United States v. Greenhut

          ORDER DENYING DEFENDANT'S MOTION FOR SENTENCE REDUCTION

          CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION AND BACKGROUND

         On January 23, 2017 defendant Ivan Greenhut was sentenced to 24 months of imprisonment following his conviction at trial for conspiring to give illegal gratuities in violation of 18 U.S.C. § 371. Specifically, a jury found that Greenhut offered illegal gratuities to government employees in the United States and the Philippines in exchange for purchases from companies that Greenhut owned or operated. The Court subsequently released Greenhut on bail pending his appeal.

         During this release, Greenhut was arrested on charges of possession and distribution of child pornography. ECF No. 4. Arresting agents found that Greenhut possessed 107 videos containing child pornography on a laptop and had distributed three videos containing child pornography using a file-sharing platform online. Id. Pursuant to a binding plea agreement, on April 5, 2018, the Court sentenced Greenhut to 40 months of imprisonment to run concurrently to the undischarged term of imprisonment imposed in Greenhut's prior conviction for the illegal gratuities. ECF No. 29.

         Greenhut filed the instant motion for a reduction in sentence pursuant to 18 U.S.C. § 3582(c) on April 17, 2019. ECF No. 38 (“Motion”).^[1] The motion attaches declarations from Greenhut's adult children with his ex-wife, as well as a declaration from a sister. Id. at Exs. A6-A8. On May 2, 2019, Greenhut filed an “addendum, ” to which he attached various medical records. ECF No. 39 (“Addendum”). The United States filed an opposition, or in the alternative, a motion to dismiss, on July 29, 2019. ECF No. 43 (“Opp.”). Greenhut filed a reply on August 8, 2019. ECF No. 46 (“Reply”). The government filed a supplement to its opposition on August 9, 2019. ECF No. 45 (“Supp. Br.”).

         Having considered the parties' arguments, the Court finds and concludes as follows.

         II. LEGAL STANDARD

         Pursuant to the amendments enacted by the First Step Act of 2018, a district court may grant a reduction in sentence pursuant to § 3582(c)(1) if, after considering the sentencing factors set forth by 18 U.S.C. § 3553(a), it finds that “extraordinary and compelling reasons warrant such a reduction” and that “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). See United States v. Eidson, No. 17-CR-00490-SI, 2019 WL 3767570, at *1 (N.D. Cal. Aug. 9, 2019). The Sentencing Commission defines “extraordinary and compelling reasons” to include reasons related to (a) the medical condition of the defendant, (b) the age of the defendant, (c) certain family circumstances, and (d) other specific reasons. See U.S.S.G. § 1B.1.13, Application Note 1. The defendant bears the initial burden to put forward evidence that establishes an entitlement to a sentence reduction. United States v. Sprague, 135 F.3d 1301, 1306-07 (9th Cir. 1998).

         Although the First Step Act now allows a defendant to bring a motion pursuant to § 3582(c)(1) for a sentence reduction in his own right, before a defendant can so move, a defendant must “fully exhaust[] all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf, ” or else establish that “the warden of the defendant's facility” has received “such a request” and failed to act on that request within 30 days. Id. at § 3582(c)(1)(A).

         III. DISCUSSION

         Greenhut requests a reduction of his sentence in order to care for and spend time raising a 13 year old son in the Philippines, obtain healthcare, and attend to his business interests. See Mot. 3-13. The United States opposes on grounds that (i) Greenhut has failed to exhaust his administrative remedies with respect to his request for healthcare, and that (ii) Greenhut does not, in any case, raise any “extraordinary and compelling” reasons that justify a sentence reduction. See Opp. at 2-7; Supp. Br. at 2.

         A. Greenhut Has Not Exhausted His Administrative Remedies With Respect To His Medical Care Requests

         Greenhut claims that a sentence reduction is warranted in part because he requires access to medical care that is not adequately available to him at the prison facility where he is housed. Mot. at 3.

         At the time Greenhut filed the instant motion, however, he had not submitted a request for compassionate release on this basis to the warden at his federal prison facility. See Reply at 2; Supp. Br. at 2. According to the administrative documents attached to the motion, the only request Greenhut made to the prison warden prior to filing this motion was for “compassionate release based on non-medical circumstances” related to Greenhut's claim that “the family member caregiver” responsible for his foreign-born son “has been incapacitated.” See Mot. at Ex. A1 (attaching warden's decision declining to make motion on Greenhut's behalf) ...