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`Case 3:14-cr-00225-MMA Document 541 Filed 10/23/23 PageID.2694 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
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` Case No. 14cr225-MMA-4
`
`ORDER DENYING DEFENDANT’S
`MOTION FOR COMPASSIONATE
`RELEASE
`
`[Doc. No. 535]
`
`UNITED STATES OF AMERICA,
`Plaintiff,
`
`v.
`GIANG VAN DOAN (4),
`
`Defendant.
`
`
`On May 19, 2015, Defendant Giang Van Doan pleaded guilty to Counts 1 and 2 of
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`a Superseding Indictment charging him with conspiracy to distribute methamphetamine
`and possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
`§§ 841(a)(1) and 846. See Doc. No. 207. On February 22, 2016, the Court sentenced
`Defendant to a total term of imprisonment of one hundred and sixty-eight (168) months
`followed by a five-year term of supervised release. See Doc. No. 342. Defendant is
`projected to be released from custody on January 11, 2026.1
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`
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`1 See Federal Bureau of Prisons Online Inmate Locator, available at https://www.bop.gov/inmateloc
`(last visited Sept. 18, 2023).
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`Case 3:14-cr-00225-MMA Document 541 Filed 10/23/23 PageID.2695 Page 2 of 8
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`Pending before the Court is Defendant’s third request for relief under 18 U.S.C.
`§ 3582(c). In August 2021, Defendant filed a motion to reduce his sentence pursuant to
`§ 3582(c)(1)(A)(i). See Doc. No. 491. The Court referred the motion to Federal
`Defenders for review pursuant to General Order 692-B, see Doc. Nos. 492, 494, and
`directed the government to respond, see Doc. Nos. 495, 499. On October 15, 2021, the
`Court denied Defendant’s motion. See Doc. No. 503. Thereafter, Defendant filed a
`motion for reconsideration, see Doc. No. 508, which the Court denied, see Doc. No. 509.
`Defendant appealed and the Ninth Circuit affirmed. See Doc. Nos. 511, 518.
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`On May 31, 2023, Defendant submitted a second motion for compassionate release
`pursuant to 18 U.S.C. § 3582(c)(1)(A). See Doc. No. 524. The Court referred the motion
`to Federal Defenders for review, see Doc. Nos. 525, 527, and directed the government to
`respond, see Doc. Nos. 528, 529. The Court denied Defendant’s motion for failure to
`demonstrate he exhausted his administrative remedies without prejudice to renewal upon
`a sufficient demonstration that Defendant has fully exhausted his administrative remedies
`and otherwise qualifies for such relief. See Doc. No. 533.
`
`On August 8, 2023, Defendant filed a renewed motion for reduction in sentence
`pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). See Doc. No. 535. The Court referred the
`motion to Federal Defenders for review. See Doc. Nos. 536, 537. The government
`opposes Defendant’s motion, see Doc. No. 539, and Defendant has filed a reply, see Doc.
`No. 540.
`
`DISCUSSION
`Defendant puts forth several arguments in support of his motion. He asserts that if
`sentenced today, he would not be subject to the career offender enhancements, or would
`otherwise receive a lesser sentence based upon a methamphetamine purity disparity. He
`also contends that because he is not a citizen of the United States, his sentence is
`disparate, and that the Attorney General’s December 2022 Sentencing Memorandum
`compels a reduction in his sentence. The government opposes, arguing that Defendant is
`either incorrect or that these circumstances do not warrant relief.
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`14cr225-MMA-4
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`Case 3:14-cr-00225-MMA Document 541 Filed 10/23/23 PageID.2696 Page 3 of 8
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`A. Relevant Law
`“A federal court generally ‘may not modify a term of imprisonment once it has
`been imposed.’” United States v. Aruda, 993 F.3d 797, 799–800 (9th Cir. 2021) (quoting
`Dillon v. United States, 560 U.S. 817, 819 (2010)).
`
`Under 18 U.S.C. § 3582(c)(1)(A), Congress provided an exception,
`sometimes known as compassionate release, to reduce a sentence for
`“extraordinary and compelling reasons.” For over thirty years, under the
`original statute, only the BOP Director could file a § 3582(c)(1)(A) motion
`for a sentence reduction on a defendant’s behalf. However, as part of the First
`Step Act of 2018, Congress amended § 3582(c)(1)(A) to also allow a
`defendant to seek a reduction directly from the court, provided that the
`defendant first seeks a reduction from the BOP and that request has either
`been denied or 30 days have passed.
`
`Aruda, 993 F.3d at 799–800 (quoting 18 U.S.C. § 3582(c)(1)(A)).
`Section 3582(c)(1)(A), as amended by the First Step Act, currently provides, in
`pertinent part, that the Court may grant a defendant’s motion for reduction in sentence
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`after considering the factors set forth in section 3553(a) to the extent that they
`are applicable, if it finds that—
`
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`(i) extraordinary and compelling reasons warrant such a reduction; . . .
`
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`and that such a reduction is consistent with applicable policy statements issued
`by the Sentencing Commission[.]
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`18 U.S.C. § 3582(c)(1)(A) (emphasis added).
`Congress provided no statutory definition of “extraordinary and compelling
`reasons.” Many years prior to the FSA’s modification, the United States Sentencing
`Commission published a policy statement addressing the standards for compassionate
`release. See U.S.S.G. § 1B1.13. However, section 1B1.13 “is not an ‘applicable policy
`statement[]’ for 18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant.” Aruda, 993
`F.3d at 802. Therefore “[t]here is as of now no ‘applicable’ policy statement governing
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`compassionate-release motions filed by defendants under the recently amended
`§ 3582(c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any
`extraordinary and compelling reason for release that a defendant might raise.’” Id. at 801
`(quoting United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020).2 In fact, district
`courts must consider all circumstances proffered by a defendant that are neither frivolous
`nor congressionally barred from consideration. See United States v. Concepcion, 142 S.
`Ct. 2389, 2396 (2022); see also United States v. Chen, 48 F.4th 1092, 1095 (9th Cir.
`2022).
`B.
`Exhaustion
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`This Court has jurisdiction over a sentencing reduction motion only if: (1) “the
`defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of
`Prisons to bring [such] a motion on [their] behalf”; or (2) “the lapse of 30 days from the
`receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”
`18 U.S.C. § 3582(c)(1)(A); see also United States v. Keller, 2 F.4th 1278, 1281 (9th Cir.
`2021).
`It is undisputed that Defendant has exhausted his administrative remedies. See
`Doc. No. 535 at 4; Doc. No. 539 at 7. Defendant submitted a compassionate release
`request to the Warden of FCI Berlin on July 20, 2023. Doc. No. 535 at 4. The Warden
`responded on July 21, 2023, and as a practical matter, denied his request. Id.
`Accordingly, the Court finds that Defendant has duly exhausted his administrative
`remedies and turns to the merits of his motion.
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`
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`2 The United States Sentencing Commission has submitted Adopted Amendments to the Sentencing
`Guidelines to Congress, which, assuming no congressional action to the contrary, will become effective
`on November 1, 2023. See U.S. Sentencing Commission, Guidelines, Amendments, available at
`https://www.ussc.gov/guidelines/amendments. Because these amendments are not yet effective, they do
`not appear to be binding on the Court. It is not clear if the Court is permitted to consider them in any
`capacity at this time, and so the analysis below is not guided by them. However, assuming the
`forthcoming amendments may be relevant to the Court’s analysis, it appears clear that Defendant’s
`situation does not fit within any of the enumerated circumstances, thus supporting the Court’s
`independent determination that Defendant is not entitled to relief.
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`C. Analysis
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`The Court begins by noting that it has already rejected Defendant’s argument
`relating to Amendment 798 to the United States Sentencing Guidelines. See Doc.
`No. 503 at 4–7. The Court incorporates its prior Order by reference, see Doc. No. 503,
`and reiterates that this amendment does not weigh in Defendant’s favor on the
`extraordinary and compelling analysis. Even assuming Defendant would not be subject
`to the career offender enhancement today, the resulting Guidelines range for a total
`offense level of 34 and a Criminal History Category of IV is 188–235 months in custody.
`Defendant’s sentence of 168 months is less than he claims he would receive with the
`benefit of Amendment 798. As such, there is simply no sentencing disparity resulting
`from Amendment 798.
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`Next, Defendant asks the Court to reduce his sentence based upon the distinction
`between methamphetamine and actual methamphetamine. According to Defendant, if he
`was sentenced without the 10:1 actual methamphetamine enhancement (and the career
`offender enhancement), his total offense level would be 29 and his Criminal History
`Category would be IV, resulting in a Guidelines range 121–151 months.3
`
`Defendant pleaded guilty to conspiracy to distribute more than “50 grams of
`methamphetamine (actual)” and possession with intent to distribute “approximately
`462.9 grams of methamphetamine (actual).” Doc. No. 207 (emphasis added).
`Nonetheless, Defendant seemingly asks the Court to reduce his sentence to reflect a
`conviction of methamphetamine mixture, or some other drug. The Court is not
`persuaded. That other courts have since taken a policy-driven position in disagreement
`with the Sentencing Commission’s distinction between pure methamphetamine and
`methamphetamine mixture is not an extraordinary and compelling reason to reduce
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`3 According to Defendant’s calculation, without the enhancements his base level offense would have
`been 30. With a two-level increase under USSG § 2D1.1(b)(5) and three level decrease for acceptance
`of responsibility, his total offense level would have been 29. The resulting Guidelines range for this
`level with a Criminal History Category of IV is 121–151 months. See Doc. No. 535 at 1.
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`Case 3:14-cr-00225-MMA Document 541 Filed 10/23/23 PageID.2699 Page 6 of 8
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`Defendant’s sentence by 17–47 months.4
`Moreover, Attorney General Garland’s December 2022 Memorandum5 does not
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`assist Defendant in demonstrating extraordinary and compelling reasons to grant his
`motion. According to Defendant, Attorney General Garland’s policy since 2022 is to not
`use career offender enhancements or hold defendants to mandatory minimums if certain
`criteria are met. See Doc. No. 535 at 2.
`Defendant was not sentenced to a mandatory minimum term in custody. While his
`charges and conviction carried a mandatory minimum sentence of 10 years, Defendant
`was sentenced to 14 years. This was simply not the case where the Court wished to
`impose a lower sentence but could not because of a mandatory minimum. Moreover, the
`criteria Defendant identifies applies to the Justice Department’s position on whether to
`charge defendants with offenses subject to mandatory minimums. It is not clear that
`Defendant would have benefitted from this policy change had it been in effect at the time
`of his indictment, or when he was subsequently charged by Information. Even assuming
`Defendant satisfied some or most of the criteria, the Memorandum advises that
`prosecutors are to carefully review the circumstances and exercise their discretion in
`determining whether a Title 21 charge carrying a mandatory minimum is appropriate. It
`is not extraordinary or compelling that the prosecutor may have hypothetically exercised
`his discretion in the instant case. Nor is it extraordinary or compelling that the
`government has since developed a more lenient or discretionary position on charging
`defendants, which may have hypothetically applied to Defendant. For these reasons,
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`4 Even accepting Defendant’s calculation—i.e., accepting that the Court would have taken this policy-
`driven position resulting, in combination with Amendment 798, in this Guidelines range, for the reasons
`explained in the prior Order, see Doc. No. 503 at 5–7 (collecting cases), the Court finds a discrepancy of
`17–47 months is not extraordinary or compelling on these facts.
`5 Attorney General Garland’s memorandum is not a change in law—it is an internal office document
`providing policies “solely for the guidance of attorneys for the government.” See Office of the Attorney
`General, Memorandum for All Federal Prosecutors – Additional Department Policies Regarding
`Charging, Pleas, and Sentencing in Drug Cases (dated Dec. 16, 2022), available at
`https://www.justice.gov/media/1265321/dl?inline.
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`Case 3:14-cr-00225-MMA Document 541 Filed 10/23/23 PageID.2700 Page 7 of 8
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`Attorney General Garland’s December 2022 Memorandum does not assist Defendant in
`demonstrating that he is entitled to a reduction in sentence. Cf. United States v.
`Fernandez, 2023 U.S. Dist. LEXIS 47971, at *9–10 (S.D.N.Y. Mar. 21, 2023); United
`States v. Sanctioned/Barred Justin Paul Sterling 01, No. 2:05-CR-20061-01, 2023 U.S.
`Dist. LEXIS 60350, at *8 (W.D. La. Apr. 4, 2023).
`
`Finally, Defendant contends he faces extraordinary and compelling circumstances
`because he is not a citizen of the United States. According to Defendant, because he is
`not a U.S. citizen he cannot receive the benefit of placement in a halfway house or home
`confinement, nor can he participate in R-DAP or earn First Step Act credits to reduce his
`sentence. Doc. No. 535 at 2. Defendant asserts that the Court has the authority to grant a
`“Smith Variance” on these facts. Id.
`United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994), held that “a downward
`departure,” in sentencing, “may be appropriate where the defendant’s status as a
`deportable alien is likely to cause a fortuitous increase in the severity of his sentence.”
`However, Defendant has already been sentenced, and federal law prohibits the Court
`from “modify[ing] a term of imprisonment once it has been imposed,” except when
`presented with “extraordinary and compelling reasons.” 18 U.S.C. § 3582(c). The fact
`that all non-U.S. citizens in federal prison face these same circumstances necessarily
`undermines Defendant’s position that these circumstances are extraordinary and
`compelling. See United States v. Carlos-Tofolla, No. 1:17-cr-00343-DCN, 2023 U.S.
`Dist. LEXIS 87630, at *9 (D. Idaho May 16, 2023) (“If a set of circumstances applies to
`much of the prison population, it cannot be said to be extraordinary.”). Moreover, it is
`within the Bureau of Prisons’ discretion to “designate the place of the prisoner’s
`imprisonment,” 18 U.S.C. § 3621(b), including a reentry facility or home confinement,
`id. § 3624(c), and implement the FSA’s good conduct time credits provision, id.
`§ 3624(b). To the extent Defendant challenges the execution of his sentence in any of
`these respects, he should seek relief pursuant to 28 U.S.C. § 2241 in the district in which
`he is confined. Accordingly, that Defendant’s circumstances and opportunities are
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`different from U.S. citizens—while the same for all non-citizens—is not extraordinary
`and compelling.
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`Because the Court finds that Defendant has not presented extraordinary and
`compelling circumstances warranting a reduction in his sentence, the Court need not
`assess whether the sentencing factors set forth in 18 U.S.C. § 3553(a) support such relief.
`Nonetheless, for the reasons explained in its prior Order, see Doc. No. 503 at 8–9, the
`Court finds that the sentencing factors weigh against granting relief.
`CONCLUSION
`For the foregoing reasons, the Court DENIES Defendant’s motion for a reduction
`in sentence.
`IT IS SO ORDERED.
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`Dated: October 23, 2023
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`_____________________________
`HON. MICHAEL M. ANELLO
`United States District Judge
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