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Tuesday, June 2, 2020

DEFENDANT HAS FAILED TO ESTABLISH AN “EXTRAORDINARY AND COMPELLING REASON” FOR A SENTENCE REDUCTION: Government Response To Robert Buckhannon's May 6 Motion To Modify Prison Sentence Asserts Buckhannon Failed To Meet “His Burden Of Establishing Sentence Reduction Is Warranted”

Hey, Can't Blame A Guy For Faking Trying!
Photo Illustration

BREAKING! Feds say Buckhannon “still poses a danger to the safety of the community”.

Less than two months after his client entered federal prison on March 25, 2020 to serve a 24-month sentence, Robert Buckhannon's attorney filed a motion to modify the terms of the sentence from incarceration to home confinement due to the threat posed by the COVID-19 pandemic—even though there have been no confirmed cases of coronavirus at the high-security federal prison where he’s currently incarcerated (USP Atwater, in Merced, California).

But in its June 1, 2020 response to Buckhannon's motion, the federal prosecution team asserted the defense motion should be denied “because the relief Defendant requests is not authorized by the statute and he has not met his burden of establishing that a sentence reduction is warranted under the statute.” 

In 2019, Buckhannon pleaded guilty to conspiracy to commit wire fraud for making false representations to a commercial lender and creating fake lease documents to fraudulently obtain financing for a for “a struggling business venture in Battle Creek”, the On Deck Bar & Grill.

According to the government’s response, the “leases were fake, the signatures were forged, and the victim lender never would have loaned the money had it been told the truth.” 

As a result, Buckhannon caused $467,213.98 in financial damage. 

“Additionally, similar his use of investor funds for personal expenses in the Nevada fraud, Buckhannon siphoned off part of the business loan proceeds to help finance the purchase of a personal residence in Battle Creek for his own personal use without telling the victim lender of his plan. 

After the loan proceeds were exhausted and the business was destroyed by an intentionally-set fire two months later, Buckhannon left Michigan to move on to his next business venture.” 

In the sentencing memorandum filed February 6, 2020, government prosecutors (while recommending 18-24 months behind bars) revealed Buckhannon was a rat, and had provided “substantial assistance”, providing a “lengthy proffer statement to a senior trial attorney with the U.S. Securities and Exchange Commission Division of Enforcement and the U.S. Attorney’s Office in July 2019.” 

Buckhannon provided information concerning allegations of securities fraud being committed at a company located outside of Michigan “based on his personal knowledge and firsthand observation.” 

Wow, we all know that's immense!

Buckhannon's attorney, John Damak, requested early release due to a “combination of Mr. Buckhannon’s documented serious medical conditions, his confinement within a BOP facility and the ever growing spread of COVID-19 throughout California and the BOP have created a life-threatening scenario for Mr. Buckhannon. This amalgam of factors has created an extraordinary and compelling reason that justifies a modification of his term of imprisonment to home confinement.”

Not so fast!

Although Buckhannon claimed in his petition he was virtually knock-knock-knocking on heaven's door, a federal review of his medical records (filed under seal) tells another story.

According to the government response, although Buckhannon claimed he had two serious medical conditions that put him at greater risk for COVID-19 should he become infected with the virus, his medical records (filed under seal) do not support such a finding. 

Buckhannon asserted that he was diagnosed with a right bundle branch block the day before his sentencing. Buckhannon’s medical records reflect that, on February 11, 2020 (two days before his sentencing), he walked into a hospital emergency room in Las Vegas, Nevada complaining of chest pain and shortness of breath. 

He denied any chronic medical illness. 

After running numerous tests, virtually all findings were negative. Defendant’s EKGs showed a normal sinus rhythm but an “incomplete right branch block.” 

When the first EKG was compared to a prior EKG dated March 2, 2010, the technician noted: “No significant change was found.” A chest x-ray revealed no negative findings and no acute pulmonary process. There was no indication in the records that Buckhannon “complained of asthma or wheezing, or that asthma had anything to do with his complaints.” 

Against medical advice, Buckhannon refused admission, refused to wait for a stress test, and left the hospital on February 12. He was given no prescription medication at the time of discharge. The next day, he appeared in Michigan for his sentencing in this case. (To the best recollection of government counsel, Buckhannon “never mentioned his hospital visit at sentencing.”) 

Although Buckhannon now characterizes his diagnosis as a “serious heart condition” that can lead to “heart failure,” there is nothing in his medical records or on the Mayo Clinic website page cited by Buckhannon in his motion that supports his characterization. Rather, the Mayo Clinic page cited by Buckhannon stated only that, “If one of these is damaged, it can make it harder for your heart to beat normally, as your ventricles don’t beat in coordination with each other.” 

Additionally, Buckhannon's BOP medical records indicate that he had a general history/physical on April 8, 2020 during quarantine. No abnormal findings were noted. The records indicate that Buckhannon self-reported no history of cardiovascular or respiratory issues. His lungs were clear with no wheezing. 

According to BOP medical records obtained by the government, on April 22, 2020, Buckhannon told health staff that “he was just in hospital for A-fib” and that he left the hospital against medical advice for treatment of A-fib. 

The BOP medical notes further indicate that, “[Defendant] said he is ‘controlling it through diet and exercise’ and ‘was successful.’” Defendant received an EKG in prison on May 13, 2020. He was not diagnosed with A-fib, nor any other serious heart issue. Rather, he was diagnosed with sinus bradycardia, which means his heart rate is slower than normal. 

So, was it really “A-fib”…or just a fib? 

Accordingly, Buckhannon has not demonstrated that he suffers from a “serious heart condition” such that he is at higher risk for severe illness from COVID-19. 

Second, Buckhannon claims that he suffers from asthma, and because moderate or severe asthma is a risk factor for COVID-19, he argues for an order to release him to home confinement. 

Notably, Buckhannon complained of no health issues at the time of the presentence investigation report, which was prepared in 2019 and filed on January 14, 2020. Specifically, the PSR stated, “The defendant is [sic] reported he is in good health, with his last physical being July 2018. . . . He does not take prescription medication and does not suffer from any allergies.” 

In stark contrast, after Buckhannon began serving his sentence at the BOP, he said that he was diagnosed with asthma in 2016 or 2017 and had been prescribed an Albuterol inhaler. He claimed to experience wheezing, but staff observed no wheezing during an examination on April 22, 2020. 

Additionally, on May 8, 2020, BOP medical staff performed a baseline chest x-ray of Buckhannon. The results were unremarkable and there is no evidence of bronchial asthma. Specifically, the radiology report stated the following findings: “The cardiac silhouette is normal. Trachea is midline. Mediastinal and hilar contours are unremarkable. Lungs and pleural spaces are clear. Osseous structures are intact. Visualized upper abdomen is grossly unremarkable.” The impression of the radiologist was: “No radiographic evidence for an acute cardiopulmonary process.” 

This is consistent with the unremarkable x-ray performed at the Nevada hospital in February. 

Accordingly, there is no evidence—other than his own word—that Buckhannon is suffering from asthma, let alone moderate or severe asthma. 

According to the government response, Buckhannon's asserted medical conditions do not rise to the level of severity required under the policy statement. Additionally, his conditions are not conditions identified by the CDC as increasing a person’s risk for developing serious illness from COVID-19. 

For these reasons, the government asserted that Buckhannon has failed to establish an “extraordinary and compelling reason” for a sentence reduction under § 3582(c), and his motion should be denied.

And, even if Buckhannon's medical conditions are “serious,” he still poses a danger to the safety of the community and the Section 3553(a) factors strongly weigh against his release. 

Because this is Buckhannon's second federal fraud conviction in two years in two different districts for conduct that occurred over several years, he has demonstrated that he poses a serious risk of financial harm to others.

Stay tuned to see if Buckhannon will be sprung from federal stir...or if he'll have to serve his entire sentence behind bars (and not on his couch with Olga cooking up another scheme.)

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