USA v. Numann

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
GREGORY TODD NUMANN,
Defendant.
Case No. 3:16-cr-00025-TMB
ORDER ON DEFENDANT’S
EMERGENCY MOTION FOR
COMPASSIONATE RELEASE
UNDER 18 U.S.C. § 3582(c)(1)(A)
[DKT. 115]
I. 	INTRODUCTION
The matter comes before the Court on Defendant Gregory Todd Numann’s Emergency
Motion for Compassionate Release Under 18 U.S.C. § 3582(c)(1)(A) Filed on Shortened Time
(the “Motion”).1 The Government filed an Opposition and Defendant filed a Reply.2 The
Government’s Motion to Strike Reply is DENIED.3 As such, the Motion is fully briefed and ripe
for resolution. Defendant moved for a telephonic hearing on the Motion but the Court finds that
the matter is suitable for disposition without an evidence hearing or oral argument. For the reasons
discussed below, the Motion is DENIED.
1 Dkt. 115 (Motion).
2 Dkts. 117 (Opposition); 118 (Reply). Defendant filed the Reply without first seeking leave of the
Court, in violation of L.Crim.R. 47.1(d). However, because the Court had directed the Government
to respond to specific issues at Docket 116, Defendant should also be given the opportunity to
respond and the Court will accept Defendant’s Reply.
3 Dkt. 119 (Motion).
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II. 	BACKGROUND
On May 5, 2017, the Defendant pleaded guilty to one count of Receipt of Child
Pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1), and one count of Possession of
Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2).4 On June 7, 2018,
Defendant was sentenced to 240 months of imprisonment on Count 1 and 120 months of
imprisonment on Count 2, to be served concurrently, life terms of supervised release on both
counts, to be served concurrently, and a $200 special assessment.5 Defendant is serving his
sentence at Elkton FCI.6 The Court takes judicial notice that there is currently an outbreak of
coronavirus (“COVID-19”) at Elkton FCI.7
On April 16, 2020, Defendant filed the Motion citing extraordinary and compelling reasons
under § 3582(c)(1)(A) “to modify Mr. Numann’s term of imprisonment to permit Mr. Numann to
serve the remainder of his custodial sentence in strict home detention in order to protect him from
the spread of coronavirus (“COVID-19”).”8 While Defendant acknowledges the requirement to
first exhaust administrative remedies, he asks the Court to “consider administrative exhaustion to
be sufficiently attempted.”9 Defendant argues that his age (52 years old) and health conditions
(epilepsy, hyperthyroidism, and a history of smoking) could place him at higher risk if exposed to
4 Dkts. 45 (Minute Entry); 2 (Indictment).
5 Dkts. 89 (Minute Entry); 97 (Judgment).
6 Dkt. 115 at 1.
7 	Bureau 	of 	Prisons 	COVID-19 	Cases, 	https://www.bop.gov/coronavirus/ 	(last 	visited
Apr. 23, 2020).
8 Dkt. 115 at 2.
9 Id. at 3.
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COVID-19.10 Furthermore, Defendant argues that an unreasonable risk to COVID-19 contraction
constitutes an Eighth Amendment violation and failure to release him in light of such risk violates
his due process rights under the Fourteenth Amendment.11
In the Opposition, the Government argues that the Motion should be denied because
Defendant is not eligible for compassionate release and his constitutional claims are without
merit.12 As for Defendant’s eligibility under § 3582(c)(1)(A), the Government argues that
Defendant should not be considered for release for several reasons. First, the Government asserts
that Defendant is procedurally barred by the exhaustion requirement.13 Second, the Government
argues that Defendant’s concern for COVID-19 is not a cognizable basis for compassionate
release.14 Third, the Government analyzes Defendant’s dangerousness and § 3553(a) factors to
support his continued imprisonment.15 Turning to Defendant’s Eighth Amendment and Due
Process claims, the Government contends that the Bureau of Prisons (“BOP”) “has worked to
develop and implement systematic measures to prevent, reduce, and control the spread of COVID-
19 within prison facilities, and isolation and treatment plans for those who do become infected.”16
The Government argues that, in light of these measures, Defendant cannot show that the BOP has
10 Id. at 9‒10.
11 Id. at 11‒15.
12 Dkt. 117 at 6.
13 Id. at 7‒10.
14 Id. at 10‒13.
15 Id. at 13‒14.
16 Id. at 15.
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demonstrated deliberate indifference or failed to provide Defendant medical care under the Eighth
or Fourteenth Amendments.17
Defendant then filed a Reply to the Opposition, responding to the Government’s arguments
in turn.18 Defendant urges the Court to waive the exhaustion requirement and find that Defendant
is at great risk for contracting Covid-19 regardless of any medical conditions.19 Next, Defendant
contends that he can attend treatment if released from custody.20 Finally, Defendant argues that
BOP is not able to provide adequate care to inmates at Elkton FCI.21 Defendant again asks the
Court to grant the Motion.22
III. 	LEGAL STANDARD
The First Step Act (“FSA”) amended 18 U.S.C. § 3582(c)(1)(A) to allow a defendant to
move the district court for a reduction in sentence, i.e. compassionate release, after exhausting the
BOP’s administrative process.23 Then, after considering the applicable factors set forth in
§ 3553(a), the court may grant the motion if it finds that:
(i) extraordinary and compelling reasons warrant such a reduction; or
(ii) the defendant is at least 70 years of age, has served at least 30 years in prison,
pursuant to a sentence imposed under section 3559(c), for the offense or offenses
for which the defendant is currently imprisoned, and a determination has been made
17 Id. at 15‒18.
18 Dkt. 118.
19 Id. at 2‒4.
20 Id. at 4‒5.
21 Id. at 5.
22 Id. at 6.
23 See Pub. L. 115-391, 132 Stat. 5194, 5239 (2018);
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by the Director of the Bureau of Prisons that the defendant is not a danger to the
safety of any other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission.
The applicable policy statement, issued by the United States Sentencing Commission,
§ 1B1.13 of the United States Sentencing Guidelines Manual (“U.S.S.G.”), explains that
extraordinary and compelling reasons relate to a defendant’s medical conditions, age, or family
circumstances.24 Section 1B1.13 imposes an additional consideration of whether the defendant is
a danger to the safety of any other person or to the community.25
IV. 	ANALYSIS
In this case, Defendant is not necessarily seeking a reduction in sentence but rather a
modification of the manner in which he serves his sentence; Defendant seeks release from prison
to serve the remainder of his term in home confinement.26 While this type of relief is addressed by
other amendments in the FSA, it is not considered by § 3582(c)(1)(A), which specifically modifies
the length of custodial sentence.27 Nonetheless, Defendant does not meet the requirements for
compassionate release under 18 U.S.C. § 3582(c)(1)(A) because he has not exhausted his
administrative remedies and he does not meet the criteria for “extraordinary and compelling
24 U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.1 (U.S. Sentencing Comm’n 2018).
25 Id. § 1B1.13(2).
26 Dkt. 115 at 3, 15.
27 Compare 34 U.S.C. § 60541(g) (authorizing a pilot program in which elderly offenders and
terminally ill offenders may transfer from BOP facilities to home detention) with 18 U.S.C.
§ 3582(c)(1)(A) (permitting a court to “reduce the term of imprisonment” and impose a term of
probation or supervised release). See also United States v. Fuentes, Case No. 2:07-CR-0248-11
WBS, 2020 WL 1937398, *2 (E.D. Cal. Apr. 22, 2020) (“The court does not have the authority to
designate defendant’s place of confinement under normal circumstances, nor does it have the
authority during the COIVD-19 pandemic.”).
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reasons.” In addition, Defendant’s constitutional claims are not properly brought in this Motion or
before this Court.
A. 	Exhaustion of the BOP’s Administrative Process
Section 3582(c)(1)(A) confers authority to grant compassionate release motions to the
district court only after the defendant exhausts the BOP’s administrative process. “Exhaustion
occurs when the BOP denies a defendant’s application or lets thirty days pass without responding
to it.”28 Here, Defendant admits that he has not exhausted his administrative remedies: Defendant
filed a request with the Warden approximately one week before filing the present Motion.29
Defendant has neither received a decision from BOP nor allowed 30 days to pass.30 Despite
Defendant’s argument that time is of the essence, exhaustion is a threshold issue that Defendant
has failed to satisfy.31 Exhaustion of administrative remedies is of particular importance here
because the BOP holds exclusive authority to grant Defendant’s requested relief—transfer to home
confinement.
28 United States v. Mondaca, Case No.: 89-CR-0655 DMS, 2020 WL 1029024, at *2 (S.D. Cal.
Mar. 3, 2020) (internal quotations omitted).
29 Dkt. 115 at 3.
30 See Dkt. 117 at 2 (acknowledging the Warden has received Defendant’s request).
31 United States v. Hembry, Case No. 12-cr-00119-SI-1, 2020 WL 1821930, at *1 (N.D. Cal.
Apr. 10, 2020); United States v. Tomlinson, Case No. CR-18-08374-PCT-DWL, 2020 WL
1935522, *1 (D. AZ. Apr. 22, 2020). See also United States v. Raia, 954 F.3d 594 (3d Cir. 2020)
(lack of exhaustion “presents a glaring roadblock foreclosing compassionate release”); United
States v. Holden, Case No. 3:13-cr-00444-BR, 2020 WL 1673440, at *4‒10 (D. Or. Apr. 6, 2020)
(concluding “the administrative exhaustion provision of the FSA is mandatory; it is a statutorily-
created provision rather than a judicially-created provision; and the FSA does not include ‘its own
textual exception’ to the exhaustion provision”).
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B. 	The 18 U.S.C. § 3553(a) Factors
Furthermore, the § 3553(a) sentencing factors do not warrant a reduction of sentence in
this case. The Court had taken those factors into consideration when it imposed 20 years of
imprisonment to address the seriousness of the Defendant’s child pornography offenses, promote
respect for the law, deter Defendant and others, provide just punishment, and protect the public.32
To date, Defendant has served but a fraction of that sentence. Releasing him after less than 4 years
in custody is not consistent with the factors set forth in § 3553(a).
C. Extraordinary and Compelling Reasons
Notwithstanding Defendant’s failure to exhaust and the § 3553(a) factors, he also does not
meet the criteria considered to be “extraordinary and compelling reasons” for release. The relevant
section under USSG § 1B1.13 explains that “extraordinary and compelling reasons” exist when
the defendant is “suffering from a serious physical or medical condition.”33 To be sure, the Court
recognizes the serious health risks of COVID-19 and particularly how a defendant’s ability to
follow recommended self-care and public health guidance is substantially diminished by the
restrictions inherent to the federal prison system. However, the risks of COVID-19 have pervaded
all 	corners 	of 	society 	and 	the 	possibility 	of 	contraction 	does 	not 	independently 	justify
compassionate release.34
Here, Defendant does not allege that he is immuno-compromised or otherwise particularly
vulnerable to the effects of COVID-19. He states that his health conditions could raise his risks if
32 Dkt. 89.
33 U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.1(A)(ii)(I).
34 Raia, 954 F.3d at 597.
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exposed to COVID-19 and argues that he would be at risk absent any medical conditions.35
Defendant’s age and health conditions are not listed by the Center for Disease Control and
Prevention as known risk factors for COVID-19 complications.36 There is no evidence that
epilepsy or hypothyroidism make a person more susceptible to COVID-19.37 Despite the COVID-
19 outbreak, Defendant has not demonstrated extraordinary and compelling reasons to warrant his
release.
D. Danger to Others or the Community
Finally, a court must consider the “nature and seriousness of the danger to any person or
the community” that the defendant’s release would pose.38 Defendant briefly addresses this factor
by alleging that he has not reoffended.39 The Court does not find that persuasive. The nature of
Defendant’s convictions and his related conduct are extremely troubling and Defendant has failed
to present evidence or argument to convince the Court otherwise. Accordingly, the Court finds that
Defendant poses a danger to the community and he should not be released.
35 Dkts. 115 at 9; 118 at 4.
36 Center for Disease Control and Prevention, People Who Are at Higher Risk for Severe Illness,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html
(last visited Apr. 23, 2020).
37 	Epilepsy 	Foundation 	New 	England, 	In 	the 	News,
https://epilepsynewengland.org/news/coronavirus-information-for-people-affected-by-epilepsy-
in-new-england (last visited Apr. 23, 2020); American Thyroid Association, Novel Coronavirus
(COVID-19) and the Thyroid, https://www.thyroid.org/covid-19/coronavirus-frequently-asked-
questions/ (last visited Apr. 23, 2020).
38 U.S. Sentencing Guidelines Manual § 1B1.13(2) (citing 18 U.S.C. § 3142(g)).
39 Dkt. 118 at 5.
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E. 	Defendant’s Constitutional Claims
In addition to his arguments for compassionate release under § 3582(c)(1)(A), Defendant
asserts two grounds for relief based on constitutional claims.40 He argues that the current
conditions at Elkton FCI violate the Eighth and Fourteenth Amendments.41 Those claims—relating
to the manner and conditions of confinement—are not properly brought in a motion for
compassionate release and this Court does not have jurisdiction to consider them.42 Therefore, the
Court DISMISSES those claims without prejudice. Defendant may file or join a petition
challenging the same in the district of his confinement.43
V. 	CONCLUSION
Therefore, the Motion at Docket 115 is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
Dated at Anchorage, Alaska, this 24th day of April, 2020.
/s/
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
40 Dkt. 115 a t 12‒16.
41 Id.
42 See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (“Review of the execution of
a sentence may be had through petition for writ of habeas corpus under 28 U.S.C. § 2241”);
Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (the custodial court has exclusive
jurisdiction to hear a § 2241 petition); United States v. Buenrostro, Case No. 2:95-cr-00504 WBS
AC, 2019 WL 3245093, *2 (E.D. Cal. Jul 19, 2019) (“[A]n inmate challenging the manner,
location, or conditions of that sentence’s execution must bring a petition for writ of habeas corpus
under § 2241”); United States v. Green, Case No. 2:11-cr-00468-TLN, 2020 WL 1892456, *3 fn.1.
(E.D. Cal. Apr. 16, 2020) (denying compassionate release and noting improper venue to the extent
the defendant challenges the conditions of confinement).
43 See, for example, Wilson v. Williams, __ F.Supp.3d ___, 2020 WL 1940882 (N.D. Ohio Apr.
22, 2020) (ordering an injunction to identify vulnerable inmates eligible for release from Elkton
FCI during the COVID-19 pandemic).
Timothy M. Burgess
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