Daniel Joseph Fabricant says he is currently an “involuntary guest of the Lompoc, California federal penitentiary,” serving a life sentence for selling drugs. His most recent request for compassionate release has been rejected by the Ninth Circuit, which cited his “very lengthy, -- if non-violent -- criminal history” and his “lengthy” and numerous pro se filings,” as it affirmed the district court’s rejection of his latest appeal for compassionate release.

A unanimous panel, composed of Circuit Justices Gabriel P. Sanchez, Jennifer Sung, and Senior Judge Barry G. Silverman, affirmed the decision of Presiding District Judge Ronald S. Lew of the United States District Court for the Central District of California on March 20. The memorandum opinion found that Lew did not abuse his discretion when denying Fabricant’s request. The opinion is unpublished and is not to be used as precedent.

A former Hell’s Angel whose Facebook page features stickers that say “Bikers for Trump,” the appellant was also a candidate for the U.S Senate in 2022, but he failed to appear on the ballot. Prior to his most recent filing, he was declared a “vexatious litigant” because he had previously filed 106 ex parte applications and other requests; 73 motions; 11 oppositions, responses and objections; 16 replies, and seven pleadings regarding his sentence.

A vexatious litigant is defined under the California Code of Civil Procedure Section 391 (b) as a person who either has been involved in at least five litigations in a seven-year period, someone who repeatedly litigates the validity of determinations against the person, a pro per (a self-represented litigant) who files unmeritorious motions, or who has previously been declared to be a vexatious litigant by any state or federal court.

The Ninth Circuit opinion began by citing the section of the Penal Code that governs compassionate release. Under the Code, Fabricant was allowed to file this motion after all his administrative rights were exhausted due to the Bureau of Prison’s failure to bring such a motion on his behalf. Even though the motion was permitted, the Ninth Circuit was far from persuaded of its merits.

Fabricant’s main argument said that the district court had abused its discretion when it denied him compassionate release. He charged the court with relying too heavily on his non-violent criminal history. He said the court should have found that his age, health conditions and release plan would prevent him from committing any additional crimes if he were released. He also argued that insufficient weight had been given to his sentencing discussion in which he stated that, if sentenced for the same crimes today, the mandatory minimum would be only ten years, not life.

His campaign web page states that he “expects to be released shortly after Congress and President Biden enact the pending bill that will retroactively eliminate mandatory minimum sentences for recreational substance offenses.”

The Ninth Circuit disagreed with all of his contentions. They explained that given “the deference we must afford the district court when it makes these decisions, we cannot conclude that the district court abused its discretion in finding that Fabricant’s aggravating circumstances, including his very lengthy—if nonviolent—criminal history, outweighed the mitigating factors cited by Fabricant.”

It also cited the district court’s correct conclusion that “even if Fabricant had shown extraordinary and compelling reasons, the U.S. Code Section regarding the imposition of sentencing, did not support relief. These include deterrence, protection of the public and rehabilitation.

In 2013, Fabricant had previously appealed his convictions for distribution of methamphetamine (meth), conspiracy to distribute meth, and possession with intent to distribute the illegal drug. He appealed his mandatory minimum sentence of life without parole. He also moved for the return of his property and for a protective order to preserve evidence. In many proceedings he represented himself at various stages during his trials. But he then argued that his waiver of the right to counsel was not “knowing, voluntary and intelligent.”

In conclusion, the opinion said that due to the district court’s “extraordinary and compelling analysis,” any errors it might have made while assessing other statutory requirements were harmless, meaning they would not have changed the outcome of the case.

Whether Fabricant will continue his quest for compassionate release or other relief is unknown, but perhaps once vexatious, always vexatious.