ELIZABETH A. WOLFORD, United States District Judge

Joseph M. Tripi, U.S. Attorney's Office, Buffalo, NY, for United States of America.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

I. INTRODUCTION

Pending before the Court is a motion filed by defendant Jimmy Ray Fritts (hereinafter "Defendant") for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Dkt. 163). For the reasons set forth below, Defendant's request is denied. II. BACKGROUND

Defendant, who was convicted pursuant to a plea agreement of a RICO conspiracy in violation of 18 U.S.C. § 1962(d) related to the Kingsmen Motorcycle Club ("KMC"), was sentenced by this Court on April 3, 2019, to 87 months in prison to be followed by three years supervised release. (Dkt. 142). Defendant contends that compassionate release is warranted because of the COVID-19 pandemic, his age (he is 70 years old), and his pre-existing medical conditions that make him vulnerable to serious illness from the virus causing COVID-19. Defendant is currently housed at Federal Correctional Institution Butner (Low) ("FCI Butner (Low)") in Butner, North Carolina, and he is scheduled to be released on December 16, 2023. See Find an Inmate , Fed. Bureau of Prisons, https://www.bop.gov/inmateloc/ (last visited Dec. 15, 2020). According to statistics published on a Bureau of Prisons ("BOP") website, FCI Butner (Low) previously had an outbreak of COVID-19, with 578 inmates and 22 staff members noted as recovered from the disease, and 17 inmates having died along with one member of its staff. See COVID-19: Coronavirus , Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Dec. 15, 2020). Defendant's motion papers state that the facility experienced at least a 60% rate of spread of COVID-19, but the "actual percentage could be even higher as the facility is not providing antibody testing to capture asymptomatic positive and recovered inmates." (Dkt. 163-3 at 10).

The government has opposed Defendant's motion, arguing that he has failed to demonstrate extraordinary and compelling circumstances, and the factors set forth in 18 U.S.C. § 3553(a) do not justify a sentence reduction. (Dkt. 166). In addition, the United States Probation Department ("USPO") submitted a memorandum to the Court dated November 16, 2020, wherein it indicates its opposition to Defendant's motion. (Dkt. 168).

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 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 ... 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 government does not oppose Defendant's application on exhaustion grounds, as he filed a request with the Warden at FCI Butner (Low) for release and that request was denied on April 21, 2020. (Dkt. 166 at 8; see also Dkt. 163-3 at 47-48). See United States v. Wen , 454 F. Supp. 3d 187, 194 (W.D.N.Y. 2020) (as a claim-processing rule, § 3582(c)(1)(A) ’s exhaustion requirement is not jurisdictional and thus subject to the doctrines of waiver and equitable estoppel). Thus, the exhaustion requirements of the statute do not operate to bar the Court's consideration of the motion.

The government argues that Defendant has failed to establish extraordinary and compelling reasons for a sentence reduction because FCI Butner (Low), while facing previous challenges, has now "taken the correct measures to combat the spread of the coronavirus." (Dkt. 166 at 9). The government goes on to detail various measures that it contends that FCI Butner (Low) has taken, and the USPO has similarly detailed various precautions in its memorandum. In contrast, Defendant has submitted his own affidavit and statements from others at FCI Butner (Low) suggesting otherwise. Given the previous large numbers of infected individuals at FCI Butner (Low), including Defendant, and the submissions from Defendant, the Court is, at the very least, skeptical that FCI Butner (Low) has taken the steps necessary to effectively combat the spread of COVID-19. While the number of current reported cases demonstrates its present success, the reality is that even if the facility has learned from its earlier failings and implemented additional precautions, this is a highly contagious virus that spreads through close contact—thus making it particularly difficult to combat in a prison setting even under the best of circumstances.

However, the factors set forth at 18 U.S.C. § 3553(a) are fatal to Defendant's motion. More specifically, the Court denies the motion because of the nature and circumstances of the offense and the history and characteristics of Defendant, the need to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of Defendant, and the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. When addressing the § 3553(a) factors, Defendant focuses primarily on his claims that he has been rehabilitated (Dkt. 163-7 at 15-18)—and the Court hopes that this is the case. But what Defendant does not address are the particularly appalling circumstances surrounding his criminal conviction. As summarized succinctly by the USPO in its memorandum:

[Defendant's] involvement in the instant offense was extensive and serious. The defendant was at various times a ... KMC Moonshine Chapter President and a regular full-patch KMC member. The defendant actively engaged in the distribution of controlled substances, firearms possession, and violent acts. Specifically, the defendant played an integral role in the decision to murder "leakers," KMC members he and others believed were providing information to rival motorcycle clubs. The defendant provided Andre Jenkins with a stolen 9 mm Glock firearm to commit the murders, and he also allowed Jenkins to ride his motorcycle from Tennessee to Western New York to carry out the murders. The defendant was also involved in the decision to kill another victim, D.S., but that murder was not carried out before Andre Jenkins was arrested in Georgia. If all those circumstances are not egregious enough, the defendant then obstructed justice when he testified falsely and evasively about material facts before a federal Grand Jury in the Western District of New York on July 15, 2015.

(Dkt. 168 at 3; see also Dkt. 166 at 14-18). Indeed, one could reasonably argue that the execution-style double homicide that was a central focus of this case, may not have occurred had it not been for Defendant's assistance. At a minimum, Defendant's actions facilitated the murders. Releasing Defendant at this point, notwithstanding his age, pre-existing medical conditions, and the COVID-19 pandemic, would seriously undermine the goals of sentencing as reflected by the Court's original sentence. See United States v. Roney , 833 F. App'x 850, 853–54, No. 20-1834, 2020 WL 6387844, at *2 (2d Cir. Nov. 2, 2020) ("[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."). As it is, Defendant has already received a significant sentence reduction by virtue of the § 5K1.1 reduction. Moreover, as the government notes in its opposition papers, Defendant engaged in criminal conduct as part of this conspiracy notwithstanding his advanced age and health challenges—thus undermining the argument that those characteristics would somehow prevent Defendant from engaging in further criminal conduct. (Dkt. 166 at 18-19). In sum, the Court concludes that a reduction of Defendant's prison sentence is not warranted.

IV. CONCLUSION

For the foregoing reasons, Defendant's motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) (Dkt. 163) is denied.

SO ORDERED.