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United States v. Brjttner

United States District Court, D. Montana, Missoula Division

May 1, 2019



          Dana L. Christensen, Chief Judge

         Defendant Steve Alan Brittner filed a Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(C)(1)(A)(i) based on the "extraordinary and compelling" reason that he has terminal brain cancer. (Doc. 79.) The United States opposes the Motion. (Doc. 82.) For the reasons explained below, the Court grants the Motion.


         On September 13, 2016 the Court sentenced Brittner to 48 months in prison after he plead guilty to distribution of methamphetamine in violation of 21 U.S.C. § 846. (Doc. 65.) In January 2018, doctors diagnosed Brittner with a malignant brain tumor, and he underwent surgery in March 2018. (Doc. 80 at 4.) Brittner subsequently applied for compassionate release from the Bureau of Prisons (BOP) pursuant to 18 U.S.C. § 3583(c)(l)(A) and was denied. (Doc. 83 at 1-2.) In the memorandum that accompanied his denial, the Assistant Director of the BOP indicated that his post-surgery cranial imagery did not reveal evidence of "tumor recurrence or progression." (Id. at 1.) The memo also indicated that Brittner had a life expectancy that exceeded his remaining term of incarceration. (Id.)

         In October 2018, Brittner was evaluated by his oncologist for fatigue and weakness. (Id. at 4.) His prognosis at the time was "poor." (Id.) In November 2018, Brittner was evaluated again for weakness, fatigue, and worsening memory. (Id. at 6.) His prognosis was still "poor" and his oncologist discussed the possibility of hospice care. (Id.)

         In December, the President signed the First Step Act into law. (Doc. 80 at 2.) As modified, 18 U.S.C. § 3582(c)(1)(A)(i) allows a sentencing court to modify a sentence when "extraordinary and compelling reasons warrant such a reduction." The United States Sentencing Guidelines provide that a terminal illness is one such "extraordinary and compelling" reason. U.S. Sentencing Guidelines Manual § IB 1.13 cmt. 1(A) (2018).


         This Court's duty is to impose a sentence that is "sufficient but not greater than necessary." 18 U.S.C. § 3553(a). This Court may reduce a term of imprisonment where "extraordinary and compelling" circumstances render a Court's previous sentence greater than necessary. See 18 U.S.C. § 3582(c)(1)(A). In order to do so, an inmate must first exhaust his or her administrative remedies, and further demonstrate that he or she "is not a danger to the safety of any person or to the community," and that a reduced sentence "is consistent with the policy statement." Id.

         The Sentencing Commission promulgated a policy statement that sets out the criteria for finding an "extraordinary and compelling" reason. U.S. Sentencing Manual § 1B1.13 (2018). One such circumstance occurs when the "defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required." Id. at § lB1.13cmt. 1(A) (2018).

         As a preliminary matter, the Court finds that jurisdiction is proper because Brittner has exhausted his administrative remedies. He applied for compassionate release and was denied first in late August 2018, and again at the end of October 2018. This constitutes a "final administrative decision." 28 C.F.R. § 571.63(d).

         Brittner asks this Court to reduce his term of imprisonment because he has served three quarters of his incarceration, he has terminal brain cancer and would like to benefit from end-of-life care near his family, and he is not a danger to the community. (Doc. 80 at 3, 5-7.)

         The Government argues that this Court should not reduce Brittner's sentence because "he cannot show that he has a terminal illness, as defined under the guidelines, nor can he show that his ability of self-care has been substantially diminished." (Doc. 81 at 2.) The Government believes that Brittner does not have a "terminal illness" within the meaning of the guidelines because his medical records "do not indicate that the tumor has metastasized." (Id. at 5.)

         The Government's argument is premised on a misreading of the statute. Brittner does not need to show that his tumor has metastasized for his condition to be "terminal." The guidelines provide a number of examples of medical conditions that would meet the standard for a "terminal illness." A "metastatic solid-tumor cancer" is merely one. Others include "amyotrophic lateral sclerosis, end-stage organ disease, and advanced dementia." U.S. Guidelines Manual § 1B1.13 cmt. 1 (A) (2018). These examples are by no means an exhaustive list of medical conditions that could be characterized as "terminal." See, e.g., Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) ("the term 'including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle"); United States v. Philip Morris USA Inc., 566 F.3d 105, 1115 (D.C. Cir. 2009) (explaining that including indicates a nonexhaustive list). The question is whether Brittner's condition is similar enough to the enumerated examples to fall within the guideline's definition.

         Brittner was diagnosed with a brain tumor in January 2018, when he presented with a new-onset seizure. Brittner's course of treatment at FMC Butler included craniotomy and resection of a 7.9 cm. tumor in March 2018 followed by chemotherapy and radiation. The post-surgical pathology identified the Defendant's tumor as a WHO Grade III left ...

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