USA v. Thomas

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LEIF ERIC THOMAS,
Defendant.
Case No. 3:17-cr-00051-SLG
ORDER REGARDING SECOND MOTION FOR COMPASSIONATE RELEASE
Before the Court at Docket 91 is defendant Leif Eric Thomas’ Renewed
Motion for Compassionate Release. The government filed a response in
opposition at Docket 93.
On September 20, 2019, this Court sentenced Mr. Thomas to 84 months of
incarceration after he pleaded guilty to one count of Felon in Possession of a
Firearm.1 Mr. Thomas is currently in Bureau of Prisons (BOP) custody and
incarcerated at FCI Sheridan in Oregon; his projected release date is November
27, 2023.2 In November 2020, Mr. Thomas filed a motion for compassionate
release, which the Court denied.3 Mr. Thomas has now filed a second motion for
1 Docket 71.
2 Fed. Bureau of Prisons, Inmate Locator (available at www.bop.gov/inmateloc/) (last accessed
August 31, 2021).
3 Docket 80.
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compassionate release in which he seeks an order reducing his sentence by six
months, which would move his release date forward to approximately May 27,
2023.4 The government responds the “motion should be denied because Thomas
has declined a vaccination against COVID-19, and he continues to present a
danger to the community.”5
I. Applicable law
The First Step Act of 2018 amended 18 U.S.C. § 3582(c)(1)(A) to allow
federal inmates to move the district court for a sentence reduction after exhausting
their administrative rights.6 If an inmate has exhausted his administrative rights, a
district court must consider the motion on the merits. On the merits, a court must
find that “extraordinary and compelling reasons warrant” a sentence reduction and
that the applicable factors set forth in 18 U.S.C. § 3553(a) support a sentence
reduction.7 The Sentencing Commission’s policy statement at U.S.S.G. § 1B1.13
is not binding on a district court considering a compassionate release motion filed
by a defendant, but that policy statement “may inform a district court’s discretion.”8
4 Docket 91 at 1.
5 Docket 93 at 1 (under seal).
6 First Step Act of 2018, PL 115-391, Dec. 21, 2018, 132 Stat 5194. Prior to this amendment,
only the Director of the Bureau of Prisons could bring a motion to reduce an inmate’s sentence.
7 18 U.S.C. § 3582(c).
8 United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021).
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II. Exhaustion of administrative rights
An inmate has exhausted his administrative rights if the warden of the
inmate’s facility has denied the inmate’s request for compassionate release or if
30 days have lapsed from the warden’s receipt of the request for compassionate
release.9 Mr. Thomas made a renewed request for compassionate release from
the Sheridan FCI warden in July 2021, and the warden has not responded to his
request.10 The government agrees that Mr. Thomas has exhausted his
administrative remedies.11 The Court will consider the motion on its merits.
III. Extraordinary and compelling reasons
Mr. Thomas submits that his health risks from Hepatitis C, “combined with
the extraordinary conditions of confinement under Covid, favor a reduction in
sentence.”12 Specifically, Mr. Thomas asserts that “Covid has made prison more
punitive than intended because every attempt to control the virus in the crowded
world of prisons has led to isolation, denial of recreation and programming, and
denial of visits and even phone calls.”13 The government responds that Mr.
Thomas has not shown extraordinary and compelling medical reasons for a
sentence reduction because, since his previous compassionate release motion,
9 18 U.S.C. § 3582(c)(1)(A).
10 Docket 92 at 7–8.
11 Docket 93 at 3 (under seal).
12 Docket 91 at 6.
13 Docket 91 at 4.
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he has been seen by medical staff regarding his Hepatitis C and has declined the
COVID-19 vaccine.14 The government also responds that the lock-down BOP
“conditions, while unfortunate, are present for all BOP inmates and therefore do
not justify extraordinary relief.”15
Mr. Thomas has not shown extraordinary and compelling reasons to reduce
his sentence at this time. First, Mr. Thomas has submitted no medical records to
support his assertion that he is at an increased risk of COVID-19 due to his
Hepatitis C diagnosis. Although Mr. Thomas’ medical records confirm this
diagnosis, they also show that Mr. Thomas was seen by BOP medical staff in late
April 2021, that he has had additional blood testing ordered, and that he is
scheduled for possible Hepatitis C treatment in October.16 Notably, after declining
the vaccine in April 2021, Mr. Thomas tested positive for COVID-19 in August 2021
but was asymptomatic.17 His asymptomatic course of COVID-19 refutes his
assertion that he is particularly susceptible to the virus. Moreover, Mr. Thomas
has shown no link between his medical condition and his request for relief: He
makes no assertion that in May 2023 (his requested release date) the BOP will not
be providing him adequate medical care for his Hepatitis C or that COVID-19 will
14 Docket 93 at 4, 13, 19 (under seal).
15 Docket 93 at 19 (under seal).
16 Docket 93-3 at 5–6, 45 (under seal).
17 Docket 93-3 at 32, 33, 42 (under seal).
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still present a risk to him. Although the Court is not bound by the Sentencing
Commission’s policy statement at U.S.S.G. § 1B1.13, that policy statement “may
inform a district court’s discretion.”18 The policy statement suggests that medical
compassionate release is appropriate only for those inmates who need immediate
release due to serious medical issues.19 Mr. Thomas’ request to be released
nearly 21 months from now does not suggest the medical urgency needed to
support compassionate release, nor does it support his claim that he is at a high
risk from COVID-19.
Second, every BOP inmate—and in fact nearly every incarcerated person—
has experienced limitations on their ability to communicate, exercise, gain an
education, and receive job skills training during the COVID-19 pandemic.
Conditions that are shared by nearly every inmate in the country are not
“extraordinary and compelling,” and the restrictions Mr. Thomas is subject to are
in no way unique to him.20 The cases cited by Mr. Thomas do not support his
18 United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021).
19 See U.S.S.G. § 1B1.13, Application Note 1 (describing medical conditions that may justify
reduction in sentence as terminal illness or condition that substantially diminishes ability to self-
care from which inmate is “not expected to recover”).
20 See, e.g., United States v. Suryan, Case No. 2:19-cr-00082-RAJ, 2021 WL 3510423, at *3
(W.D. Wash. Aug. 10, 2021) (BOP lockdown “conditions, while challenging, do not present an
extraordinary and compelling reason to warrant his early release.”); United States v. Becerra,
Case No. 17cr1465-LAB, 2021 WL 461699, at *2 (S.D. Cal. Feb. 8, 2021) (“The inconvenience
caused by extended lockdown is not an ‘extraordinary and compelling reason.’”); United States
v. Lord, Case No. 14-cr-101-JD, 2020 WL 6875141, at *3 (D. N.H. Nov. 23, 2020) (“The
conditions of confinement that Lord describes are not unique to him and instead have been
imposed generally for the safety of inmates and staff because of the pandemic.”).
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position, because in each of those cases the finding of extraordinary and
compelling reasons was based on a combination of unique health risks and
conditions of confinement—here, Mr. Thomas has not shown that he has any
qualifying medical conditions. The Court agrees with District Judge Foote when
she
stresses that the rampant spread of the coronavirus and the
conditions of confinement in jail, alone, are not sufficient grounds to
justify a finding of extraordinary and compelling circumstances.
Rather, those circumstances are applicable to all inmates who are
currently imprisoned and hence are not unique to any one person.21
In sum, Mr. Thomas has not shown extraordinary and compelling reasons to
warrant a six month reduction in his sentence.
IV. Section 3553(a) factors
Because Mr. Thomas has not made a threshold showing of an extraordinary
and compelling reason for a reduction in sentence, the Court need not reconsider
whether the § 3553(a) factors weigh in his favor.22
21 United States v. Koons, 455 F. Supp. 3d 285, 290–91 (W.D. La. 2020) (footnote omitted).
22 “Although a district court must perform [the § 3582(c)(1)(A)] sequential inquiry before it grants
compassionate release, a district court that properly denies compassionate release need not
evaluate each step.” United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (emphases in
original) (disagreeing with the defendant that a district court must make an explicit
“extraordinary and compelling” finding before denying a motion based on the § 3553(a) factors).
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CONCLUSION
In light of the foregoing, IT IS ORDERED that the motion at Docket 91 is
DENIED.
DATED this 1st day of September, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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