LESLIE A. GARDNER, JUDGE

Elizabeth S. Howard, US Attorney's Office, Macon, GA, for United States of America.

ORDER

LESLIE A. GARDNER, JUDGE

Before the Court is Defendant Kelly Milner's Exigent Motion to Modify Sentence Due to the COVID-19 Pandemic and Relief Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Doc. 323 ). Therein, Defendant moves the Court to modify his term of imprisonment to time served and impose a special condition of supervised release that he serve the remainder of his prison sentence on home confinement. (Id. at 1.) For the reasons set forth below, the Court reserves ruling on the Motion pending an evidentiary hearing.

PROCEDURAL BACKGROUND

On June 15, 2016, Defendant was indicted on one count of conspiracy to possess with intent to distribute methamphetamine and one count of distribution of methamphetamine. (Doc. 1.) Defendant pleaded guilty to one count of possession with intent to distribute methamphetamine. (Docs. 227–29.) On January 8, 2018, the Court sentenced Defendant to thirty-six months imprisonment followed by three years supervised release. (Doc. 309.) Defendant self-surrendered on March 13, 2018 to the Federal Bureau of Prisons' (BOP) Federal Medical Center (FMC) in Fort Worth, Texas. (Doc. 323 at 2.) His prison sentence is set to end on September 26, 2020, with a tentative home detention date of June 10, 2020. (Id. ; Doc. 325 at 3; Doc. 324 at 2.) Defendant filed the instant Motion on March 25, 2020. (Doc. 323.) The Government responded on March 27, and Defendant replied on April 1. ^, (Docs. 324–26.) FACTUAL BACKGROUND

I. Defendant's Illness

Defendant's primary physician, Dr. Ben Thrower, is a board-certified neurologist who treated Defendant at the Shepherd Center in Atlanta, Georgia from around 2003 through 2017. (Doc. 323-1.) In a letter submitted to the Court, Dr. Thrower explains that Defendant has multiple sclerosis (MS), "a progressive illness" that "needs continuous treatment to help slow progression." (Id. ) MS symptoms may include "blurred vision, loss of balance, poor coordination, tremors, numbness, extreme fatigue, cognitive disfunction, and even blindness." (Id. ) Moreover, Dr. Thrower states that Defendant "is not receiving appropriate treatment while incarcerated. Without this treatment, he is at a higher risk [of] irreversible disease progression." (Id. ) According to Dr. Thrower, Defendant's MS treatment requires "Ocrevus infusions every 180 days, consistently," and "constant monitoring because the treatment further weakens the immune system. This treatment is the only way to slow progression of the disease." (Doc. 323 at 2–3.) According to Defendant, he

received an Ocrevus infusion in March 2019, one year after entering prison, missing the medically necessary six (6) months infusion period. Mr. Milner received a second Ocrevus infusion at FMC Fort Worth, Texas in September 2019 and has not received another infusion to date. The medical facility at FMC Fort Worth, Texas has since lost its accreditation and Mr. Milner[ ] has be [sic] advised that they are not certified to administer the Ocrevus infusion. Mr. Milner is in fear for his life and his health is rapidly deteriorating.

Upon Mr. Milner's self-surrender to FMC Fort Worth, Texas in March of 2018 he was able to walk with the use of a cane. Now Mr. Milner is confined to the use of a wheelchair due to the lack of proper medical treatment.

(Id. at 3.)

While the Government does not dispute Defendant's MS diagnosis or that this condition is a serious one with lifelong implications, the Government contends that nothing in the record indicates it is a terminal illness or has substantially diminished Defendant's ability to provide self-care. (Doc. 324 at 7.) Furthermore, Defendant's warden stated in a December 30, 2019 letter to Defendant, "Although you have several chronic medical conditions, you are able to independently attend to activities of your daily living. Your condition is stable and [you] are able to function in a correctional facility." (Doc. 324-1.) The Government further argues that Defendant's condition combined with the possibility of contracting COVID-19 do not constitute "extraordinary and compelling reasons" to modify Defendant's sentence. (Doc. 324 at 7.) The Government represents that the BOP has adopted a number of policies to respond to the COVID-19 pandemic and protect inmates from the disease and is prioritizing home confinement for vulnerable inmates. (Id. at 2–3; Doc. 328 at 2.)

II. Defendant's Attempts to File

Defendant first filed an administrative relief request with his warden in December 2019, seeking compassionate release due to his MS. (Doc. 325 at 3–4; Doc. 324-2.) The warden denied that request on December 30, 2019. (Doc. 325 at 4; Doc. 324-1.) With the onset of the COVID-19 pandemic, Defendant "attempted to file an administrative relief request with FMC Fort Worth [ ] seeking compassionate release on the same grounds as submitted [in the instant Motion] but was unable to through no fault of his own due to the absence of his Counselor and Case Manager." (Doc. 325 at 4.) Defendant asserts that he received a BP-8 form from his counselor on March 3, 2020, but "has been unable to complete the filing process due to the lack of staff at FMC Fort Worth." (Id. at 15.) According to Defendant, the fact that "there has been no presence of the Unit Team for several weeks due to the COVID-19 pandemic [prevented] Milner from being able to immediately file his request to be released due to COVID-19." (Id. ) On March 31, Defendant's counsel scanned Defendant's petition (dated March 3) into the BOP's Sentry system for the warden's consideration. (Id. at 16.)

DISCUSSION

Under 18 U.S.C. § 3582(c)(1) , as amended by the First Step Act of 2018, Pub. L. No. 115-391, § 603(b)(1), 132 Stat. 5194, 5239, a sentencing court

in any case ... 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....

Section 3582(c)(1)(A) provides that the court may do so only "upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant ...." However, a defendant may bring their own motion only after either (1) having "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 ...." Section 3582(c)(1)(A), therefore, sets out two requirements for a defendant to be entitled to relief: exhaustion of administrative remedies and extraordinary and compelling reasons warranting a sentence reduction.

I. Exhaustion of Administrative Remedies

Defendant argues that exhaustion of administrative remedies would be futile given his inability, through no fault of his own, to submit his request to the warden and given the urgent dangers of the accelerating pandemic. As a general matter, statutory exhaustion requirements are strictly enforced. Sundar v. I.N.S. , 328 F.3d 1320, 1326 (11th Cir. 2003) ("[W]e will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise." (quoting Booth v. Churner , 532 U.S. 731, 741 n.6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) )); see also United States v. Solis , 2019 WL 2518452, at *2 (S.D. Ala. June 18, 2019) ("The First Step Act of 2018 expands the criteria for compassionate release ... but it does not alter the requirement that prisoners must first exhaust administrative remedies before seeking judicial relief.") (alteration in original) (quoting United States v. Estrada Elias , 2019 WL 2193856, at *2 (E.D. Ky. May 21, 2019) ). An exhaustion requirement, however, is not absolute. "[T]he Supreme Court has described ‘three broad sets of circumstances’ where ‘the interests of the individual weigh heavily against requiring administrative exhaustion.’ " Shorter v. Warden , 803 Fed.Appx. 332, 336 (11th Cir. 2020) (quoting McCarthy v. Madigan , 503 U.S. 140, 144, 147, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992) ). The first is when "requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action." McCarthy , 503 U.S. at 146–47, 112 S.Ct. 1081. As the Shorter court explained, "[s]uch prejudice may result ... because, regardless of the administrative time frame, ‘a particular plaintiff may suffer irreparable harm if unable to secure immediate judicial consideration of his claim.’ " 803 Fed.Appx. at 336 (quoting McCarthy , 503 U.S. at 147, 112 S.Ct. 1081 ). The second is when "an administrative remedy may be inadequate ‘because of some doubt as to whether the agency was empowered to grant effective relief.’ " McCarthy , 503 U.S. at 147, 112 S.Ct. 1081 (quoting Gibson v. Berryhill , 411 U.S. 564, 575 n.14, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973) ). Finally, "an administrative remedy may be inadequate where the administrative body is shown to be biased or has otherwise predetermined the issue before it." Id. at 148, 112 S.Ct. 1081.

The first McCarthy exception applies in this case. Despite Defendant's attempts to file his request on March 3, due to a lack of staff, he was unable to do so until March 31. Thus, the exhaustion requirement would prevent him from filing until his petition was rejected, or until April 30, 2020. In light of the COVID-19 pandemic, "[t]he ordeal of having to go through the administrative appeal process may trigger a severe medical setback." Bowen v. City of New York , 476 U.S. 467, 483, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (alteration in original) (quoting City of New York v. Heckler , 578 F. Supp. 1109, 1118 (E.D.N.Y. 1984) ) (finding that claimants would have suffered irreparable injury were the exhaustion requirement enforced against them). Notwithstanding the "definite administrative decisionmaking schedule" of § 3582(c)(1)(A), this "particular [defendant]"—an inmate with substantial preexisting medical conditions detained in a prison where the risk of contracting COVID-19 is elevated—"may suffer irreparable harm"—contraction of COVID-19 and further deterioration of his condition, including death—"if unable to secure immediate judicial consideration of his claim." McCarthy , 503 U.S. at 147, 112 S.Ct. 1081. As was the case in Perez , "even a few weeks' delay carries the risk of catastrophic health consequences for [Defendant]." United States v. Perez , 451 F. Supp. 3d 288, 292–93 (S.D.N.Y. Apr. 1, 2020) It is likely that Defendant would suffer irreparable harm if he were required to wait for the administrative processes outlined in § 3582(c)(1)(A) to run their course. Furthermore, Defendant's interests "weigh heavily against requiring administrative exhaustion," McCarthy , 503 U.S. at 146, 112 S.Ct. 1081, as exhaustion of the full BOP administrative process would be "both futile and inadequate." Perez , 451 F. Supp. 3d at 292 ; see also United States v. Zukerman , 2020 WL 1659880, at *4 (S.D.N.Y. Apr. 3, 2020) (waiving § 3582(c)(1)(A)'s exhaustion requirement in light of defendant's "advanced age and compromised health, combined with the high risk of contracting COVID-19" in prison); United States v. Colvin , 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020) (waiving § 3582(c)(1)(A)'s exhaustion requirement "in light of the urgency of Defendant's request, the likelihood that she cannot exhaust her administrative appeals during her remaining eleven days of imprisonment, and the potential for serious health consequences"); United States v. Powell , No. 1:94-cr-316(ESH), Doc. 98 (D.D.C. Mar. 28, 2020) (finding exhaustion futile and waiving § 3582(c)(1)(A)'s exhaustion requirement). Thus, the Court finds that the futility exception to the exhaustion requirement applies here.

II. Extraordinary and Compelling Reasons for Release

The second requirement of § 3582(c)(1)(A) is a showing that "extraordinary and compelling reasons warrant [ ] a [sentence] reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Section 1B1.13 of the Sentencing Guidelines explains that a court may order a reduction under § 3582(c)(1)(A) if the court determines, "after considering the factors set forth in 18 U.S.C. § 3553(a) ," that "[e]xtraordinary and compelling reasons warrant the reduction; ... [t]he 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 [t]he reduction is consistent with this policy statement."

Application Note 1 to § 1B1.13 lists circumstances constituting "extraordinary and compelling reasons," including certain medical conditions, advanced age, certain family circumstances, or some "other" reason "[a]s determined by the Director of the Bureau of Prisons." The Note specifies that "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" constitutes "extraordinary and compelling reasons," which justify compassionate release. U.S.S.G. § 1B1.13, comment n.1.

A. The Coronavirus Pandemic

COVID-19 is a rapidly evolving public health crisis of an extraordinary magnitude. In the past weeks and months, "the unprecedented and extraordinarily dangerous nature of the COVID-19 pandemic has become apparent." United States v. Stephens , 447 F. Supp. 3d 63, 65 (S.D.N.Y. March 19, 2020). On March 13, 2020, the President declared the COVID-19 outbreak to constitute a national emergency, stating:

In December 2019, a novel (new) coronavirus known as SARS-CoV-2 ("the virus") was first detected in Wuhan, Hubei Province, People's Republic of China, causing outbreaks of the coronavirus disease COVID-19 that has now spread globally. The Secretary of Health and Human Services (HHS) declared a public health emergency on January 31, 2020, under section 319 of the Public Health Service Act ( 42 U.S.C. 247d ), in response to COVID-19 .... On March 11, 2020, the World Health Organization announced that the COVID-19 outbreak can be characterized as a pandemic, as the rates of infection continue to rise in many locations around the world and across the United States.

Proclamation No. 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020), https://www.govinfo.gov/content/pkg/FR-2020-03-18/pdf/2020-05794.pdf.

In response to public health experts' warnings about the virus' communicability and the severe health risk of the COVID-19 disease that the virus causes, officials at all levels of government have adopted dramatic and widespread social distancing measures to slow the spread of the virus and protect the health of the nation. See Sarah Mervosh et al., See Which States and Cities Have Told Residents to Stay Home , N.Y. Times (Apr. 3, 2020), https://www.nytimes.com/interactive/2020/us/coronavirus-stay-at-home-order.html. The CDC has "acknowledged that correction and detention facilities ‘present[ ] unique challenges for control of COVID-19 transmission among incarcerated/detained persons, staff, and visitors.’ " United States v. Kennedy , 449 F. Supp. 3d 713, 715–16 (E.D. Mich. Mar. 27, 2020) (quoting Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, CDC (Mar. 23, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-correctional-detention.html [hereinafter CDC Guidance] ); see also Stephens , 447 F. Supp. 3d at 65–67 (citing Joseph A. Bick, Infection Control in Jails and Prisons , 45 Clinical Infectious Diseases 1047, 1047 (Oct. 2007), https://doi.org/10.1086/521910) (finding that "inmates may be at a heightened risk of contracting COVID-19 should an outbreak develop").

Specifically, the CDC noted that many detention conditions create a heightened risk of danger to detainees. These include: low capacity for patient volume, insufficient quarantine space, insufficient on-site medical staff, highly congregational environments, inability of most patients to leave the facility, and limited ability of incarcerated/detained persons to exercise effective disease prevention measures (e.g., social distancing and frequent handwashing). CDC Guidance; see also Bick at 1047 ("The probability of transmission of potentially pathogenic organisms is increased [in jails and prisons] by crowding, delays in medical evaluation and treatment, rationed access to soap, water, and clean laundry, insufficient infection-control expertise, and prohibitions against the use of proven harm-reduction tools ...."); Laura M. Maruschak et al., Medical Problems of State and Federal Prisoners and Jail Inmates, 2011–12 , U.S. Department of Justice, Bureau of Justice Statistics (2016), https://www.bjs.gov/content/pub/pdf/mpsfpji1112.pdf ("Both prisoners and jail inmates were more likely than the general population to report ever having a chronic condition or infections disease.")

The CDC recommended that all correctional facilities take preventative measures, including: ensuring an adequate supply of hygiene and medical supplies, allowing for alcohol-based sanitizer throughout facilities, providing no-cost soap to all inmates for frequent handwashing, cleaning and disinfecting frequently touched surfaces several times per day, performing pre-intake screening and temperature checks for all new entrants, increasing space between all detained persons to at least six feet, staggering meals, and having healthcare staff perform regular rounds. CDC Guidance.

In line with the concerns expressed by the U.S. District Court for the Eastern District of Michigan, this "Court is concerned that such measures will prove insufficient to stem deadly outbreaks[,] ... [e]ven if all of the CDC's interim recommendations are followed." Kennedy , 449 F. Supp. 3d at 716. At this time, there are sixteen confirmed positive coronavirus cases at MPC Forth Worth (fifteen inmates and one staff member), and more than twenty inmates in custody at other prisons have died from COVID-19. BOP, COVID-19, https://www.bop.gov/coronavirus/; Sadie Gurman et al., Coronavirus Puts a Prison Under Siege , Wall Street Journal (April 6, 2020), https://www.wsj.com/articles/inside-oakdale-prison-our-sentences-have-turned-into-death-sentences-11586191030. Furthermore, estimates are that at least twenty-five percent of those infected are asymptomatic. Sam Whitehead & Carrie Feibel, CDC Director On Models For The Months To Come: ‘ This Virus Is Going To Be With Us’ , NPR (Mar. 31, 2020), https://www.npr.org/sections/health-shots/2020/03/31/824155179/cdc-director-on-models-for-the-months-to-come-this-virus-is-going-to-be-with-us. Thus, there is a good chance that there are many more infected prisoners at MPC Fort Worth than the reported numbers indicate. See Kennedy , 449 F. Supp. 3d at 717 ("Because many individuals infected with COVID-19 do not display symptoms, the virus will almost certainly be present in jails and prisons before cases are formally identified."); see also United States v. Garlock , 2020 WL 1439980, at *1 (N.D. Cal. Mar. 25, 2020) (observing that "the chaos has already begun inside federal prisons—inmates and prison employees are starting to test positive for the virus, quarantines are being instituted, visits from outsiders have been suspended, and inmate movement is being restricted even more than usual").

B. Defendant's Medical Condition and Background

In the instant Motion, Defendant argues that his serious underlying health problems combined with the current COVID-19 pandemic constitute extraordinary and compelling reasons to warrant a sentence reduction to a time served sentence. (Doc. 323 at 1.) The sentencing guidelines provide that a serious medical condition that substantially diminishes a defendant's ability to provide self-care in prison constitutes an extraordinary and compelling reason for compassionate release. U.S.S.G. § 1B1.13, comment n.1. Defendant asserts that he has multiple sclerosis, and prior to the onset of this pandemic, was unable to get the medical treatment to slow the progression of his disease. Thus, Defendant states that his physical condition has deteriorated to the extent that he lost the ability to walk and is now confined to a wheelchair. Furthermore, Defendant represents that he is "housed with at least 300 other inmates in a dormitory-style facility which has all inmates in close proximity to one another of less than three (3) feet apart. The bathroom, shower, sinks, and toilets are all shared by all the inmates of the unit. As with all prison environments, all inmates are held in close quarters." (Doc. 323 at 4–5.) Thus, Defendant contends that he has a serious medical condition that substantially diminishes his ability to provide self-care in prison.

The Government argues that Defendant's condition in conjunction with the possibility of contracting COVID-19 do not constitute "extraordinary and compelling reasons" to modify Defendant's sentence. (Doc. 324 at 7.) The Government represents that the BOP has adopted a number of policies to respond to the COVID-19 pandemic and protect inmates from the disease and is prioritizing home confinement for vulnerable inmates. (Id. at 2–3; Doc. 328 at 2.) As discussed above, the Government contends that nothing in the record indicates that Defendant's MS is a terminal illness or has substantially diminished his ability to care for himself in prison. (Doc. 324 at 7.) In light of the outstanding questions of fact regarding Defendant's current medical condition and the available treatment, a hearing to determine the facts is necessary.

C. Defendant Is Not a Danger to the Community

As the Court has found that exhaustion is futile, if the Court finds that Defendant's medical condition is such that he cannot provide self-care in the institution, the Sentencing Guidelines instruct the Court to consider the sentencing factors of 18 U.S.C. § 3553(a) when considering a motion to modify a sentence under § 3582(c)(1)(A). U.S.S.G. § 1B1.13. The Guidelines provide that the Court should grant a reduction only after finding that "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) ." Id. While in prison, Defendant has not received any disciplinary actions and is classified as a low-level offender. (Doc. 323 at 2.) As discussed above, he was convicted of one count of possession with intent to distribute methamphetamine—a non-violent offense. (See Doc. 309.) He is tentatively scheduled to begin home detention on June 10, 2020. (Doc. 325 at 3.) Defendant's criminal history is minimal; his only prior convictions were for driving on a suspended license in 1992 and possession of marijuana in 1993. (Doc. 305 at 8–9.) The Court finds that, in light of the § 3553(a) factors and given Defendant's background, lack of violence in his criminal history, and the fact that Defendant was on pretrial release in this case without incident, Defendant is not a danger to the safety of any other person or to the community. Additionally, the Court concludes that release is consistent with the Sentencing Commission's policy statements. See 18 U.S.C. § 3583(c)(1)(A)(ii) ; U.S.S.G. § 1B1.13(3).

CONCLUSION

For the reasons set forth above, the Court reserves ruling on Defendant's Exigent Motion to Modify Sentence (Doc. 323 ) pending an evidentiary hearing held by video conference on Friday, April 24, 2020, at 11:00 a.m.

SO ORDERED , this 20th day of April, 2020.