 63 Months). (See e&xbuit Ay)

After considering the factors under 18 U.S.C. 3553(a), the district court sentenced
defendant to 51 Months which is the low end of the advisory sentencing guidelines at the
time of sentencing on November 15, 2021.

LEGAL FRAME WORK

A judment of conviction that includes a sentence of imprisonment constitutes a final
judgment., and may not be modified by a federa] district court except in limited circumstances.
"#8 U.S.C — §3582(c)(2) establishes an exception to the general rile of finality in the
case of a defendant who has been sentenced to a term of imprisonment based on a sentencing

range that has subsequently been lowered by the U.S. Sentencing Commission pursuant to 28

Page 2 of 6
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 3o0f19 Page ID #:1051

U.S.C.S 944(0) and made retroactive pursuant to 994(y). In such cases, Congress has
authorized courts to redyce the term of imprisonment, after considering the factors set
forth in 18 U.S.C. 3555%a) to the extent they are applicable, if such a reduction is
consistent with applicable policy statements issued by the U.S. Sentencing Commission.

On April 27, 2023, the Sentencing Commission submitted to Congress Amendments to the
Sentencing Guidelines, Policy Statements, Official Commentary and Statutory Jndex which
became effective on November 1, 2023. (See U.S. Sentencing Commission "Notice of Submission
to Congress of Amendments to the Sentencing Guidelines....." 88 FR 28254 (May 3, 2023).

On August 24, 2023, the Sentencing Commission voted to make Retroactive Parts A and B
of Amendment 821. Part B of the Amendment 821 as relevant here creates a new Chapter four
Guideline at 4C1.1 (Adiustment for Certain Zero-Point Offenders) providing a decrease of
two levels from the offense level determined under chapters two and three for defendants who
did not receive any criminal history points and whose instant offense did not involve
specific aggravating factors.

In order to avalify for a sentence reduction under subpart 1 of Part B, the individual
must meet all of the following criteria:

1. the defendant did net receive any criminal history points from Chapter Four, Part A;

2. the defendant did not receive an adjustment under 3A1.4 (Terrorism);

3. the defendant did not use violence or credible threats of violence in connection

with the offense:

4, the offense did not result in death or serious bodily injury;

5. the instant offense of conviction is not a sex offense;

6. the defendant did not personally cause substantial financial hardship:

7. the defendant did not possess, receive, purchase, transport, transfer, sell, or

otherwise dispose of a firearm or other dangerous weapon (or induce another participant
to so) in connection with the offense;

8. the instant offense of conviction is not covered by 2H1.1 (Offenses Involving
Individual Rights);

9. the defendant did not receive an adjustment under 3A1.1 (Hate Crime Motivation or
Vulnerable Victim) or 3A1.5 Serious Human Rights Offense); and

10. the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and ws
not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848.

DEFENDANT'S ELIGIBILITY AND POLICY STATEMENT
To be eligible for a sentence reduction under 18 U.S.C. §3582(<)(2), a defendant
must=show (1) that his sentence was "based on a sentencing range that has subsequently
been lowered by the [United States] Sentencing Commission"(Sentencing Commission") and (2)

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Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 4of19 Page ID #:1052

that "such reduction is consistent with applicable policy statements issued by the Sentencing
Commission''. UNITED STATES v. WESSON, 583 F.3d 728, 730 (9th Cir. 2009) (quoting 18 U.S.C.
§3582(c)(2); UNITED STATES v. DUNN, 728 F.3d 1151, 1155 (9th Cir. 2013)(stating that 18
U.S.C. §3582(c)(2) authorizes district courts to modify an imposed sentence "in the case of

a defendant who has been sentenced to a term of imprisonment based on a sentencing range
that has subseauently been lowered by the Sentencing Commission".

At Sentencing,along with consideration of the 3553(a) factors, this Honorable Court
calculated Pro se defendant's offense level at 24 with a guideline range of 51 to 63 months
and consequently sentenced him to the low end of the advisory guidelines. Hcwever, Part B

of Amendment 821 has subsequently Lowered his applicable cuideline range.

Pro se defendant's instant offense did not involve thel0 aggravating factors nor did

the probation officer recommed any to apply after their investigation.

APPLICABLE POLICY STATEMENT

Section 3582(c)(2) provides for a sentence reduction "consistent with applicable policy
statements issued by the Sentencing Commission."
reductions under §3582(c)(2) is found in U.S.S.G. § 1B1.10. That policy statement directs

the court to "determinéthe amended @uidel ine range that would have been applicable" if the

The policy statement applicable to

amendment had been in effect and "leave all other guideline application decisions anaffected".
U.S.S.G. § 1B1.10(b)(1).
PROPOSED NEW GUIDELINES

Pursuant To:
U.S.S.G. § 2B1.1(a)

Base Offense Level 7
Add U.S.S.G. §2B1.1(b)(1)(I)
Loss Amount 1,500,000-3,500,000 +16
Geoss Receipts Enhancement +2
Add U.S.S.G. 2 B1.1(b)(10)(c)
Sophisticated Means +2
Less U.S.S.G. §3 E 1..1(b)
Acceptance of Responsibility -3
Less Part B Amendment 823 -2

Retroactive Reduction

Total Offense Level 22
Sentencing Guideline Range 41 - 51 Months

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Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page5of19 Page ID #:1053

3553(a) FACTORS

The Amendment to the Sentencing Guidelines considers the Commissionl/$ extensive

recidivism research and feedhack from the district court as noted by the consistently high
rate of below-range sentences citing criminal history. (See U.S. Sentencing Commission
Analysis of the Impact of 2023 Criminal History Amendments Parts A and B- may 2023).
(See U.S. Sentencing Commission's Multi year Recidivism study 2016-2020)
3553(a)(6) NEED TO AVOID UNWARRANTED SENTENCE DISPARITIES
Defendant kindly requests this Honorable Court to particularly consider the need to -

avoid unwarranted sentence disparities. New defendants who commit the same crimes as
defendant will be sentenced based on the amended guidelines in addition to the fact that
other previously sentenced defendant's will receive a reduced sentence.

NEED FOR JUST PUNISHMENT 3553(a)(2)(a)

Defendant kindly requests this Honorable Court to also consider the Sentencing
Commission's extensive research which indicates that it is appropriate to subject
defendant's like KANYIIKE to less severe sentences than the guidelines previously mandated.

POST SENTENCING CONDUCT

Under PEPPER v. UNITED STATES, 562 U.S. 476, 490, 131 S.Ct. 1229, 179 1..Fd.2d 196( 2011)
"Evidence of post sentencing rehabilitation may be higbly relevant to several of the 3553(a)

factors that Congress has expressly instructed district courts to consider."

As stated in the PSR, the defendant did not receive any violation during the almost
24 month veriod he was out for pretrial release, the defendant has not received any violations
for his entire state of almost. 24 months within the B.O.P.
Moreover, he has accomplised several recidivism reduction programs (See Education Transcript
Attached). Defendant has a custody Classification of 0 Points which the B.0O.P. Clarifies
as safe for Community. (See Attached Home Eligibility Exhibit Aa.)
The Defendant's recidivism rating by the B.0.P. is Minimum which is the Lowest possible
rating.

CONCLUSION

3552(c)(2) represents a Gongressional act of lenity intended to give prisoners the
beneifit of late enacted adjustments to the judgements reflected in the guidelines. (See
Oppinion of Sotomayer, J. jmined by Roberts, Ch J. and scalia, Kennedy, Thomas, Ginsburg and
Breyer, J.J. in DILLION v. UNITED STATES, (2010)

Defendant kindly requests this Honorable Court to grant his Motiion for a Sentence
Reduction and be resentenced to 41 Months the low end of the recalculated guidelines of
41 - 51 months. f

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Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page6of19 Page ID #:1054

POLICY STATEMENT 1B1.10(e)(2) states: The special instruction at subsection(e)(2) delays
the effective date of orders reducing a defendant's term of imprisonment to a date no
earlier than February 1, 2024. Subsection(c)(2), however, does not. preclude the court from
conducting sentence reduction proceedings and entering orders under 18 U.S.C. §3582(c)(2)
and this policy statement before February 1, 2024, provided that any order reducing the
defendant's term of imprisonment has an effective date of February 1, 2024 or later.

\
Pro Se Defendant

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submit.

THE COURT: Thank you.

Well, I have considered everything that has been
submitted and the arguments made, both in the papers and here
today and, for the reasons that I have put on the record in
some detail, find that the advisory guideline range here is the
51 to 63 months. The Court's not -- doesn't consider that the
presumptively reasonable sentence but considers that advisory
sentencing range along with all of the other 3553(a) factors
that I have put on the record.

And with that, I would sentence the defendant to a
sentence of 51 months.

So the Court has considered the sentencing factors
at 18 United States Code, Section 3553(a), and the advisory
Sentencing Guideline range based on an offense level of.24 and
a criminal history category of 1 and hereby impose a sentence
as follows.

It's ordered that the defendant shall pay to the
United States a special assessment of $100 due immediately.
Any unpaid balance shall be due during the period of
imprisonment at the rate of not less than $25 per quarter
pursuant to the B.O.P.'s Inmate Financial Responsibility
Program.

It's ordered that the defendant shall pay

restitution in the total amount of $1,302,550 pursuant to

UNITED STATES DISTRICT COURT ER 049
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 10o0f19 Page ID #:1058
HONORABLE VIRGINIA A. PHILLIPS

SENIOR U.S. DISTRICT COURT JUDGE
CENTRAL DISTRICT OF CALIFORNIA

RE: LETTER OF CONSIDERATION FOR MOTION 3582(c) (2)

Defendant KANYTKE, humbly comes before this !lonorable Court for consideration of
of his Motion for §3582(c)(2) as laid in detail in the attached motion.

Defendant Kanyike also comes hefore this Honorable Court requesting a reconsideration
for his Motion under §3582(c)(1)(A) citing a striking lak o responsiveness by the BOP
to provide him medication for 2Months. (See Attached Exhibit Dt), In a detailed |

denial of my motion, the court expressed concern in the delay to nrovide medication and
advised the BOP to provide the prescribed medication (See Exhibit ay ). Defendant
has been in constant pain with regular nose bleeding that creates daily migranes, sinus

inflamation. and pain while breathing. Numerous district courts have found, that the .

BOP's inadequate provision of medical care can qualify as’ an extraordinary and compelling
reason for reiease, even where medicai conditions are not iifelrthreatening. (See United

States v. English, No. 219CR20/64TGBFAS1, 2022 U.S. Dist. LEXIS 230553, 2022 WL 17853361,
at 5 (E.D. Mich. Dec. 22, 2022)("even if it is not clear that enlish's medical conditions

alone are lifelHthreatening, the record tere demonstrates that the mismmagement of these
conditions creates extraordinary and compelling circumstances warranting compassionate

release"); United States v. Burr, No. 1:15-CR-362-1, 2022 U.S, Dist. LEXIS 216371,
2022 WL 17357233, at 6 (M.D.N.C. dec. 1, 2022)("Tnadequate medical care may be a relevant

factor in finding an extraordinary end compelling reasons under §3582(c)(1)(A)."; United
States v. edwards, No. CR 03-234 (JDB), 2022 U.S. Dist. LFXIS 129167. 2022 WL 2866703,
at 5 (D.D.C. July 21, 2022)("persistent inadequate medical care can constitute an
extraordinary and compelling reason warranting sentence reduction if the defendant's
medical needs require release"); United States v. Derentz, 608 F. Supp. 3d 189, 193
(E.D. Pa. 2022)("Courts have also found that... delays in treatment, ma qualify as an
extraordinary and compelling reason for compassionate release".)

Defendant Kindly requests this Honorshle Court to kindly reconsider it's denial
of defendart'g previous motion under §3582(c)(A)(1) in light of the BOP'S persistent

denial. to provide him medication even after court intervention.
Pro Se defendant kindly submits to this Honorable Court to grant his motion under

Page 1 of 2.
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 12o0f19 Page ID #:1060

AFFIDAVIT OF HASSAN S. KANYIKE

I, Hassan Shaban Kanyike swear, and declare under penalty of perjury that my
statement below are true to the best of my knowledge.

This affidavit is being submitted in response to the government's statements
that I am being provided the prescribed medication for my respiratory complication.
That statement is not true, I have not been given any of the prescribed medication
for treatment of my respiratory complication for the entire duration of my incarceration
that is 16 months.

Please find attatched to this affidavit pharmacy records from the Bureau of

Prisons that support this stand, Exhibit Ds *

I Hassan Shaban Kanyike declare under penalty of perjury pursuant to 28 U.S.C.
§ 1746(1) under the laws of the United States of America that the above statement is

true and correct to the best of my knowledge.

Executed on NOVG@mbe.~ ist EDDA

Respectfully,

/
Hassall haban fany ike
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page130f19 Page ID #:1061

Bureau of Prisons %
Health Services
Medication Summary

Current as of 10/31/2023 18:37

Complex: VIX--VICTORVILLE FCC Begin Date: N/A End Date: N/A
Inmate: | KANYIKE, HASSAN Reg #: 21355-509 Quarter: C04-408L

Medications listed reflect prescribed medications from the begin date to end date on this report.
Allergies: Denied

Generated 10/31/2023 18:37 by Johnston, Brenda RN Bureau of Prisons - VIM Page 1 of 1
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page14o0f19 Page ID #:1062

TRULINCS 21355509 - KANYIKE, HASSAN - Unit: VIM-C-U

FROM: 21355509

TO: FCI-Il Health Services

SUBJECT: ***Request to Staff*** KANYIKE, HASSAN, Reg# 21355509, VIM-C-U
DATE: 08/11/2023 10:35:56 AM

To: Health services
Inmate Work Assignment: none

This is another email that is following 3 cop-outs dated 06/14/2023, 06/30/2023, 07/27/2023 to health services to update my
prescription that i have never received since it was prescribed in April 2022. This will be my last email which if not responded
back to i will have to refer this matter to the courts for denial of medical care . Its been 18months without any medication.
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 15o0f19 Page ID #:1063

C2.

TRULINCS 21355509 - KANYIKE, HASSAN - Unit: VIM-C-U

FROM: 21355509

TO: FCI-l Health Services

SUBJECT: ***Request to Staff*** KANYIKE, HASSAN, Reg# 21355509, VIM-C-U
DATE: 07/24/2023 01:36:56 PM

To: Medical
Inmate Work Assignment: none

hello there,

| have tried numerous times to have my prescription to me , but i have filed. Kindly advise please the court tasked you to do that
Case 2:21-cr-00081-VAP Document 109 Filed 11/03/23 Page 16 of19 Page ID #:1064

TRULINCS 21355509 - KANYIKE, HASSAN - Unit: VIM-C-U Cz

FROM: 21355509

TO: FCI-I Health Services

SUBJECT: ***Request to Staff*** KANYIKE, HASSAN, Reg# 21355509, VIM-C-U
DATE: 06/15/2023 12:53:03 PM

To: Health services
Inmate Work Assignment: none

Hope this finds you well; kindly note that my prescription that was done by dr. hernendez on 04/07/2022 was never delivered to
me . | went to pharmacy and theu told me they need the medical staff to redo it. | have been here for 16months no medication.

Please advise timely ~
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