Pandemic or Not, Serious Insurance Fraud Criminal Must Serve the Sentence: Attempt to Avoid Sentence Because Of Pandemic by Insurance Criminal Fails.

• Author: Zalma, Barry
• Position: [ON MY RADAR]

* Mikhail Zemlyansky is serving a 15-year sentence of imprisonment which was imposed in January 2016. He is currently incarcerated at the Federal Correctional Institution at Fairton, New Jersey. Defendant has moved for compassionate release under the First Step Act in light of the COVID-19 pandemic. The Government opposed the motion. In United States of America v. Mikhail Zemlyansky, 12-CR-171-01 (JPO), United States District Court Southern District Of New York (July 6, 2020) the warden failed to grant compassionate release and Zemlyansky appealed to the USDC.

FACTS

Defendant was convicted of running a wide-ranging racketeering enterprise that engaged in insurance fraud, securities fraud, and money laundering, among other crimes. Defrauded victims of the enterprise lost millions of dollars. For the reasons explained by the Court at sentencing, these crimes were extremely serious and he was sentenced to serve 15 years and had only served five to date.

LEGAL STANDARD

A court may not modify a term of imprisonment once it has been imposed except pursuant to statute. Under the First Step Act of 2018, a court is permitted to reduce a term of imprisonment if, after considering the factors it finds that extraordinary and compelling reasons warrant such a reduction and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. The applicable policy statement outlines four circumstances that constitute "extraordinary and compelling reasons" and thus justify a sentence reduction. One of those circumstances is where the defendant is "suffering from a serious physical or medical condition that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover. The policy statement also requires that the defendant not pose "a danger to the safety of any other person or to the community."

DISCUSSION

Defendant is a 44-year-old man who suffers from hypertension and is overweight. He argues that these conditions place him at a high risk of severe complications in the event of a COVID-19 outbreak at the prison.

This Court in other cases has found "extraordinary and compelling reasons" warranting release to home incarceration based on serious health risks from the COVID-19 pandemic.

Although Defendant's hypertension and weight likely place him at somewhat higher risk from COVID-19, they are relatively...