United States v. True Vangh ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1901
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United States of America
Plaintiff - Appellee
v.
True Yang Vangh
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 15, 2021
Filed: July 13, 2021
[Unpublished]
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Before SHEPHERD, ERICKSON, and KOBES, Circuit Judges.
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PER CURIAM.
True Yang Vangh appeals the district court’s denial of her motion for
compassionate release pursuant to the First Step Act, arguing that the district court
misinterpreted 18 U.S.C. § 3582(c)(1)(A). Having jurisdiction pursuant to 28 U.S.C.
§ 1291, we vacate and remand for further proceedings.
I.
Vangh worked as Manager of the Hmong American Federal Credit Union (the
Credit Union) in St. Paul, Minnesota, while her husband worked as its President and
Chairman of the Board of Directors. The pair held personal accounts at the Credit
Union as well as accounts for the multiple businesses they owned. Vangh and her
husband were charged with eight counts of bank fraud in violation of 18 U.S.C.
§§ 1344, 2 after they fraudulently diverted funds (in excess of $2 million) from the
Credit Union to their personal and business accounts. 1 Vangh pled guilty to one of
the eight counts, and the district court sentenced her to 72 months imprisonment with
4 years supervised release after varying downward from the United States
Sentencing Guidelines range of 97 to 121 months. The district court also ordered
restitution in the amount of $1,781,106. Vangh began serving her sentence in June
2018. Her anticipated release date is July 26, 2023.
On March 22, 2020, Vangh filed a motion in the district court for
compassionate release pursuant to 18 U.S.C. § 3582. In that motion, she detailed a
medical history replete with physical and mental ailments. Vangh cited a 2011 car
accident and explained that following the accident, she has experienced severe and
chronic pain issues, including episodes of dizziness; mobility limitations; and liver,
gallbladder, and gastrointestinal complications. Vangh also explained that she
suffers from Hepatitis A, Type II Diabetes, hypertension, depression, and anxiety.
Vangh asserted that these conditions alone warrant compassionate release, and when
coupled with the COVID-19 virus, she faces a “significant risk of death.” R. Doc.
160, at 1. Vangh’s motion mentioned only a March 18, 2019 request (the March 18
Request) to the Bureau of Prisons (BOP) which she allegedly submitted while
housed at Bryan, Texas Federal Prison Camp (FPC Bryan). She explained that FPC
Bryan’s Warden did not respond to the March 18 Request within 30 days and
1
This Court recently provided a brief recitation of the facts in United States v.
Vangh, 990 F.3d 1138 (8th Cir. 2021), a case in which Vangh’s husband appeared
before us.
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therefore, pursuant to § 3582(c)(1)(A), she had exhausted her administrative
remedies.
Vangh moved for leave to supplement her motion for compassionate release,
and in response, the government contended that Vangh never submitted the March
18 Request. In its opinion denying Vangh’s motion for compassionate release, the
district court first addressed the March 18 Request. It explained that although Vangh
initially failed to provide any evidence of the March 18 Request, she later submitted
a declaration from a paralegal who assisted her in making that request; attached to
this declaration was a screen capture from the United States Postal Service’s website,
showing a tracking number and a delivery date of March 21, 2019. See R. Doc. 175.
After receiving this declaration, the district court asked the government to search the
compassionate release records of both FPC Bryan and Carswell, Texas Federal
Prison Camp (FPC Carswell). Neither facility’s database showed a record of the
March 18 Request. The government also submitted a declaration from an FPC Bryan
employee responsible for processing and logging all compassionate release requests.
In her declaration, this employee stated that she had personally reviewed the BOP’s
tracking database and could not find any record of the March 18 Request. See R.
Doc. 182-1, at 2. Therefore, the district court did not consider Vangh’s request for
compassionate release insofar as she relied on the March 18 Request, as its existence
was contradicted by the record.
The government also argued that, to the extent Vangh intended to rely on a
May 17, 2019 request (the May 17 Request) that she made to the BOP while housed
at FPC Carswell, she failed to exhaust her administrative remedies. It alleged that
FPC Carswell’s Warden denied her request within 30 days of receipt of that request,
pursuant to § 3582(c)(1)(A), and that Vangh failed to administratively appeal that
denial (via the BOP’s Administrative Remedy Program). Vangh responded to this
argument, reiterating that the FPC Bryan Warden failed to respond to her March 18
Request before arguing that, even if the district court declined to consider her March
18 Request, Vangh’s motion was properly before the district court because her
motion for compassionate release was filed 30 days after the Warden’s receipt of the
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May 17 Request. R. Doc. 180, at 1-2. She argued, “The [district court] should hold
that Vangh exhausted her administrative remedies because her motion was ‘filed in
court 30 days after receipt of a request by the warden.’” R. Doc. 180, at 2 (citation
omitted). The district court agreed with the government and dismissed Vangh’s
motion, explaining that Vangh failed to exhaust her administrative remedies because
she failed to appeal FPC Carswell’s Warden’s denial in accordance with the BOP’s
Administrative Remedy Program. It did not address Vangh’s argument that, under
the alternative provision of § 3582(c)(1)(A), the district court had the authority to
reduce her sentence as her motion was filed “30 days from the receipt of [her] request
by the warden of [her] facility.” Vangh now appeals the district court’s denial.
II.
Following passage of the First Step Act in 2018, a prisoner may bring a motion
for compassionate release on her own behalf if, prior to bringing that motion, she
has exhausted her administrative remedies. Vangh, 990 F.3d at 1139-40. Section
3582(c)(1)(A) provides, in relevant part:
[T]he 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 . . . .
18 U.S.C. § 3582(c)(1)(A) (emphasis added). “We review de novo the applicability
of the First Step Act to a defendant’s case, including whether a defendant is eligible
for a sentence reduction. We review for an abuse of discretion the district court’s
decision to grant or deny an authorized sentence reduction.” United States v. Rodd,
966 F.3d 740, 746 (8th Cir. 2020) (citation omitted). Further, “[w]e review a district
court’s findings of fact under a clearly erroneous standard.” Lesch v. United States,
612 F.3d 975, 980 (8th Cir. 2010).
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The motion for compassionate release filed by Vangh and before the district
court in this case was based solely on the March 18 Request to the Warden of FPC
Bryan. The district court concluded after review that this claim fails because no such
request was in fact submitted to the BOP. In this appeal, Vangh does not present
any “meaningful argument” that the district court erred in so finding and we deem
such a claim, if made, waived. See White v. Jackson, 865 F.3d 1064, 1076 n.1 (8th
Cir. 2017) (citation omitted).
Therefore, the only existing request is Vangh’s May 17 Request, which the
government, not Vangh, first cited in its argument to the district court. The district
court’s consideration of the May 17 Request was confined to its conclusion that
because Vangh failed to follow the BOP’s Administrative Remedy Program and
properly appeal the Warden’s denial of that request, she failed to exhaust her
administrative remedies as required by § 3582(c)(1)(A). The district court did not
consider Vangh’s argument that § 3582(c)(1)(A), in the alternative, allows a prisoner
to seek relief in federal court 30 days from the warden’s receipt of that prisoner’s
compassionate release request, even if the warden responded within those 30 days
and even if the prisoner fails to pursue available administrative appeals.
Although Vangh asks us to find that the district court erred in its interpretation
of the “30-day” provision contained in § 3582(c)(1)(A), the district court did not
interpret that provision. This Court is “an appellate court sitting to review alleged
errors of law, and not to try the action de novo.” Twentieth Century-Fox Film Corp.
v. Brookside Theatre Corp., 194 F.2d 846, 852 (8th Cir. 1952) (citation omitted);
see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of
course, that a federal appellate court does not consider an issue not passed upon
below.”). Therefore, in order to afford the district court an opportunity to evaluate
Vangh’s argument, interpret the alternative “30-day” provision of § 3582(c)(1)(A),
and determine whether it possessed the authority to reduce Vangh’s sentence where
Vangh waited 30 days from the date of the Warden’s receipt of her May 17 Request
for compassionate release, even though Vangh failed to exhaust her administrative
remedies, remand is appropriate.
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III.
For the foregoing reasons, we vacate and remand for further proceedings
consistent with this opinion. We render no opinion as to the merits of Vangh’s
underlying request for relief.
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