Motion for Compassionate Release and Request for Expedited Hearing — United States v. Capps (Dkt. 247)

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Doc. 247 in Case 6:21-cr-10073-EFM (D. Kan.), filed January 25, 2025, is Defendant Michael Capps's Motion for Compassionate Release Pursuant to 18 U.S.C. § 3583(c)(1)(A)(i) and Request for Expedited Hearing in United States of America v. Michael Capps. The motion presents two bases for extraordinary and compelling reasons, family circumstances involving Charles Ford, age 77, and inadequate medical care in custody, and asks the court to reduce his sentence to time served. It states that Defendant has served approximately 1 month of a 27-month sentence since self-surrendering on December 31, 2024. Attached after the signature block are an inmate request form for compassionate release consideration and an Affidavit of Charles Ford.

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——— "Case 6:21-cr-10073-EFM Document 247 Filed 01/25/25 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

Plaintiff,
Case No. 21-100/3-EIM

V.
MICHAEL CAPPS,
Defendant.

MOTION FOR COMPASSIONATE RELEASE PURSUANT TO 18 U.S.C. § 3583(c)(1)(A)(i) AND
REQUEST FOR EXPEDITED HEARING

Given the urgent nature of the circumstances describedherein, Defendant additionally

requests expedited consideration of this motion.

I. Request for Expedited Consideration

Defendant respectfully request expedited consideration on this motion based on

immediate risks of harm that render standard briefing schedules inadequate;

A. Risk of Immediate Harm

> current acks necessary daily care
1. Defendant's 77-year-old father eurrently lacks necessary dat

following recent shoulder surgery, Leaving him unable to:

a. Perform basic self-care funetions

b. Prepare meals

| c. Transport himself to medical appointments

f d. Manage his medications

2. Defendant faces ongoing health risks due to:
a. Inability to properly maintain his CPAP dovico, creating
immediate risk of infeetion and eardtovaseular ovents
b. Lack of access to montal health treatmont tor cembak>rolated
PTSD, resulting in active regression et symptoms
B. Good cause for expedited consideration is warranted beeaune:

1. No alternative care options exist for Dofondant's tathor
Hi A

Br |
BY

IL. LEGAL STANDARD

The Tenth Circuit has established that district courts must follow

iy
it)

step test when evaluating compassionate release motions. see United States v.

Maumau, 993 F.3d 821, 831 (10th Cir. 2021); United States v. McGee, 992 F

1035, 1042-43 (10th Cir. 2021). The court must: (1) find that
and compelling reasons warrant the reduction; (2) ensure that
is consistent with applicable policy statements issued by the

Commission; and (3) consider any applicable § 3553(a) factors

Sentencinz

and determine

whether, in the court's discretion, the reduction authorized by steps ome

and two are warranted in whole or in part under the particular circumstances

of the case. See United States v. Hald, 8 F.4th 932, 937-38 (10th Cir. 2021).

III. ANALYSIS

A. Exhaustion of Administrative Remedies

Pursuant to 18 U.S.C. § 3582(c)(1)(A), Defendant has fully exhausted his

administrative remedies. On January 20, 2025, Defendant submitted a request

for compassionate release to the Warden of Florence Correctional Prison

Camp. The Warden denied this request on

. The Tenth Circuit

has held that § 3582(c)(1)(A)'s requirement that a defendant either fully

exhaust administrative remedies or wait 30 days after the warden's receipt

of a request, is a claim-processing rule. United States v. Maumau, 993 F.3d

at 826. Defendant, having received a denial from the warden, has satisifed
)

this requirement.
B. Three-Part Test Analysis

1. Extraordinary and Compelling Reasons

Defendant presents two independent bases for finding extraordinary

and compelling reasons warranting release:

a. Family Circumstances

The Tenth Circuit has recognized district courts have “broad

0, 3
Case 6:21-cr-10073-EFM Document 247 ~=Filed 01/25/25 += Page 4 of 14

the court affirmed that family circumstamces cam constitute
extraordinary and compelling reasons for release. In= present
case presents such circumstances.
Defendant's father, Charles Ford, age 77, is experiencing severe
medical issues that render him umable to care for hicself (Exnmiait
As detailed in the attached affidavit, Mr. Ford:
i. Recently underwent shoulder surgery with an umcertal
prognosis (Exhibit 2).
ii. Camnot perform basic living activities.
iii. Has no available alternative caregivers.
iv. Requires immediate and ongoing assistance.
v. Is immiently scheduled for knee-replacement surgery,
exasperating his uncertain prognosis.
Courts within the Tenth Circuit have found similar fam ly circum
stances to constitute extraordinary and compelling reasons. See
United States v. Lopez, No. 18-CR-2846 MV, 2020 WL 2489746, at
43 (D.N.M. May 14, 2020) (finding extraordinary and compelling
reasons where defendant was the only available caregiver for an
incapacitated family member).
b. Inadequate Medical Care Creating Substantial Risk of Harm
In addition to the compelling family circumstances, Defendant
faces an immediate and serious risk to his health due to the
ROP’s failure to provide necessary medical care. The Tenth Circuit

has recognized that medical circumstances may constitute extra-

ordinary and compelling reasons for release. See United States vw.
require ongoin treatment, as noted in Defendant's Pre-Sentencing

Report:

i. Combat-Related PISD

- Diagnosed and previously treated by the Dept. VA

-~ No access to counseling, therapy, or cognitive support
at FPC Florence

- Experiencing regression of symptoms including panic
attacks, anxiety and depression

- BOP acknowledges no programs available at facility or
within the BOP as required by BOP Program Statement
5242.01, Veteran Inmate Management

ii. Complex Sleep Apnea

- Requires CPAP device for treatment

- BOP refuses to provide necessary maintenance supplies

- BOP prevents receipt of supplies from outside sources,

including Dept. VA and family

- Lack of proper CPAP maintenance creates substantial risk
of disease transmission and contamination.

- Lack of access to a functional CPAP creates substantial
risk of Defendant having a stroke, heart attack, development
of heart disease and exacerbation of his chronic fatigue

Syndrome .
The cocbination of these madical care deficiences creates a sub-
stantial risk te Defendant's health and well-being. As a combat
wateran, Defendant's need for consistent mental health treatment
is particularly acute. Courts have recognized that the BOP's
inability to provide adequate medical care may constitute extra-
ordinary and compellinse circumstances, particularly where, as here,
the Defendant requires specialized care. See United States v.
Diaz—Gotay, No. 18-CR-142-01-JL, 2020 WL 7029004, at *3 (D.N.H.
Nov. 30, 2020) (finding extraordinary and compelling circumstances
wmere Defendant could not receive adequate medical treatment in BOP
facility).

2. Consistency with Policy Statements

ihe current version of U.S.S.G. § 1B1.13 predates the First step Act

and is not binding on the Court. See United States v. McGee, 992 F.3d

at 1030. However, the Court may still consider it as guidance. The

current circumstances align with both the family caregiver provisions

émna médical care considerations contemplated by the policy statements.

the combination of these factors - Defendant's inability to receive

oneueer medical care while simultaneously being the only available

caregiver for his incapacitated father - present particularly compelling

secnmecraie ganeee that warrant relief.

mere, the combination of:
a. Mr. Ford's serious medical conditions

Q- The lack of alternative caregivers (Exhibit 3)

(2

- Tne Defendant's ability to provide necessary care
dg. The immediate and critical nature of the need

e. BOP’s inability to provide Defendant with access to medical Ly

necessary mental health treatment for his combat-ralated PTSD

and eritieally needed CPAP maintenance Supplies, presents

compolling circumstances that warrant roliof.
3. Section 3553(a) Factors

The § 3553(a) factors support Defendant's request for compassionate

release:

a. Nature and Circumstances of the Offense: Defendant is a first
time offender with a minimgal risk of recidivism. He has served
approximately 1 month of his 27-month sentence, since self-

surrendering on December 31, 2024.

b. History and Characteristics of the Defendant: During his

brief period of incarceration, Defendant has completed or
enrolled in 'Enjoing the Second Half of Life", Basic Cognitive
Thinking, Trauma: Stress and Resilience, Non-Residential

Drug Abuse Program and Redefining the Mission: Veterans'

Reentry Program.

c. Need for the Sentence Imposed: The emergecy nature of Mr.

Ford's care and the BOP's failure to provide adequate medical
care for Defendant, presents changed circumstances that affect
the need for the full sentence imposed. See United States v.
Chamberlain, 589 F. Supp 3d 1319, 1323 (D.N.M. 2022)

(considering changed circumstances in § 3553(a) analysis).

d. Protection of the Public: Defendant's release to care for his

| father and to obtain proper and adequate medical and mental

health care from the Dept. VA would serve both humanitarian
and public safety interests as it would ensure proper care
for an alderly, disabled member of the community, while
allowing Defendant to receive critical care from the Dept.
VA and fulfill important family obligations. This Court has

previously ruled Defendant does not pose a danger to the

public.
— ——eeEEEEEEEoEeEeEeEeEeEeEeEeEeEeoow a os Case 6:21-cr-10073-EFM —Document247. Filed 01/25/25. Page 8 of 14

The current conditions of confinement, particularly the lack of mece-
ssary medical care, affect the assessment of whether the sentence
being served remains appropriate under § 3553(a). Defendant's status
as a veteran with combat-related PTSD who is being denied appropriate

treatment further supports reconsideration of the sentence under these

factors.
IV. CONCLUSION
WHEREFORE, having satisfied the three-part test required by the Tenth
Circuit Court and demonstrated extraordinary and compelling reasons for release,

Defendant respectfully requests that this Court grant this motion and reduce his

sentence to time served.

Respectfully submitted.

Michael/Capps &

Register Number: 66142-509
Florence Correctional Prison Camp
PO Box 6000

Florence, CO 81226
FC] Florence, CO -

Form: Inmate Request for Compassionate Release Consideraton

| FROM (erm: MiCHAFL RAY CAPPS | REGISTERNO: 66142-509

Instructions: In order to be considered for Compassionate Release, you must complete this form and send it to the Unit Team. The
saformanon will be used to determine if your request for Compassionate Release meets the minimum guidelines for consideration, 25

referenced in the Program Statement $050.50, Compassionate Release/Reduction in Sentence.

1. Check the category you are requesting Compassionate Release Consideration: (only one per request)

(J Request based on Medical Circumstances
C) Medical Terminal (estimated life expectancy of 18 months or Jess)
J Medical Debilitated (completely disabled, unable to perform activities of daily living and totally confined to a Sec or
chair OR only capable of limited self-care and confined to a bed or chair more than 50% of waking hours)

[J] Request based cn Non-Medical Circumstances-Elderly Inmates
[) Reguest based on Elderly Inmates over 65 with Medical Conditions who have served more than 50% of sentence

[] Reguest based on inmates age’65 or older who have served the greater of 10 years or 75% of the term of imprisonment
to which the mmaie was sentenced |
[] Reqnest based on Elderly Inmates over 70 who have served 50 years or more of their term of imprisonment
(oiense that occurred on or after November 1, 1987) | |
[ Recuest based on Death or Incapacitation of the Family Member Caregiver where you are the only caregiver for your mupor child
i] Request based on Incapacitation of a Spouse or Registered Partner where you are the only available caretaker

2 Explam the extraordinary or compelling circumstances, which could not have been foreseen at the ime

of your sentencing you believe warrant Compassionate Release consideration. Continue on back, if
necessary.My father, age 77, underwent shoulder surgery on 12/30/24 leaving him unable

‘oO drive or provide for f D2 dé
Explain your proposed Release Plans and continue on back, if necessary. The information should
include the following detailed informaton:
|. Address and phone number of where you plan to live. _ ;

Lal

2. Your family supports in the community.

Father. Charles Ford - Sister, Tammy Bover - Son, Charles Capps - Nephew, Dillon
Rover = Ni J. Richard Rov - Aimt; Debbie LZemore
3. How you plan to cover your medical expenses and support yourself.
j am 1007 Service-Disabled Veteran and receive all necessary care from the Department
of Veteran Affairs, A mative am enrolled in Medicare Parts A ar B
4 Where continued health treatment and services will be recerved.
Primarily from Department of Veteran Affairs, Wichita, KS and Tulsa, OK

Sensifive Limited Official Use Only

A cosy of ts form wil bs eft the Medical Record section 6 and Inmate's Central File, and the original will remain with tho Medical Social Warter
Juna 2019

lvine neec am the on am] memh avallable
STATE OF OKLAHOMA)
Ss.)

TULSA COUNTY)

AFFIDAVIT OF CHARLES FORD

| Charles Ford, being first duly sworn upon oath, state the following:

1. |am77 years old and reside at 9617-E South 225" West Avenue, Sand Springs,

Oklahoma 74063.
?. lam making this affidavit is support of a compassionate release for my son, Michael

Ray Capps, who is currently incarcerated at FC! Florence.
3. |recently underwent shoulder surgery which has severely

ability to care for myself.
4. Due to this surgery and my advanced age, |!am unable to:

a. Drive avehicle

b. Prepare meals for myself
c. Bathe independently
d
e

mited my mobility anc

- Get dressed without assistance
- Perform basic household tasks

f. Travelto medical appointments
5. My medical prognosis for full recovery is uncertain due to my age, and my doctors

have not provided a definitive timeline for improvement. Due to extreme pain from 4
past surgery, | am being scheduled for imminent knee replacement surgery.

6. |amsolely relying on the goodwill of my neighbors who periodically check on my
wellbeing, but this is not a sustainable long-term solution for my care needs. My
son is my only family member capable of providing the full-time care that! require

currently.
7. \f granted compassionate release, my son would reside with me and serve as my

orimary caregiver, ensuring | receive proper care and assistance with my daily

needs.
8 Without consistent daily assistance, | fear for my health and safety as | attempt to

recover from this surgery and then the knee replacement.

FURTHER AFFIANT SAYETH NOT.

| declare under ponaty of perjury that the foregoing is true and correct.

Executed on this e day of Hatt _, 2025
STATE OF OKLAHOMA)

Ss.)
COUNTY OF TULSA)

ACKNOWLEDGMENT

Before me, the undersigned Notary Public, on this day personally appeared Charles Ford,
known to me to be the person whose name is subscribed to the foregoing instrument, and

acknowledged to me that he executed the same for the purposes and consideration therein
expressed.

nf seal of office this ||" day of _\ CQ War Y- , 2025.
i

Given under my hand a

Notary Public

KIMBERLY DAWN PORTER
Notary Public - State of Oklahoma
Commission Number 18006237

My Commission Expires Jun 21, 2026 B

Notary Public, State of Oklahoma
My Commission Expires: SUA otk | Qa) (o
STATE OF OKLAHOMA)
Ss.)
TULSA COUNTY)

AFFIDAVIT OF TAMMY BOYER

|, Tammy Boyer, being first duly sworn upon oath, state the following:

1. lam 55 years old and reside at 3804 South 28" West Avenue, Tulsa, Oklahoma
74107

_ |am the daughter of Charles Ford, who recently underwent shoulder surgery and
requires full time care and assistance.

. {lve more than 30 minutes away from my father’s residence in Sand Springs,
Oklahoma.

£. |am employed full-time at Hillcrest Medical Center and cannot afford to take the

time off work to provide the daily care that my father requires.

. Due tomy own medical conditions, specifically a heart procedure and leg surgery, |
am physically unable to:

a. Lift or assist my father with mobility

D. Help him with bathing/personal care

c. Assist him in and out of bed or chairs

d. Provide the physical support that he needs for daily activities

6. While | deeply care for my father’s wellbeing, my own health and financial
circumstances make it impossible for me to serve as his caregiver.

| Nave personally observed my father’s current living situation and can attest to his
need for consistent, daily care assistance that neither | nor other family members
can provide.

©. | Delieve that my brother’s presence and ability to serve as a full-time caregiver

would be the most appropriate solution for ensuring my father receives the care he
requires.

FURTHER AFFIANT SAYETH NOT.

Ca)

| Geclare under penalty of perjury that the foregoing is true and correct.

wv miy Boye!


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