Totaro v. United States of America
Filing
32
ORDER denying 29 Motion for compassionate release; dismissing 1 Petition for Writ of Habeas Corpus for lack of jurisdiction. Signed by Chief Judge Roberto A. Lange on 8/11/2020. (DJP)
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 1 of 7 PageID #: 246
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RONALD N. TOTARO,
4:19-CV-04057-RAL
Petitioner,
vs.
OPINION AND ORDER ON MOTION FOR
COMPASSIONATE RELEASE
UNITED STATES OF AMERICA,
Defendant.
Ronald Totaro was convicted by a jury of 61 counts of mail fraud, wire fraud, money
laundering, engaging in unlawful money transactions, and RICO racketeering in 2001. United
States v. Totaro, No CR 99-40137—RHB, 2010 WL 883773, at *1 (D.S.D. March 10, 2010); Doc.
1 at 5. The convictions resulted from an “advance fee” scheme Totaro ran from 1984 until 1999
in which he scammed investors out of millions of dollars. United States v. Totaro, 40 F. App’x
321, 322 (8th Cir. 2002). To accomplish his scheme, Totaro posed as an international banker and
convinced individuals and small businesses that he could broker high-risk loans by taking their
advanced fees and pooling it with other investors’ advanced fees to offer a private placement to
secure more funds which he would then use to grant those investors favorable loans. Id.; Totaro
v. The Hon. Richard H. Battey, No. 12-4143-RAL, Doc. 8 at 1–2. He presented a convincing show
to his victims by representing that he had high ratings from investor services and showing them
forged documents. Totaro, 40 Fed. App’x at 322. He even placed advertisements on the internet
and in periodicals seeking out borrowers to defraud. Id. at 325. Rather than follow through with
the plan he presented to his investors, Totaro pocketed the advanced fees his victims, many of
whom were from South Dakota, had provided him. Id. Prior to this scheme, Totaro had been
1
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 2 of 7 PageID #: 247
convicted of mail fraud for a similar scheme in the Western District of New York in 1984. Id. at
322.
For these crimes, Totaro was sentenced to thirty years in prison and ordered to pay more
than two million dollars in restitution. Id. Since his sentencing, Totaro has been in the custody of
or under the supervision of the Bureau of Prisons (BOP). In January 2019, Totaro was confined
at FCI Fort Dix Camp and filed a motion for compassionate release in his criminal case, 99-CR40137-01. Doc. 1 at 1. However, this Court mistakenly construed that motion as a petition for
writ of habeas corpus under 28 U.S.C. § 2241 and directed further filing to occur in this newly
opened civil matter. See Totaro, 99-CR-40137. After some confusion about whether this civil
matter should be transferred to the District of New Jersey, where Totaro was confined at the time,
the Court of Appeals for the Eighth Circuit determined that this Court was in the proper position
to determine the motion. Doc. 18.
In this habeas action, a motion for compassionate release was filed in March 2020. Doc.
29. The Government responded, indicating that due to the COVID-19 outbreak in the United
States, the BOP was recommending Totaro for transfer to home confinement and that Totaro’s
approval paperwork and quarantine protocol were already in progress. Doc. 30 at 1. In light of
those circumstances, the Government requested that this Court wait to rule on Totaro’s motion.
Id. at 2. Totaro’s BOP supervision has since been transferred to New York Residential Reentry
Management
field
office.
See
Find
an
Inmate,
Federal
Bureau
of
Prisons,
https://www.bop.gov/inmateloc/ (last visited Aug. 8, 2020). This office manages federal inmates
who are juveniles, on home confinement, short-term or long-term boarders, or in residential reentry
centers. This re-designation suggests that Totaro has now been released on home confinement.
Despite his release to home confinement, Totaro still asks this Court to rule on his pending motion,
2
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 3 of 7 PageID #: 248
arguing that home confinement may still be withheld or revoked by the BOP. Doc. 31 at 3–4. For
the reasons stated herein, this Court dismisses this habeas action and denies Totaro’s motion for
compassionate release, Doc. 29, at this time.
A motion for compassionate release under 18 U.S.C. § 3582(c), which Totaro’s motion
clearly is, cannot be brought through a habeas corpus petition. Habeas corpus petitions under 28
U.S.C. § 2241 allow prisoners to challenge the fact or duration of their confinement. Spencer v.
Haynes, 774 F.3d 467, 469–70 (8th Cir. 2014). If a prisoner “seeks a writ of habeas corpus and
fails to attack the validity of his sentence or the length of his … custody, the district court lacks
the power or subject matter jurisdiction to issue a writ.” Kruger v. Erickson, 77 F.3d 1071, 1073
(8th Cir. 1996) (per curiam). Totaro has filed habeas petitions in the past to challenge his
conviction, see Totaro v. United States, No. 5:08-cv-5041, but his current motion does not
challenge the validity of his sentence or the length of his custody; rather, it requests a modification
of his sentence based on “extraordinary and compelling” reasons. Doc. 29; see Hanson v. Rios,
Case No. 19-cv-374 (JRT/TNL), 2019 WL 4307129 at *3 (D. Minn. July 19, 2019) (“A request
for relief under 18 U.S.C. § [3582(c)] does not relate to the fact or duration of the sentence.”).
Therefore, this Court cannot consider this motion for compassionate release under the current
habeas action, and this action is therefore dismissed. However, since it was this Court’s decision
to transfer Totaro’s motion from his criminal matter, which was the proper place for filing, to this
civil action, this Court will consider Totaro’s motion on the merits.
Generally, a “court may not modify a term of imprisonment once it has been imposed,”
except in very few, narrowly defined circumstances. 18 U.S.C. § 3582(c). One of those narrow
circumstances is a request for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). The
3
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 4 of 7 PageID #: 249
compassionate release statute as amended by the First Step Act of 2018, in pertinent part provides
that
(A) the 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 … after considering the factors
set forth in section 3553(a) to the extent that they are applicable,
if it finds that—
(i)
extraordinary and compelling reasons warrant such a
reduction; …
and that such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A). This motion for compassionate release was not brought by the Director
of the BOP, but Totaro has exhausted his administrative remedies. Doc. 29-2. This Court must
next (1) consider the sentencing factors found in 3553(a); (2) determine if extraordinary and
compelling reasons warrant a sentence reduction; and (3) and consider whether a reduction is
consistent with the Sentencing Commission’s policy statement.
The sentencing factors in 18 U.S.C. 3553(a) supported a considerable sentence for Totaro’s
offenses. He committed sophisticated financial crimes that created a long list of victims, each of
whom lost thousands of dollars, and resulted in a total restitution amount of almost $2.3 million.
See Totaro, 4:99-cr-40137-RAL, Doc. 619 at 6–7, 9. These crimes were serious, especially
considering that it was Totaro’s second conviction for this type of offense. See Totaro, 40 Fed.
App’x at 322. The original sentence was no doubt designed to not only deter Totaro from
committing similar crimes which his prior conviction apparently had not, but also to protect the
public from him continuing to perpetrate these types of scams. In order to reflect the seriousness
of the offense, to promote respect for the law, and to provide just punishment for the offense, the
4
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 5 of 7 PageID #: 250
sentencing court determined that a total sentence of 360 months, broken down among the 61 counts
of conviction, was a sufficient, but not greater than necessary, sentence.
This Court next looks to whether “extraordinary and compelling reasons” exist to justify a
sentence reduction. Congress has left it to the Sentencing Commission to promulgate what
constitutes “extraordinary and compelling reasons.”
28 U.S.C. § 994(t).
The Sentencing
Commission set forth certain scenarios that would constitute “extraordinary and compelling
reasons” in the commentary notes to Federal Sentencing Guideline § 1B1.13. Totaro bases his
motion on subsection (B) to §1B1.13 comment note 1. Doc. 1 at 6. Subsection (B) provides that
extraordinary and compelling reasons exist if “[t]he defendant (i) is at least 65 years old; (ii) is
experiencing a serious deterioration in physical or mental health because of the aging process; and
(iii) has served at least 10 years or 75 percent of his… term of imprisonment, whichever is less.”
Totaro meets the objective requirements of subsections (i) and (iii). He is 78 years old, Doc. 4-4
at 1, and has served more than 19 years of his sentence. The question then becomes whether he is
experiencing a serious deterioration in physical or mental health because of the aging process.
Totaro claims that because he has severe and degenerative arthritis caused by the aging
process, that he is experiencing severe deterioration of his physical health. Doc. 1-1. Although
Totaro’s hip pain and osteoarthritis are undoubtedly examples of deterioration of physical health,
it is unclear whether they constitute “serious deterioration.” Totaro claims that he will require hip
replacement surgery at some point, Doc. 1 at 9, which would likely improve his physical health,
but his medical reports provided to this Court indicate that he is not interested in surgery, Doc. 44 at 1, 5. Because Totaro has been released from confinement in a correctional institution and can
therefore treat and exercise his condition more freely, this Court determines that his hip pain and
osteoarthritis do not create the type of “serious deterioration” necessary to constitute a sentence
5
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 6 of 7 PageID #: 251
reduction at this time. However, if Totaro experiences further deterioration of his physical
condition, he is free to refile a motion for compassionate release in his criminal file.
The global COVID-19 pandemic affecting the United States in 2020 provides an interesting
twist on Totaro’s motion for compassionate release. Conditions of confinement make it difficult
for prisoners at correctional facilities, particularly those who are high risk if they contract the
disease, to practice the type of hygiene and safety protocols the Centers for Disease Control and
Prevention recommend. Totaro would fall into the category of those at higher risk of COVID-19
complications because he is of an advanced age and suffers from hypertension. However, Totaro
already appears to be out of Bureau of Prisons custody.
Totaro’s pro se motion filed in his criminal case also asked this Court to waive the imposed
period of supervised release and the restitution ordered as part of his sentence. Doc. 1 at 10–11; 7
at 5, 7. This Court does not appear to have the authority to modify either of those sentences under
18 U.S.C. § 3582(c), nor would this Court be inclined to do so anyway. Section 3582(c)
contemplates a modification only of a term of imprisonment and does not address whether terms
of supervised release or restitution orders may be modified in a similar manner.
Because this Court does not currently find “extraordinary and compelling reasons” for a
sentence reduction at this time, it need not inquire into whether a reduction would be consistent
with the Sentencing Commission’s policy statement.
For the reasons stated herein, it is hereby
ORDERED that Totaro’s motion for compassionate release, Doc. 29, is denied at this time.
It is further
ORDERED that Totaro’s petition for writ of habeas corpus, Doc. 1, is dismissed for lack
of jurisdiction.
6
Case 4:19-cv-04057-RAL Document 32 Filed 08/11/20 Page 7 of 7 PageID #: 252
DATED this 11th day of August, 2020.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?