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Case 6:21-cr-10073-EFM Document 289 Filed 07/24/25 Page 1 of 14
UNITED STATES DISTRICT COURT
District of Kansas
(Wichita Docket)
UNITED STATES OF AMERICA,
Plaintiff,
v. CASE NO.: 21-10073-EFM
MICHAEL CAPPS,
Defendant.
GOVERNMENT’S RESPONSE TO DEFENDANT’S
SECOND MOTION FOR COMPASSIONATE RELEASE and
MOTION TO APPOINT COUNSEL
(Docs. 286 and 287)
APPEAR NOW the United States of America, by and through Jared S. Maag,
Assistant United States Attorney, and respectfully submit the following in response to the
defendant’s second motion for compassionate release (Doc. 287) and his motion to appoint
counsel (Doc. 286).
I. RELEVANT PROCEDURAL HISTORY
On December 21, 2022, a petit jury sitting in Wichita, Kansas convicted the
defendant on multiple counts of fraud, money laundering, and false statements related to
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him illegally obtaining federal funds relative to COVID-19 relief. (Doc. 73.)
On May 11, 2023, the defendant was committed to the custody of the United States
Bureau of Prisons (BOP) for 27 months. (Doc. 98.) The defendant received an appeal
bond, and self-surrendered to prison officials at FCI Florence on December 31, 2024.
(Doc. 247 at 2.)
The defendant’s current release date is September 29, 2026.
On August 13, 2024, the United States Court of Appeals for the Tenth Circuit
affirmed the defendant’s convictions and controlling sentence. United States v. Capps,
112 F.4th 887 (10th Cir. 2024).
On January 25, 2024, shortly after arriving at FCI Florence, the defendant filed his
first motion seeking compassionate release. (Doc. 247.)
On February 27, 2025, this Court issued an Order denying the defendant’s motion.
(Doc. 274; Doc. 262.) The defendant voluntarily withdrew his appeal to the Tenth Circuit
challenging this Court’s decision to deny compassionate release. United States v. Capps,
No. 25-3037, Doc. 10-1 (Apr. 29, 2025).
On July 14, 2025, the defendant filed his second motion seeking compassionate
release. (Doc. 287.)
II. DEFENDANT’S ARGUMENTS
The defendant moves this Court to immediately release him due to a life-threatening
cardiovascular crisis that is not being properly treated by the BOP. (Doc. 287 at 1.) He
further submits that his “exceptional rehabilitation efforts” warrant his immediate release.
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(Id. at 18.)
III. GOVERNMENT’S RESPONSE
A. Exhaustion of Administrative Remedies
As a general matter, federal courts are prohibited from modifying a defendant’s term
of imprisonment once it has been imposed; however, this rule is subject to a limited number
of narrow exceptions. Freeman v. United States, 564 U.S. 522, 526 (2011). Section
3582(c)(1)(A) qualifies as one of those exceptions and provides that a district court is
authorized to grant a motion for reduction of sentence whether filed by the Director of the
BOP or upon motion of the defendant “after the defendant has fully exhausted all
administrative rights to appeal a failure of the [BOP] 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.” 18 U.S.C. § 3582(c)(1)(A).
As required by statute, however, the defendant must first demonstrate exhaustion of
his available administrative remedies with the BOP before submitting an appeal to this
Court. Hemmelgarn, 15 F.4th at 1030-31 (holding that Section 3582(c)(1)(A)’s
exhaustion requirement is a claim-processing rule, and that the defendant must demonstrate
proof of exhaustion). The government is satisfied that the defendant has exhausted his
available remedies with the BOP as to the claims he presents in the current motion. (Doc.
285-7.)
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B. The Three-Part Test
Per Section 3582(c)(1)(A), a district court may grant a motion for sentence reduction
only if the following three requirements are met: (1) there are extraordinary and compelling
reasons warranting the reduction; (2) the reduction is consistent with the applicable policy
statements issued by the United States Sentencing Commission; and (3) the district court
considers the factors set forth in Section 3553(a), to the extent they are applicable. (Ibid).
The defendant bears the burden of demonstrating that he meets these requirements for
compassionate release. United States v. Crespin, No. 23-2111, 2024 WL 3084972, at *5
(10th Cir. June 21, 2024) (reaffirming that “the defendant carries the burden on a motion
for compassionate release to show he is entitled to relief”).
To satisfy the requirements of Section 3582(c)(1)(A), a district court must engage
in a three-step process. United States v. McGee, 992 F.3d 1035, 1042-43 (10th Cir. 2021)
(adopting test established in United States v. Jones, 980 F.3d 1098, 1107 (6th Cir. 2020));
see also United States v. Maumau, 993 F.3d 821, 831 (10th Cir. 2021) (“Because this three-
step test is consistent with the plain language of [Section 3582(c)(1)(A)], we adopt the test
for use in this circuit.”).
At step one, a district court must find whether extraordinary and compelling reasons
warrant a sentence reduction. McGee, 992 F.3d at 1043. To that end, “the most
plausible interpretation of . . . [Section] 3582(c)(1)(A)(i) is that Congress intended to afford
district courts with discretion, in carrying out the first step of the statutory test . . . [and] to
independently determine the existence of ‘extraordinary and compelling reasons,’ and for
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the discretion to be circumscribed under the second step of the statutory test by requiring
district courts to find that a sentence reduction is consistent with the applicable policy
statements issued by the Sentencing Commission.” Id. at 1044.
At step two, a district court must determine whether such reduction is consistent
with applicable policy statements issued by the Sentencing Commission. Id. at 1048.
As highlighted by the Court in McGee, the Sentencing Commission’s description of what
constitutes “extraordinary and compelling reasons” must be viewed as a “general policy
statement” rather than the equivalent of a statutory definition. Id. at 1048. As the Court
in McGee opined:
. . . in applying the first part of [Section] 3582(c)(1)(A)’s statutory test,
[district courts] have the authority to determine for themselves what
constitutes “extraordinary and compelling reasons,” but that this authority is
effectively circumscribed by the second part of the statutory test, i.e., the
requirement that a district court find that a reduction is consistent with
applicable policy statements issued by the Sentencing Commission pursuant
to [Sections] 994(a)(2)(C) and (t). In other words, we conclude that
Congress did not, by way of [Section] 994(t), intend for the Sentencing
Commission to exclusively define the phrase “extraordinary and compelling
reasons,” but rather for the Sentencing Commission to describe those
characteristic[s] or significant qualities or features that typically constitute
“extraordinary and compelling reasons,” and for those guideposts to serve as
part of the general policy statements to be considered by district courts under
the second part of the statutory test in [Section] 3582(c)(1)(A).
Id. at 1045.
Finally, at step three, a district court must address the applicable factors under
Section 3553(a). Id. at 1042-43. Importantly, a district court may deny compassionate
release when any of the three prerequisites listed in Section 3582(c)(1)(A) is lacking and
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need not address the other factors. Id. at 1043 (citing United States v. Elias, 984 F.3d 516,
519 (6th Cir. 2021)); see also United States v. Hald, et. al, 8 F.4th 932, 942 (10th Cir. 2021)
(reaffirming McGee’s declaration that the three steps could be considered in any order);
United States v. Bradley, 97 F.4th 1214, 1218 (10th Cir. 2024) (same). Conversely, when
a district court determines that compassionate release is warranted, “it must of course
address all three steps.” McGee, 992 F.3d at 1043 (quoting United States v. Navarro, 986
F.3d 668, 670 (6th Cir. 2021)).
Relevant here, Section 3582(c)(1)(A) itself requires that the reason for release be
“extraordinary and compelling.” And, as the Court in Maumau noted, a sentence
reduction must be supported by “a combination of factors” that warrant a sentence
reduction for extraordinary and compelling reasons. 993 F.3d at 837; Hald, 8 F.4th at 938
n.4 (“The design of Congress in amending [Section] 3582(c)(1)(A) was not to create an
open season for resentencing, after all, the title of the amendment speaks in terms of
‘Compassionate’ release . . .”); see also United States v. Hunter, 12 F.4th 555, 561-62 (6th
Cir. 2021) (noting that while Congress has not defined what constitutes an “extraordinary
and compelling” reason, the ordinary meaning of the words “extraordinary and
compelling” are understood as “most unusual”, “far from common”, and “having little or
no precedent”; and, “forcing, impelling, driving”, respectively); see also United States v.
Wesley, 60 F.4th 1277, 1286 (10th Cir. 2023) (noting that “there is a fair argument that
‘extraordinary and compelling reasons,’ by its own terms, excludes matters that stray too
far from the core established by the Sentencing Commission . . .”).
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Finally, Section 3582(c)(1)(A)(i) provides that this Court “may reduce” the
defendant’s sentence. The “use of ‘may’ is quintessential discretionary language.”
United States v. Sutton, 962 F.3d 979, 986 (7th Cir. 2020); United States v. Ruffin, 978
F.3d 1000, 1005 (6th Cir. 2020) (“This last requirement confirms an overarching point:
The district court has substantial discretion. The statute says that the district court “may”
reduce a sentence if it finds the first two requirements met; it does not say that the district
court must do so. Even if those conditions are met, therefore, a district court may still
deny relief if it finds that the “applicable” [Section] 3553(a) factors do not justify it.”)
(internal citations omitted).
C. Section 3582(c)(1)(A)(i) and U.S.S.G. § 1B1.13
Again, Section 3582(c)(1)(A)(i) reads in relevant part that “[a] court may not modify
a term of imprisonment once it has been imposed except that—in any case—the court . . .
may reduce a term of imprisonment . . . after considering the factors set forth in section
3553(a) to the extent that they are applicable, if it finds that—(i) extraordinary and
compelling reasons warrant such a reduction; and that such reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” Congress has thus
plainly established that a district court considering a motion for compassionate release find
that any approved reduction be “consistent with applicable policy statements issued by the
Sentencing Commission.” Id.
In November of 2023, the Sentencing Commission’s proposed amendment to
Section 1B1.13 came into effect generally preserving the discretion district courts held to
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consider any extraordinary and compelling reason for release. Under Section 1B1.13, this
Court is now directed to consider if the medical circumstances of the defendant, the age of
the defendant, family circumstances, whether the defendant is or has been a victim of
abuse, or served an unusually long sentence, constitute extraordinary circumstances
warranting a sentence reduction. See Sections 1B1.13(b)(1)-(4), (6). Section 1B1.13 also
permits this Court to consider whether “[t]he defendant presents any other circumstance or
combination of circumstances that, when considered by themselves or together with any of
the reasons described in paragraphs (1) through (4), are similar in gravity to those described
in paragraphs (1) through (4).
Finally, the Sentencing Commission’s new policy reaffirms this Court’s obligation
to analyze the factors under Section 3553(a), namely, “the nature and circumstances of the
offense”; “the history and characteristics of the defendant”; “the need to avoid unwarranted
sentence disparities”; and the need for the sentence to “provide just punishment,” “afford
adequate deterrence,” “protect the public,” and “provide the defendant with ... training,
medical care, or other correctional treatment in the most effective manner.” 18 U.S.C.
§ 3553(a); U.S.S.G. § 1B1.13(a).
D. The Defendant’s Medical Concerns
Again, the defendant submits that he must immediately be released from custody
because personnel from the BOP are failing to adequately address his myriad health
problems, to include a “life-threatening cardiovascular crisis.” (Doc. 287 at 1.) For the
following reasons, the defendant’s arguments must be rejected.
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Relevant here, under Section 1B1.13(b)(1)(A)-(C), extraordinary and compelling
reasons exist if (A) the defendant is suffering from a terminal illness, (B) the defendant is
suffering from a serious physical or medical condition, serious functional or cognitive
impairment, or 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 is not expected to recover,” or
(C) the defendant “is suffering from a medical condition that requires long-term or
specialized medical care that is not being provided and without which the defendant is at
risk of serious deterioration in health or death.” The defendant submits that he qualifies
for release having satisfied the requirements of Section 1B1.13(b)(1)(C). (Doc. 287 at 2.)
Having once again reviewed the defendant’s most current medical records as
provided by personnel at the BOP on July 24, 2025, Sections A and B of 1B1.13 clearly
do not apply. The defendant is not suffering from a terminal illness, nor is he unable to
provide self-care within his current correctional facility. Section C, upon which the
defendant primarily relies, is inapplicable because the records do not demonstrate that he
is suffering from a condition that requires long-term or specialized care that is not being
provided by the BOP.
As the records demonstrate, the defendant had a recent meeting with a medical
provider on July 23, 2025, wherein his diet was discussed as well as his exercise regime.
The records show that the defendant is taking a series of medications to address his blood
pressure and that he is satisfied with the prescriptions being administered. He further
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remarked to the provider that his current CPAP machine is working better. The
defendant’s testosterone levels are low and recommendations for certain medications have
been discussed with the defendant. The records plainly show that the defendant has, as of
7/23/25, a plan in place to address his medical concerns and that he is comfortable with
that plan. Simply put, BOP officials are providing the necessary care to the defendant,
and he is fully accepting of that care.
The defendant simply cannot satisfy his burden of demonstrating that his current
medical condition, or the alleged failure by BOP officials to address his concerns, is
“extraordinary” as contemplated by Section 3582(c) and Section 1B1.13(b)(1)(C). As
before, the defendant is receiving regular treatment and care for his conditions, and he
cannot demonstrate—at a level where his release would be warranted—that the BOP is
wholly incapable of caring for an inmate with his medical concerns.
Again, the defendant’s medical problems are being addressed; and his medical
records simply do not support his claims of serious medical concerns as he describes in his
motion. Thus, the defendant’s arguments on this ground must be denied as he cannot
establish extraordinary and compelling reasons for compassionate release as contemplated
by Section 3582(c) and Section 1B1.13(b)(1) of the Guidelines. Hunter, 12 F.4th at 561-
62 (noting that while Congress has not defined what constitutes an “extraordinary and
compelling” reason, the ordinary meaning of the words “extraordinary and compelling”
are understood as “most unusual”, “far from common”, and “having little or no precedent”;
and, “forcing, impelling, driving”, respectively).
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E. Rehabilitation
Next, the defendant maintains that his immediate release is warranted because of
his “exceptional rehabilitation efforts and programming completion.” (Doc. 287 at 18.)
While the defendant’s efforts towards rehabilitation are commendable, law and precedent
plainly state that rehabilitation alone is insufficient to warrant compassionate release.
United States v. Mata-Soto, 861 F. App’x 251, 255 (10th Cir. 2021) (noting that the district
court “correctly determined that rehabilitation alone could not constitute an extraordinary
and compelling reason warranting release”); 28 U.S.C. § 994(t) (“The 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.”). Independently, the defendant’s arguments fail to
merit relief, and they likewise fail to warrant relief given that he has fallen short of
establishing any other “extraordinary and compelling” reason for release from custody.
F. Section 3553(a) Factors
Finally, to the extent the defendant can establish an extraordinary and compelling
reason for release, satisfying that burden does not resolve the defendant’s entitlement to a
reduction in sentence or release from confinement. This Court must still consider whether
the defendant poses a danger to the community and other relevant factors under Section
3553(a) before making the ultimate decision on release. Accordingly, this Court must
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consider (1) the defendant’s personal history and characteristics; (2) his sentence relative
to the nature and seriousness of his offenses; (3) the need for a sentence to provide just
punishment, promote respect for the law, reflect the seriousness of the offense, deter crime,
and protect the public; (4) the need for rehabilitative services; (5) the applicable guideline
sentence; and (6) the need to avoid unwarranted sentencing disparities among similarly-
situated defendants. See 18 U.S.C. § 3553(a)(1)–(6).
As reflected in the Tenth Circuit’s decision affirming the defendant’s convictions
and sentence, he “was convicted on 12 counts related to fraudulently obtaining federal
funds intended for COVID-19 relief.” Capps, 112 F.4th at 888. The total amount of
fraud attributed to the defendant was $498,200.00. (Doc. 97 at 19, ¶ 71.) As of the date
of this filing has served approximately 7.5 months of a 27-month sentence. Granting the
defendant compassionate release would result in a sentence reduction of approximately
72%. As the government noted in its response a mere 5 months ago, such a reduction is
unwarranted and completely unjust under the circumstances. (Doc. 261 at 14.) Once
again, none of the factors under Section 3553(a) balance in favor of the defendant receiving
such an enormous reprieve given the seriousness of his conviction, and this Court’s
decision from February of this year finding the same should not be altered. (Doc. 262 at
8.)
IV. Appointment of Counsel
It is well-settled that a pro se defendant has no constitutional right to counsel beyond
the direct appeal of his criminal conviction. Coronado v. Ward, 517 F.3d 1212, 1218
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(10th Cir. 2008). To that end, the right to counsel clearly does not extend to motions
seeking compassionate release. United States v. Hemmelgarn, 15 F.4th 1027, 1032 (10th
Cir. 2021) (“. . . there is no constitutional right to counsel to aid in a defendant’s request
for compassionate release.”); see also United States v. Campos, 630 F. App’x 813, 816
(10th Cir. 2015) (unpub.) (“No right to counsel extends to a [Section] 3582(c)(2) motion.”).
In determining whether to appoint counsel, a district court generally weighs several factors,
to include: (1) the merits of the defendant’s claims, (2) the nature of the factual issues
raised, (3) the defendant’s ability to argue his claims independent of counsel’s assistance,
and (4) the complexity of the arguments raised. Williams v. Meese, 926 F.2d 994, 996
(10th Cir. 1991).
As stated above, the defendant’s arguments do not demonstrate extraordinary and
compelling reasons for compassionate release. Moreover, the defendant has sufficiently
pled his claims, and the arguments he raises relative to his current medical condition are
not complex.
The defendant bears the burden to convince this Court to appoint counsel.
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). He has fallen short of that
obligation; consequently, his motion to appoint counsel must be denied.
V. CONCLUSION
The defendant has once again failed to establish extraordinary and compelling
reasons for this Court to consider his compassionate release. And a sentence reduction
would continue to run afoul of the factors under Section 3553(a). Accordingly, the
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defendant’s motion for compassionate release must be denied.
Respectfully submitted,
DUSTON J. SLINKARD
Acting United States Attorney
District of Kansas
By: /s/ Jared S. Maag
JARED S. MAAG, Ks. Bar. No. 17222
Assistant United States Attorney
290 Carlson Federal Bldg.
444 SE Quincy St.
Topeka, KS 66683
Ph: 785.295.2850 (Office)
Fax: 785.295.2853
jared.maag@usdoj.gov
CERTIFICATE OF SERVICE
I hereby certify that on this 24th day of July 2025, I electronically filed the foregoing
Response with the Clerk of the Court by using the CM/ECF system, which will serve a
copy of the same on all parties who have entered an appearance in this matter, and that a
true and correct copy was mailed via USPS, first class, postage prepaid to:
Michael Capps
Reg. No. 66142-509
FCI Florence
FEDERAL CORRECTIONAL INSTITUTION
PO BOX 6000
FLORENCE, CO 81226
By: /s/ Jared S. Maag
JARED S. MAAG, Ks. Bar. No. 17222
Assistant United States Attorney
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