United States v. Hassen

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 15, 2022
• Docket: 22-3079
• Status: Unpublished

Opinion

Appellate Case: 22-3079 Document: 010110783815 Date Filed: 12/15/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 15, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-3079 (D.C. No. 2:07-CR-20099-JWL-4) YEHIA HASSEN, (D. Kan.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HOLMES, Chief Judge, HARTZ, and ROSSMAN, Circuit Judges. _________________________________

Yehia Hassen appeals pro se from the district court’s denial of his second

pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).1 Our

jurisdiction arises under 28 U.S.C. § 1291. Because Mr. Hassen has not shown the

district court abused its discretion, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 We liberally construe Mr. Hassen’s pro se filings. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). Appellate Case: 22-3079 Document: 010110783815 Date Filed: 12/15/2022 Page: 2

I. Background

Mr. Hassen pleaded guilty in July 2009 to conspiracy to distribute and

possession with intent to distribute 1,000 kilograms or more of marijuana and

5 kilograms or more of cocaine, as well as attempted money laundering. Mr. Hassen

did not appear for his scheduled sentencing hearing in 2010. He remained a fugitive

until he was arrested in Cyprus in April 2016 and extradited back to the United

States. At his sentencing, the district court calculated Mr. Hassen’s advisory

guidelines imprisonment range as 292 to 365 months and sentenced him to a term of

324 months. Mr. Hassen’s projected release date is May 14, 2039.

Mr. Hassen filed his first pro se compassionate-release motion in September

2020. He argued he was needed at home to help care for his seriously ill son and his

parents and aunt who are in poor health. Mr. Hassen asserted he could work and take

care of any family needs outside of the home so his relatives could remain at home to

lessen their exposure to COVID-19. The district court concluded Mr. Hassen had not

demonstrated “extraordinary and compelling reasons” to reduce his sentence.

18 U.S.C. § 3582(c)(1)(A)(i). The court observed Mr. Hassen could expose his son

to the virus by going outside the home. The court stated it was “sympathetic to the

difficult circumstances of Mr. Hassen’s son’s health and the stress his wife

undoubtedly faces in caring for their son during the pandemic,” but concluded there

was no evidence that his son was not receiving adequate care in Mr. Hassen’s

absence. Suppl. R., Vol. 2 at 95.

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The district court denied Mr. Hassen’s first motion on the additional ground

that the sentencing factors in 18 U.S.C. § 3553(a), including providing just

punishment and promoting respect for the law, did not support compassionate

release. The court acknowledged the significant length of Mr. Hassen’s sentence but

pointed to the considerable quantity of drugs attributed to him. It also observed his

decision to remain a fugitive for six years set him apart from his co-defendants who

Mr. Hassen asserted had received shorter sentences. The district court concluded that

“[t]o release Mr. Hassen at this juncture would fail to recognize the seriousness of

Mr. Hassen’s total disrespect for the law” and “would constitute a significant and

unjustified windfall” when he had served only 25 percent of his sentence. Id. at 96.2

Mr. Hassen filed a second pro se motion for compassionate release in January

2022. His son was at an increased risk of harm, including death, Mr. Hassen argued,

if he contracts COVID-19. To protect his son from exposure to the virus, Mr. Hassen

proposed he would live with his son separately from other family members. He

further argued his rehabilitation, his disciplinary record, and his level of recidivism

risk warranted compassionate release. The district court denied Mr. Hassen’s second

compassionate-release motion, concluding he had not demonstrated extraordinary and

compelling reasons for a sentence reduction.3

2 Mr. Hassen did not file a timely notice appealing the district court’s ruling on his first compassionate-release motion. 3 Because the district court concluded that Mr. Hassen had not demonstrated an extraordinary and compelling reason warranting compassionate release, it declined to (continued) 3 Appellate Case: 22-3079 Document: 010110783815 Date Filed: 12/15/2022 Page: 4

As to Mr. Hassen’s son’s serious illness, the district court concluded the record

failed to suggest the precautions his wife has taken to protect their son against Covid

have not been successful. It observed such mitigating measures seemed to be as

effective as the plan proposed by Mr. Hassen. The district court thus disagreed with

Mr. Hassen that his plan to protect his son constituted an extraordinary and

compelling reason for a sentence reduction in light of the efforts his family had

already undertaken since the pandemic started.

The court also found Mr. Hassen’s rehabilitation did not justify granting him

compassionate release. Noting that rehabilitation, when combined with other specific

circumstances, might be sufficient to warrant release, the court concluded that

Mr. Hassen’s case did not involve such circumstances. Finally, the court concluded

“Mr. Hassen’s minimal disciplinary record and his alleged low recidivism risk” did

not qualify him for compassionate release. Id. at 56.

II. Discussion

A. Legal Background and Standard of Review

Section 3582(c)(1)(A)(i), as amended in 2018 by the First Step Act, allows

defendants to move for compassionate release in the district court after exhausting

Bureau of Prisons (BOP) administrative remedies. See United States v. Maumau,

address the other prerequisites for relief. But the court nonetheless “reaffirm[ed] its earlier conclusion that compassionate release under the circumstances described by Mr. Hassen would materially depart . . . from an appropriate § 3553(a) sentence in light of certain aggravating factors underlying Mr. Hassen’s sentence.” R., Vol. 4 at 54 n.2. The court referenced the factors it had “clearly set forth in prior opinions.” Id. 4 Appellate Case: 22-3079 Document: 010110783815 Date Filed: 12/15/2022 Page: 5

993 F.3d 821, 830 (10th Cir. 2021). The district court may grant a motion when it

(1) “finds that extraordinary and compelling reasons warrant such a reduction”;

(2) “finds that such a reduction is consistent with applicable policy statements issued

by the Sentencing Commission”; and (3) “considers the factors set forth in § 3553(a),

to the extent that they are applicable.” Id. at 831; see also § 3582(c)(1)(A)(i).

“[D]istrict courts may deny compassionate-release motions when any of the three

prerequisites listed in § 3582(c)(1)(A) is lacking.” Maumau, 993 F.3d at 831 n.4

(internal quotation marks omitted). The district court denied Mr. Hassen’s second

motion for compassionate release because he did not satisfy the first prerequisite: he

failed to demonstrate extraordinary and compelling reasons warranting a sentence

reduction.

A district court has broad discretion to determine what constitutes

“extraordinary and compelling reasons,” and that discretion is circumscribed only by

the applicable policy statements issued by the Sentencing Commission. Id. at 834

(internal quotation marks omitted). Currently, there is no such applicable policy

statement. The Sentencing Commission’s existing policy statement applies only to

motions filed by the BOP; it therefore “cannot constrain district courts’ discretion to

consider whether any reasons are extraordinary and compelling” when the motion is

filed by a defendant. Id. at 837 (internal quotation marks omitted).

We review a district court’s ruling on a compassionate-release motion for an

abuse of discretion. United States v. Hemmelgarn, 15 F.4th 1027, 1031 (10th Cir.

2021). “A district court abuses its discretion when it relies on an incorrect

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conclusion of law or a clearly erroneous finding of fact,” id. (internal quotation

marks omitted), or “when it renders a judgment that is arbitrary, capricious,

whimsical, or manifestly unreasonable,” United States v. Lewis, 594 F.3d 1270, 1277

(10th Cir. 2010) (internal quotation marks omitted).

B. The Serious Illness of Mr. Hassen’s Son

Mr. Hassen asserted extraordinary and compelling reasons existed for

compassionate release because his son had a serious illness and faced a risk of

exposure to COVID-19. The district court disagreed, noting his son had not

contracted the virus more than two years into the pandemic, which suggested

Mr. Hassen’s family had made efforts to protect his son that seem to be as effective

as the plan he proposed. Mr. Hassen argues that in making these findings, the district

court did not give proper weight to the seriousness of his son’s illness, including the

risk of death if he becomes infected with COVID-19. He also points to the

tremendous level of stress that his wife and other children experience living in the

same household as his son. There is no indication the district court misunderstood or

ignored these circumstances in denying Mr. Hassen’s second request for

compassionate release. As Mr. Hassen acknowledges, see Aplt. Opening Br. at 6, the

court “recognize[d] the seriousness of Mr. Hassen’s son’s illness,” R., Vol. 4 at 54.

And in denying his first compassionate-release motion, the court noted the stress his

family experienced from caring for an ill family member during the pandemic.

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Mr. Hassen also appears to challenge the district court’s assertion that the

general wellbeing of his children was an insufficient deterrent when he committed his

crimes. The court stated that

while it is commendable that his son’s wellbeing is now forefront in Mr. Hassen’s mind, the general welfare of his children (even if his son had not yet been diagnosed with his illness) was an insufficient deterrent at the time he committed his crime and it is not the court’s obligation to lessen the burden that Mr. Hassen placed on his family in the first instance. Id. at 54-55. Mr. Hassen maintains that he stopped selling drugs before any of his

children were born, which he says shows his intent to change his life before having a

family.

The district court was ultimately tasked with exercising its discretion in

determining whether Mr. Hassen demonstrated extraordinary and compelling reasons

for release based upon his son’s serious illness and the risk of his son’s exposure to

COVID-19. The court did not err in how it received Mr. Hassen’s arguments and

evidence. Although Mr. Hassen disagrees with the weight assigned by the district

court, in reviewing its determination, we cannot reweigh the evidence. Cf. United

States v. Hald, 8 F.4th 932, 949 (10th Cir. 2021) (rejecting defendant’s argument the

district court incorrectly weighed the § 3553(a) sentencing factors in deciding a

compassionate-release motion because that determination is discretionary and the

court did not “have a definite and firm conviction that the lower court made a clear

error of judgment or exceeded the bounds of permissible choice in the circumstances”

(internal quotation marks omitted)), cert. denied, 142 S. Ct. 2742 (2022); United

States v. Canales-Ramos, 19 F.4th 561, 567 (1st Cir. 2021) (stating district court’s

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determination the evidence weighed against finding an extraordinary and compelling

reason for compassionate release was “a judgment call that falls within the wide

compass of the district court’s discretion”). While we are sympathetic to

Mr. Hassen’s family circumstances, his arguments fail to show the district court’s

reasoning was “arbitrary, capricious, whimsical, or manifestly unreasonable,” Lewis,

594 F.3d at 1277 (internal quotation marks omitted).4

B. Mr. Hassen’s Rehabilitation

Mr. Hassen also argued that his rehabilitation constituted an extraordinary and

compelling reason warranting his release. The district court rejected Mr. Hassen’s

argument. See Maumau, 993 F.3d at 832 (“Rehabilitation of the defendant alone . . .

shall not be considered an extraordinary and compelling reason.” (quoting 28 U.S.C.

§ 994(t)). It observed that, “while some courts have found extraordinary and

compelling circumstances to exist when presented with applications by defendants

who had spent substantial time in prison and had demonstrated significant

rehabilitation during that time, those courts also found a specific defect or inequity in

the defendant’s sentence.” R., Vol. 4 at 55. The court cited an unpublished district

court case, United States v. Nafka, 2021 WL 83268, at *4-5 (D. Utah Jan. 11, 2021),

holding a defendant “met his burden of showing extraordinary and compelling

4 Mr. Hassen also argues the district court’s reasoning “goes against one of the [§] 3553[(a)] factors.” Aplt. Br. at 6. He does not specify which factor. But in any event, the district court did not base its denial of his second motion on the § 3553(a) factors.

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reasons for his release” based upon “his young age at the time he committed his

offenses, his rehabilitation in prison, his good character, the lengthy sentence

imposed on him compared to his co-defendants, and Congress’s amendment to

[18 U.S.C.] § 924(c) that eliminated mandatory sentence stacking for charges in the

same indictment.” It found that, unlike the defendant in Nafkha, Mr. Hassen did not

demonstrate “anything objectionable about the length of his sentence or any reason

why his sentence would be less if imposed today.” R., Vol. 4 at 55-56.

Mr. Hassen points to alleged sentencing disparities between him and his

co-defendants, which he maintains the district court ignored in adjudicating his

motion for compassionate release. He cites § 3553(a)(6), which requires a sentencing

court to consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.”

And he asserts that he received a longer sentence even though half of his

co-defendants had criminal histories, the leader of the conspiracy threatened to use

violence to force him to continue selling drugs, and he claims he stopped dealing

drugs before he was indicted.

We discern no error. We are not reviewing Mr. Hassen’s sentence.5 Rather,

we are deciding whether the district court abused its discretion in concluding that

Mr. Hassen’s rehabilitation was not an extraordinary and compelling reason

5 Notably, the record on appeal shows six of Mr. Hassen’s co-defendants were sentenced to 200 months’ imprisonment or more, and two co-defendants received 300 months’ imprisonment or more. 9 Appellate Case: 22-3079 Document: 010110783815 Date Filed: 12/15/2022 Page: 10

justifying his compassionate release under § 3582(c)(1)(A)(i). The district court had

the authority to determine for itself what constitutes extraordinary and compelling

reasons. See Maumau, 993 F.3d at 834. Mr. Hassen’s contentions fail to show the

court abused its discretion in concluding his rehabilitation combined with the

sentencing differences he alleged did not warrant his release.

C. Mr. Hassen’s Disciplinary Record and Recidivism Risk

The district court concluded its analysis by finding Mr. Hassen’s “minimal

disciplinary record and his alleged low recidivism risk” did not justify compassionate

release. R., Vol. 4 at 56. He contends the district court erred by mistakenly

describing his clean disciplinary record as “minimal” and by stating his recidivism

risk was “low” when it is “minimum.” Mr. Hassen is correct. His contentions are

supported by the record. See R., Vol. 5 at 16 (noting his “Risk Level” was “R-MIN”

and he had “0” incident reports for 120 months). The problem is Mr. Hassen does

not explain how these distinctions are material under the circumstances. Nor does he

contend either that his clean disciplinary record or his minimum recidivism risk is,

itself, an extraordinary and compelling reason for release. According to Mr. Hassen,

he is clarifying these factual points for full consideration of his legal arguments.

Given our analyses of Mr. Hassen’s other contentions, however, we cannot conclude

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the district court’s factual errors as to his disciplinary record and his recidivism risk

amount to an abuse of discretion requiring reversal.

III. Conclusion

Like the district court, we acknowledge the seriousness of Mr. Hassen’s son’s

illness, the associated risk to his son should he contract COVID-19, and the family’s

burden from handling these challenging circumstances. But a district court has

“substantial discretion” in determining whether to grant compassionate release under

§ 3582(c)(1)(A). Hald, 8 F.4th at 938 n.4. Here, we do not “have a definite and firm

conviction that the [district] court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” United States v. Merritt,

961 F.3d 1105, 1111 (10th Cir. 2020) (brackets and internal quotation marks

omitted). We therefore affirm the district court’s denial of Mr. Hassen’s second

motion for compassionate release.

Entered for the Court

Veronica S. Rossman Circuit Judge