ELIZABETH A. WOLFORD, United States District Judge

Charles E. Moynihan, U.S. Attorney's Office, Rochester, NY, for United States of America.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. INTRODUCTION

Defendant Reynaldo Colon (hereinafter "Defendant"), through his counsel, has filed a motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). (Dkt. 67). The basis for Defendant's motion is the COVID-19 pandemic, and his medical conditions of pre-diabetes and obesity with a Body Mass Index of 30.6. For the reasons set forth below, Defendant's motion is denied.

II. BACKGROUND

Defendant is 23 years old. (Dkt. 48 at 2). On March 23, 2018, Defendant pleaded guilty to a two-count information charging violations of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (possession with the intent to distribute fentanyl) and 18 U.S.C. § 922(j) (possession of a stolen firearm). (Dkt. 37; Dkt. 38). The parties agreed in the plea agreement that the Sentencing Guidelines would recommend a prison sentence of 70 to 87 months (Dkt. 38 at ¶ 14), but the undersigned concluded that the upward departure provided for in the plea agreement was not consistent with the Guidelines (Dkt. 62), and instead found that the Guidelines recommended a prison sentence of 24 to 30 months (Dkt. 65). At the sentencing on November 28, 2018, the Court imposed an above-Guidelines aggregate prison sentence of 42 months. (Dkt. 63; Dkt. 64; Dkt. 65). The Court also sentenced Defendant to a supervised release term of three years. (Dkt. 64). Defendant is presently housed at Federal Correctional Institution Loretto ("FCI Loretto") and is due to be released from the Bureau of Prisons ("BOP") on October 9, 2021. (Dkt. 67 at 3). According to the BOP, there are no inmates currently testing positive at FCI Loretto for the virus causing COVID-19, although 16 staff members are currently testing positive. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited April 3, 2021). That same website indicates that no inmates or staff at FCI Loretto have died from COVID-19; 688 inmates have contracted the virus and recovered along with 49 staff members; and 128 staff and 350 inmates have completed inoculations for the COVID-19 vaccine. (Id. ). According to the BOP, the facility houses 747 inmates. See Fed. Bureau of Prisons, https://www.bop.gov/locations/institutions/lor/ (last visited April 3, 2021). This means that over 90% of the inmate population at FCI Loretto has contracted the virus, and almost 50% of the inmate population has been fully vaccinated.

Defendant states that he "shares a cell with five other inmates and is thus ‘housed with many other people in conditions that will inevitably permit the virus to spread,’ which it has continued to do at FCI Loretto in particular over the last three to four months." (Dkt. 67 at 10) (quoting United States v. Scparta , No. 18-CR-578, ––– F.Supp.3d ––––, ––––, 2020 WL 1910481, at *1 (S.D.N.Y. Apr. 20, 2020) ). Defendant cites to various other courts that have been critical of FCI Loretto's efforts to thwart the spread of the virus. (See id. at 8-11). Defendant also cites to criticism of the facility's handling of the pandemic by the press and the president of the local union representing staff at the facility. (Id. at 11-12). Indeed, with a rate of infection among the inmate population of over 90%, it would appear that FCI Loretto has historically been tragically unsuccessful at stopping the spread of the virus among its inmate population. On the other hand, its past failures appear to be just that—with no inmates currently testing positive for the virus and almost half of its inmate population fully vaccinated.

The government opposes Defendant's motion on the ground that he has not established extraordinary and compelling reasons justifying a sentence reduction, citing among other things to Defendant's apparent refusal to accept the COVID-19 vaccine on or about March 4, 2021. (Dkt. 70 at 8-10). The government argues: "[W]hile the defendant can refuse to receive the vaccine, he cannot have it both ways. The defendant cannot claim that the health risks associated with his incarceration during the COVID-19 pandemic present an ‘extraordinary and compelling reason’ warranting his compassionate release, while at the same time declining to take a vaccine that would protect him from those same risks." (Id. at 10). The government further argues that the conditions at FCI Loretto are "stable" despite its earlier problems. (Id. at 12). Finally, the government argues that the factors set forth at 18 U.S.C. § 3553(a) do not support Defendant's release. (Id. at 14-15).

Defendant has submitted a reply in support of his motion wherein, among other things, he argues that he should not be penalized for refusing to accept the vaccine because while the risk of sustaining an anaphylactic reaction to the vaccine is slim, Defendant is also concerned about the ability of staff at FCI Loretto to address any such reaction given its past failures to protect against the spread of the virus. (Dkt. 71 at 3-4).

In addition to the submissions of the parties, the Court has received a memorandum from the United States Probation Office dated March 16, 2021. (Dkt. 72). Among other things, that memorandum cites to a disciplinary action and nine incident reports involving Defendant while he has been incarcerated, and the reference by Defendant to being in "good physical health with no medical problems reported" during his Presentence Investigation Report interview. (Id. at 2; see Dkt. 48 at ¶ 83).

III. LEGAL STANDARD AND ANALYSIS

"A court may not modify a term of imprisonment once it has been imposed except pursuant to statute." United States v. Gotti , 433 F. Supp. 3d 613, 614 (S.D.N.Y. 2020). The compassionate release statute, as amended by the First Step Act, is such a statutory exception, and provides as follows:

The court may not modify a term of imprisonment once it has been imposed except that ... the court, upon motion of the Director of the [BOP] ..., or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] ... 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 ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A). Relief is appropriate pursuant to § 3582(c)(1)(A) when the following conditions are met: (1) the exhaustion requirement of the statute is satisfied; (2) extraordinary and compelling reasons warrant a reduction of the prison sentence; and (3) the factors set forth at 18 U.S.C. § 3553(a) support modification of the prison term. "The defendant carries the burden of showing that he or she is entitled to a sentence reduction under the statute." United States v. Roney , No. 10-CR-130S, 2020 WL 2846946, at *2 (W.D.N.Y. June 2, 2020), aff'd , 833 F. App'x 850 (2020).

Here, Defendant states that he submitted a request for compassionate release to FCI Loretto's Warden on January 19, 2021, which was denied on January 21, 2021. (Dkt. 67 at 20-21). Accordingly, the exhaustion requirement of the statute is satisfied and the government agrees. (Dkt. 70 at 3). Thus, the issues driving resolution of the pending motion are whether Defendant has established extraordinary and compelling circumstances justifying a sentence reduction, and whether the § 3553(a) factors support such a reduction. The Court answers both of those questions in the negative and concludes that the motion should be denied.

With respect to whether extraordinary and compelling circumstances exist, the Court recognizes the medical conditions cited by Defendant that, at least with respect to his obesity, have been found by the Centers for Disease Control and Prevention ("CDC") to present a heightened risk of serious illness. However, a number of factors must be considered when "a defendant argues that medical vulnerability to COVID-19 constitutes ‘extraordinary and compelling reasons’ justifying compassionate release," because the inquiry is "fact-intensive" and must consider, among other factors, "the defendant's age, the severity and documented history of the defendant's health conditions, defendant's history of managing those conditions in prison, the proliferation and status of infection at defendant's facilities, and the proportion of the term of incarceration that has been served." United States v. Gibson , 117-CR-0657, 2020 WL 7343802, at *3 (E.D.N.Y. Dec. 14, 2020). Here, Defendant is only slightly over the BMI level that classifies an individual as obese, and his age is a positive factor when considering his risk of serious illness from COVID-19. In addition, while FCI Loretto was facing a crisis previously with respect to its management of the pandemic, it appears to have gotten things under control, with no inmates currently testing positive for the virus. In fact, based upon the level of infection and percentage of inmates fully vaccinated, one could even conclude that unlike much of the country, FCI's inmate population has reached that elusive status of herd immunity from COVID-19.

Moreover, the Court questions Defendant's decision not to accept the vaccine that was apparently offered to him. While there may be a slight risk factor associated with the vaccine and even accepting Defendant's arguments about the ability of the staff to take appropriate precautions in the event Defendant experiences an adverse reaction, any such risks seem to be significantly outweighed by the risk factors associated with contracting COVID-19. Thus, Defendant's decision not to accept a vaccine appears to undermine the legitimacy of his concerns about COVID-19.

Based on the above, the Court concludes that Defendant has failed to establish extraordinary and compelling circumstances. In addition, even if Defendant could establish extraordinary and compelling circumstances, the Court concludes that the § 3553(a) factors do not support a sentence reduction. See Roney , 833 F. App'x at 853 ("We need not decide whether Roney has proffered an extraordinary and compelling reason that warrants his release under 18 U.S.C. § 3582(c)(1)(A)(i) because, even assuming arguendo that he has, we discern no abuse of discretion in the district court's conclusion that release is nevertheless unwarranted upon consideration of the § 3553(a) factors."); United States v. Ebbers , 432 F. Supp. 3d 421, 430 (S.D.N.Y. 2020) (The existence of extraordinary and compelling circumstances "determines only whether a defendant can be considered for release—the existence of such reasons does not mandate release."). The Court recognizes that Defendant had no criminal history points at the time of the present conviction, but Defendant's record while incarcerated has not been stellar and the Court further notes that Defendant's bail was revoked prior to his sentencing in the instant matter. (See Dkt. 51; Dkt. 53; Dkt. 54). This causes the Court to be concerned about Defendant's compliance with supervised release conditions or any other condition that the Court would set if Defendant is placed on home confinement. Moreover, Defendant's underlying crime was serious and represents dangerous activity that significantly threatened the safety of the community—admitting as part of his plea that he possessed fentanyl and cocaine that was packaged for distribution, along with a semiautomatic pistol that Defendant knew had been stolen. (Dkt. 38 at ¶ 5). The Court appreciates the difficult personal circumstances faced by Defendant's girlfriend and his young son (see Dkt. 67 at ¶¶ 27-29), as well as the fact that Defendant is scheduled to be released from prison later this year, see United States v. Butler , No. 20-1379-CR, 845 F. App'x 74, 75(2d Cir. Mar. 29, 2021) ("it is entirely within the district court's discretion to consider how much time an inmate has already served of his overall sentence when the court is weighing whether a release for extraordinary and compelling circumstances is consistent with the Section 3553(a) factors"), but the Court cannot conclude that the § 3553(a) factors that warranted the imposition of a 42-month prison sentence have changed even in view of this pandemic. Rather, based on its consideration of all the § 3553(a) factors, the Court concludes that reducing Defendant's sentence would undermine the fairness and purpose of the original sentence in this case. See Roney , 833 F. App'x at 854 ("[C]ourts regularly consider whether compassionate release would be consistent with § 3553(a) by considering how early release would impact the aims of the original sentence.").

IV. CONCLUSION

For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Dkt. 67) is denied.

SO ORDERED.