USA v. Klinger

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Nathan Michael Klinger
Case No. 3:19-cr-00033-01-TMB
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on the Defendant Nathan Michael Klinger’s Motion for
Compassionate Release Pursuant to 18 U.S.C. § 3582(C)(1)(A) at Docket 75 (the “Motion”),1 and
Motion to Supplement Motion and Memorandum for Compassionate Release Pursuant to 18
U.S.C. § 3582(c)(1)(A) (“Motion to Supplement”).2 The Motion to Supplement is accepted as a
supplement to Klinger’s Motion. In the Motion, Klinger argues that his underlying health
conditions, coupled with his risk of contracting the novel coronavirus (“COVID-19”) while
incarcerated, provide extraordinary and compelling bases for a sentence reduction.3 The United
States opposes the Motion.4 For the reasons discussed below, the Motion is DENIED.
A. Background
On December 9, 2019, Klinger pleaded guilty to Distribution of a Controlled Substance, in
violation 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and Felon in Possession of a Firearm and
Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).5 On March 10, 2020, the Court
sentenced Klinger to a 96-month term of imprisonment, with 5 years of supervised release to
follow.6 Klinger is currently housed at the Federal Correctional Institution Sheridan (“FCI
Sheridan”) in Sheridan, Oregon.7 His projected release date is February 6, 2026.8
B. Motion for Compassionate Release
In the Motion, Klinger argues that he can establish extraordinary and compelling grounds that
warrant a reduction in his sentence due to the unacceptably high risk he faces from the COVID-19
pandemic at FCI Sheridan, particularly in light of the emergence of the Delta variant and his
1 Dkt. 75 (Motion).
2 Dkt. 85 (Motion to Supplement) (Klinger offers additional information to support his claim that
the risk of contracting COVID-19 has increased significantly at the facility where he is being held).
3 See generally Dkt. 75.
4 Dkt. 78 (Opposition).
5 Dkts. 2 (Indictment); 57 (Plea Agreement); 59 (Minute Entry).
6 Dkts. 68 (Minute Entry); 71 (Judgment); 72 (Sealed Statement of Reasons).
7 Dkt. 75 at 2.
8 Dkt. 82 at 10 (Sealed Exhibits A – D to Motion).
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underlying health conditions.9 Klinger, age 39, represents that he was diagnosed with asthma and
hepatitis C, and that he experiences “chronic back pain” as a result of a fall in 2012 in “which he
fractured his T-12-L2 vertebrae.”10 Klinger also asserts that he faces a serious risk of contracting
COVID-19 due to the heightened risk inmates face in confinement and the failure of the Bureau
of Prisons (“BOP”) to control COVID-19 transmission at FCI Sheridan.11
As further justification for an early release, Klinger argues that the approximately two years that
he has already served of his sentence is sufficient to accomplish the goals of sentencing and that
he would not present a danger to the community if he were to be released.12 Klinger further
represents that he “has been an exceptional inmate,” maintaining employment and participating in
vocational, rehabilitative, and educational programming.13 If released, Klinger intends to reside
with his girlfriend and her mother while seeking employment in the carpentry or construction
industries while continuing to seek medical care and drug treatment.14
Finally, Klinger argues that he has fully exhausted his administrative remedies.15 Klinger asserts
that he submitted a request for compassionate release to the Warden of his facility on
September 15, 2020, but never received a response.16 Klinger requests that if the Court finds that
he has not exhausted his administrative remedies, the Court excuse him from the exhaustion
requirement because to prolong the process would only increase the risk that Klinger may be
infected with COVID-19.17
The United States opposes the Motion and argues that Klinger should not be released because
Klinger (1) cannot establish extraordinary and compelling grounds warranting his release,
(2) presents a danger to the community, and (3) has a significant amount of time remaining on his
sentence.18 The United States argues that Klinger is not eligible for release because he has not
identified any documented risk factors or chronic ailments.19 Moreover, the United States argues
that even if Klinger had established a condition that made him vulnerable to a heightened risk of
COVID-19, he can no longer establish an extraordinary or compelling reason for his release
because he received “the first dose of the COVID-19 vaccine produced by Moderna.”20 Further,
Klinger’s unexplained refusal to receive the second dose of the Moderna vaccine weighs against a
finding of extraordinary and compelling circumstances.21 Next, the United States argues that
Klinger’s prior conduct, including the nature of his convictions, a prior escape from custody, and
9 Dkts. 75 at 14–19; see also 85 at 1.
10 Dkt. 75 at 2, 18.
11 See Dkts. 75 at 14–18; see also 85.
12 Dkt. 75 at 19–21.
13 Id. at 20.
14 Id. at 21.
15 See id. at 5–9.
16 Id. at 6.
17 Id. at 10.
18 Dkt. 78 at 1.
19 Id. at 6–7.
20 Id. at 7.
21 Id. at 14–15.
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a dangerous high-speed chase, demonstrates that he is not a suitable candidate for early release.22
Finally, the United States argues the Court must consider the relevant factors in 18 U.S.C.
§ 3553(a) before granting early release and that to release Klinger nearly five years early “would
not reflect the seriousness of his conduct, promote respect for the law, be just, or deter criminal
conduct.”23
Further, the United States acknowledges that it cannot be certain whether Klinger has exhausted
his administrative remedies.24 According to the United States, the BOP has not produced a record
of Klinger’s compassionate release request.25 Nevertheless, the United States recognizes that the
absence of a record does not necessarily mean that a request was never made.26 For this reason,
the United States disputes whether Klinger has exhausted his administrative remedies but concedes
that it cannot be certain.
In the Motion to Supplement, Klinger reiterates his concern for his own safety at FCI Sheridan and
alleges that two buildings were locked down by the BOP in response to “positive cases of the new
[D]elta variant.”27
C. Legal Standard
Pursuant to 18 U.S.C. § 3582(c)(1)(A), as amended by the First Step Act, a defendant may move
the district court for a sentence reduction after exhausting their administrative remedies.28 The
court may grant the motion if, after considering the applicable factors set forth in 18 U.S.C.
§ 3553(a), it finds “extraordinary and compelling reasons warrant such a reduction[.]”29 For
guidance, the court may look to the Sentencing Commission’s policy statement on compassionate
release found in U.S.S.G. § 1B1.13.30 The policy statement provides that “extraordinary and
compelling reasons” may exist where “[t]he defendant is . . . suffering from a serious physical or
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
22 Id. at 15.
23 Id. at 15–16.
24 Id. at 3 (the government concedes that “[i]t is unclear whether Klinger has satisfied the
exhaustion requirement, and whether his motion is properly before the Court.”).
25 Id.
26 Id.
27 Dkt. 85 at 1.
28 See Pub. L. 115-391, 132 Stat. 5194, 5239 (2018).
29 18 U.S.C. § 3582(c)(1)(A).
30 United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021) (per curiam) (“The Sentencing
Commission’s statements in U.S.S.G. § 1B1.13 may inform a district court’s discretion for
§ 3582(c)(1)(A) motions filed by a defendant, but they are not binding.”).
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recover.”31 However, the policy statement is “not binding” on courts evaluating motions filed by
defendants under 18 U.S.C. § 3582(c)(1)(A).32
D. Discussion
As a threshold matter, the Court finds that Klinger exhausted his administrative remedies as is
required by 18 U.S.C. § 3582(c)(1)(A). The Ninth Circuit is clear “that § 3582(c)(1)(A)’s
administrative exhaustion requirement is mandatory and must be enforced when properly raised
by the government.”33 While no party has provided evidence that Klinger submitted a request for
compassionate relief to the Warden, Klinger asserts that he sent a request for compassionate release
to the Warden at FCI Sheridan on September 15, 2020.34 Courts have accepted such assertions
where a court has no reason to assume bad faith on the part of the defendant or their counsel.35
Here, the Court has no reason to assume that Klinger or his counsel have acted in bad faith.
Moreover, the United States acknowledges the fact that it does not have a copy of Klinger’s request
does not mean that a request was never made.36 More than thirty days have passed since Klinger
asserts he made a request, and the Warden has not granted relief. Accordingly, the Court is satisfied
that it may consider the merits of Klinger’s Motion.
Proceeding to the merits, the Court finds that Klinger has not demonstrated extraordinary and
compelling reasons to justify his release. Klinger initially argues that extraordinary and compelling
reasons justify his release because the BOP has been unable to control COVID-19 infections
among inmates and staff, including at FCI Sheridan.37 But without identifying other risk factors,
“[g]eneral 	concerns about possible exposure to COVID-19 do not 	meet the criteria for
extraordinary and compelling reasons for a reduction in sentence.”38
31 18 U.S.C. § 3582(c)(1); U.S.S.G. § 1B1.13. The Ninth Circuit recently held that the current
version 	of 	U.S.S.G. 	§ 	1B1.13 	is 	“not 	an 	applicable 	policy 	statement 	for 	18 	U.S.C.
§ 3582(c)(1)(A).” Aruda, 993 F.3d at 802 (internal quotation marks omitted). The Ninth Circuit
also concluded that a “dangerousness finding is not statutorily required under 18 U.S.C.
§ 3582(c)(1)(A)(i)[.]” Id. at 799.
32 Aruda, 993 F.3d at 802.
33 United States v. Keller, 2 F.4th 1278, 1282 (9th Cir. 2021).
34 Dkt. 75 at 3, 6.
35 See United States v. Levario, No. 2:12-CR-00399-JAM-1, 2020 WL 3256918, at *2 (E.D. Cal.
June 16, 2020) (accepting as true defendant’s representation that he requested compassionate
release from the Warden where the court had no reason to assume bad faith on the part of defendant
or counsel); United States v. Richardson, No. 2:17-cr-00048-JAM, 2020 WL 3402410, at *2 (E.D.
Cal. June 19, 2020); United States v. Massengill, Case No. 3:17-cr-00091-02-TMB, (closed April
11, 2019) (Dkt. 146).
36 See Dkt. 78 at 3.
37 Dkts. 75 at 1–2, 15–18; see also 85 at 2.
38 United States v. Eberhart, 448 F. Supp. 3d 1086, 1090 (N.D. Cal. 2020).
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Likewise, the Court rejects Klinger’s argument that his age and medical conditions, including
asthma and hepatitis C diagnoses, are risk factors making him eligible for compassionate release.39
First, Klinger’s own medical records do not reflect that he has been diagnosed with asthma or
hepatitis C, and in the past Klinger has allegedly denied having hepatitis.40 Second, even if Klinger
had been diagnosed with asthma in the past, only those individuals with moderate to severe asthma
may be more likely to become severely ill from COVID-19.41 Therefore, courts routinely deny
motions for compassionate release where a defendant’s asthma was mild.42 Third, Klinger’s
alleged chronic back pain is not a recognized medical condition that can increase an individual’s
risk of severe illness from COVID-19.43 Finally, as a 39 year old man, Klinger’s age does not place
him at a heightened risk of severe illness or death from COVID-19. The Centers for Disease
Control and Prevention (“CDC”) states that “[t]he risk increases for people in their 50s and
increases in 60s, 70s, and 80s.”44
But regardless of Klinger’s age and medical conditions, the Court finds that vaccine availability
and an inmate’s refusal of a COVID-19 vaccine weigh against finding extraordinary and
compelling circumstances justifying Klinger’s release.45 The CDC recommends that adults,
including older adults, “[g]et vaccinated as soon as possible.”46 Though Klinger received the first
dose of the Moderna COVID-19 vaccine, he, without explanation, refused the second dose.47
Klinger is not considered to be fully vaccinated after having received a single dose of the Moderna
39 Dkts. 75 at 2; see also 82 at 2–8.
40 Dkts. 78 at 6; see also 82 at 2–8.
41 Centers for Disease Control and Prevention, People with Certain Medical Conditions,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html (last updated Aug. 20, 2021).
42 See United States v. Bozochovic, No. 4:17-CR-00046, 2021 WL 76153, at *3 (M.D. Pa. Jan. 8,
2021) (denying defendant’s motion for compassionate release due to the lack of severity of his
asthma and finding moderate asthma occurs “where the individual suffers from daily symptoms,
experiences nighttime awakenings more than once a week, uses an Albuterol rescue inhaler on a
daily basis, and experiences some limitation of normal activities.”); see also United States v.
Person, Criminal Action No. 15-10146-NMG, 2021 WL 24571, at *1–2 (D. Mass. Jan. 4, 2021)
(denying motion for compassionate release because asthma was mild).
43 Dkt. 75 at 2; see also Centers for Disease Control and Prevention, People with Certain Medical
Conditions, 	https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last updated Aug. 20, 2021).
44 See Centers for Disease Control and Prevention, COVID-19 Risks and Vaccine Information for
Older Adults, https://www.cdc.gov/aging/covid19/covid19-older-adults.html (last updated Aug. 2,
2021); see also Dkt. 75 at 18 n.43.
45 United States v. Baeza-Vargas, No. CR-10-00448-010-PHX-JAT, 2021 WL 1250349, at *3 (D.
Ariz. Apr. 5, 2021).
46 See Centers for Disease Control and Prevention, COVID-19 Risks and Vaccine Information for
Older Adults, https://www.cdc.gov/aging/covid19/covid19-older-adults.html (last updated Aug. 2,
2021).
47 Dkts. 78 at 14–15; see also 82 at 6.
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COVID-19 vaccine.48 But, the Court agrees with the United States and other recent district court
decisions that find an inmate’s refusal of a COVID vaccine, “weighs against a finding of
extraordinary and compelling circumstances.”49 The Court does not wish to incentivize inmates to
refuse a safe and effective vaccine in order to create extraordinary and compelling circumstances
where none otherwise exist.50 Even though it is apparent from Klinger’s filings that COVID-19
transmission continues to occur among FCI Sheridan’s staff and inmates, “COVID-19 vaccines
also help keep [individuals] from getting seriously ill even if you do get COVID-19.”51 The
vaccines also have been shown to remain effective against the variants of the virus, including
the Delta variant.52 Accordingly, Klinger has failed to show “extraordinary and compelling
reasons” justifying his release pursuant to 18 U.S.C. § 3582(c)(1)(A).
Klinger has not made the required showing that his medical conditions, coupled with his refusal
to be fully vaccinated against COVID-19, are “extraordinary and compelling.” As a result, the
Court need not reach the merits of his § 3553(a) arguments.
Accordingly, for the foregoing reasons, the Motion at Docket 75 is DENIED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: October 29, 2021.
48 See Centers for Disease Control and Prevention, When You’ve Been Fully Vaccinated,
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html (last updated Sept.
16, 2021).
49 See, e.g., Baeza-Vargas, 2021 WL 1250349, at *2–3 (collecting cases).
50 See United States v. Figueroa, No. 2:09-CR-00194-KJM, 2021 WL 1122590, at *5 (E.D. Cal.
Mar. 24, 2021) (“If defendants could buttress their motions for compassionate release by refusing
a safe and effective vaccine, they would be operating on an unfairly perverse incentive.”); United
States v. Cao, No. 3:18-cr-00059-SLG, 2021 WL 1792056, at *1 n.15 (D. Alaska, May 5, 2021);
see also United States v. Cortez, No. CR-18-00858-01-PHX-SPL, 2021 WL 689923, at *1 (D.
Ariz. Feb. 23, 2021) (as other courts have noted, “[t]he Pfizer vaccine has proven to be 95%
effective in preventing infection and even more effective in preventing severe disease.”) (citing
FDA 	Decision 	Memorandum, 	Pfizer 	– 	Dec. 	11, 	2020,
https://www.fda.gov/media/144416/download).
51 	Centers 	for 	Disease 	Control 	& 	Prevention, 	Benefits 	of 	Getting 	Vaccinated,
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/vaccine-benefits.html (last updated Aug.
16, 2021).
52 	Centers 	for 	Disease 	Control 	& 	Prevention, 	When 	You’ve 	Been 	Fully 	Vaccinated,
www.cdc.gov/coronavirus/2019-ncov/vaccines/fully-vaccinated.html 	(last 	updated 	Sept. 	16,
2021).
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