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United States v. Vangh

United States District Court, D. Minnesota

December 19, 2019

United States of America, Plaintiff,
v.
Nkajlo Vangh, Defendant.

          Lisa D. Kirkpatrick and Michelle E. Jones, Assistant United States Attorneys, Counsel for Plaintiff.

          Brandon Sample, Counsel for Defendant.

          MEMORANDUM OPINION AND ORDER

          Michael J. Davis United States District Judge

         This matter is before the Court on Defendant's Motion for Sentence Reduction Under 18 U.S.C. § 3582(c)(1)(A).

         I. Background

         Defendant and his wife were charged with multiple counts of aiding and abetting bank fraud in violation of 18 U.S.C. §§ 2 and 1344. The Indictment alleged that Defendant and his wife fraudulently diverted funds from the Hmong American Federal Credit Union (“HAFCU”) to themselves and to businesses they operated through fraudulent loans deposited into accounts that they controlled.

         On May 23, 2017, Defendant pleaded guilty to Count 1 of the Indictment, bank fraud, and stipulated that from an unknown date through at least September 2010, he and his wife knowingly devised and executed a scheme and artifice to defraud and to obtain monies and funds under the custody and control of the HAFCU by means of false and fraudulent pretenses, representations, promises and omissions of material facts. He further stipulated that as part of the scheme, they issued eight fraudulent loans totaling $2, 075, 000.

         On September 11, 2017, Defendant was sentenced to a term of imprisonment of 90 months, which was a downward variance from the applicable guideline range of 121 to 151 months. One basis for the downward variance was Defendant's serious medical conditions, including Type II Diabetes, blindness in his right eye, hearing loss and mental health issues due to his medical and physical limitations. (Doc. No. 106 (Statement of Reasons at 5).)

         Defendant is currently incarcerated at the Federal Medical Center in Rochester, Minnesota and is scheduled for release on May 24, 2024.

         On May 17, 2019, Defendant asked the BOP to grant him compassionate release under the First Step Act and 18 U.S.C. § 3582(c)(1)(A). By letter dated August 16, 2019, the Warden recommended to the Office of General Counsel (“OGC”) that Defendant be considered for a modification to his term of imprisonment because he “meets the criteria for consideration due to his debilitating medical condition.” (Gov't Ex. 2.)

         On September 13, 2019, the OGC denied Defendant's motion because Defendant did not meet the requirements set forth in Section 3(b) of the BOP's Program Statement No. 5050.50 on Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g).

         Section 3(b) provides that the OGC may consider an inmate's request for a reduction in sentence if the inmate has “an incurable, progressive illness or [has] suffered a debilitating injury from which they will not recover.” It further provides that consideration should be given if the inmate is “[c]ompletely disabled, meaning the inmate cannot carry on any self-care and is totally confined to a bed or chair; or [c]apable of only limited self-care and is confined to a bed or chair more than 50% of waking hours.”

         After reviewing Defendant's submissions and after consulting with the BOP's Medical Director, the OGC determined that Defendant

is independent with the majority of his activities of daily living (ADLs) and instrumental ADLs and uses magnifying glasses and hearing aids. He was issued a four-wheeled rolling walker with a seat and has had no documented falls over the past 18 months. As [Defendant] is independent with the majority of his ADLs and instrumental ADLs and is not confined to his bed or chair for more than 50 percent of his waking ...

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