DONOVAN W. FRANK United States District Judge

MEMORANDUM OPINION AND ORDER

Craig S. Hunter, Esq., Northland Law, counsel for Defendant. Thomas Calhoun-Lopez, Assistant United States Attorney, United States Attorney's Office, counsel for the Government.

INTRODUCTION

This matter is before the Court on Defendant Beth Marie Milbrandt's ("Milbrandt") Motion for Compassionate Release in light of the COVID-19 pandemic. (Doc. No. 76 ("Motion").) The United States of America (the "Government") opposes Milbrandt's Motion. (Doc. No. 91.) The Court also received and considered Milbrandt's reply to the Government's opposition. (Doc. No. 94 ("Reply").) For the reasons discussed below, the Court respectfully denies Milbrandt's Motion.

BACKGROUND

On June 15, 2016, Milbrandt pled guilty to one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. (Doc. Nos. 63,64.) On October 5, 2016, this Court sentenced her to 120 months' imprisonment to be followed by a 5-year term of supervised. (Doc. No. 74.)

Milbrandt is currently incarcerated at Waseca FCI in Waseca, MN with an anticipated release date of October 5, 2024. Federal Bureau of Prisons, Inmate Locator, https://www.bop.gov/inmateloc/ (last visited Jan. 14, 2021). Waseca FCI reports 0 active COVID-19 cases among its inmates and 3 among its staff, 442 inmates and 23 staff who have recovered from COVID-19, and no inmate or staff deaths from the virus. Federal Bureau of Prisons, COVID-19: Coronavirus, https://www.bop.gov/coronavirus/ (last visited Jan. 14, 2020). To date, the BOP has performed 617 tests for COVID-19 tests at Waseca FCI with 443 tests positive for the virus. Id.

Milbrandt now moves for compassionate release pursuant to 18 U.S.C. § 3582(c) on the grounds that she is vulnerable to severe infection from COVID-19 because she suffers from obesity, chronic hypothyroidism, a history of kidney stones, and pyelonephritis. (Def. Memo. at 7-9; see also Doc. No. 88 ("Hunter Decl."), Ex. G ("Medical Records").)

Milbrandt also contends that because she previously contracted COVID-19 in September 2020 and continues to suffer lingering effects, she is at risk for more serious outcomes if reinfected. (Def. Memo at 8-9; see also Hunter Decl. Exs. F, H. ) She argues further that she is particularly vulnerable to reinfection at Waseca FCI because the facility previously failed to prevent and effectively respond to an outbreak of COVID-19. (Def. Memo. at 8-12; see also Hunter Decl., Ex. I.) Moreover, Milbrandt contends that the sentencing factors 18 U.S.C. § 3553(a) support release. (Def. Memo. at 14-15.)

DISCUSSION

The First Step Act allows the Court to reduce a defendant's term of imprisonment if it finds that "extraordinary and compelling reasons warrant such a reduction." 18 U.S.C. § 3582(c)(1)(A)(i). Such "extraordinary and compelling reasons" include (1) medical conditions which diminish the ability of the defendant to provide self-care in prison and from which he or she is not expected to recover, (2) age-related deterioration, (3) family circumstances, and (4) other extraordinary and compelling reasons that exist either separately or in combination with the previously described categories. U.S.S.G. § 1B1.13 ("Sent'g Comm'n Pol'y Statement" or "Statement"), cmt. n.1(a)(ii). If "extraordinary and compelling reasons" exist, a reduction of sentence is appropriate when "the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)" and "the reduction is consistent with [the Sentencing Commission's] policy statement." Statement. The Court must also consider the sentencing factors set forth in 18 U.S.C. § 3553(a) "to the extent they are applicable." 18 U.S.C. § 3582(c)(1)(A).

Notwithstanding, a defendant may move for a sentence reduction only after complying with an exhaustion requirement. 18 U.S.C. § 3582(c)(1)(A). Specifically, a defendant may move for a sentence reduction "[1] 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 [2] the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier . . . ." Id.

The record reflects that Milbrandt requested compassionate release from the warden at Waseca FCI on October 12, 2020 and that it was denied on October 23, 2020. (Hunter Decl., Exs. D, E.) Accordingly, the Court finds that her Motion is properly before it.

Notwithstanding, after a careful review of Milbrandt's Motion, Medical Records, and other documentation, the Court finds that her circumstances do not meet the demanding standard necessary for compassionate release. The Court acknowledges that Milbrandt's obesity places her at heightened risk of severe illness should she contract COVID-19 again. Centers for Disease Control and Prevention, Coronavirus Disease: People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Jan. 14, 2021). This Court agrees with other courts, though, that obesity alone is an insufficiently extraordinary and compelling reason to warrant compassionate release. See, e.g., United States v. Garcia, Cr. No. 10-275 (02) (MJD), 2020 WL 5500455, at *2 (D. Minn. Sept. 11, 2020) (finding obesity insufficiently extraordinary or compelling reason to warrant compassionate release); United States v. Hennessey, Cr. No. 18-304 (JRT/KMM), 2020 WL 4209020, at *1 (D. Minn. July 22, 2020) (same); United States v. Edison, Cr. No. 12-225 (DWF), 2020 WL 3871447, at *3 (D. Minn. July 9, 2020) (same); United States v. Smith, Cr. No. 16-169 (04) (MJD), 2020 WL 5424858, at *1 (D. Minn. Sept. 10, 2020) (finding that obesity and diabetes did not demonstrate extraordinary and compelling reasons); United States v. Capehart, Cr. No. 14-344-4 (JRT/TNL), 2020 WL 6119998, at *2 (D. Minn. Oct. 16, 2020) (finding that obesity and asthma did not demonstrate extraordinary and compelling reasons); United States v. Wright, Cr. No. 17-0301 (WMW/DTS), 2020 WL 733412, at *4, (D. Minn. Dec. 14, 2020) (finding obesity insufficiently extraordinary or compelling reason to warrant compassionate release).

The Court also understands Milbrandt's concern that she will be reinfected with the virus, particularly in light of the lingering effects she continues to experience, and the fact that she is incarcerated at Waseca FCI. Notwithstanding, the Court finds that previous infection, even in combination with obesity and placement at Waseca FCI, is also an insufficiently extraordinary and compelling reason to warrant release. See, e.g., United States v. Somers, Cr. No. 18-96 (DWF), 2020 WL 5097097, at *4 (D. Minn. Aug. 28, 2020) (denying compassionate release for defendant who had twice contracted the virus and who suffered obesity, diabetes, and high blood pressure); United States v. Lemon, Cr. No. 08-246 (DSD), Doc. No. 93 at 5 (D. Minn. Jun. 24, 2020) (same).

The Court recognizes the grand failure of Waseca FCI to prevent and properly mitigate the spread of COVID-19 such that nearly 70% of its population, including Milbrandt, suffered from the virus. (See Hunter Decl., Ex. H.) It is promising, though, that there are currently no active COVID-19 cases in the facility. Moreover, it appears that the facility has been able to effectively treat the ill and so far, has been able to prevent any death. The Court also notes that the Bureau of Prisons ("BOP") has developed a plan, that when implemented, the Court deems sufficient to prevent and mitigate the spread of the virus.

The Court does not downplay the seriousness of COVID-19, particularly in a prison setting. Notwithstanding, the Court finds that none of Milbrandt's medical conditions, alone or in combination, are sufficiently extraordinary and compelling to satisfy the high standard necessary for compassionate release. To the extent that Milbrandt seeks transfer to a different facility, the Court encourages her to petition the warden at Waseca FCI as the BOP has exclusive authority to determine the placement of prisoners. See 18 U.S.C. § 3624(c)(2).

Moreover, even if the Court were to find extraordinary and compelling circumstances, the Court would decline to grant release because it cannot conclude that she no longer poses "a danger to the safety of any other person or the community." Statement. Moreover, the Court finds that the § 3553(a) sentencing factors weigh against release. 18 U.S.C. § 3553(a).

While the Court commends Milbrandt for her commitment to rehabilitation and zero disciplinary infractions since her sentencing, the Court cannot overlook her prior criminal activity to now conclude that she no longer poses a danger to the public after serving approximately just half of her sentence. (See Doc. No. 66 ¶¶ 52, 53.) The Court finds that such a significant sentence reduction would not adequately address the seriousness of the charges of Milbrandt's conviction, promote respect for the law or provide a just punishment.

It is truly unfortunate that an outbreak of the virus occurred at Waseca FCI and that Milbrandt was one of hundreds who became ill. Sadly, until there is a vaccine widely available, some level of continued spread is inevitable. In spite of the risk, the BOP must continue to carry out its charge to incarcerate sentenced criminals to protect the public and any release must be balanced against the danger it poses to society. Here the factors weigh against release.

In short, while the Court understands the gravity of the COVID-19 pandemic and recognizes Milbrandt's concerns, the Court finds that the circumstances do not warrant release. Accordingly, the Court respectfully denies Milbrandt's Motion.

CONCLUSION

For the reasons set forth above, the Court finds that Milbrandt is ineligible for compassionate release because she does not present an extraordinary and compelling reason, the Court cannot determine that she no longer poses a threat to society, and because the § 3553(a) factors weigh against release.

ORDER

Based upon the foregoing, and on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendant Beth Marie Milbrandt's Motion for Compassionate Release in light of the COVID-19 pandemic (Doc. No. [76]) is respectfully DENIED. Date: January 15, 2021

s/Donovan W. Frank

DONOVAN W. FRANK

United States District Judge