UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

__________________________________________ ) UNITED STATES OF AMERICA ) ) ) v. ) Criminal No. 13-cr-00030 (ESH) ) KEVIN BROWN, ) ) Defendant. ) __________________________________________)

MEMORANDUM OPINION & ORDER

Before the Court is defendant Kevin Brown’s Motion for Compassionate Release under

(c)(1)(A)(i). (See Def.’s Mot., ECF No. 43.) He argues that “[a]s a 49-year old

African American male, grief-stricken, and suffering from an adjustment disorder and depression

from the loss of his twin brother on April 1, 2020, and the circumstances of being incarcerated at

FCI Butner Low—a facility rampant with COVID-19—Mr. Brown is at increased risk of serious

complications or death from COVID-19.” (See Supp. Motion at 1, ECF No. 48.) The

government opposes Brown’s motion, arguing that he has not met the requirements of Section

3582(c)(1)(A). (See Gov’t’s Opp., ECF No. 50.) For the reasons stated below, the Court denies

Brown’s motion for release.

BACKGROUND

Brown pled guilty on February 15, 2013, to one count of conspiracy to defraud the

government with respect to claims, in violation of

; one count of aiding and

abetting false claims for refunds, in violation of

; and one count of aiding and

abetting fraud and related activity in connection with identification information, in violation of

(a)(7), (b)(2). On December 20, 2016, Brown was sentenced to 135 months of incarceration, to be followed by 36 months of supervised release. (See Judgment, ECF No. 39.)

The Court also imposed an assessment of $300 and restitution of $4,543,659. (See id.) Brown

was committed on February 7, 2017 (see BOP Sentence Computation Data, ECF No. 50-1), and

is currently incarcerated at FCI Butner Low, in Butner, North Carolina. He has served

approximately one-third of his sentence and is projected for release on October 31, 2026. (See

id.)

Brown filed a motion for compassionate release pro se on May 13, 2020. Counsel from

the Office of the Federal Public Defender entered her appearance on behalf of Brown soon after

and filed a supplemental motion for his release on July 5, 2020. She also submitted a request for

a motion for compassionate release to be filed on his behalf to the Warden of FCI Butner Low on

May 20, 2020. (See Supp. Mot. at 25.) Counsel never received a response to this request,

though Brown may himself have received a rejection by mail on May 26, 2020. (See

at 26 &

n.22.)

ANALYSIS

I. LEGAL STANDARD

(c) provides, in relevant part, that—

The court may not modify a term of imprisonment once it has been imposed except that . . .

(A) the court, upon motion of the Director 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 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 . . .

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

This section represents an expansion of the original regime of compassionate release, which only

allowed courts to hear motions brought by the Director of the Bureau of Prisons (“BOP”). As

amended by the First Step Act of 2018, the section now permits a defendant to move for

compassionate release on his own behalf. See

Stat. 5194, 5239 (2018)

(“Increasing the Use and Transparency of Compassionate Release”). However, before coming to

court the statute requires that a defendant either exhaust his administrative remedies within the

BOP or wait thirty days after submitting a request to the BOP that it file a motion on his behalf.

For a Court to grant a motion for compassionate release (made by either the BOP or a

defendant), it must find “extraordinary and compelling reasons” to reduce a defendant’s

sentence.1 Furthermore, even if a Court concludes that a defendant has presented such reasons, it

must also “consider[] the factors set forth in section 3553(a).” See

(c)(1)(A).

As noted above, Brown’s counsel filed a request for the BOP to file a motion for

compassionate release on his behalf on May 20, 2020. More than thirty days have passed since

that request was filed, and therefore, he has exhausted his administrative remedies. The Court

will now turn to the merits of Brown’s motion.

II. MOTION FOR RELEASE

Brown argues that his “personal history, characteristics, and medical conditions make

him particularly vulnerable to [COVID]-19 and put him in grave danger in a prison environment

during this pandemic.” (Supp. Mot. at 26.) These characteristics and conditions include, inter

1 Section 3582(c)(1)(A) also provides that if a defendant is at least 70 years old and has served a certain number of years in prison, his sentence may be reduced. See 18 U.S.C. 3582(c)(1)(A)(ii). However, as Brown is only 49, that subsection is not relevant, and the Court need only consider whether there exist “extraordinary and compelling reasons.” 3 alia, his age, race, alcohol addiction, and “untreated mental health conditions,” including

“adjustment disorder with depressed mood.” (See

.)

The commentary to Section 1B1.13 of the United States Sentencing Guidelines defines

“extraordinary and compelling reasons” as including: (1) certain medical conditions; (2) the age

of the defendant; (3) family circumstances of the defendant; and (4) reasons “other than, or in

combination with, the reasons described” in the three previous subsections. Medical conditions

warranting a reduction in sentence include both terminal illnesses and also other chronic

conditions that “substantially diminish[] 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.”

at Application Note 1(A)(i)-(ii). The “extraordinary and compelling reason,” whatever it may

be, “need not have been unforeseen at the time of sentencing in order to warrant a reduction in

the term of imprisonment.” See

at Application Note 2. Regardless of whether the Court

considers Section 1B1.13 and its commentary binding or merely helpful in light of the passage of

the First Step Act,2 “[t]he court is in a unique position to determine whether the circumstances

warrant a reduction” of a defendant’s sentence. See

at Application Note 4.

First, Brown cites research alleging the outsized effect COVID-19 has had on older

people, men, and African American individuals in particular. (See Supp. Mot. at 26-29.) Brown

2 Section 1B1.13 only references “motion[s] of the Director of the Bureau of Prisons” when describing what constitutes an “extraordinary and compelling reason,” as it has not been amended since the First Step Act of 2018 provided an avenue for defendants to make their own motions. In that way it is “anachronistic,” United States v. Asaro,

, at *4 (E.D.N.Y. Apr. 17, 2020) (internal quotation marks omitted), as it has not been changed since Congress “further increase[d] the use of compassionate release and . . . explicitly allow[ed] courts to grant such motions even when [the BOP] finds they are not appropriate.” United States v. Beck,

, 579 (M.D.N.C. 2019). “Because the Commission’s statutory authority is limited to explaining the appropriate use of sentence-modification provisions under the current statute,” United States v. Cantu,

, 350 (S.D. Tex. 2019) (emphasis in original), several courts have concluded that while the current policy statement may be helpful, “it does not constrain the Court’s independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction” under the regime created by the First Step Act. Beck, 425 F. Supp. 3d at 579. 4 also argues that his mental health conditions, in combination with his alcohol addiction, may

impair his immune function and make him more likely to face serious illness if infected with

COVID-19. (See Supp. Mot. at 34-35.) Nevertheless, the Court concludes that none of these

factors, alone or in combination, “substantially diminish[]” his ability to provide self-care while

in a prison environment. See U.S.S.G. § 1B1.13 at Application Note 1(A).

At the outset, “[i]f being male alone sufficed, every inmate at FCI Butner would qualify

for immediate release or reduction in his sentence.” See United States v. Ayers,

, at *2 (D.D.C. June 1, 2020) (internal quotation marks and brackets omitted). And,

while the Centers for Disease Control and Prevention (“CDC”) list “immunocompromised”

people as among those at increased risk for serious illness with COVID-19, see Centers for

Disease Control and Prevention, People with Certain Medical Conditions,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-

conditions.html (last accessed July 29, 2020), it specifically provides that the main concern is for

those who are immunocompromised due to solid organ transplant—the CDC says that the use of

immune-weakening medicines, or other physical conditions that decrease an individual’s

immune system function, only “may” increase an individual’s risk for serious illness with

COVID-19. See

Brown has none of these conditions.

Moreover, Brown himself said he was “healthy” and has “no health problems” when

originally petitioning the Court for compassionate release. (See Def.’s Mot. at 1.) This squares

with his medical records from the BOP, which say he is “a mental health care level one inmate

with no requirement for routine psychological services.” (See Gov’t Opp. at 2.) His BOP

records also reflect his diagnosis of adjustment disorder with depressed mood, which was

brought to the Court’s attention prior to sentencing, but nevertheless “note[] the absence of any

5 current mental health diagnosis, functional impairment or acute distress.” (See

.) Even

considering defendant’s diagnosis, he has not met his burden. The cases defendant cites for the

proposition that a defendant’s “mental health needs may also be the basis for granting

compassionate release,” see United States v. Johnson,

, at *10 (D.D.C. May

16, 2020) (emphasis in original), involved defendants who suffered from serious physical

ailments in addition to their serious mental health issues. See

(describing defendant’s severe

obesity and pulmonary hypertension as an “extraordinary and compelling reason” warranting his

release prior to discussing his PTSD); see also Doe v. Barr,

, at *5 (N.D. Cal.

Apr. 12, 2020) (noting that, in addition to his mental health conditions, petitioner suffered from

latent tuberculosis, which could also increase his risk since it is another respiratory illness).

Lastly, the Court is mindful of the conditions at the prison where Brown is currently

housed, FCI Butner Low, in particular the fact that it is still the site of an active COVID-19

outbreak, and that numerous inmates have died there. See Bureau of Prisons, COVID-19,

https://www.bop.gov/coronavirus/ (last accessed July 29, 2020) (listing 16 inmate deaths and 86

positive, non-recovered inmates at FCI Butner Low). However, 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. Under this analysis, the Court concludes that Brown “has not

demonstrated that his health conditions place him in a uniquely vulnerable situation that makes

his need for release significantly greater than any other detainee” at FCI Butner Low. See Ayers,

, at *2 (emphasis added).

Furthermore, even if the Court were to conclude that Brown had demonstrated an

“extraordinary and compelling reason” warranting his release, it would still be compelled to deny

6 his motion based on an analysis of the factors under

(a). At the outset, Brown

has served only one-third of his sentence. (See Gov’t Opp. at 9.) He argues, however, that his

sentence inaccurately reflected his culpability, 3 and that it was inappropriately long compared to

other members of the conspiracy. (See Supp. Motion at 3-5). The Court disagrees. Brown “was

involved at every level” of the fraud conspiracy—he recruited co-conspirators and convinced

them to misappropriate identities and use their personal addresses. (See Gov’t Opp. at 10.) “He

prepared the fraudulent returns, fraudulently endorsed refund checks, negotiated refund checks

and paid co-conspirators to negotiate checks for him.” (Id.) Moreover, he “personally received

millions from his perpetration of this fraud” (see id.), with the government at one point

suggesting that even by its most “conservative estimate,” he pocketed as much as $1,000 per

fraudulent check. (See Gov’t Sentencing Mem. at 3, ECF No. 32.) Lastly, Brown “continued in

the fraud after law enforcement executed search warrants on his residence and business,” and

even “up [to] and through his guilty plea.” (See Gov’t Opp. at 10; Gov’t Correction, ECF No.

52.)

While Brown argues that his sentence is inappropriately high compared to other members

of his scheme, the person most similar to Brown is Tony Bryant, who was involved in a similar

income tax refund scheme and received a similar sentence. See United States v. Bryant, No. 15-

cr-00152 (RMC). Like Brown, Bryant had an adjusted offense level of 33 and a criminal history

of I under the Guidelines, computed almost the exact same way—Bryant also received

enhancements for loss amount, number of victims, vulnerable victims, sophisticated means, and

3 Brown’s adjusted offense level reflected the large amount of loss. It also reflected the number of victims, the sophisticated means used, the vulnerability of the victims, and Brown’s leadership role in the scheme, as shown by the enhancements imposed under the Guidelines. (See Supp. Mot. at 2-3 (listing enhancements imposed); see also Gov’t Opp. at 10 (“The sentence imposed on the defendant appropriately reflected his culpability, the size of the loss attributable to him and the personal gain he received from his leadership and participation in the fraud.”).) 7 his role in the scheme. See Gov’t Mem. in Aid of Sentencing at 5, ECF No. 287. Brown, on the

other hand, received slightly higher enhancements for the loss amount and his role in his scheme,

but he received a decrease of three levels for acceptance of responsibility. Bryant went to trial

instead of pleading guilty, as Brown did. However, after trial, he received a sentence of 144

months, even higher than Brown’s sentence of 135 months. (See Supp. Mot. at 4.)

Given all these facts, the Court believes that Brown’s original sentence “remains

appropriate and ‘not greater than necessary’ to accomplish the Court’s purposes in sentencing

him.” See Ayers,

, at *2 (quoting

(a)). Shortening his

sentence to time served at this juncture would not “reflect the seriousness of the offense, . . .

promote respect for the law, . . . [or] provide just punishment for the offense.” See

(a)(2)(A).

CONCLUSION

For the foregoing reasons, the Court concludes that Brown has not demonstrated the

existence of an “extraordinary and compelling reason” for a reduction in his sentence. See

(c)(1)(A)(i). Moreover, the Court concludes that the factors under

(a) counsel against a reduction in his sentence at this time. The Court will therefore

DENY Brown’s Motion for Compassionate Release (ECF No. 43) and the Supplemental Motion

(ECF No. 48).

_______________________

ELLEN S. HUVELLE United States District Judge

Date: July 29, 2020

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