Order Denying Emergency Motion for Compassionate Release — United States v. Gousman Lemy (Dkt. 166, S.D. Fla.)

Summary

This is an order denying Gousman Lemy's motion for compassionate release or sentence reduction under 18 U.S.C. § 3582(c)(1)(A), filed on October 21, 2022. The order states that he was charged by information with conspiracy to commit money laundering, pleaded guilty to Count 1, and was sentenced to 51 months' imprisonment and 3 years of supervised release. It addresses the grounds he raised: type II diabetes, hypertension, and COVID-19 concerns; his family circumstances; and his rehabilitation. The court finds that records show hypertension that is treated and monitored, that he has not been diagnosed with type II diabetes, and that his mother is not shown to be dead or incapacitated. Judge Rodolfo A. Ruiz II holds that rehabilitation is not covered and that the 3553(a) factors need not be analyzed.

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“Order Denying Emergency Motion for Compassionate Release — United States v. Gousman Lemy (Dkt. 166, S.D. Fla.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-0-21-cr-60126-dkt-166-s-d-fla-0cc3c0cd91/, SHA-256 e3aef678e51125087cfb608381121da71c1f39ef45ce874fbbdb9123f8168937.

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Case 0:21-cr-60126-RAR Document 166 Entered on FLSD Docket 01/18/2023 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CR-80062-RAR

UNITED STATES OF AMERICA

vs.

GOUSMAN LEMY,

Defendant.
/

ORDER DENYING EMERGENCY MOTION FOR COMPASSIONATE RELEASE

THIS CAUSE comes before the Court on Defendant Gousman Lemy’s Motion for

Compassionate Release or Sentence Reduction filed pursuant to 18 U.S.C. § 3582(c)(1)(A), filed

on October 21, 2022. [ECF No. 159] (“Motion”). On December 23, 2022, the United States filed

a Response in Opposition. [ECF No. 164] (“Response”). Having considered the parties’

submissions, the record, and being otherwise fully advised, it is

ORDERED AND ADJUDGED that Defendant’s Motion is DENIED as set forth herein.

BACKGROUND

On May 18, 2021, Defendant was charged by information with conspiracy to commit

money laundering, in violation of 18 U.S.C. § 1956(h). [ECF No. 1]. Defendant and his co-

conspirators knowingly engaged in monetary transactions involving funds criminally derived from

a business email compromise scheme and a PPP/EIDL loan fraud scheme. Defendant and his co-

conspirators funneled the money obtained from these schemes through business bank accounts

registered to companies and shell companies controlled by Defendant and his co-conspirators to

conceal and disguise the nature, location, source, ownership, or control of the proceeds. Id. On

September 1, 2021, Defendant pleaded guilty to Count 1 of the information and executed a factual

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proffer. [ECF Nos. 96, 97]. He was sentenced to 51 months’ imprisonment, 3 years of supervised

release, and ordered to pay $1,823, 267.09 in restitution. [ECF No. 133].

In his Motion, Defendant cites two “extraordinary and compelling” reasons for

compassionate release: (1) his medical conditions of type II diabetes and hypertension, and the

possible impact of COVID-19 were he to contract the virus; and (2) his “family circumstances” in

that his mother, who is his son’s primary caregiver, is suffering from various health conditions

which are making it difficult for her to take care of his son. Mot. at 2-7. Defendant also references

his good conduct during the time that he has been incarcerated and his rehabilitation. Id. at 8. He

requests that based upon these extraordinary and compelling circumstances, the Court reduce his

sentence to a term of supervised release. Id. at 9.

LEGAL STANDARD

A district court may modify a term of imprisonment “upon motion 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.” 18 U.S.C.

§ 3582(c)(1)(A). The court may reduce the term of imprisonment if it finds that “extraordinary

and compelling reasons warrant such a reduction.” § 3582(c)(1)(A)(i). Section 604 of the 2018

First Step Act expanded “who [could] file a §3582(c)(1)(A) motion” to allow for defendant-filed

motions when previously, only the Bureau of Prisons (“BOP”) could file them. See United States

v. Bryant, 996 F.3d 1243, 1259 (11th Cir. 2021). However, Congress “chose not to lift its stricture

that courts must follow the [Sentencing] Commission’s applicable policy statements when ruling

on [§ 3582(c)(1)(A) compassionate release] motions.” Id.

In this Circuit, the categories for “extraordinary and compelling reasons” are delineated in

§ 1B1.13 of the U.S.S.G. policy statement and are applicable to all § 3582(c)(1)(A) motions,

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whether filed by the BOP or by a defendant directly. Id. As such, courts in this Circuit do not

have discretion to develop their own interpretations of “extraordinary and compelling reasons” to

justify a reduction in a defendant’s sentence. See id. at 1248. Accordingly, the Court must apply

§ 1B1.13 to determine whether extraordinary and compelling circumstances exist. See United

States v. Thompson, No. 17-CR-60152, 2021 WL 5999422, at *3 (S.D. Fla. Dec. 20, 2021).

The Application Notes to § 1B1.13(1)(A) define extraordinary and compelling reasons

warranting the reduction of a defendant’s sentence: 1(A) Medical Condition of the defendant; 1(B)

Age of the defendant (at least 65 years old); 1(C) Family Circumstances; and 1(D) Other Reasons.

The Eleventh Circuit has made clear that the open-ended “Other Reasons” category in Application

Note 1(D) is only available to the BOP in motions they file and cannot function as a catchall

category for district courts to rely on when granting defendant-filed compassionate release

motions. See Bryant, 996 F.3d at 1262–65.

ANALYSIS

Defendant alleges two primary “extraordinary and compelling reasons” for compassionate

release: (1) his medical conditions of type II diabetes and hypertension and the possible impact of

COVID-19 were he to contract the virus; and (2) his “family circumstances” in that his mother,

who is his son’s primary caregiver, is suffering from various health conditions which are making

it difficult for her to take care of his son. 1 Defendant also references his good conduct while

incarcerated. The Court will address each in turn.

1
The Government “does not dispute that Defendant has exhausted his administrative remedies” with the
BOP. Resp. at 9 (noting that Defendant “filed a request for compassionate release on July 7, 2022” and
BOP records from FCI Butner-Medium II indicate the Warden never responded). See 18 U.S.C.
§ 3582(c)(1)(A)(i) (explaining the court can consider a motion for compassionate release after “the lapse
of 30 days from the receipt of . . . a [compassionate relief] request by the warden of defendant’s facility[.]”).

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1. Defendant’s Health Conditions

To qualify as “extraordinary and compelling,” an inmate’s medical condition must be, in

relevant part, “serious and advanced . . . with an end of life trajectory” or serious enough that it

“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.” U.S.S.G. § 1B1.13,

cmt. n.1. “A compassionate release due to a medical condition is an extraordinary and rare event.”

United States v. Rodriguez-Orejuela, 457 F. Supp. 3d 1275, 1282 (S.D. Fla. 2020) (internal

quotation and alteration omitted). “In seeking a reduced sentence under this framework, the

defendant bears the burden of establishing that compassionate release is warranted.” Id. (internal

quotation omitted).

Here, Defendant has advanced no medical records nor evidence demonstrating that he has

a terminal illness or urgent medical condition warranting compassionate release under section

3582(c)(1)(A)(i). As an initial matter, Defendant submitted his medical records from the BOP for

the period of time from February 7, 2022, to March 23, 2022, in support of his request. See Mot.

at Ex. B. The Government supplemented this filing with Defendant’s BOP records from the date

he commenced serving his sentence in February 2022 through October 2022. See [ECF No. 163-2]

(“Medical Records”). A careful review of these records indicates that Defendant has never been

diagnosed with type II diabetes, and his current A1c levels appear to be stable after being instructed

to adhere to a proper diet and exercise. See Ex. B, Medical Records. At most, it appears Defendant

suffers from hypertension, which is being treated and monitored by BOP staff medical staff as

reflected by changes in the dosage of his prescribed medication. Id. As such, Defendant’s stable

and controlled medical condition does not qualify as an “extraordinary and compelling” reason for

compassionate release. See, e.g., United States v. Thomas, No. 9:10-cr-423-T-33AAS, 2020 WL

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5407711, at *3 (M.D. Fla. Sept. 9, 2020) (“Although the Court is sympathetic to [Defendant’s]

numerous underlying health conditions, including diabetes, high-blood pressure, and

cardiovascular problems, . . . he has not sufficiently demonstrated that he has a serious medical

condition that substantially diminishes his ability to care for himself in his facility.”); United States

v. Saxon, No. CR 112-119, 2020 WL 2617131, at *2 (S.D. Ga. May 22, 2020) (denying

compassionate release to defendant who suffered from congestive heart failure, high blood

pressure, and bronchitis because defendant presented no medical evidence showing he met the

criteria in U.S.S.G. § 1B1.13); Rodriguez-Orejuela, 457 F. Supp. 3d at 1282 (finding that

defendant with heart problems and skin and colon cancer, among other conditions, had not

established extraordinary and compelling reasons warranting compassionate release).

As for Defendant’s health concerns related to COVID-19—for which he has received the

Pfizer vaccine—they do not warrant compassionate release under § 3582(c)(1)(A) as defined by

§ 1B1.13. Defendant has not made a showing that he is “suffering from a terminal illness,” or

“suffering from a serious physical or medical condition.” § 1B1.13 Appl. Notes (1)(A)(i)–(ii).

And Defendant is not entitled to a modification of his sentence based solely on generalized

COVID-19 fears and speculation regarding “breakthrough infections of COVID-19 among people

who are vaccinated.” Mot. at 5; see United States v. Benitez, No. 8:01-cr-283, 2021 WL 424346,

at *4 (M.D. Fla. Feb. 8, 2021) (“This Circuit and others have held that general concerns about

possible exposure to COVID-19 do not alone meet the criteria for an extraordinary and compelling

reason under § 3582(c)(1)(A) and U.S.S.G. § 1B1.13, cmt. n. 1.”) (collecting cases). Ultimately,

Defendant’s hypertension appears to be a well-managed condition that does not constitute grounds

for compassionate release due to the COVID-19 pandemic. See United States v. Keys, No. 20-CR-

12318, 2021 WL 3012657, at *2-3 (11th Cir. July 16, 2021) (holding district court did not abuse

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its discretion when finding that medical conditions including asthma, poor circulation, and blood

clots—which may have the potential for an increased risk of complications due to COVID-19—

were not sufficiently severe to constitute an “extraordinary and compelling reason” within the

meaning of § 1B1.13).

2. Defendant’s Family Circumstances

Application Note 1(C) of § 1B1.13 defines the family circumstances necessary for a court

to entertain a motion for compassionate release. Those circumstances include, “(i) the death or

incapacitation of the caregiver of the defendant’s minor child or minor children, or (ii) the

incapacitation of the defendant’s spouse or registered partner when the defendant would be the

only available caregiver for the spouse or registered partner.” Here, although section (i) applies in

that Defendant’s son is a minor, the circumstances surrounding his son’s caregiver do not rise to

the level of incapacitation mandated by section (ii). Namely, Defendant makes no showing that

the primary caregiver of his son—his mother—is either dead or incapacitated. See Mot. at Ex. D

(medical notes confirming Defendant’s mother has been receiving medical care for her glaucoma,

diabetes, and hypertension, as well as treatment for poor vision in her left eye). Although she

“suffers severely from diabetes, hypertension, impaired vision, and other minor health problems,”

Mot. at 3, the Court is not at liberty to deviate from the text of the policy statement and rewrite the

Application Note to accommodate Defendant. See Bryant, 996 F.3d at 1262 (“[D]istrict courts

may not reduce a sentence under Section 3582(c)(1)(A) unless a reduction would be consistent

with 1B1.13.”).

Given that Defendant’s mother is still able to care for his son and is not incapacitated, there

is no basis for compassionate relief for family circumstances. Moreover, although other members

of Defendant’s immediate family are purportedly unable to assume full custody of his son, see

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Case 0:21-cr-60126-RAR Document 166 Entered on FLSD Docket 01/18/2023 Page 7 of 8

Mot. at Ex. E, it appears they may be able to assist his mother, at least in part, with caregiving

responsibilities. Mot. at 3 (noting the “two other family members that could possibly assume

physical custody [of Defendant’s son] are [Defendant’] brother and oldest daughter[.]”). See

United States v. Baez-Paulino, No. 8:19-cr-543-CEH-SPF, 2021 WL 5121862, at *4 (M.D. Fla.

Nov. 4, 2021) (“[T]he motion is due to be denied, as . . . one of the Defendant’s relatives may be

available caregivers for Defendant’s minor son.”).

In sum, § 1B1.13 does not permit the Court to find that Defendant’s family circumstances

clear the “extraordinary and compelling” threshold set by § 3582(c)(1)(A).

3. Defendant’s Rehabilitation

Defendant’s final argument for compassionate release centers around his demonstrated

record of rehabilitation in prison to date—specifically, the fact he has “no infractions” and has

“maintained good conduct.” Mot. at 8. The Court lauds Defendant’s commitment to rehabilitation

as noted in his inmate history, which lists numerous programs he has completed during his

incarceration at FCI Butner-Medium II. See Mot. at Ex. F. But rehabilitation is not covered in

Application Notes 1(A)-(C), and the Eleventh Circuit has held that 1(D)’s “Other Reasons”

category is reserved for BOP-filed motions only. See Bryant, 996 F.3d at 1263. The defendant in

Bryant, like Defendant here, also advanced an argument that his “good record of rehabilitation in

prison” should qualify him for compassionate release under 1(D)—an argument the Eleventh

Circuit squarely rejected. Id. at 1251, 1263–65. As such, the Court must similarly reject

Defendant’s position here.

4. The Court Need Not Analyze the § 3553(a) Factors Here

As Defendant has not cleared the § 3582(c)(1)(A)(i) threshold for “extraordinary and

compelling reasons” to reduce his sentence, the Court need not analyze the 18 U.S.C § 3553(a)

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factors. Only when eligibility for compassionate release is established does a court have to

determine whether “the authorized reduction is warranted, either in whole or in part, according to

the factors set forth in § 3553(a).” Bryant, 996 F.3d at 1251 (quoting Dillon v. United States, 560

U.S. 817, 826 (2010)).

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Defendant

Gousman Lemy’s Motion for Compassionate Release or Sentence Reduction filed pursuant to 18

U.S.C. § 3582(c)(1)(A), [ECF No. 159], is DENIED.

DONE AND ORDERED in Miami, Florida, this 17th day of January, 2023.

RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE

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