Court filing
Memorandum Opinion and Order — United States v. Kindambu (Dkt. 86, E.D. Va.)
Summary
A memorandum opinion and order in United States v. Didier Kindambu, Criminal Action No. 1:20-cr-260 (RDA), in the U.S. District Court for the Eastern District of Virginia, filed January 11, 2023 as Dkt. 86. It denies the defendant's Motion for Compassionate Release under 18 U.S.C. § 3582(c)(1)(A)(i) (Dkt. 75), after the government's opposition (Dkt. 82) and his reply (Dkt. 84). The order recounts that Kindambu pleaded guilty on January 28, 2021 to bank fraud and was sentenced on October 21, 2021 to 33 months, two years of supervision, a $100 special assessment, a $15,000 fine and restitution of $2,501,753 to Bank of America, below a guidelines range of 41 to 51 months after a 5K1.1 motion. It finds he exhausted administrative remedies but has not shown extraordinary and compelling reasons.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Filed January 11, 2023 in Didier Kindambu; one of 2 filings from this case.
Record facts
| Court | U.S. District Court for the Eastern District of Virginia |
|---|---|
| Filed | 2023-01-11 |
Cite this document
“Memorandum Opinion and Order — United States v. Kindambu (Dkt. 86, E.D. Va.).”
U.S. District Court for the Eastern District of Virginia, No. 1:20-cr-00260, Doc. 86, filed 2023-01-11. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-didier-kindambu/2023-01-11-memorandum-opinion-and-order-dkt-86/
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Case 1:20-cr-00260-RDA Document 86 Filed 01/11/23 Page 1 of 12 PageID# 711
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA )
)
v. ) Criminal Action No. 1:20-cr-260 (RDA)
)
DIDIER KINDAMBU, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant Didier Kindambu’s Motion for
Compassionate Release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (the “Motion”). Dkt. 75. Having
considered the Motion, the attached Exhibits, the Government’s Opposition (Dkt. 82), and
Defendant’s Reply (Dkt. 84), 1 and for the reasons that follow, it is hereby ORDERED that
Defendant’s Motion for Compassionate Release (Dkt. 75) is DENIED.
I. BACKGROUND
On January 28, 2021, Defendant pleaded guilty to one count of bank fraud in violation of
18 U.S.C. § 1344 (2). On October 21, 2021, this Court sentenced Defendant to 33 months in prison
with a two-year term of supervision, along with a $100 special assessment, a $15,000 fine, and
ordered a plan requiring Defendant to repay $2,501,753 in restitution to Bank of America upon
release. Dkt. 59. This sentence was below the United States Sentencing Guidelines range, which
was assessed at a range of 41 to 51 months, as the Court granted the Government’s 5K1.1 Motion
for a Downward Departure. Defendant is scheduled to be released on February 20, 2023. Dkt. 75,
Ex. D.
1
It appears that Defendant filed his reply twice, once at Dkt. 83 and again at Dkt. 84.
Case 1:20-cr-00260-RDA Document 86 Filed 01/11/23 Page 2 of 12 PageID# 712
On October 13, 2022, Defendant requested that the Bureau of Prisons bring a motion on
his behalf pursuant to 18 U.S.C. § 3582(c)(1)(A). Dkt. 75 at 2. That request was denied on October
28, 2022, and defense counsel received the denial of that request on December 6, 2022, the day
after Defendant filed the instant Motion. Dkt. 77.
II. ANALYSIS
Defendant requests that, pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), this Court release him
from detention. He asserts that he has exhausted his administrative remedies because thirty days
have passed since his facility’s warden received his request for the BOP to bring a motion on his
behalf. Dkt. 75 at 2. Defendant’s request, which was made on October 17, 2022, was denied on
October 28, 2022. Dkt. 77 at 3. He does not appear to have appealed the denial of his request.
Regardless, 30 days have passed since the warden received Defendant’s request pursuant to 18
U.S.C. § 3582(c)(1)(A), and recent authority from the Fourth Circuit makes clear that is all that is
required to make Defendant’s request ripe for review. See United States v. Muhammad, 16 F.4th
126, 129 (4th Cir. 2021) (“The text of § 3582(c)(1)(A) plainly provides that a defendant may file
a motion on his own behalf 30 days after the warden receives his request, regardless of whether
the defendant exhausted his administrative remedies.”).
Having determined that Defendant has satisfied the exhaustion requirement, the Court must
next determine whether “extraordinary and compelling reasons” warrant Defendant’s release.
18 U.S.C. § 3582(c)(1)(A); see also United States v. McCoy, 981 F.3d 271 (4th Cir. 2020).
“There is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal and Corr.
Complex, 442 U.S. 1, 7 (1979). However, the First Step Act, the statute authorizing courts to
consider motions for compassionate release like the one Defendant brings, states that release is
2
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appropriate in “extraordinary and compelling” circumstances. 18 U.S.C. § 3582(c)(1)(A). The
text of the statute does not define the term, however, and Congress instead delegated to the United
States Sentencing Commission (“the Sentencing Commission”) the responsibility of defining the
scope of that phrase. McCoy, 981 F.3d at 276. Accordingly, 28 U.S.C. § 994(t) provides that:
[t]he Commission, in promulgating general policy statements regarding the
sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall
describe what should be considered extraordinary and compelling reasons for
sentence reduction, including the criteria to be applied and a list of specific
examples. Rehabilitation of the defendant alone shall not be considered an
extraordinary and compelling reason.
28 U.S.C. § 994(t). The Sentencing Commission determined, in pertinent part, that:
[u]pon motion of the Director of the Bureau of Prisons under 18 U.S.C.
§ 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a
term of supervised release with or without conditions that does not exceed the
unserved portion of the original term of imprisonment) if, after considering the
factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the
court determines that – (1)(A) Extraordinary and compelling reasons warrant the
reduction; . . . (2) 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 (3) The reduction is
consistent with this policy statement.
U.S.S.G. § 1B1.13.
Further, the Sentencing Commission has indicated that if a 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),” then
“extraordinary and compelling reasons exist” if the defendant’s medical condition, age, family
circumstances, or other reason justify such release. U.S.S.G. § 1B1.13, cmt. n.1. In weighing the
danger the defendant poses to the community, courts are directed to consider a number of factors,
including “the nature and circumstances of the offense charged, including whether the offense is a
crime of violence, . . . or involves a minor victim[;]” “the weight of the evidence against the
person;” “the history and characteristics of the person[;]” and “the nature and seriousness of the
3
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danger to any person or the community that would be posed by the person’s release.” 18 U.S.C.
§ 3142(g).
After the First Step Act’s enactment, many district courts, including this Court, have
determined that the factors set forth in U.S.S.G. § 1B1.13, cmt. n.1 “provide[ ] helpful guidance,
but . . . do[ ] not constrain a court’s independent assessment of whether ‘extraordinary and
compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A).” United States v.
Rodriguez, 451 F. Supp. 3d 392, 401 (E.D. Pa. 2020) (quoting United States v. Beck, 425 F. Supp.
3d 573, 582 (M.D.N.C. 2019)) (citing United States v. Redd, 444 F. Supp. 3d 717, 725-26 (E.D.
Va. 2020) and other cases). To be sure, § 3582(c)(1)(A) “requires [ ] that sentence reductions be
consistent with ‘applicable policy statements.’” McCoy, 981 F.3d at 281 (quoting 18 U.S.C. §
3582(c)(1)(A)). But there remains “no ‘applicable’ policy statement governing compassionate-
release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result,
district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release
that a defendant might raise.’” McCoy, 981 F.3d at 284 (emphasis in original) (quoting United States
v. Zullo, 976 F.3d 228, 230 (2d Cir. 2020)).
As such, this Court has “join[ed] other courts in concluding that a court may find . . . that
extraordinary and compelling reasons exist based on facts and circumstances other than those set
forth in U.S.S.G. § 1B1.13 cmt. n.1(A)-(C) . . . .” Redd, 444 F. Supp. 3d at 726. Accordingly, this
Court will treat the § 1B1.13 cmt. n.1(A)-(C) factors as a guide, but not as an exhaustive list of
circumstances that could justify compassionate release. 2 See also United States v. Jackson, No.
2
The McCoy court noted, however, that § 1B1.13 “remains helpful guidance even when
motions are filed by defendants.” 981 F.3d at 282 n.7. In the wake of McCoy, this circuit continues
to consult § 1B1.13 for compassionate release motions. See, e.g., United States v. Trotman, 837
F. App’x 187, 189 (4th Cir. 2020) (per curiam); United States v. Adamson, 831 F. App’x 82, 83
(4th Cir. 2020) (per curiam); United States v. Nabaya, No. 3:17-cr-3, 2021 WL 54361, at *6 (E.D.
4
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3:17-cr-29-2, 2021 WL 1723653, at *1 (E.D. Va. Apr. 30, 2021) (finding “[t]he policy statements
are not binding but are informative and may be considered”) (citing McCoy, 981 F.3d at 276).
Defendant asserts that his circumstances warrant release. He argues that the conditions at
his prison are “taking an immense toll” on his health. Dkt. 75 at 2. Defendant primarily focuses
on the fact that he has Type II diabetes and has been unable to eat a diet that can help manage that
condition. Id. at 2-3. Evidently, the quality and type of food at FCI Allenwood routinely “spikes”
his blood sugar, and the only medical solution is to “multiply [Defendant’s] diabetic medication.”
Id. at 4. Defendant has apparently began choosing to “not eat anything at all” in response and has
lost “nearly thirty pounds” as a result. Id. Defendant also points to the fact that his status as a
diabetic makes him more susceptible to the COVID-19 virus and that he has a family history of
severe “diabetes-related complications.” Id. at 6. Finally, Defendant argues that his “pristine
record” while in prison, “lack of criminal history[,]” and the fact that he has “already served the
majority of his sentence” weigh in favor of his early release. Id. at 7-10.
Having an illness—even a relatively severe, long-term condition like diabetes—does not
generally qualify as an “extraordinary and compelling reason” for compassionate release. Indeed,
“[i]t is generally true that chronic conditions that can be managed in prison are not a sufficient
basis for compassionate release.” United States v. Molina, Criminal No. 3:15-cr-31, 2021 WL
1323402, at *2 (E.D. Va. April 8, 2021). That is why courts routinely deny § 3582 requests from
prisoners who suffer from diabetes, even when they are experiencing other illnesses alongside
diabetes. See, e.g., United States v. Nabaya, Criminal No. 3:17-cr-3, 2021 WL 54361 (E.D. Va.
Va. Jan. 6, 2021); United States v. Prater, No. 3:13-cr-133, 2021 WL 54364, at *3 (E.D. Va. Jan.
6, 2021); Perkins v. United States, No. 2:18-cr-177, 2020 WL 7364222, at *2 (E.D. Va. Dec. 15,
2020); United States v. Reid, No. 2:02-cr-172-7, 2020 WL 7318266, at *2 (E.D. Va. Dec. 10,
2020).
5
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Jan. 6, 2021) (denying motion for compassionate release from defendant who purportedly had
spots on his left lung and diabetes).
There are limited occasions where an inmate’s health circumstances may justify release
under 18 U.S.C § 3582(c)(1)(A). For example, health conditions may be “extraordinary and
compelling” if they “substantially diminish [a Defendant’s] ability to provide self-care within the
environment of a correctional facility.” United States v. Mumford, 544 F. Supp. 3d 615, 618 (E.D.
Va. 2021) (quoting U.S.S.G. § 1B1.13) (cleaned up). 3 But for health conditions to justify a
compassionate release, a defendant must show they are particularly severe and render him unable
to provide self-care. See United States v. Coleman, No. 3:17-cr-8, 2020 WL 5016967, at *3 (W.D.
Va. Aug 18, 2020) (inmate with limited vision who could not climb stairs and had to use a bottom
bunk did not show severity of condition to warrant release); United States v. Casey, No. 1:06-cr-
71, 2019 WL 1987311, at *1 (W.D. Va. May 6, 2019) (limited mobility and inability to climb
stairs insufficient to show severity warranting release).
Recently, courts have recognized that the COVID-19 pandemic poses additional health
risks to individuals with certain conditions. As a result, various courts, including this Court, have
found it appropriate under § 3582 to release prisoners who show an acute susceptibility to COVID-
19. See, e.g., United States v. Gargan, Criminal No. 1:20-cr-110, 2022 WL 5101724 (E.D. Va.
Oct. 4, 2022) (finding that defendant had established “extraordinary and compelling reasons”
justifying his release by showing a variety of health conditions justifying his compassionate
3
This does not appear to be a consensus among federal courts, even in this circuit. See
United States v. Clark, No. 3:13-cr-163, 2019 WL 1052020, at *1 (W.D.N.C. Mar. 5, 2019)
(rejecting compassionate release request from defendant who had “declining health, diabetes,
stage-3 kidney failure, and back issues . . . .”). Indeed, other courts have held that “poor medical
care and unpleasant living conditions” may not be “extraordinary and compelling reasons”
justifying release. United States v. Alvarez, Case No. 14-cr-80110, 2022 WL 16856260, at *6
(S.D. Fl. Nov. 10, 2022).
6
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release). In the context of COVID-19, “courts have found extraordinary and compelling reasons
for compassionate release when an inmate shows both a particularized susceptibility to the disease
and a particularized risk of contracting the disease at his prison facility.” United States v. Feiling,
453 F. Supp. 832, 841 (E.D. Va. 2020) (emphasis added).
As the circumstances related to COVID-19 have developed since early 2020, so has the
case law interpreting whether an inmate’s susceptibility to COVID-19 constitutes “extraordinary
and compelling reasons” justifying release. For example, some courts in this district have held
that an inmate’s successful recovery from a prior bout with COVID-19 militates against the
argument that he is particularly susceptible to COVID-19. United States v. Freeman, Criminal
No. 2:88-cr-76-2, __ F. Supp. 3d. __, 2022 WL 2967056, at *9 (E.D. Va. July 27, 2022); United
States v. Burale, Criminal No. 2:11-cr-34-13, 2022 WL 1439663, at *5 (E.D. Va. May 6, 2022).
And others have noted that a vaccinated inmate has “little, if any risk of contracting or suffering
serious illness from COVID-19.” United States v. Aqid, 555 F. Supp. 3d 279, 282 (E.D. Va. 2021);
see also United States v. Smith, Criminal No. 3:15-cr-101, 2021 WL 3641463, at *3 (E.D. Va.
Aug. 17, 2021) (“[B]ecause the vaccine mitigates the risk of contracting COVID-19, the defendant
must provide other evidence to establish an extraordinary and compelling reason for
compassionate release based upon his concern about contracting the virus.”).
Defendant primarily focuses on the inadequate nutrition he has received at FCI Allenwood.
See Dkt. 75 at 3-7 (describing his difficulties maintaining a diet suitable to manage his Type II
Diabetes). From his representations, it does appear that he is undergoing numerous physical
difficulties because of the unsuitable prison diet. It is particularly alarming that Defendant has at
times had to resort to eating nothing at all to manage his blood pressure.
7
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Defendant has a remedy for his grievances about the nutritional offerings at FCI
Allenwood—but it is not that his inadequate diet is an “extraordinary and compelling reason”
justifying release under § 3582. The Supreme Court has held that “prison officials must ensure
that inmates receive adequate food.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). And the
Fourth Circuit, like many other circuits, has indicated that “this duty includes an obligation to
provide a medically appropriate diet when necessary.” Scinto v. Stansberry, 841 F.3d 219, 233
(4th Cir. 2016) (citing cases from Sixth, Seventh, and Tenth Circuits holding the same). This
means that to comply with the Eighth Amendment, a prison must “provide some food that the . . .
prisoner is able to eat without compromising his health.” Id. at 233-34. But the requirements of
the Eighth Amendment “are not applicable to the compassionate release analysis under Section
3582(c).” United States v. Hartley, Criminal No. 5:13-cr-46, 2020 WL 5550394, at *1 (W.D.N.C.
Sep. 16, 2020) (collecting cases); see also United States v. Vo, Criminal No. 7:19-cr-18, 2020 WL
6273432, at *3 n.1 (W.D. Va. Oct. 26, 2020) (“[A] motion for compassionate release is not the
appropriate vehicle for Eighth Amendment claims.”).
The diet that Defendant is receiving at FCI Allenwood is not material to the issue that is
currently before the Court. Rather, what matters is whether Defendant’s chronic condition is being
“properly treated[,]” or whether it is not being adequately treated and is thus “so severe as to
provide an extraordinary and compelling reason for a reduction in . . . sentence.” United States v.
Chapman, Criminal No. 4:07-cr-22, 2021 WL 1896967, at *3 (E.D. Va. May 11, 2021). While
the Court recognizes that indeed diet is part and parcel of Defendant’s ability to manage his Type
II Diabetes, he has also indicated that medical professionals at FCI Allenwood have prescribed
him medication “to try and compensate” for the differences in his prison diet. Dkt 75 at 5.
Additionally, Defendant has not shown that his Type II diabetes is not being “properly treated[,]”
8
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as his brief acknowledges the various measures that medical officials at FCI Allenwood have taken
to manage his diabetes. Chapman, 2021 WL 1896967, at *3. Rather, his brief shows that, while
the food at FCI Allenwood makes it more difficult for him to manage his diabetes and the
associated symptoms, the medical professionals there have taken steps to adjust his medication.
Accordingly, despite the difficulties Defendant has encountered in managing his Type II diabetes
because of the diet at FCI Allenwood, his grievances about the nutritional offerings there are not
relevant to the Court’s analysis here.
The fact that Defendant suffers from Type II diabetes is not sufficient on its own to warrant
release pursuant to § 3582. Medical conditions must be “serious” to “constitute extraordinary and
compelling reasons for compassionate release.” United States v. Zinner, Criminal No. 4:17-cr-3,
2022 WL 35923, at *3 (E.D. Va. Jan. 4, 2022). While Type II diabetes is indeed a difficult, lifelong
illness to manage, it does not rise to the same level of seriousness as other illnesses that that have
supported release under § 3582. For example, the defendant in Mumford not only had Type I
diabetes, but also suffered from hypertension, required hemodialysis three times a week, and had
a renal disease that was deemed a “terminal illness with an end-of-life trajectory of five (5) to ten
(10) years.” 544 F. Supp. 3d at 617-18. There is no indication that Defendant’s Type II diabetes
is terminal; indeed, he has lived with it since 2010. Dkt. 75 at 3. And Defendant does not require
intensive treatment like hemodialysis multiple times a week. In sum, simply having a chronic
illness like Type II diabetes is insufficient to warrant compassionate release. See Nabaya, 2021
WL 54361, at *5 (defendant’s “asserted health conditions [diabetes and a spot on his lung], without
more, do not persuade this Court to grant compassionate release”); Feiling, 2020 WL 5047064, at
*5 (finding that defendant’s medical conditions, “Type II diabetes, hypertension, sleep apnea,
metabolic syndrome, high cholesterol, gastroesophageal reflux disease, Dyupuytren contracture,
9
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and narcolepsy with cataplexy[,]” standing alone, were not “extraordinary and compelling
reasons”). 4
Defendant has also not shown that his Type II diabetes, when combined with the current
backdrop of the COVID-19 pandemic, warrants his release. It is true that as a Type II diabetic,
Defendant is at “high risk” for severe illness from COVID-19. United States v. Beahm, Criminal
No. 1:05-cr-249, 2020 WL 4514590, at *2 (E.D. Va. Aug. 5, 2020). However, Mr. Kindambu
indicated that he contracted—and successfully recovered from—COVID-19, Dkt. 75 at 5, which
“undercuts the argument that he is particularly susceptible to extreme illness or death from
COVID-19 . . . .” Aqid, 555 F. Supp. 3d at 282. Moreover, Defendant has been vaccinated against
COVID-19. See Dkt. 82 at 8. Defendant’s vaccination status, when combined with the fact that
the vaccine has been administered to many fellow inmates, vitiates concerns that he is particularly
susceptible to COVID-19 because of his Type II diabetes. See Dawson v. United States, No. 2:17-
cr-61-2, 2021 WL 3609297, at *4 (E.D. Va. Aug 13, 2021) (citing the availability of the vaccine
and the fact that defendant was “in an environment in which most of the inmates within his facility
are already vaccinated” in concluding that defendant who had diabetes and hypertension did not
have “circumstances so extraordinary” to warrant his release); https://www.bop.gov/coronavirus/
(showing that 2,488 inmates at Allenwood FCC have been fully vaccinated). Defendant has a
single risk factor—Type II diabetes—that makes him susceptible to severe illness if he is infected
with COVID-19. But the fact that he has successfully recovered from COVID-19 already and has
4
Defendant also states that he “fears” that he has complications with his kidneys due to
certain symptoms that may be indicative of kidney issues. Dkt. 75 at 4. But, beyond his personal
speculation, there is no indication that he has been diagnosed with any sort of kidney disease or
issue.
10
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been vaccinated against COVID-19 undermines his argument that he is particularly susceptible to
COVID-19. 5
Defendant has also not shown that he has a “particularized risk of contracting [COVID-19]
at his prison facility.” United States v. Feiling, No. 3:19-cr-112, 2020 WL 1821457 at *7 (E.D.
Va. April 10, 2020); see id. (collecting cases). It appears that the risk of contracting COVID-19
at FCI Allenwood is currently relatively low. See https://www.bop.gov/coronavirus/ (as of
December 14, 2022, FCI Allenwood only had 4 active COVID-19 cases among 1,060 inmates, a
.3% rate); Hawthorne, 2021 WL 1912382, at *2 (no particularized facility risk when defendant’s
facility had 12 active cases among 1,492 inmates, a .8% rate). While Defendant points to the
unfortunate fact that an inmate has died from COVID-19, Dkt. 75 at 6, that alone is not enough to
show that he has a heightened risk of contracting COVID-19 at his facility. See Hawthorne, 2021
WL 1912382, at *2 (“Sadly, there has been one inmate death, but that alone does not detract from
the basic conclusion that the facility is managing the COVID-19 situation well.”); United States v.
Kenney, No. 3:16-cr-143, 2021 WL 399724, at *2 (E.D. Va. Feb. 4, 2021) (defendant did not meet
“particularized facility risk component” of compassionate release test when defendant’s facility
had 15 active cases of COVID-19 and one inmate death due to COVID-19). Put simply, Defendant
has provided “no real evidentiary support” to show that he is particularly susceptible to contracting
5
Defendant has also failed to provide any medical records to support his assertion that he
is particularly susceptible to COVID-19. Without those medical records showing the precise
nature of his medical condition, treatment, symptoms, and medications, it is difficult for the Court
to determine whether he is particularly vulnerable to COVID-19 given his current situation. See
Dawson, 2021 WL 3609297, at *4 (“[T]he Court cannot determine whether Petitioner is
particularly vulnerable to COVID-19 without any medical records to support his claims.”); United
States v. Clark, Criminal No. 3:13-cr-163, 2019 WL 1052020, at *3 (W.D.N.C. Mar. 5, 2019)
(denying motion for compassionate release because the petitioner failed to supply medical records
to substantiate medical claims).
11
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COVID-19 at FCI Allenwood. United States v. Hawthorne, No. 2:17-cr-61-2, 2021 WL 1912382,
at *2 (E.D. Va. Aug. 13, 2021).
There are not “extraordinary and compelling reasons” warranting Defendant’s release
under 18 U.S.C. § 3582(c)(1)(A). McCoy, 981 F.3d at 274. The fact that he has Type II diabetes
is not enough on its own to warrant release. And while his grievances with the quality and type of
food at FCI Allenwood may be genuine, those are not properly before this Court in a § 3582
motion. Moreover, Defendant has offered little evidence to suggest that, given the current state of
the COVID-19 pandemic, he is particularly susceptible to COVID-19 and that that risk is
heightened at his particular facility. 6
III. CONCLUSION
Defendant has failed to establish that extraordinary and compelling reasons justify his
release. Accordingly, Defendant’s Motion for Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)
(Dkt. 75) is DENIED. The Government’s Motion for Leave to file a Surreply (Dkt. 85) is DENIED
as MOOT.
IT IS SO ORDERED.
Alexandria, Virginia
January 11, 2023
6
Because the Court finds that Defendant has not shown there are “extraordinary and
compelling reasons” justifying his release, it does not address whether reducing Defendant’s
sentence would be “consistent with the applicable policy statements issued by the Sentencing
Commission[,]” and “if the § 3553(a) sentencing factors merit a reduction.” McCoy, 981 F.3d at
276 (citing 18 U.S.C. § 3582(c)(1)(A)).
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