Order Denying Motion to Reduce Sentence Under 18 U.S.C. §3582(c)(1)(A)(i) — United States v. Thomas E. Smith, No. 20-cr-0196-bhl (Dkt. 217, E.D. Wis.)
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In this order dated April 14, 2023 (Case No. 20-cr-0196-bhl, E.D. Wis., Document 217), U.S. District Judge Brett H. Ludwig denies Thomas E. Smith's motion for compassionate release under 18 U.S.C. §3582(c)(1)(A)(i). Smith pleaded guilty to bank fraud on February 23, 2021 as one of the leaders of a PPP fraud in which Smith and others obtained about $1,000,000 in fraudulent loans, and was sentenced on June 2, 2021 to 57 months, the bottom of the 57-71 month range, with $960,000 in restitution. The court finds no extraordinary and compelling reasons: Smith is vaccinated, offered no medical records for the claimed vaccine symptoms, and FCI Sandstone had no active inmate cases as of January 3, 2023. Family needs do not meet the standard either. The court adds that the §3553(a) factors weigh against release because Smith filled out the applications, created fake tax forms and recruited others.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 20-cr-0196-bhl
v.
THOMAS E. SMITH,
Defendant.
ORDER DENYING MOTION TO REDUCE SENTENCE
UNDER 18 U.S.C. §3582(c)(1)(A)(i)
______________________________________________________________________________
Thomas E. Smith asks the Court to reduce his sentence under the “compassionate release”
provisions in 18 U.S.C. §3582(c)(1)(A)(i). (ECF No. 206.) Smith argues he is entitled to release
because he has medical conditions that make him susceptible to severe symptoms from COVID-
19 infection and due to unique family and community issues. The government opposes
defendant’s motion, arguing that despite Smith’s medical conditions and family circumstances, a
sentence reduction would be inappropriate. (ECF No. 208.) Based on the record, the Court will
deny Smith’s motion and require him to serve the sentence the Court previously imposed.
BACKGROUND
Between April and July of 2020, Smith was among the leaders of a group of individuals
who schemed to commit fraud in connection with the Paycheck Protection Program (PPP), a form
of relief made available under the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
The PPP was designed to provide emergency financial assistance to the millions of Americans
who were suffering the economic effects caused by the COVID-19 pandemic. Smith’s scheme
involved the submission of fraudulent loan applications, under which he and others obtained about
$1,000,000 in fraudulent loans, using the names of companies owned by his family, friends and
acquaintances. Smith recruited a number of others into the offense activity; many of whom had
minimal previous involvement with the criminal justice system but are now all federally convicted
felons.
Case 2:20-cr-00196-BHL Filed 04/14/23 Page 1 of 6 Document 217
On February 23, 2021, Smith entered a plea of guilty to count two of a 14-count indictment
charging him with bank fraud in violation of 18 U.S.C. §1344 and 18 U.S.C. §2. (ECF No. 72.)
On June 2, 2021, the Court sentenced Smith to 57 months imprisonment, a sentence at the bottom
of the Guidelines’ range. (ECF No. 108.) Smith was also ordered to pay $960,000 in restitution
to the financial institution he defrauded. (Id.)
Smith is currently serving his prison term at FCI Sandstone, a low security institution in
Sandstone, Minnesota. On December 12, 2022, Smith filed a pro se motion for a reduction in
sentence under 18 U.S.C. §3582(c)(1)(A)(i). (ECF No. 206.) He is 49 years old and has an
estimated release date in November 2025. (ECF No. 208 at 5.) Smith’s medical records, filed
under seal, show that he suffers from hypertension, prediabetes, obesity and chronic right shoulder
pain. (ECF No. 210.) On December 15, 2022, the Court ordered the government to respond to
Smith’s motion. (ECF No. 207.) On January 12, 2023, the government filed a brief opposing
Smith’s motion. (ECF No. 208.) On February 6, 2023, Smith filed a reply brief in support of
compassionate release. (ECF No. 212.)
ANALYSIS
Under 18 U.S.C. §3582(c)(1), a court is generally not allowed to modify a sentence of
imprisonment. One of the limited exceptions to this rule is for cases of “compassionate release”
under section 3582(c)(1)(A)(i) – a multi-step process. The Court must first determine whether the
defendant is eligible under the statute. Before the First Step Act of 2018, a request for
compassionate release could only be made by the Bureau of Prisons (BOP). The First Step Act of
2018 amended the statute to permit the court to adjudicate a motion directly from the defendant.
The defendant, however, must first present his request for release to the warden and exhaust
administrative appeals (if the request is denied) or wait 30 days from the receipt of such a request
by the warden of the defendant’s facility, whichever is earlier. See United States v. Sanford, 986
F.3d 779, 781-82 (7th Cir. 2021). If this “exhaustion” requirement is satisfied, the Court must
then determine whether there are “extraordinary and compelling reasons” warranting a reduction
in the defendant’s sentence, consistent with the sentencing factors set forth in 18 U.S.C. §3553(a).
Additionally, any reduction in sentence must be “consistent with applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. §3582(c)(1)(A). The Sentencing Commission,
however, has not issued a policy statement applicable to a compassionate release motion filed by
a prisoner. See United States v. Gunn, 980 F.3d 1178, 1181 (7th Cir. 2020) (“The Guidelines
Case 2:20-cr-00196-BHL Filed 04/14/23 Page 2 of 6 Document 217
Manual lacks an ‘applicable’ policy statement covering prisoner-initiated applications for
compassionate release.”). Until the Sentencing Commission updates its policy statement, district
courts retain broad discretion in determining what constitutes “extraordinary and compelling
reasons” to warrant a sentence reduction. Id. at 1180. The defendant bears the burden to
demonstrate such “extraordinary and compelling reasons.” United States v. Newton, 996 F.3d 485,
488 (7th Cir. 2021).
There is no question that Smith has satisfied the statutory pre-motion requirements. The
record shows that Smith made a compassionate release request to the warden at FCI Sandstone on
November 1, 2022, citing the same the grounds (COVID-19 and family issues). The warden
denied his request on November 18, 2022. Indeed the government concedes he properly exhausted
his request before the warden and thus is eligible to seek compassionate release. (ECF No. 208
at 11.) Accordingly, the only issue is whether Smith has shown a basis for relief on the merits of
his invocation of the statute.
A. Smith Has Not Shown Extraordinary and Compelling Reasons Sufficient to Warrant a
Reduction in his Sentence.
Smith’s primary argument for compassionate release is based on COVID-19. Smith states,
under penalty of perjury, that he contracted COVID-19 on or about April 20, 2021 and is suffering
long-term effects from that infection. (ECF No. 206 at 2.) Smith also claims he has high blood
pressure/hypertension and is obese. He notes that the Centers for Disease Control and Prevention
(CDC) has noted that obesity can make it more likely to get very sick from COVID-19. 1 None of
these facts is sufficient to warrant a reduction in his sentence.
The record confirms that Smith is in fact vaccinated. According to the medical records,
Smith received the Pfizer COVID-19 Vaccine on July 21, 2021 (1 of 2 series) and August 13, 2021
(2 of 2 series). (ECF No. 210 at 161.) Once a vaccine is available to an inmate, compassionate
release is generally not warranted. See United States v. Broadfield, 5 F.4th 801, 803 (7th Cir.
2021) (“For the vast majority of prisoners, the availability of a vaccine makes it impossible to
conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate
release.”); United States v. Ugbah, 4 F.4th 595, 597 (7th Cir. 2021) (prisoners who have access to
1
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html (updated Feb. 10, 2023) (last visited 4/13/2023).
Case 2:20-cr-00196-BHL Filed 04/14/23 Page 3 of 6 Document 217
a vaccine cannot use the risk of COVID-19 to obtain compassionate release unless they can
demonstrate that they are medically unable to receive or benefit from the available vaccines). The
Seventh Circuit has continued to approve the denial of compassionate release motions based on
the risk of COVID-19. United States v. Clemons, No. 21-2440, 2022 WL 1436801, at *2 (7th Cir.
May 6, 2022) (“Despite the threat of new coronavirus variants, we reiterate that an inmate’s risk
of COVID-19 cannot justify compassionate release absent an inability ‘to receive or benefit from
a vaccine.’”) (citation omitted). As new variants arise, a vaccinated prisoner must present
individualized evidence of why his medical risks are extraordinary compared to the general
population. United States v. Hoskins, No. 21-2912, 2022 WL 2187558, at *1 (7th Cir. June 16,
2022). Simply listing diagnoses is not sufficient. Id.
Smith tries to distinguish these cases by claiming that he “experienced severe symptoms”
when he took the COVID-19 vaccine. (ECF No. 206 at 2.) But he does not state what those
symptoms were and he presents no medical records documenting his claims. His bare assertions
related to the vaccine certainly do not rise to the level of proving extraordinary and compelling
reasons for a sentence reduction. Smith also argues that he refuses to take the COVID-19 booster
shot and claims he “remains vulnerable to COVID-19 variants that have evolved.” (Id.) The
medical records reveal that Smith refused the Tdap vaccine on September 1, 2022 and also refused
the Influenza vaccine on October 20, 2022. (ECF No. 210 at 163.) The CDC recommends one
updated booster dose for everyone ages 5 years and older who completed their primary series. See
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html. According to the
CDC, authorized and approved COVID-19 vaccines (primary series and booster) are safe and
effective. (Id.) Given the availability of safe and effective vaccines, Smith does not present any
medical evidence that he is unable to receive or benefit from those vaccines. The Seventh Circuit
has held that inmates who decline vaccination cannot establish “extraordinary and compelling”
reasons for release because “a prisoner who remains at elevated risk because he has declined to be
vaccinated cannot plausibly characterize that risk as an ‘extraordinary and compelling’
justification for release. The risk is self-incurred.” Broadfield, 5 F.4th at 803. Smith’s vaccine
hesitancy is not a basis for a sentence reduction.
Smith further contends that he remains at risk as the pandemic continues to evolve, but he
has not “establish[ed] that he is more at risk of an adverse outcome in prison than he would be if
released.” United States v. Barbee, 25 F.4th 531, 533 (7th Cir. 2022); Broadfield, 5 F.4th at 803
Case 2:20-cr-00196-BHL Filed 04/14/23 Page 4 of 6 Document 217
(7th Cir. 2021) (observing that “published data” has indicated that vaccinated prisoners are not at
a greater risk of COVID-19 than other vaccinated persons.); United States v. Lemons, 15 F.4th
747, 751 (6th Cir. 2021) (recognizing that after full vaccination, “both the likelihood of contracting
COVID-19 and the associated risks should one contract the virus are significantly reduced.”). The
Court declines to draw any medical conclusions without supporting medical evidence in the record.
Smith’s medical conditions appear to be well-controlled and managed at FCI Sandstone. And
although Smith contends Pine County, Minnesota, where Sandstone is located, regularly ranks
among the most COVID-19 infected counties in Minnesota with a low vaccination rate, Smith fails
to show that he is particularly at risk in Sandstone. (ECF No. 206 at 2.) As of January 3, 2023,
FCI Sandstone had no active cases of inmates testing positive for COVID-19 and only one
COVID-19 related death; 487 inmates who tested positive for COVID-19 already recovered from
COVID-19. (ECF No. 208 at 5.) FCI Sandstone has apparently been successful at limiting the
spread of the virus and treating it when contracted by an inmate. Smith has not demonstrated that
the situation at FCI Sandstone is materially worse than outside the confines of prison in the regular
population.
In addition to his COVID-19 arguments, Smith also contends he should be released because
of family needs. But these needs, whether considered separately or in conjunction with his
COVID-19 arguments, do not satisfy the high standard for a compassionate release motion. Smith
pleads a need to help care for his elderly mother. He also urges that his wife is having difficulty
managing the family’s assisted living facility business. Although the Court is sympathetic to the
challenges and hardship Smith’s family is facing while he is incarcerated, neither circumstance
rises to the level of extraordinary and compelling, warranting his release. The “burden placed on
a defendant’s family by incarceration is not a reason to justify release.” United States v. Brown,
Nos. 02-CR-96-JPS, 01-CR-196-JPS-JPS, 2022 WL 17852031, at *5 (E.D. Wis. Dec. 22, 2022)
(citation omitted).
Case 2:20-cr-00196-BHL Filed 04/14/23 Page 5 of 6 Document 217
B. Smith Has Not Shown that a Reduction in his Sentence Would be Consistent with the
Section 3553(a) Sentencing Factors.
Even if Smith’s situation presented extraordinary and compelling circumstances, reducing
his sentence would be inconsistent with the sentencing factors set forth in 18 U.S.C. §3553(a).
Those factors include: (1) the nature and circumstances of the offense, and the history and
characteristics of the defendant; (2) the need for the sentence imposed to provide just punishment,
deterrence, protection of the public, and correctional treatment; (3) the kinds of sentences
available; (4) the sentencing guideline range; (5) any pertinent policy statement issued by the
Sentencing Commission; (6) the need to avoid unwarranted sentence disparities; and (7) the need
to provide restitution to the victims of the offense. 18 U.S.C. §3553(a)(1)-(7).
The Court already considered these factors and explained how they applied to Smith when
it sentenced Smith to a prison term of 57 months on June 2, 2021. (ECF No. 107-110.) That
sentence already showed leniency; it was at the very bottom of the recommended guideline range
(57-71 months). Smith contends that he should be released because he is “the only person from
his case who remains in prison” and he is “remorseful.” (ECF No. 206 at 4.) Smith was sentenced
to the longest term of imprisonment as the leader and organizer of the scheme to defraud the bank.
He filled out the applications and created fake tax forms. He participated throughout the extended
time period of the scheme, never stopping until he was finally caught. Even then, he lied when
questioned by a bank representative, created false documents to cover up the fraud, deleted emails
and text messages, and encouraged others to similarly try to conceal the crime. Having recruited
others into his scheme, he now also bears responsibility for those individuals now being convicted
felons. Reducing his sentence would deprecate the seriousness of the offense and would not be in
the interests of justice.
Accordingly,
IT IS ORDERED that defendant’s motion to reduce sentence (ECF No. 206) is DENIED.
Dated at Milwaukee, Wisconsin on April 14, 2023.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge
Case 2:20-cr-00196-BHL Filed 04/14/23 Page 6 of 6 Document 217
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