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IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
UNITED STATES OF AMERICA
v.
REALITY LEIGH WINNER

)
)
)
)
)
)

CR 117-034

GOVERNMENT’S RESPONSE IN OPPOSITION TO
DEFENDANT’S MOTION FOR COMPASSIONATE RELEASE UNDER
18 U.S.C. § 3582(c)(1)(A) AS AMENDED BY THE FIRST STEP ACT OF 2018
Defendant Reality Leigh Winner moves for compassionate release based upon
the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (2018). (Doc. 341.) Winner’s
motion is primarily based on the COVID-19 pandemic and her claims of its potential
effects on her health. Winner, however, failed to exhaust her administrative remedies
first with the Bureau of Prisons (BOP). Moreover, Winner has not alleged a qualifying
medical condition, as required under U.S.S.G. § 1B1.13. Even if she were eligible, this
Court should exercise its discretion and deny her motion. Therefore, the United
States respectfully requests that this Court dismiss Winner’s motion for lack of
jurisdiction, or, alternatively, deny the motion.
Factual Background
Winner was charged by criminal complaint with willful retention and
transmission of national defense information, in violation of 18 U.S.C. § 793(e) (Doc.
5.) The Court detained Winner, both as a flight risk and as a danger to others and the
community. (Doc. 27.) In September 2017, the grand jury returned a superseding
indictment charging Winner under the same statute. (PSR ¶ 3.) She faced a statutory

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maximum term of 10 years in prison. (PSR ¶ 68.) Under a binding Rule 11(c)(1)(C)
plea agreement, Winner pled guilty to that charge and accepted the facts as outlined
in the agreement. (PSR ¶ 4; Doc. 324.) The parties agreed to a sentence of 63 months
in prison followed by 3 years of supervised release. (Doc. 324, ¶ 4.) This Court
accepted the plea agreement. (Doc. 323.) The presentence investigation report (PSR)
reflected a total offense level of 29, a criminal history category of I, and an advisory
guideline range of 87 to 108 months’ imprisonment. (PSR ¶ 69.) Consistent with the
binding, negotiated plea agreement, Winner was sentenced to a below-guidelines
term of 63 months’ imprisonment. (Doc. 327.)
Winner now moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A),
asserting that the COVID-19 pandemic endangers her health. She is currently
incarcerated at Carswell FMC, a medical prison, located in Fort Worth, Texas, with
a projected release date of November 23, 2021. 1
Legal Analysis
A. Statutory Background
The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), as amended by
the First Step Act on December 21, 2018, provides in part:
(c) Modification of an Imposed Term of Imprisonment.—The court may
not modify a term of imprisonment once it has been imposed except
that—
(1) in any case—
(A) the court, upon motion of the Director of the Bureau of Prisons, or
BOP Inmate Locator, available at https://www.bop.gov/inmateloc/ (last
visited Apr. 13, 2020).
1

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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 . . . .
Further, 28 U.S.C. § 994(t) provides: “The Commission, in promulgating general
policy statements regarding the sentencing modification provisions in section
3582(c)(1)(A) of title 18, shall describe what should be considered extraordinary and
compelling reasons for sentence reduction, including the criteria to be applied and a
list of specific examples. Rehabilitation of the defendant alone shall not be considered
an extraordinary and compelling reason.” Accordingly, the relevant policy statement
of the Commission is binding on the Court. See Dillon v. United States, 560 U.S. 817,
827 (2010) (where 18 U.S.C. § 3582(c)(2) permits a sentencing reduction based on a
retroactive Guidelines amendment, “if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission,” the Commission’s pertinent
policy statements are binding on the court). 2

Prior to the passage of the First Step Act, while the Commission policy
statement was binding on the Court’s consideration of a motion under § 3582(c)(1)(A),
such a motion could only be presented by BOP. The First Step Act added authority
for an inmate herself to file a motion seeking relief, after exhausting administrative
remedies, or after the passage of 30 days after presenting a request to the warden,
whichever is earlier.
2

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The Sentencing Guidelines policy statement appears at § 1B1.13, and provides
that the Court may grant release if “extraordinary and compelling circumstances”
exist, “after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that
they are applicable,” and the Court determines that “the defendant is not a danger to
the safety of any other person or to the community, as provided in 18 U.S.C.
§ 3142(g).” Critically, in application note 1 to the policy statement, the Commission
identifies the “extraordinary and compelling reasons” that may justify compassionate
release. See United States v. Wilkes, 464 F.3d 1240, 1245 (11th Cir. 2006)
(“Commentary and Application Notes of the Sentencing Guidelines are binding on
the courts unless they contradict the plain meaning of the text of the Guidelines.”
(internal quotation marks omitted)). The note provides as follows:
1. Extraordinary and Compelling Reasons.—Provided the defendant
meets the requirements of subdivision (2) [regarding absence of danger
to the community], extraordinary and compelling reasons exist under
any of the circumstances set forth below:
(A)

Medical Condition of the Defendant.—
(i)
The defendant is suffering from a terminal illness (i.e., a
serious and advanced illness with an end of life trajectory). A
specific prognosis of life expectancy (i.e., a probability of death
within a specific time period) is not required. Examples include
metastatic solid-tumor cancer, amyotrophic lateral sclerosis

Under the law, the inmate does not have a right to a hearing. Rule 43(b)(4) of
the Federal Rules of Criminal Procedure states that a defendant need not be present
where “[t]he proceeding involves the correction or reduction of sentence under Rule
35 or 18 U.S.C. § 3582(c).” See Dillon, 560 U.S. at 827-28 (observing that, under Rule
43(b)(4), a defendant need not be present at a proceeding under Section 3582(c)(2)
regarding the imposition of a sentencing modification). Thus, the United States
respectfully requests that this Court deny Winner’s request to hold an emergency and
expedited hearing.
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(ALS), end-stage organ disease, and advanced dementia.
(ii)

The defendant is—
(I)
suffering from a serious physical or medical
condition,
(II)
suffering from a serious functional or cognitive
impairment, or
(III) experiencing deteriorating physical
health because of the aging process,

or mental

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.
(B)
Age of the Defendant.—The defendant (i) is at least 65 years old;
(ii) is experiencing a serious deterioration in physical or mental health
because of the aging process; and (iii) has served at least 10 years or 75
percent of his or her term of imprisonment, whichever is less.
(C)

Family Circumstances.—
(i)
The death or incapacitation of the caregiver of the
defendant’s minor child or minor children.
(ii)
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.

(D)
Other Reasons.—As determined by the Director of the Bureau of
Prisons, there exists in the defendant’s case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
For its part, consistent with note 1(D), BOP promulgated Program Statement
5050.50,

available

at

https://www.bop.gov/policy/progstat/5050_050_EN.pdf,

amended effective January 17, 2019, to set forth its evaluation criteria.
In general, the defendant has the burden to show circumstances meeting the
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test for compassionate release. See United States v. Saldana, — F. App’x —, 2020 WL
1486892, at *4 (10th Cir. 2020) (“[O]ur cases require the movant to show that §
3582(c) authorizes relief for the court to have jurisdiction.”); see also United States v.
Heromin, No. 11-550, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019) (citing United
States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013)). As the terminology in the
statute makes clear, compassionate release is “rare” and “extraordinary.” See United
States v. Willis, No. 15-3764, 2019 WL 2403192, at *3 (D.N.M. June 7, 2019) (citations
omitted).
B. BOP’s response to the COVID-19 pandemic.
For the benefit of the Court, an initial statement regarding the COVID-19
situation is warranted. Putting aside the ultimate untimeliness of Winner’s motion,
the Government is certainly sensitive to the issues presented by the COVID-19
pandemic, and, along with BOP, is monitoring the situation constantly. The
Government does not minimize the concern or the risk. BOP has taken aggressive
action to mitigate the danger and is taking careful steps to protect inmates’ and BOP
staff members’ health. As the situation changes, BOP will continue take action to
attempt to protect all inmates and staff members, including those who may be more
susceptible to adverse results due to age and existing ailments. Inmates will receive
equal and fair consideration based on their facility, health concerns, and other
applicable factors as the situation evolves.
BOP began planning for potential coronavirus transmissions in January 2020.
At that time, the agency established a working group to develop policies in

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consultation with subject matter experts in the Centers for Disease Control (CDC),
including by reviewing guidance from the World Health Organization (WHO).
On March 13, 2020, BOP announced that it was implementing the Coronavirus
(COVID 19) Phase Two Action Plan (“Action Plan”) in order to minimize the risk of
COVID-19 transmission into and inside its facilities. The Action Plan comprises
several preventive and mitigation measures, including screening staff and all new
BOP inmates and quarantining where appropriate; suspending volunteer access;
restricting contractor access to BOP facilities except for essential services; assessing
stockpiles of food, medicine and sanitation supplies; establishing quarantine areas;
placing a 30-day hold on all social visits but increasing detainees’ telephone allowance
to 500 minutes per month; placing a 30-day hold on legal visits except on a case-bycase basis where the attorney will be first screened for infection; stopping of inmates
between facilities for at least 30 days (exceptions for medical treatment and other
exigencies); canceling staff travel and training; and requiring wardens at BOP
facilities to modify operations to maximize social distancing, such as staggering meal
and recreation times.
On March 18, 2020, the BOP implemented the Phase Three Action Plan for
locations that perform administrative services, which followed Department of Justice
(DOJ), Office of Management and Budget (OMB) and Office of Personnel
Management (OPM). On March 26, 2020, the BOP implemented the Phase Four
Action Plan, which revised preventive measures for all institutions by updating its
quarantine and isolation procedures to require all newly admitted inmates to BOP,

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whether in a sustained community transition area or not, be assessed using a
screening tool and temperature check. These procedures apply to all new intakes,
detainees, commitments, writ returns from judicial proceedings, and parole violators,
regardless of their method of arrival. In addition, asymptomatic inmates are placed
in quarantine for a minimum of 14 days or until cleared by medical staff.
Symptomatic inmates are placed in isolation until they test negative for COVID-19
or are cleared by medical staff as meeting CDC criteria for release from isolation.
Effective April 1, 2020, BOP implemented the Phase Five Action Plan in
response to a growing number of quarantine and isolation cases, to further mitigate
the risk of exposure and spread of COVID-19. Phase Five provides that: (1) for a 14day period, inmates in every institution were secured in their assigned cells/quarters
to decrease the spread of the virus based on health concerns; and (2) BOP would
coordinate with the United States Marshals Service (USMS) to significantly decrease
incoming movement. 3

On April 13, 2020, the Director of BOP ordered the

implementation of Phase 6, which extended all measures from Phase 5 until May 18,
2020.
In addition, on March 26, 2020, the Attorney General directed the Director of
BOP, upon considering the totality of the circumstances concerning each inmate, to
prioritize the use of statutory authority to place prisoners in home confinement. That
authority includes the ability to place an inmate in home confinement during the last
Further details regarding these efforts are available at:
https://www.bop.gov/resources/news/20200313_covid-19.jsp and at a regularly
updated resource page: https://www.bop.gov/coronavirus/index.jsp.
3

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six months or 10% of a sentence, whichever is shorter, see 18 U.S.C. § 3624(c)(2), and
to move to home confinement those elderly and terminally ill inmates specified in 34
U.S.C. § 60541(g). Further, Section 12003(b)(2) of the Coronavirus Aid, Relief, and
Economic Security Act (“CARES Act”), Pub. L. No. 116-136, enacted on March 27,
2020, permits BOP, if the Attorney General finds that emergency conditions will
materially affect the functioning of the BOP, to “lengthen the maximum amount of
time for which the Director is authorized to place a prisoner in home confinement
under the first sentence of section 3624(c)(2) of title 18, United States Code, as the
Director determines appropriate.” On April 3, 2020, the Attorney General issued a
memorandum directing BOP to “immediately maximize appropriate transfers to
home confinement of all appropriate inmates held at FCI Oakdale, FCI Danbury, FCI
Elkton, and at other similarly situated BOP facilities where COVID-19 is materially
affecting operations.” See Memorandum from the Attorney General to the Director of
the

Bureau

of

Prisons

(Apr.

3,

2020),

available

at

https://www.justice.gov/file/1266661/download (last visited Apr. 6, 2020). As a result,
BOP implemented the Attorney General’s directive. See Update on COVID-10 and
Home Confinement: BOP continuing to aggressively screen potential inmates,
available at https://www.bop.gov/resources/news/20200405_covid19_home_
confinement.jsp (last visited Apr. 13, 2020). BOP has increased home confinement by
over 40 percent since March and has further increased its screening under the
Attorney General’s memo. See id. As part of this process, BOP is screening and
reviewing all inmates automatically to determine which ones meet the criteria

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established by the Attorney General, meaning prisoners do not have to apply to be
considered for home confinement. See id. Based on the Attorney General’s directive,
BOP has placed an additional 1,280 inmates on home confinement so far. See
https://www.bop.gov/coronavirus/index.jsp (last visited Apr. 20, 2020).
Taken together, these measures are designed to sharply mitigate the risks of
COVID-19 transmission in a BOP institution, and reflect a careful, evidence-based
approach that not only provides an overall strategy, but also allows BOP to respond
to the specific challenges faced by particular facilities and inmates. BOP professionals
will continue to monitor this situation and adjust its practices as necessary to
maintain the safety of prison staff and inmates while also fulfilling its mandate of
incarcerating all persons sentenced or detained based on judicial orders. Accordingly,
the Government does not advocate action by judges in individual cases that do not
involve immediate risk to that particular inmate.
C. Winner did not demonstrate
administrative remedies.

that she

first

exhausted

her

1. Winner admits that 30 days has not passed since she allegedly
filed her initial request for release with BOP.
In this case, Winner’s request for compassionate release should be dismissed
because she has not established that she fully exhausted all administrative rights to
appeal a failure of the BOP to bring a motion on her behalf, or that 30 days have
lapsed from the receipt of such a request by the warden of Winner’s facility. The risk
that COVID-19 presents generally is well acknowledged, but BOP has an effective
administrative process in place to determine how best to respond to the risk each

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individual inmate faces. Just like any other situation, the exhaustion requirement
allows BOP to apply that process in a timely, professionally, orderly and fair manner,
without giving preferential treatment to inmates who prematurely rush to the courts.
As discussed below, courts have already emphasized the requirement for inmates to
go through the BOP process first before seeking judicial remedies.
In her motion, Winner admits that she has not exhausted her administrative
remedies with BOP. 4 (Doc. 341-1 at 4.) This admission alone establishes that this
Court currently is without jurisdiction and must dismiss her motion. See United
States v. Raia, No. 20-1033, slip op. at 7 (3d Cir. Apr. 8, 2020), available at
https://www2.ca3.uscourts.gov/opinarch/201033pa.pdf (last visited Apr. 9, 2020) (“As
noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has
not had thirty days to consider Raia’s request to move for compassionate release on
his behalf, and there has been no adverse decision by BOP for Raia to
administratively exhaust within that time period . . . .”); see also United States v.
Dowlings, No. CR 413-171, 2019 WL 4803280, at *1 (S.D. Ga. Sept. 30, 2019)
(“Defendant has not shown that he requested compassionate release from the Bureau
of Prisons or exhausted his administrative remedies.”); United States v. Estrada
Elias, No. 06-96, 2019 WL 2193856, at *2 (E.D. Ky. May 21, 2019) (“The present

Winner claims that she submitted a written request to the Warden of FMC
Carswell on April 8, 2020. She has not submitted any documentation with her motion
supporting this claim. Legal counsel for FMC Carswell has inquired with the social
worker responsible for reviewing all of the institution’s compassionate release
requests, and as of April 20, 2020, BOP has not yet received any reduction-insentence (RIS) request from Winner.
4

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motion is not brought by the Director of the Bureau of Prisons and it does not appear
that Elias has exhausted his administrative remedies. . . . Accordingly, his request
for compassionate release will be denied.”).
In Raia, the defendant argued that he faced a “heightened risk of serious
illness or death from the [COVID-19] virus” because he was 68-years old and suffered
from Parkinson’s Disease, diabetes and heart problems. See Raia, No. 20-1033, slip
op. at 5. The Third Circuit recently explained, despite this, that it would be futile to
remand the defendant’s compassionate release issue back to the district court because
he had not yet exhausted his administrative remedies. See id. at 7. As particularly
relevant in this case, the Court of Appeals emphasized:
We do not mean to minimize the risks that COVID-19 poses in the
federal prison system, particularly for inmates like Raia. But the mere
existence of COVID-19 in society and the possibility that it may spread
to a particular prison alone cannot independently justify compassionate
release, especially considering BOP’s statutory role, and its extensive
and professional efforts to curtail the virus’s spread.
Id. at 8.
Other courts have applied similar reasoning in enforcing the exhaustion
requirement and in denying motions for compassionate release based on general
COVID-19 allegations. See United States v. Gagne, No. 3:18-cr-242 (VLB), 2020 WL
1640152, at *4 (D. Con. Apr. 2, 2020) (denying compassionate release motion, where
defendant filed supplemental briefing on risk of complications from COVID-19,
because she did not exhaust administrative remedies did not present “information to
show that her specific medical conditions, medications, and conditions of confinement
at FCI Danbury are inclined to uniquely and adversely affect her to the degree
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sufficient to establish ‘extraordinary and compelling’ reasons”); United States v.
Clark, No. 17-85-SDD-RLB, 2020 WL 1557397, at *5 (M.D. La. Apr. 1, 2020)
(“Defendant has failed to exhaust his administrative remedies as required by the
statute. Further, Defendant has failed to demonstrate extraordinary and compelling
reasons for a sentence modification, and there is no evidence before the Court that
the BOP’s plan to address the pandemic will not adequately protect inmates.”);
United States v. Garza, No. 18-CR-1745-BAS, 2020 WL 1485782, at *2 (S.D. Cal. Mar.
27, 2020) (“[I]ssues such as Mr. Garza’s medical condition, the conditions and
resources at Terminal Island (including the availability of testing and treatment),
and decisions as to which prisoners should be released because of the COVID-19
epidemic are better left to the Bureau of Prisons and its institutional expertise.”);
United States v. Eberhart, No. 13-cr-00313-PJH-1, 2020 WL 1450745, at *2 (N.D. Cal.
Mar. 25, 2020) (“General concerns about possible exposure to COVID-19 do not meet
the criteria for extraordinary and compelling reasons for a reduction in sentence set
forth in the Sentencing Commission’s policy statement on compassionate release,
U.S.S.G. § 1B1.13.”); United States v. Gileno, No. , 2020 WL 1307108, at *4 (D. Conn.
Mar. 19, 2020) (“With regard to the COVID-19 pandemic, Mr. Gileno has also not
shown that the plan proposed by the Bureau of Prisons is inadequate to manage the
pandemic within Mr. Gileno’s correctional facility, or that the facility is specifically
unable to adequately treat Mr. Gileno.”).
As in the cases cited above, Winner’s motion is premature. If she filed a
request with BOP (which so far has not been verified), it was filed on April 8, 2020,

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at the earliest. Thirty days have not passed since Winner allegedly made that
administrative request. Accordingly, Winner has not exhausted her administrative
remedies in this regard, as required under the statute, and this Court is without
jurisdiction to grant compassionate release on this basis.
2. Section 3582(c) is jurisdictional with no judicial exception.
Nonetheless, Winner argues that—despite the statutory language that the
district court can reduce a sentence “upon the motion of the defendant after the
defendant has fully exhausted all administrative rights”—this Court may still
consider her motion. As reflected in the decisions cited above, Winner is incorrect.
Prior to the First Step Act, the Eleventh Circuit held that a district court was
without jurisdiction to consider a compassionate release motion under 18 U.S.C. §
3582(c)(1)(A) unless the Director of BOP first filed it on the defendant’s behalf. See
Cruz-Pagan v. Warden, FCC Coleman-Lowe, 486 F. App’x 77, 79 (11th Cir. 2012)
(“The plan meaning of this section requires a motion by the Director as a condition
precedent to the district court before it can reduce a term of imprisonment. The BOP
has not made a motion on Cruz’ behalf. Accordingly, we do not have the authority to
modify his sentence under § 3582(c)(1)(A).”). The First Step Act modified §
3582(c)(1)(A) to allow prisoners to file their own motions, but it still required that
BOP conduct the first level of analysis of the defendant’s request through the
administrative process. See 18 U.S.C. § 3582(c)(1)(A). Nothing in the First Step Act’s
amendments to the statute altered this jurisdictional requirement—it simply

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modified the condition precedent requirement in light of allowing defendants the
option of filing their own § 3582(c)(1)(A) motions.
Given the plain language and purpose of § 3582(c)(1)(A), the requirements for
filing a sentence reduction motion—including the requirement that a defendant
exhaust administrative remedies or wait 30 days before moving in court for
compassionate release—are properly viewed as jurisdictional. Section 3582(c) states
that a “court may not modify” a term of imprisonment except in enumerated
circumstances. 18 U.S.C. § 3582(c). It thus “speak[s] to the power of the court rather
than to the rights or obligations of the parties,” Landgraf v. USI Film Prods., 511
U.S. 244, 274 (1994) (citation omitted), delineating “when, and under what
conditions,” a court may exercise its “‘adjudicatory authority,’” Bowles v. Russell, 551
U.S. 205, 212-13 (2007) (quoting Eberhart v. United States, 546 U.S. 12, 16 (2005)
(per curiam)). That conclusion is reinforced by courts’ historical lack of authority to
modify a sentence after the expiration of the term at which it was entered. See United
States v. Mayer, 235 U.S. 55, 67-69 (1914); United States v. Welty, 426 F.2d 615, 617618 & n.8 (3d Cir. 1970) (explaining at common law court could not alter or set aside
judgment after court’s term ended, but that Fed. R. Crim. P. changed this to allow
sentence reduction in certain circumstances). Section 3582(c) accordingly has been
understood as conferring upon courts the jurisdictional authority that they previously
lacked to modify otherwise final sentences under specific circumstances. 5 See, e.g.,

As discussed above with respect to Raia and other recent COVID-19 related
case, the time limitation in § 3582(c)(1)(A) is technically a jurisdictional requirement,
given that it stands as an exception to the historic and fundamental rule that courts
5

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United States v. Mills, 613 F.3d 1070, 1078 (11th Cir. 2010) (“The law is clear that a
sentencing court lacks jurisdiction to consider a § 3582(c)(2) motion, even when an
amendment would lower the defendant’s otherwise-applicable Guidelines sentencing
range, when the defendant was sentenced on the basis of a mandatory minimum.”).
Winner’s claim that this Court may ignore the exhaustion requirement in light
of the COVID-19 pandemic is incorrect. While judicially created exhaustion
requirements may sometimes be excused, it is well settled that a court may not ignore
a statutory command such as that presented in § 3582(c)(1)(A). The Supreme Court
recently reaffirmed this principle in Ross v. Blake, 136 S. Ct. 1850 (2016), where the
Court rejected a judicially created “special circumstances” exception to the
exhaustion requirement stated in the Prison Litigation Reform Act of 1995 (PLRA).
That Act mandates that an inmate exhaust “such administrative remedies as are
available” before bringing suit to challenge prison conditions. 42 U.S.C. § 1997e(a).
Rejecting the “freewheeling approach” adopted by some appeal courts, under which
some prisoners were permitted to pursue litigation even when they had failed to
exhaust available administrative remedies, Ross, 136 S. Ct. at 1855, the Court

may not revisit a final criminal judgment, the point is ultimately academic. Even if
the exhaustion requirement of § 3582(c)(1)(A) is not jurisdictional, it is at least a
mandatory claim-processing rule and must be enforced if a party “properly raise[s]”
it. See Eberhart, 546 U.S. at 19. Indeed, even those courts that have concluded that
the requirements of Section 3582(c)(2) are not jurisdictional still enforce the statutory
prerequisites to relief. See, e.g., United States v. Taylor, 778 F.3d 667, 670 (7th Cir.
2015) (recognizing that even if court has the “power to adjudicate” a motion under §
3582(c)(2), it may lack “authority to grant a motion . . . because the statutory criteria
are not met” (emphasis in original)). The Government has properly raised the rule
here, and it must be enforced.
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demanded fidelity to the statutory text, explaining that the “mandatory language” of
the exhaustion requirement “means a court may not excuse a failure to exhaust” even
to accommodate exceptional circumstances, id. at 1856. The Supreme Court
explained that, under a statutory exhaustion provision, “Congress sets the rules—
and courts have a role in creating exceptions only if Congress wants them to. For that
reason, mandatory exhaustion statutes like the PLRA establish mandatory
exhaustion regimes, foreclosing judicial discretion.” Id. at 1857.
That rule plainly applies to the statutory text here. Section 3582(c)(1)(A)
unambiguously permits a motion to the Court only “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.” 6
Defendants in some cases have suggested that the exhaustion requirement of
§ 3582(c)(1)(A) may be excused by a court as “futile” during the present pandemic.
There is, however, no “futility” exception to § 3582(c)(1)(A)’s requirement, and the
Supreme Court has made clear that courts have no authority to invent an exception
to a statutory exhaustion requirement. Thus, in United States v. Perez, — F. Supp.
3d —, 2020 WL 1546422 (S.D.N.Y. Apr. 1, 2020), contrary to the above analysis, that
court incorrectly excused exhaustion of a claim based on COVID-19 as “futile,” relying

Unlike the exhaustion provision in Ross, which required only exhaustion of
“available” administrative remedies, 136 S. Ct. at 1858, the compassionate release
statute contains no such exception.
6

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only on Washington v. Barr, 925 F.3d 109, 118 (2d Cir. 2019), which addressed a
judicially-created (rather than statutory) exhaustion requirement to 21 U.S.C. §
811(a) (relating to the classification of drugs under the Controlled Substances Act).
And in any event, a request in this context is not futile, because, as explained further
below, BOP fully considers requests for compassionate release. Indeed, BOP often
concurs with such requests. During the period from the passage of the First Step Act
on December 21, 2018, until mid-March 2020 (before the coronavirus crisis began),
BOP consented to a reduction in sentence in 55 cases.
The requirement of a 30-day period to afford BOP the initial review of the
defendant’s request, therefore, cannot be excused. Congress enacted specific
measures in the First Step Act to expand the availability of compassionate release,
and it expressly imposed on inmates the requirement of initial resort to BOP’s
administrative remedies. This is for good reason: the BOP conducts an extensive
assessment for such requests. See 28 C.F.R. § 571.62(a); BOP Program Statement
5050.50. 7 As PS 5050.50 reflects, BOP completes a diligent and thorough review,
with considerable expertise concerning both the inmate and the conditions of
confinement. Its assessment will always be of value to the parties and the Court.
This remains true under the present circumstances. Concerns related to
COVID-19 are serious and must be evaluated by experts based on facts specific to a
particular inmate. As outlined above, BOP and the Attorney General have taken

Program Statement 5050.50 is available at https://www.bop.gov/policy/
progstat/5050_050_EN.pdf, amended effective January 17, 2019 in response to the
First Step Act. It is hereafter referred to as “PS 5050.50.”
7

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significant measures in an effort to protect inmates’ health. The appropriate response
to the pandemic is not to remove BOP from the review process. Rather, based on
BOP’s access to expertise and facts, BOP is best positioned to determine the proper
treatment of the inmate population as a whole, to identify issues at specific facilities,
and to make the first evaluation of a particular inmate’s request. Given the scope of
the COVID-19 pandemic, the different conditions in different BOP facilities, the
particular medical situations of each inmate, and other factors, Congress’ decision to
prioritize administrative review, therefore, is at least as compelling now as it would
be under ordinary circumstances. As the Third Circuit stated, “[g]iven BOP’s shared
desire for a safe and healthy prison environment, we conclude that strict compliance
with § 3582(c)(1)(A)’s exhaustion requirement takes on added—and critical—
importance.” Raia, slip op. at 8. Thus, even if this Court could ignore the mandatory
exhaustion requirement, which it cannot, it would be imprudent to prevent BOP from
engaging in that review.
D. Winner has not alleged a qualifying medical condition.
Even if this Court were to find that Winner is not required to first exhaust her
administrative remedies, she has still not alleged a medical condition that qualifies
as an “extraordinary and compelling reason” for compassionate release under §
3582(c)(1)(A) and U.S.S.G. § 1B1.13. Rather, she contends that her bulimia and
depression make her susceptible to COVID-19 and those conditions are exacerbated
by the measures BOP has implemented to protect inmates and staff members from

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infection. 8 Notably, those arguments contradict each other—Winner argues that she
should be released both on her purported risk and on the steps BOP has taken to
protect her. In any event, her arguments are insufficient. The statute and the
Guidelines commentary make clear that compassionate release for extraordinary and
compelling reasons is limited to medical, elderly, or family circumstances. See
Saldana, 2020 WL 1486892, at *3-*4 (where defendant argued for compassionate
release based on his claim he was no longer a guidelines career offender based on new
caselaw, holding court did not have jurisdiction to release because that claim did not
satisfied one of the specific categories of § 3582(c)). Winner’s bulimia and depression
were the basis of this Court’s recommendation, which BOP accepted, to commit her
to Carswell FMC. They are not, though, among the physical or mental conditions so
serious that they qualify for compassionate release under the statute and associated
guidelines and policy. Because Winner fails to allege any qualifying medical reasons,
this Court should dismiss his motion.
As noted above, once all the conditions precedent have been met, the First Step
Act amended 18 U.S.C. § 3582(c)(1)(A) allows a district court to modify a term of
imprisonment if it finds “extraordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent with applicable policy statements

At one point, Winner claims that she “signed up to serve her sentence under
the care, custody, and safety of the Bureau of Prisons—she did not agree (nor did this
Court require her) to be confined to an institution that was caught unprepared for
this virus . . . .” (Doc. 341-1 at 2.) Not only does the Government dispute this
characterization of BOP’s response, Winner forgets that her situation is not the same
as walking into the Air Force recruiter’s office to join the military—she signed up to
serve her sentence with BOP when she violated her oath and broke the law.
8

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issued by the Sentencing Commission . . . .” Title 28, United States Code, Section
994(t) provides the authority for the Sentencing Commission to define the meaning
of “extraordinary and compelling reasons” under § 3582(c)(1)(A). Section 994(t)
explicitly states that “[r]ehabilitation of the defendant alone shall not be considered
an extraordinary and compelling reason.” U.S.S.G. § 1B1.13, application note 1,
defines “extraordinary and compelling reasons” to encompass three categories: (1)
medical condition of the defendant, (2) age of the defendant, and (3) family
circumstances.
A fourth category, “other reasons” is left specifically to the determination of
the Director of BOP. See U.S.S.G. § 1B1.13, app. n. 1(D). As such, under the plain
language of § 1B1.13, the district court is without authority to determine “other
extraordinary and compelling reasons” outside of the situations in application note 1
(A) through (C). However, recognizing the discretion given to BOP under subsection
(D), the court also may look to the grounds set forth in the relevant BOP regulation
governing compassionate release. See PS 5050.50; see also United States v. Lynn, No.
89-72, 2019 WL 3805349, at *3 (S.D. Ala. Aug. 13, 2019) (disagreeing that under the
First Step Act, court may include, under U.S.S.G. § 1B1.13, app. n.1(D), additional
extraordinary and compelling reasons apart from BOP’s determination). While BOP’s
regulations may provide more detail regarding implementation of the grounds
contained in application note 1 (A) through (C), they still limit “extraordinary or
compelling circumstances” to specific medical circumstances, elderly inmates (either
70 years old with 30 years or more of service, or 65 years old with qualifying medical

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conditions), death or incapacitation of the family-member caregiver, or incapacitation
of a spouse or registered partner. See PS 5050.50 at 3-12.
Winner bears the burden of meeting the criteria set forth above. She has not
alleged any qualifying medical condition. She does not claim that she is suffering from
a terminal illness; she is not 65 years old; she makes no claim regarding the death or
the incapacitation of the caregiver of any minor children; and does not claim that she
would be the only available caregiver for an incapacitated spouse or registered
partner. See § 1B1.13, app. n.1(C)(i)-(ii). Moreover, none of her stated reasons are
extraordinary or compelling under BOP’s regulations. See PS 5050.50 at 3-19.
U.S.S.G. § 1B1.13, app. n.1(A)(ii) also does not cover Winner’s situation. The
application note applies to defendants who suffer from a serious physical or medical
condition, or from a serious functional or cognitive impairment, but only if that
condition “substantially diminishes the ability of the defendant to provide self-care
within the environment of a correctional facility” and the defendant “is not expected
to recover” from the condition. Id. Winner does not allege, and does not provide
evidentiary support, that her bulimia and depression are so serious that she is unable
to provide self-care within the environment of a correctional facility. Not being able
to exercise or eat how she would like does not qualify as “unable to provide self-care.”
Recognizing that her conditions were the basis of this Court’s recommendation that
she be incarcerated at Carswell FMC, the circumstances she describes do not rise to
the level of being “unable to provide self-care.” Further, she has not established that
she is not expected to recover from her conditions. In the end, Winner’s failure to

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allege a qualifying medical condition or qualifying family reason is fatal to her claim.
See Saldana, 2020 WL 1486892, at *3-*4; see also Bryant, No. 497-182 (S.D. Ga. Oct.
2, 2019) (order denying motion for compassionate release based on reasons stated in
government’s response, including that defendant failed to allege qualifying medical
condition).
Winner, though, argues that after passage of the First Step Act, subsection D
of application note 1 is in conflict with the statute, and that, instead, district courts
now have the authority to determine other reasons that qualify as extraordinary and
compelling under the statute and guideline. Indeed, and perhaps unsurprisingly,
some district courts have agreed with this argument. See United States v.
Willingham, No. CR 113-010, 2019 WL 6733028, at *2 (S.D. Ga. Dec. 10, 2019)
(outlining cases). But no court in this district has adopted this approach. To the
contrary, those to consider this argument have rejected it. See id.; see also United
States v. Bryant, No. CR 497-182 (S.D. Ga. Oct. 2, 2019) (denying compassionate
release where defendant argued after First Step Act court had authority to determine
its own extraordinary and compelling reasons). Recently, the Tenth Circuit rejected
a defendant’s argument that “extraordinary and compelling reasons” included a claim
that he was no longer a career offender based on new caselaw. See Saldana, 2020 WL
1486892, at *3-*4. That court held the district court lacked jurisdiction to consider
defendant’s compassionate release motion because he was “unable to show that he
satisfies ‘one of the specific categories authorized by section 3582(c) . . . .” Id. at *3.
See also United States v. Ebbers, — F. Supp. 3d —, 2020 WL 91399, at *4 (S.D.N.Y.

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2020) (“The First Step Act did not revise the substantive criteria for compassionate
release. . . . Congress in fact only expanded access to the courts; it did not change the
standard. . . . Thus, U.S.S.G. § 1B1.13’s descriptions of ‘extraordinary and compelling
reasons’ remain current, even if references to the identity of the moving party are
not.”).
It is not difficult to see the problematic effects of Winner’s interpretation. For
example, in 28 U.S.C. § 994(t), Congress specifically delegated to the Sentencing
Commission to define “extraordinary and compelling reasons” for purposes of 18
U.S.C. § 3582(c)(1)(A). See Ebbers, 2020 WL 91399, at *4. The Guidelines specifically
allow for compassionate release of an individual who is at least 70 years old, has
served 30 years in prison, and is no longer a danger to others or the community, as
long as a reduction is consistent with the policy statement. See U.S.S.G. §
1B1.13(1)(B). Under Winner’s interpretation, a district court, claiming authority
under a judicially-revised § 1B1.13, app. n.1(D), could ignore this and still grant
compassionate release to that person, even if they failed to meet that criteria. The
same can be said for anyone who would otherwise not qualify under subsections (A)
through (C) of the application note 1. But that would then put that court’s
determination of “extraordinary and compelling” in conflict with the Sentencing
Guidelines policy, an outcome which is prohibited. See United States v. Nasirun, No.
99-367, 2020 WL 686030, at *2 (M.D. Fla. Feb. 11, 2020) (“[W]hile the First Step Act
authorizes a court to reduce a term of imprisonment under § 3582(c)(1)(A) on motion
of a defendant based on ‘extraordinary and compelling’ reasons, any reduction must

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be consistent with the policy statements of the Sentencing Commission.”). Therefore,
because Winner fails to establish that she suffers from a qualifying medical condition,
this Court should dismiss her motion.
E. Alternatively, this Court should exercise its discretion and decline
to grant Winner’s motion for compassionate release.
Even if this Court were to find that it has jurisdiction to consider Winner’s
compassionate release, it should exercise its discretion and decline to grant it. See 18
U.S.C. § 3582(c)(1)(A) (explaining court “may reduce the term of imprisonment”); see
also United States v. Webster, No. 3:91CR138 (DJN), 2020 WL 618828, at *5 (E.D. Va.
Feb. 10, 2020) (“Even if a defendant meets the eligibility criteria for compassionate
release, the Court retains discretion over whether to grant that relief.”). In making
this determination, the district court must determine that “[t]he defendant is not a
danger to the safety of any other person or to the community, as provided in 18 U.S.C.
§ 3142(g) . . . .” U.S.S.G. § 1B1.13(2). This includes considering the person’s character,
physical and mental condition; their past conduct; their criminal history; and
whether, at the time of the offense, the person was on probation or parole. See 18
U.S.C. § 3142(g)(3). Moreover, the court must consider “the nature and seriousness
of the danger to any person or the community that would be posed by the person’s
release.” Id. § 3142(g)(4). Should the district court conclude the defendant does not
pose a danger to any person or the community, it must then continue to evaluate the
factors under § 3553(a). See 18 U.S.C. § 3582(c)(1)(A); United States v. Willingham,
No. CR 113-010, 2019 WL 6733028, at *1 (S.D. Ga. Dec. 10, 2019).

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Winner has the burden to show she qualifies for compassionate release, and
she has not provided any documentation demonstrating that her specific medical
conditions, medications, and conditions of confinement at Carswell FMC are inclined
to uniquely and adversely affect her to the point of justifying early release. 9
Moreover, Winner has not demonstrated (as is her burden) that BOP’s COVID-19
plan is inadequate or that Carswell FMC is specifically unable to adequately treat
her (presumably, as a federal medical center, Carswell is particularly well situated
to treat Winner, should she become exposed). As of April 19, 2020, Carswell FMC
reported that two inmates and no staff members had testified positive for COVID19. 10 Here, Winner is not being treated any differently than any other inmate, and
she has not shown that BOP cannot adequately address any potential medical issues

9 Her

bulimia and mental health issues were known at the time of sentencing.
(PSR ¶¶ 48, 53.) Although U.S.S.G. § 1B1.13 states that “the fact that an
extraordinary and compelling reason reasonably could have been known or
anticipated by the sentencing court does not preclude consideration for a reduction
under this policy statement,” courts recognize that reasonable foreseeability is still a
factor to consider in whether to reduce a sentence. See, e.g., United States v. Lake,
No. 16-76, 2019 U.S. Dist. LEXIS 148003, at *9 (E.D. Ky. Aug. 30, 2019) (“The purpose
of compassionate release is to reduce a term of imprisonment for extraordinary or
compelling circumstances that could not have reasonably been foreseen at the time
of sentencing.”).
10 BOP

COVID-19 resource page available at https://www.bop.gov/coronavirus/
index.jsp (last visited Apr. 20, 2020). BOP has also informed the Government that
the two individuals at Carswell FMC that tested positive had been purposely
transferred to the facility and immediately quarantined; they were never in the
general population at Carswell FMC. As of April 19, 2020, 495 inmates and 309 BOP
staff members nationwide have tested positive. See id. One-hundred-fifty-five
inmates and twenty-nine staff members have recovered. See id. BOP has reported
COVID-19 related deaths at FCI Elkton (6), FCI Oakdale (7), Butner Medium I FCI
(5), Terminal Island FCI (2), Danbury FCI (1) and Lompoc USP (1). See id.
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she faces during this period. Because Winner has not demonstrated how COVID-19
specifically affects her, apart from pure speculation, nor shown that BOP’s plan is
inadequate, nor established that Carswell FMC is unable to adequately treat her, her
request for compassionate release based on COVID-19 fails.
Conclusion
For the foregoing reasons, the United States respectfully requests that
Defendant’s motion for compassionate release (Doc. 341) be denied.
Respectfully submitted,
BOBBY L. CHRISTINE
UNITED STATES ATTORNEY
//s// Jennifer G. Solari________
Jennifer G. Solari
Assistant United States Attorney
//s// Justin G. Davids
Justin G. Davids
Assistant United States Attorney
Missouri Bar No. 57661
P.O. Box 8970
Savannah, Georgia 31412
(912) 652-4422

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CERTIFICATE OF SERVICE
This is to certify that I have on this day served all the parties in this case in
accordance with the notice of electronic filing (“NEF”) that was generated as a
result of electronic filing in this Court.
This April 20, 2020.
Respectfully submitted,
BOBBY L. CHRISTINE
UNITED STATES ATTORNEY
/s/ Justin G. Davids
Justin G. Davids
Assistant United States Attorney
Missouri Bar No. 57661
Post Office Box 8970
Savannah, Georgia 31412
(912) 652-4422