Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 9, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-5027 (D.C. No. 4:19-CR-00157-JFH-1) WILLIAM BRIAN MULDER, a/k/a Bill (N.D. Okla.) Mulder,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________
William Brian Mulder, appearing pro se, appeals the district court’s denial of a
sentence reduction. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Mulder’s conviction and sentence
In June 2022, Mulder pleaded guilty to two counts—fraud and money
laundering—of a 78-count indictment. The district court sentenced him to
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 2
84 months’ imprisonment followed by three years of supervised release and ordered
him to pay restitution of nearly $8.5 million. During the time period relevant to this
appeal, Mulder was housed at FCI Butner, Medium I, but he has also spent time at
the Butner Complex’s medical center, FMC Butner.
B. Mulder’s first motion for sentence reduction; motion for reconsideration
In November 2022, Mulder, then 64 years of age, filed a pro se motion for a
sentence reduction under 18 U.S.C. § 3582(c)(1)(A), the compassionate release
statute. As relevant here, the statute provides that, on motion, a district court “may
reduce the term of imprisonment . . . after considering the factors set forth in
[18 U.S.C. §] 3553(a) to the extent they are applicable,” but only “if 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[.]” § 3582(c)(1)(A)(i).
In his motion, Mulder described a multitude of major health issues, including
Behavioral Variant Frontotemporal Dementia (“BVFD”), which he claimed was
terminal, and myelodysplastic syndrome (“MDS”). He alleged the Butner medical
staff was unable to provide adequate medical care for his complicated conditions. In
particular, he alleged that a failure to provide him with a critical medication caused
him to lose consciousness and fall in August 2022, which resulted in serious injuries,
including a traumatic brain injury, a torn ACL, constant headaches, and some loss of
vision and hearing. He further alleged that his conditions impaired his ability to
perform activities of daily living (“ADLs”). He asked the court to release him from
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prison or place him on home confinement so he could receive care from his own
doctors, including those at the Mayo Clinic.
In January 2023, the district court denied Mulder’s motion. After
summarizing his medical conditions and prescription medications, the court made the
following findings: The Bureau of Prisons (“BOP”) listed his “current healthcare at
Level 3—Unstable, Complex Chronic Care.” R. vol. I at 733. He was being seen
regularly at the prison and by specialists at Duke Regional Hospital. His providers
were aware of his medical history and in possession of his Mayo Clinic records. His
five most recent blood pressure readings were significantly lower than those he
reported from 2021 and early 2022. After he fell, he was taken to a hospital for a CT
scan, which showed no intracranial bleeding, and after some mild initial confusion,
he was alert and oriented. Mulder “did not lose consciousness, and suffered a bruise
to his face [and] a cut that was sealed with adhesive.” Id. at 733. He also sustained
“a relative afferent pupillary defect to his right eye, for which no treatment was
recommended, as his vision may gradually improve with time, and would be
monitored by his healthcare providers.” Id. at 733–34. He was discharged from the
hospital the next day. The medical records contradicted his claim that he has a
diminished ability to perform ADLs. Many of his reasons for compassionate release
were “based on subjective beliefs or claims that are not supported by his medical
record,” and his “providers have noted inconsistencies between his reports and his
objective condition.” Id. at 734.
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Based on Mulder’s medical records, classification status, and treatment
history, the district court found Mulder was “not at undue risk” because he was
receiving “comprehensive medical care” at a facility that could provide “immediate
diagnosis and specialized treatment for a wide range of health concerns,” and he had
“not demonstrated that his imprisonment places him in jeopardy of life-threatening
complications.” Id. at 735. Thus, the court concluded that Mulder’s “medical
conditions and imprisonment do not rise to the level of extraordinary and compelling
reasons to warrant a reduction of sentence” under § 3582(c)(1)(A)(i). Id.
In a series of filings, Mulder again sought a reduction in sentence pursuant to
§ 3582(c)(1). The district court construed these filings collectively as a motion to
reconsider its January 2023 order denying compassionate release based on several
concerns: The BOP misplaced Mulder’s CPAP machine. The court had understated
the complications from his August 2022 fall—he had in fact lost consciousness; was
hospitalized; sustained a concussion; has dizziness, vision and hearing loss, and
ongoing severe headaches; and needs assistance with some ADLs. In April 2023 he
contracted COVID-19. The BOP cannot adequately address his conditions. And a
BOP neurologist recommended that Duke neurosurgery immediately evaluate Mulder
for a cerebrospinal fluid leak that could be causing his vision loss, but a BOP
physician delayed that examination by requesting a second opinion.
The district court dismissed the motion to reconsider as untimely and
alternatively denied it on the merits. The court found that the CPAP machine had
been replaced, the consultation with Duke neurosurgery had been arranged, and
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Mulder’s Level 3 classification afforded him adequate medical care, including
assistance with some ADLs and periodic hospitalization. The court noted that if
Mulder’s health deteriorated further, he would be eligible for Level 4 care, “which
provides inmate care at a BOP Medical Referral Center offering significantly
enhanced medical services, to include 24-hour skilled nursing care or nursing
assistance, if necessary.” R. vol. 1 at 745.
C. Mulder’s second motion for sentence reduction
Mulder next filed another motion for a sentence reduction supplemented with
nine other filings. He alleged his multiple medical conditions had worsened,
identifying the most serious conditions as congestive heart failure, BVFD, MDS,
lingering effects from his COVID-19 infection, and vision loss. He alleged his BOP
medical records contained many errors and misleading or fraudulent statements. He
reasserted that the BOP was providing inadequate care for his conditions. He
provided the district court with an article from National Public Radio critical of the
quality of medical care at the Butner Complex. He sought both compassionate
release under § 3582(c)(1) and a sentence reduction under § 3582(c)(2) based on
Amendment 821 to the Sentencing Guidelines.1
1 Section 3582(c)(2) authorizes a court to reduce a sentence for a defendant “who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” § 3582(c)(2). The Sentencing Commission adopted Amendment 821 in November 2023. In relevant part, Amendment 821 added USSG § 4C1.1 to provide for a two offense-level reduction for certain defendants with zero criminal history points. See USSG Supp. App. C, amend. no. 821, Pt. B, Subpart 1, at 236–37 (2023). Courts may apply the reduction retroactively. See USSG § 1B1.10(d). 5 Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 6
The district court treated the ten filings collectively as a second motion for a
reduction in sentence and denied it. After summarizing Mulder’s medical conditions
and medications, the court observed that testing at the Duke Medical Center revealed
no intracranial abnormalities, an unlikely risk of a cerebrospinal fluid leak, and
normal vital signs, all of which resulted in an opinion that Mulder did not require
further emergent intervention and a recommendation that he follow up with his
primary care physician. The court also recounted that an oncology review
determined he had a very low-risk MDS. However, the court found that due to his
many health conditions and his advanced age, Mulder was at increased risk from a
COVID-19 outbreak at the prison. The court therefore concluded he had shown
extraordinary and compelling circumstances that could warrant a sentence reduction
pursuant to § 3582(c)(1)(A)(i) and § 1B1.13(b)(1)(D) of the United States Sentencing
Guidelines.2 Turning then to the § 3553(a) factors, the court found that “[t]he
breadth, extent, large monetary loss, and serious nature of [Mulder’s criminal]
conduct” and the fact he had served only 18 months of his sentence outweighed the
bases for reducing it. R. vol. I at 813.3
2 As relevant to the court’s ruling, USSG § 1B1.13(b)(1)(D) provides that “[e]xtraordinary and compelling reasons” for a sentence reduction “exist” when a “defendant is housed at a correctional facility affected or at imminent risk of being affected by . . . an ongoing outbreak of infectious disease,” the defendant’s “health risk factors and custodial status” place him “at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak,” and “such risk cannot be adequately mitigated in a timely manner.” 3 The § 3553(a) factors are “the nature and circumstances of the offense”; “the history and characteristics of the defendant”; the need for a sentence to reflect the 6 Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 7
The district court also denied Mulder’s request for an Amendment 821
reduction in sentence. The court recounted that the parties had agreed to a sentencing
range of 70 to 90 months “regardless of any advisory Sentencing Guidelines
calculations” and found that if the court sentenced Mulder “today under like
circumstances with a two-point Amendment 821 reduction to the sentencing range,”
the “Court would impose the same sentence.” Id. at 814–15 (internal quotation
marks omitted).
D. Mulder’s third motion for sentence reduction; motion for reconsideration
Soon after the district court denied Mulder’s second motion for a sentence
reduction, Mulder filed two supplemental motions for a reduction in sentence. In
these filings, Mulder stated Butner’s warden had just recently approved a reduction
in sentence/compassionate release. He also provided details of additional or
worsening medical conditions as documented by various providers and continued to
assert the BOP was providing inadequate medical care. He asked the district court to
grant him compassionate release under § 3582(c)(1).
The district court construed the two supplemental motions as a third motion
for compassionate release and denied it. The court found that “[a]side from
ambulatory concerns, blackouts, and worsening vision—apparent symptoms or
crime’s seriousness, “to promote respect for the law,” “to provide just punishment,” to deter future crimes, “to protect the public from further crimes of the defendant,” and to provide rehabilitation; the legally available sentences; the Sentencing Guidelines; the Sentencing Commission’s policy statements; “the need to avoid unwarranted sentence disparities”; and the need for restitution. 7 Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 8
complications of previously argued health problems, [Mulder] has not presented new
evidence or a fresh § 1B1.13 argument sufficient to overcome this Court’s previous
§ 3553(a) finding that a reduction of sentence is unwarranted.” R. vol. I at 852.
Consequently, the court found that Mulder’s original sentence was “sufficient, but
not greater than necessary, to comply with” sentencing purposes and justified by
Mulder’s “nature and characteristics[,] . . . the seriousness of the offense, the need to
promote respect for the law, the necessity to protect the community from further
crimes, and the need to provide for adequate deterrence.” Id.
Mulder filed a motion for reconsideration. On February 9, 2024, the district
court denied the motion because it raised issues the court had resolved in its orders
denying Mulder’s three motions for a sentence reduction and presented no new
factual or legal bases supporting his request for compassionate release.
Mulder appeals.
II. STANDARD OF REVIEW
We review a district court’s denial of a sentence reduction under
§ 3582(c)(1)(A)(i) or § 3852(c)(2) for an abuse of discretion. See United States v.
Bradley, 97 F.4th 1214, 1218 (10th Cir. 2024) (§ 3582(c)(1)(A)(i)); United States v.
Piper, 839 F.3d 1261, 1265 (10th Cir. 2016) (§ 3582(c)(2)). “A district court abuses
its discretion when it relies on an incorrect conclusion of law or a clearly erroneous
finding of fact,” Piper, 839 F.3d at 1265 (internal quotation marks omitted), or
“when it makes a clear error of judgment, exceeds the bounds of permissible choice,
or when its decision is arbitrary, capricious or whimsical, or results in a manifestly
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unreasonable judgment,” United States v. Mobley, 971 F.3d 1187, 1195 (10th Cir.
2020) (internal quotation marks omitted). Because Mulder represents himself, we
afford his pro se filings a liberal construction, but we may not act as his advocate.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. DISCUSSION
Based on § 3582(c)(1)(A)(i)’s prerequisites, this court has adopted a three-step
test district courts are to apply when determining whether to grant a motion for
compassionate release. See United States v. McGee, 992 F.3d 1035, 1042 (10th Cir.
2021). At step one, “a district court must find whether extraordinary and compelling
reasons warrant a sentence reduction.” Id. (brackets and internal quotation marks
omitted). At step two, “a district court must find whether such reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” Id.
(emphasis, brackets, and internal quotation marks omitted). And at step three, a
district court must “consider any applicable § 3553(a) factors and determine whether,
in its discretion, the reduction authorized by steps one and two is warranted in whole
or in part under the particular circumstances of the case.” Id. (brackets and internal
quotation marks omitted).
Mulder identifies six issues on appeal. In his first and second issues, he argues
the district court failed to recognize he qualifies for a reduction in sentence under
provisions of USSG § 1B1.13(b)(1) and BOP Program Statement 5050.504
4 “A BOP program statement is an interpretative statement of position circulated within the agency that serves to provide administrative guidance in 9 Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 10
concerning terminal, serious, and debilitating medical conditions, medical conditions
requiring “long-term or specialized medical care that is not being provided and
without which the defendant is at risk of serious deterioration in health or death,”
USSG § 1B1.13(b)(1)(C), and infectious-disease outbreaks at a defendant’s prison.
Relatedly, and more generally, Mulder asserts the district court understated his health
status and omitted some of his serious medical conditions.
We see no abuse of discretion in the district court’s analysis of Mulder’s
medical conditions. In its orders denying the first and second motions, the district
court detailed Mulder’s medical conditions. In its order denying the second motion,
the court determined that in combination with a COVID-19 outbreak at Butner,
Mulder had in fact met the step-one requirement to demonstrate extraordinary and
compelling reasons for a sentence reduction under § 3582(c)(1)(A)(i) and USSG
§ 1B1.13(b)(1)(D). And in its order denying Mulder’s third motion, the court made
clear it had considered his most current account of his medical conditions. It is
immaterial that the court did not base its step-one finding solely on the presence of
either a terminal condition or a serious or debilitating condition. Even if the court
did not expressly mention all of Mulder’s many serious or debilitating conditions, it
applying a then existing published rule.” Hunnicutt v. Hawk, 229 F.3d 997, 999 n.2 (10th Cir. 2000) (brackets and internal quotation marks omitted). In relevant part, Program Statement 5050.50 informs the BOP’s decision whether to file a § 3582 motion for a sentence reduction on behalf of an inmate when that inmate has a terminal or debilitated medical condition. 10 Appellate Case: 24-5027 Document: 37-1 Date Filed: 10/09/2024 Page: 11
was clearly aware of them, and it expressly noted Mulder’s view that his medical
conditions were “likely lethal[.]” R. vol. I at 808.
In any event, the district court based its denial of a reduction in sentence on a
step-three evaluation of the § 3553(a) sentencing factors. That alone was a sufficient
basis for denying a reduction. Although a district court must address all three steps
before it may grant a compassionate-release motion, it may deny such a motion
“when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do[es]
not need to address the others.” McGee, 992 F.3d at 1043 (internal quotation marks
omitted). That said, this court has observed that “the facts allegedly establishing
extraordinary and compelling reasons for release . . . are relevant to the § 3553(a)
analysis,” and a district court may not “deny compassionate-release relief on the
ground that release is not appropriate under § 3553(a) if the court has not considered
the facts allegedly establishing extraordinary and compelling reasons for release,”
United States v. Hald, 8 F.4th 932, 947 (10th Cir. 2021). However, as we have
noted, the district court considered those facts here but found that when balanced
against the § 3553(a) factors, a sentence reduction was not warranted. We see no
abuse of discretion in the district court’s finding.
In his third issue, Mulder claims the district court essentially sentenced him to
death when it recognized that in light of his serious medical conditions (including a
critically low white blood cell count that leaves him at high risk of catching a serious
infection), the COVID-19 risk at Butner amounted to extraordinary and compelling
circumstances yet declined to order compassionate release. In essence, this argument
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challenges the district court’s balancing of the § 3553(a) factors against Mulder’s
susceptibility to contracting a COVID-19 infection. But we see no abuse of
discretion in the balance the district court struck.
In his fourth issue, Mulder contends the district court placed too much weight
on the percentage of the 84-month sentence he had already served, and he alleges he
has been incarcerated long enough to have respect for the law. In his fifth issue,
Mulder asserts that he poses no risk of recidivism and is not a threat to the
community. These arguments ask us to reweigh the § 3553(a) factors, but
“reweighing [those] factors is beyond the ambit of our [abuse-of-discretion] review,”
United States v. Lawless, 979 F.3d 849, 856 (10th Cir. 2020).
In his sixth issue, Mulder argues the district court largely overlooked that the
Butner Complex provides substandard health care and allegedly is no longer an
accredited medical facility. The record, though, reflects that the district court
acknowledged Mulder’s arguments that he was receiving substandard care but
disagreed with his position.
We perceive one other issue adequately presented in Mulder’s opening brief.
Mulder contends the district court erred in denying his request for an
Amendment 821 sentence reduction. As we understand him, Mulder faults the
district court’s rationale—that it would impose the same sentence “today under like
circumstances,” R. vol. I at 814–15—because his health has worsened since his
original sentencing, so the circumstances are not the same. We read the district
court’s reference to “like circumstances” to mean the parties’ agreement to a
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sentencing range of 70 to 90 months’ imprisonment, and that in those circumstances,
a two-point reduction to the sentencing range under Amendment 821 would not alter
the sentenced imposed, even accounting for Mulder’s current health status. We see
no abuse of discretion in the district court’s reasoning.
IV. CONCLUSION
We affirm the district court’s denial of Mulder’s requests for a reduction in
sentence.
Entered for the Court
Bobby R. Baldock Circuit Judge