United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge
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.
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.
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.)
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).
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.
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).
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).
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.)
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.)
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.
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 ...