JUDGE HOLLY A. BRADY UNITED STATES DISTRICT COURT

OPINION AND ORDER

Defendant Arthur Cooper, a federal prisoner housed at FCI - Terre Haute in Indiana has filed a Motion for Reconsideration (ECF No. 77) along with his medical records in support of the motion (ECF No. 76). In his Motion, the Defendant seeks review of this Court's August 20, 2020, Opinion and Order denying his Petition to Reduce Sentence under the First Step Act. (ECF No. 74). In that Opinion and Order, the Court concluded that the Defendant did not meet the criteria for compassionate release in that he did not demonstrate "extraordinary and compelling reasons" for a sentence reduction and any reduction was inconsistent with the § 3553(a) factors.

Defendant's latest motion asserts that the Court had "incorrect information" before it at the time it ruled on his request for compassionate release and seeks to clarify that information. Specifically, he asserts that the Court did not have accurate information regarding the COVID conditions at FCI Terre Haute, where he is currently housed. Additionally, the Defendant has now obtained and submitted his medical records supporting his various medical conditions for the Court's review. (ECF No. 76)

This Court has previously set forth the requirements for compassionate release under 18 U.S.C. § 3582(c)(1)(A) as enlightened by the policy statement in U.S.S.G. §1B1.13 and need not further repeat them here. Additionally, this Court has hitherto recounted the Defendant's history and background to the extent it is relevant to a motion for compassionate release. See ECF No. 74. To summarize the Defendant's circumstances, he is presently serving a 144-month sentence for possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a), with an anticipated release date from FCI - Terre Haute of May 3, 2025.

In his present request, the Defendant relies on the following medical conditions to demonstrate "extraordinary and compelling reasons" for a sentence modification: spinal stenosis, lung scarring due to tuberculosis exposure, arthritis, enlarged prostate, and obesity. Of these conditions, only two - obesity and pulmonary fibrosis (scarring of the lungs) - are recognized by the Center for Disease Control as increasing or potentially increasing the likelihood of severe illness from COVID-19. See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last accessed November 18. 2020).

With respect to the Defendant's claim of obesity, the CDC indicates that individuals of any age with a BMI greater than 30 are at increased risk of severe illness from the virus. The Defendant represents in his motion that he weighs 245 pounds. However, the latest medically recorded weight for the Defendant was on May 12, 2020 where he weighed in at 233 pounds. The Defendant's presentence report lists the Defendant's height as 6'2". Thus, based on his last medically recorded weight, the Defendant squeaks in at just under a BMI of 30. However, even if the Court takes the Defendant at his word, his BMI is 31.5, just over the weight required to be classified as obese. Regardless of which BMI value is considered, there is nothing in the medical records or in the Defendant's motion suggesting his weight "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." See U.S.S.G. 1B1.13 (requiring a defendant relying on a serious physical or medical condition to demonstrate a diminution in self-care abilities as a result of the condition). Thus, the Defendant's obesity does not support his request for compassionate release.

With respect to his claim that he has lung scarring from tuberculosis exposure, this is simply not supported by the medical evidence he presents. There is a medical note from June 15, 2016 mentioning the Defendant's "suspected" exposure to tuberculosis. Howver, a chest x-ray taken 8 days earlier was normal and there is no mention of lung scarring in the records or any evidence that he has had further testing or any treatment for tuberculosis.

As for his other ailments, other than a mention of Defendant's enlarged prostate in the records, there is nothing additional to support any contention that this condition impairs the Defendant's ability to provide self-care or is causing him particular problems. From the mention of his prostate in the records it is clear that the BOP is aware of the condition and monitoring it. Similarly, while the records support the Defendant's claim of spinal stenosis, the medical records demonstrate that the BOP has managed this condition, provided reasonable accommodations to his living conditions at the prison, and prescribed medications to alleviate pain. Thus, neither of the remaining ailments are sufficiently serious for the Court to consider them "extraordinary or compelling."

The Defendant's final concern is that the COVID-19 virus is running rampant through both Terre Haute's camp and the FCI and he represents that there are more than 100 active COVID cases. (ECF No. 77). This is simply not borne out in the record. According to the BOP website, FCI Terre Haute, a facility housing over 1,096 inmates (at both the camp and FCI), is currently reporting 67 positive inmate cases, 11 positive staff, 1 inmate or staff deaths and a combined 160 inmate and staff that have recovered from infection. Given the recovery rate as well as the fact that there has been only a single death from COVID-19 since the approximate nine months that the United States has been dealing with this pandemic, the Court is hard-pressed to conclude that the conditions at FCI Terre Haute are so dire that they require the Defendant's release. See United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) ("[T]he mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release."). For all the above reasons, then, the Court concludes that the Defendant has not met his burden of demonstrating any extraordinary and compelling circumstances warranting release.

However, even if the Defendant did meet his burden, the Court continues to hold the view espoused in its original Opinion and Order that the factors under 18 U.S.C. §3553 (a) do not weigh favorably to the Defendant. The Defendant does argue that the Court has, in some fashion, exaggerated his criminal history because, in his view, convictions for traffic violations and child support violations are not serious concerns because there was "no prison, no drug charges, or any serious charge." (ECF No. 77 at 1). Even if the Court adopted the Defendant's view (it does not), the Defendant was determined to be a career offender at the time of sentencing in this case. Moreover, in at least one of his state court cases from 2011, the sentencing judge found as aggravating circumstances the fact that the Defendant's criminal history included nine misdemeanors, and five felonies, three of which were for dealing cocaine, and all prior attempts at rehabilitation had failed. (Presentence Investigation Report, ¶ 71, ECF No. 59). Based on these same aggravators, this Court sentenced the Defendant to 144 months imprisonment to promote respect for the law, protect the public from further crimes of the Defendant and to afford adequate deterrence. A sentence modification under these circumstances would thwart the very purpose of sentencing in this case and undermine the considerations in § 3553(a).

CONCLUSION

For the reasons, set forth in detail above, the Court concludes that the requirements for a sentence modification under the compassionate release provisions in 18 U.S.C. §3582(c)(1)(A) have not been met. The Defendant's Motion for Reconsideration (ECF No. 77) is, therefore, DENIED.

So ORDERED on November 23, 2020.

s/ Holly A. Brady

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT