Memorandum and Order, U.S. v. Shashank Shekhar Rai, No. 1:21-cr-00009, Dkt. 59 (E.D. Tex.)

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A Memorandum and Order in United States of America v. Shashank Shekhar Rai, Case No. 1:21-CR-09(1), in the U.S. District Court for the Eastern District of Texas, filed January 13, 2022 as Document 59. It denies Rai's Motion to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (#55), which sought release because of a medical condition and the threat of COVID-19. The order recounts that Rai pleaded guilty on February 9, 2021 to an Information charging False Statement to a Bank and was sentenced on June 23, 2021 to 24 months' imprisonment, 2 years of supervised release and a fine of $20,000.00. The court finds that Rai apparently complied with the exhaustion requirement but showed no extraordinary and compelling reasons, citing BOP records of a BMI of 24.7 on November 16, 2021. The signature block names Marcia A. Crone, United States District Judge.

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“Memorandum and Order, U.S. v. Shashank Shekhar Rai, No. 1:21-cr-00009, Dkt. 59 (E.D. Tex.).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/memorandum-and-order-u-s-v-shashank-shekhar-rai-no-1-21-cr-00009-dkt-5-db21fefd12/, SHA-256 91cf7b44259f5adba466cb44628be56f6574f61e7553730a2e22054e5fddc38e.

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Case 1:21-cr-00009-MAC-CLS Document 59 Filed 01/13/22 Page 1 of 21 PageID #: 615

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS

UNITED STATES OF AMERICA §
§
versus § CASE NO. 1:21-CR-09(1)
§
SHASHANK SHEKHAR RAI §

MEMORANDUM AND ORDER

Pending before the court is Defendant Shashank Shekhar Rai’s (“Rai”) Motion to Reduce

Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (#55), wherein he requests that the court

release him from imprisonment due to his medical condition and the threat of Coronavirus Disease

2019 (“COVID-19”). The Government filed a response in opposition (#57), and Rai filed a reply

to the Government’s response (#58). United States Probation and Pretrial Services (“Probation”)

filed a report. Having considered Rai’s motion, the Government’s response, Rai’s reply,

Probation’s report, the record, and the applicable law, the court is of the opinion that the motion

should be denied.

I. Background

On February 9, 2021, Rai pleaded guilty to an Information charging him with False

Statement to a Bank, in violation of 18 U.S.C. § 1014, in the Eastern District of Texas, Beaumont

Division. He had previously been charged by Complaint with Wire Fraud, in violation of 18

U.S.C. § 1343; Bank Fraud, in violation of 18 U.S.C. § 1344; False Statements to a Financial

Institution, in violation of 18 U.S.C. § 1014; and False Statements to the Small Business

Administration, in violation of 15 U.S.C. § 645(a). On June 23, 2021, the court sentenced him

to 24 months’ imprisonment, to be followed by 2 years of supervised release, and a fine of

$20,000.00. Although Rai filed a Notice of Appeal on June 30, 2021, the United States Court of
Case 1:21-cr-00009-MAC-CLS Document 59 Filed 01/13/22 Page 2 of 21 PageID #: 616

Appeals for the Fifth Circuit dismissed his appeal on September 8, 2021, pursuant to Rai’s motion.

Rai is currently housed at Federal Correctional Institution Pollock (“FCI Pollock”), located in

Pollock, Louisiana. His projected released date is February 27, 2023.

II. Analysis

On December 21, 2018, former President Trump signed the First Step Act of 2018 into

law. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. The Act, in part,

amended 18 U.S.C. § 3582(c), which gives the court discretion, in certain circumstances, to

reduce a defendant’s term of imprisonment:

(A) the court, upon motion of the Director of the Bureau of Prisons (“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, may reduce the term of
imprisonment (and may impose a term of probation or supervised release with or
without conditions that does not exceed the unserved portion of the original 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; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in
prison, pursuant to a sentence imposed under section 3559(c), for the
offense or offenses for which the defendant is currently imprisoned, and a
determination has been made by the Director of the [BOP] that the
defendant is not a danger to the safety of any other person or the
community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission . . . .

18 U.S.C. § 3582(c)(1)(A). This provision is commonly referred to as “compassionate release.”

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A. Exhaustion of Administrative Remedies

Prior to the First Step Act, only the Director of the BOP could file a motion seeking

compassionate release. See United States v. Franco, 973 F.3d 465, 467 (5th Cir. 2020) (“Prior

to the passage of the First Step Act . . . courts lacked the power to adjudicate motions for

compassionate release.”), cert. denied, 141 S. Ct. 920 (2020); Tuozzo v. Shartle, No. 13-4897,

2014 WL 806450, at *2 (D.N.J. Feb. 27, 2014) (denying petitioner’s motion for compassionate

release because no motion for his release was filed by the BOP). The First Step Act amended

§ 3582(c) by providing a defendant the means to appeal the BOP’s decision not to file a motion

for compassionate release on the defendant’s behalf. United States v. Cantu, 423 F. Supp. 3d 345,

347 (S.D. Tex. 2019); United States v. Bell, No. 3:93-CR-302-M, 2019 WL 1531859, at *1

(N.D. Tex. Apr. 9, 2019). The plain language of the statute, however, makes it clear that the

court may not grant a defendant’s motion for compassionate release unless the defendant has

complied with the administrative exhaustion requirement. 18 U.S.C. § 3582(c)(1)(A); United

States v. Garrett, 15 F.4th 335, 337 (5th Cir. 2021) (“[T]o file a proper motion for compassionate

release in the district court, a prisoner must first exhaust the available administrative avenues.”);

Franco, 973 F.3d at 467 (holding that the statutory requirement that a defendant file a request with

the BOP before filing a motion for compassionate release in federal court “is not jurisdictional but

that it is mandatory”); United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020) (“Even though

[the] exhaustion requirement does not implicate [the court’s] subject-matter jurisdiction, it remains

a mandatory condition.”); United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[T]he

exhaustion requirement . . . presents a glaring roadblock foreclosing compassionate release.”).

Thus, before seeking relief from the court, a defendant must first submit a request to the warden

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of his facility to move for compassionate release on his behalf and then either exhaust his

administrative remedies or wait for the lapse of 30 days after the warden received the request. 18

U.S.C. § 3582(c)(1)(A); Garrett, 15 F.4th at 338 (“[A]n inmate has two routes by which he may

exhaust his administrative remedies. Both begin with ‘requesting that the [BOP] bring a motion

on the defendant’s behalf.’” (quoting Franco, 973 F.3d at 467)); United States v. Harris, 812 F.

App’x 106, 107 (3d Cir. 2020); United States v. Springer, 820 F. App’x 788, 791 (10th Cir.

2020) (defendant “was required to request that the BOP file a compassionate-release motion on

his behalf to initiate his administrative remedies” (citing Raia, 954 F.3d at 595)); Alam, 960 F.3d

at 833-34; United States v. Soliz, No. 2:16-190-3, 2020 WL 2500127, at *3 (S.D. Tex. May 14,

2020) (“§ 3582(c)(1)(A) does not provide this Court with the equitable authority to excuse

[defendant’s] failure to exhaust his administrative remedies or to waive the 30-day waiting

period.” (quoting United States v. Reeves, No. 18-00294, 2020 WL 1816496, at *2 (W.D. La.

Apr. 9, 2020))).

Here, on August 20, 2021, Rai submitted a request for compassionate release to the warden

of the Tallahatchie County Correctional Facility in Tutwiler, Mississippi, where he was housed

at the time. On November 8, 2021, his counsel sent a letter on behalf of Rai to the Warden of FCI

Pollock requesting a reduction in sentence to time served or home confinement. The record

contains no response from the warden of either facility. Although Rai apparently complied with

the exhaustion requirement before filing the instant motion, nothing in his motion or reply

indicates that extraordinary and compelling reasons exist to release him from confinement under

28 U.S.C. § 3582(c)(1)(A)(i).

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B. Criteria for Release

The Fifth Circuit has held that when a defendant moves for compassionate release, he must

establish three criteria. United States v. Shkambi, 993 F.3d 388, 392 (5th Cir. 2021). First, he

must meet one of two conditions listed in § 3582(c)(1)(A)—either the defendant has extraordinary

and compelling reasons that warrant a reduction under 18 U.S.C. § 3582(c)(1)(A)(i) or the

defendant is at least 70 years of age, has served at least 30 years in prison, and meets the

additional requirements of 18 U.S.C. § 3582(c)(1)(A)(ii). Id. at 391. Second, the defendant

“must show that compassionate release is consistent with the applicable policy statements from the

[United States Sentencing Commission (“Commission”)].” Id. at 392. Third, the defendant

“must convince the district judge to exercise discretion to grant the motion after considering the

§ 3553(a) factors.”1 Id.; accord United States v. Keys, 846 F. App’x 275, 276 (5th Cir. 2021);

United States v. Cooper, 996 F.3d 283, 287 (5th Cir. 2021).

Section 3582 (c)(1)(A)(i) does not define the “extraordinary and compelling reasons” that

may merit compassionate release. Rather, Congress elected to delegate its authority to the

Commission. See 28 U.S.C. § 994(t) (directing the Commission to “describe what should be

considered extraordinary and compelling reasons for sentence reduction, including the criteria to

be applied and a list of specific examples”); Cooper, 996 F.3d at 287; Shkambi, 993 F.3d at 392.

1
Section 3553(a) directs courts to consider: the nature and circumstances of the offense and the
defendant’s history and characteristics; the need to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense; the need to deter criminal conduct; the
need to protect the public; the need to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner; the kinds of sentences and
sentencing ranges established for defendants with similar characteristics under applicable United States
Sentencing Guideline (“U.S.S.G.”) provisions and policy statements; any pertinent policy statement of the
Commission in effect on the date of sentencing; the need to avoid unwarranted disparities among similar
defendants; and the need to provide restitution to the victim. 18 U.S.C. § 3553(a).

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Prior to the passage of the First Step Act, the Commission issued a policy statement set forth in

U.S.S.G. § 1B1.13, which, along with its commentary, describes what reasons qualify as

extraordinary and compelling.2 However, § 1B1.13 references only motions filed by “the Director

of the [BOP]”—not an individual defendant.3 Consequently, the Fifth Circuit has held that when

a defendant files a motion for compassionate release on his own behalf, the Commission’s policy

statement set forth in § 1B1.13 is not applicable because that policy statement governs only

motions filed by the Director of the BOP. See Cooper, 996 F.3d at 287-88; Shkambi, 993 F.3d

at 392.

Nevertheless, while recognizing that they are not binding, the court views the

Commission’s policy statement contained in § 1B1.13 and the commentary thereto as providing

guidance regarding the types of reasons that may be deemed sufficiently “extraordinary and

compelling” to warrant compassionate release. See United States v. Thompson, 984 F.3d 431, 433

(5th Cir. 2021) (“Although not dispositive, the commentary to § 1B1.13 informs [the court’s]

analysis as to what reasons may be sufficiently ‘extraordinary and compelling’ to merit

compassionate release.”); United States v. Rivas, 833 F. App’x 556, 558 (5th Cir. 2020)

(upholding denial of compassionate release and recognizing that the court was guided in its

2
In Application Note 1 to § 1B1.13 of the U.S.S.G., the Commission defined “extraordinary and
compelling reasons” to include the following four categories of circumstances: (i) certain medical
conditions of the defendant; (ii) the defendant is 65 years or older and meets other requirements; (iii) the
defendant’s family has specified needs for a caregiver; and (iv) other reasons in the defendant’s case that
establish an extraordinary and compelling reason. U.S.S.G. § 1B1.13 cmt. n.1.
3
U.S.S.G. § 1B1.13 was last amended on November 1, 2018. The Commission has, to date, been
unable to amend § 1B1.13 to incorporate the changes wrought by the First Step Act due to the lack of a
quorum. The Commission consists of seven voting members and, per statute, requires four members for
a quorum to amend the guidelines. 28 U.S.C. §§ 991(a), 994(a). At present, the Commission has only
one voting member.

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analysis by the commentary to U.S.S.G. § 1B1.13). A review of dictionary definitions also sheds

light on the meaning of these terms. The word “extraordinary” is defined as “going beyond what

is usual, regular, or customary . . . exceptional to a very marked extent,” whereas the word

“compelling” is defined as “forceful . . . demanding attention . . . convincing.” Extraordinary,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2007); Compelling, MERRIAM-

WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2007); see United States v. Mitchell, No.

15-20609, 2021 WL 1827202, at *2 (E.D. Mich. May 7, 2021). “Courts have interpreted

‘extraordinary’ in the context of compassionate release as ‘beyond what is usual, customary,

regular, or common,’ and a ‘compelling reason’ as ‘one so great that irreparable harm or injustice

would result if the relief is not granted.’” Mitchell, 2021 WL 1827202, at *2 (quoting United

States v. Murphy, No. 15-20411, 2020 WL 2507619, at *5 (E.D. Mich. May 15, 2020); United

States v. Sapp, No. 14-20520, 2020 WL 515935, at *3 (E.D. Mich. Jan. 31, 2020)).

1. Medical Condition

In the instant motion, Rai, age 32, contends that he is eligible for compassionate release

due to his medical condition—specifically, that he is overweight and suffers from “borderline

hypertension.” Although not binding on the court, § 1B1.13 suggests that extraordinary and

compelling reasons exist regarding a defendant’s medical condition when the defendant is

“suffering from a terminal illness (i.e., a serious and advanced illness with an end of life

trajectory)” or when a defendant is “suffering from a serious physical or medical condition,”

“suffering from a serious functional or cognitive impairment,” or “experiencing deteriorating

physical or mental health because of the aging process, that substantially diminishes the ability of

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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).

When Rai was questioned by Probation about his physical condition in connection with his

Presentence Investigation Report (“PSR”), prepared on April 16, 2021, and later revised on May

18, 2021, he reported that he had no history of serious or chronic health conditions and voiced no

concerns about his health. Rai’s PSR states that he is 5 feet, 10 inches tall and weighs 190

pounds, giving him a body mass index (“BMI”) of 30.8, indicating that he was overweight at the

time his PSR was prepared.4 According to his BOP medical records, Rai weighed 174 pounds on

November 16, 2021, giving him a BMI of 24.7, rendering him neither obese nor overweight per

the CDC guidelines. Rai further contends that he suffers from “borderline hypertension” (high

blood pressure). When screened by correctional facility medical personnel on July 29, 2021, and

August 7, 2021, however, Rai responded, “No,” when asked whether he had any special health

care needs or current medical complaints, including “high blood pressure.” When asked if he was

currently taking any medications, he responded “None.” His BOP medical records reflect that

on October 27, 2021, Rai denied having “Hypertension” or any Cardiovascular problems, as

recorded by Blake Velota, R.N. He further indicated that he had no medical diagnoses, was taking

no medication, and had no disabilities. Rai’s most recent blood pressure readings5 recorded in his

4
According to the Centers for Disease Control and Prevention (“CDC”), a BMI below 18.5 is
underweight, a BMI between 18.5 and 24.9 is normal, a BMI between 25 and 29.9 is overweight, and a
BMI of 30 or above is obese.
5
According to the CDC, a “Normal” systolic level is less than 120 mm Hg with a diastolic of less
than 80 mm Hg; the “At Risk” systolic range is 120 to 139 mm Hg with a diastolic range of 80 to 89 mm
Hg; and a “High Blood Pressure” systolic level is 140 mm Hg or higher with a diastolic of 90 mm Hg or
higher.

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medical records—97/66 on November 16, 2021, 129/77 on September 28, 2021, 122/78 on

September 25, 2021, and 104/71 on August 7, 2021—indicate that he is merely “at risk” for or

does not have hypertension. Rai is classified as a BOP Medical Care Level 1 inmate. According

to the BOP’s Clinical Practice Guidance, dated May 2019, Care Level 1 inmates “are less than

70 years of age and are generally healthy. They may have limited medical needs that can be easily

managed by clinician evaluations every 6-12 months.”

None of Rai’s alleged medical conditions are terminal or substantially diminish his ability

to provide self-care, nor do they otherwise present extraordinary and compelling reasons justifying

compassionate release. See Thompson, 984 F.3d at 433. To the contrary, Rai’s afflictions, to the

extent he has them, are well managed with monitoring. See id. The court acknowledges that,

according to the CDC website, two of Rai’s purported medical problems—specifically,

hypertension and being overweight—can make him more likely to become severely ill should he

contract COVID-19; nonetheless, such commonplace maladies do not make Rai’s case

“extraordinary.” See id. at 434.

According to the CDC, 45% of the adults in the United States (108 million) have

hypertension, and of those, only about 24% have their condition under control. In addition,

42.5% of the adult population in the United States is obese and 73.6% is overweight. Due to their

pervasiveness, hypertension and being overweight cannot be deemed “extraordinary” in order to

merit compassionate release. See id. (noting that neither hypertension nor high cholesterol made

the defendant’s case “extraordinary” because “nearly half of the adult population in the United

States suffers from hypertension” and “roughly 12% of Americans suffer from high cholesterol”);

accord United States v. Harmon, 834 F. App’x 101, 101 (5th Cir. 2021) (affirming denial of

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compassionate release to a 52-year-old woman who was obese with a body mass index of 36);

United States v. Hodgin, No. 4:15-CR-40110-02-KES, 2021 WL 928179, at *3 (D.S.D. Mar. 11,

2021) (denying compassionate release to inmate who suffers from hypertension, Type 2 diabetes,

kidney disease, hyperlipidemia, arthritis, and several other medical conditions); United States v.

Williams, No. CR 15-83-SDD-EWD, 2021 WL 414825, at *3 (M.D. La. Feb. 5, 2021) (denying

compassionate release to inmate with obesity and Type 2 diabetes because there was no evidence

these conditions had diminished his ability to provide self-care within the facility); United States

v. Slone, No. 7:12-05-KKC-4, 2021 WL 164553, at *1 (E.D. Ky. Jan. 19, 2021) (holding that

inmate who suffered from heart disease (for which he had a stent), chronic obstructive pulmonary

disease (COPD), high cholesterol, obesity, and depression had not established extraordinary and

compelling reasons for compassionate release as his condition was not terminal and did not

diminish his ability to provide self-care within the prison environment); United States v. Grant,

No. 16-00172-01, 2021 WL 149308, at *4 (W.D. La. Jan. 15, 2021) (noting that “while obesity

is an underlying medical condition that poses increased risk of severe illness from COVID-19,

courts have found that obesity—alone or even paired with other medical conditions—does not

provide adequate grounds for compassionate release”); United States v. Sentimore, No. 04-382,

2020 WL 7630778, at *2 (E.D. La. Dec. 22, 2020) (finding that defendant’s morbid obesity did

not rise to the level of an extraordinary and compelling circumstance that would justify his early

release); United States v. Cotto, No. CV 16-36, 2020 WL 5761192, at *2 (E.D. La. Sept. 28,

2020) (recognizing the seriousness of diabetes and obesity but denying compassionate release

because inmate had not shown that he was unable to take care of himself within the confines of the

facility or that the BOP could not manage his medical conditions appropriately in view of medical

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records showing that he was being administered the necessary care); United States v. Durham, No.

3:18-cr-251-MOC-DCK-1, 2020 WL 5577884, at *2 (W.D.N.C. Sept. 17, 2020) (finding the fact

that the defendant has hypertension, a condition that may increase his risk for severe illness from

COVID-19, without more, does not present an “extraordinary and compelling reason” for

compassionate release); United States v. Wilson, No. 2:18cr132, 2020 WL 4901714, at *5 (W.D.

Wash. Aug. 20, 2020) (rejecting the notion that inmate’s hypertension claim was sufficient to

justify early termination of sentence); United States v. Gordon, No. 15-20609, 2020 WL 3971013,

at *3 (E.D. Mich. July 14, 2020) (denying compassionate release to an obese defendant, reasoning

that because “42.4% of American adults are obese and [an] additional 32% are overweight,”

obesity “is not a condition so [extraordinary] that injustice would result if the relief is not

granted”); United States v. Wright, No. CR TDC-17-0388, 2020 WL 2571198, at *3 (D. Md.

May 21, 2020) (denying compassionate release to an inmate who suffered from hypertension,

diabetes, chronic kidney disease, and asthma).

In this instance, Rai’s BOP records reveal that he is housed in general population, is

ambulatory, has no medical restrictions, is eligible for regular duty work assignments, is cleared

for food service, and has repeatedly tested negative for COVID-19. He is able to provide self-care

in the institutional setting and is not limited in his activities of daily living. Thus, Rai has failed

to establish the existence of any current medical problems, much less any disorders that would

constitute extraordinary and compelling reasons to reduce his sentence.

2. COVID-19

Rai also expresses concerns regarding the spread of COVID-19 among the prison

population. Nevertheless, as of January 12, 2022, the figures available at www.bop.gov list 6

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inmates (out of a total inmate population of 1,539) and 10 staff members at FCI Pollock as having

confirmed positive cases of COVID-19, 570 inmates and 33 staff members who have recovered,

and 0 inmates who succumbed to the disease. Thus, it appears that the facility where Rai is

housed is handling the outbreak appropriately and providing adequate medical care.

Although Rai expresses legitimate concerns regarding COVID-19, he does not establish

that the BOP cannot manage the outbreak within his correctional facility or that the facility is

specifically unable to treat Rai, if he were to contract the virus and develop COVID-19 symptoms,

while incarcerated. See Thompson, 984 F.3d at 435 (“Fear of COVID doesn’t automatically

entitle a prisoner to release.”); Raia, 954 F.3d at 597 (“[T]he mere existence of COVID-19 in

society and the possibility that it may spread to a particular prison alone cannot independently

justify compassionate release, especially considering BOP’s statutory role, and its extensive and

professional efforts to curtail the virus’s spread.”); United States v. Banks, No. CR 15-0080-02,

2020 WL 6839267, at *4 (W.D. La. Nov. 20, 2020) (“This Court cannot equate the generalized

fear of COVID-19 to an extraordinary and compelling reason to support compassionate release,

nor will it undermine BOP’s criteria to determine eligibility for sentence reductions or home

confinement.”); United States v. Vasquez, No. CR 2:18-1282-S-1, 2020 WL 3000709, at *3 (S.D.

Tex. June 2, 2020) (“General concerns about the spread of COVID-19 or the mere fear of

contracting an illness in prison are insufficient grounds to establish the extraordinary and

compelling reasons necessary to reduce a sentence.” (quoting United States v. Koons, 455 F.

Supp. 3d 285, 292 (W.D. La. 2020))); United States v. Clark, 451 F. Supp. 3d 651, 656 (M.D.

La. 2020) (finding the defendant had failed to present extraordinary and compelling reasons to

modify his prison sentence because he “does not meet any of the criteria set forth by the statute”

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and he “cites no authority for the proposition that the fear of contracting a communicable disease

warrants a sentence modification”). Furthermore, contracting the virus while incarcerated, even

in conjunction with preexisting health conditions, is insufficient to establish exceptional and

compelling circumstances warranting compassionate release. See United States v. Jackson, No.

3:16-CR-196-L-1, 2020 WL 4365633, at *2 (N.D. Tex. July 30, 2020) (finding that defendant had

failed to present extraordinary and compelling reasons for compassionate release despite suffering

from previous underlying health conditions and testing positive for COVID-19).

Moreover, the BOP is in the process of administering the COVID-19 vaccine to inmates

and staff. To date, the BOP has administered approximately 283,304 doses of the vaccine.

According to www.bop.gov, Federal Correctional Complex Pollock, where the defendant is

housed, has fully inoculated 2,225 inmates and 416 staff members. Indeed, according to his

medical records, Rai reported receiving doses of the Pfizer-Bio/NTech vaccine in April and May

2021. In the Fifth Circuit and elsewhere, courts have denied early release to inmates with a

variety of medical conditions who have been vaccinated for COVID-19. See United States v.

Walker, No. 20-cr-20027, 2021 WL 2474088, at *3 (C.D. Ill. June 17, 2021) (holding that

because defendant was fully vaccinated, his underlying health conditions—diabetes, heart disease,

high blood pressure, asthma, and substance abuse—alone, were insufficient to establish

extraordinary and compelling reasons justifying compassionate release); United States v. Parham,

No. 1:19-CR-133-LG-RHW-1, 2021 WL 1911899, at *2 (S.D. Miss. May 12, 2021) (finding that

“generalized concerns of contracting COVID-19[] are not an ‘extraordinary and compelling

reason’” where the defendant had received the COVID-19 vaccine); United States v. Meyer, No

1:14-cr-00148-01-MC, 2021 WL 1895240, at *1-2 (D. Ore. May 11, 2021) (denying

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compassionate release to inmate with heart disease, obesity, hyperlipidemia, and a history of

smoking because he was fully vaccinated and there was a low infection rate at the facility where

he was housed); United States v. Schad, No. CR 2:17-225-3, 2021 WL 1845548, at *4 (S.D. Tex.

May 5, 2021) (denying compassionate release where the defendant had been fully vaccinated

against COVID-19); United States v. Grummer, No. 08-CR-4402-DMS, 2021 WL 568782, at *2

(S.D. Cal. Feb. 16, 2021) (denying compassionate release and noting that “[a]lthough Defendant

suffers from several chronic medical conditions, his vaccination significantly mitigates the risk that

he will contract COVID-19”); United States v. Beltran, No. 6:16-CR-00004, 2021 WL 398491,

at *3 (S.D. Tex. Feb. 1, 2021) (denying compassionate release to a high-risk inmate with myriad

underlying medical conditions who received the vaccine, finding that “vaccination significantly

reduces [the] risk of contracting COVID-19 or experiencing complications related to a COVID-19

infection”); accord United States v. Nunez-Arias, No. CR H-16-436, 2021 WL 1537323, at *3

(S.D. Tex. Apr. 19, 2021).

C. Section 3553(a) Factors

The court further finds that compassionate release is not merited in light of the applicable

factors set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A) (requiring courts to

consider the § 3553(a) factors before granting compassionate release); United States v. Shorter,

850 F. App’x 327, 328 (5th Cir. 2021) (finding that the court did not abuse its discretion in

denying compassionate release after balancing the § 3553(a) factors); Keys, 846 F. App’x at 276;

Shkambi, 993 F.3d at 392; Thompson, 984 F.3d at 435 n.11 (collecting cases); United States v.

Chambliss, 948 F.3d 691, 693-94 (5th Cir. 2020). Rai’s offense of conviction entails his making

false statements to two banks in connection with a fraudulent scheme to obtain forgiveable

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Paycheck Protection Program (“PPP”) loans authorized by the Coronavirus Aid, Relief, and

Economic Security (CARES) Act in which he used sophisticated means to perpetrate the fraud.

Rai submitted a false and misleading PPP loan application to a participating lender on April 8,

2020, seeking $10,000,000.00 in funds. Rai falsely stated that Rai Family, LLC, had 250

employees and that the company’s average monthly payroll was $4,000,000.00 when, in reality,

the company was only a shell and had no active operations or employees. He also submitted a

fraudulent tax return showing that the company had paid $23,228,512.00 in wages, tips, and other

compensation along with a false and misleading spreadsheet purporting to show the payroll

expenditures. Rai submitted another fraudulent PPP loan application to another participating

lender on April 20, 2020, seeking $3,006,200.00 in funds. He falsely stated that Rai Family,

LLC, had 264 employees and the company’s average monthly payroll was $1,202,480.00. He

spoke on the telephone with a representative of the second lender in which he confirmed the same

false information and stated that all the employees were in Texas, when, in fact, there were no

employees. The fraud was discovered before any funds were actually disbursed to Rai.

Although the intended loss totaled $13,006,200.00 and the applicable guideline range was

63 to 78 months’ imprisonment, the court imposed a sentence of only 24 months’ imprisonment.

The court departed downward due to Rai’s educational and vocational skills, his employment

record, the fact that he caused no actual loss to the Government and did not profit from the

offense, the offense level substantially overstated the seriousness of the offense under the

circumstances, he had no criminal record, and the conduct appeared to reflect aberrant behavior

on the part of Rai. According to his PSR, at the time he committed his offense of conviction, Rai

had earned a Bachelor of Science degree in chemical engineering from the University of Houston,

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was enrolled in an online Master of Business Administration program, and worked as a process

design engineer for ExxonMobil in Beaumont, Texas, where he had been employed for 8 years

and was paid an annual salary of $131,000.00. He reported numerous assets and only $241.00

in monthly expenses and $13.17 in total liabilities, listing his net worth as being in excess of

$482,000.00. Hence, despite his affluence, Rai was not satisfied and attempted to take over

$13,000,000.00 from the Government by means of obtaining forgiveable loans that were intended

for small businesses that were incurring substantial losses and their employees who were without

work due to the pandemic. As the Government points out: “The defendant attempted to steal

millions of dollars by taking advantage of the pandemic. He now, despite being vaccinated and

a low risk of hospitalization, is using the same pandemic to attempt to escape punishment.”

“Compassionate release is discretionary, not mandatory, and [may] be refused after

weighing the sentencing factors of 18 U.S.C. § 3553(a).” Chambliss, 948 F.3d at 693; accord

Keys, 846 F. App’x at 276 (finding that Defendant’s argument that the court gave too much weight

to his criminal history, “amount[ed] to a mere disagreement with the court’s balancing of the

§ 3553(a) factors, which is not a sufficient ground for reversal”). Granting Rai compassionate

release under these circumstances would fail to provide just punishment for his offense or promote

respect for the law. In Chambliss, the Fifth Circuit upheld the denial of compassionate release due

to the defendant’s not yet having served a sufficient portion of his sentence. 948 F.3d at 694. The

district court determined that the defendant’s terminal illness “constitut[ed] ‘an extraordinary and

compelling reason for a sentence reduction’ and that he ‘[did] not present a danger upon release,’”

but denied release because “releasing [the defendant] after serving only 14 years of a 30-year

sentence minimizes both the impact of [the defendant’s] crime and seriousness of the offense.”

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Id. at 693-94. “Moreover, the [district] court, citing the § 3553(a) factors, determined that

requiring [the defendant] to serve the remainder of his sentence would ‘provide just punishment

for the offense’ and ‘afford adequate deterrence to criminal conduct.’” Id.; see Thompson, 984

F.3d at 434-35 (observing that the courts that have granted compassionate release “largely have

done so for defendants who had already served the lion’s share of their sentences and presented

multiple, severe, health concerns”). In the instant case, releasing Rai, who has no documented

health concerns, after serving less than 8 months of his 24-month sentence would similarly

minimize the impact of his crime and the seriousness of his offense as well as fall short of

providing just punishment and adequate deterrence to criminal conduct. In view of the nature and

circumstances of his offense of conviction, the court cannot conclude that Rai’s early release from

prison would afford adequate deterrence or protect the public, as he continues to pose an economic

danger to other persons and to the community as a whole.

D. Home Confinement

As an alternative to compassionate release, Rai requests that the court sentence him to

home confinement. Probation, however, advises that he does not have a release plan that has been

investigated or approved by the Probation Office. Moreover, Rai misapprehends the application

and construction of the CARES Act. The Act “expanded the [BOP]’s power to ‘place a prisoner

in home confinement’ under § 3624(c)(2) . . . but reserved the determination of ‘suitable

candidates’ for home confinement to the [BOP].” United States v. Williams, 829 F. App’x 138,

139 (7th Cir. 2020) (quoting Alam, 960 F.3d at 836)). The CARES Act states in relevant part:

HOME CONFINEMENT AUTHORITY.—During the covered emergency period,
if the Attorney General finds that emergency conditions will materially affect the
functioning of the [BOP], the Director of the [BOP] may lengthen the maximum

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amount of time for which the Director is authorized to place a prisoner in home
confinement under the first sentence of section 3624(c)(2) of title 18, United States
Code, as the Director determines appropriate.

Coronavirus Aid, Relief, And Economic Security Act, Pub. L. No. 116-136, 134, § 12003 Stat.

281, 516 (2020). The CARES Act does not grant the court the authority to make home

confinement determinations. “Nor for that matter is any such role envisioned under § 3624(c)(2),

which authorizes the [BOP] ‘to the extent practicable, [to] place prisoners with lower risk levels

and lower needs on home confinement . . . .’ As the Supreme Court emphasizes, the [BOP] has

‘plenary control’ over an inmate’s placement.” Williams, 829 F. App’x at 139 (quoting Tapia v.

United States, 564 U.S. 319, 331 (2011)).

Hence, the BOP has the exclusive authority to determine where a prisoner is housed; thus,

the court is without authority to order home confinement. 18 U.S.C. § 3621(b); Cheek v. Warden

of Fed. Med. Ctr., 835 F. App’x 737, 739 (5th Cir. 2020) (holding that “the pandemic did not

create judicial authority to grant home confinement”); United States v. Donnell, 476 F. Supp. 3d

514, 522 (E.D. Tex. 2020); Ambriz v. United States, 465 F. Supp. 3d 630, 633 (N.D. Tex. 2020);

United States v. Miller, No. 2:17-CR-015-D (02), 2020 WL 2514887, at *1 (N.D. Tex. May 15,

2020) (“[N]either the CARES Act nor the First Step Act authorizes the court to release an inmate

to home confinement.”). Further, the BOP’s decision regarding home confinement is not subject

to judicial review. See 18 U.S.C. § 3621(b); United States v. Powell, No. CR 15-496-4, 2020

WL 2848190, at *2 n.5 (E.D. Pa. June 2, 2020) (“[T]o the extent that [Defendant] seeks to appeal

the prison’s denial of home confinement, such decision is not reviewable by this Court.”). Indeed,

it is well established that “[n]o inmate has a constitutional right to be housed in a particular place

or any constitutional right to early release.” Cheek, 835 F. App’x at 740. As a consequence, “[i]t

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is not for a court to step in and mandate home confinement for prisoners, regardless of an

international pandemic.” Id.

Furthermore, the BOP has instituted a comprehensive management approach that includes

screening, testing, appropriate treatment, prevention, education, and infection control measures

in response to COVID-19. In response to a directive from the former United States Attorney

General in March 2020, the BOP immediately began reviewing all inmates who have COVID-19

risk factors, as described by the CDC, for the purpose of determining which inmates are suitable

for placement on home confinement. See United States v. Collins, No. CR 04-50170-04, 2020

WL 1929844, at *3 (W.D. La. Apr. 20, 2020). The BOP notes that inmates need not apply to be

considered for home confinement, as this is being done automatically by case management staff.

Since March 26, 2020, the BOP has placed 36,921 inmates on home confinement. The March

2020 directive is limited to “eligible at-risk inmates who are non-violent and pose minimal

likelihood of recidivism and who might be safer serving their sentences in home confinement

rather than in BOP facilities.” United States v. Castillo, No. CR 2:13-852-1, 2020 WL 3000799,

at *3 (S.D. Tex. June 2, 2020).

In his Memorandum to the BOP dated March 26, 2020, former Attorney General Barr

acknowledges that the Department of Justice (“DOJ”) has an obligation to protect both BOP

personnel and inmates. He also notes that the DOJ has the responsibility of protecting the public,

meaning that “we cannot take any risk of transferring inmates to home confinement that will

contribute to the spread of COVID-19 or put the public at risk in other ways.” The Attorney

General issued a subsequent Memorandum to the BOP on April 3, 2020, in which he emphasizes

that police officers protecting the public face an increased risk from COVID-19 and cannot avoid

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exposure to the virus, with their numbers dwindling as officers who contract the virus become ill

or die or need to recover or quarantine to avoid spreading the disease. Accordingly, he cautions:

The last thing our massively over-burdened police forces need right now is the
indiscriminate release of thousands of prisoners onto the streets without any
verification that those prisoners will follow the laws when they are released, that
they have a safe place to go where they will not be mingling with their old criminal
associates, and that they will not return to their old ways as soon as they walk
through the prison gates.

As the court noted in United States v. Preston, “[t]he best predictor of how [Defendant]

will behave if he were to be released is how he behaved in the past, and his track record is a poor

one.” No. 3:18-CR-307-K, 2020 WL 1819888, at *4 (N.D. Tex. Apr. 11, 2020) (quoting United

States v. Martin, 447 F. Supp. 3d 399, 403 (D. Md. 2020)). Here, Rai’s past behavior and

attempt to minimize the consequences of his fraudulent actions by utilizing the same pandemic that

gave rise to his conviction to now gain early release from an extremely lenient prison sentence

based on alleged medical conditions that are minimal, at most, give cause for concern as to his

future conduct.

III. Conclusion

In sum, Rai has failed to satisfy his burden of showing the necessary circumstances to

warrant relief under the statutory framework to which the court must adhere. See United States

v. Dodge, No. 17-323-01, 2020 WL 3668765, at *5 (W.D. La. July 6, 2020) (stressing that “the

rampant spread of the coronavirus and the conditions of confinement in jail, alone, are not

sufficient grounds to justify a finding of extraordinary and compelling circumstances”); Koons,

455 F. Supp. 3d at 291-92 (same). As the court observed in Koons, rejecting the notion that it has

“carte blanche” authority to release whomever it chooses, “[t]he Court cannot release every

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prisoner at risk of contracting COVID-19 because the Court would then be obligated to release

every prisoner.” Dodge, 2020 WL 3668765, at *6; Koons, 455 F. Supp. 3d at 292.

Consistent with the foregoing analysis, Rai’s Motion to Reduce Sentence Pursuant to 18

U.S.C. § 3582(c)(1)(A)(i) (#55) is DENIED.

SIGNED at Beaumont, Texas, this 13th day of January, 2022.

________________________________________
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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