USA v. LNU et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ZACHARY TUFELE,
Defendant.
Case No. 17-cr-00157-DKW-6
ORDER DENYING
DEFENDANT’S MOTION FOR A
SENTENCE REDUCTION
Inmate Zachary Tufele filed a motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(1), Dkt. No. 350, arguing that “the presence of COVID-19” at the facility
where he is incarcerated, combined with his particular health conditions (obesity,
diabetes, and hypertension), constitute “extraordinary and compelling” reasons to
warrant authorizing him to serve the remaining 18 months of his 41-month sentence
“on home detention.” Dkt. No. 350 at 1, 33; id. at ¶ 54.
Aside from the fact that the Court is not authorized to place Tufele on home
confinement, United States v. Ceballos, 671 F.3d 852, 855 (9th Cir. 2011); 18 U.S.C.
§ 3621(b), Tufele has not demonstrated that the requisite “extraordinary and
compelling” circumstances exist because, despite his claimed health conditions,
there are only three positive COVID-19 cases among the inmate population at the
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facility where Tufele is housed. 	Because there is nothing “extraordinary and
compelling” about Tufele’s current situation,1 his motion is DENIED.
FACTUAL & PROCEDURAL BACKGROUND
A. Relevant Factual Background
On September 21, 2018, Defendant Zachary Tufele pled guilty to conspiracy
to distribute, and to possess with the intent to distribute, one kilogram or more of
heroin and oxycodone in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and
841(b)(1)(C). Dkt. No. 231, ¶¶ 1, 6; Dkt. No. 234. On January 15, 2019, this Court
sentenced Tufele to 41 months’ imprisonment, followed by 5 years of supervised
release. Dkt. Nos. 257–59.
In imposing this sentence, the Court adopted the presentence investigation
report (PSR) in full, Dkt. No. 259 at 1, which indicates Tufele is 5 feet 11 inches tall
and weighs 400 pounds (Body Mass Index of 55.8). Dkt. No. 252, ¶ 51. The PSR
also states that Tufele “advised that he is healthy, has no history of health problems,
does 	not 	take 	any prescription 	medication, 	and 	has 	no 	allergies 	to 	food 	or
medication.” Id. at ¶ 52. Roughly twenty months later, Tufele now claims (without
providing any medical documentation) that, in addition to “morbid obesity,” he also
1See 18 U.S.C. § 3582(c)(1); U.S.S.G. § 1B1.13 cmt. n.1.
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suffers from “hypertension” and an unspecified type of “diabetes.” Dkt. No. 350 at
3, 17, 22, 33, 55.2
Tufele is currently 27 years of age and incarcerated at Terminal Island FCI.3
Tufele has served approximately 18 months of his 41-month sentence and, assuming
good conduct, is scheduled to be released on February 24, 2022.4
LEGAL STANDARD
“‘[A] judgment of conviction that includes [a sentence of imprisonment]
constitutes a final judgment’ and may not be modified by a district court except in
limited 	circumstances.” 	Dillon 	v. 	United 	States, 	560 	U.S. 	817, 	824 	(2010)
(alterations in original) (quoting 18 U.S.C. § 3582(b)). Such circumstances must be
“expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal
Procedure.” 	See 18 U.S.C. § 3582(c)(1)(B); see also Dillon, 560 U.S. at 827, 831;
United States v. Penna, 319 F.3d 509, 511 (9th Cir. 2003). Congress carved out such
an exception in 18 U.S.C. Section 3582(c)(1), as amended by the First Step Act of
2 Tufele asserts that he requested his medical records from the Federal Bureau of Prisons (BOP),
but has not received the records. Dkt. No. 350 at 3 n.3. Although the Government notes that it
attached “portions” of the medical records to its opposition brief, Dkt. No. 354 at 12 n.2, no such
records are attached. The Government also filed a motion to seal Tufele’s medical records, Dkt.
355, but did not file “a copy of the proposed sealed filing,” as required by Local Rule 5.2(c)(1).
The Court granted the Government’s motion to seal and stated that “[t]he Government may file
the above-referenced medical records under seal.” Dkt. No. 357. As of the date of this Order,
however, Tufele’s medical records have not been filed by either the Government or Tufele.
3Find an Inmate, FEDERAL BUREAU OF PRISONS (BOP), https://www.bop.gov/inmateloc/ (last
visited Aug. 29, 2020).
4Id. The Court allowed Tufele to self-surrender to a facility to be designated by the BOP on
February 26, 2019, Dkt. No. 258 at 2, and he did.
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2018 (FSA), Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (2018).5 	Under
Section 3582(c)(1), courts may “modify a term of imprisonment” where, as here, the
inmate files a motion, if three requirements are satisfied:
(1) the inmate “has fully exhausted all administrative rights to appeal a failure
of the [BOP] to bring a motion” on behalf of the inmate “or the lapse of 30
days from the receipt of such a request” by the relevant warden;6
(2) the inmate has established 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”; and
(3) the court has “consider[ed] the factors set forth in [18 U.S.C. Section]
3553(a)” and found that the inmate is “not a danger to the safety of any other
person or the community, as provided under [18 U.S.C. Section] 3142(g).”
See 18 U.S.C. § 3582(c)(1); U.S.S.G. § 1B1.13 (policy statement). The inmate bears
the 	burden 	of 	establishing 	the 	requirements 	for 	a 	sentence 	reduction 	by 	a
preponderance of the evidence. 	See, e.g., United States v. Sprague, 135 F.3d 1301,
1306–07 (9th Cir. 1998); see also United States v. Jones, 836 F.3d 896, 899 (8th Cir.
2016); United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013); Walton v.
Ariz., 497 U.S. 639, 650 (1990) (holding that a defendant’s due process rights “are
not violated by placing on him the burden of proving mitigating circumstances
5 The FSA amended the procedural requirements under Section 3582(c)(1)(A) to permit inmates
to directly petition courts for a sentence reduction, whereas pre-amendment, an inmate could
only petition the BOP Director, who then had the discretion to move the court to reduce the
inmate’s sentence based upon “extraordinary and compelling reasons.” See FSA § 603(b), 132
Stat. at 5239; U.S.S.G. § 1B1.13 cmt. n.4.; see also United States v. Rodriguez, 424 F. Supp. 3d
674, 680 (N.D. Cal. 2019); United States v. Brown, 411 F. Supp. 3d 446, 448 (S.D. Iowa 2019).
6 The Government concedes that Tufele has satisfied the statutory exhaustion requirements. Dkt.
No. 354 at 4.
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sufficiently substantial to call for leniency.”), overruled on other grounds by Ring v.
Ariz., 536 U.S. 584, 609 (2002).
DISCUSSION
The parties contest only the second and third requirements for a sentence
reduction under Section 3582(c)(1), as outlined above. For the reasons that follow,
the Court does not reach the third requirement because Tufele has not shown that
“extraordinary and compelling reasons” exist.
I. 	Extraordinary and Compelling Reasons
Section 3582(c)(1) permits a sentence reduction only upon a showing of
“extraordinary and compelling reasons” and only if “such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission” (the
“Commission”). 	Although Tufele purportedly has health conditions that put him at
a high risk of becoming seriously ill from COVID-19 (severe obesity and type 2
diabetes), he has not shown that there is a high risk he will become infected; nor has
he shown that, if he did become infected, his ability “to provide self-care within the
. . . correctional facility” would be “substantially diminishe[d]” such that he would
“not [be] expected to recover.” See U.S.S.G. § 1B1.13 cmt. n.1(A).
A. 	The Commission’s Commentary in U.S.S.G. § 1B1.13 Defining
“Extraordinary and Compelling” is Binding on Federal Courts
Congress did not delineate the bounds for what constitutes “extraordinary and
compelling,” except to state that “[r]ehabilitation of the defendant alone” is not
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enough. 	28 U.S.C. § 994(t). 	Instead, Congress directed the Commission to
promulgate policy statements “describ[ing] what should be considered extraordinary
and compelling reasons for sentence reduction, including the criteria to be applied
and a list of specific examples.” Id. The Commission did just that under Application
Note 1 to U.S.S.G. § 1B1.13, albeit prior to the enactment of the FSA. 	The
Commission outlined the following four categories of circumstances that may
constitute “extraordinary and compelling reasons” for a sentence reduction:
(A) the inmate is “suffering from a terminal illness,” or a “serious” physical
or cognitive condition “that substantially diminishes” the inmate’s ability “to
provide self-care within the environment of a correctional facility and from
which he or she is not expected to recover”;
(B) the defendant 	is at 	least 65 	years old, is “experiencing a serious
deterioration in physical or mental health because of the aging process,” and
“has served at least 10 years or 75 percent of his or her term of imprisonment,
whichever is less”;
(C) family circumstances involving “the death or incapacitation of the
caregiver of the defendant’s minor child,” or the “incapacitation of the
defendant’s spouse or registered partner,” leaving the inmate as “the only
available caregiver for the spouse or registered partner”; or
(D) “[a]s determined by the Director of the [BOP],” in the inmate’s case there
is “an extraordinary and compelling reason other than, or in combination
with,” the other three reasons described.
See U.S.S.G. § 1B1.13 cmt. n.1.
Several district courts have concluded (as Tufele urges this Court to do) that
because the policy statement is “outdated” and does not account for the fact that an
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inmate may now seek relief directly from the court,7 the definition of “extraordinary
and compelling” is no longer limited to the examples set forth in the Commission’s
policy 	statement 	above, 	and 	courts 	are 	free 	to 	independently 	make 	that
determination.8 	See Dkt. No. 350 at 20 & n.43. But as Tufele acknowledges, Dkt.
No. 358 at 3–4, this Court has repeatedly declined to subscribe to that freewheeling
approach to compassionate release. 	See, e.g., United States v. Aruda, No. 14-CR-
00577-DKW, 2020 WL 4043496, at *3 (D. Haw. July 17, 2020); United States v.
Kealoha, No. CR 04-00265, 2020 WL 3735773, at *5–6 (D. Haw. July 6, 2020);
United States v. Kazanowski, No. 15-CR-00459, 2020 WL 3578310, at *6 (D. Haw.
July 1, 2020); United States v. Lum, No. 18-CR-00073, 2020 WL 3472908, at *3 (D.
Haw. June 25, 2020).
Courts are not at liberty to treat the Commission’s commentary as merely
“persuasive,” “of only limited authority,” or “not binding on the federal courts.”
Stinson v. United States, 508 U.S. 36, 39, 44–47 (1993) (citation omitted). 	In
Stinson, the Supreme Court announced “the standard that governs the decision
whether particular interpretive or explanatory commentary is binding.” 	Id. at 43.
There, the Court explained:
7 The Commission “has not amended the Guidelines following the First Step Act and cannot do
so until it again has four voting commissioners.” Brown, 411 F. Supp. 3d at 449 (citations
omitted)).
8Rodriguez, 424 F. Supp. 3d at 681 (collecting cases); United States v. Singui, 2020 WL
2523114, at *4 (C.D. Cal. May 18, 2020) (collecting cases).
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The Sentencing Commission promulgates the guidelines by virtue of an
express congressional delegation of authority for rulemaking, and
through the informal rulemaking procedures. Thus, the guidelines are
the equivalent of legislative rules adopted by federal agencies. 	The
functional purpose of commentary (of the kind at issue here) is to assist
in the interpretation and application of those rules, which are within the
Commission’s particular area of concern and expertise and which the
Commission 	itself 	has 	the 	first 	responsibility 	to 	formulate 	and
announce. In these respects this type of commentary is akin to an
agency’s interpretation of its own legislative rules. As we have often
stated, provided an agency’s interpretation of its own regulations does
not violate the Constitution or a federal statute, it must be given
“controlling weight unless it is plainly erroneous or inconsistent with
the regulation.”
Stinson, 508 U.S. at 44–45 (internal citations omitted) (quoting Bowles v. Seminole
Rock 	& Sand 	Co., 	325 	U.S. 410, 414 	(1945)). 	Thus, 	the 	Court 	held 	that
“commentary in the Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.” Id. at 38.9
Applying Stinson, Application Note 1 to U.S.S.G. § 1B1.13 is binding on
federal courts. The FSA only amended the procedural requirements under Section
3582(c)(1). 	See supra n.5. 	An inmate may now personally petition a court under
Section 3582(c)(1). 	The mere fact that the Commission has not accounted for this
9 Although Stinson was decided before United States v. Booker, 543 U.S. 220, 246 (2005), in
which the Supreme Court held that the Guidelines are advisory, not mandatory, the Supreme
Court later held in Dillon that Booker is inapplicable in sentence-modification proceedings under
18 U.S.C. § 3582(c)(2) because such proceedings are fundamentally different, see Dillon v.
United States, 560 U.S. 817, 828–30 (2010), and, as such, the relevant Guidelines policy
statement “constrained” courts. See id. at 825–27. The same rationale applies to Section
3582(c)(1), the companion statutory provision to the one addressed in Dillon.
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change in U.S.S.G. § 1B1.13 simply means a court must nevertheless entertain a
motion from an inmate. 	But this does not nullify the Commission’s entire policy
statement or the commentary defining “extraordinary and compelling,” nor does it
somehow render that guidance “outdated.” 	See 18 U.S.C. § 3553(a)(5) (any
“pertinent policy statement” is to be considered “subject to any amendments made
to such policy statement by act of Congress (regardless of whether such amendments
have yet to be incorporated by the Sentencing Commission into the amendments
issued under section 994(p) of title 28.”). Tufele’s contention that the Commission
did not anticipate a “global pandemic” in drafting U.S.S.G. § 1B1.13, Dkt. No. 358
at 4; Dkt. No. 350, ¶ 31, does not mean Application Note 1 to U.S.S.G. § 1B1.13
violates Section 3582(c)(1) or is “inconsistent with, or a plainly erroneous reading
of, that guideline.” 	Stinson, 508 U.S. at 38. 	Moreover, Congress did not alter the
meaning of “extraordinary and compelling” in the statute; it has not revoked the
Commission’s authority to define that phrase; and six months into the advent of
COVID-19, Congress has not amended U.S.S.G. § 1B1.13. See Mistretta v. United
States, 488 U.S. 361, 393–94 (1989) (Congress may “revoke or amend any or all of
the Guidelines” by statute “at any time”).
Therefore, because Application Note 1 to U.S.S.G. § 1B1.13 does not run
afoul of the Constitution or a federal statute, and is not “plainly erroneous or
inconsistent” with Section 1B1.13, the Commission’s “commentary is a binding
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interpretation of the phrase ‘[extraordinary and compelling].’” Stinson, 508 U.S. at
47; see also Dillon, 560 U.S. at 824 (explaining that a district court’s discretion to
modify a sentence under Section 3582(c)(2) is “constrained by the Commission’s
statements”).10 As a result, it is not the federal courts’ prerogative to help Congress
and the Commission rewrite Section 3582(c)(1) or U.S.S.G. § 1B1.13. In so holding,
the Court is among the legion of district courts that, for various reasons, “continue
to follow the guidance of the Sentencing Commission’s policy statement limiting
the scope of ‘extraordinary and compelling reasons’ that warrant compassionate
release under § 3582(c)(1).”11
B. 	Analysis: Extraordinary and Compelling Reasons
Tufele argues his circumstances rise to the level of “extraordinary and
compelling” because, should he contract COVID-19, he is at a “higher risk of serious
illness or death” due to his “medical vulnerabilit[ies]”; namely, “hypertension,
10 Numerous courts have appropriately turned to Stinson and reached the same conclusion. See,
e.g., United States v. Garcia, No. 4:05-CR-40098, 2020 WL 2039227, at *3–5 (C.D. Ill. Apr. 28,
2020); United States v. Sandoval, No. CR14-5105RBL, 2020 WL 3077152, at *3–4 (W.D.
Wash. June 10, 2020) (citing nine other decisions); United States v. Rollins, No. 99 CR 771-1,
2020 WL 3077593, at *1–2 (N.D. Ill. June 10, 2020) (explaining further that Application Note
1(D) to U.S.S.G. § 1B1.13 is not inconsistent with § 3582(c)(1)(A)(i) because it may still be
“applie[d] with full force if the Director invokes it in moving for a sentence reduction” and the
“fact that Note 1(D) is unavailable if the defendant moves for a sentence reduction does not
render it inconsistent with § 3582(c)(1)(A)(i); rather, Note 1(D) is simply inoperative in that
circumstance”).
11See, e.g., Riley v. United States, No. C19-1522 JLR, 2020 WL 1819838, at *8 (W.D. Wash.
Apr. 10, 2020); Eberhart, 2020 WL 1450745, at *2; United States v. Gonzalez, No. 2:18-CR-
0232-TOR-15, 2020 WL 1536155, at *2 (E.D. Wash. March 31, 2020); United States v. Gross,
No. 2:04-CR-032-RMP, 2019 WL 3538967, at *2 (E.D. Wash. Aug. 2, 2019); United States v.
Shields, No. 12-CR-00410-BLF-1, 2019 WL 2359231, at *4 (N.D. Cal. June 4, 2019).
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morbid obesity[,] and diabetes.” 	See Dkt. No. 350 at ¶¶ 27, 29, 35–36, 55. In that
regard, the only relevant “extraordinary and compelling” scenario identified by the
Commission is subpart (A) of the Commission’s application note. 	See U.S.S.G.
§ 1B1.13 cmt. n.1(A).12 Tufele’s circumstances, however, are insufficient.
Although the Court acknowledges that there is a heightened risk for the virus
to spread in correctional facility environments,13 standing alone, these concerns
about possible exposure to COVID-19 in the abstract are not enough to warrant an
inmate’s early release. 	See, e.g., Raia, 954 F.3d at 597; Riley, 2020 WL 1819838,
at *7 (collecting cases). That type of general concern is shared by the public at large,
as well as all incarcerated individuals.
Rather, to establish “extraordinary and compelling reasons” stemming from
the current coronavirus pandemic, and for such a finding to be consistent with
Application Note 1 to U.S.S.G. § 1B1.13, an inmate must necessarily establish the
following three elements by a preponderance of the evidence: (1) the inmate is
“suffering from a terminal illness,” or a “serious” physical or cognitive condition;
(2) that condition puts the inmate at a high risk of becoming seriously ill from
12 Tufele does not contend that the Director of the BOP has determined that there exists in this
case some “other” extraordinary or compelling reason for a reduction in sentence. See U.S.S.G.
§ 1B1.13 cmt. n.1(D); Rollins, 2020 WL 3077593, at *1–2.
13See generally Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in
Correctional and Detention Facilities, CENTERS FOR DISEASE CONTROL AND P REVENTION (CDC)
(July 22, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/correction-
detention/guidance-correctional-detention.html (last visited Aug. 31, 2020).
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COVID-19; and (3) if the inmate were to contract COVID-19, the inmate’s ability
“to provide self-care within the . . . correctional facility” would be “substantially
diminishe[d]” and the inmate would “not [be] expected to recover.” 	See, e.g.,
U.S.S.G. § 1B1.13 cmt. n.1(A); Aruda, 2020 WL 4043496, at *5; Kealoha, 2020
WL 3735773, at *7. 	Though Tufele fails to satisfy only the last prong, other
observations are worthy of mention.
First, only two of Tufele’s asserted health conditions satisfy the first and
second prong. The CDC has stated that individuals at an “increased risk of severe
illness from COVID-19” include people “aged 65 years and older,”14 as well people
of all ages with the following underlying health conditions: (i) “Chronic kidney
disease”; 	(ii) 	“COPD 	(chronic 	obstructive 	pulmonary 	disease)”; 	(iii)
“Immunocompromised 	state 	(weakened 	immune 	system) 	from 	solid 	organ
transplant”; (iv) “Obesity (body mass index [BMI] of 30 or higher)”; (v) “Serious
heart 	conditions, 	such 	as 	heart 	failure, 	coronary 	artery 	disease, 	or
cardiomyopathies”; (vi) “Sickle cell disease”; and (vii) “Type 2 diabetes mellitus.”15
14See Coronavirus Disease 2019 (COVID-19): People at Increased Risk for Severe Illness –
Older Adults, CDC (Aug. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/older-adults.html (last visited Aug. 31, 2020).
15See Coronavirus Disease 2019 (COVID-19): People at Increased Risk for Severe Illness –
People with Certain Medical Conditions, CDC (Aug. 14, 2020) https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited
Aug. 31, 2020). The CDC also notes that people with the following conditions “might be at an
increased risk for severe illness from COVID-19”: Asthma (moderate-to-severe);
cerebrovascular disease (affects blood vessels and blood supply to the brain); cystic fibrosis;
hypertension or high blood pressure; immunocompromised state (weakened immune system)
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Tufele asserts that he suffers from “hypertension, morbid obesity[,] and diabetes.”
See Dkt. No. 350 at ¶¶ 3, 29, 35–36, 55.
As a result, while Tufele’s “morbid obesity” (BMI of 55.8), Dkt. No. 252, ¶
51, is a CDC-risk factor, his hypertension is not because that condition is only
identified by the CDC as something that “might” present an enhanced risk. 	Supra
n.15. Not every physical or cognitive condition can be a risk factor if “extraordinary
and compelling” is to have any meaning. As for the unknown type of diabetes Tufele
allegedly suffers from, Tufele does not assert that he has “type 2 diabetes,” much
less provide any evidentiary support that he is a diabetic. 	Notwithstanding this
evidentiary gap in the record, see supra n.2, the Government appears to concede that
Tufele has type 2 diabetes. See Dkt. No. 354 at 11. The Court will therefore assume
Tufele currently has two qualifying health conditions that put him at a high risk of
becoming seriously ill from COVID-19 (type 2 diabetes and obesity).
Second, in order for Tufele’s type 2 diabetes and obesity (or any of his
conditions) to matter, insofar as an “extraordinary and compelling” finding is
concerned, Tufele must (at the very least) show that there is a high risk of contracting
from blood or bone marrow transplant, immune deficiencies, HIV, use of corticosteroids, or use
of other immune weakening medicines; neurologic conditions, such as dementia; liver disease;
pregnancy; pulmonary fibrosis (having damaged or scarred lung tissues); smoking; thalassemia
(a type of blood disorder); and type 1 diabetes mellitus. Id. (emphasis added).
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the virus because there are positive COVID-19 cases at the facility where he is
housed. Tufele has not done so.
Here, the risk of Tufele contracting COVID-19 at Terminal Island FCI is but
a remote and speculative possibility. 	That facility currently houses a total of 913
inmates.16 	While the facility once had a high number of confirmed coronavirus
cases, that is not the current situation. 	As of the date of this Order, the BOP’s
coronavirus-related data for Terminal Island FCI indicates there are: 3 inmates
positive; 0 staff positive; 10 inmate deaths; 0 staff deaths; 627 inmates recovered;
and 23 staff recovered.17 	In other words, the number of positive cases at Terminal
Island FCI is approximately 0.3% of the inmate population. 	Section 3582(c)(1),
however, generally covers only an inmate’s circumstances that are likely “terminal,”
“serious,” and otherwise permanent. 	See U.S.S.G. § 1B1.13 cmt. n.1(A)–(C).
Therefore, in the face of the statistics for Terminal Island FCI, Tufele’s inchoate
speculation about the possibility of contracting the virus is hardly enough to justify
his immediate release.
16FCI Terminal Island, BOP, https://www.bop.gov/locations/institutions/trm/ (last visited Aug.
31, 2020).
17See COVID-19 Coronavirus: COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/ (last
visited Sept. 1, 2020). On this public website containing the coronavirus-related data for BOP
facilities, the BOP notes that it “will update the open COVID-19 confirmed positive test
numbers, recoveries, and the number of COVID-19 related deaths daily at 3:00 p.m.,” and
because the BOP “has begun additional testing of asymptomatic inmates to assist in slowing
transmissions within a correctional setting,” the data is expected to reflect an increase in the
number of COVID-19 positive tests. Id.
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Lastly, even if a large portion of the Terminal Island FCI inmate population
was infected with COVID-19, Tufele has not shown that, should he contract the
virus, Terminal Island FCI is any less equipped to treat him than if he were not
incarcerated. 	Tufele says little on this, other than repeat his generalized fear of
COVID-19 in the dormitory-like setting in which he lives at Terminal Island FCI.
Dkt. No. 350 at 14. To the contrary, in collaboration with the CDC and the World
Health Organization (WHO), the BOP has taken extensive efforts to curtail the
spread of the virus; including, inter alia, suspending social visits; suspending inmate
transfers; testing inmates who arrive at a BOP facility; suspending legal visits (with
some exceptions); implementing enhanced health screening of staff; quarantining
symptomatic inmates; suspending tours; limiting inmates “in their movements to
prevent congregate gathering and maximize social distancing”; and completing an
inventory of personal protective equipment at all BOP locations with the BOP
continuing to “stockpile.”18 	As such, the BOP’s preventive measures are as
extensive, if not more, than those implemented in cities and states. And nothing in
the record establishes that Tufele is not being properly cared for at Terminal Island
18See generally BOP Implementing Modified Operations, BOP, https://www.bop.gov/
coronavirus/covid19_status.jsp (last visited Aug. 31, 2020); A BOP COVID-19 Overview, BOP,
https://www.bop.gov/coronavirus/overview.jsp#bop emergency response (last visited Aug. 31,
2020).
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FCI. 	Conditions that can be managed in prison are not a basis for compassionate
release. 	See U.S.S.G. § 1B1.13 cmt. n.1(A); Kealoha, 2020 WL 3735773, at *7.
Because 	Tufele 	has 	not 	carried 	his 	burden 	of showing 	that 	there 	are
“extraordinary and compelling reasons” to justify his early release under 18 U.S.C.
§ 3582(c)(1), he is not entitled to a sentence reduction.
Tufele’s motion fails for the additional reason that the Court cannot grant the
relief he seeks. Tufele makes clear that he “does not seek a reduction in sentence to
‘time-served,’ but rather [seeks] designation of home confinement for the remainder
of his sentence.” Dkt. No. 350 at 1, 32; id. at 28 (“Defendant is asking the court to
sentence him to home confinement for a term to equal to [sic] his remaining
sentence, to be followed [by] the currently-imposed term of supervised release.”);
id. at 33 (“Defendant should be resentenced to home confinement.”). 	The Court
lacks the authority to do so.
By its terms, Section 3582(c)(1)(A) only permits a court to “reduce the term
of imprisonment.” 	“The [BOP] has the statutory authority to choose the locations
where prisoners serve their sentence.” United States v. Ceballos, 671 F.3d 852, 855
(9th Cir. 2011) (citing 18 U.S.C. § 3621(b) (“The [BOP] shall designate the place of
the prisoner’s imprisonment.”)); 18 U.S.C. § 3624(c)(2) (establishing the BOP’s
authority to place an inmate in “home confinement”). Tufele acknowledges as much
in his motion. 	Dkt. No. 350, ¶ 54. 	Tufele’s proposed solution is that the Court
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should follow a handful of other courts by “reducing [his current sentence to time
served, expanding the supervised release term [to include his remaining 18 months’
imprisonment], and imposing a condition of home confinement on the expanded
supervised release term.” 	Id.; see also id. at ¶ 52. 	The Court rejects this novel
endeavor. 	That rationale is a transparent attempt to usurp the BOP’s statutory
authority 	by 	circumventing 	Congress’ 	intent 	under 	Sections 	3624(c)(2) 	and
3582(c)(1)(A).
To be sure, on March 26, 2020, U.S. Attorney General William Barr directed
the BOP Director to “prioritize the use of your various statutory authorities to grant
home confinement for inmates seeking transfer in connection with the ongoing
COVID-19 pandemic.”19 	The following day, Congress granted the BOP Director
the authority to “lengthen the maximum amount of time for which the Director is
authorized to place a prisoner in home confinement under . . . [18 U.S.C. Section]
3624(c)(2)],” so long as “the Attorney General finds that emergency conditions will
materially affect the functioning of the Bureau.” 	See Coronavirus Aid, Relief, and
Economic Security (CARES) Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat.
281, 515–17 (2020). 	In response, “the BOP began immediately reviewing all
inmates who have COVID-19 risk factors, as described by the CDC, to determine
19 Memorandum from Attorney Gen. to Director of Bureau of Prisons, Prioritization of Home
Confinement As Appropriate in Response to COVID-19 Pandemic (Mar. 26, 2020),
https://www.justice.gov/file/1262731/download.
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which inmates are suitable for home confinement. Since the release of the Attorney
General’s original memo to the Bureau of Prisons . . . instructing [the BOP] to
prioritize home confinement as an appropriate response to the COVID-19 pandemic,
the BOP has placed 7,559 inmates on home confinement.”20 Of course, a sentencing
court may make a “non-binding” recommendation to the BOP regarding where an
inmate’s sentence should be served. 	Ceballos, 671 F.3d at 855 (citing 18 U.S.C.
§ 3621(b)). As a discretionary matter, however, the Court declines to make such a
recommendation to the BOP in the instant case because of the circumstances
described above.
CONCLUSION
For the reasons set forth herein, Tufele’s motion for a sentence reduction, Dkt.
No. 350, is DENIED.
IT IS SO ORDERED.
DATED: September 1, 2020 at Honolulu, Hawai‘i.
United States v. Zachary Tufele; Cr No. 17-00157-DKW-6; ORDER DENYING
DEFENDANT’S MOTION FOR A SENTENCE REDUCTION
20COVID-19 Coronavirus: COVID-19 Home Confinement Information, BOP,
https://www.bop.gov/coronavirus/ (last visited Aug. 31, 2020).
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