UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 18-cr-127-LM Opinion No.

Ahmad Khawaja

O R D E R

On May 2, 2019, defendant pleaded guilty to one count of

importation of a controlled substance (MDMA) in violation of

(a), 960(a)(1), and 960(b)(3). On January 3, 2020,

the court sentenced defendant to 30 months of imprisonment and

recommended that he participate in the Residential Drug Abuse

Program while incarcerated. On February 20, 2020, defendant

self-surrendered to the Federal Correctional Institution Danbury

in Connecticut where he remains incarcerated. In light of the

spread of COVID-19 in federal prisons and his respiratory health

issues, defendant requests pursuant to

(c)(1)(A)

that the court allow him to serve the remainder of his sentence

in home confinement. Doc. no. 43. The government objects. For

the following reasons, the court denies defendant’s motion.

STANDARD OF REVIEW

A court may grant so-called “compassionate release” to a

defendant under

(c)(1)(A).

(c)(1)(A) provides, in relevant part, that: 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

. . .

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

(c)(1)(A); see also U.S.S.G. § 1B1.13

(sentencing guidelines policy statement on compassionate

release). Under this statute, a district court may properly

consider a motion for compassionate release under three

circumstances: (1) the motion is filed by the Director of the

Bureau of Prisons (“BOP”); (2) the motion is filed by defendant

after he exhausts all his administrative rights to appeal BOP’s

refusal to bring a motion on his behalf; or (3) the motion is

filed by defendant 30 days after defendant requested BOP to

petition for compassionate release on his behalf.

(c)(1)(A).

2 Once a motion for compassionate release is properly before

the court, the court must then determine if defendant is

eligible for release. The statutory language quoted above

requires that defendant show that “extraordinary and compelling

reasons warrant” a reduction in his sentence, that the court

consider the factors set forth in

(a) to the

extent applicable, and that the reduction be “consistent” with

the Sentencing Commission’s applicable policy statements.

(c)(1)(A). The Sentencing Commission’s policy

statement regarding compassionate release adds the requirement

that the court find that “[t]he defendant is not a danger to the

safety of any other person or to the community, as provided in

(g).” U.S.S.G. § 1B1.13(2).

In short, a court may reduce a term of imprisonment under

the compassionate release provision if it: (1) finds that

extraordinary and compelling reasons warrant the reduction; (2)

finds that the defendant will not be a danger to the safety of

any other person or the community; and (3) the sentencing

factors outlined in

(a) weigh in favor of

reduction. See

(c)(1)(A); U.S.S.G. § 1B1.13;

see also United States v. Sapp, No. 14-CR-20520,

,

at *2 (E.D. Mich. Jan. 31, 2020); United States v. Willis,

(D.N.M. 2019). The defendant has the

3 burden of showing that he or she is entitled to a sentence

reduction. United States v. Ebbers, No. S402CR11443VEC,

, at *4 (S.D.N.Y. Jan. 8, 2020). The court has “broad

discretion in deciding whether to grant or deny a motion for

sentence reduction.” United States v. Paul Gileno, No. 3:19-CR-

161-(VAB)-1,

, at *2 (D. Conn. Mar. 19, 2020)

(internal quotation marks omitted).

BACKGROUND

On February 20, 2020, defendant began serving his 30-month

sentence at FCI Danbury for importation of a controlled

substance (MDMA). He has served two months of his sentence. He

now requests that the court release him to serve the remainder

of his sentence in home confinement due to the threat to his

health caused by the spread of COVID-19 in prisons. The threat

caused by COVID-19 to the health and safety of the public at

large is well-documented and constantly evolving.1 That threat

is even greater for incarcerated individuals due to the

constraints of the prison environment. As the Centers for

1 The court has issued numerous standing orders restricting access to the courthouse and postponing court proceedings due to the public health threat posed by the virus. See http://www.nhd.uscourts.gov/court-response-coronavirus-disease- covid-19.

4 Disease Control and Prevention (“CDC”) has recognized,

“[i]ncarcerated/detained persons live, work, eat, study, and

recreate within congregate environments, heightening the

potential for COVID-19 to spread once introduced.”2 Indeed,

defendant represents that 34 inmates and 12 staff members at FCI

Danbury have tested positive for the virus.

Defendant argues that he is eligible for compassionate

release because he has a higher risk of experiencing severe

illness from the virus due to his underlying health condition.

Defendant alleges that two years ago, his primary care physician

prescribed him an inhaler for his “breathing difficulties.”

Doc. no. 43 at 4. Defendant admits that his physician has not

diagnosed the source of these breathing issues but contends that

they worsen when he experiences increased anxiety. He also

submits that after being incarcerated in late February he made a

medical appointment and requested an inhaler but has not yet

been seen by prison medical staff. He also contends that, due

to the outbreak of COVID-19, his anxiety has “greatly

increased,” thereby exacerbating his breathing problems.

2 CDC, Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, https://www.cdc.gov/coronavirus/2019-ncov/community/correction- detention/guidance-correctional-detention.html (last visited Apr. 20, 2020).

5 Defendant filed his motion for compassionate release on

April 9, 2020. There is no indication in defendant’s motion

that he sought compassionate release from BOP before filing this

motion. Instead, he argues that the exhaustion of

administrative appeals and 30-day waiting period prerequisite to

a defendant filing a compassionate release motion are waivable

by the court in certain circumstances. He asserts that the

combination of the spread of COVID-19 in prison populations and

his increased risk of complications from the virus due to

underlying health issues justify waiver of the exhaustion

requirement in this case. The government objects, arguing that

the statutory exhaustion requirement is mandatory and cannot be

waived by the court.

DISCUSSION

Over the last month, federal courts have confronted a

tidal wave of compassionate release requests by inmates based on

the threat posed by the presence of the highly contagious COVID-

19 virus in the close quarters of the prison environment.

Courts addressing the issue of whether the exhaustion

requirements of

(c)(1)(A) are waivable in the

context of this global pandemic have split: some have held the

exhaustion requirement mandatory, while others have held that it

6 can be waived. Compare, e.g., United States v. Lugo, No. 2:19-

CR-00056-JAW,

, at *4-5 (D. Me. Apr. 10, 2020)

(holding that statutory exhaustion requirement is mandatory and

describing split of authority), with United States v. Zukerman,

No. 16 CR. 194 (AT),

, at *3-4 (S.D.N.Y. Apr. 3,

2020) (holding that exhaustion requirement may be waived under

certain circumstances).

The court need not decide this legal issue in the present

case. Even assuming that defendant is correct that the court

can waive the exhaustion requirement under certain

circumstances, the court finds that this case does not present

circumstances warranting such waiver. Alternatively, even if

the court did waive the exhaustion requirement, the court would

still not find that extraordinary and compelling reasons warrant

a reduction in defendant’s sentence.

I. Waiver of Exhaustion Requirements Not Justified

In support of his argument that the court has authority to

waive § 3582(c)(1)(A)’s exhaustion requirements, defendant

relies on a line of cases reasoning that exhaustion may be

excused under three circumstances. See, e.g., Zukerman,

, at *3; United States v. Colvin, No. 3:19CR179 (JBA),

, at *2 (D. Conn. Apr. 2, 2020). First,

7 exhaustion may be unnecessary where it would be futile. See

Colvin,

, at *2. Exhaustion may be futile if

undue delay results in “catastrophic health consequences.”

(internal quotation marks omitted). “Second, exhaustion may be

unnecessary where the administrative process would be incapable

of granting adequate relief.” Zukerman,

, at *3

(internal quotation marks omitted). And third, “exhaustion may

be unnecessary where pursuing agency review would subject

plaintiffs to undue prejudice.”

(internal quotation marks

omitted).

In Colvin, the court concluded that all three exceptions to

the exhaustion requirement were met, justifying waiver. Colvin,

, at *2. In that case, it was undisputed that

defendant suffered from type II diabetes, which put her at a

higher risk of experiencing severe illness from COVID-19 than

otherwise healthy inmates. Id. at *1. The court explained that

undue delay resulting in catastrophic health consequences to

defendant would make exhaustion futile, that BOP would be

incapable of granting relief because defendant’s sentence would

likely expire before exhaustion of her appeals or 30 days, and

she would be subjected to the undue prejudice of a heightened

risk of severe illness while attempting to exhaust her appeals.

Id. at *2. The court concluded that under the specific facts

8 presented—defendant’s type II diabetes and short remaining term

of imprisonment—waiving the exhaustion requirement was therefore

justified. Id. at *2.

By contrast, here, defendant has not submitted sufficient

proof that he suffers from a medical condition that puts him at

higher risk for complications from the virus. Defendant alleges

that two years ago, his primary care physician prescribed him an

inhaler for his “breathing difficulties.” Doc. no. 43 at 4.

But defendant admits that his physician has not diagnosed the

source of these breathing issues. And defendant has not

submitted any medical records from before or during his

incarceration that support these contentions.

Under the CDC guidelines, individuals with “chronic lung

disease or moderate to severe asthma” are at a higher risk of

experiencing severe illness from COVID-19.3 Although the court

believes that defendant has some form of breathing difficulty,

there is no evidence in the record indicating that he has asthma

or, if so, the severity of his condition. Indeed, the court

finds it unlikely that his breathing condition is severe given

that in his presentence report interview last fall defendant

3 Centers for Disease Control and Prevention, Information for Healthcare Professionals: COVID-19 and Underlying Conditions, https://www.cdc.gov/coronavirus/2019- ncov/hcp/underlying-conditions.html (last visited Apr. 17, 2020).

9 “denied any history of significant medical issues.” Doc. no. 31

at 10. With no mention of his condition in the presentence

report and no medical records from his primary care (or other)

physician, the court cannot classify defendant has having

“moderate to severe asthma.”

Under these circumstances, none of the exceptions to

exhaustion applies. First, because defendant has not shown that

his underlying health condition puts him in special danger of

facing catastrophic health consequences if infected with COVID-

19, his exhaustion of administrative remedies would not be

futile. Cf. United States v. McCarthy, No. 3:17-CR-0230 (JCH),

, at *4 (D. Conn. Apr. 8, 2020) (waiver justified

because defendant in danger of severe illness from COVID-19 due

to underlying conditions of COPD and asthma).

Second, waiver is not warranted because defendant is not

“incapable of getting adequate relief” through the

administrative appeals process. Zukerman,

, at

*3 (internal quotation marks omitted). He only recently began

serving his 30-month sentence, so he has time before his release

to complete the administrative appeals process or wait 30 days

before petitioning this court again for his release. Cf.

McCarthy,

, at *4 (waiver justified where

defendant had been incarcerated for 31 months and only 26 days

10 of his sentence remained); Colvin,

, at *2

(waiver justified when defendant had diabetes and only eleven

days of imprisonment remaining); United States v. Perez, No. 17

CR. 513-3 (AT),

, at *3 (S.D.N.Y. Apr. 1, 2020)

(waiver justified when delay of appeals process would deny

relief altogether because defendant had only three weeks of

imprisonment remaining).

Third, defendant has not shown that he would be subjected

to undue prejudice by having to exhaust his administrative

remedies. To be sure, all inmates, including defendant, are

subjected to the prejudice of heightened exposure to the virus

while in prison. But because defendant has not shown that he is

a member of a particularly vulnerable population, he will not

suffer undue prejudice by waiting for 30 days or exhausting his

administrative appeals before refiling before this court. Cf.

Zukerman,

, at *3-4 (finding waiver of exhaustion

requirements justified due to defendant’s old age, diabetes,

hypertension, and obesity, which put him at a higher risk of

experiencing severe illness from COVID-19). Ultimately,

defendant’s purported health issues are not severe enough to

justify bypassing the statutorily prescribed procedure of

allowing BOP to evaluate his compassionate release request in

11 the first instance. Assuming that waiver is justified in some

cases, the present case is not one of them.

II. No Extraordinary and Compelling Reason

As an alternative ground for its decision, the court finds

that even if it waived the exhaustion requirements, defendant

would not be entitled to a sentence reduction. As discussed

above, properly exhausting administrative remedies is only the

first step in achieving a sentence reduction. Defendant must

also establish that: extraordinary and compelling reasons

warrant the sentence reduction; that he is not a danger to the

community; and that the release would be consistent with the

(a) factors. See

(c)(1)(A);

U.S.S.G. § 1B1.13. Based on the current record, defendant has

not demonstrated an extraordinary and compelling reason

warranting a sentence reduction to home confinement.

The Commentary to the Sentencing Guidelines Policy

Statement regarding compassionate release identifies four

categories of “extraordinary and compelling reasons” that

justify a sentence reduction: defendant’s medical condition;

defendant’s age; defendant’s family circumstances; and a

catchall category. U.S.S.G. § 1B1.13, App. Note 1. Only the

12 medical condition and catchall categories are arguably relevant

here.

In order for a medical condition to qualify as an

extraordinary and compelling reason under the guidelines, it

must be either a “terminal illness” or a serious 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.” See U.S.S.G. § 1B1.13, App. Note 1(A). Defendant

has not shown that his “breathing difficulties” meet either of

these definitions.

This case also does not fall within the “catchall

category.” The catchall provision encompasses situations in

which “there exists in the defendant’s case an extraordinary and

compelling reason other than, or in combination with”

defendant’s medical condition, age, or family circumstances.

U.S.S.G. § 1B1.13, App. Note (1)(D). There are some

circumstances in which a defendant’s underlying health issues

combined with the threat posed by COVID-19 constitute an

“extraordinary and compelling reason” warranting release. See,

e.g., United States v. Edwards, No. 6:17-CR-00003,

, at *5 (W.D. Va. Apr. 2, 2020) (granting compassionate

13 release based on threat of COVID-19 and defendant’s terminal

brain cancer and immunocompromised condition from chemotherapy).

But here, defendant’s allegations fall short. As described

in detail above, the court finds that defendant has offered

inadequate support for his contention that his breathing

difficulties actually put him at a higher risk of experiencing

severe illness from COVID-19. See United States v. Lowry, No.

18 CR 882,

, at *2 (S.D.N.Y. Apr. 6, 2020)

(denying request for compassionate release because defendant’s

history of respiratory infections and ailments, even coupled

with the risk of contracting COVID-19, did not qualify as an

“extraordinary and compelling reason” for his release); cf.

United States v. Ordonez, No. CR-18-00539-01-PHX-DGC,

, at *6-7 (D. Ariz. Apr. 3, 2020) (denying

defendant’s request for release pending appeal because defendant

offered only speculative evidence that he suffered from an

autoimmune disorder that would put him at greater risk from

COVID-19). Defendant has not demonstrated that “extraordinary

and compelling reasons” warrant his release to home confinement.

Nevertheless, the court is sympathetic to defendant’s

request. Based on defendant’s minimal criminal history, he may

be a good candidate for home confinement under

(c)(2) as amended by § 12003(b)(2) of the CARES Act and the

14 guidance provided in Attorney General Barr’s Memorandum.4

Although BOP is already proactively reviewing inmates for

suitability to be released to home confinement, an inmate who

believes he is eligible for home confinement may submit a

request and provide a release plan to his case manager.5

CONCLUSION

For the foregoing reasons, the court denies defendant’s

motion for compassionate release (doc. no. 43) without

prejudice.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 22, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal

4See Attorney General William Barr, Increasing the Use of Home Confinement at Institutions Most Affected by COVID-19, https://www.justice.gov/file/1266661/download (last visited Apr. 20, 2020).

5See Federal Bureau of Prisons, Update on COVID-19 and Home Confinement, https://www.bop.gov/resources/news/20200405_covid19_home_confine ment.jsp (last visited Apr. 20, 2020).

15