UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal No. 07-cr-178 (JDB) JEFFREY FRANKLIN, Defendant.

MEMORANDUM OPINION & ORDER

Defendant Jeffrey Franklin is currently detained at FCI Beckley in Beaver, West Virginia,

where he is serving a sentence of 126 months’ incarceration for violating the terms of his

supervised release by committing and being convicted of a separate crime—carjacking while in

possession of a firearm—in the U.S. District Court for the District of Maryland. See Dec. 2, 2016

Judgment on Revocation (“J. on Rev.”) [ECF No. 35] at 2–3 (sentencing Franklin to 24 months’

incarceration for the violation, to be served consecutively to the 102 months he received for the

carjacking offense). His expected release date is March 2, 2021, but he has now moved for

compassionate release, requesting a reduction in his sentence under

(c)(1)(A) in

light of the threat of COVID-19 spreading within his detention facility. See Mot. Under

§ 3582(c)(1)(A)(i) (“Release Mot.”) [ECF No. 50] at 1, 4. The government opposes this motion.

See Gov’t’s Opp’n to Def.’s Pro Se Mot. Under

(c)(1)(A)(i) (“Gov’t’s Opp’n”)

[ECF No. 52] at 1.

“Federal courts are forbidden, as a general matter, to ‘modify a term of imprisonment once

it has been opposed,’

(c); but the rule of finality is subject to a few narrow

exceptions.” Freeman v. United States,

(2011) (plurality opinion). The First

Step Act of 2018 provides one such exception: a court may, upon motion of the Bureau of Prisons

1 or a defendant, reduce a defendant’s term of imprisonment if, “after considering the factors set

forth in [

(a)] to the extent that they are applicable,” the court concludes that

“extraordinary and compelling reasons warrant such a reduction” and that “such a reduction is

consistent with applicable policy statements issued by the Sentencing Commission.”

(c)(1)(A)(i); see also USSG § 1B1.13 (setting forth the Commission’s policy statement,

which requires (among other things) that the defendant’s release not pose “a danger to the safety

of any other person or to the community”). “As the moving party, the defendant bears the burden

of establishing that he is eligible for a sentence reduction under § 3582(c)(1)(A).” United States

v. Demirtas, No. 11-cr-356 (RDM),

, at *1 (D.D.C. June 25, 2020). And a court

may consider a defendant’s motion for such a reduction only “after the defendant has fully

exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring [such] 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.”

(c)(1)(A).

To start, the parties agree that Mr. Franklin has satisfied § 3582(c)(1)’s exhaustion

requirement, see Release Mot. at 2, Gov’t’s Opp’n at 10–11, thus the Court turns directly to the

merits of the motion for compassionate release. Mr. Franklin argues that the spread of COVID-

19, in combination with his status as an African-American prisoner and his underlying health

conditions, are extraordinary and compelling reasons for granting him early release. See Release

Mot. at 4–5. He states that he suffers from “high blood pressure” and “chronic pain from a gunshot

wound” and that he has a “history of smoking tobacco products.” Id. at 5. Mr. Franklin also argues

that he is more demographically susceptible to COVID-19, given the virus’s disproportionate

effects on African-Americans and the fact that it is “virtually impossible to practice social

distancing and other necessary procedures” in the prison environment. Id. at 4. As for the

2 § 3553(a) factors, Mr. Franklin states that his “behavior and willingness to rehabilitate while

incarcerated” demonstrate that he is not a danger to the community. Id. at 6. He notes that he has

completed “Drug Awareness, Anger Management, Scissors Lift, and Forklift License” classes and

that he is taking GED classes. Id. at 6–7. He further notes that he has “zero (0) violence on his

record since he has been incarcerated.” Id. at 7. Under his release plan, he would reside with his

sister in White Plains, Maryland. Id.

The government opposes his motion for compassionate release for two reasons:

(1) defendant’s claims “do not sufficiently demonstrate the requisite extraordinary and compelling

reasons” for compassionate release, and (2) defendant’s “conduct,” “criminal history,” and “post-

conviction violation of supervised release do not demonstrate that the defendant is no longer a

danger to the community.” Gov’t’s Opp’n at 1–2. The Court agrees with the government’s

arguments and concludes that Franklin’s motion fails.

First, the Court rejects Mr. Franklin’s argument that COVID-19 is by itself an

“extraordinary and compelling reason” warranting compassionate release, see Def.’s Mot. at 4.

“[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.” United States v. Raia,

, 597 (3d Cir. 2020). “A general fear of contracting the virus is insufficient” to grant

compassionate release because, if it were sufficient, “every inmate . . . would qualify for

immediate release or reduction in their sentence.” United States v. Davis, No. CR18–0132 (RAJ),

, at *3 (W.D. Wash. May 28, 2020).

The Court must therefore look to Mr. Franklin’s specific health concerns and to the

conditions at FCI Beckley to determine whether “extraordinary and compelling” reasons for

release exist. Mr. Franklin states that he suffers from “high blood pressure[,] . . . chronic pain

3 from a gunshot wound[,] . . . [and] has a history of smoking tobacco products.”1 Release Mot. at

5. He has not, however, “presented any documentation . . . that would permit this Court to find

that he suffers from a serious physical or mental condition increasing his risk of becoming

seriously ill from COVID-19.” United States v. Queen, No. 17-cr-58 (EGS),

,

at *3 (D.D.C. June 24, 2020). For instance, it is unclear how severe his hypertension is and to

what extent Mr. Franklin’s history of smoking tobacco has affected his respiratory system. In the

absence of documentation of such serious health conditions, the Court cannot conclude that the

risks to Mr. Franklin created by the COVID-19 pandemic alone constitute extraordinary and

compelling reasons for his release under § 3582(c)(1)(A)(i). See id.; see also United States v.

Wheeler, No. 19-cr-00085 (ESH),

, at *3 (D.D.C. May 29, 2020) (explaining

that “the Court must concern itself primarily with the particular characteristics of an individual

defendant when determining what constitutes an ‘extraordinary and compelling reason,’ not a

generalized risk to the prison population as a whole”).

But even assuming that Mr. Franklin does suffer from these health conditions, he has not

demonstrated that his current health situation creates “extraordinary and compelling reasons” for

his release. Both parties agree that “extraordinary and compelling reasons” include at least those

circumstances defined in the Guidelines, such as “suffering from a terminal illness” and “suffering

1 Mr. Franklin also cites the cases of several other petitioners who have been granted relief through a compassionate release motion. Three of the petitioners he mentions, however, were not incarcerated at his facility and had much more severe health concerns. See United States v. Atwi, No. 18-20607,

, at *4–6 (E.D. Mich. Apr. 20, 2020) (granting relief to an inmate with tuberculosis at FCI Milan, which had 37 active COVID- 19 cases at the time); United States v. Joling, No. 6:11-cr-60131-AA,

, at *4–6 (D. Or. Apr. 17, 2020) (granting relief to an inmate with two types of cancer at FCI Butner, “where there ha[d] been an ongoing outbreak of cases”); United States v. McCarthy, 3:92-CR-0070 (JCH),

, at *5 (D. Conn. Apr. 8, 2020) (granting relief to a 65-year-old inmate with chronic obstructive pulmonary disease at MDC Brooklyn). The only case he cited from his own facility, FCI Buckley, involved an inmate with a history of heart attacks and heart surgery, again a much more severe case than Mr. Franklin’s. See Poulios v. United States, 2:09-cr-109,

, at *3 (E.D. Va. Apr. 21, 2020); see also People Who Are at Higher Risk for Severe Illness, Centers for Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-at-higher-risk.html (listing “[s]erious heart conditions” as placing individuals “at increased risk of severe illness from COVID-19”).

4 from a serious physical or medical condition . . . that 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,” USSG § 1B1.13, comment. (n.1). See Release Mot. at 5; Gov’t’s

Opp’n at 10. Mr. Franklin suggests that the Court should also consider circumstances that are

“comparable or analogous to what the Commission has already articulated as criteria for

compassionate release,” United States v. Fox, Criminal No. 2:14-cr-03-DBH,

,

at *3 (D. Me. July 11, 2019). See Release Mot. at 5. Under his more liberal standard, however,

Mr. Franklin still does not demonstrate that his present circumstances provide “extraordinary and

compelling reasons” for his release.

First, “high blood pressure” and “smoking” are recognized by the CDC only as conditions

that might place a person at “increased risk of severe illness from COVID-19,” rather than as

conditions that do pose such a risk. See People Who Are at Higher Risk for Severe Illness, Centers

for Disease Control and Prevention (June 25, 2020), https://www.cdc.gov/coronavirus/2019-

ncov/need-extra-precautions/people-at-higher-risk.html. Chronic pain is not in either category of

concern. See id.; see also United States v. Ram, No. 5:13-CR-50045,

, at *2

(W.D. Ark. June 11, 2020) (denying compassionate release to a 38-year-old inmate with “back

pain, high blood pressure, high cholesterol, and glaucoma”). Second, FCI Beckley, where Mr.

Franklin is incarcerated, does not currently have a single inmate or staff member infected with the

COVID-19 virus. See COVID-19 Cases, Federal Bureau of Prisons,

https://www.bop.gov/coronavirus/ (listing no positive cases at FCI Beckley as of July 15, 2020);

see also United States v. Denby, No. 06-30087,

, at *4 (C.D. Ill. July 9, 2020)

(concluding that there were no positive cases as of July 7, 2020); United States v. Blevins, No

1:15CR00003-004,

, at *1 (W.D. Va. July 8, 2020) (same).

5 Under such circumstances, the Court cannot conclude that Mr. Franklin has demonstrated

the existence of “extraordinary and compelling reasons” for a sentence reduction. See Denby,

, at *4 (denying defendant’s motion for compassionate release “[b]ased on [his]

fairly healthy medical condition and the absence of any case of the coronavirus at FCI Beckley”).

Mr. Franklin recently turned thirty-four years old, and even assuming that he has both hypertension

and a history of smoking tobacco, the risk of him suffering serious illness from COVID-19 remains

low because there are no confirmed cases at his facility. The Court thus concludes that Mr.

Franklin does not currently face circumstances “comparable or analogous to” the reasons for

compassionate release outlined in § 1B1.13 of the Guidelines—in other words, he does not

demonstrate “extraordinary and compelling reasons” for his compassionate release. Cf., e.g.,

United States v. Curtis, No. CR 03-533 (BAH),

, at *3, 5–6 (D.D.C. Apr. 22,

2020) (granting release where the government and defendant agreed that his advanced multiple

sclerosis required assistance “with all activities of daily living” and made him “particular[ly]

susceptibl[e] to the worst effects of the virus” (quotation omitted)); United States v. McCarthy,

No. 3:17-cr-0230,

, at *2 (D. Conn. Apr. 8, 2020) (granting release to a 65-year-

old defendant suffering from chronic obstructive pulmonary disease and asthma).

Moreover, even if Mr. Franklin had presented “extraordinary and compelling reasons” for

release, the Court may reduce his term of imprisonment only if the balance of the § 3553(a) factors

favor his release. See United States v. Pawlowski, No. 20-2033,

, at *1–3 (3d

Cir. June 26, 2020); United States v. Holroyd, No. 1:17-cr-00234-2 (TNM),

,

at *6–7 (D.D.C. May 26, 2020); see also

(c)(1)(A)(i); USSG § 1B1.13 (requiring

that the defendant’s release not pose “a danger to the safety of any other person or to the

community”). In this case, Mr. Franklin was in possession of a loaded, stolen handgun after being

6 convicted twice for felonies in D.C. (reckless driving and carrying a dangerous weapon) as well

as a felony in Maryland (robbery). See Statement of Facts in Supp. of Plea Agreement [ECF No.

14] at 1; see also Gov’t’s Opp’n at 14. Mr. Franklin is also currently incarcerated based on the

revocation of his supervised release for, once again, the unauthorized possession of a loaded

handgun during a carjacking. See J. on Rev. at 2–3. Given these circumstances, the Court has

serious concerns about Mr. Franklin’s criminal history and the likelihood of his engaging in further

illegal activity while on release.2 Cf. United States v. Sears, No. 19-cr-21 (KBJ),

, at *3 (D.D.C. June 16, 2020) (denying compassionate release where defendant was “at

high risk of reoffending”).

Releasing Mr. Franklin now would also not adequately reflect the seriousness of his

offense. Mr. Franklin states that he has served approximately 90% of his sentence, which he

contends weighs in favor of his release. See Release Mot. at 4. But, as of July 2020, Mr. Franklin

has actually served approximately 100 months of his aggregate 126-month sentence—only 79%

of his total term. See Def.’s Sentence Computation Data, BOP [ECF No. 52-1] at 1. Even

accounting for good time, he is not eligible for home release until September 2, 2020, with a

projected end date of March 2, 2021. See

And while Mr. Franklin presents some mitigating

factors, such as his record of non-violence in prison, see Def.’s Mot. at 7, the nature and

circumstances of his crime strongly favor continued incarceration. Given Mr. Franklin’s history

of recidivism and the factors in

(a), including the “nature and circumstances of

2 The BOP shares this concern and has given Mr. Franklin a “High” score utilizing the PATTERN risk assessment tool. See Def.’s Ex. A at 10. The PATTERN tool (“Prisoner Assessment Tool Targeting Estimated Risk and Needs”) assesses a list of nine factors in order to determine an inmate’s risk of recidivism. See U.S. Department of Justice, The First Step Act of 2018: Risk and Needs Assessment System—Update, at 7–9 (2020), https://www.bop.gov/inmates/fsa/docs/the-first-step-act-of-2018-risk-and-needs-assessment-system-updated.pdf. In Attorney General Barr’s Memoranda to the Director of the BOP dated March 26, 2020 and April 3, 2020, a prisoner’s score under PATTERN was listed as a factor to be considered when determining whether that prisoner is eligible for home confinement. See Womack v. United States, No. 08-0391-WS,

, at *2 (S.D. Ala. July 13, 2020).

7 his crime,” the Court concludes that his sentence is proper, and on that basis alone, denial of his

motion is proper. See

(a)(1); see also United States v. Jackson, No. 1:19-cr-

00347 (TNM),

, at *8 (D.D.C. June 19, 2020) (denying compassionate release

where reduction in defendant’s sentence “would not reflect the seriousness of the offense, promote

respect for the law, provide just punishment, or afford adequate deterrence” (internal quotation

marks omitted)).

Accordingly, upon consideration of [50] the Motion for Compassionate Release, and the

entire record herein, it is hereby ORDERED that the motion is DENIED.

/s/ JOHN D. BATES United States District Judge Dated: July 17, 2020

8