1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 UNITED STATES OF AMERICA, Case No. 2:08-CR-64 JCM (GWF)

8 Plaintiff(s), ORDER

9 v.

10 STEVEN GRIMM, et al.,

11 Defendant(s).

12 13 Presently before the court is Eve Mazzarella’s (“defendant”) motion to reconsider this 14 court’s denial of compassionate release. (ECF No. 807). The government has not responded, and 15 the time to do so has passed. 16 I. Background 17 As relevant to this motion, Judge Hunt sentenced defendant to 14 years’ incarceration on 18 March 30, 2012, for various charges related to a mortgage fraud scheme. (ECF Nos. 428; 439). 19 In light of the ongoing COVID-19 pandemic, defendant moved this court for 20 compassionate release. (ECF No. 778). She argued that her underlying conditions compromise 21 her immune system. (Id.). This court ultimately denied defendant’s request, (ECF No. 798), but 22 first ordered a medical examination of defendant and additional briefing. (ECF No. 778). This 23 court was inclined to release defendant, but only if she was actually diagnosed with Systemic 24 Lupus Erythematous (“lupus”) as alleged. (ECF No. 787). The BOP’s physician examined 25 defendant and found that she did not have lupus. (ECF No. 794). 26 Defendant moves for reconsideration after having obtained additional medical opinions on 27 her immunological condition. (ECF No. 807). 28 1 II. Legal Standard 2 Federal Rule of Civil Procedure 60(b) provides that a court may relieve a party from 3 judgment on the basis of (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly 4 discovered evidence that, with reasonable diligence, could not have been discovered in time to 5 move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing 6 party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is 7 based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no 8 longer equitable; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b).1 9 III. Discussion Per the local rules, “[t]he failure of an opposing party to include points and authorities in 10 response to any motion constitutes a consent to granting the motion.” LCR 47-3. The response 11 deadline was over two weeks ago, yet the government has not responded. However, this court 12 exercises its discretion to consider the government’s prior briefing and examine the merits of 13 defendant’s request. (ECF No. 807). Defendant represents that the government has communicated 14 its desire to maintain its original position. (Id.). 15 Defendant moves to reconsider on “based upon new information and developments in 16 [defendant’s] medical condition and diagnosis.” (Id.). Defendant’s family has retained Second 17 Opinion Expert, Inc. (“Second Opinion”), “a medical service which provides medical reviews and opinions based upon actual medical examinations or review of medical records when a face to face 18 examination is not possible.” (Id.). Defendant has also received an additional medical 19 examination from the Bureau of Prisons (“BOP”) which corroborated her position. (Id.). These 20 additional medical opinions are indeed new facts, warranting reconsideration. Defendant 21 represents that these opinions sufficiently demonstrate that she suffers from an autoimmune 22 disorder that presents an increased risk of harm from COVID-19. (Id.). This court agrees. 23 24

25 1 “[M]otions for reconsideration in criminal cases are governed by the rules that govern equivalent 26 motions in civil proceedings.” United States v. Mendez,

, at *2 (C.D. Cal. June 25, 2008); see also United States v. Martin,

, 1047 n. 7 (9th Cir. 2000) (“As the 27 Second Circuit noted in United States v. Clark, post-judgment motions for reconsideration may be filed in criminal cases”). 28 1 The opinion of Rheumatologist Arash A. Horizon, M.D. (“Dr. Horizon”) diagnoses 2 defendant with “Chronic Urticari,” noting that it is “likely an immediated process whereby the 3 triggered immune response is causing uritcuria.” (Id.). Defendant explains that this is where the immune system “attack[s] the normal tissues of the body and caus[es] hives as a result.” (Id. 4 (citing American Osteopathic College of Dermatology, Urticaria, www.aocd.org/page/Urticaria)). 5 This court notes that the opinion was generated without the benefit of an in-person examination, 6 thus this court’s determination rests heavily on the entirety of defendant’s medical records. (ECF 7 Nos. 778, 807). 8 In August 2020, defendant also received and examination from a BOP physician, Dr. 9 Bikramjit Ahluwalia (“Dr. Ahluwalia”). Dr. Ahluwalia opined that defendant suffered from 10 “systemic involvement of connective tissue, unspecified – M35-9.” (ECF No. 807). This opinion 11 also recognizes the possibility of autoimmune disease and recommends treatments accordingly. 12 This opinion was made after an in-person examination and it largely tracks with the opinion by Dr. Horizon. (Id.). 13 Having weighed the dueling medical opinions presented by the defendant and government, 14 this court finds that the instant case presents an extraordinary and compelling reason for release. 15 While the court need not reiterate the well-known effects COVID-19 has had on day-to-day life, 16 certain populations are particularly at risk of “severe illness” from the virus. See Center for 17 Disease Control, People Who Need to Take Extra Precautions, (June 25, 2020).2 The CDC has 18 provided that “severe illness from COVID-19” means “hospitalization, admission to the ICU, 19 intubation or mechanical ventilation, or death.” See Center for Disease Control, Evidence used to 20 update the list of underlying medical conditions that increase a person’s risk of severe illness from 21 COVID-19, (Oct. 6, 2020).3 Additionally, defendant represents that she has had difficulty receiving her treatment. (ECF No. 807). Both of defendant’s recent medical opinions prescribe 22 Hydroxychloroquine. (Id.). 23 This court has also weighed all necessary factors in deciding to grant defendant’s motion. 24 To be eligible for compassionate release, a defendant must then demonstrate: (1) the existence of 25

26 2 Available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra- 27 precautions/index.html. 28 3 Available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/evidence-table.html. 1 extraordinary and compelling reasons, and (2) that he is not a danger to the community. 18 U.S.C. 2 § 3582(c)(1)(A); USSG § 1B1.13. Under USSG § 1B1.13, “extraordinary and compelling 3 reasons” include, amongst other things, terminal illnesses and medical conditions “that substantially diminishes the ability of the defendant to provide self-care within the environment of 4 a correctional facility and from which he or she is not expected to recover.” USSG § 1B1.13. This 5 court grants defendant’s motion only upon considering defendant’s condition alongside other 6 factors under

(a). Defendant has served approximately 8 years of her 14-year 7 sentence, and she serves no danger to the community. (ECF No. 778). The present circumstances 8 dictate that the remainder of her sentence is better served outside of prison. Defendant has 9 represented that she is able to serve this time with her father in California and that she has her 10 family’s support. (Id.). 11 In light of this court’s determination, defendant’s remaining 2255 motion is denied as moot. 12 (ECF No. 700). Conclusion 13 Accordingly, 14 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendant Eve 15 Mazzarella’s motion to reconsider (ECF No. 807) be, and the same hereby is, GRANTED. 16 IT IS FURTHER ORDERED that defendant’s motion for compassionate release (ECF No. 17 778) be, and the same hereby is, GRANTED. 18 IT IS FURTHER ORDERED that defendant’s motion to Vacate, Set Aside, or Correct 19 Sentence under 28 U.S.C. 2255 (ECF No. 700) be, and the same hereby is, DENIED as moot. 20 IT IS FURTHER ORDERED that defendant’s sentence of imprisonment be, and the same 21 hereby is, MODIFIED to CREDIT FOR TIME SERVED. IT IS FURTHER ORDERED that this order is stayed for up to 14 days, for the verification 22 of the defendant’s residence and/or establishment of a release plan, to make appropriate travel 23 arrangements, and to ensure the defendant’s safe release. The defendant shall be released as soon 24 as a residence is verified, a release plan is established, appropriate travel arrangements are made, 25 and it is safe for the defendant to travel. There shall be no delay in ensuring travel arrangements 26 are made. If more than fourteen days are needed to make appropriate travel arrangements and 27 ensure the defendant’s safe release, the parties shall immediately notify the court and show cause 28 why the stay should be extended. 1 IT IS FURTHER ORDERED that defendant’s counsel shall, within 7 days of this order, 2 contact the BOP to arrange transportation. 3 IT IS FURTHER ORDERED that defendant shall serve the remaining portion of the 4 original term of imprisonment (as calculated by the BOP) as supervised release with the special 5 condition that he shall be subject to home incarceration without the requirement of electronic monitoring for the time being. ° IT IS FURTHER ORDERED that defendant shall not be required to report to the U.S. 7 Probation Office in person. However, within 72 hours of his release, defendant shall contact the 8 U.S. Probation Office by telephone to check in. 9 IT IS FURTHER ORDERED that defendant shall be restricted to her residence at all times 10) (home incarceration) except for medical necessities and or other activities specifically approved 11 | by U.S. Probation or this court. 12 IT IS FURTHER ORDERED that defendant shall serve supervised release as originally 13 imposed. 4 IT IS FURTHER ORDERED that, in light of the COVID-19 pandemic, current standard condition originally imposed mandating that defendant work at least 30 hours per week at a lawful type of employment and participate in community service is temporarily suspended. 16 IT IS FURTHER ORDERED that all other conditions of supervision originally imposed 7 shall remain in effect. 18 DATED October 21, 2020. tis ©. Atala 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28

es C. Mahan District Judge _5-