Case 3:04-cr-00132-DPJ-FKB Document 124 Filed 07/06/20 Page 1 of 20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

United States of America,

v. CRIMINAL NO. 3:04-cr-00132DPJ-FKB

Maceo Simmons,

Government’s Response to Defendant’s Motion for Compassionate Release

Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i)
Defendant Maceo Simmons has filed a motion asking this Court to reduce his sentence of

imprisonment under 18 U.S.C. § 3582(c)(1)(A) and order his immediate release, relying in part on

the COVID-19 pandemic. This Court should deny the motion without prejudice for Defendant’s

failure to exhaust administrative remedies. Should the Court reach the merits, it should deny the

motion with prejudice because Defendant has not met his burden of establishing that a sentence

reduction is warranted under the statute. This Court should also deny Defendant’s alternative

request for an order directing BOP to transfer him to home confinement.

Factual Background
On March 1, 2005, a jury found the Defendant guilty of one count of sexual assault under

color of law in violation of 18 U.S.C. § 242. This Court sentenced him to 240 months of

imprisonment. Defendant has served 189 months of that sentence. He now cites the COVID-19

pandemic as the central basis for moving under 18 U.S.C. § 3582(c)(1)(A) for a sentence reduction

resulting in his immediate release from custody.

I. BOP’s Response to the COVID-19 Pandemic

In response to the ongoing pandemic, BOP has taken significant measures to protect the

health of inmates. BOP, Updates to BOP COVID-19 Action Plan: Inmate Movement (Mar. 19,

2020), available at https://www.bop.gov/resources/news/20200319_covid19_update.jsp. BOP

also has had a Pandemic Influenza Plan in place since 2012. BOP Health Services Division,

Pandemic Influenza Plan-Module 1: Surveillance and Infection Control (Oct. 2012), available at
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https://www.bop.gov/resources/pdfs/pan_flu_module_1.pdf. That protocol is lengthy and detailed,

establishing a multi-phase framework requiring BOP facilities to begin preparations when there is

a “[s]uspected human outbreak overseas.” Id. at i. The plan addresses social distancing, hygienic

and cleaning protocols, and the quarantining and treatment of symptomatic inmates.

BOP established a working group to develop policies in consultation with subject matter

experts in the Centers for Disease Control. On March 13, 2020, BOP began to modify its

operations, in accordance with its Coronavirus (COVID-19) Action Plan (“Action Plan”). Since

that time, as events require, BOP has repeatedly revised the Action Plan to address the pandemic.

BOP’s operations are presently governed by Phase Seven of the Action Plan. The current

modified operations plan requires that all inmates in every BOP institution be secured in their

assigned cells/quarters in order to stop any spread of the disease. Only limited group gathering is

afforded, with attention to social distancing to the extent possible, to facilitate commissary,

laundry, showers, telephone, and computer access. Further, BOP has severely limited the

movement of inmates and detainees among its facilities. Though there will be exceptions for

medical treatment and similar exigencies, BOP believes this will limit transmission of the disease.

All staff and inmates have been issued face masks and have been strongly encouraged to wear an

appropriate face covering when in public areas when social distancing cannot be achieved.

Every newly admitted inmate is screened for COVID-19 exposure risk factors and symptoms.

Asymptomatic inmates with risk of exposure are placed in quarantine for a minimum of 14 days

or until cleared by medical staff. Symptomatic inmates are placed in isolation until they test

negative for COVID-19 or are cleared by medical staff as meeting CDC criteria for release from

isolation. In addition, in areas with sustained community transmission, all facility staff are screened

for symptoms. Staff registering a temperature of 100.4 degrees Fahrenheit or higher are barred

from the facility on that basis alone.

Contractor access to BOP facilities is restricted to only those performing essential services

(e.g. medical or mental health care, religious, etc.) or those who perform necessary maintenance

on essential systems. All volunteer visits are suspended absent authorization by the Deputy

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Director of BOP. Any contractor or volunteer who requires access will be screened for symptoms

and risk factors.

Social and legal visits were stopped as of March 13, and remain suspended at this time, to

limit the number of people entering the facility and interacting with inmates. In order to ensure

that familial relationships are maintained throughout this disruption, BOP has increased detainees’

telephone allowance to 500 minutes per month. Legal visits will be permitted on a case-by-case

basis after the attorney has been screened for infection in accordance with the screening protocols

for prison staff.

Further details and updates of BOP’s modified operations are available on the BOP website

at a regularly updated resource page: www.bop.gov/coronavirus/index.jsp.

In addition, in an effort to relieve the strain on BOP facilities and assist inmates who are

most vulnerable to the disease and pose the least threat to the community, BOP is exercising greater

authority to designate inmates for home confinement. On March 26, 2020, the Attorney General

directed the Director of the Bureau of Prisons, upon considering the totality of the circumstances

concerning each inmate, to prioritize the use of statutory authority to place prisoners in home

confinement. That authority includes the ability to place an inmate in home confinement during

the last six months or 10% of a sentence, whichever is shorter, see 18 U.S.C. § 3624(c)(2), and to

move to home confinement those elderly and terminally ill inmates specified in 34 U.S.C.

§ 60541(g). Congress has also enhanced BOP’s flexibility to respond to the pandemic. On April

3, 2020, the Attorney General gave the Director of BOP the authority to exercise this discretion,

beginning at the facilities that thus far have seen the greatest incidence of coronavirus transmission.

See Exhibit. 1 (Mem. for Director of Bureau of Prisons). As of this filing, BOP has transferred

4555 inmates to home confinement, which is an increase of 160% since March 2020. See Federal

Bureau of Prisons, COVID-19 Home Confinement Information, at

https://www.bop.gov/coronavirus/.

Taken together, all of these measures are designed to mitigate sharply the risks of COVID-

19 transmission in a BOP institution. BOP has pledged to continue monitoring the pandemic and

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to adjust its practices as necessary to maintain the safety of prison staff and inmates while also

fulfilling its mandate of incarcerating all persons sentenced or detained based on judicial orders.

Unfortunately, some inmates have become ill, and more likely will. But BOP must consider

its concern for the health of its inmates and staff alongside other critical considerations. For

example, notwithstanding the current pandemic crisis, BOP must carry out its charge to incarcerate

sentenced criminals in order to protect the public. It must consider the effect of a mass release on

the safety and health of both the inmate population and the citizenry. It must marshal its resources

to care for inmates in the most efficient and beneficial manner possible. It must assess release
plans, which are essential to ensure that a defendant has a safe place to live and access to health

care in these difficult times. And it must consider myriad other factors, including the availability

of both transportation for inmates (at a time that interstate transportation services often used by

released inmates are providing reduced service), and supervision of inmates once released (at a

time that the Probation Office has necessarily cut back on home visits and supervision).

II. Defendant’s Conviction and Request for a Sentence Reduction

On March 1, 2005, Defendant was convicted of one count of sexual assault under color of

law in violation of 18 U.S.C. § 242. The jury further found that Defendant’s actions constituted

aggravated sexual abuse and that the Defendant caused bodily injury.

The incident giving rise to the conviction occurred in September 1999. Defendant and

Thomas Catchings, Jackson Police Department Officers, assisted in the stop of a car in which S.R.

and her boyfriend were passengers. After discovering marijuana on S.R., Defendant confiscated it

and arrested S.R., placing her in handcuffs in the back of his police car. Before leaving the scene,

Defendant told Catchings that S.R. wanted to have sex with him. After booking S.R.’s boyfriend

and with S.R. still in his police car, Defendant radioed to Catchings to follow his vehicle. At around

2 a.m., the two drove to an unlit and isolated area.

While Catchings acted as lookout, Defendant sexually assaulted S.R. Defendant unzipped

his pants and exposed himself, grabbing S.R.’s head and forcing it into his lap to perform oral sex.

S.R. testified that Defendant held her head so tightly there was nothing she could do to stop it.

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Defendant then told her that she was not doing it correctly and forced her to get out of the car.

Once outside the car, Defendant forced her to perform oral sex a second time. He told S.R., who

was crying, to pull down her pants and bent her over the trunk of his car, forcing himself into her

and penetrating her both vaginally and anally. S.R. testified that she was scared for her life

throughout the ordeal and believed she might be shot or killed. After Defendant finished, he asked

Catchings if he wanted a turn. Catchings instead drove the sobbing S.R. home and warned her not

to tell anyone about the incident. S.R. immediately reported the incident to loved ones and the

Rape Crisis Center but did not initially report to police out of fear of retribution. She ultimately
reported the incident to police 13 months later. Following the Defendant’s conviction in federal

court and a series of appeals and remands, he was ultimately sentenced to 240 months in prison.

Defendant has served 189 months of his 240-month sentence. The prison has documented

that he suffers from hypertension, diabetes, and hyperlipidemia. Contrary to Defendant’s motion,

however, positive Covid-19 numbers at Forrest City-Low have decreased dramatically in the

month of June, with only 26 inmates and one staff member testing positive. See Federal Bureau of

Prisons, BOP: Covid-19 Update, https://www.bop.gov/coronavirus/ (last visited 6/29/2020). 1

On May 21, 2020, Defendant filed a request for compassionate release with BOP. After

filing a supplemental letter, he received an acknowledgment of receipt on June 4, 2020. BOP has

yet to issue a decision on Defendant’s compassionate release motion. On June 24, 2020, Defendant

filed a motion with this Court seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A) on

the ground that his medical conditions make him particularly vulnerable to becoming seriously ill

from COVID-19.

1
In describing conditions at FCI Forrest City-Low, Defendant cites United States v. McCall, No. No.
2:18CR95-MHT, 2020 WL 2992197, (M.D. Ala. June 4, 2020). The number of positive cases
reported in that case, 578 out of 2200 inmates, is no longer accurate. Forrest City-Low reports that
660 inmates have now recovered from Covid-19. See BOP: Covid-19 Update, Federal Bureau of
Prisons, https://www.bop.gov/coronavirus/ (last visited 6/29/2020).

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Legal Framework
Under 18 U.S.C. § 3582(c)(1)(A), this Court may, in certain circumstances, grant a

defendant’s motion to reduce his or her term of imprisonment. Before filing that motion, however,

the defendant must first request that BOP file such a motion on his or her behalf. § 3582(c)(1)(A).

A court may grant the defendant’s own motion for a reduction in his sentence only if the motion

was filed “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 after 30 days have passed

“from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”

Id.

If that exhaustion requirement is met, a court may reduce the defendant’s term of

imprisonment “after considering the factors set forth in [18 U.S.C. § 3553(a)]” if the Court finds,

as relevant here, that (i) “extraordinary and compelling reasons warrant such a reduction” and

(ii) “such a reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” § 3582(c)(1)(A)(i). As the movant, the defendant bears the burden to establish that

he or she is eligible for a sentence reduction. United States v. Jones, 836 F.3d 896, 899 (8th Cir.

2016); United States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014).

The Sentencing Commission has issued a policy statement addressing reduction of

sentences under § 3582(c)(1)(A). As relevant here, the policy statement provides that a court may

reduce the term of imprisonment after considering the § 3553(a) factors if the Court finds that

(i) “extraordinary and compelling reasons warrant the reduction;” (ii) “the defendant is not a

danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g);”

and (iii) “the reduction is consistent with this policy statement.” USSG § 1B1.13. 2

2
The policy statement refers only to motions filed by the BOP Director. That is because the policy
statement was last amended on November 1, 2018, and until the enactment of the First Step Act on
December 21, 2018, defendants were not entitled to file motions under § 3582(c). See First Step Act
of 2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239; cf. 18 U.S.C. § 3582(c) (2012). In light
of the statutory command that any sentence reduction be “consistent with applicable policy
statements issued by the Sentencing Commission,” § 3582(c)(1)(A)(ii), and the lack of any plausible
reason to treat motions filed by defendants differently from motions filed by BOP, the policy
statement applies to motions filed by defendants as well.

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The policy statement includes an application note that specifies the types of medical

conditions that qualify as “extraordinary and compelling reasons.” First, that standard is met if the

defendant is “suffering from a terminal illness,” such as “metastatic solid-tumor cancer,

amyotrophic lateral sclerosis (ALS), end-stage organ disease, [or] advanced dementia.” USSG

§ 1B1.13, cmt. n.1(A)(i). Second, the standard is met if the defendant is:
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the
aging process,
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.
USSG § 1B1.13, cmt. n.1(A)(ii). The application note also sets out other conditions and

characteristics that qualify as “extraordinary and compelling reasons” related to the defendant’s

age and family circumstances. USSG § 1B1.13, cmt. n.1(B)-(C). Finally, the note recognizes the

possibility that BOP could identify other grounds that amount to “extraordinary and compelling

reasons.” USSG § 1B1.13, cmt. n.1(D).

Argument
This Court should deny Defendant’s motion without prejudice because he has failed to

exhaust administrative remedies. Should the Court reach the merits of his motion, the Court should

deny it with prejudice because Defendant has not met his burden to show that a reduction is

warranted in light of the danger that Defendant would pose to the community and the relevant

§ 3553(a) factors. Finally, this Court lacks statutory authority to grant Defendant’s alternative

request to direct BOP to transfer him to home confinement.

I. This Court Should Deny the Motion Without Prejudice Because Defendant
Has Not Exhausted Administrative Remedies.
This Court should not act on Defendant’s motion for a sentence reduction at this time. As

explained above, § 3582(c) requires that a request for a sentence reduction be presented first to

BOP for its consideration; only after 30 days have passed, or the defendant has exhausted all

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administrative rights to appeal the BOP’s failure to move on the defendant’s behalf, may a

defendant move for a sentence reduction in court. That restriction is mandatory, and it continues

to serve an important function.

It is well established that once a district court has pronounced sentence and the sentence

becomes final, the court has no inherent authority to reconsider or alter that sentence. Rather, it

may do so only if authorized by statute. See, e.g., United States v. Addonizio, 442 U.S. 178, 189 &

n.16 (1979); United States v. Washington, 549 F.3d 905, 917 (3d Cir. 2008); United States v. Smartt,

129 F.3d 539, 540 (10th Cir. 1997). Consistent with the principle of finality, § 3582(c) provides
that a court generally “may not modify a term of imprisonment once it has been imposed,” except

in three circumstances: (i) upon a motion for reduction in sentence under § 3582(c)(1)(A), such as

that presented by the defendant; (ii) “to the extent otherwise expressly permitted by statute or by

Rule 35 of the Federal Rules of Criminal Procedure,” § 3582(c)(1)(B); and (iii) where the

defendant was sentenced “based on” a retroactively lowered sentencing range, § 3582(c)(2).

Section 3582(c) provides that a court’s modification of a term of imposed imprisonment

may be appropriate “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 . . . .”

§ 3582(c)(1)(A).

Contrary to Defendant’s assertion, the requirement that a defendant either exhaust

administrative appeals or wait 30 days after presenting a request to the warden before seeking

judicial relief is mandatory and must be enforced by the Court. As the Third Circuit recently

confirmed, where 30 days have not passed following presentation of a request to a warden, the

statute “presents a glaring roadblock foreclosing compassionate release at this point.” United

States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020). The vast majority of district courts to address this

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issue agree. See, e.g., United States v. Epstein, 2020 WL 1808616 (D.N.J. Apr. 9, 2020) (citing

numerous cases). 3

3
Nearly every district court in the country to consider this issue in a reported decision agrees that the
30-day requirement must be enforced. See, e.g., United States v. Gillis, 2020 WL 1846792 (C.D. Cal.
Apr. 9, 2020); United States v. Meron, 2020 WL 1873900 (E.D. Cal. Apr. 15, 2020); United States v.
Hembry, 2020 WL 1821930 (N.D. Cal. Apr. 10, 2020); United States v. Smith, 2020 WL 1903160
(D. Conn. Apr. 17, 2020); United States v. Perry, 2020 WL 1676773 (D. Colo. Apr. 3, 2020); United
States v. Zywotko, 2020 WL 1492900 (M.D. Fla. Mar. 27, 2020); United States v. Read-Forbes, 2020
WL 1888856 (D. Kan. Apr. 16, 2020); United States v. Boyles, 2020 WL 1819887 (D. Kan. Apr. 10,
2020); United States v. Carter, 2020 WL 1808288 (S.D. Ind. Apr. 9, 2020); United States v.
Hofmeister, 2020 WL 1811365, at *3 (E.D. Ky. Apr. 9, 2020) (explaining that the rule is
jurisdictional, and perhaps even more necessary during COVID-19 crisis); United States v. Reeves,
2020 WL 1816496 (W.D. La. Apr. 9, 2020); United States v. Lugo, 2020 WL 1821010, at *3 (D. Me.
Apr. 10, 2020) (extensive analysis, concluding, “The Court regards the language of section 3582(c)
as both clear and mandatory.”); United States v. Johnson, 2020 WL 1663360, at *3-*6 (D. Md. Apr.
3, 2020) (concluding in lengthy discussion that § 3582(c)(1)(A)’s exhaustion requirement is
jurisdictional and, regardless, there are no exceptions to the exhaustion requirement); United States v.
Underwood, 2020 WL 1820092 (D. Md. Apr. 10, 2020); United States v. Carden, 2020 WL 1873951
(D. Md. Apr. 15, 2020); United States v. Alam, 2020 WL 1703881 (E.D. Mich. Apr. 8, 2020); United
States v. Mathews, 2020 WL 1873360 (E.D. Mich. Apr. 15, 2020); United States v. Annis, 2020 WL
1812421, at *2 (D. Minn. Apr. 9, 2020) (Tunheim, C.J.) (“There is no question that COVID-19 is a
cause for alarm, and the Court does not fault Annis’s concerns, given his health conditions. However,
given the scale of the COVID-19 pandemic and the complexity of the situation in federal institutions,
it is even more important that Annis first attempt to use the BOP’s administrative remedies.”); United
States v. Gardner, 2020 WL 1867034 (D. Minn. Apr. 14, 2020); United States v. Eisenberg, 2020
WL 1808844 (D.N.H. Apr. 9, 2020); United States v. Roberts, 2020 WL 1700032 (S.D.N.Y. Apr. 8,
2020); United States v. Woodson, 2020 WL 1673253 (S.D.N.Y. Apr. 6, 2020); United States v.
Rabadi, 2020 WL 1862640, at *3 (S.D.N.Y. Apr. 14, 2020) (follows “vast majority” of courts);
United States v. Schultz, 2020 WL 1872352 (W.D.N.Y. Apr. 15, 2020); United States v. Allen, 2020
WL 1878774 (N.D. Ohio Apr. 15, 2020); United States v. Simmons, 2020 WL 1903281 (D. Or. Apr.
17, 2020); United States v. Holden, 2020 WL 1673440 (D. Or. Apr. 6, 2020) (very extensive
discussion); United States v. Epstein, 2020 WL 1808616 (D.N.J. Apr. 9, 2020) (cites numerous cases
in agreement); United States v. Petrossi, 2020 WL 1865758 (M.D. Pa. Apr. 14, 2020); United States
v. Feiling, 2020 WL 1821457 (E.D. Va. Apr. 10, 2020); United States v. Fuller, 2020 WL 1847751
(W.D. Wash. Apr. 13, 2020); United States v. Carver, 2020 WL 1604968 (E.D. Wash. Apr., 1,
2020); United States v. Fevold, 2020 WL 1703846, at *1 (E.D. Wis. Apr. 8, 2020) (“Not only is
exhaustion of administrative remedies required as a matter of law, but it also makes good policy
sense. The warden and those in charge of inmate health and safety are in a far better position than the
sentencing court to know the risks inmates in their custody are facing and the facility’s ability to
mitigate those risks and provide for the care and safety of the inmates.”).

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Given the plain language and purpose of the statute, the requirements for filing a sentence-

reduction motion—including the requirement that a defendant exhaust administrative remedies or

wait 30 days before moving in court for a reduction—are properly viewed as jurisdictional. Section

3582(c) states that a “court may not modify” a term of imprisonment except in enumerated

circumstances. 18 U.S.C. § 3582(c). It thus “speak[s] to the power of the court rather than to the

rights or obligations of the parties,” Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994)

(internal quotation marks omitted), delineating “when, and under what conditions,” a court may

exercise its “‘adjudicatory authority,’” Bowles v. Russell, 551 U.S. 205, 212-13 (2007) (quoting
Eberhart v. United States, 546 U.S. 12, 16 (2005) (per curiam)). That conclusion is reinforced by

the historical powerlessness of the courts to modify a sentence after the expiration of the term at

which it was entered. See United States v. Mayer, 235 U.S. 55, 67-69 (1914); United States v.

Welty, 426 F.2d 615, 617-618 & n.8 (3d Cir. 1970). Section 3582(c) accordingly has been

understood as conferring the jurisdictional authority that previously was lacking by providing

express statutory authorization to modify otherwise final sentences. The Fifth Circuit has

recognized that the prerequisites for relief under § 3582(c)(2), which allows a sentence reduction

based on a retroactive guideline amendment, are jurisdictional. See, e.g., United States v. Garcia,

606 F.3d 209, 212 n.5 (5th Cir. 2010) (per curiam).

A handful of courts, mostly in the Second Circuit, have agreed with Perez that the exhaustion
requirement may be negated. See also, e.g., United States v. Colvin, 2020 WL 1613943 (D. Conn.
Apr. 2, 2020) (11 days remaining on sentence); United States v. McCarthy, 2020 WL 1698732 (D.
Conn. Apr. 8, 2020) (26 days remaining on sentence); United States v. Ben-Yhwh, 2020 WL 1874125
(D. Haw. Apr. 13, 2020); United States v. Coles, 2020 WL 1899562 (E.D. Mich. Apr. 17, 2020);
United States v. Zukerman, 2020 WL 1659880 (S.D.N.Y. Apr. 3, 2020); United States v. Haney,
2020 WL 1821988 (S.D.N.Y. Apr. 13, 2020); United States v. Paciullo, 2020 WL 1862252, at *2
(S.D.N.Y. Apr. 14, 2020) (court strikes a “compromise” and allows BOP 20 days); United States v.
Russo, 2020 WL 1862294 (S.D.N.Y. Apr. 14, 2020); United States v. Smith, 2020 WL 1849748
(S.D.N.Y. Apr. 13, 2020). But, several of these cases can be distinguished and even those courts are
not uniform in their analysis of the issue. See, e.g., United States v. Ogarro, 2020 WL 1876300, at *3
(S.D.N.Y. Apr. 14, 2020) (“In fact, section 3582(c)’s exhaustion proscription is clear as day.”);
United States v. Pereyra-Polanco, 2020 WL 1862639 (S.D.N.Y. Apr. 14, 2020) (same).

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In recent years, the Supreme Court has cautioned against imprecise use of the

“jurisdictional” label, and explained that a statutory claim-processing rule, even if mandatory, is

presumed to be nonjurisdictional absent a clear statement to the contrary. See Fort Bend County v.

Davis, 139 S. Ct. 1843, 1848-50 (2019). Whether a prescription is jurisdictional turns on

Congress’s intent, which is properly determined by the text, context, relevant historical treatment,

and purpose of the provision. Henderson, 562 U.S. at 436. Here, the relevant factors indicate that

§ 3582(c) sets forth a jurisdictional limitation on a district court’s authority to modify a sentence,

such that a district court lacks jurisdiction to consider a motion for a sentence reduction where the
defendant has failed to satisfy the exhaustion requirement of § 3582(c)(1)(A). 4 While the

government maintains that the time limitation in § 3582(c)(1)(A) is jurisdictional, even if the

exhaustion requirement of § 3582(c)(1)(A) is not jurisdictional, it is at least a mandatory claim-

processing rule and must be enforced if a party “properly raise[s]” it. Eberhart, 546 U.S. at 19

(holding that Fed. R. Crim. P. 33, which permits a defendant to move for a new trial within 14 days

of the verdict, is a nonjurisdictional but mandatory claim-processing rule). The government raises

the rule here, and it should be enforced. 5

The Defendant’s own filing makes it clear that he has failed to exhaust his administrative

requirements under § 3582(c)(1)(A). See Defendant’s Motion for Compassionate Release, Doc.

119 at 16 (acknowledging that if Defendant must exhaust his remedies, the court must “wait until

July 6, 2020 to rule in this matter.”). Defendant filed a compassionate release request with BOP on

May 21, 2020 and filed a supplemental letter to the warden on June 4, 2020. The Warden

acknowledged receipt on June 4, 2020, and BOP has not yet responded to Defendant’s request.

4
Although we use the term “exhaustion requirement,” to be clear, an inmate need not “exhaust”
administrative remedies if the motion is filed in court 30 days after receipt of a request by the
warden.
5
Indeed, even those courts that have concluded that the requirements of § 3582(c)(2) are not
jurisdictional still enforce the statutory prerequisites to relief. See, e.g., United States v. Taylor, 778
F.3d 667, 670 (7th Cir. 2015) (recognizing that even if a court has the “power to adjudicate” a motion
under § 3582(c)(2), it may lack “authority to grant a motion . . . because the statutory criteria are not
met”) (emphasis in original).

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Because 30 days have not passed from the receipt of Defendant’s request to the warden, Defendant

has failed to exhaust and will not satisfy the exhaustion requirement until July 6, 2020.

Defendant nevertheless argues that this Court may ignore the exhaustion requirement as

“futile” during the coronavirus pandemic. That is incorrect. While judicially-created exhaustion

requirements may sometimes be excused, it is well settled that a court may not ignore a statutory

command like the one presented in § 3582(c)(1)(A). McCarthy v. Madigan, 503 U.S. 140, 144

(1992) (“[w]here Congress specifically mandates, exhaustion is required”). Indeed, the Supreme

Court recently reaffirmed that principle in Ross v. Blake, 136 S. Ct. 1850 (2016), in which it
rejected a judicially created “‘special circumstances’” exception to a statutory exhaustion

requirement. Rejecting the “freewheeling approach” adopted by some courts of appeals, under

which some prisoners were permitted to pursue litigation even when they had failed to exhaust

available administrative remedies, Ross, 136 S. Ct. at 1855, the Court demanded fidelity to the

statutory text, explaining that the “mandatory language” of the exhaustion requirement “means a

court may not excuse a failure to exhaust” even to accommodate exceptional circumstances, id. at

1856.

Ross makes clear that there is no “futility” exception § 3582(c)(1)(A)’s exhaustion

requirement and that courts have no authority to invent an exception to a statutory exhaustion

requirement. 6 In any event, a request in this context is not futile because BOP fully considers

6
More specifically, two district courts have recently rejected the argument that any such futility
exception exists under § 3582. See United States v. Holden, 2020 WL 1673440, at *5 (D. Or. Apr. 6,
2020); United States v. Eberhart, 2020 WL 1450745, at *1 (N.D. Cal. Mar. 25, 2020). While a few
district courts in the Second Circuit have incorrectly excused the § 3582 exhaustion requirement as
futile, two of those decisions have rested on the fact that the defendant had a matter of days left to
serve on the sentence, a consideration not present in this case. See United States v. Colvin, 2020 WL
1613943, at *1 (D. Conn. Apr. 2, 2020) (finding exhaustion futile because inmate had 11 days left on
her sentence); United States v. Perez, 2020 WL 1546422, at *1 (S.D.N.Y. Apr. 1, 2020) (finding
exhaustion futile because inmate had less than 21 days left on his sentence and was recovering from
two vicious beatings while in prison); but see United States v. Zukerman, 2020 WL 1659880, at *1
(S.D.N.Y. Apr. 3, 2020) (finding exhaustion futile where obese, 75-year old inmate suffered from
diabetes and hypertension). At least one of those decisions incorrectly relied on precedent addressing
a judicially created—as opposed to statutorily created—exhaustion requirement. See Perez, 2020 WL
1546422 at *2 (relying only on Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019)).

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requests for sentence reductions. Indeed, BOP at times concurs with such requests. During the

period from the passage of the First Step Act on December 21, 2018, until mid-March 2020 (before

the coronavirus crisis began), BOP consented to a reduction in sentence in 55 cases. The

requirement of a 30-day period to afford BOP the initial review of the defendant’s request therefore

cannot be excused. While Congress indisputably acted in the First Step Act to expand the

availability of compassionate release, it expressly imposed on inmates the requirement of initial

resort to administrative remedies. This is for a good reason: BOP conducts an extensive assessment

for such requests. See 28 C.F.R. § 571.62(a); BOP Program Statement 5050.50, Compassionate
Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582(c)(1)(A) and

4205(g), available at https://www.bop.gov/policy/progstat/5050_050_EN.pdf. As the Procedures

reflect, BOP completes a diligent and thorough review, with considerable expertise concerning

both the inmate and the conditions of confinement. Its assessment will be of value to the parties

and the Court.

That is especially true during this pandemic. As explained above, BOP must balance a host

of considerations—ranging from the health of the inmate to the safety of the public—in deciding

whether to release an inmate, to recommend a reduction in an inmate’s sentence, or grant the

inmate home confinement. BOP is best positioned to determine the proper treatment of the inmate

population, accounting for individual considerations such as an inmate’s background and medical

history and more general considerations regarding the conditions and needs at particular BOP

facilities. The provision of § 3582(c)(1)(A) prioritizing administrative review therefore makes

sense not only in the ordinary case, but also at this time. As the Third Circuit has held, “[g]iven

BOP’s shared desire for a safe and healthy prison environment, . . . strict compliance with

§ 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical—importance.” Raia, 954

F.3d at 597. See also United States v. McCann, 2020 WL 1901089, at *2 (E.D. Ky. Apr. 17, 2020)

(“The Court recognizes that these are unsettling times for everyone, including prisoners. But in

such a context, the exhaustion requirement of the compassionate release statute is perhaps most

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important.”). Accordingly, Defendant’s motion should be denied without prejudice to refiling once

he has exhausted administrative remedies.

II. Should The Court Reach the Merits, It Should Deny The Motion Because the
§ 3553(A) Factors Strongly Weigh Against the Defendant’s Release
Defendant’s request for a sentence reduction should be denied because he has failed to

demonstrate that he is no longer a danger to the safety of the community or that he otherwise merits

release under the § 3553(a) factors. But for the COVID-19 pandemic, Defendant would present no

basis for a release from custody. His medical ailments are managed by BOP and do not present

any impediment to his treatment in the institution. The only question, then, is whether the risk of

COVID-19 changes that assessment.

The government acknowledges that Defendant’s medical condition presents a risk factor

identified by the CDC as heightening the risk of severe injury or death were the inmate to contract

COVID-19. The government accordingly acknowledges that he meets the threshold test of a

medical condition defined in note 1(A). At this time, the inmate’s ability to provide self-care

against serious injury or death as a result of COVID-19 is substantially diminished within the

environment of a correctional facility. Accordingly, this Court need not consider the suggestion that
Defendant’s condition falls under the “catch-all” provision of note 1(D).

However, Defendant is not entitled to relief. This Court must consider all pertinent

circumstances, including the section 3553(a) factors, and possible danger to the community. At

present, Defendant’s medical conditions are appropriately managed at the facility, which is also

engaged in strenuous efforts to protect inmates against the spread of COVID-19, and would also

act to treat the Defendant or any other inmate who contracts COVID-19. In the meantime, the

disease is active in Hinds County, Mississippi, where Defendant says he would return to live. As

of this writing, there are 1957 residents of Hinds County diagnosed with the disease, and 36 people

have died. See Covid-19 in Mississippi, Mississippi State Dep’t of Health,

https://msdh.ms.gov/msdhsite/_static/14,0,420.html (last visited 6/29/2020).

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Under the applicable policy statement, this Court must deny a sentence reduction unless it

determines the defendant “is not a danger to the safety of any other person or to the community.”

USSG § 1B1.13(2). Additionally, this Court must consider the § 3553(a) factors, as “applicable,”

as part of its analysis. See § 3582(c)(1)(A); United States v. Chambliss, 948 F.3d 691, 694 (5th Cir.

2020). In this case, the § 3553(a) factors strongly disfavor a sentence reduction. In particular, the

seriousness of Defendant’s crime of conviction justifies denial of his request. Defendant’s motion

refers to his career as a law enforcement officer, but Defendant used his power as an officer to

commit a violent sexual assault against a teenage victim. While on duty as a police officer, the
Defendant took his victim into custody, transported her to a dark and abandoned area late at night,

and repeatedly sexually assaulted her. He did all of this as the victim cried and asked to go home,

believing that she could be shot or killed by the defendant. Such a heinous act, committed as the

Defendant was using his authority as a police officer, deserves serious punishment, and early

release would minimize the seriousness of Defendant’s conduct.

Other district courts have similarly denied release on the basis of the seriousness of an

inmate’s offense, even where an inmate suffers from serious health conditions. See, e.g., United

States v. Logan, 2020 WL 730879 (W.D. Ky. Feb. 13, 2020) (the court recognized that the 81-year-

old defendant was eligible for consideration, as he suffers from prostate cancer, glaucoma,

blindness, diabetes, and other medical conditions, and has served more than 22 years of his life

sentence, but denied relief because reducing the defendant’s sentence “would minimize the nature

and seriousness of the offense,” which involved arson of a hotel resulting in four deaths); United

States v. Clark, 2020 WL 1874140 (M.D.N.C. Apr. 15, 2020) (finding that congestive heart failure

constitutes a terminal condition meeting the standard for early release, but denying the defendant’s

request because of the sex trafficking offenses for which 30-year sentence was imposed). Indeed,

courts have denied such requests even where the criminal conduct involved only non-violent fraud

and where defendants had minimal or no criminal history. See, e.g.¸ United States v. Rodd, 2019

WL 5623973, at *4 (D. Minn. Oct. 31, 2019) (denying request for release based solely on the

nature of the defendant’s criminal conduct, a Ponzi scheme); United States v. Israel, 2019 WL

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6702522 (S.D.N.Y. Dec. 9, 2019) (accepting as true “that the defendant/inmate is severely disabled

by incurable and progressive medical conditions, and that his condition has worsened substantially

since he was originally incarcerated,” but denying compassionate release request because of the

severity of the criminal conduct, which involved a massive Ponzi scheme: “Indeed, it would make

a mockery of the sentencing statute if this financial fraudster, who ruined the lives and finances of

hundreds of people while living the high life of an ostensibly successful hedge fund manager, were

to . . . have his sentence reduced.”). A review of the cases cited above indicates that courts have

been unwilling to grant compassionate release in cases where a defendant has committed
particularly heinous or outrageous offenses. This is such a case. Given the nature of the

Defendant’s conduct, which involved the abuse of his authority as a police officer to sexually

assault a young woman in his custody, the Court should deny the Defendant’s request for release.

The other § 3553(a) factors also disfavor release. The Defendant’s 20-year sentence

reflects not only the seriousness of his offense, but also the need to adequately deter criminal

conduct of the kind in which the Defendant engaged. See § 3553(a)(2)(B). Such deterrence is

particularly important in cases involving law enforcement, where a Defendant uses his position of

authority and his uniform to further his criminal activity. See United States v. Garnica, 471 Fed.

Appx. 368, 370 (5th Cir. 2012) (“Criminal conduct by a law enforcement agent that is facilitated

by the agent’s unique position of public trust is especially serious; imposing severe punishment to

deter others and to promote respect for the law is essential.”). Unfortunately, not all incidents such

as this will come to light, and it is paramount that officers understand that if abusive conduct is

uncovered they will suffer serious consequences. Without question, the abuse of law enforcement

authority to commit a violent sexual assault is conduct worth deterring, and the sentence imposed

on Defendant properly accounted for that need to deter serious criminal conduct. The Defendant’s

sentence also properly accounts for the need to protect the community from the danger he poses;

a need that has not changed since the emergence of the pandemic. See § 3553(a)(2)(C).

Defendant’s motion largely neglects these factors, preferring instead to focus on

Defendant’s lack of previous criminal history and his participation in available re-entry programs.

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But neither of these factors justifies Defendant’s release at this time. The Defendant’s lack of

criminal history was already considered when Defendant was sentenced to 20 years in prison.

Defendant’s participation in re-entry programs and his re-entry plans—activities he would be

participating in irrespective of the pandemic—do not justify release when weighed against the

other § 3553(a) factors. Neither of the factors Defendant cites mitigate the seriousness of his

offense or the need for general deterrence, and neither assures that he is no longer a danger to the

community. Simply put, when weighed against the other § 3553(a) factors, Defendant’s lack of

previous criminal history and participation in re-entry programs do not justify the release of a
dangerous individual who abused his position as a law enforcement officer to commit a violent

sexual assault against a teenage victim. Accordingly, in light of Defendant’s record and the totality

of relevant circumstances, this Court should deny the motion for a sentence reduction.

III. This Court Has No Authority to Direct the BOP to Place Defendant in Home
Confinement.
Defendant’s motion makes a single reference to a request for home detention. See

Defendant’s Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A)(i), Doc. 116 at

1. Any such request should be denied here because this Court has no authority to direct BOP to

place a defendant in home confinement. Rather, such designation decisions are committed solely

to BOP’s discretion.

Once a sentence is imposed, BOP is solely responsible for determining an inmate’s place

of incarceration. See 18 U.S.C. § 3621(b); Moore v. United States Att’y Gen., 473 F.2d 1375, 1376

(5th Cir. 1973) (per curiam); see also McKune v. Lile, 536 U.S. 24, 39 (2002) (plurality opinion)

(“It is well settled that the decision where to house inmates is at the core of prison administrators’

expertise.”). A court has no authority to designate a prisoner’s place of incarceration. United States

v. Voda, 994 F.2d 149, 151-52 (5th Cir. 1993). Because Defendant’s request for home confinement

alters only the place of incarceration, not the actual term of incarceration, only BOP may grant or

deny his request.

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Moreover, there is no constitutional or statutory authority that allows the Court to order

home confinement, other than under the terms of supervised release. A prisoner has no

constitutional right to confinement in any particular place, including in home confinement. See

Sandin v. Conner, 515 U.S. 472, 478 (1995) (“the Due Process Clause did not itself create a liberty

interest in prisoners to be free from intrastate prison transfers.”); Meachum v. Fano, 427 U.S. 215,

224 (1976) (“The conviction has sufficiently extinguished the defendant’s liberty interest to

empower the State to confine him in any of its prisons.”). Following the imposition of sentence,

the Court has limited jurisdiction to correct or modify that sentence absent specific circumstances
enumerated by Congress in 18 U.S.C. § 3582. United States v. Garcia, 606 F.3d 209, 212 n.5 (5th

Cir. 2010) (per curiam). Section 3582(c) contemplates only a reduction in sentence. See § 3582(c).

But Defendant’s request to serve the rest of his term in home confinement, as opposed to prison,

changes the terms of his incarceration, but does not reduce his sentence. Defendant’s request for

such relief therefore falls outside § 3582(c)’s limited grant of authority to this Court to modify a

sentence post-conviction. Because § 3582(c) does not provide the Court with jurisdiction to grant

home confinement and because Defendant offers no other statutory authority to support his request

for such relief, this Court has no authority to act on his request for such relief in this forum.

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Conclusion
For these reasons, this Court should deny Defendant’s motion for a sentence reduction

without prejudice for failure to exhaust administrative remedies or, in the alternative, deny the

motion on the merits.

Respectfully submitted,

D. MICHAEL HURST, JR.

United States Attorney

By: /s/ Erin O .Chalk

ERIN O. CHALK
Assistant United States Attorney
(MS. Bar No. 101721)
501 E. Court Street, Suite 4.430
Jackson, Mississippi 39201
(601) 965-4480 (phone)
(601) 965-4409 (fax)
Erin.Chalk@usdoj.gov

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Certificate of Service

I certify that on July 6, 2020, I electronically filed this document with the Clerk of Court

using the CM/ECF system.

☒ The CM/ECF system will send notification to the following CM/ECF participant(s):

Omodare B. Jupiter (Omodare_Jupiter@fd.org)

/s/ Erin O. Chalk

Erin O. Chalk
Assistant United States Attorney

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