Tampa, Florida - Criminal defense lawyer represented defendant with one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of a mixture of methamphetamine charges.
After William Calvin Loper pleaded guilty, the Court adjudicated him guilty of
one count of conspiracy to distribute and possess with intent to distribute 500 grams
or more of a mixture of methamphetamine, in violation of 21 U.S.C. §§
841(b)(1)(A)(viii) and 846, on April 4, 2018. Doc. 35 at 1. The Court sentenced Loper
to 120 months of imprisonment and five years of supervised release. Id. at 2–3.
A 47-year-old male, Loper is currently incarcerated at FPC Pensacola. Federal
Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/ (last accessed
Nov. 2, 2021). His scheduled released date is May 8, 2025. Id.
Citing to 18 U.S.C. § 3582(c)(1)(A), Loper moves the Court to “modify the
remainder of his sentence to home detention, probation, or supervised release.” Doc.
38 at 7. When he filed the motion, he was incarcerated at FCI Coleman Low. Id. at 1.
In addressing exhaustion of administrative remedies, Loper contends that he applied
to Coleman’s warden for a reduction in his sentence on April 9, 2020, which the
warden denied on May 6, 2020. Id. at 2–3; Doc. 38-1 at 2. Loper sets forth several
reasons for his requested relief. He highlights conditions at Coleman, such as
documented cases of COVID-19, ineffective cleaning agents, a lack of “total
compliance” with health guidelines and protocols, and the difficulty of social
distancing. Id. at 1. Loper represents that the prison is “on quarantine protocol” as a
result of COVID-19’s spread. Id. He also highlights that he is overweight and has been
diagnosed with hypertension, which he treats with four medications, and diabetes,
which he treats with two medications. Id. at 2. He contends that these underlying
conditions present a higher risk of fatality if he contracts COVID-19. Id. at 3–4.
Loper contends that he is a “model inmate” because he has completed a twelvehour drug program, he has taken parenting, boating-safety, and truck-driving classes,
and he has continuously been employed throughout his incarceration. Id. at 2, 5. He
also asserts that he has received no disciplinary action during his incarceration and
that he “has no public safety factors.” Id. at 5. Finally, he states that he has a “verifiable
release plan,” which includes residing with his mother in Plant City, Florida, where
he has a “tentative offer of employment.” Id. at 2. He asks the Court “grant his motion
for compassionate release, and modify the remainder of his sentence to home
detention, probation, or supervised release” under 18 U.S.C. § 3582(c)(1)(A). Id. at 7.
In response, the Government first outlines generally the response of the Bureau
of Prisons to COVID-19, including the BOP’s creation of a group to develop policies
in consultation with experts at the Centers for Disease Control.
1 Doc. 40 at 1–8. Next,
the Government argues that the Court must deny Loper’s alternative request to place
him on home confinement because the Court lacks authority to order that relief. Id. at
8–10. Proceeding to exhaustion of administrative remedies, the Government asserts
that Loper failed to exhaust his administrative remedies because he did not appeal the
warden’s denial of his request for compassionate release. Id. at 13.
Further, the Government contends that Loper has not demonstrated
“extraordinary and compelling reasons” under one of the categories set forth in
U.S.S.G. § 1B1.13, cmt. n.1. Id. at 13–18. The Government argues that neither
potential COVID-19 exposure nor COVID-19, by itself, qualifies as an extraordinary
and compelling reason. Id. at 14–15. Although conceding that BOP records and the
Pre-Sentence Report establish that Loper suffers from obesity, diabetes, and
hypertension, the Government argues that Loper fails to provide sufficient explanation
as to how these conditions will prevent him from providing self-care or how the low
1 The Centers for Disease Control’s correctional facility guidance includes the following
recommendations: enhanced cleaning and disinfecting hygiene practices; strategies limiting
transmission from visitors; social-distancing strategies; infection control, such as
recommended personal protective equipment and potential alternatives in the event of
shortages; healthcare evaluation for those individuals with suspected COVID-19; and
considerations for those individuals who face increased risk for severe illness from COVID19. Centers for Disease Control and Prevention, Interim Guidance on Management of Coronavirus
Disease 2019 (COVID-19) in Correctional and Detention Facilities,
https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidancecorrectional-detention.html#Overview (last accessed Nov. 3, 2021).
rate of COVID-19 at Coleman, in comparison to where he proposes to reside, presents
an extraordinary and compelling reason for his release. Id. at 16–17. Based on the
number of reported cases at Coleman at the time when the Government responded to
the motion, together with Coleman’s COVID protocols, the Government also claims
that Loper would be safer at Coleman than in the community, “where checks and
safeguards are being progressively relaxed through the phased reopening of businesses
and crowded events.” Id. at 17–18.
Finally, the Government argues that the § 3553(a) factors weigh against
granting Loper’s requested reduction. Id. at 18–19. To that end, the Government
contends that Loper would pose a danger to the public if the Court releases him. Id. at
19. The Government highlights that Loper’s criminal history dates back to 1993, with
the conduct giving rise to the conviction in this action involving methamphetamine
trafficking. Id. at 19–20. The Government also points out that Loper’s drug use was
extensive and, despite the recommendation for him to participate in the RDAP
program, he has not shown that he has completed that program. Id. at 20. These
grounds, the Government argues, militate against his release. Id. at 20–21.2
II. LEGAL STANDARDS
Under 18 U.S.C. § 3582(b), a judgment of conviction that includes a sentence
of imprisonment “constitutes a final judgment and may not be modified by a district
2 Afterwards, Loper filed a “Motion for Status Update as to Movant’s Motion for
Compassionate Release,” in which he “asks this Court to provide the status of his Motion for
Compassionate Release.” Doc. 44 at 1. Because the Court now rules upon Loper’s motion,
the Court will deny this later motion as moot.
court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010)
(internal quotation marks omitted). Limited circumstances are provided under 18
U.S.C. § 3582(c)(1)(A)(i). Effective December 21, 2018, the First Step Act of 2018
amended section 3582(c)(1)(A) by adding a provision that allows prisoners to directly
petition a district court for compassionate release. The statute provides:
The court may not modify a term of imprisonment once it has
been imposed except that—
(1) in any case—
(A) the court, upon motion of the Director of the
Bureau of Prisons, or upon motion of the
defendant after the defendant has fully exhausted
all administrative rights to appeal a failure of 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 that they are
applicable, if it finds that—
(i) extraordinary and compelling reasons
warrant such a reduction; or
(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 a 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
and that such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission; and
(B) the court may modify an imposed term of
imprisonment to the extent otherwise expressly permitted
by statute or by Rule 35 of the Federal Rules of Criminal
Procedure . . . .
18 U.S.C. § 3582(c)(1).
Accordingly, a court may reduce a sentence upon motion of a defendant
provided that: (A) the inmate has either exhausted his or her administrative appeal
rights of the BOP’s failure to bring such a motion on the inmate’s behalf or has waited
until 30 days after the applicable warden has received such a request; (B) the inmate
has established “extraordinary and compelling reasons” for the requested sentence
reduction; and (C) the reduction is consistent with the Sentencing Commission’s
policy statements. Id. Courts must consider the § 3553(a) factors, as applicable, as part
of the analysis. See id. § 3582(c)(1)(A).
The defendant bears the burden of establishing that compassionate release is
warranted. See United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013) (providing
that defendant bears the burden of establishing a reduction of sentence is warranted
under § 3582(c) due to a retroactive guideline amendment); United States v. Heromin,
No. 8:11-cr-550-VMC-SPF, 2019 WL 2411311, at *2 (M.D. Fla. June 7, 2019) (citing
Hamilton in the context of a § 3582(c) motion for compassionate release).
A. Loper Exhausted His Administrative Remedies
Loper exhausted his administrative remedies. Under 18 U.S.C. § 3582(c)(1), a
defendant must exhaust administrative remedies with the BOP prior to the filing of a
motion for compassionate release. “Section 3582(c)(1)(A) unambiguously provides
that a defendant may either move for compassionate release after the defendant has
fully exhausted administrative remedies or ‘the lapse of 30 days from the receipt of
such a request by the warden of the defendant’s facility, whichever is earlier.’” United
States v. Smith, 482 F. Supp. 3d 1218, 1223 (M.D. Fla. 2020) (emphasis in original)
(quoting 18 U.S.C. § 3582(c)(1)(A)). In other words, “§ 3582(c)(1)(A) gives a defendant
seeking compassionate release ‘the option to take his claim to federal court within 30
days of submitting a request to the warden, no matter the appeals available to him.”
Id. at 1334 (internal alterations omitted).
Here, Loper filed a request for a sentence reduction with the warden of Coleman
on April 9, 2020. The warden denied Loper’s request on May 6, 2020. Doc. 38 at 3.
The BOP did not move on Loper’s behalf for a reduction, and Loper filed the motion
more than 30 days after the warden’s receipt of his request. The Government’s
argument that the Court should not entertain Loper’s motion absent an appeal or after
a 30-day lapse from that appeal misreads the statute. See Smith, 482 F. Supp. 3d at
1224. Therefore, Loper exhausted his administrative remedies.
B. Loper Does Not Establish Extraordinary and Compelling Reasons
Loper fails to demonstrate “extraordinary or compelling reasons” for his
requested reduction. Loper bears the burden of establishing that compassionate release
is warranted. Hamilton, 715 F.3d at 337. Section 3582(c)(1), as amended by the First
Step Act, provides, in relevant part, that a court may modify a term of imprisonment
once it has been imposed in any case where, upon a defendant’s motion, after
considering the factors set forth in § 3553(a) to the extent that they are applicable, the
court finds that “extraordinary and compelling reasons warrant such a reduction” and
that such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission.3 18 U.S.C. § 3532(c)(1)(A); see United States v. Giron,
___F.4th___, 2021 WL 4771621, at *3 (11th Cir. Oct. 13, 2021) (identifying with
brackets the three findings needed under § 3582(c)(1)(A) for compassionate release).
Thus, Loper must demonstrate that “extraordinary and compelling reasons”
warrant his requested reduction. The application notes for Section 1B1.13—a policy
statement from the Sentencing Commission concerning § 3582(c)(1)(A)—specify “four
general categories of ‘extraordinary and compelling reasons’: medical, age, family, and
a ‘catch-all other reasons’ category.” Giron, 2021 WL 4771621, at *1 (citing United
States v. Bryant, 996 F.3d 1243, 1249–50 (11th Cir. 2021)). Section 1B.13 is an
applicable policy statement governing all motions filed—not only those filed by the
Director of the BOP—under § 3582(c)(1)(A). Bryant, 996 F.3d at 1262. As such, a
district court may not reduce a sentence under § 3582(c)(1)(A), unless a reduction is
3 Another basis for modifying a term of imprisonment is where “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 imposed, and
a 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).” 28 U.S.C. § 3532(c)(1)(A)(ii). Here, Loper is 47 years-old, and he has not served at
least 30 years of incarceration. Loper does not argue to the contrary.
consistent with 1B1.13. Id. If the court finds that an extraordinary and compelling
reason exists, “it must also determine that ‘[t]he defendant is not a danger to the safety
of any other person or to the community’ before granting compassionate release.”
Giron, 2021 WL 4771621, at *1 (quoting U.S.S.G. § 1B1.13(2)).
1. Loper’s Obesity, Diabetes, and Hypertension
Loper’s obesity, diabetes, and hypertension do not qualify as an extraordinary
and compelling reason for his release. The “medical” category under § 1B1.13A
provides, in relevant part, that a defendant’s medical condition may provide an
extraordinary and compelling reason to support a reduction in sentence when the
defendant (1) suffers “from a terminal illness (i.e., a serious and advanced illness with
an end of life trajectory)”; or (2) suffers “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.” U.S.S.G. § 1B1.13, cmt. n.1(A). Stable, controlled medical conditions do not
qualify as an extraordinary and compelling reason for a prisoner’s compassionate
release under § 1B1.13. See United States v. Wedgeworth, 837 F. App’x 738, 739–40 (11th
Cir. 2020) (affirming the district court’s finding of no extraordinary and compelling
reason for a defendant suffering from obesity and chronic hypertension because those
conditions were not terminal and did not substantially limit the prisoner’s ability to
provide self-care); United States v. Alexander, No. 3:17-cr-212-MMH-JBT, 2020 WL
7490088, at *2 (M.D. Fla. Dec. 21, 2020) (denying a defendant’s motion for
compassionate release where the defendant, who suffered from diabetes, high blood
pressure, and “mental problems,” acknowledged that he was prescribed medication to
manage those conditions and no evidence demonstrated that his conditions posed a
risk of death or grave harm or otherwise impaired his ability to provide self-care in the
Here, no evidence shows that Loper’s obesity, diabetes, and hypertension
constitute terminal illnesses, such as serious or advanced illnesses with end-of-life
trajectories, or serious physical or mental conditions that substantially impair his
ability to provide self-care within the prison and from which Loper is not expected to
recover. Instead, he recognizes that he takes medications to control his hypertension
and diabetes. And the Eleventh Circuit has affirmed a district court’s finding that
obesity and hypertension do not qualify as an extraordinary and compelling reason for
release. See Wedgeworth, 837 F. App’x at 739–40. As such, Loper fails to establish that
his obesity, diabetes, and hypertension qualify as an extraordinary and compelling
reason for his requested reduction.
2. Remaining Reasons
Loper offers other reasons for his requested reduction, none of which fall under
the “age” or “family” categories of “extraordinary and compelling reasons.” As such,
the Court turns to the catch-all category. Loper similarly fails to demonstrate
“extraordinary and compelling reasons” for a reduction under this category.
The fourth category, described as a “catch-all” provision, applies when, “[a]s
determined by the Director of the Bureau of Prisons, there exists in the defendant’s
case an extraordinary and compelling reason other than, or in combination with, the
reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13, cmt. n.1(D).
“This language preclude[s] district courts from finding extraordinary and compelling
reasons within the catch-all provision beyond those specified by the Sentencing
Commission in Section 1B1.13.” Giron, 2021 WL 2021 WL 4771621, at *2 (citing
Bryant, 996 F.3d at 1263–65). Indeed, the Sentencing Reform Act “did not put district
courts in charge of determining what would qualify as extraordinary and compelling
reasons that might justify reducing a prisoner’s sentence.” Bryant, 996 F.3d at 1249.
Thus, courts lack the freedom to define “extraordinary and compelling reasons.” Id.
Loper’s argument that conditions at Coleman warrant his release is unavailing.
Loper is now incarcerated at FPC Pensacola. FPC Pensacola has no confirmed
COVID-19 cases among inmates and only two confirmed COVID-19 cases among
staff. Federal Bureau of Prisons, COVID-19 Cases, https://www.bop.gov/coronavirus/
(last accessed Nov. 3, 2021). 325 prisoners and 54 staff members at FPC Pensacola are
fully vaccinated. Id. Not one inmate has died from COVID-19 at FPC Pensacola. Id.
Loper does not point to any determination by the Director of the BOP that the
conditions at Coleman or the conditions at FPC Pensacola constitute “extraordinary
and compelling reasons” under the catch-all provision. Similarly, although Loper
contends that his underlying medical conditions present a higher risk of fatality if he
contracts COVID-19, he fails to point to any determination by the Director of the BOP
that a greater risk of fatality upon possible contraction constitutes an “extraordinary
and compelling reason.”
Therefore, Loper fails to demonstrate “extraordinary and compelling reasons”
for his requested reduction.
Outcome: Loper exhausted his administrative remedies, but he fails to demonstrate
“extraordinary and compelling reasons” for his requested reduction. Because he fails
to establish “extraordinary and compelling reasons” for his requested reduction, the
Court need not analyze the § 3553(a) factors. Giron, 2021 WL 4771621, at *3 (“When
denying a request for compassionate release, a district court need not analyze the §
3553(a) factors if it finds either that no extraordinary and compelling reason exists or
that the defendant is a danger to the public.”); see Bryant, 996 F.3d at 1254 (“So to
apply 1B1.13, a court simply considers a defendant’s specific circumstances, decides if
he is dangerous, and determines if the circumstances meet any of the four reasons that
could make him eligible for a reduction. If he is dangerous or if his circumstances do
not match any of the four categories, then he is ineligible for a reduction. If he is not
dangerous and his circumstances fit into an approved category, then he is eligible, and
the court moves on to consider the Section 3553(a) factors in evaluating whether a
reduction should be granted.”).
Finally, to the extent that Loper asks for home confinement, the Court denies
that request. Generally, once a court imposes a sentence, the BOP is solely responsible
for determining an inmate’s place of incarcerate to serve that sentence. See Tapia v.
United States, 564 U.S. 319, 331 (2011) (“A sentencing court can recommend that the
BOP place an offender in a particular facility or program . . . . [b]ut decisionmaking
authority rests with the BOP.”); 18 U.S.C. §3621(b) (“The Bureau of Prisons shall
designate the place of the prisoner’s imprisonment . . . .”); see also McKune v. Lile, 536
U.S. 24, 39 (2002) (plurality opinion) (“It is well settled that the decision where to
house inmates is at the core of prison administrators’ expertise.”). Loper provides no
legal authority to show that the Court may order home confinement here. Thus, to the
extent that he seeks home confinement, the Court denies that request.
Accordingly, it is hereby ORDERED:
1. Defendant’s Motion for Compassionate Release or Reduction in
Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A) (Doc. 32) is DENIED.
2. Defendant’s Motion for Status Update as to Movant’s Motion for
Compassionate Release (Doc. 44) is DENIED AS MOOT.
DONE AND ORDERED in Tampa, Florida on November 3, 2021