United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER comes before the Court on Defendant's
pro se “Motion for Compassionate Release,
” (Doc. No. 67), that has been docketed as a Motion to
Reduce Sentence pursuant to 18 U.S.C. § 3582(c).
pled guilty to conspiracy to commit wire and mail fraud, wire
fraud and aiding and abetting the same, and conspiracy to
commit money laundering. (Doc. No. 60). In the Judgment
docketed on August 25, 2015, she was sentenced to 130
months' imprisonment for each count, concurrent, followed
by two years of supervised release, and was ordered to pay a
total of $642, 032.15 in restitution. (Id.).
28, 2018, Defendant filed a “Brief in Answer to the
Assistance U.S. Attorney's Brief to Vacate Restitution
Order, ” that was docketed as a Motion to Vacate
pursuant to 28 U.S.C. § 2255 and was opened in civil
case number 3:18-cv-453. See (Doc. No. 63). That
case is still pending.
filed the instant “Motion for Compassionate
Release” in the United States District Court for the
Northern District of Texas on January 17, 2019. The Texas
court docketed the matter as a habeas corpus petition
pursuant to 28 U.S.C. § 2241 and transferred the case to
this Court on February 22, 2019 where it was opened as a
§ 2241 civil case, 3:19-cv-92-FDW. The petition was
dismissed and denied insofar as it sought relief pursuant to
§ 2241 and it was docketed in the instant case for
consideration as a Motion to Reduce Sentence pursuant to
asks that the Court grant her compassionate release or home
confinement under the First Step Act that went into effect on
December 21, 2018 due to declining health, diabetes, stage-3
kidney failure, and back issues that require a walker. The
60-year-old Defendant claims that she has asked the Warden of
Carswell Federal Medical Center for relief that has not been
answered in 30 days or more. See (Doc. No. 67 at 3).
She has attached the Application for Compassionate Release
that she filed with the Warden of her current facility in
which she seeks relief under § 28 U.S.C. §
571.61 pursuant to 18 U.S.C. §
4205(g) or § 3582(c)(1)(A).
appears that Defendant is seeking relief under 18 U.S.C.
§ 3582(c)(1)(A) as amended by the First Step Act. That
section provides that the court may not modify a term of
imprisonment once it has been imposed except that:
(A) the court, upon motion of the Director or the Bureau of
Prisons, or upon motion of the defendant
after the defendant has fully exhausted all administrative
rights to appeal a failure to the Bureau of Prisons to bring
a motion on the defendant's behalf or the lapse of 30
days from the receipt of such a request by the warden of the
defendant's facility, whichever is earlier, may reduce
the term of imprisonment (and may impose a term of probation
or supervised release with or without conditions that does
not exceed the unserved portion of the original term of
imprisonment), after considering the factors set forth in
section 3553(a) to the extent they are applicable, if it
finds that -
(i) extraordinary and compelling reasons warrant such a
(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 determination has
been made 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
18 U.S.C. § 3582(c)(1) (emphasis added).
that Defendant has satisfied § 3582(c)(1)'s
exhaustion requirement, she does not qualify for relief based
on either age under subsection (ii) or extraordinary and
compelling circumstances under subsection (i).
Defendant does not meet the requirements for relief under
§ 3582(c)(1)(A)(ii). She states that her current age is
60, however, § 3582(c)(1)(A)(ii) requires a defendant to
be 70 years of age or older. Nor does she satisfy the
requirement of having served at least 30 years in prison. The
Bureau of Prisons has not made a determination that she is
not a danger to the safety of any other person or the
community. Accordingly, to the ...