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United States v. Tikal

United States District Court, E.D. California

July 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ALAN DAVID TIKAL, TAMARA TERESA TIKAL, and RAY JAN KORNFELD, Defendants.

          ORDER

          TROY L. NUNLEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Alan David Tikal's (hereafter, “Defendant”) motions to adjust and reduce his term of incarceration (ECF No. 324; ECF No. 326). For the reasons set forth in this Order, the Court DENIES Defendant's motions.

         I. Factual and Procedural Background

         Defendant stands convicted of multiple counts of mail fraud affecting a financial institution in violation of 18 U.S.C. § 1341, as well as one count of money laundering in violation of 18 U.S.C. § 1957. (See ECF No. 149.) In March 2015, Defendant was sentenced to 288 months in prison on the mail fraud counts and to a concurrent term of 120 months in prison on the money laundering count. (ECF No. 223 at 2.)

         On June 18, 2018, Defendant filed a first motion to reduce his sentence. (ECF No. 324.) Defendant's motion requests that the Court retroactively apply a two-point reduction to Defendant's advisory sentencing range as set forth by the United States Sentencing Commission Guidelines Manual (hereafter, “Sentencing Guidelines” or “Guidelines”). (ECF No. 324 at 1.) Defendant also requests that following this retroactive reduction to his advisory sentencing range, the Court proportionally reduce the actual sentence it imposed on Defendant. (ECF No. 324 at 1.) Defendant argues that the Court may retroactively recalculate the advisory sentencing range applicable to Defendant pursuant to the authority of Hughes v. United States, 138 S.Ct. 1765 (2018), and 18 U.S.C. § 3582(c)(2). (ECF No. 324 at 1.)

         On March 25, 2019, Defendant filed another motion requesting similar relief. (ECF No. 326.) This second motion requests that the Court reduce his sentence “in light of the FIRST STEP ACT whereby 60 year old inmates serve 2/3rds.” (ECF No. 326 at 1.) Defendant requests that the Court take judicial notice of the fact that he will turn sixty years old during his term of incarceration in early 2028. (ECF No. 326 at 1.) Defendant also requests that the Court take judicial notice of the fact that he tried unsuccessfully to obtain this relief through administrative channels. (ECF No. 326 at 1.) Defendant attached copies of correspondence he appears to have engaged in with administrators at the federal facility known as Victorville Medium I Federal Correctional Institution. (ECF No. 326 at 3-4.) This correspondence demonstrates that Defendant's end goal is to have his projected release date adjusted, presumably because this will result in his being regarded as a lower security risk during his remaining term of incarceration. (See ECF No. 326 at 3 (“Please also remove the public safety factor for sentence length.”).)

         The government did not file a response to either of Defendant's motions.

         II. Standard of Law

         A. Retroactive Sentencing Guidelines Reduction

         “Under the Sentencing Reform Act of 1984, the United States Sentencing Commission establishes Sentencing Guidelines based on the seriousness of a defendant's offense and his criminal history.” Hughes, 138 S.Ct. at 1772. While the Sentencing Guidelines are advisory only, “a district court still ‘must consult those Guidelines and take them into account when sentencing.'” Id. (quoting United States v. Booker, 543 U.S. 220, 264 (2005)). The United States Sentencing Commission (hereafter, “Commission”) must periodically review and revise the Sentencing Guidelines, and in doing so, must “decide whether amendments to the Guidelines should have retroactive effect.” Id. at 1773. If the Commission determines that an amendment to the Sentencing Guidelines applies retroactively, district courts are authorized “to reduce the sentences of prisoners who were sentenced based on a Guidelines range that would have been lower had the amendment been in place when they were sentenced.” Id. (citing 18 U.S.C. § 3582(c)(2)).

         A district court deciding whether to reduce a defendant's sentence must first “determine the defendant's eligibility for a sentence reduction.” United States v. Mercado-Moreno, 869 F.3d 942, 948 (9th Cir. 2017) (citing Dillon v. United States, 560 U.S. 817, 827 (2010)). A defendant is only eligible for a reduction if “(1) the defendant's term of imprisonment was based on a sentencing range that has subsequently been lowered by a retroactive amendment to the Guidelines, and (2) the reduction is consistent with USSG § 1B1.10, the policy statement that implements § 3582(c)(2).” Id. at 949. The policy statement, in turn, provides that a sentence reduction “is not consistent with this policy statement and therefore is not authorized under 18 U.S.C. § 3582(c)(2) if . . . none of the amendments listed in subsection (d) is applicable to the defendant.” U.S. Sentencing Guidelines Manual § 1B1.10(a)(2) (U.S. Sentencing Comm'n 2018). Subsection (d) of the policy statement contains a list of amendments that are to be applied retroactively. Id. § 1B1.10(d).

         B. Elderly Offender Family Reunification and the First Step Act of 2018

         Federal law authorizes the Attorney General of the United States to “conduct a pilot program to determine the effectiveness of removing eligible elderly offenders . . . from Bureau of Prisons facilities and placing such offenders on home detention until the expiration of the prison term to which the offender was sentenced.” 34 U.S.C. § 60541(g)(1)(A). “In carrying out a pilot program as described in subparagraph (A), the Attorney General may release some or all eligible elderly offenders . . . from Bureau of Prisons facilities to home detention, upon written request from either the Bureau of Prisons or an eligible elderly offender . . . .” Id. § 60541(g)(1)(B).

         The First Step Act of 2018, Pub. L. No. 115-391, § 603, 132 Stat. 5194, 5238-41 (2018), amended the statute authorizing this pilot program to provide that a person qualifies to participate in the program if, inter alia, the person is a nonviolent offender in the custody of the Bureau of Prisons who is at least sixty years of age, the offender is serving a prison term of less than life, and the offender has served at least two-thirds of their prison term. See 34 U.S.C. ยง 60541(g)(5). The statute authorizing this pilot program also requires the Bureau of Prisons to consider a number of other factors before determining whether a particular offender qualifies for early release to home detention, including whether the offender has attempted to escape from a Bureau of Prisons ...


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