Frank D. Whitney Chief United States District Judge

ORDER

Defendant Michael Attilio Mangarella moves the Court for a sentencing reduction under the compassionate release provisions of the First Step Act. See ECF No. 679 ("Motion"). Because Mangarella does not present circumstances justifying such extraordinary relief, his Motion is DENIED.

I. Background. In this Court's Order of June 15, 2016 denying Defendant Mangarella's "Motion for Reduction/Modification of Supervised Release Terms & Sentence for Good Cause," this Court summarized the procedural and factual background of the instant case:

On September 18, 2008, a jury convicted movant Michael Attilio Mangarella in this Court of conspiracy to defraud the United States, 18 U.S.C.§ 371, and multiple counts of wire fraud, 18 U.S.C. § 1343, 18 U.S.C. § 2, after he was extradited from Costa Rica where he and others operated a fraudulent sweepstakes scheme aimed at U.S. citizens. This Court initially sentenced Petitioner to a term of 600 months' imprisonment. While Petitioner's appeal was pending, the Fourth Circuit Court of Appeals vacated the sentence of Petitioner's co-defendant, Giuseppe Pileggi, who had received the same term, on the ground that it was a de facto life sentence that was not in accord with the assurance given to Costa Rica. Before briefing on Petitioner's appeal was completed, Petitioner moved to remand his case for resentencing, and the motion was granted.

On remand, this Court adopted its previous rulings on Petitioner's objections to the presentence report and imposed a sentence of 360 months, as well as ordering restitution of $2,687,501.47 and forfeiture of $10 million. Because no count carried a statutory maximum equal to 360 months, in order to achieve that total sentence, the Court imposed the maximum 60-month sentence on Count One, a 60-month sentence on Count Two, and concurrent 240-month sentences on the remaining counts, with the sentences for Counts One and Two to run consecutive to each other and to the remaining 240-month sentences. Petitioner appealed and the Fourth Circuit affirmed in an unpublished opinion on July 10, 2012. On September 30, 2013, Petitioner filed a pro se motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. On April 22, 2014, this Court denied the motion to vacate on the merits and with prejudice. Petitioner appealed and on December 24, 2014, the Fourth Circuit Court of Appeals dismissed the appeal.

On October 14, 2019, Mangarella submitted a request for a compassionate release/reduction in sentence to the warden of FCI Coleman Low, where Mangarella is serving his sentence, "based on medical and non-medical circumstances for elderly inmates over the age of 60 and [sic] completed more than 10 years or 75 percent of his or her term of imprisonment, whichever is less." Mot. Ex. 1 at 2. By letter dated November 12, 2019 and signed on November 18, 2019, Warden Kathy P. Lane denied Mangarella's request, informing him:

A review of your medical documentation reflects you are diagnosed with dyslipidemia, COPD, irritable bowel syndrome, GERD, chronic rhinitis, and BPH. You have a mental health diagnosis of anxiety. Although you are elderly and are diagnosed with chronic medical conditions related to the aging process, your medical condition is stable, your condition is not terminal, and your life expectancy is indeterminate. You are not completely disabled and totally confined to a bed or chair. You are able to independently attend to your activities of daily living and your condition does not affect your ability to function in a correctional setting.

II. Legal Standards

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act on December 21, 2018, allows a defendant to file a motion for compassionate release with a district court in addition to the Warden and provides in relevant part:

(c) Modification of an imposed term of imprisonment. — The court may not modify a term of imprisonment once it has been imposed except that —
(1) in any case —
(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that —
(i) extraordinary and compelling reasons warrant such a reduction; . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

(B) Age of the Defendant. — The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

III. Discussion

Although Mangarella highlights several medical conditions, he has failed to establish that they are causing "a serious deterioration in physical or mental health because of the aging process." U.S.S.G. § 1B1.13 cmt. n.1(B). In his Motion, Mangarella points to his "chronic emphysema Level II, irreversable [sic] lung disease, which currently has no cure and continues to worsen, BPH Benign Hypertrophy of Prostrate, Chronic Obstructive Pulmonary Disease (COPD), Polyneuropathy in Diabetes, Vertigo, and other age-related diseases." Mot. at 4. Mangarella makes no effort to specifically establish how these conditions are causing serious deterioration in his health, merely making the conclusory statement that they cause "significant resulting impairment." Mot. at 4. This contention is belied by the medical records that he submitted. There is no submitted evidence of deterioration effects from these conditions. As the warden observed, Mangarella's "medical condition is stable." Mot. Ex. 1 at 1; see also United States v. Gutierrez, No. CR 05-0217 RB, 2019 WL 2422601, at *4 (D.N.M. June 10, 2019) ("[T]he Court puts great weight on the Director's discretionary decision to deny Mr. Gutierrez's request."). Defendant's emphysema — which was diagnosed in 2005, while the underlying offense conduct was continuing, see, e.g., Superseding Indictment, ECF No. 113, at 4 (conspiracy began in "early 2003" and continued until "on or about May 16, 2006") — is listed, as a subset of chronic airway obstruction COPD, as "stable," with the last entry more than six years old, on October 11, 2013. Mot. Ex. 1 at 9. His BPH is listed as in "[g]ood control"; its last entry is also from October 11, 2013. Id. The polyneuropathy in diabetes entries notes "[n]o hx [history] of Diabetes." Id. at 11. In fact, while the submitted Bureau of Prisons Health Services Health Problems report was generated on September 6, 2019, see id. at 8, the most recent date listed for any the conditions enumerated in Mangarella's Motion is an entry for chronic obstructive pulmonary disease on November 11, 2016, with no accompanying commentary. See id. at 10. In sum, Mangarella — who is the minimum age permitted for "age of the defendant" compassionate release — has presented no evidence at all of his relevant medical conditions since 2016, and no evidence of any vintage that he is suffering "physical and cognitive deterioration . . . impair[ing] basic human functions." Ebbers, 2020 WL 91399, at *6.

While full evaluation of the § 3553(a) factors or Mangarella's rehabilitation is not required due to his failure to establish, as a threshold matter, that he is experiencing "serious deterioration" of his health, any such evaluation weighs against granting compassionate release. A few points bear noting: First, as the procedural history makes clear, Mangarella has already benefited from the imposition of a lesser sentence than the Court concluded was otherwise warranted — 360 months instead of 600 months — due to the terms of his extradition. Of even more significance, nowhere in his Motion does Mangarella accept responsibility or express remorse for his criminal conduct. Rather than attempt to demonstrate that he regrets his actions and would not choose to reoffend, Mangarella points to his "physical and mental condition" as "realistically foreclose[ing] a probability of dangerous recidivism," Mot. at 8. Finally, while Mangarella highlights "his family" as "community connections and release assets," in the preceding sentence he admits that he "has not seen his family (wife and two teenage boys) for eleven years," Mot. at 5, undermining any weight to be accorded on this point.

IV. Conclusion

Accordingly, for the foregoing reasons, Defendant's motion for compassionate release is DENIED. Signed: March 15, 2020

/s/_________

Frank D. Whitney

Chief United States District Judge