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Home Source documents Court filing — D. Kan. No. 6:21-cr-10073 (Dkt. 255, D. Kan.)

Court filing — D. Kan. No. 6:21-cr-10073 (Dkt. 255, D. Kan.)

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            Case 6:21-cr-10073-EFM   Document 255    Filed 02/08/25   Page 1 of 5




                              IN THE UNTTED STATES DISTRICT COURT
                                   FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,
   Plaintiff,
     V
                                                          Case No. 21-10073-EFM

MICHAEL CAPPS,
   Defendant.
                    DEFENDANT'S RESPONSE TO GOVERNMENT'S MOTION TO DISMISS
                        AND RENEWED MOTION FOR EXPEDITED CONSIDERATION
                                                                            this
   COMES NOW the Defendant, Michael Capps, pro se, and respectfully submits
                                                                         request
response to the Government's Motion to Dismiss (Doc. 254) and renews his
for expedited consideration based on new developments:
I. Administrative Exhaustion Requirements Have Been Satisfied
                                                                 Defendant has not
   1. The Government's motion to dismiss incorrectly states that
         demonstrated exhaustion of administrative remedies.
                                                                       January 27,
   2. As evidenced by the attached Bureau of Prisons memorandum dated
       2025, Warden B. Jones formally denied Defendant's request for compassionate
         release. This denial followed verbal notification provided to Defendant by
         prison staff on January 25, 2025.
   3. Under 18 U.S.C. § 3582 (c) (1) (A), a defendant may file a motion with the court
      upon receipt of the warden's denial or 30 days lapsing from the date of the
         warden's receipt.
  4. The Tenth Circuit has held that § 3582 (c) (1) (A)'s exhaustion requirement is

         a claim-processing rule. United States v. Maumau, 993 F.3d 821, 826 (10th
                                                                                      Cir.

         2021).
  5. Defendant has satisifed this requirement through receipt of the warden's denial.

    making fur ther administrative appeals unncessary under the statute's plain
    language.



                                                                                      Pg. 1
        Case 6:21-cr-10073-EFM        Document 255   Filed 02/08/25   Page 2 of 5




II. Cireuns tances karrant Expedited Consideration
   6. Since filing the original mot ion, new developments have increased the urgency
      of this request:
        a. Defendant's elderly father suffered a serious fall on January 26, 2025,

           resulting in:
             i.     Two broken ribs

             ii.    A broken hand

              iii. A head laceration
              iv. Further impaiment of already limited mobility
         b. These new injuries conpound the existing circumstances detailed in
           Defendant's pending motion by:
             i.     Increasing his father's imediate need for assistance
             ii.    reating additional medical appointments and rehabilitation
                    requirements.
             iii. Further limiting his ability to perfom basic self-care
   7. The combination of:

        a. A formal denial from the warden

        b. Deteriorating conditions of the Defendant's father
        c. Inmediate risk to both Defendant's and his father's health
       d. Lack of alternative caregiving options supports both the procedural and
           subs tantive merit of imediate consideration

III. Prayer for Relief
   WHEREFORE, Defendant respectfully requests that this Court:
     1. Deny the Goverment's Motion to Dismiss as moot in light of the documented
        exhaustion of administrative remedies;

     2. Grant expedi ted cons ideration of the underlying motion for compassionate
        release ;



                                                                                    Pg. 2
        Case 6:21-cr-10073-EFM      Document 255   Filed 02/08/25   Page 3 of 5




      3. Consider the additional circumstances described herein as supplemental
         support for both the motion for compassionate release and request for
         expedited consideration.

Respectfully subnit ted,


Míchag1 Capp
Register No. 66142-509
Florence Prison Camp
PO Box 6000
Florence, C0 81226
      Case 6:21-cr-10073-EFM        Document 255       Filed 02/08/25       Page 4 of 5




                                                      U.S. Department of Justice
      RT
                                                      Federal Bureau of Prisons
               USTIC                                 Federal Correctional Complex Florence
                                                       OAdministrative Maximum Security Institution
                                                       OHigh Security Institution
            VOFF                                       DMedium Security Institution
                                                     Ø Minimum Security Institution

                                                     January 27, 2025


MEMORANDUM FOR               CAPPS,     Michael R
                             REGNO.: 66142-509

FROM:                        D.'Jones, Warden

SUBJECT:                     Compassionate ReleaselReduction In Sentence (RIS)

                                                         Release/Reduction in Sentence
This is in response to your Request for Compassionate Partner where you are the only
(RIS), based on lIncapacitation of a Spouse or Register           shoulder surgery on
available caretaker. Specifically, your father, age 77, underwent      daily needs.
December 30, 2024, and is now unable to drive or provide for his basic
You are the only care giver for your father.
                                                                     sentencing court, on
Title 18 of the United States Code, section 3582(c)(1)(A), allows a term of imprisonment
motion of the Director of the Bureau of Prisons (BOP), to reduce a Program Statement
                                                          with BOP
for extraordinary or compelling reasons. In accordance
                                                     Sentence:   Procedures for
 No. 5050.50, Compassionate Release/Reduction in
Implementation of 18 U.S.C. $S 3582(c)(1)(A) and 4205(g),     provides guidance on the
                                                      compelling  reasons, such as the
types of circumstances that present extraordinary or     condition; status as a "new law"
inmate's terminal medical condition; debilitated medical
elderly inmate, an elderly inmate with medical conditions, or an "other elderly inmate";
                                                               the inmate's child; or the
the death or incapacitation of the family member caregiver of Your request has been
incapacitation of the inmate's spouse or registered partner.
evaluated consistent with the general guidance.
                                                               diagnosed with aterminal
 RIS consideration may be given to inmates who have been less, who have a
                                                              or
and incurable disease whose life expectancy is 18 months
                                                        injury from which they will not
progressive illness or who have suffered a debilitatingcare
recover. You are a 47-year-old male with a medical           level 2, stable, chronic care
diagnosis. While it is understandable youdesire to be with your      family and care for
                                                                                  to receive
your father, this does not present extraordinary or compelling reasons for you
a Compassionate Release or RIS.
                                                               "extraordinary or
Based upon a review of all factors listed above, Ido not find         Bureau make a
compelling circumstances" as required by the statute to recommend the
                                                                          reguest for
motion before your sentencing court seeking a reduction in sentence. Your
Compassionate Release/RIS is denied. If you are not satisfied with this response to
          Case 6:21-cr-10073-EFM     Document 255     Filed 02/08/25   Page 5 of 5

Compassionate Release/RIS
CAPPS, Michael R
Reg. No.: 66142-509
Page 2

   your request, you may commence an appeal of this decision via the Adninistrative
   Remedy process.
   Itrust this addresses your concerns.


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