USA v. Bailey et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
v.
SHEM BAILEY,
Defendant.
Criminal No.: ELH-16-396
MEMORANDUM OPINION
Defendant Shem Bailey, who is now self-represented, entered a plea of guilty on March
31, 2017, to the offenses of Hobbs Act robbery, in violation of 18 U.S.C. § 1951, and using,
carrying and brandishing a firearm in relation to a crime of violence, under 18 U.S.C. § 924(c).
See ECF 54. The plea was tendered pursuant to a Plea Agreement. ECF 55. At sentencing on
October 12, 2017 (ECF 87), the Court sentenced defendant to a total of 144 months of
imprisonment. ECF 88.
In August 2024, defendant filed an “Emergency Supplemental Motion” for compassionate
release, pursuant to 18 U.S.C. § 3582(c)(1). ECF 132 (the “Motion”).1 He notes that he is an only
child (ECF 132 at 2; ECF 142 at 2) and seeks a reduction in his sentence due “to the recent health
conditions . . . of defendant's mother Mrs. DeirDre Drake.” ECF 132 at 1. Defendant also submitted
an “Allocution Letter.” ECF 130; ECF 130-1. Moreover, he asks the Court to appoint counsel for
him. ECF 131.
1 Bailey filed a prior motion for compassionate release on June 25, 2021, arguing that he
was at risk of severe COVID-19 due to his physical health. ECF 113. The government opposed
the motion. ECF 121. Bailey replied, appending exhibits in support. ECF 123; ECF 123-1.
Defendant also argued in his reply that his family circumstances constituted an extraordinary and
compelling reason for his sentence reduction because he needed to provide care for his aging
mother. ECF 123 at 9. By Memorandum Opinion and Order of September 1, 2022, I denied
Bailey’s motion. ECF 127; ECF 128.
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The Office of the Federal Public Defender has declined to supplement the Motion. ECF
137. The government opposes the Motion. ECF 139 (“Opposition”). It is supported by one exhibit.
ECF 139-1.
Defendant replied. ECF 140. He also supplemented the Motion, to include a list of
educational courses and programs he completed between 2019 and 2025, and to provide
information in regard to his mother’s need for a caretaker. ECF 141. Additionally, defendant has
submitted several letters to the Court regarding his status and that of his mother, other matters, and
inquiring about the status of the Motion. ECF 142; ECF 143; ECF 144; ECF 145; ECF 147. For
example, in a letter docketed on October 15, 2025 (ECF 144), defendant reported that he was
stabbed and jumped by other prisoners “right in front of officers who didn’t prevent nor try to stop
it.” Id. at 2. He also referenced an assault that occurred on July 23, 2025. Id. at 3. According to
defendant, he is in protective custody and, as a result, he does not have access to “basic privileges.”
Id. at 4.2 And, in a letter docketed on December 16, 2025 (ECF 147), Bailey reported that he was
the victim of assault by several correctional officers.
Moreover, in correspondence docketed June 10, 2024 (ECF 130), i.e., before the Motion
was filed, defendant reported that he was assaulted by other prisoners on April 12, 2024. In
addition, he complained of an assault that occurred in December 2017. Id. at 2.
Bailey is currently incarcerated at Lee USP. Inmate Locator, BUREAU OF PRISONS,
https://www.bop.gov/inmateloc/ (last visited December 8, 2025). The Bureau of Prisons (“BOP”)
indicates a projected release date of March 30, 2027. Id. With credit for pretrial detention dating
from July 28, 2016, Bailey has served about 112 months of his 144-month sentence, or
2 Contrary to defendant’s assertion, his prior correspondence in October 2025 (ECF 142,
ECF 143) does not indicate that he was assaulted in July 2025.
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approximately 77% of his sentence.3
No hearing is necessary. See Local Rule 105.6. Defendant is quite able to present his
contentions in regard to his mother’s health condition and his claim that he is her sole caregiver.
Therefore, I shall deny his request for the appointment of counsel, without prejudice. See ECF
131. Moreover, based on the current record, I shall deny the Motion (ECF 132), without prejudice.
I. Background4
Bailey and a codefendant were indicted on August 4, 2016. ECF 19. Bailey was charged
with Hobbs Act Robbery, in violation of 18 U.S.C. § 1951(a) (Count One); using, carrying, and
brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §
924(c) (Count Two); and possession of a firearm by a prohibited person, in violation of 18 U.S.C.
§ 5922(g)(1) (Count Three). ECF 19. Pursuant to a Plea Agreement (ECF 55), Bailey entered a
plea of guilty on March 31, 2017, to Counts One and Two of the Indictment. ECF 54. The parties
agreed to a total sentence ranging from 120 to 180 months of imprisonment. ECF 55, ¶¶ 10, 11.5
The Plea Agreement contained a stipulation of facts. Id. at 10. At approximately 3:57 p.m.
on July 19, 2016, the defendant and his codefendant, Herman Austin, robbed the Hamilton Quick
Mart in Baltimore. Id. at 10, ¶ 1. Bailey entered the store, armed with a handgun, and demanded
money from the cash registers. Id. The store employee, “in fear for his safety,” gave the money to
3 Defendant claims that, as of October 1, 2025, he served 84.7% of his sentence. ECF 142
at 3. And, in a filing on October 15, 2025 (ECF 144), he asserts that he has served “over 85%
percent” of his sentence. Id. at 3.
4 I restate here, to the extent relevant, the factual background set forth in my Memorandum
Opinion of September 1, 2022, denying a post-conviction motion and a motion for compassionate
release. See ECF 351.
5 Despite the agreed upon sentencing range, the plea was not entered under Fed. R. Crim.
P. 11(c)(1)(C).
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Bailey. Id. Austin approached a customer playing Keno and attempted to take the customer’s
cellular phone. Id. ¶ 2. When the customer resisted, Austin said: “I’m not trying to hurt you, my
buddy has a gun.” Id. Austin then took the customer’s cellphone. Id. As Bailey walked towards
the rear of the store, the employee jumped over the counter and fled. Id. Both Bailey and Austin
then fled the store on foot. Id.
Count One carries a maximum penalty of twenty years of imprisonment. Id. ¶ 3. For Count
One, the parties agreed to a base offense level of 20 under the United States Sentencing Guidelines
(“U.S.S.G” or “Guidelines”). The parties also contemplated a three-level deduction for acceptance
of responsibility, pursuant to U.S.S.G. § 3E1.1. Id. As a result, Count One had a final offense level
of 17. Id. ¶ 6(b). By statute, Count Two carries a mandatory minimum term of imprisonment of
seven years, consecutive to any sentence imposed as to Count One, with a maximum term of life
imprisonment. See 18 U.S.C. § 924(c).
The Presentence Report (“PSR”, ECF 70) reflected that Bailey had nine prior adult criminal
convictions, of which four scored points. Id. ¶¶ 28–36. In particular, in 1997, at the age of 18,
Bailey was convicted of two robbery offenses in New York. Id. ¶¶ 29, 30. He was sentenced to
three to six years of custody and was paroled in March 2004. Id. In September 2000, Bailey was
convicted of possession of contraband and sentenced to two to four years of imprisonment. Id.
¶ 31. He also violated his parole for the two robberies. Id. Shortly after Bailey was paroled in
March 2004, Bailey was arrested in New York for larceny, later was found guilty, and was
sentenced to six months of incarceration. Id. ¶ 32. Bailey was paroled in February 2006. Id. ¶¶
29, 30, 31.
In June 2006, Bailey was charged in Baltimore with second degree assault. Id. ¶ 33. He
was later convicted and sentenced to a suspended term of eighteen months of imprisonment, with
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eighteen months of probation. Id. Bailey violated that probation by driving without a license in
October 2006. Id. ¶ 34. As a result, he was sentenced to eighteen months of incarceration for
violation of probation as to the 2006 second degree assault. Id. ¶ 33.
On October 19, 2007, Bailey was arrested on the charge of possession of a firearm by a
felon. Id. ¶ 35. He was indicted by a federal grand jury in Maryland and found guilty of the
offense in March 2008. Id. Judge Marvin Garbis sentenced Bailey to 111 months of imprisonment
and five years of supervised release. Id. But, the judgment was vacated on appeal and remanded
for resentencing. United States v. Bailey, 487 F. App'x 823 (4th Cir. 2012) (per curiam). In
particular, the Fourth Circuit concluded that Bailey did not qualify as an armed career criminal.
Id.; see MJG-07-0496, ECF 71.6 Bailey was resentenced to time served from December 2007 to
January 17, 2014. MJG-07-0496, ECF 85.
Bailey subsequently violated supervised release,7 and was sentenced to eight months of
imprisonment. He was released on December 16, 2015, with his supervised release set to expire
one year later. ECF 70, ¶ 35. Bailey committed the instant offenses while on supervised release.
A Petition for a Violation of Supervised Release was filed. Id.
Bailey’s criminal convictions yielded a subtotal criminal history score of 12 points. Id.
¶ 37. Two points were added because, at the time the instant offenses were committed, Bailey was
on probation. Id. ¶ 38. Thus, as calculated by the PSR, Bailey had a total criminal history score
of 14 points, yielding a criminal history category of VI. Id. ¶ 39.8
6 The case was initially assigned to Judge Richard Bennett, but was reassigned to Judge
Garbis. Due to the retirement of Judge Garbis, the case was again assigned to Judge Bennett.
7 Bailey was convicted of driving without a license on November 17, 2014. ECF 70, ¶ 36.
8 If defendant were sentenced today, only one status point would be added, pursuant to
U.S.S.G. § 4A1.1(e). But, even if defendant had a score of 13 criminal history points, rather than
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With a final offense level of 17 and a criminal history category of VI, the Guidelines for
Count One called for a period of incarceration ranging from 51 to 63 months. Id. ¶ 76. And, as
noted, Count Two required a minimum term of 84 months, consecutive to Count One. Id. ¶ 77.
Thus, the total Guidelines range called for a sentence of imprisonment ranging from was 135 to
147 months. As noted, in the Plea Agreement the parties agreed to a sentence ranging between
120 and 180 months of imprisonment. Id. ¶ 78; see ECF 55, ¶ 10.
Sentencing was held on October 12, 2017. ECF 87. At the time of sentencing, Bailey was
38 years old. ECF 70 at 2. He stood five feet, ten inches tall and weighed 190 pounds. Id. ¶ 58.
The PSR noted that Bailey’s father died of pancreatic cancer in 1995 and was not involved in
defendant’s upbringing. Id. ¶ 52. Bailey was raised by his maternal grandparents in New York.
Id. ¶¶ 53, 54. He is the father of four children, who then ranged in age from five to twenty-one.
Id. ¶¶ 54–55.
The Court sentenced the defendant to 60 months of incarceration for Count One and to a
consecutive term of 84 months as to Count Two, for a total term of 144 months of incarceration.
ECF 88 (Judgment). The Court also imposed a term of three years of supervised release. Id.
In the Plea Agreement, Bailey waived many of his rights to appeal. ECF 55, ¶ 12.
Nevertheless, Bailey noted an appeal to the Fourth Circuit. ECF 90. The government moved to
dismiss the appeal (ECF 109), claiming it was barred by the Plea Agreement. The appeal was
dismissed by the Fourth Circuit on March 27, 2020. ECF 110.
As of January 2021, defendant had completed six educational courses and had no incident
reports in his discipline history from the previous six months. ECF 113-1 at 8. Bailey states that
he has participated in twenty-two educational programs and workshops while incarcerated. ECF
14, this would still result in a criminal history category of VI.
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141. These courses include drug treatment and drug counseling courses. Id. There are no records
before the court that reflect that Bailey has committed any infractions during his incarceration.
Additional facts are included, infra.
II. Appointment of Counsel
As mentioned, Bailey asks the Court to appoint counsel to assist in litigating the
Motion. ECF 131. He asserts that he “can not afford to hire a lawyer” and that a “lawyer would
help plaintiff to apply the law properly in briefs and before the Court.” Id. But, there is no
constitutional right to appointed counsel in post-conviction proceedings. Pennsylvania v. Finley,
481 U.S. 551, 555 (1987) (“The right to appointed counsel extends to the first appeal of right, and
no further.”). Rather, the determination to appoint counsel in this context rests solely within the
discretion of the district court. See United States v. Legree, 205 F.3d 724, 730 (4th Cir.
2000) (explaining that a district court has the discretion to appoint defendant counsel under 18
U.S.C. § 3582(c) in exceptional circumstances).
Bailey has ably demonstrated the ability to articulate the legal and factual basis of his
claims with respect to his mother’s health situation. Therefore, I shall deny defendant’s request
for counsel (ECF 131), without prejudice.
III. Standard of Review
Ordinarily, a court “may not modify a term of imprisonment once it has been imposed.” 18
U.S.C. § 3582(c); see United States v. Moody, 115 F.4th 304, 310 (4th Cir. 2024); United States
v. Davis, 99 F.4th 647, 653 (4th Cir. 2024); United States v. Brown, 78 F.4th 122, 128 (4th Cir.
2023); United States v. Malone, 57 F.4th 167, 173 (4th Cir. 2023); United States v. Bond, 56 F.
4th 381, 383 (4th Cir. 2023); United States v. Bethea, 54 F.4th 826, 831 (4th Cir. 2022); United
States v. Ferguson, 55 F.4th 262, 267 (4th Cir. 2022); United States v. Hargrove, 30 F.4th 189,
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194 (4th Cir. 2022); United States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020), abrogated on
other grounds by United States v. Troy, 64 F.4th 177 (4th Cir. 2023); United States v. Jackson,
952 F.3d 492, 495 (4th Cir. 2020); United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019).
But, “the rule of finality is subject to a few narrow exceptions.” Freeman v. United States, 564
U.S. 522, 526 (2011). One such exception is when the modification is “expressly permitted by
statute.” See 18 U.S.C. § 3582(c)(1)(B); see also Jackson, 952 F.3d at 495.
A statutory exception is codified at 18 U.S.C. § 3582, which was first enacted as part of
the Sentencing Reform Act of 1984. See Pub. L. No. 98-473, § 224(a), 98 Stat. 2030 (1984). It is
commonly termed the “‘compassionate release exception.’” Moody, 115 F.4th at 310; see United
States v. Osman, 2024 WL 3633573, at *3 (4th Cir. Aug. 2, 2024) (per curiam) (unreported)
(stating that a motion under § 3582(c)(1)(A) is “commonly referred to as a motion for
compassionate release. . . .”). Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) authorizes a court, in its
discretion, to reduce a defendant’s sentence if “extraordinary and compelling reasons warrant such
a reduction,”; “such a reduction is consistent with applicable policy statements issued by the
Sentencing Commission”; and the court has considered the factors under 18 U.S.C. § 3553(a). See
18 U.S.C. § 3582(c)(1)(A); United States v. Washington, 161 F.4th 816, 818 (4th Cir. 2025);
United States v. Crawley, 140 F.4th 165, 169 (4th Cir. 2025); Hargrove, 30 F.4th at 194.
As originally enacted, the compassionate release provision permitted a court to alter a
sentence only upon motion made by the Director of the BOP. See Pub. L. No. 98-473, § 224(a),
98 Stat. 2030 (1984). This meant that a defendant seeking compassionate release had to rely on
the BOP Director for relief. See Bethea, 54 F.4th at 831; see, e.g., Orlansky v. FCI Miami Warden,
754 F. App’x 862, 866–67 (11th Cir. 2018); Jarvis v. Stansberry, No. 2:08CV230, 2008 WL
5337908, at *1 (E.D. Va. Dec. 18, 2008) (denying compassionate release motion because § 3582
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“vests absolute discretion” in the BOP). However, the safety valve of § 3582 languished, because
the BOP rarely filed such a motion on an inmate’s behalf. As a result, compassionate release was
an infrequent occurrence. See Hr’g on Compassionate Release and the Conditions of Supervision
Before the U.S. Sentencing Comm’n 66 (2016) (statement of Michael E. Horowitz, Inspector
General, Dep’t of Justice) (observing that, on average, only 24 inmates were granted
compassionate release per year between 1984 and 2013).
In 2018, with the passage of the First Step Act, see Pub. L. No. 115-391, 132 Stat. 5194,
5239 (2018) (codified as 18 U.S.C. § 3582(c)(1)(A)), Congress “broadened” the authority of courts
to grant sentencing modifications pursuant to 18 U.S.C. § 3582. Malone, 57 F.4th at 173. In
particular, the FSA authorized a court to grant compassionate release “upon motion of the Director
of [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 occurs first. 18 U.S.C. § 3582(c)(1)(A) (emphasis added); see also Ferguson, 55 F.4th
at 268; United States v. Muhammad, 16 F.4th 126, 129 (4th Cir. 2021); United States v. McCoy,
981 F.3d 271, 276 (4th Cir. 2020). In other words, a federal inmate is now able to file a motion
for compassionate release directly with the court, as long as the inmate first exhausts administrative
remedies. See McCoy, 981 F.3d at 275–76. If a defendant has already exhausted administrative
remedies upon filing a first motion for compassionate release, the defendant does not need to meet
the bar for exhaustion a second time, should the defendant seek to renew the motion. United States
v. King, 2025 WL 1692747, at *1 (4th Cir. June 17, 2025) (unreported).
However, under 18 U.S.C. § 3582(c)(1)(A), the court may modify the defendant’s sentence
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only if two criteria are satisfied. Brown, 78 F.4th at 128; Bethea, 54 F.4th at 831.9 Specifically,
“the district court must conduct a two-step analysis.” United States v. Centeno-Morales, 90 F.4th
274, 279 (4th Cir. 2024); see also Bond, 56 F.4th at 383.
The first step consists of two parts. The court “must determine: (1) whether extraordinary
and compelling reasons warrant. . .a [sentence] reduction; and (2) that such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission.” Malone, 57 F.4th at 173;
see Moody, 115 F.4th at 310; Davis, 99 F.4th at 653; Bond, 56 F.4th at 383; Bethea, 54 F.4th at
831; United States v. Kibble, 992 F.3d 326, 330 (4th Cir. 2021) (per curiam), cert. denied, 142 S.
Ct. 383 (2021). The court’s analysis of these two steps goes hand in hand. United States v.
Burleigh, 145 F.4th 541, 547 (4th Cir. 2025). If that first step is met, the court then proceeds to
the second step.
Under the second step, the court must determine whether release is appropriate in light of
the sentencing factors in 18 U.S.C. § 3553(a), “to the extent those factors are applicable.” Bethea,
54 F.4th at 831; see Moody, 115 F.4th at 310; Malone, 57 F.4th at 174; Hargrove, 30 F.4th at 194;
United States v. High, 997 F.3d 181, 186 (4th Cir. 2021), superseded by regulation as stated in
Davis, 99 F.4th 647; Kibble, 992 F.3d at 330. “Importantly, a court assessing a compassionate
release motion is entitled to consider the § 3553(a) factors ‘[o]nly after’ conducting the first step’s
analysis.” Osman, 2024 WL 3633573, at *4 (citations omitted) (alteration in Osman); see Malone,
57 F.4th at 173 (stating that the district court may consider the § 3553(a) sentencing factors only
after determining that extraordinary and compelling reasons warrant a sentence reduction and that
9 The Fourth Circuit has said that there are two criteria, and that the first criterion consists
of two steps. See, e.g., Malone, 57 F.4th at 173. More recently, however, in Crawley, 140 F.4th
at 169, the Fourth Circuit stated that there are three criteria. Whether the criteria are counted as
two or three, the substance is the same.
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a reduction is consistent with the Sentencing Commission’s policy statements).
Generally, “the district court enjoys broad discretion in conducting a § 3582(c)(1)(A)
analysis.” United States v. Jenkins, 22 F.4th 162, 169 (4th Cir. 2021), superseded by regulation
as stated in Davis, 99 F.4th 647. Notably, “it weighs against an abuse of discretion—and is viewed
as ‘significant’—when the same judge who sentenced the defendant rules on the compassionate
release motion.” Bethea, 54 F.4th at 834; see Washington, 161 F.4th at 820; United States v.
Gutierrez, 2023 WL 245001, at *5 (4th Cir. Jan. 18, 2023) (unreported); Hargrove, 30 F.4th at
200; High, 997 F.3d at 189.
As the Fourth Circuit has recognized, “when deciding whether to reduce a defendant’s
sentence under § 3582(c)(1)(A), a district court may grant a reduction only if it is ‘consistent with
applicable policy statements issued by the Sentencing Commission.’” United States v. Taylor, 820
F. App’x 229, 230 (4th Cir. 2020) (per curiam) (citing 18 U.S.C. § 3582(c)(1)(A)); see Davis, 99
F.4th at 653–54. However, if there is no applicable policy statement relating to the defendant’s
compassionate release motion, the court has discretion to make its “own independent
determination of what constitutes an extraordinary and compelling reason under § 3582(c)(1)(A).”
Burleigh, 145 F.4th 541, 548 (cleaned up); see also United States v. Johnson, 143 F.4th 212, 215
(4th Cir. 2025) (explaining that, “[i]n the absence of an applicable policy statement, district courts”
have the power to “consider any extraordinary and compelling reason for release”) (cleaned up).
The Policy Statement codified at U.S.S.G. § 1B1.13 is titled “Reduction in Term of
Imprisonment Under 18 U.S.C. § 3582(c)(1)(A)” (“Policy Statement”). “[U]ntil recently,” that
Policy Statement did not apply to motions filed by prisoners. Davis, 99 F.4th at 654; see McCoy,
981 F.3d at 281. The Policy Statement began: “Upon motion of the Director of the Bureau of
Prisons under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment . . . .”
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U.S.S.G. § 1B1.13 (2021) (emphasis added). Interpreting this language, the Fourth Circuit said in
McCoy, 981 F.3d at 281, that, “[b]y its plain terms . . . § 1B1.13 does not apply to defendant-filed
motions under § 3582(c)(1)(A).” Therefore, on the basis of that earlier text, the Court held: “When
a defendant exercises his . . . right to move for compassionate release on his own behalf, . . .
§ 1B1.13 does not apply, and thus § 3582(c)(1)(A)’s consistency requirement does not constrain
the discretion of district courts.” Id. (citation omitted). As a result, district courts were
“empowered . . . to consider any extraordinary and compelling reason for release that a defendant
might raise.’” Id. at 284 (citation omitted).
Effective November 1, 2023, U.S.S.G. § 1B1.13 was amended. See Davis, 99 F.4th at 654
(citing 88 Fed. Reg. 28254 (May 3, 2023)). The Policy Statement now begins: “Upon motion of
the Director of the Bureau of Prisons or the defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), the
court may reduce a term of imprisonment . . . .” U.S.S.G. § 1B1.13 (2023) (emphasis added).
Therefore, the Policy Statement is applicable to defendant-filed motions under § 3582(c)(1)(A).
Davis, 99 F.4th at 658 (directing district court on remand “to revisit [the petitioner’s] arguments
in light of the Sentencing Commission’s new policy statement outlining when and how to consider
changes in law as an extraordinary and compelling reason for a reduction”). As a result, when a
defendant files a motion for compassionate release, a court must ensure that any sentence reduction
“is consistent with” the Policy Statement’s provisions. 18 U.S.C. § 3582(c)(1)(A). The court
should apply the Policy Statement that is applicable “at the time the court renders its decision[,]”
not at the time the motion is filed. Crawley, 140 F.4th at 170.
The Policy Statement provides, in part, U.S.S.G. § 1B1.13(a):
(B) IN GENERAL.—Upon motion of the Director of the Bureau of Prisons or the
defendant pursuant to 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term
of imprisonment (and may impose a term of supervised release with or without
conditions that does not exceed the unserved portion of the original term of
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imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a),
to the extent that they are applicable, the court determines that—
(1) (A) extraordinary and compelling reasons warrant the reduction; or
(B) the defendant (i) is at least 70 years old; and (ii) has served at least
30 years in prison pursuant to a sentence imposed under 18 U.S.C.
§ 3559(c) for the offense or offenses for which the defendant is
imprisoned;
(2) 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
(3) the reduction is consistent with this policy statement.
Section 1B1.13(b) of the Policy Statement is titled “EXTRAORDINARY AND
COMPELLING REASONS.” It identifies multiple circumstances that, individually or in
combination, may provide “extraordinary and compelling reasons” for a reduction in sentence.
See § 1B1.13(b)(1)–(6). These include certain medical circumstances of the defendant, such as a
terminal illness, “serious cognitive impairment,” a medical condition that requires “specialized
medical care that is not being provided and without which the defendant is at risk of serious
deterioration in health or death”; or the defendant is at imminent risk of being affected by “an
ongoing outbreak of infectious disease” or “an ongoing public health emergency. . . .”,
§ 1B1.13(b)(1)(A), (B), (C), (D); the defendant’s age, along with other factors, § 1B1.13(b)(2); the
defendant’s family circumstances, § 1B1.13(b)(3)(A), (B), (C), (D); the fact that the defendant,
while in custody, was the victim of sexual or physical abuse committed by, or at the direction of,
a correctional officer, § 1B1.13(b)(4)(A), (B); and for a defendant who received an “unusually
long sentence” and has served at least 10 years of the sentence, a non-retroactive change in the law
that “produce[s] a gross disparity” in relation to “the sentence likely to be imposed at the time the
motion is filed. . . .”, § 1B1.13(b)(6).
In deciding whether a defendant has met the ten-year requirement, district courts can only
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consider the time a defendant has served in prison and cannot adjust that amount with good-time
credits. Crawley, 140 F.4th at 172–73. But, under § 1B1.13(b)(5), the district court may consider
“any other circumstance or combination of circumstances . . . similar in gravity to” the
circumstances “described in paragraphs (1) through (4).” The capacious language in
§ 1B1.13(b)(5) underscores that the enumerated circumstances listed in the Policy Statement are
not an “exhaustive list” of extraordinary or compelling reasons. Johnson, 143 F.4th at 216. For
example, in Johnson, the Court affirmed a district court’s decision to reduce a defendant’s sentence
based on the disparity between the defendant’s sentence and those of his co-conspirators. Id. at
215–16.
Section 1B1.13(c) of the Policy Statement is titled “LIMITATION ON CHANGES IN
LAW.” It specifies that, “[e]xcept as provided in subsection (b)(6),” which concerns an “unusually
long sentence,” “a change in the law (including an amendment to the Guidelines Manual that has
not been made retroactive) shall not be considered for purposes of determining whether an
extraordinary and compelling reason exists under this policy statement.” U.S.S.G. § 1B1.13(c).
“However, if a defendant otherwise establishes that extraordinary and compelling reasons warrant
a sentence reduction under [the Policy Statement], a change in the law (including an amendment
to the Guidelines Manual that has not been made retroactive) may be considered for purposes of
determining the extent of any such reduction.” Id.; see Davis, 99 F.4th at 654.10
10 In Concepcion v. United States, 597 U.S. 481 (2022), the Supreme Court concluded that
a district court's general obligation “to consider [all] nonfrivolous arguments presented by the
parties,” id. at 487, required it “to consider intervening changes of law or fact in exercising [its]
discretion to reduce a sentence pursuant to the First Step Act.” Id. at 500. However, the Court
acknowledged that “Congress or the Constitution [may] limit[ ] the scope of information that a
district court may consider in deciding whether, and to what extent, to modify a
sentence. . . .” Id. at 486. “Thus,” the Court noted, “Congress expressly cabined district courts’
discretion [to reduce a sentence] by requiring courts to abide by the Sentencing Commission's
policy statements.” Id. at 495.
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Section 1B1.13(d) of the Policy Statement concerns rehabilitation of the defendant. It
limits the weight a court may assign to a defendant’s rehabilitation while serving a sentence. That
section provides that, “[p]ursuant to 28 U.S.C. § 994(t), rehabilitation of the defendant is not, by
itself, an extraordinary and compelling reason for purposes of this policy statement.” U.S.S.G.
§ 1B1.13(d). “However, rehabilitation of the defendant while serving the sentence may be
considered in combination with other circumstances in determining whether and to what extent a
reduction in the defendant’s term of imprisonment is warranted.” Id. And, § 1B1.13(e) provides
that “an extraordinary and compelling reason need not have been unforeseen at the time of
sentencing in order to warrant” a sentence reduction.
Even if a defendant prisoner establishes extraordinary and compelling reasons for relief, a
reduced sentence does not necessarily follow. The court must then consider the sentencing factors
under 18 U.S.C. § 3553(a) to determine whether, in its discretion, a reduction of sentence is
appropriate. See Dillon, 560 U.S. at 826–27; United States v. Washington 161 F.4th 816, 821 (4th
Cir. 2025) at *3 (4th Cir. Dec. 12, 2025); Brown, 78 F.4th at 128; United States v. Mangarella,
57 F.4th 200, 203 (4th Cir. 2023); Malone, 57 F.4th at 174; Bethea, 54 F.4th at 833; Hargrove, 30
F.4th at 195; High, 997 F.3d at 186; Martin, 916 F.3d at 397; see also Kibble, 992 F.3d at 329–30
(noting that district court must consider § 3553(a) factors when considering a motion to reduce
sentence under § 3582(c)(1)(A) and district court enjoys broad discretion in conducting this
analysis); United States v. Trotman, 829 F. App’x 607, 608 (4th Cir. 2020) (per curiam)
(recognizing that, when considering a motion to reduce sentence under § 3582(c)(1)(A), the court
must consider the sentencing factors under § 3553(a), to the extent applicable); United States v.
Chambliss, 948 F.3d 691, 693–94 (5th Cir. 2020) (district court must give due consideration to the
§ 3553(a) factors); see also United States v. Jones, 2022 WL 2303960, at *1 (4th Cir. June 27,
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2022) (per curiam) (noting that “a court need not explicitly make findings on extraordinary and
compelling reasons where consideration of the § 3553(a) factors counsels against release”); United
States v. Butts, 2021 WL 3929349, at *2 (4th Cir. Sept. 2, 2021) (per curiam) (noting that, even if
the district court finds extraordinary and compelling circumstances, it must consider the § 3553(a)
factors to the extent applicable in exercising its discretion). Notably, the amendments to the
Guidelines in November 2023 did not alter this requirement.
The § 3553(a) “factors include ‘the nature and circumstances of the offense’; ‘the history
and characteristics of the defendant’; and the need for the sentence to ‘provide just punishment,’
‘afford adequate deterrence,’ ‘protect the public from further crimes of the defendant,’ and
‘provide the defendant with. . .training, medical care, or other correctional treatment.’” Jenkins,
22 F.4th at 170 (quoting 18 U.S.C. § 3553(a)). Additionally, the court may consider the “‘kinds
of sentences available,’ and ‘the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.’” Burleigh, 145 F.4th 541,
548 (quoting 18 U.S.C. § 3553(a)(1), (3), (6)). As the Fourth Circuit has observed, “‘many case-
specific facts fit under the broad umbrella of the Section 3553(a) factors.’” Bond, 56 F.4th at 384
(quoting Jackson, 952 F.3d at 500). District courts “enjoy the discretion to give additional weight
to any one factor so long as they do not confine their analysis to that factor.” Davis, 99 F.4th at
656; see Washington, 2025 WL 3559989 at *3; United States v. Friend, 2 F.4th 369, 381–82 (4th
Cir. 2021). And, in weighing the § 3553(a) factors, the court may consider the terms of a plea
bargain. Bond, 56 F.4th at 384–85.
In Davis, 99 F.4th at 659, the Fourth Circuit said: “District courts are not required to
acknowledge and address each of the defendant’s arguments on the record when conducting a
§ 3553(a) analysis.” But, “‘the record as a whole’” must demonstrate that the judge considered
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the parties’ contentions and had “‘a reasoned basis’” for the exercise of judicial discretion.
Malone, 57 F.4th at 176 (citations omitted); see also Davis, 99 F.4th at 659; United States v. Puzey,
2023 WL 2985127, at *2 (4th Cir. Apr. 18, 2023) (per curiam).
In particular, “the court must provide an explanation sufficient ‘to allow for meaningful
appellate review’ in light of the particular circumstances of the case.” United States v. Cohen, 2022
WL 2314300, at *1 (4th Cir. June 28, 2022) (per curiam) (quoting High, 997 F.3d at 190). And, a
district court abuses its discretion when it “act[s] arbitrarily or irrationally,” “fail[s] to consider
judicially recognized factors constraining its exercise of discretion,” “relie[s] on erroneous factual
or legal premises,” or “commit[s] an error of law.” High, 997 F.3d at 187 (internal quotation marks
omitted); see Jenkins, 22 F.4th at 167; see also Brown, 78 F.4th at 132 (criticizing district judge’s
“cursory” consideration of the § 3553(a) factors); United States v. Dillard, 891 F.3d 151, 158 (4th
Cir. 2018). Moreover, the district court’s “discretion is not boundless” and “in exceptional case[s]”
the district court can abuse this discretion either by neglecting to “adequately explain how it
weighed the § 3553(a) factors” or by “failing to recognize that the relevant § 3553(a) factors clearly
favor release.” United States v. Smith, 2025 WL 1864767, at *3, *4 (4th Cir. July 7, 2025)
(unreported) (cleaned up) (finding that the district court abused its discretion by failing to
acknowledge how the “multiplicity of factors combine to make the case for compassionate
release”).
“How much explanation is ‘enough’ depends on the complexity of a given case.” Gutierrez,
2023 WL 245001, at *3; see Washington, 161 F.4th at 821; Malone, 57 F.4th at 170; United States
v. McDonald, 986 F.3d 402, 412 (4th Cir. 2021). For example, “when a defendant ‘present[s] a
significant amount of post-sentencing mitigation evidence, . . . a more robust and detailed
explanation [is] required.’” Cohen, 2022 WL 2314300, at *1 (quoting High, 997 F.3d at 190)
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(alterations in Cohen).
In any event, as stated, “the court must provide an explanation sufficient ‘to allow for
meaningful appellate review’ in light of the particular circumstances of the case.” Cohen, 2022
WL 2314300, at *1 (quoting High, 997 F.3d at 190). It is “not difficult” for a district court to
satisfy this standard. Burleigh, 145 F.4th 541, 550. However, a more detailed explanation may
be required if a substantial change in the law creates a disparity between the sentence a defendant
actually received and the sentence he would receive, if sentenced under current law. See Davis,
99 F.4th at 661; see 18 U.S.C. § 3553(a)(6) (directing a court to consider “the need to avoid
unwarranted sentence disparities among defendants with similar records who have been found
guilty of similar conduct.”); see Moody, 115 F.4th at 310 (recognizing that a defendant may not
“challenge the validity of a sentence in a compassionate release” motion but explaining that a court
may consider whether a defendant’s sentence would be shorter “because of changes in law.”). In
explaining its compassionate release ruling, “a district court is permitted to add to its original,
sentencing-phase consideration of the § 3553(a) factors . . . .” Bethea, 54 F.4th at 834; see Kibble,
992 F.3d at 332.
Davis, 99 F.4th 647, is informative. The Court recognized that a change in the Guidelines
or the law can produce a sentencing disparity under § 3553(a)(6). Id. at 654–55. And, the Court
observed that changes in the law since the defendant’s sentencing “would [have] lower[ed] [the
defendant’s] guidelines range from a 188–235 months range to [a] 92–115 months range.” Id. at
661.
According to the Davis Court, if the defendant were sentenced under current Guidelines,
“it is very likely that [the defendant] would already be out of prison.” Id. The Court stated, id.:
“That reality alone implicates one of the applicable sentencing factors: ‘the need to avoid
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unwarranted sentence disparities among defendants with similar records who have been found
guilty of similar conduct.’” Id. (quoting 18 U.S.C. § 3553(a)(6)). It concluded that the district
court was obligated to provide a “detailed explanation” of its § 3553(a) analysis, because “[t]his
sentence disparity is so stark, and the change in law so substantial.” Davis, 99 F.4th at 661 (citing
Chavez-Meza v. United States, 585 U.S. 109, 119 (2018)). As the Burleigh Court cautioned, even
if a defendant’s sentence “would be shorter if issued today,” this fact does not “increase the burden
on district courts to explain their decision.” Burleigh, 145 F.4th, 550, 551.
IV. Discussion
A.
Bailey asserts that he "has fully exhausted his administrative rights." ECF 132 at 8.
Additionally, he states that the Warden denied his request for compassionate release and that he
enclosed the denial. Id. However, no documentation of his submission or the denial is docketed
with the motion. See ECF 132.
The government claims that, for the purposes of exhaustion, "Defendant has
not . . . requested compassionate release based on the need to care for his ailing mother." ECF 139
at 4. It attaches defendant's previous request to the Warden to demonstrate defendant solely
“moved for compassionate release due to health concerns during the COVID19 pandemic.” Id. at
4; see ECF 139-1.
Defendant did not respond to these contentions. And, there is no documentation of
exhaustion on this issue. However, when, as here, a defendant previously exhausted his
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administrative remedies in connection with an earlier compassionate release motion, he need not
exhaust for “a second time . . . .” King, 2025 WL 1692747, at *1.
B.
1.
Bailey’s mother is now approximately 67 years of age. ECF 143. Defendant contends that
his mother's heath is deteriorating and that he is her sole caregiver. ECF 132 at 2. Specifically,
Bailey claims that he is an only child (ECF 132 at 2: ECF 142 at 2); Ms. Drake’s health and
independence have deteriorated; and she has several serious health issues. ECF 132 at 2.
In his Reply (ECF 140), defendant maintains that his mother's condition has continued to
deteriorate. Id. at 2. He claims that she suffers from chronic kidney disease. Id.11 And, in a
supplement filed on October 3, 2025 (ECF 143), Bailey asserts: “She has early On-Set Dementia,
Acute L[e]ukemia (Stage 1) that chemothe[rapy] is treating and some kind of lumps on one of her
kidneys that may require a removal or [dialysis].” Further, defendant explains that although his
mother has three siblings, they do not reside in Maryland and cannot care for Ms. Drake due to
their own advanced ages, health conditions, and personal responsibilities. ECF 140 at 8.
According to Bailey, because of the death of his stepfather, and because his mother
“remains alone in a state without family, without relatives . . .” (ECF 142 at 2), she has no one to
help her. Id. Defendant maintains that his mother needs help “with her activities of daily living.”
Id. In addition, defendant wishes to assist his mother with her financial affairs because he is
concerned about possible mismanagement. ECF 130-1 at 3; ECF 140 at 3. He states: “Bills have
11 Defendant uses the abbreviation CKD to refer to his mother’s condition. ECF 140 at 2.
Given the context, and because CKD is a common acronym for Chronic Kidney Disease, I presume
that this is what the defendant is referring to in his Reply.
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gone unpaid while others have been double paid . . . and other funds just went missing.” ECF 142
at 2.
In April 2022, while defendant’s first compassionate release motion was pending,
defendant’s mother wrote to the Court. ECF 123-1 at 1. She recounted the loss of her spouse and
her then recent diagnosis of both leukemia and diabetes. Id. at 1. Ms. Drake stated, id.: “Lately
my health hasn't looked as good as I would like to be. .[sic] I would like the court to be aware of
[i]t so that if Shem has a chance to care for me by being released I would like the help but not
burden the court.” Ms. Drake added, id.: “So with the medical treatment and medication I take or
the poor health I've been in lately, the pain I suffer daily or the two occas[]ions that I fell . . . a
substitute would seem imperative . . . .”
A neighbor, Tonya Baker, also wrote to the Court at that time. Id. at 2. She stated, id.: “"I
write this letter on my friends [sic] behalf since her health has not been not so great . . . .” Ms.
Baker described Ms. Drake as a close friend and stated that she tries to visit or call Ms. Drake
frequently to check on her. Id. Ms. Baker noted her concern about Ms. Drake's general welfare,
loneliness, and weakness following a leukemia treatment. Id.
In its Opposition, the government states, ECF 139 at 9: “[T]he government does not contest
that the defendant has demonstrated extraordinary and compelling circumstances here.”12
Nevertheless, the government posits that defendant has not listed an appropriate reason under the
Guidelines for compassionate release. Id. at 12. It urges the Court to deny the Motion, stating that
although it “certainly understands that [Ms. Drake] may need additional help, there is no clear
12 Based on the content of the Opposition, the government seems to have included that
statement in error.
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ailment, illness, or disease that [defendant] cites to that would meet as an exceptional family
circumstance permitting compassionate release.” Id. (alterations added).
Moreover, the government maintains that the only family “circumstances that qualify for
compassionate release are, ‘the death or incapacitation of the caregiver of the defendant's minor
child’ or ‘the incapacitation of the defendant's spouse or registered partner when the defendant
would be the only available caregiver for the spouse or registered partner’.” Id. (citing U.S.S.G. §
1B1.13 app. Note 1.) As such, the government argues that incapacitation of defendant’s mother
“does not qualify him for early release.” Id.
2.
The Opposition was filed on November 1, 2024. ECF 139. There, the government cites
to an outdated version of the Guidelines. Id. at 8–9; 12. Effective November 2023, i.e., a year
before the filing of the Opposition, the Guidelines were amended. Of relevance, U.S.S.G.
§ 1B1.13(b)(3) was modified by Amendment 814. The Sentencing Commission explains
(emphasis added):
First, this modification expands the existing provision relating to the death or
incapacitation of the caregiver of a defendant’s minor child to include a child who
is 18 years of age or older and incapable of self-care because of a mental or physical
disability or a medical condition. Second, the modification adds a new provision
for cases in which a defendant’s parent is incapacitated. Finally, the modification
adds a second new provision that applies when similar circumstances exist with
respect to a person whose relationship with the defendant is similar in kind to that
of an immediate family member.
United States Sentencing Commission, 2023 Amendments in Brief, at 2, https://perma.cc/6MGU-
7SZQ.
U.S.S.G. § 1B1.13(b) is titled “FAMILY CIRCUMSTANCES OF THE DEFENDANT.” Section
1B1.13(b)(3)(C) provides for an extraordinary and compelling reason based on “[t]he
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incapacitation of the defendant’s parent when the defendant would be the only available caregiver
for the parent.”
Under this section, courts examine: (1) the parent's incapacitation; and (2) whether the
defendant is the only available caregiver. United States v. Villar, No. 16 CR 340, 2024 WL
2939018, at *3 (June 11, 2024). Therefore, the government is wrong in claiming that incapacitation
of a parent is not a basis for compassionate release. See ECF 139 at 12.
3.
Notably, “incapacitation” is a high bar. The BOP has previously defined incapacitation
narrowly, i.e., when the family member (1) has “[s]uffered a serious injury, or a debilitating
physical illness” such that the family member “is completely disabled, meaning that the [family
member] cannot carry on any self-care and is totally confined to a bed or chair,” or (2) has “[a]
severe cognitive deficit (e.g., Alzheimer's disease or traumatic brain injury that has severely
affected the [family member's] mental capacity or function), but may not be confined to a bed or
chair.” Fed. Bureau of Prisons, Program Statement 5050.50 at 10 (2019)
https://www.bop.gov/policy/progstat/5050_050_EN.pdf (alterations added).
Moreover, “[c]ourts have interpreted incapacitation in this context to mean that the
individual is ‘completely disabled’ and ‘cannot carry on any self-care’ or ‘is totally confined to a
bed or chair.’” United States v. Howard, No. 3:21-CR-30187-NJR-1, 2025 WL 1684262, at *2
(S.D. Ill. June 16, 2025) (collecting cases); see United States v. Gross, No. 1 :17-CR-37-HAB,
2024 WL 4100325, at *3 (N.D. Ind. Sept. 5, 2024); United States v. Steele, 2024 WL 1928945, at
*3 (S.D. Ohio May 1, 2024).
Therefore, an individual does not qualify as incapacitated when the medical conditions
impact daily life but do not severely impede functionality. See United States v. Swarn, No. CR 20-
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118 (JRT/BRT), 2025 WL 2306990, at *2 (D. Minn. Aug. 11, 2025) (finding no incapacitation
because medical records “contain no indication that [defendant’s] mother is bedridden, chair-
bound, or suffering from cognitive decline.” ); United States v. Stayton, No. 1: 19-CR-255- 1, 2025
WL 1359805, at *3 (M.D.N.C. May 9, 2025) (finding that “the mere existence of a parent being
elderly and who has general health issues does not demonstrate incapacitation.”); United States v.
Dewalt, No. 1:20-CR-78, 2025 WL 3213875, at *3 (M.D.N.C. Nov. 18, 2025) (“The case law is
consistent that evidence of an elderly parent with health issues is not sufficient to show
incapacitation.”); United States v. Vaughn, No. 7:10-CR-17, 2025 WL 84215, at *6 (W.D. Va. Jan.
13, 2025) (“The court is sympathetic to Vaughn's desire to care for his mother, but the evidence
submitted does not show that her medical conditions are so dire that she has become
incapacitated.”); United States v. Bass, No. 4:19-CR-35 RLW, 2024 WL 3552030, at *3 (E.D. Mo.
July 26, 2024) (finding defendant failed to present evidence that his father was incapacitated);
United States v. Armstrong, TDC-16-0601, 2024 WL 1096621, at *2 (D. Md. Mar. 13, 2024) (no
showing of incapacitation based only on the allegation that a parent suffered from heart disease
and required regular assistance). Furthermore, “general claims” from a defendant's mother “that it
would be helpful for her son to take care of her and cook and clean for her do not suffice to
demonstrate incapacity.” Gross, 2024 WL 4100325, at *3; see United States v. Wendel, 2024 WL
2748493, at *2 (N.D. Ohio May 29, 2024) (“Ms. Wendel's general assertion she is unable to
‘manage her home’ is not sufficient to demonstrate that she is incapacitated.”).
United States v. Stamper, No. 3:20-CR-00295-FDW-DCK, 2024 WL 3512807 (W.D.N.C.
July 23, 2024), is instructive. There, the court wrote, id. at *5 (alterations added): “Defendant states
his mother lives alone and has hearing loss, vision loss, st[e]nts in her heart, and is suffering from
the beginning stages of Alzheimer's. She also has [a] history of falls.” A letter from the defendant's
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mother corroborated her health issues and requested the defendant's assistance. However, the court
ruled that the defendant had not established his mother's incapacity, stating id.: “While the Court
does not deny his mother's health concerns as legitimate, and empathizes with her difficulties,
Defendant does not provide additional verifiable medical documentation establishing his mother
is incapacitated and in need of a full-time caregiver.” Furthermore, the court noted that although
the “mother's conditions may worsen and eventually need full-time care, she currently is not
incapable of caring for herself.” Id.
Defendant asserts that his mother’s health conditions are “making her everyday activities
more complex,” ECF 142 at 1. He states that he could help his mother in many ways. ECF 132 at
2. He points out that his mother’s now deceased husband cooked, cleaned, transported Ms. Drake
to appointments, and provided her with emotional support. Id. However, it has been years since
the death of Ms. Drake's husband and, in the meantime, Ms. Drake has lived by herself. ECF 142
at 1. Bailey also expresses concerns about his mother’s financial situation. His concerns pertain,
in part, to Ms. Drake’s alleged donations to unspecified charities unknown to defendant as well as
issues with payment of bills. ECF 140 at 3.
But, defendant’s claims of his mother's incapacitation are based on his own assertions. See
ECF 132; ECF 140; ECF 143. For example, he recounts that his mother was hospitalized twice in
2024. ECF 132 at 2. In a letter of October 10, 2025 (ECF 142), defendant asserts that Ms. Drake
fell and bruised her hip while getting a drink, and was subsequently hospitalized briefly. Id. at 1.
In his Reply, defendant writes that he “has been made aware that on his maternal side for the last
5 generations . . . ALL the women have been known to suffer the grim fate of [Alzheimer’s]
Dementia in both early and late stages of the disease.” ECF 140 at 3 (alteration added). In a letter
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docketed October 3, 2025 (ECF 143), defendant states that his mother has early on-set dementia.
Id. at 1.
Notably, defendant has not provided any medical records for his mother to support his
assertions regarding her incapacitation. In his Reply, defendant claims that Ms. Drake’s medical
records were lost during his incarceration. ECF 140 at 1. But, this does not diminish the Court's
need for support for the defendant’s assertions. Even taking into consideration the many
difficulties for a defendant to supplement the record while incarcerated, there has been more than
enough time for defendant to provide the Court with medical records concerning his mother’s
health conditions.13
Generally, courts require a defendant to provide specific evidence establishing
incapacitation. See, e.g., United States v. Zermeno, No. l:16-CR-79(1), 2024 WL 4043445, at *4
(E.D. Tex. Sept. 3, 2024) (“Noticeably lacking from Zermeno's documentation is any indication
that [his mother] is incapacitated in that she suffers from a serious injury or debilitating physical
illness that renders her completely disabled or that she suffers from a severe cognitive deficit.”)
(alteration added); United States v. Romano, No. 22-CR-12 (KAM), 2023 WL 8735203, at *3
(E.D.N.Y. Dec. 19, 2023) (finding the defendant's failure to attach any medical evidence or
opinions or similarly competent evidence rendered “the Court unable to make the necessary factual
findings”); Villar, 2024 WL 2939018, at *4 (finding insufficient evidence in the record of
defendant's parent's incapacitation because their doctors failed to opine about their limitations);
United States v. Yarbrough, No. 2:06-CR-00203-1, 2023 WL 8614050, at *3 (W.D. Pa. Dec. 13,
13 In my prior Memorandum Opinion (ECF 127), I considered a caregiver argument lodged
by defendant and noted that he failed to submit his mother’s medical records. Id. at 19.
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2023) (denying compassionate relief because “Yarbrough does not provide his mother's medical
records, or records of any sort, so as to demonstrate her incapacitation.”).
To be sure, Ms. Drake’s health conditions are unfortunate. But, the existence of a medical
condition does not equate to incapacity. See United States v. Bartlett, No. 1:14-CR-14-HAB, 2025
WL 1272136, at *3 (N.D. Ind. May 1, 2025) (finding no incapacitation despite documented
medical conditions because “nothing in [defendant's] motion suggests, much less demonstrates,
that [his mother] cannot. . . provide self-care. To the contrary, it appears that she is doing just that
as [defendant]’s motion notes that she 'lives alone.’”) (alterations added).
As to whether defendant has established that he is the sole caregiver, he claims that his
mother's three siblings are unable to act as caregivers as they do not reside in Maryland, and two
are medically handicapped themselves and thus unable to assist their sister. ECF 140 at 8. For
example, one brother is recovering from a brain aneurysm and will soon have two hip
replacements. Id. Another brother, who is eighty years of age, is bedridden following a stroke and
resides in Arizona. Id. Defendant also asserts that his aunt is unable to care for Ms. Drake because
of her work and her own childcare needs. Id.14 Defendant also alleges that his mother’s friend, Ms.
Baker, has purchased a home in Ohio, and can no longer assist his mother. ECF 132 at 2.
Defendant's assertion that he is his mother's sole available caregiver is not supported by
any evidence. See ECF 129; ECF 132; ECF 140; ECF 141; ECF 142. If a defendant relies on a
sole-caregiver argument, “courts generally require a showing of several sources indicating that the
14 Defendant does “not address other supplemental sources of care for [defendant's] mother,
or whether she qualifies for Medicaid or skilled nursing care or other full time care services.”
United States v. Cansler, No. 4:22-CR-00019, 2025 WL 3110562, at *4 (W.D. Ky. Nov. 6, 2025)
(finding absence of argument around non-familial caretakers fatal to the claim) (alterations added);
see United States v. Harris, No. 4:21-CR-00029, 2024 WL 5075642, at *5 (W.D. Ky. Dec. 11,
2024).
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defendant is the only available caregiver for a family member in dire conditions, before concluding
that an extraordinary and compelling reason has been established.” United States v. Abayev, No.
22-CR-655, 2025 WL 1739789, at *5 (S.D.N.Y. June 24, 2025); see United States v. Ruiz-
Patozano, No. 20-CR-686 (JGK), 2025 WL 3136595, at *2 (S.D.N.Y. Nov. 10, 2025); United
States v. Doe, No. 1:17-CR-00091-JAW-1, 2024 WL 4751731, at *12 (D. Me. Nov. 12, 2024);
United States v. Christopher, No. 22 CR. 61 (JPC), 2024 WL 4707909, at *4 (S.D.N.Y. Nov. 7,
2024); Gross, 2024 WL 4100325, at *3; see also United States v. Figueroa-Gibson, No. CR 16-
802 (RAM), 2024 WL 376432, at *6 (D.P.R. Jan. 31, 2024) (finding that although defendant
claimed geographic distance and mental infirmity of family members, without "more evidence as
to these challenges, the Court cannot find that these other family members are unable to provide
adequate care.”); United States v. Striganivicz, No. 95-271, 2023 WL 4868100, at *1 (E.D. Pa.
July 31, 2023) (explaining that courts have “denied motions for compassionate release premised
on sick or elderly parents in the absence of strong evidence the petitioner is the sole individual
capable of caring for the parent.”) (cleaned up).
In my prior Memorandum Opinion (ECF 127), addressing defendant’s first compassionate
release motion, Bailey’s primary argument pertained to his own health conditions and the risk of
severe illness posed by Covid 19. Id. at 127. But, I also considered defendant’s argument that his
role as his mother’s sole caregiver satisfied the extraordinary and compelling requirement. Id. at
30. I noted that “Bailey claims that his mother suffers from leukemia, diabetes, hypertension, onset
long-term memory loss, carpel tunnel syndrome, and other ailments.” Id. Although the
Memorandum Opinion preceded the 2023 Guidelines, I analyzed the contention under the family
circumstances sole caregiver standard. Id. And, I examined the letters from Ms. Drake and Ms.
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Baker that I discussed earlier. See ECF 127 at 29–30. I also noted that defendant had not submitted
his mother’s medical records. Id. at 29.
Of import, I found that defendant had not provided enough evidence to establish an
extraordinary and compelling reason on this basis. I said, id. at 30: “The record does not establish
that Bailey is the only possible caregiver for his mother. . . . Thus, in my view, defendant has failed
to establish an extraordinary and compelling reason for his release on the basis of his family
circumstances.”
4.
Even if, arguendo, defendant has established that he is the sole caregiver, the record does
not establish that Ms. Drake is so incapacitated as to require full-time care. The Court understands
defendant's desire to be available for his mother. Nonetheless, I must construe the words of the
Guidelines in accordance with their ordinary meaning. See United States v. Boler, 115 F.4th 316,
323 (4th Cir. 2024); United States v. Haas, 986 F.3d 467, 480 (4th Cir. 2021).
I conclude that defendant has failed to establish an extraordinary and compelling reason
for his release grounded in U.S.S.G. § 1B1.13(b)(3)(C).
5.
In a letter docketed on October 15, 2025 (ECF 144), defendant alleged that he was stabbed
and jumped “by other prisoners right in front of officers who didn[’]t prevent nor try to stop it.”
Id. at 2 (alteration added). He added, id. (alteration added): “I truly hope your Honor has received
my last submission 2 [weeks] ago describing the Assault/Tort[u]re I experienced while at Coleman
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on July 23, 2025. The investigator from the Department of Justice will and can better inform the
Court if your Honor feels the need.” Id. at 3 (alterations added).15
In defendant’s letter of May 15, 2024 (ECF 130), he referenced an attack by fellow
prisoners at USP Hazelton that occurred on December 23, 2017. Id. at 2. Further, he notes that
video evidence would show that he was assaulted by other prisoners on April 12, 2024, during his
incarceration at Butner FCI-2. Id. at 1.
In a letter docketed on December 16, 2025, which arrived while I was working on the
Motion, Bailey reported, ECF 147: “I became a VICTIM OF ABUSE when I was Assaulted by
several officers & my teeth were knocked out among other claims I detailed to this court.”
Defendant’s claims of abuse could constitute an extraordinary and compelling reason for
compassionate release under U.S.S.G. § 1B1.13(b)(4)(B). The section provides for compassionate
release if the defendant “was a victim of . . . B) physical abuse resulting in ‘serious bodily injury,’
as defined in the Commentary to 1B1.1 . . . that was committed by, or at the direction of, a
correctional officer . . . or any other individual who had custody or control over the defendant.”
However, the provision also requires that the misconduct must be established either by a
criminal conviction; a finding or admission of liability in a civil case; or a finding in an
administrative proceeding. Id. There is an exception only if proceedings are “unduly delayed” or
the defendant is in “imminent danger.” Id.
Defendant’s claims are concerning. But, some of the allegations came after briefing. Even
construing defendant’s submissions liberally, he does not raise the abuse claims as a basis for the
Motion. ECF 132; 140. Cf. Clark v. Sweeney, 607 U.S. _____, _____ S.Ct. _____, No. 25-52,
15 To my knowledge, the defendant’s letters from the preceding weeks do not contain the
referenced allegation. See ECF 140; 141; ECF 142; ECF 143.
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2025 WL 3260170, at *1 (Nov. 24, 2025) (per curiam) (stating that under the presentation principle
a district court must serve as a neutral arbiter of matters the parties present); see Folkes v. Nelsen,
34 F.4th 258 (4th Cir. 2022). Nor has he presented evidence to support such a claim. And, he does
not attempt to satisfy the requirements of § 1B1.13(b)(4)(B), outlined above.
If defendant wishes to present a claim based on U.S.S.G. § 1B1.13(b)(4)(B), he may do
so. But, on this record, the Court cannot resolve such a contention.
D. 18 U.S.C. § 3355(a)
Even assuming, arguendo, that defendant established an extraordinary and compelling
reason for compassionate release, that finding would not end the inquiry. The Court must next
consider the sentencing factors in 18 U.S.C. § 3355(a). These include: (1) the nature of the offense
and the defendant’s characteristics; (2) the need for the sentence to reflect the seriousness of the
offense, promote respect for the law, and provide just punishment; (3) the kinds of sentences
available and the applicable Guidelines range; (4) any pertinent Commission policy statements;
(5) the need to avoid unwarranted sentence disparities; and (6) the need to provide restitution to
victims.
In my view, a balancing of the § 3553(a) factors indicates that defendant’s release from
prison is not warranted at this time.
Bailey argues that he is fully rehabilitated and that he wishes to lead a “law[-]abiding life.”
ECF 132 at 5 (alteration added). Defendant writes, id. at 3: “For over 8 years Bailey has been
desp[e]rately searching for redemption[,] he has sought ways to express remorse for his
unbecoming . . . conduct . . . and overall behavior.” (Alterations added).
To be sure, where appropriate, the district court “must account not only for the
circumstances at the time of the original offense but also for significant post-sentencing
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developments.” United States v. Mangarella, 57 F.4th 200, 203 (4th Cir. 2023); see United States
v. Martin, 916 F.3d 389, 397 (4th Cir. 2019); Kibble, 992 F.3d at 334 n.3. Courts place significant
weight on a defendant's post-sentencing conduct because it “provides the most up-to-date picture”
of a defendant's “‘history and characteristics.’” Pepper v. United States, 562 U.S. 476, 492 (2011)
(citing 18 U.S.C. § 3553(a)(1)). The court must “at least weigh the [defendant's] conduct in the
years since the[ ] initial sentencing[ ].” McDonald, 986 F.3d at 412; see Martin, 916 F.3d at 397
(requiring an “individualized explanation” as to rehabilitative efforts).
Rehabilitation efforts should be considered in regard to a motion for compassionate release.
See United States v. Lancaster, 997 F.3d 171, 175 (2021) (“And in considering the § 3553(a)
factors, the court can take into account a defendant’s conduct after his initial sentencing.”);
McDonald, 986 F.3d at 410–12 (noting that on a motion to reduce sentence under the First Step
Act, the district court must consider defendant’s post-sentencing conduct); Martin, 916 F.3d at 397
(requiring an “individualized explanation” as to rehabilitative efforts); United States v. Randall,
837 Fed. App’x 1008, 1009 (4th Cir. 2021) (“[A] district court must provide an individualized
explanation for denying a sentence reduction motion under the First Step Act when the defendant
presents evidence of his post-sentencing rehabilitation.”); United States v. Rudisill, 834 Fed. App’x
827, 829 (4th Cir. 2021) (finding district judge abused his discretion in denying motion under the
First Step Act without addressing defendant’s post-sentencing conduct). However, “rehabilitation
alone cannot constitute an extraordinary and compelling reason for release.” United States v.
Davis, No. 21-6960, 2022 WL 127900, at *1 (4th Cir. Jan. 13, 2022).
As of January 2021, defendant had completed six educational courses and had no incident
reports in his discipline history from the previous six months. ECF 113-1 at 8. Defendant now
states that he has completed twenty-two educational courses while in BOP custody. ECF 141 at 1.
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The courses include drug treatment and education programs. Id. Additionally, defendant asserts
that he “has helped inmates reform relationships with their family” and that he has spent time
“mentoring other inmates.” ECF 132 at 6. If these statements are true, these achievements are
praiseworthy, and defendant's post-sentencing conduct would weigh in his favor.
As the government notes, Bailey's crime was a serious one. Bailey was convicted of an
armed robbery offense, which involved threatening two individuals at gunpoint. ECF 70, ¶¶ 8–9.
Such conduct was in complete disregard to the safety of others. The seriousness of the instant
offense weighs against reducing Bailey's sentence.
Additionally, the Court cannot overlook defendant's serious criminal history. Id. ¶ 39. As
discussed earlier, Bailey had nine prior adult criminal convictions. Id. ¶¶ 28–36. Bailey was twice
convicted of robberies involving commercial establishments in New York. Id. ¶¶ 29, 30. He was
sentenced to three to six years of imprisonment. Id. While incarcerated, Bailey was found guilty
of possessing contraband and sentenced to two to four years of imprisonment. Id. ¶ 31. Soon after
defendant’s release in 2004, id. ¶¶ 29, 30, he was convicted of larceny in 2004 and of second-
degree assault in 2006. Id. ¶¶ 32, 33.
Just a year after the assault, Bailey was convicted in federal court of possession of a firearm
by a prohibited person. Id. ¶ 35. He received a lengthy sentence and experienced federal
incarceration. The sentence was vacated on appeal, and Bailey was resentenced to time served
from December 2007 to January 17, 2014. MJG-07-0496, ECF 85. Still, defendant experienced
a significant period of incarceration, and it did not deter him from committing another serious
offense.
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Moreover, Bailey violated supervised release,16 for which he was sentenced to eight months
of imprisonment. ECF 70, ¶ 35. He was released on December 16, 2015, with his supervised
release set to expire one year later. Id. Yet, that did not deter him from engaging in the crime at
issue.
I am persuaded that the § 3553(a) factors weigh against Bailey.
IV. Conclusion
I shall deny the request for appointment of counsel because Bailey is an effective self-
advocate.17 And, in my view, a reduction in defendant’s sentence would undermine respect for
the law. Therefore, for all the reasons stated above, I shall deny the Motion (ECF 132), without
prejudice.
An Order follows, consistent with this Memorandum Opinion.
Date: January 14, 2026 /s/
Ellen L. Hollander
United States District Judge
16 Bailey was convicted of driving without a license on November 17, 2014. ECF 70, ¶ 36.
17 If Bailey files another compassionate release motion, based on § 1B1.13(b)(4)(B), I will
entertain a request for appointment of counsel.
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