USA v. Grant

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
By: THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: ORDER FROM CHAMBERS
The matter comes before the Court on Defendant Kenneth Grant, Jr.’s pro se “motion for
Mr. Grant’s rebuttal to the denial of 3582(a)(1)(A) based on reasons for not taking the [COVID-
19] vaccine” (the “Motion”).1 Pursuant to Local Civil Rule 7.3(h), the Court did not request the
United States file a response. Grant did not request oral argument, and the Court finds it would not
be helpful. For the reasons discussed below, the Motion is DENIED.
On July 27, 2021, the Court denied Grant’s motion for a reduction of sentence under 18 U.S.C
§ 3582(c)(1)(A)(i).2 The Court reasoned that, while some of Grant’s health conditions, including
obesity, are recognized by the Centers for Disease Control and Prevention as factors that may
increase his risk of severe illness from COVID-19, his risk of COVID-19 infection appears to be
low because his health conditions are well-managed and given the high vaccination rates and low
case rates at his facility.3 Further, the Court found that Grant failed to show that reducing his
sentence by more than half would satisfy the 18 U.S.C. § 3553(a) factors or that he would not pose
a danger to the community upon release.4 Therefore, Grant failed to establish extraordinary and
compelling reasons for compassionate release.5
On October 30, 2023, Grant filed the present Motion.6 Grant seeks reconsideration of the Court’s
denial, arguing that denying his compassionate release motion “based on [his] reasons for not
taking the [COVID-19] vaccine” “violates his constitutional rights, specifically the right to make
personal medical decisions and exercise religious freedom.”7 Grant asserts that he “holds genuine
concerns regarding the safety and potential side effects of the [COVID-19] vaccine” and that his
“decision to refrain from taking the [COVID-19] vaccine is primarily grounded in deeply held
religious and philosophical beliefs . . . which stress preservation of the natural state of the human
body and avoidance of external interventions.”8 Grant further asserts that he has already contracted
COVID-19 and that “his prior exposure to the virus and subsequent recovery have granted him
1 Dkt. 72 (Letter).
2 Dkt. 49 (Motion to Reduce Sentence); Dkt. 58 (Order).
3 Dkt. 58 at 3–4.
4 Id. at 4.
5 Id.
6 Dkt 72 at 1.
7 Id. at 3.
8 Id. at 2.
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immunity and, therefore, the necessity for vaccination is rendered redundant.”9 Grant now asks
this Court to reconsider its denial of his sentence reduction to “not only uphold Constitutional
rights but also ensure a fair resolution in this matter.”10
The Court construes this as a motion for reconsideration under Local Criminal
Rule (“Rule”) 47.1(g)(1).11 Although not expressly authorized by the Federal Rules of Criminal
Procedure, “post-judgment motions for reconsideration may be filed in criminal cases.”12 Under
Rule 47.1(g)(1), a “court will ordinarily deny a motion for reconsideration absent a showing of
one of the following: [A] manifest error of the law or fact; [B] discovery of new material facts not
previously available; or [C] intervening change in the law.”13 Under Ninth Circuit law, a motion
to reconsider is an “extraordinary remedy, to be used sparingly and in the interests of finality and
conservation of judicial resources.”14
Since Grant raises no new material facts not previously available and no intervening change in the
law, the Court construes Grant’s arguments as regarding a “manifest error of the law or fact.”15
Under Rule 47.1(g), such motions must be filed within seven days of the entry of the order.16 Since
Grant filed his Motion more than two years after the Court issued its order denying compassionate
release, the Motion is time-barred.
Moreover, the Motion fails on the merits, being based solely on Grant’s refusal of the COVID-19
vaccination.17 Notably, the Court considered this issue when denying his original motion for
compassionate release.18 The Court expressly stated that “[r]egardless of Grant’s decision to refuse
the COVID-19 vaccine, his medical conditions alone would not be sufficient to warrant a sentence
reduction.”19 Further, the Court noted, courts in the Ninth Circuit have held that granting
compassionate release because an inmate refuses COVID-19 vaccination “would set up a perverse
incentive for courts to find extraordinary and compelling circumstances due to a refusal to practice
self-care.”20
9 Id. at 2.
10 Id. at 3.
11 L. Civ. R. 47.1(g)(1).
12 United States v. Martin, 226 F.3d 1042, 1047 (9th Cir. 2000) (citing United States v. Clark, 984
F.2d 31, 33 (2d Cir. 1993)).
13 L. Crim. R. 47.1(g)(1).
14 Big State Logistics, Inc. v. Gov’t Servs. Corp., No. 4:13-cv-00029, 2014 WL 12526313, at *1
(D. Alaska Mar. 28, 2014) (quoting Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003)); see
also Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).
15 See L. Crim. R. 47.1(g)(1)(A).
16 L. Crim. R. 47.1(g)(2)(A).
17 Dkt. 58.
18 Id. at 1, 3.
19 Id.
20 Id. at 3 n.29 (citing 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, 532 F. Supp. 3d 840, 843–44 (D. Ariz. 2021) (“Judges
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The Court denied Grant compassionate release because his “risk of COVID-19 infection appears
to be low and his conditions are well-managed.”21 The Court noted that at Grant’s facility, as of
July 2021, there was a single active case of COVID-19 infection among inmates, nearly 2,500
inmates were fully vaccinated, the “COVID-19 vaccine [was] widely available and ha[d] been
offered to Grant,” and the Pfizer vaccine is “95% effective at preventing laboratory-confirmed
COVID-19 illness in people without evidence of previous infection.”22 Grant’s arguments
regarding his personal liberty to refuse COVID-19 vaccination do not demonstrate that these
conclusions were reached in error. Therefore, Grant has not shown a “manifest error of the law or
fact” or other basis for reconsideration under Rule 47.1(g)(1).
Accordingly, and for the foregoing reasons, the Motion at Docket 72 is DENIED.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: January 5, 2024.
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.”)).
21 Id. at 3.
22 Id.
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