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Ninth Circuit:
No Error in Denying Compassionate Release to Tech CEO Claiming Harsh Conditions
Panel Says Defendant Failed to Show That Prison Confinement Is Unusually Severe Due to COVID-19 Restrictions, Health Conditions Putting Him at Increased Risk of Disease
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a motion for a reduction in sentence—under a federal statute providing for “compassionate release” upon a showing of certain extraordinary circumstances—was properly denied as to a former executive of a technology company who alleged that the conditions of his confinement during the pandemic were “unusually harsh.”
Appealing the order was Lawrence Gerrans, the former president and chief executive officer of the Bay Area medical device company Sanovas which was founded in 2009 and specializes in imaging technologies. Gerrans was convicted by a jury of wire fraud and other crimes relating to allegations that he siphoned funds from the company to purchase a $2.5 million luxury home, a Maserati, jewelry, and cover other personal expenditures.
In November 2020, Senior District Court Judge Edward M. Chen of the Northern District of California sentenced Gerrans to 11 years and three months in prison. After his conviction was affirmed on appeal, he sought compassionate release under 18 U.S. Code §3582(c)(1)(A).
Under the section, early release may be granted if a petitioner, having exhausted all administrative appeals, establishes that there are “extraordinary and compelling reasons” for a sentence reduction and that the factors set forth in §3553—including the nature of the offense and criminal history of the defendant, the need for the sentence based on recidivism and other concerns, and the avoidance of sentencing disparities—weigh in favor of relief.
Gerrans’ motion asserts that he is “a 52-year-old man with multiple serious health conditions”—including obesity, hypertension, and a heart defect—and alleges:
“Mr. Gerrans’s experience has been especially arduous. At FCI La Tuna, where Mr. Gerrans is currently housed, 652 out of 842 total inmates have tested positive for COVID-19. At a nearly 80 percent infection rate, FCI La Tuna had one of the highest COVID-19 outbreak numbers in the country. Before he was transferred to FCI La Tuna, Mr. Gerrans was housed at FCI Lompoc, where about 77 percent (891 of 1162) of all inmates had tested positive for COVID-19.9 FCI Lompoc’s poor handling of the COVID-19 emergency prompted a federal district court to appoint an independent expert…to conduct site visits and prepare a report about the facility….[which] concluded that Lompoc’s handling of the COVID-19 outbreak ‘forces a pessimistic assessment about how seriously the facility and the [Federal Bureau of Prisons] take their own policies, the guidelines of the CDC, and basic infection control.’ ”
Gerrans also contends that his cardiac conditions put him at increased risk of harm for complications from COVID-19 and that he “now suffers from the effects of ‘Long COVID.’ ”
Relief Denied
Chen denied relief. The judge acknowledged that “some courts have found that the punitive impact of lockdowns and restrictions such as those faced by Mr. Gerrans counsel in favor of compassionate release” but noted that the defendant had only served approximately four years of his sentence. He concluded:
“While the Court recognizes that the harshness of conditions may warrant early release, or a finding of time served, what Mr. Gerrans experienced was hardly unique. Thousands of individuals incarcerated during the COVID pandemic unfortunately suffered similar hardships.”
As to his health conditions, Chen was unpersuaded by studies submitted by the defendant that indicated what the jurist described as “sporadic and infrequent instances” of possible links between heart conditions and complications from inoculation and concluded that his assertion of “compelling circumstances related to enhanced health risk from COVID is undermined by the fact that he has declined vaccination for COVID-19.”
In a memorandum opinion signed by Circuit Judge Eric D. Miller, Senior Circuit Court Judge Sidney R. Thomas, and District Court Judge Kenneth K. Lee H. Rosenthal of the Southern District of Texas, sitting by designation, the Ninth Circuit affirmed.
No Extraordinary Reasons
The panel said that “[t]he district court did not abuse its discretion by concluding that no extraordinary and compelling reasons warrant a reduction in Gerrans’s sentence.” They noted:
“Gerrans contends that he was singled out for harsh treatment before and during the pandemic, housed in isolation, and shuttled between numerous facilities as a result of his advocacy for better prison conditions. But it was Gerrans’s burden to show that his conditions of confinement were unusually harsh…and he provided no independent evidence to support his contentions.”
Continuing, they wrote:
“[W]hile Gerrans now argues on appeal that he was targeted for transfers and solitary confinement as retaliation and that the district court failed to assess the uniquely harsh conditions of his confinement in that light, Gerrans did not present this argument in his motion to the district court. The district court did not clearly err in finding that the ‘lockdowns and restrictions…faced by Mr. Gerrans,’ though ‘unfortunate[],’ were similar to those imposed on ‘[t]housands of individuals incarcerated during the COVID pandemic.’….To the contrary, the court acknowledged that the ‘harsh conditions’ of Mr. Gerrans’s confinement ‘might be considered…in the future,’ but it explained that they did not warrant a reduction at this time given that Gerrans had served less than half of his sentence.”
The case is U.S. v. Gerrans, 23-3822.
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