UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA v. Criminal Action No. 18-29 (JEB) ANTHONY BROOKS,

Defendant.

MEMORANDUM OPINION

Less than three years into his ten-year prison sentence, Defendant Anthony Brooks

moves for compassionate release, citing asthma and a heart condition as increasing the likelihood

that he will suffer significantly if he contracts COVID-19 while incarcerated. According to him,

these risk factors constitute “extraordinary and compelling” reasons meriting early release.

Because Brooks has not satisfied the high burden the statute requires, the Court will deny the

Motion, but will do so without prejudice so that he may renew his efforts down the line should

his underlying circumstances change.

I. Background

This Court sentenced Brooks in 2018 to ten years in prison after his guilty plea to two

counts of transportation with the intent to engage in criminal sexual activity. See ECF No. 33

(Plea Agreement). Brooks had twice picked up a 14-year-old girl, whom he was mentoring,

from her home in the District and driven her to his home in Maryland to have sex. See ECF No.

34 (Statement of Offense) at 2–4. The ten years constituted the mandatory minimum

punishment. See Plea Agreement at 1; see also

(a). In imposing only that term,

the Court varied substantially from the Sentencing Guidelines, which had proposed a sentence of

between 210 and 262 months. See ECF No. 50 (Statement of Reasons).

1 In early 2020, the COVID-19 pandemic struck America, infecting millions and, as of this

writing, causing the deaths of over 270,000 people. Prisoners were put in a particularly perilous

position, often unable to isolate or take other appropriate precautionary measures. At FCI

Danbury, where Brooks is incarcerated, at least 84 out of 900 tested inmates have contracted the

virus to date, see COVID-19 Inmate Test Information, BOP, https://www.bop.gov/coronavirus/

(last visited Dec. 7, 2020), over double the national infection rate. See, e.g., Coronavirus in the

U.S.: Latest Map and Case Count, N.Y. Times, https://www.nytimes.com/interactive/2020/us/

coronavirus-us-cases.html (last visited Dec. 7, 2020).

It was in this context that, in April, Brooks filed his first Motion for Compassionate

Release, citing his increased risk of a severe virus reaction given his “serious heart condition”

and asthma. See ECF No. 53 (First Def. Mot.), ¶ 7. The Court denied that Motion without

prejudice, awaiting the results of a concurrent civil proceeding in the District of Connecticut,

which concerned prison conditions for all Danbury inmates and might have afforded Brooks

relief. See Martinez-Brooks v. Easter,

, 454–56 (D. Conn. 2020). In May,

that litigation resulted in a temporary restraining order requiring the Warden of FCI Danbury to

identify inmates at increased risk for a severe reaction in order to prioritize them for transfer to

home confinement.

Inmates “who have any . . . condition[] specifically identified by the

United States Centers for Disease Control as putting them at higher risk for severe illness from

COVID-19” were to be prioritized — for example, those with “chronic lung disease including

moderate to severe asthma” and “serious heart conditions, including congestive heart failure,

coronary artery disease, congenital heart disease, cardiomyopathy, and/or pulmonary

hypertension.”

. A BOP “Home Confinement Committee” has since examined

potential inmates — including Brooks — for transfer to home confinement and, “informed by

2 input from a medical clinician who examined each inmate’s institutional health records,”

suggested or denied home confinement in each case. See ECF No. 64 (Gov. Suppl.) at 2.

Brooks was not recommended for home confinement because he was assessed to “not have any

risk factors that would put him at a higher risk of developing severe illness as a result of COVID-

19 based on CDC guidelines.”

at 2–3 (quoting ECF No. 64-1 (Brooks COVID-19 Home

Confinement Review Sheet)). Still housed at FCI Danbury, he then filed a Second Motion for

Compassionate Release citing the same grounds as his first — namely, that the dangerous

conditions at the facility, combined with his “serious heart condition” and “chronic asthma,”

create extraordinary and compelling reasons meriting his early release. See ECF No. 59 (Second

Def. Mot.), ¶ 2.

II. Legal Standard

Federal courts generally “may not modify a term of imprisonment once it has been

imposed,”

(c), aside from “a few narrow exceptions.” Freeman v. United

States,

(2011). One such exception provides for compassionate release, which

defendants may seek after exhausting administrative remedies. See

(c)(1)(A)

(as modified by the First Step Act of 2018). This section allows courts to reduce a final sentence

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

applicable” if “extraordinary and compelling reasons warrant such a reduction” and the

“reduction is consistent with the applicable policy statements issued by the Sentencing

Commission.” Id.

In its applicable pre-COVID policy statement, the Sentencing Commission offers

examples of “extraordinary and compelling reasons” that center on terminal illness, deteriorating

health and inability to care for oneself, and incapacitation of family members. See U.S.S.G.

3 § 1B1.13(1)(A)–(C). In light of the COVID crisis, however, courts have invoked Section

1B1.13(1)(D), which acknowledges that reasons “other than, or in combination with, the reasons

described” in (A)–(C) may present extraordinary and compelling circumstances. Courts across

the country have determined that the COVID-19 pandemic may constitute such an additional

reason, especially when the defendant is housed at a facility experiencing a COVID outbreak and

suffers from a health condition that increases the likelihood he will experience serious symptoms

upon contracting the virus. See, e.g., United States v. Morris, No. 12-154,

, at

*7 (D.D.C. May 24, 2020) (finding extraordinary and compelling circumstances when medical

conditions make defendant “particularly vulnerable to severe COVID-19 infection” in light of

Section 1B1.13(1)’s focus on self-care); United States v. Johnson,

, 38

(D.D.C. 2020) (“The compelling need for [the defendant], in particular, to be released from . . .

custody relates primarily to [his] heightened risk of having serious medical complications if he

were to contract COVID-19.”); United States v. Lacy, No. 15-30038,

, at *6

(C.D. Ill. May 1, 2020) (finding extraordinary and compelling reasons given defendant’s medical

conditions in combination with COVID-19 pandemic); United States v. McCarthy,

, 527 (D. Conn. 2020) (finding extraordinary and compelling reasons when defendant’s

medical conditions “substantially increase his risk of severe illness if he contracts COVID-19”).

Courts rarely, if ever, hold that the pandemic alone means that an inmate who is not particularly

susceptible to severe symptoms should be released. See United States v. Raia,

, 597

(3d Cir. 2020) (“[T]he mere existence of COVID-19 in society . . . cannot independently justify

compassionate release . . . .”).

If the court finds that extraordinary and compelling reasons merit early release, it must

then consider the sentencing factors set out in

(a) “to the extent that they are

4 applicable,” U.S.S.G § 1B1.13;

(c)(1)(A), “presumably with an eye toward

whether it is necessary to maintain the prior term of imprisonment despite the extraordinary and

compelling reasons to modify the defendant’s sentence.” Johnson, 464 F. Supp. 3d at 30. If the

factors allow it, a court may then modify the sentence to time served. See

(c)(1)(A).

III. Analysis

At the outset, Brooks and the government now agree that he has cleared the hurdle of

exhausting his administrative remedies. See ECF No. 60 (Opp.) at 8. The Court thus first

considers whether Brooks has established that extraordinary and compelling circumstances

warrant his release. Finding that he has not, it ends its inquiry there.

Defendant asserts that he has “chronic asthma” and “a serious heart condition.” As to the

first ailment, however, CDC guidelines report that only “[p]eople with moderate to severe

asthma may be at higher risk of getting very sick from COVID-19.” People with Moderate to

Severe Asthma, Centers for Disease Control and Prevention (Nov. 20, 2020),

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/asthma.html. Brooks’s

claim that his asthma is “moderate to severe” appears only in his counsel’s recitation of a

discussion counsel purportedly had with a consulting physician, in which Defendant is

characterized as having “moderate to severe asthma.” Second Def. Mot., ¶ 5. His BOP medical

records, conversely, do not seem to indicate that his asthma is at such an elevated level. See

ECF No. 59-2; Opp. at 20–21 (noting that only a maintenance inhaler has been prescribed); see

also Gov. Suppl. at 3 & n.1 (noting that Committee charged with identifying high-risk inmates in

compliance with Martinez-Brooks TRO came to same conclusion). In the absence of a more

reliable diagnostic indication of severity, the Court is unpersuaded that Brooks’s asthma is severe

5 enough to place him at increased risk as identified by the CDC. See, e.g., United States v.

Torres, No. 18-414,

, at *8 (E.D. Pa. June 29, 2020) (finding no extraordinary

and compelling reasons for release when defendant’s symptoms did not match his claims of

severe asthma).

Brooks’s “serious heart condition” similarly fails to qualify under CDC guidelines as

placing him at increased risk of developing serious symptoms. The CDC reports that having

heart failure, coronary artery disease, cardiomyopathies, or pulmonary hypertension “increases

your risk of severe illness from COVID-19” and that “[h]aving other cardiovascular or

cerebrovascular disease, such as hypertension (high blood pressure) or stroke, might increase

your risk of severe illness from COVID-19.” Heart Conditions and Other Cardiovascular and

Cerebrovascular Diseases, Centers for Disease Control and Prevention, https://www.cdc.gov/

coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html#heart-

conditions (Dec. 1, 2020). But Brooks does not suggest that he suffers from any of these

conditions, offering only a report indicating certain “trace” and “mild” heart symptoms without

diagnosis. See ECF No. 53-3. The Court finds this showing, too, insufficient to indicate that he

is at heightened risk of experiencing severe symptoms should he contract COVID-19. As neither

of these conditions, standing alone or in concert, qualifies as an extraordinary and compelling

reason, release is not appropriate.

In addition, the conditions at FCI Danbury — although certainly alarming at the outset of

the pandemic — have improved substantially since that time. While the facility reported 69 total

cases in May, that figure increased by only fifteen in the following seven months. Compare

Martinez-Brooks, 459 F. Supp. 3d at 418 (citing 69 total positive cases as of May) with COVID-

19 Inmate Test Information, https://www.bop.gov/coronavirus/ (citing 84 total positive cases as

6 of December). As of September 16, there were only 2 active cases of COVID-19 among inmates

at Danbury and no active cases among staff members. See Gov. Suppl. at 3.

Brooks last contends that his health status combined with the spread of the virus mean

that his conditions of confinement violate the Eighth Amendment. As the government correctly

rejoins, any such constitutional claim must be raised via a separate civil suit and cannot be part

of a compassionate-release motion in the underlying criminal case. Courts all over the country

have concurred. See, e.g., United States v. Banks,

, 138 n.1 (3d Cir. 2011)

(“We agree with the District Court that a motion filed in [the defendant’s] criminal case was not

the proper vehicle for raising the claims about prison conditions contained in that motion.”);

United States v. Smith,

, at *6 n.8 (S.D. Ohio Nov. 13, 2020) (collecting

cases) (“With respect [to] Smith’s argument concerning the Eighth Amendment’s prohibition on

the infliction of cruel and unusual punishments, a compassionate release motion is not the

appropriate mechanism or vehicle to raise such claims of alleged constitutional violations.”).

Acknowledging this in his Reply, see ECF No. 62 (Reply) at 1, Brooks does not press the point

further.

All of this said, the Court is mindful that Brooks is serving a very stiff sentence and that

the government does not always charge a mandatory-minimum offense in similar situations. The

length of his term is particularly notable given that other factors at his sentencing — e.g., his lack

of criminal record and presence of positive life accomplishments — would have militated in

favor of a shorter period of incarceration. The Court will deny the Motion without prejudice so

that if his health or prison conditions change, especially after he has served a greater percentage

of his sentence, he may renew his claim.

7 IV. Conclusion

As Brooks does not meet the extraordinary-and-compelling standard warranting

compassionate release, the Court will deny his Motion. A separate Order so stating will issue

this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: December 7, 2020

8