USA v. Gaby

1
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
V. 	2:19-CR-20039-001
CECIL W. GABY 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Before the Court are the Motion to Reduce Sentence and a Supplemental Motion to Reduce
Sentence filed by Defendant, Cecil W. Gaby (“Gaby”). (ECF Nos. 52 and 58).1 The Government
has responded to the Motion. (ECF No. 69). The matter is now ripe for decision. The Honorable
Susan O. Hickey, United States District Judge, referred this case to the undersigned for report and
recommendation. The undersigned finds that no evidentiary hearing is required.2 For the reasons
discussed below, it is RECOMMENDED that the Motions be DENIED.
I. 	BACKGROUND
On December 18, 2019, Gaby waived indictment and consented to prosecution by
Information. (ECF No. 1). He was charged with one count of Distributing a Controlled Substance,
in violation of 21 U.S.C. § 841(a)(l) and § 841(b)(l)(C), and 21 C.F.R. § 1306.04. (ECF No. 2).
1 Gaby filed the original Motion pro se. (ECF No. 52). On October 22, 2024, the Federal Defender
was appointed to represent Gaby. (ECF No. 54). A Supplemental Motion was filed by counsel on
December 26, 2024. (ECF No. 58).
2 “A federal court may dismiss a claim without an evidentiary hearing when allegations are
frivolous, where the allegations fail to state a constitutional claim, where the relevant facts are not
in dispute, or where the dispute can be resolved on the basis of the record." Urquhart v. Lockhart,
726 F.2d 1316, 1318-19 (8th Cir. 1984)
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 1 of 10 PageID #:
<pageID>

2
On the same date, and pursuant to a written Plea Agreement (ECF No. 5), Gaby pleaded guilty as
charged in the Information. (ECF No. 4).
The parties stipulated to a Guidelines base offense level of 38 (ECF No. 5, ¶ 6), which after
a three-level reduction for acceptance of responsibility (ECF No. 14, ¶¶ 78-79), resulted in a
Guidelines sentencing range of 168-210 months imprisonment (Id., ¶¶ 84, 120). 	A sentencing
hearing was conducted on May 27, 2021, at the conclusion of which Gaby was sentenced to 120
months imprisonment and 3 years supervised release. (ECF No. 22). The Court’s Judgment was
filed the next day. (ECF No. 24).
On March 13, 2023, Gaby filed a pro se Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255. (ECF No. 31). He argued that: (1) his medical condition impacted
his ability to detect deceitfulness; (2) his counsel was ineffective for failing to present evidence of
that condition; and (3) the Government failed to prove requisite scienter. The Government filed
its Response to Gaby’s Motion on April 19, 2023, arguing that the first and third claims were
meritless, and that the second claim was procedurally defaulted. (ECF No. 40). Gaby filed a Reply
on June 5, 2023. 	(ECF No. 45). 	The Court agreed with the Government’s arguments, and on
December 15, 2023, the Hon. Christy D. Comstock, United States Magistrate Judge, filed her
Report and Recommendation that Gaby’s § 2255 Motion be denied. (ECF No. 46). On April 11,
2024, Judge Hickey entered an Opinion and Order adopting the Report and Recommendation in
its entirety and dismissing Gaby’s § 2255 Motion with prejudice. (ECF No. 50).
On August 19, 2024, Gaby filed the pending pro se Motion to Reduce Sentence, pursuant
to 18 U.S.C. § 3582(c)(1)(a). 	(ECF No. 52). 	On October 22, 2024, an Order was entered
appointing a Federal Public Defender to represent Gaby. (ECF No. 54). On December 26, 2024,
the Federal Public Defender filed a Supplemental Motion to Reduce Sentence, pursuant to Section
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 2 of 10 PageID #:
<pageID>

3
603 of the First Step Act of 2018 and 18 U.S.C § 3582(c)(1)(a)(i). (ECF No. 58). The Government
filed its belated Response on August 1, 2025. (ECF No. 69). The Motions have been referred to
the undersigned. (ECF Nos. 56, 65).
II. 	THE MOTIONS TO REDUCE SENTENCE
The Court now turns to these pending motions. Defendant raises the following arguments
in the instant motions:
1) 	More than 30 days elapsed after Gaby submitted a request for compassionate release to the
warden and, therefore, this Court can now decide on his request.
2) 	Gaby has metastatic prostate cancer, a history of heart attacks, and a previous stroke, which
when taken in combination qualify as an extraordinary or compelling reason warranting a
sentence reduction under § 1B1.13(b)(1)(B).
3) 	Gaby’s metastatic prostate cancer is a medical condition that will require long-term or
specialized medical care which he will not be able to adequately receive within the Bureau
of Prisons (“BOP”) and, therefore, qualifies as an extraordinary or compelling reason
warranting sentence reduction under § 1B1.13(b)(1)(C).
4) 	Because Gaby has forfeited his medical license, has a very low FSA recidivism risk
assessment, has endured a “far more punitive” incarceration due to declining health, and
could serve the remainder of his sentence in home confinement, the § 3553 factors weigh
in favor of a sentence reduction.
In its Response, the Government argues:
1) 	Because Gaby’s request form only states, “I am requesting assistance in filing a Motion for
Compassionate Release under 18 U.S.C. 3582,” and it never actually makes an explicit
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 3 of 10 PageID #:
<pageID>

4
request for compassionate release itself, the request form is insufficient to trigger the 30-
day timer.
2) 	As of May 2025, Gaby’s medical records reflect that his cancer has entered remission,
negating its status as an extraordinary or compelling reason for sentence reduction.
3) 	There is nothing supporting the contention that Gaby’s cancer and other ailments are
beyond the BOP’s treatment capabilities.
4) 	Because Gaby was a medical professional whose underlying crime involved misuse of a
position of public trust, the § 3553 factors weigh against a sentence reduction.
III. 	LEGAL STANDARD
A prisoner can seek relief from the court for a sentence reduction only after he has “fully
exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion
on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden
of the defendant’s facility, whichever is earlier.” 18 U.S.C. § 3582(c)(1)(A). “This requirement is
a mandatory claim-processing rule.” United States v. Houck, 2 F.4th 1082, 1084 (8th Cir. 2021).
Once this procedural prerequisite has been satisfied, the burden lies on the defendant to
establish that (1) “extraordinary and compelling reasons warrant such a reduction,” and (2) “that
such a reduction is consistent with applicable policy statements issued by the Sentencing
Commission.” Id.; see also United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016). A district
court “may” reduce the term of imprisonment if it finds all these requirements are met; however,
in addition to these conditions, the court must also “consider the factors set forth in section
3553(a) to the extent that they are applicable.” Id. Importantly, the use of “may” is “quintessential
discretionary language.” United States v. Sutton, 962 F.3d 979, 986 (7th Cir. 2020). “The statute
says that the district court ‘may’ reduce a sentence if it finds the first two requirements met; it does
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 4 of 10 PageID #:
<pageID>

5
not say that the district court must do so. 	Even if those conditions are met, therefore, a district
court may still deny relief if it finds that the applicable § 3553(a) factors do not justify it.” United
States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020) (internal citations omitted).
Accordingly, the Court must determine whether Gaby has met the procedural prerequisite
by exhausting his administrative rights, and if so, whether “extraordinary and compelling reasons”
warrant a sentence reduction considering the sentencing factors in § 3553.
IV. 	DISCUSSION
A. 	Sufficiency of Request to Initiate Exhaustion Timer
Gaby claims that he has satisfied the exhaustion requirement because 30 days have elapsed
since the warden’s receipt of his request. The Government contends that because Gaby’s request
form only states, “I am requesting assistance in filing a Motion for Compassionate Release under
18 U.S.C. 3582” and never actually makes an explicit request for compassionate release itself, the
request form is insufficient to trigger the 30-day timer, and thus the motion must be denied for
failure to satisfy the mandatory claim processing requirement.
The Court found no directly controlling precedent addressing the sufficiency of a § 3582
request based on such wording. 	In the absence of such authority, the Court looks to general
principles of procedural fairness to guide its analysis. 	As such, the Court notes that pro se
submissions are to be liberally construed and sparingly penalized for imperfect wording—so long
as the form still achieves the same functional effect. See Jackson v. Nixon, 747 F.3d 537, 541 (8th
Cir. 2014).
Gaby’s written request to the warden stated: “I have been diagnosed with advanced-stage
cancer. I am requesting your assistance in filing a Motion for Compassionate Release under 18
U.S.C. § 3582.” (ECF No. 52-1, p. 8).
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 5 of 10 PageID #:
<pageID>

6
This language expressly identified the subject matter (compassionate release under § 3582
based on advanced-stage cancer) and the relief requested (compassionate release). 	The BOP
therefore had ample opportunity to evaluate the request, and then either initiate its own motion or
notify Gaby that his request was deficient. It did neither.
To hold that Gaby’s request fails to satisfy exhaustion would leave him in procedural
limbo—stuck without guidance or recourse—contrary to both the statute’s remedial purpose and
principles of fairness to pro se litigants. 	The BOP had opportunity to address any perceived
deficiency when the request was received, but it did not do so, instead letting 30 days expire after
Gaby’s request. See United States v. Garcia, 743 F.Supp.3d 1334, 1339 (D. Utah. 2024) (statute
allowed prisoner to file motion on her own behalf upon passage of 30 days from prisoner’s
unanswered request for such relief; as used in § 3582(c)(1)(A), “the lapse of 30 days” can
reasonably and naturally be read to mean “the passage of 30 days without action by the warden”).
The undersigned finds that Defendant’s submission was sufficient to trigger the 30-day exhaustion
period under § 3582(c)(1)(A).
The Court will now examine the merits of Gaby’s request for compassionate release.
B. 	Medical Condition Diminishing Ability to Provide Self-Care
Gaby claims that his combination of prostate cancer, history of heart attacks, and
complications from stroke rise to the level of an extraordinary or compelling reason for sentence
reduction under U.S.S.G. § 1B1.13(b)(1)(B). 	The provision under which Gaby makes this
argument states that compassionate release is appropriate when “the defendant is … suffering from
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.” Id.
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 6 of 10 PageID #:
<pageID>

7
In response, the Government points to Gaby’s recent medical records to highlight the fact
that his cancer is now in remission, and he appears to be doing well overall dispelling the notion
that Gaby is unable to provide adequate self-care. Indeed, upon examination of Gaby’s medical
records up until and including his most recent medical visitation on May 22, 2025, there are
repeated instances of Gaby reporting that he is “feeling well,” that his cancer is in remission, and
repeated health assessments returning findings “within normal limits.”
Courts generally rely on evidence of an inmate’s ability to perform activities of daily living
to determine whether the inmate can provide self-care. 	United States v. Bellamy, 2019 WL
3340699 at *4 (D. Minn. July 25, 2019); United States v. Mathison, 467 F. Supp. 3d 673, 680 (N.D.
Iowa 2020). The relevant activities can include, but are not limited to, walking, eating, using the
toilet, getting dressed, taking medication, and bathing. 	See generally Bellamy, 2019 WL
3340699; see also United States v. Handy, 2020 WL 2041666 (D. Md. April 28, 2020).
Upon examination of Gaby’s health records, the undersigned finds no evidence that Gaby
requires assistance to conduct any of the mentioned self-care activities. As such, the undersigned
does not find that Gaby has an “extraordinary or compelling reason” for sentence reduction on
U.S.S.G. § 1B1.13(b)(1)(B) grounds.
C. 	Medical Condition Requiring Long Term or Specialized Care
Gaby argues that his metastatic prostate cancer will require long-term or specialized
medical care of which he will not be able to adequately receive within the BOP, therefore
qualifying as an extraordinary or compelling reason warranting sentence reduction under §
1B1.13(b)(1)(C). The provision under which Gaby makes this argument states that compassionate
release is appropriate when “the defendant is … suffering from a medical condition … that requires
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 7 of 10 PageID #:
<pageID>

8
long-term or specialized medical care that is not being provided and without which the defendant
is at risk of serious deterioration in health or death.” § 1B1.13(b)(1)(C).
The Government points out that Gaby’s medical records show his cancer is currently in
remission and, therefore, can no longer qualify as a medical condition requiring long-term or
specialized medical care. Further, they explain that even assuming arguendo it did qualify, it is
still within the capabilities of the BOP to adequately treat.
Indeed, based upon a review of Gaby’s medical records, the Court can confirm that his
prostate cancer went into remission at least by January 23, 2025, and has remained in remission
since. 	From this, we know two things: (1) due to this improvement, the cancer itself will not
contribute to a serious deterioration in health or death to qualify as an extraordinary or compelling
reason, and (2) the BOP’s oncology treatment capabilities have been adequate.
This leaves Gaby’s reported history of heart attacks, stroke, type-2 diabetes, and general
physical decline. 	For this combination of issues, caselaw is clear that the BOP is capable of
adequate treatment and that such issues do not rise to the level of “extraordinary or compelling.”
See generally United States v. Thompson, 984 F.3d 431, 434-35 (5th Cir.), cert. denied, 141 S. Ct.
2688 (2021) (affirming denial of compassionate release to a defendant with medically controlled
high blood pressure and high cholesterol, and a history of stroke); United States v. Reed, 464 F.
Supp. 3d 854, 861 (E.D. La. 2020) (denying compassionate release to an inmate with high blood
pressure, diabetes, coronary artery disease, and prostate cancer when the medical records showed
that he was receiving adequate medical care for all conditions and that his ability to provide self-
care was not substantially diminished).
Moreover, the BOP’s records indicate that they consider his combination of ailments to be
one of relatively easy management. After a clinical encounter in early 2025, when they found his
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 8 of 10 PageID #:
<pageID>

9
cancer to be in remission, Gaby’s BOP Health Services provider recommended that Gaby’s patient
care level be updated to Care Level 2. (ECF No. 70-1, p. 2). This was based on the 2019 CPG
Care Level Classification System, which characterizes inmate health care needs on a scale of 1
through 4, based on intensity of care issues and demand for resources. 	Gaby’s Care Level of 2
corresponds to a “stable outpatient” whose “medical conditions can be managed through routine,
regularly scheduled appointments,” and only require “enhanced medical resources … from time
to time.” 	Care Level Classification for Medical and Mental Health Conditions or Disabilities,
Fed. Bureau of Prisons Clinical Guidance (May 2019).3 	This further demonstrates the BOP’s
ability to appropriately treat Gaby’s medical issues.
As such, the undersigned does not find that Gaby has shown an “extraordinary or
compelling reason” for sentence reduction on U.S.S.G. § 1B1.13(b)(1)(C) grounds. Because the
Court has not found any extraordinary or compelling reason for sentence reduction, we need not
examine the § 3553 factors, and the analysis can end here.
V. 	CONCLUSION
For the reasons discussed above, it is RECOMMENDED that Gaby’s Motion to Reduce
Sentence (ECF No. 52) and Supplemental Motion for a Sentence Reduction Pursuant to Section
603 of the First Step Act of 2018 and 18 U.S.C. § 3582(c)(1)(a)(i) (ECF No. 58) be DENIED.
The parties have fourteen (14) days from receipt of the Report and Recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
3 	Available 	at 	https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf 	(last
accessed on October 27, 2025).
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 9 of 10 PageID #:
<pageID>

10
reminded that objections must both be timely and specific to trigger de novo review by the
district court.
DATED this 27th day of October 2025.
/s/ Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
Case 2:19-cr-20039-SOH Document 71 Filed 10/27/25 Page 10 of 10 PageID #:
<pageID>