UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 14-30-1 (BAH) FLORENCE BIKUNDI, Chief Judge Beryl A. Howell Defendant.

MEMORANDUM OPINION AND ORDER

Pending before the Court is defendant Florence Bikundi’s motion for compassionate

release. Def.’s Mot. for Compassionate Release Pursuant to

(c)(1)(A) (“Def.’s

Mot.”), ECF No. 653. Defendant is 57 years-old and currently serving a 120-month sentence in

Bruceton Mills, West Virginia. Gov’t Opp’n to Def.’s Mot. (“Gov’t Opp’n”) at 3, 6, ECF No.

656. She worries that her “hypertension” and “hyperlipidemia,” along with her “obesity,” makes

her “more likely to suffer dire consequences” should she contract COVID-19. Def.’s Mot. at 1.

The government opposes a reduction in defendant’s sentence. Gov’t Opp’n at 12. For the

reasons set forth below, defendant’s motion is denied.

I. BACKGROUND

The evidence supporting defendant’s conviction has been thoroughly detailed elsewhere.

See United States v. Bikundi,

, 773–76 (D.C. Cir. 2019); United States v. Bikundi,

Crim. Case No. 14-30 (BAH),

, *1–19 (D.D.C. Mar. 7, 2016). In short, despite

her exclusion from participation in federal health care programs, defendant owned a medical

services company that received tens of millions of dollars in Medicaid payments, much of which

was for medical services that were never in fact provided. Bikundi,

at *11–15.

When this massive Medicaid fraud was uncovered, she was first charged in a nine-count single-

1 defendant indictment with health care fraud, Medicaid fraud, money laundering, and engaging in

monetary transactions with funds derived from unlawful activity. See generally, Indictment,

ECF No. 1. As the investigation of defendant and her company unfolded, that indictment was

superseded by a 27-count multi-defendant indictment. See generally Superseding Indictment,

ECF No. 44. Defendant was ultimately charged with 15 counts of conspiracy to commit health

care fraud, health care fraud, Medicaid fraud, conspiracy to launder money, money laundering,

and engaging in monetary transactions in property derived from unlawful activity.

After a

three-week trial, a jury found defendant guilty on 12 counts and not guilty on the other 3.

Verdict Form, ECF No. 360.1

At sentencing, this Court explained how, although the efforts of many individuals were

necessary to pull off such a massive fraud, defendant was “the prime moving force behind” the

scheme. Sentencing Hr’g Tr. at 168:22–23, ECF No. 563. The signatures she forged led to her

company’s approval as a Medicaid provider.

at 168:23–25. She “supervised and even

instructed employees about how to falsify patient and employee records.”

at 169:4–7. She

“participated” in the payment of “and even instructed [her] employees about how to pay

kickbacks to D.C. Medicaid beneficiaries” so that those patients would falsify their records and

her company would be able to reap “the greatest amount of money possible” from Medicaid.

at 169:8–12. Nevertheless, although the sentencing guidelines suggested a sentence of 360

1 Specifically, the jury found defendant guilty of one count of conspiracy to commit health care fraud in violation of

, and that the goal of that conspiracy was to violate

and 1347 and 42 U.S.C. § 1320a-7b(b), one count of health care fraud based on fraudulent billing practices, in violation of

, one count of health care fraud based on her exclusion from participating in Medicaid programs, in violation of

, one count of health care fraud based on her concealing her exclusion from participating in Medicaid, in violation of 42 U.S.C. § 1320a-7b(a)(3), one count of conspiracy to launder money, in violation of

(h), and seven counts of money laundering, in violation of

(a)(1)(B)(i). Verdict Form at 1–4; see also generally Superseding Indictment. Defendant was found not guilty of three counts of engaging in monetary transactions in property derived from specified unlawful activity, in violation of

. Verdict Form at 5.

2 months to life imprisonment,

at 91:9–14, defendant was granted a 13-level departure,

lowering her guidelines range to 108 to 135 months’ imprisonment,

at 107:7–12. Defendant

was sentenced within that range to eleven terms of 120 months’ imprisonment and one term of

60 months’ imprisonment, all to run concurrently. Judgment at 3, ECF No. 544. She was

likewise sentenced to 12 concurrent terms of 36 months’ supervised release.

. In

addition, she was ordered to pay $80,620,929.20 in restitution, jointly and severally with her co-

conspirators,

, and to forfeit $39,989,956.02 in assets, Forfeiture Order ¶ 7, ECF No. 544-

1.

Defendant has served approximately 6 years and 7 months of her 10-year sentence, and

the Federal Bureau of Prisons (“BOP”) calculates that, with good time credit, she will be

released on August 28, 2022. Gov’t Opp’n, Ex. E at 2, ECF No. 656-5. She is currently

incarcerated in Federal Correctional Institution Hazelton (“FCI Hazelton”), at its Secure Female

Facility. Gov’t Opp’n at 6.

On June 24, 2020, defendant submitted a request for a reduction in her sentence to the

warden of that facility, explaining that she suffered from “[d]ebilitating heart disease” and high

blood pressure. Gov’t Opp’n, Ex. C, ECF No. 656-3. The warden denied that request on July

31, 2020, explaining that a review of defendant’s medical records “reveal[ed] that [defendant is]

medically stable” and therefore did “not meet medical criteria” required to justify a reduction in

sentence. Gov’t Opp’n, Ex. D, ECF No. 656-4. Not long after the warden denied her request,

defendant, through counsel, submitted the instant motion for compassionate release. Defendant’s

motion explains that her “history of chronic heart problem[s]” including “hypertension and

hyperlipidemia,” along with her “obesity” mean she “is more likely to suffer dire consequences”

should she contract COVID-19. Def.’s Mot. at 1. That motion is now ripe for consideration.

3 II. LEGAL STANDARD

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

once it has been imposed,’

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

exceptions.” Freeman v. United States,

(2011). As originally enacted, one

such exception, codified in section 3582(c)(1)(A), empowered the BOP Director to “petition the

court for a reduction in . . . sentence” and gave courts the authority to grant those petitions if they

found “that the reduction was justified by ‘extraordinary and compelling reasons.’” S. Rep. 98-

223 at 118; see also

Title II, § 212(a)(2).2 As amended in the First Step Act

of 2018,

the exception in section 3582(c)(1)(A) is expanded to authorize a

defendant directly to file a motion for such compassionate release with the court after he

exhausts his “administrative rights to appeal a failure of the Bureau of Prisons to bring a

[compassionate release] motion” on his behalf or he waits at least “30 days” after he delivers his

request for compassionate release to “the warden of [his] facility.”

(c)(1)(A).

In resolving motions for compassionate release, the court may reduce a term of

imprisonment only “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent

that they are applicable,” id., and upon making two findings: first, that “extraordinary and

compelling reasons warrant such a reduction,” id. § 3582(c)(1)(A)(i)3; and, second, “that such a

2 As originally enacted,

read as follows:

The Court may not modify a term of imprisonment once it has been imposed except that . . . in any case . . . the court, upon motion of the director of the Bureau of Prisons, may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction and that such a reduction is consistent with applicable policy statements issued by the [United States] Sentencing Commission.

Title II, § 212(a)(2). 3 Though not relevant to the instant motion, the court may also reduce a prisoner’s sentence if he is “at least 70 years of age” and has served at least 30 years in prison, when BOP has determined “that the defendant is not a danger to the safety of any other person or the community, as provided under [18 U.S.C. §] 3142(g).”

(c)(1)(A)(ii).

4 reduction is consistent with applicable policy statements issued by the Sentencing Commission,”

§ 3582(c)(1)(A).4

The Sentencing Commission’s policy statement at U.S.S.G. § 1B1.13, which was last

substantively amended by the Commission on November 1, 2016, applies to motions for

reduction of terms of imprisonment under

(c)(1)(A), and provides guidance as

to both of the statutorily required findings. It states that a reduction of a term of imprisonment

may be warranted, “after considering the factors set forth in

(a), to the extent

that they are applicable,” when the court makes three determinations: (1) “extraordinary and

compelling reasons warrant the reduction,” or the defendant meets certain age and a minimum

incarceration period, U.S.S.G. § 1B1.13(1)(A)–(B); (2) the defendant poses no danger to the

safety of any other person or the community, id. § 1B1.13(2); and (3) “the reduction is consistent

with [the] policy statement,” id. § 1B1.13(3). The commentary to this policy statement then

describes four “circumstances” that satisfy “extraordinary and compelling reasons warrant[ing]

the reduction”: (1) the medical condition of the defendant, who “is suffering from a terminal

illness” or has chronic and “substantially diminish[ed] . . . ability . . . to provide self-care” within

the prison environment, id. § 1B1.13, cmt. n.1(A); (2) the defendant is at least 65 years old, with

a serious deterioration in physical or mental health, after serving at least 10 years or 75 percent

of the prison term, “whichever is less,” id. § 1B1.13, cmt. n.1(B); (3) “[f]amily [c]ircumstances”

of “[t]he death or incapacitation of the caregiver of the defendant’s minor child or minor

children” or 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,” id.

4 The Sentencing Commission is tasked, in its organic statute, with promulgating general policy statements regarding “the sentence modification provisions set forth in section[] . . . 3582(c) of title 18,”

(a)(2), and “describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples,”

§ 994(t).

5 § 1B1.13, cmt. n.1(C); and (4) “[o]ther [r]easons” found by the BOP Director to present an

extraordinary and compelling reason “other than, or in combination with,” the reasons specified

in the policy statement, id. § 1B1.13, cmt. n.1(D).

III. DISCUSSION

The government opposes defendant’s early release on two grounds. First, it contends that

defendant has failed, at least in part, to meet the compassionate release statute’s exhaustion

requirement. Second, the government maintains that, even if she had met that requirement,

consideration of the factors laid out in

(a) counsels against a reduction in

defendant’s sentence. While the government’s first argument is not persuasive, the Court agrees

that a reduction in sentence is inappropriate in defendant’s circumstances.

A. Defendant Has Met The Compassionate Release Statute’s Exhaustion Requirement

The government suggests that, because defendant’s request for a reduction in sentence

submitted to her warden only mentioned “heart disease and high blood pressure,” she has not met

the compassionate release statute’s exhaustion requirement “with respect [to] her claim regarding

her weight.” Gov’t Opp’n at 11–12. The government asserts that “insofar as defendant seeks

early release based on her obesity,” the request should thus be denied without prejudice.

.

The request submitted by defendant to her warden appears to be a form provided by her

facility. It instructs inmates to “check what type of RIS,” short for Reduction in Sentence, they

“are filing.” Gov’t Opp’n, Ex. C at 1. Defendant selected “Debilitated Medical Condition,” and,

when the form prompted her to “[b]riefly describe” her medical condition, she wrote

“Debilitating heart disease” and “Chronic [high] blood pressure.”

When provided space to

include “additional information [she] wish[ed] to be considered,” defendant gave further detail

6 about her high blood pressure and complained that she had not been tested for COVID-19.

. Defendant does not mention her weight in the limited space she was provided. Nevertheless,

by checking the box next to “Debilitated Medical Condition” on the form, defendant may well

have been suggesting that her overall condition justified her release. Indeed, her request seems

to have triggered a more fulsome review of her medical condition, as the warden denied her

request only after a “review of [her] chart” and “consultation with [her] medical provider

reveal[ed] that [she was] medically stable.” Gov’t Opp’n, Ex. D. The letter thus suggests that

the warden’s consideration of defendant’s request was not limited to her claim of heart disease

and high blood pressure, but rather involved a more comprehensive review to determine whether

she was in a debilitated medical condition.

Despite the government’s lengthy argument to the contrary, as this Court has elsewhere

explained, the compassionate release statute’s “exhaustion” requirement is neither jurisdictional

nor a mandatory claims processing rule and may be waived when exhaustion “would be futile.”

United States v. Morris, Crim. Action No. 12-154 (BAH),

, *3–6 (D.D.C.

May 24, 2020) (internal quotation marks omitted). Even if the government were correct that an

inmate’s motion for compassionate release made to a court must be limited to precisely those

claims the inmate made to the warden of her facility, a dubious proposition for which the

government offers no direct support, a denial on that basis here would be futile. The warden has

already made her position clear: she does not believe defendant is in a debilitated medical

condition. The government’s bid to have defendant’s motion thrown out on exhaustion grounds

is thus rejected.

B. Defendant Is Not Entitled to Early Release

In the government’s view, “[d]uring the current COVID-19 pandemic” an inmate who

suffers from a condition “identified by the CDC as one that places a person at increased risk of 7 severe COVID-19 infection and who is not expected to recover from that condition, presents an

extraordinary and compelling reason” justifying early release. Gov’t Opp’n at 27. The

government further “concedes that the defendant’s obesity places her at an increased risk of

severe illness if exposed to the COVID-19 virus.” Id.; see also People with Certain Medical

Conditions, CENTERS FOR DISEASE CONTROL AND PREVENTION,

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

conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019-

ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html (listing “obesity” as a condition

that puts “[p]eople of any age . . . at increased risk of severe illness from COVID-19”) (last

visited Sept. 14, 2020). As the government correctly points out, however, “establish[ing] an

extraordinary and compelling reason” for early release, Gov’t Opp’n at 27, does not end the

inquiry, “as both statute and policy statement instruct courts to ‘consider[] the factors set forth in

(a), to the extent they are applicable,’” Morris,

at *7

(quoting U.S.S.G. § 1B1.13) (alteration in original); see also

(c)(1)(A).

Those factors weigh against reducing defendant’s sentence. With respect to “the nature

and circumstances of the offense,”

(a)(1), defendant was “the prime moving

force behind” a fraud that bilked the District of Columbia’s Medicaid program out of over $80

million. Sentencing Hr’g Tr. at 168:22–23. Moreover, defendant’s “history and characteristics”

suggest the need for a serious penalty for this very serious crime.

(a)(1). Prior

to engaging in the four-year fraud for which she was convicted and is currently imprisoned,

defendant had a history of engaging in fraudulent conduct. When her nursing license was

revoked, defendant stole the identity of a friend in order to work as registered nurse. Presentence

Investigation Report at 34, ECF No. 430. The record is replete with other examples of defendant

8 overstating her qualifications or outright lying on official documents. See Gov’t Opp’n at 28–29;

Sentencing Hr’g Tr. at 170:2–10. Troublingly, that tendency has apparently not abated. The

form defendant submitted to her warden requesting a reduction in sentence asked her to explain

how she would “support [her]self” should she be released. Gov’t Opp’n, Ex. C at 2. She

answered that she is “a [r]egistered nurse by profession with lots of experience.”

Defendant

is not licensed as a nurse in any jurisdiction. Indeed, lying about that fact is what resulted in her

exclusion from participation in any federal health care program and thus underlies her conviction

in this case. Bikundi,

at *4.5

Moreover, the need to fashion a sentence that “reflect[s] the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense” counsels in favor of

maintaining the sentence originally imposed.

(2)(A). As noted above,

defendant was already given a significant departure from her guidelines-recommended sentence

of 360 months to life imprisonment. Reducing an already heavily reduced sentence by over 30

percent would not adequately reflect the seriousness of defendant’s crime. Cf.

(a)(4) (directing courts to weigh the sentencing guidelines in determining the appropriate

sentence). The Court is mindful that defendant’s financial crime has carried with it an enormous

financial penalty. Nevertheless, while the financial penalty is designed to ensure defendant

cannot enjoy the fruits of her crime, her sentence of imprisonment is designed to “promote

respect for the law” and “provide just punishment.” It thus must be served in full.

Defendant suggests that the current pandemic threatens to transform her 120-month

sentence into a “death sentence.” Def.’s Mot. at 17. The government, however, has detailed

5 Defendant claims that her comment on the form was not meant to express “a desire to seek employment as a Registered Nurse” but merely to provide a “discussion of her life experience” and how she might leverage that experience to “support herself.” Def.’s Reply Supp. Def.’s Mot. at 9, ECF No. 657. Defendant’s casual relationship with the truth in the past, however, at least provides reason for pause.

9 BOP’s attempts to forestall the spread of COVID-19 within defendant’s facility. Gov’t Opp’n at

15–19. Although outbreaks at some BOP facilities and state jails and prisons make it hard to

“dispute[] that the novel strain of the coronavirus that causes COVID-19 is much more easily

transmitted in the prison environment,” United States v. Johnson, Crim. Case No. 15-125 (KBJ),

, *9 (D.D.C. May 16, 2020), BOP records indicate that defendant’s prison

facility has reported only seven COVID-19 infections, all suffered by staff members, five of

whom have since recovered. COVID-19 Coronavirus, FEDERAL BUREAU OF PRISONS,

https://www.bop.gov/coronavirus/ (last visited Sept. 14, 2020).6 The Court does not take the

threat of COVID-19 lightly, but BOP’s success in keeping the prison population at defendant’s

facility free of the virus provides strong reason to believe it will continue making every effort to

maintain the health of inmates at FCI Hazelton.

Despite the government’s concession that defendant has medical conditions that meet the

standard of an extraordinary and compelling reason for her eligibility for early release, the need

for a sentence that adequately reflects defendant’s lead role in a major criminal conspiracy

counsels otherwise.7

6 This, in part, sets defendant’s case apart from that of her husband, who was one of her co-defendants and to whom this Court granted compassionate release on June 12, 2020. United States v. Bikundi, Crim. Action No. 14- cr-30-2 (BAH),

, *1 (D.D.C. June 12, 2020). Defendant’s husband was housed in a facility that “ha[d] seen one of the worst outbreaks of COVID-19 within BOP.”

. Moreover, while defendant’s husband was certainly a major player in the fraud, as already noted, defendant was the leader of the conspiracy. 7 Defendant asks, in the event her request for compassionate release is denied, “that the Court issue a non- binding recommendation to the BOP that she be placed in home confinement for the maximum period permissible.” Def.’s Mot. at 21.

(c) authorizes BOP “to place a prisoner in home confinement for the shorter of 10 percent of the term of imprisonment of that prisoner or 6 months.” Section 12003(b)(2) of the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”),

Stat. 281, allows BOP’s director to “lengthen the maximum amount of time for which [he] is authorized to place a prisoner in home confinement” provided certain conditions are met. The authority to place defendant on home confinement, as she recognizes, belongs “solely” to BOP. Def.’s Mot. at 23. Although the government agrees with defendant that “a sentencing judge can make . . . recommendations” regarding a defendant’s placement, Gov’t Opp’n at 34 (emphasis added), the Court declines to do so. Determining which inmates face the greatest risk of and from a COVID-19 infection requires an understanding of the federal prison population as a whole, the feasibility of COVID-19 prevention methods at different BOP facilities, and other considerations outside the ken of a single sentencing court. BOP appears to be exercising its authority with some frequency, and “as of [the government’s] filing” it had “transferred over 7,400 inmates to home confinement.” Gov’t Opp’n at 18. A non-binding recommendation based on

10 IV. CONCLUSION AND ORDER

Defendant has not demonstrated that a reduction in her sentence comports with the

factors laid out in

(a). Accordingly, it is hereby

ORDERED that defendant’s Motion for Compassionate Release Pursuant to

(c)(1)(A) is DENIED.

SO ORDERED.

Date: September 14, 2020

__________________________ BERYL A. HOWELL Chief Judge

incomplete information would do more to confuse than aid BOP’s efforts to prioritize those in its care who are at the greatest risk.

11