USA v. Grant

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Kenneth Grant, Jr.
Case No. 3:15-cr-00107-TMB-1
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
The matter comes before the Court on the Defendant Kenneth Grant Jr.’s Motion to Reduce
Sentence Pursuant to 18 U.S.C. § 3582(C)(1)(A) (the “Motion”).1 	Grant argues his underlying
health 	conditions, 	coupled 	with 	the novel 	coronavirus 	(“COVID-19”) 	pandemic, 	provide
extraordinary and compelling bases for a sentence reduction.2 	The United States opposes the
Motion.3 For the reasons discussed below, the Motion is DENIED.
On April 14, 2016, Grant pleaded guilty to Distribution of Methamphetamine, in violation of 21
U.S.C. § 841(a)(1) and (b)(1)(B), and Possession of a Firearm in Furtherance of Drug Trafficking,
in violation of 18 U.S.C. § 924(c)(1)(A)(i).4 Grant was subsequently sentenced to 145 months of
imprisonment, to be followed by five years of supervised release.5 	He is currently housed at
Federal Correctional Institution Butner Medium II (“FCI Butner”) and has a scheduled release date
of October 13, 2028.6
In his Motion, Grant, age 48,7 argues for a sentence reduction on a basis of his medical conditions,
which he asserts include being a smoker for 30 years, obesity, hyperlipidemia, sleep apnea, and
pre-diabetes.8 According to Bureau of Prisons records, Grant refused flu and COVID-19 vaccines
and refused to participate in a metabolic profile test.9 	He is prescribed medication for
hyperlipidemia.10 	He asserts that these medical conditions put him at an increased risk of
developing severe illness from COVID-19.11 If released, he would reside with his mother in North
Carolina and asserts that he has been offered employment at a family-owned business.12 Grant
1 Dkt. 49 (Motion).
2 Id. at 5–7, 17–22.
3 Dkt. 54 (Opposition).
4 Dkts. 21 (Plea Agreement); 24 (Minute Entry re: Change of Plea Hearing).
5 Dkt. 40 (Judgment).
6 Dkt. 51 at 1, 3 (U.S. Probation and Pretrial Services (“USPO”) Report).
7 Grant was 47 years old at the time the Motion was filed but has since turned 48 years old. See
Dkts. 27 at 6 (Final Presentence Investigation Report); 49 at 28.
8 Dkts. 49 at 5; 57-1 (Sealed Medical Record).
9 Dkts. 51 at 2; 57-1 at 1.
10 Dkt. 51 at 2.
11 Dkt. 49 at 5.
12 Id. at 7.
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argues that while incarcerated he has participated in “educational and training programs” and
otherwise “tried to better himself[.]”13 He states that he is “no longer a threat to the community”
and that he has “learned from his past actions and term of incarceration.”14 Finally, Grant states
that he submitted a request for a sentence reduction to the Warden of FCI Butner and that 30 days
have passed since his request.15
The Government opposes the Motion. 	The Government argues that Grant cannot establish
extraordinary and compelling circumstances because he declined vaccination.16 The Government
argues that Grant has declined the opportunity to practice self-care.17 It also asserts that Grant has
not shown that he can be safely released. 	It states that “[h]e trafficked in drugs, illegally sold
firearms, and possessed firearms as a felon. He also has a long-time substance abuse problem that
has likely fueled his criminal conduct.”18 	It argues that the factors under 18 U.S.C. § 3553(a)
weigh against a sentence reduction because he has “more than seven years remaining on his
sentence” and that a sentence reduction would not “reflect the seriousness of his drug and firearm
trafficking[.]”19 The Government concedes that Grant has exhausted his administrative remedies
and that his Motion is properly before the Court.20
The First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow a defendant to move the district
court for a sentence reduction after exhausting their administrative remedies.21 After considering
the applicable factors set forth in § 3553(a), a court may grant the motion if it finds “extraordinary
and compelling reasons warrant such a reduction[.]”22 A court may look to the policy statement
of the Sentencing Commission, which 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 recover.”23 However, the policy
13 Id. at 8.
14 Id. at 28–29.
15 Id. at 9–10.
16 Dkt. 54 at 6.
17 Id. at 9.
18 Id. at 18.
19 Id. at 19.
20 Id. at 3.
21 See Pub. L. 115-391, 132 Stat. 5194, 5239 (2018).
22 18 U.S.C. § 3582(c)(1)(A).
23 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).” United States v. Aruda, 993 F.3d 797, 802 (9th Cir. Apr. 8, 2021) (per curiam)
(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.
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statement is “not binding” on courts evaluating motions filed by defendants under 18 U.S.C.
§ 3582(c)(1)(A).24
As a threshold matter, the Court finds that Grant exhausted his administrative remedies as required
by statute. Grant submitted a request to the Warden of FCI Butner and 30 days have passed since
his request.25 The Government also agrees that Grant exhausted his administrative remedies.26
Moving to the merits, the Court finds that Grant has not established extraordinary and compelling
reasons for a sentence reduction. Grant suffers from obesity and is a former smoker, which may
increase Grant’s likelihood of becoming “severely ill from COVID-19” according to the Centers
for Disease Control and Prevention.27 However, Grant’s risk of COVID-19 infection appears to
be low and his conditions are well-managed.28 The Pfizer COVID-19 vaccine, which has been
made available to Grant,29 is “95% effective at preventing laboratory-confirmed COVID-19 illness
in people without evidence of previous infection.”30 Further, FCI Butner has one active case of
COVID-19 among inmates, and in the Butner Federal Correctional Complex (including FCI
Butner and other facilities) nearly 2,500 inmates are fully vaccinated against COVID-19.31 Grant’s
24 Aruda, 993 F.3d at 802 (agreeing with and adopting the rationale from United States v. Gunn,
980 F.3d 1178, 1180 (7th Cir. 2020) (holding that U.S.S.G. § 1B1.13 is not binding on courts
considering motions filed by defendants under 18 U.S.C. § 3582(c)(1)(A))).
25 See Dkt. 49 at 9.
26 See Dkt. 54 at 3.
27 See Centers for Disease Control and Prevention, People with Certain Medical Conditions,
Overweight 	and 	obesity, 	https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last visited July 9, 2021).
28 See Dkts. 51 at 2 (Grant prescribed medication); 57-1 (Grant offered COVID-19 vaccine).
29 As other courts have found, it would set up a perverse incentive for courts to find extraordinary
and compelling circumstances due to a refusal to practice self-care. 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. Baeza-Vargas, —--F.
Supp. 3d--, 2021 WL 1250349, at *3 (D. Ariz. Apr. 5, 2021) (“Judges of this Court, as well as
others around the country, have ruled with consistency that an inmate’s denial of a COVID-
19 vaccination weighs against a finding of extraordinary and compelling circumstances.”).
Regardless of Grant’s decision to refuse the COVID-19 vaccine, his medical conditions alone
would not be sufficient to warrant a sentence reduction.
30 See Centers for Disease Control and Prevention, Pfizer-BioNTech COVID-19 Vaccine
Overview 	and 	Safety, 	https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-
vaccines/Pfizer-
BioNTech.html#:~:text=Based%20on%20evidence%20from%20clinical,without%20evidence%
20of%20previous%20infection (last visited July 9, 2021).
31 Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/index.jsp# (last
visited 	July 	9, 	2021); 	Federal 	Bureau 	of 	Prisons, 	COVID-19 	Vaccine 	Implementation,
https://www.bop.gov/coronavirus/index.jsp# (last visited July 9, 2021). 	The Bureau of Prisons
does not provide detail about the rates at Grant’s specific facility; however, the COVID-19 vaccine
is widely available and has been offered to Grant.
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arguments for a sentence reduction on the basis of his medical conditions and susceptibility to
COVID-19 are unpersuasive in light of the progress made in protecting inmates from COVID-19.
Accordingly, there is no extraordinary and compelling reason for a sentence reduction.
Since the Court finds that there are no extraordinary and compelling reasons to justify a sentence
reduction, it need not reach the merits of Grant’s § 3553(a) arguments.
Accordingly, for the foregoing reasons, the Motion at Docket 49 is DENIED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: July 27, 2021.
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