Case 1:89-cr-00072-WS Document 89 Filed 06/15/20 Page 1 of 7

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
UNITED STATES OF AMERICA
v.
RICHARD JOSEPH LYNN,
Defendant.

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CRIMINAL NO. 89-0072-WS

ORDER
The defendant has filed a motion for compassionate release. (Doc. 82). The parties have
filed briefs and evidentiary materials in support of their respective positions, (Docs. 85, 86, 88),1
and the motion is ripe for resolution.
A court “may reduce the term of imprisonment …, after considering the factors set forth
in 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 Sentencing Commission ….” 18 U.S.C. § 3582(c)(1)(A). Congress
tasked the Sentencing Commission with “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.” 28 U.S.C. § 994(t). The Sentencing Commission’s policy statement
identifies several circumstances under which extraordinary and compelling reasons for a
sentence reduction under Section 3582(c)(1)(A) exist:
Provided the defendant meets the requirements of subdivision (2), extraordinary
and compelling reasons exist under any of the circumstances set forth below:
…
(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.
U.S.S.G. 1B1.13 application note 1. The defendant bases his eligibility for compassionate
release on this provision.

1

The government’s motion to file the defendant’s medical records under seal, (Doc. 87),
is granted.

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Section 3582(c)(1)(A) permits a defendant to file a motion for compassionate release
after requesting the Bureau of Prisons (“BOP”), through the warden of the facility, to do so on
his behalf. The defendant made such a request on March 12, 2020, invoking both application
note 1(B) and the “other elderly inmates” provision of BOP’s Program Statement 5050.50.
(Doc. 82 at 33, 43). The warden denied the defendant’s request without considering application
note 1(B). (Doc. 86 at 42-43). The instant motion followed.
The government argues the motion should be dismissed for lack of jurisdiction because,
while the motion mentions COVID-19 as a factor favoring release under application note 1(B),
the request to BOP did not reference the pandemic. (Doc. 86 at 17-18). It may be questioned
why this circumstance should make any difference, given that the warden completely ignored
application note 1(B) when denying the defendant’s request and so disregarded all the
information he presented regarding his health.2 In any event, the Court has resolved the
defendant’s motion without any consideration of COVID-19. The government’s request for
dismissal of the motion, construed as a motion for such relief, is therefore denied.3
The defendant is 65 years old and therefore satisfies the first requirement of application
note 1(B). He has served over 30 years of his sentence and therefore satisfies the third
requirement.
As to the second requirement, the defendant’s medical records reveal a plethora of
ongoing medical issues, including high cholesterol, reflux, cervical disc degeneration, enlarged
prostate (benign), sleep apnea, high blood pressure, carpal tunnel syndrome, and various dental
issues. Taken together, these might not indicate a serious deterioration in physical health, but
there is much more.

2

The “other elderly inmates” section of the program statement, which the warden did
reference, does not address an inmate’s health.
3

The government asks the Court to follow United States v. Gray, 2020 WL 2132948
(S.D. Ala. 2020). As the government recognizes, the Gray Court resolved the defendant’s
motion “on the merits insofar as it raised the same facts and arguments included in her request to
BOP.” (Doc. 86 at 18). The Court does likewise.
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2

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First, the defendant was diagnosed in April 2019 with hypertensive retinopathy, a
diagnosis confirmed in April 2020. (Doc. 88 at 2, 88, 348).4 This condition “is typically caused
by prolonged high blood pressure which damages the retina’s blood vessels, limits the retina’s
function, and puts pressure on the optic nerve,” with symptoms including “reduced vision, eye
swelling, and double vision.” DiMarco v. Saul, 2020 WL 1692283 at *1 n.3 (S.D. Fla. 2020).
The presence of this condition is especially troubling because it indicates the defendant’s
longstanding hypertension is not in fact controlled, resulting in increased risk of stroke, heart
attack, and other profound health issues. A June 2018 clinical note affirms that the defendant’s
hypertension is difficult to control. (Doc. 88 at 275-76).
Second, the defendant has degenerative changes/osteoarthritis of the right knee, which as
of November 2019 was reflected in moderate patellofemoral compartment joint space narrowing,
resulting in chronic and worsening pain and swelling upon walking, significant audible clicking,
pain management by injection, and a prohibition on all sports activity. (Doc. 88 at 17-18, 96,
277).
Third, the defendant has atrial fibrillation. “Individuals with atrial fibrillation are at a
high risk of stroke and use blood thinners … to reduce the risk of stroke.” Utts v. Bristol-Myers
Squibb Co., 251 F. Supp. 3d 644, 652 n.2 (S.D.N.Y. 2017). The defendant is on a blood thinner
but, despite medication, he has been hospitalized three times for cardioversion to restore normal
heart function, most recently in June 2017. (Doc. 66-1 at 22-23).
Fourth, as of November 2019, the defendant has chronic kidney disease, stage 3
(moderate), up from stage 2 (mild) in June 2018. (Doc. 88 at 51, 70). The stage 3 diagnosis
“corresponds with a moderate decrease in renal function.” Hudson v. Astrue, 2009 WL 2762725
at 1 n.1 (D. Colo. 2009).
Finally, the defendant has coronary artery disease (“CAD”). After months of
complaining of episodes of chest pain, the defendant in July 2019 was found to have multiple
blockages of 80% and higher, resulting in multiple stents. As of January 2020, the defendant had
additional blockages, although none were greater than 50%. (Doc. 88 at 36, 92, 117-23, 272).
The defendant has presented the expert opinion of a cardiologist that the defendant’s
CAD is more extensive and severe than is typically seen in patients of his age. He will likely
4

No such finding was made at the defendant’s previous eye examination in November
2016. (Doc. 66-1 at 24).
[]
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require additional stents and/or coronary bypass surgery in the next few years, failing which he is
likely to suffer heart attacks, congestive heart failure, and ultimately death. The expert also notes
that the defendant’s chronic kidney disease is more severe than is typical of sexagenarians and
that it increases the risk of cardiovascular events such as heart attacks. The defendant’s atrial
fibrillation will likely recur, and his sleep apnea will likely worsen. (Doc. 85 at 7). The
government does not challenge this evidence.
The defendant’s medical records leave no question but that his physical health is
deteriorating, as they reflect that all the conditions addressed above have worsened over the past
two to three years. The government makes no argument to the contrary.5 Nor does the
government deny that this deterioration is serious, or that it is due to the aging process. Instead,
the government argues that the defendant must satisfy a fourth criterion, one found nowhere in
the Sentencing Commission’s policy statement.
BOP promulgated Program Statement 5050.50 to establish “procedures for
implementation of” Section 3582(c)(1)(A). With respect to inmates seeking release based on
age, BOP requires that the inmate’s deteriorating health “substantially diminishes their ability to
function in a correctional facility.” The government argues that the defendant is therefore
required to show the Court not only that he is “experiencing a serious deterioration in physical or
mental health because of the aging process” but also that “his condition substantially diminishes
his ability to function in a correctional facility.” (Doc. 86 at 31, 32).
According to the government, BOP’s insertion of a diminished-ability-to-function
requirement “interpret[s]” the statutory phrase, “extraordinary and compelling reasons.”
Because it is a “permissible construction” of the term, the government concludes that it “should
be given deference.” (Doc. 86 at 31-32). The problem is that Congress did not delegate to BOP
the task of defining “extraordinary and compelling reasons.” As noted above, Congress
identified the Sentencing Commission as the body charged with “describ[ing] what should be
considered extraordinary and compelling reasons for sentence reduction, including the criteria to
be applied ….” 28 U.S.C. § 994(t). The Sentencing Commission established those criteria in
application note 1, subdivisions (A), (B) and (C). Subdivision (D) sub-delegated to BOP the
5

The government asserts only that the defendant’s ability to care for himself in a prison
environment has not deteriorated in the eleven months since the Court denied the defendant’s
previous motion for compassionate release, which was based on application note 1(A)(ii). (Doc.
86 at 33).
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authority to identify additional extraordinary and compelling circumstances in a particular case,
and in that sphere BOP presumably may permissibly interpret the statutory phrase,
“extraordinary and compelling reasons.” However, nothing in subdivision (D) or anything else
brought to the Court’s attention authorizes BOP to re-write subdivisions (A) through (C) to insert
additional criteria for establishing an “extraordinary and compelling reason” beyond those the
Sentencing Commission elected to impose. The government offers no explanation or legal
authority in support of its contrary position, which the Court therefore declines to accept.
The government does not argue that BOP’s diminished-ability-to-function requirement
permissibly interprets application note 1(B) and should be given deference on that basis. Even
had it done so, the Court would disagree. Application note 1(A)(ii) identifies an extraordinary
and compelling circumstance for an inmate of any age as: “experiencing deteriorating physical
or mental health because of the aging process … that substantially diminishes the ability of the
defendant to provide self-care within the environment of a correctional facility ….” This shows
at least two things. First, the Sentencing Commission knew how to express a diminished-abilityto-function requirement, so that the absence of corresponding language from application note
1(B) must be viewed as a purposeful rejection of any such requirement.
Second, were the government’s view accepted, it would be more difficult for an elderly
inmate to be released due to the aging process than for a younger inmate. This is because, while
both would have to show deterioration in health due to the aging process that substantially
diminishes their ability to function in a prison environment, only the elderly inmate would also
have to show (1) that the deterioration was serious, and (2) that he had served ten years or 75%
of his sentence. It cannot easily be imagined that the Sentencing Commission intended it to be
easier for the young to obtain compassionate release due to aging than for the aged.
It seems clear that Program Statement 5050.50 is not designed to “interpret” the
Sentencing Commission’s policy statement with respect to application note 1(B). In addition to
its diminished-ability-to-function requirement, the program statement also requires that the
inmate “[h]ave served at least 50% of their sentence.” This requirement directly contradicts
application note 1(B), because that note expressly sets the threshold as the lesser of ten years or
75% of the sentence, which obviously can be met even if BOP’s 50% standard is not.6
6

For example, a defendant sentenced to 30 years would satisfy application note 1(B)
after serving ten years, but he could not satisfy the program statement until he served 15 years.
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It appears that the function of the program statement, at least as it relates to application
note 1, subdivisions (A) through (C), is not to interpret either the application note or Section
3582(c)(1)(A), but is instead to establish a different, higher standard that must be met before
BOP is willing to file a motion for compassionate release on behalf of an inmate.7 BOP may be
within its rights to establish such a rigorous internal standard, but its action alters neither the
language nor the construction of application note 1(B).
As noted, a reduction in sentence under Section 3582(c)(1)(A) must be “consistent with
applicable policy statements issued by the Sentencing Commission.” The Court concludes that
the defendant’s situation satisfies application note 1(B). The Sentencing Commission’s policy
statement includes the further requirement 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).” U.S.S.G. § 1B1.13(2).
The Court has evaluated the Section 3142(g) factors in light of the record and concludes the
defendant is not a danger to the safety of any other person or to the community. The government
advances no argument to the contrary.
Finally, Section 3582(c)(1)(A) requires the Court to consider the Section 3553(a) factors.
The Court has considered those factors in light of the record, including the nature and
circumstances of the offense and the history and characteristics of the defendant, and concludes
that the 30-plus years the defendant has served (the last 26 years of it spotless) is sufficient, but
not greater than necessary, to satisfy the purposes set forth in Section 3553(a). The
government’s arguments to the contrary, (Doc. 86 at 38-39), have been considered and rejected.
For the reasons set forth above, the defendant’s motion for compassionate release is
granted. The defendant’s sentence is reduced to time served, effective June 29, 2020. In all
other respects, the judgment entered December 15, 1989, (Doc. 41 at 16-23), remains in full
force and effect.

7

The program statement declares that “[a] motion for modification of a sentence will be
made to the sentencing court only in particularly extraordinary or compelling circumstances that
could not reasonably have been foreseen by the court at the time of sentencing.” Section
3582(c)(1)(A), however, requires only “extraordinary and compelling” circumstances, not
“particularly” extraordinary and compelling ones. And application note 2 explicitly states that
“an extraordinary and compelling reason need not have been unforeseen at the time of sentencing
in order to warrant a reduction in the term of imprisonment.”
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DONE and ORDERED this 15th day of June, 2020.
s/WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE 

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