USA v. Tarnawa

OCR transcription for search; preserved printed pages are authoritative

Case 4:03-cr-00144-ALM-BD
Document 204 Filed 01/13/26 Page 1 of 17 PageID #:

United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION
UNITED STATES OF AMERICA, § §
§
v.
§ §
§ § Case No. 4:03-CR-144-ALM-BD-1
DONALD TARNAWA,
§ §
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant's Pro Se Motion to Reduce Sentence - First Step Act and for Compassionate Release (Dkt. #193, Dkt. #194). Having considered the Motions and the relevant pleadings, the Court finds that the Motions should be DENIED.
BACKGROUND
On May 12, 2005, before the Honorable U.S. District Judge Paul Brown, Donald Tarnawa, was found guilty by a jury on counts 1-31 of the indictment; Wire Fraud (count 1-5), Bank Fraud (count 6-11), and Money Laundering (count 12-31). Defendant was subsequently sentenced, to a total of 480 months; on counts 1-5 to 240 months imprisonment on each count, to run concurrently; counts 6-11 to 360 months on each count, to run concurrently with each other and with counts 1-5; counts 12-31 to 120 months on each count, all counts to run concurrently with each other, and consecutively with terms imposed on counts 1-5 and counts 6-11, to a yield a total term of 480 months. Additionally, Defendant was sentenced to a total of 5 years of supervised release; 3 years on each of counts 1-5 and 12-31 and term of 5 years on each of counts 6-11, all such terms to tun concurrently. Defendant was responsible for a total loss of $16,627,498.47. A review of Defendant's criminal history shows prior convictions for Resisting Arrest, Burglary, Escape, Soliciting for Prostitution, Possession of LSD, Obtaining Property in Return for Worthless Checks,
AUTHENTICATED U.S. GOVERNMENT INFORMATION GPO

Grand Theft, Theft over $750, and Forgery of Bank Bills. Defendant currently has an active
detainer out of Pinellas County, Florida for a Fraud charge which has not been disposed.
Defendant is serving his sentence at Hazelton FCI, in Bruceton Mills, West Virginia, and
his projected release date is October 25, 2036. Defendant has served 53.4% of his term of
imprisonment and has received 365 days of First Step Act credit toward his sentence. Moreover,
Defendant still has detainer out of Pinellas County, Florida for Fraud charges from 2005.
LEGAL STANDARD
I. 	18 U.S.C. § 3582(c)(1)(A)
A judgment of conviction imposing 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) (quoting 18 U.S.C. § 3582(b)). “Often referred to as
‘compassionate release,’ § 3582(c)(1)(A) embodies a rare exception to a conviction’s finality.”
United States v. Wilson, No. 1:07-CR-236-MAC-CLS-1, 2024 WL 4267923, at *3 (E.D. Tex.
Sept. 23, 2024). The statute gives the Court discretion, under certain circumstances, to reduce a
defendant’s term of imprisonment. Id. The First Step Act of 2018, in part, states:
(A) 	[T]he court, upon motion of the Director of the Bureau of Prisons
[(“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 is
earlier, may reduce the term of imprisonment (and may impose a term of
probation or supervised release with or without conditions that does not
exceed the unserved portion of the original term of imprisonment), after
considering the factors set forth in section 3553(a) to the extent that they
are applicable, if it finds that—
(i) 	extraordinary and compelling reasons warrant such a reduction; or
(ii) 	the defendant is at least 70 years of age, has served at least 30 years
in prison, pursuant to a sentence imposed under section 3559(c), for
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the offense or offenses for which the defendant is currently
imprisoned, and a determination has been made by the Director of
the [BOP] that the defendant is not a danger to the safety of any
other person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission . . . .
Pub. L. No. 115-391, 132 Stat. 5194, codified as 18 U.S.C. § 3582(c)(1)(A).1
Instead of defining “extraordinary and compelling reasons,” Congress delegated its
authority to the United States Sentencing Commission (“Commission”) to define the term. See
28 U.S.C. § 994(t) (directing the Commission to “describe what should be considered
extraordinary and compelling reasons for sentence reduction, including the criteria to be applied
and a list of specific examples”); see also Wilson, 2024 WL 4267923, at *3 (collecting cases); United
States v. Jean, 108 F.4th 275, 278 (5th Cir. 2024). “Although the Commission issued a policy
statement prior to the passage of the [First Step Act] that described the reasons that qualify as
extraordinary and compelling, that policy statement referenced only those motions filed by the
Director of the [Bureau of Prisons]” Wilson, 2024 WL 4267923, at *3. Accordingly, the Fifth
Circuit held that the policy statement was inapplicable to motions filed by defendants on their own
behalf. United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021).
This changed on November 1, 2023, when the amendments to the United States
Sentencing 	Guidelines 	(“Guidelines”) 	became 	effective. 	The 	Commission 	amended 	the
Guidelines to extend the applicability of the policy statement set forth in U.S.S.G. § 1B1.13 to
defendant-filed motions and to broaden the scope of what qualifies as “extraordinary and
1 	This provision is often referred to as “compassionate release.” See Wilson, 2024 WL 4267923, at *3 (citing United
States v. Escajeda, 58 F.4th 184, 186 (5th Cir. 2023)).
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compelling” reasons potentially warranting compassionate release. Wilson, 2024 WL 4267923,
at *4 (citing U.S.S.G. § 1B1.13). Section 1B1.13(b), as amended, identifies six categories of
circumstances that may qualify as “extraordinary and compelling.” U.S.S.G. § 1B1.13(b). The
categories are: (1) the medical circumstances of the defendant; (2) the age of the defendant; (3) the
family circumstances of the defendant; (4) whether the defendant was a victim of abuse while in
custody; (5) other reasons similar in gravity to those previously described; and (6) an unusually
long sentence. Id. § 1B1.13(b)(1)–(6). Notably, rehabilitation alone is insufficient to grant a
defendant’s motion for compassionate release. Jean, 108 F.4th at 279.
II. 	Exhaustion of Administrative Remedies
Section 3582(c)(1)(A) states that the Court may not grant a defendant’s motion for
compassionate release unless the defendant has complied with the administrative exhaustion
requirement. Wilson, 2024 WL 4267923, at *4 (citing 18 U.S.C. § 3582(c)(1)(A); United States v.
Garrett, 15 F.4th 335, 337 (5th Cir. 2021); United States v. Franco, 973 F.3d 465, 467 (5th Cir.
2020)).2 That is, a defendant may not seek relief from a court before first exhausting each
administrative avenue available to the defendant. See Wilson, 2024 WL 4267923, at *4.
“Accordingly, before seeking relief from the [C]ourt, a defendant must first submit a request to
the warden of his facility to move for compassionate release on his behalf and then either exhaust
his administrative remedies or wait for the lapse of 30 days after the warden received the request.”
Id. (citing 18 U.S.C. § 3582(c)(1)(A)).
2 	The exhaustion requirement applies whether the motion is styled as one for compassionate release or merely for a
sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Wilson, 2024 WL 4267923, at *4.
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This exhaustion requirement is a “mandatory claim-processing rule,” which means a
defendant may not waive it himself. Franco, 973 F.3d at 468; see also United States v. Rivas, 833
F. App’x 556, 558 (5th Cir. 2020) (“Because the statutory language is mandatory . . . we must
enforce this procedural rule[.]”). However, that is not to say the exhaustion requirement can never
be 	waived. Section 	3582(c)’s 	exhaustion 	requirement 	is 	a 	claim-processing 	rule—not 	a
jurisdictional prerequisite. Ward v. United States, 11 F.4th 354, 361 (5th Cir. 2021). Thus, like other
claim-processing rules, “the Government must properly raise the rule before it will be
enforced.” Id. (citation 	modified); see 	also Fort 	Bend 	County 	v. 	Davis, 	587 	U.S. 	541, 	549
(2019) (citation modified) (“A claim-processing rule may be ‘mandatory’ in the sense that a court
must enforce the rule if a party properly raises it . . . But an objection based on a mandatory claim-
processing rule may be forfeited if the party asserting the rule waits too long to raise the point.”).
In turn, if the Government does not invoke the exhaustion requirement, the Court will deem the
matter waived for the purposes of a defendant’s motion under § 3582(c)(1)(A). See Ward, 11 F.4th
at 361; see also United States v. McLean, No. 21-40015, 2022 WL 44618, at *1 (5th Cir. Jan. 5,
2022) (finding abuse of discretion where the failure to exhaust administrative remedies was raised
sua sponte).
III. 	U.S.S.G.’s Policy Statement
A. 	Defendant’s medical circumstances (U.S.S.G. § 1B1.13(b)(1))
The Sentencing Commission has enumerated four separate medical circumstances to
consider in evaluating a compassionate release request. U.S.S.G. § 1B1.13(b)(1)(A)–(D).
First, whether the defendant is “suffering from a terminal illness (i.e., a serious and
advanced illness with an end-of-life trajectory).” Id. § 1B1.13(b)(1)(A). Although a life-expectancy
prognosis is not required, the provided examples make clear how serious the illness must be:
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“metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and
advanced dementia.” Id. Fifth Circuit precedent is in accord. See, e.g., United States v. McMaryion,
No. 21-50450, 2023 WL 4118015, at *2 (5th Cir. June 22, 2023) (per curiam) (“We have said that
a late-stage, terminal prognosis can constitute an extraordinary and compelling basis for a
§ 3582(c)(1) motion.”). Generic conditions like hypertension or high cholesterol are insufficient.
See, e.g., United States v. Thompson, 984 F.3d 431, 434 (5th Cir. 2021) (finding neither hypertension
nor high cholesterol to be terminal conditions); United States v. Koons, 455 F. Supp. 3d 285, 291–92
(W.D. La. 2020) (similar, but for high cholesterol, hypertension, and acid reflux).
Second, whether the defendant is “(i) suffering from a serious physical or medical
condition, (ii) suffering from a serious functional or cognitive impairment, or (iii) experiencing
deteriorating physical or mental health because of the aging process.” U.S.S.G. § 1B1.13(b)(1)(B).
This condition must be so severe that it “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. When the defendant’s conditions are “‘managed effectively by
medication’ and do not ‘substantially diminish the ability of the defendant to provide self-care,’”
the defendant’s medical condition is not an “extraordinary and compelling reason[] warranting
compassionate release . . . .” United States v. Love, 853 F. App’x 986, 987 (5th Cir. 2021)
(quotations omitted).
Third, whether the defendant is “suffering from a medical condition that requires
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.” U.S.S.G. § 1B1.13(b)(1)(C). This subcategory
focuses on the lack of resources and medical care available in some correctional facilities. Courts
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have found insufficient general complaints about long-term issues without medical proof of the
condition or how it is deteriorating. See, e.g., United States v. Ani, No. 21-00147, 2024 WL 50775,
at *4 (D. Haw. Jan. 4, 2024) (“BOP is providing him with medical care, such as medication. There
is no evidence that his medical conditions are deteriorating; that his medical conditions require
long-term or specialized medical care that is not being provided and without which he is at risk of
serious deterioration in health or death; or that his ability to care for himself has been seriously
diminished.”); United States v. Dessaure-Outlaw, No. CR 122-023, 2024 WL 83327, at *2 (S.D.
Ga. Jan. 8, 2024) (finding general complaints about surgery complication and diabetes insufficient).
Fourth, whether the defendant is in a facility that is “at imminent risk of being affected by
(I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared
by the appropriate federal, state, or local authority.” U.S.S.G. § 1B1.13(b)(1)(D)(i). In addition,
the defendant’s “personal health risk factors and custodial status” must put them “at increased
risk of suffering severe medical complications or death . . . .” Id. § 1B1.13(b)(1)(D)(ii). The facility
must also be unable to “adequately mitigate[]” the defendant’s increased risk “in a timely
manner.” Id. § 1B1.13(b)(1)(D)(iii).
Courts have repeatedly denied motions related to the COVID-19 pandemic under this
section.3 In fact, the Fifth Circuit has “repeatedly denied relief in cases where prisoners sought
compassionate release due to fear of communicable disease, even when those prisoners were in
poor health.” McMaryion, 2023 WL 4118015, at *2 (citing Thompson, 984 F.3d at 432–34 (5th Cir.
3 	See, e.g., United States v. Blair, No. 5:19-CR-50058, 2023 WL 8223470, at *3 (W.D. Ark. Nov. 6, 2023) (finding the
mere risk of COVID-19 infection was too speculative to serve as an extraordinary and compelling medical
circumstance); United States v. Williams, No. GLR-97-355, 2023 WL 8019023, at *4 (D. M.D. Nov. 20, 2023)
(“Hypertension and high BMI were not sufficient to warrant a prisoner’s relief when the BOP facility’s COVID-19
numbers were low, and the inmate did not show that he would not receive appropriate treatment if he were to
contract the virus.”).
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2021) (denying relief to a hypertensive stroke survivor concerned by COVID-19)); see also United
States v. Rodriguez, 27 F.4th 1097, 1098–1101 (5th Cir. 2022) (denying relief where movant fearing
COVID-19 suffered from heart failure). Indeed, “the mere existence of COVID-19 in society and
the possibility that it may spread to a particular prison alone cannot independently justify
compassionate release . . . .” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020); see also Koons,
455 F.Supp.3d at 290) (“[A] prisoner cannot satisfy his burden of proof by simply citing to
nationwide COVID-19 statistics, asserting generalized statements on conditions of confinement
within the BOP . . . .”).
Further, the increased risk from an outbreak or emergency must exist at the time relief
would be granted. The Sentencing Commission drafted this section using words that convey the
necessary, continuous nature of the risk—“at imminent risk of being affected,” “ongoing
outbreak,” “ongoing public health emergency,” and “increased risk of suffering.” U.S.S.G.
§ 1B1.13(b)(1)(D). As applied to COVID-19, this is no longer the case: both international and
domestic health authorities, including the World Health Organization,4 the United States Centers
for Disease Control and Prevention,5 and the U.S. Federal Government,6 have made clear that the
4 	Statement on the Fifteenth Meeting of the IHR (2005) Emergency Committee on the COVID-19 Pandemic, W ORLD
HEALTH O RG . (May 5, 2023), https://www.who.int/news/item/05-05-2023-statement-on-the-fifteenth-meeting-
of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-coronavirus-disease-(covid-
19)-pandemic [https://perma.cc/MR64-X7UV].
5 	End of the Federal COVID-19 Public Health Emergency (PHE) Declaration, Ctrs. for Disease Control & Prevention (May 5, 2023),
https://www.cdc.gov/coronavirus/2019-ncov/your-health/end-of-phe.html#:~:text=The%20federal%20COVID-
19%20PHE,share%20certain%20data%20will%20change [https://perma.cc/3S43-2VNT].
6 See National Emergencies Act, PL 118-3, April 10, 2023, 137 Stat 6.
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COVID-19 pandemic has ended.7 Thus, the COVID-19 pandemic no longer constitutes an
“extraordinary and compelling reason” for compassionate release.
B. 	Defendant’s age (U.S.S.G. § 1B1.13(b)(2))
There are three requirements for the defendant’s age to constitute an extraordinary and
compelling reason for release. First, the defendant must be “at least 65 years old.” U.S.S.G.
§ 1B1.13(b)(2). Second, they must be “experiencing a serious deterioration in physical or mental
health because of the aging process.” Id. Third, the defendant must have “served at least 10 years
or 75 percent of his or her term of imprisonment, whichever is less.” Id.
C. 	Defendant’s family circumstances (U.S.S.G. § 1B1.13(b)(3))
The Sentencing Commission enumerates four potential reasons for a defendant’s family
circumstances to constitute an extraordinary and compelling reason for release:
(A) 	The death or incapacitation of the caregiver of the defendant’s minor child
or the defendant’s 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.
(B) 	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.
(C) 	The incapacitation of the defendant’s parent when the defendant would be
the only available caregiver for the parent.
(D) 	The defendant establishes that circumstances similar to those listed in
paragraphs (3)(A) through (3)(C) exist involving any other immediate
family member or an individual whose relationship with the defendant is
similar in kind to that of an immediate family member, when the defendant
would be the only available caregiver for such family member or individual.
For purposes of this provision, “immediate family member” refers to any
7 	See also United States v. Ford, No. 1:16-CR-19, 2023 WL 3477168, at *5 (N.D. Ind. May 15, 2023) (noting that “on
May 11, 2023, the federal government ended the COVID-19 Public Health Emergency based on widespread
prevention and control measures like vaccination”) (quotations omitted).
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of the individuals listed in paragraphs (3)(A) through (3)(C) as well as a
grandchild, grandparent, or sibling of the defendant.
U.S.S.G. § 1B1.13(b)(3)(A)–(D).
Conclusory assertions that the defendant must now serve as the primary caretaker for a
family member are insufficient. See, e.g., United States v. Newman, No. CR 122-031, 2024 WL
812041, at *2 (S.D. Ga. Feb. 27, 2024) (finding unsupported assertions that defendant’s wife was
disabled and that his father required caretaking were “conclusory statements” that were
“insufficient to carry his burden of persuasion”). Rather, courts require specific evidence of the
defendant’s need to serve as a primary caretaker. For example, the defendant must prove with
medical support that the family member is incapacitated. See United States v. Zermeno,
No. 1:16-CR-79(1), 2024 WL 4043445, at *4 (E.D. Tex. Sept. 3, 2024) (collecting cases); United
States v. Romano, 707 F.Supp.3d 233, 237–38 (E.D.N.Y. 2023) (finding that “[w]ithout medical
evidence” of the “father’s incapacitation and medical evidence detailing [defendant’s] mother’s
inability to provide his father the necessary assistance, the Court cannot conclude that [the mother]
would be an inadequate caregiver.”). Statements that a family member is elderly and needs care
are insufficient. Id. The defendant must also demonstrate why they are the only available caregiver
for that family member. United States v. Lopez, No. 23-50404, 2024 WL 244935, at *1 (5th Cir. Jan.
23, 2024) (noting that the defendant “failed to explain why his other siblings could not care for his
parents”). There must be a reason for the change in that family member’s caretaker status. Id.
(noting the defendant’s failure to “allege the death or incapacitation of any current caretaker”).
When the caretaking role relates to minors like children, additional requirements apply.
For instance, the defendant must show that they would likely gain custody of the child if released.
See, e.g., Zermeno, 2024 WL 4043445, at *5 (collecting cases). In such a situation, the court should
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evaluate whether “release of the inmate to care for the inmate’s child is the best interest of the
child.” U.S. Dep’t of Just., Fed. Bureau of Prisons, Program Statement 5050.50 (Jan. 17, 2019)).
D. 	Victim of abuse (U.S.S.G. § 1B1.13(b)(4))
Under this section, the defendant must establish that, while in custody, they were a victim
of (1) “sexual abuse involving a ‘sexual act,’ as defined in 18 U.S.C. § 2246(2)”; or (2) “physical
abuse 	resulting 	in 	‘serious 	bodily 	injury,’ 	as 	defined 	in 	the 	Commentary 	to 	§1B1.1.”
U.S.S.G. § 1B1.13(b)(4)(A)–(B). The abuse must have been inflicted by either a correctional
officer, employee, or contractor of the BOP, or “any other individual who had custody or control
over the defendant.” Id. § 1B1.13(b)(4). Finally, the alleged misconduct “must be established by a
conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an
administrative proceeding . . . .” Id. But if such proceedings are unduly delayed or the defendant
faces imminent danger, a formal adjudication is unnecessary. Id.
E. 	Other reasons (U.S.S.G. § 1B1.13(b)(5))
The “other reasons” category is a catchall that allows the defendant to “present[] any
other circumstance or combination of circumstances” that is “similar in gravity to” the four
extraordinary and compelling reasons described in U.S.S.G. § 1B1.13(b)(1)–(4). Id. § 1B1.13(b)(5).
Although some courts invoked this provision to grant COVID-19-related compassionate release
motions, this reasoning no longer applies because the pandemic is over. See supra notes 4–7 and
accompanying text.
F. 	Unusually long sentences (U.S.S.G. § 1B1.13(b)(6))
A defendant must meet three requirements under this section. First, the defendant must
be serving an unusually long sentence. See U.S.S.G. § 1B1.13(b)(6). Second, they must have served
at least ten years of that sentence. Id. Third, there must have been a change in law that “produce[s]
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a gross disparity between the sentence being served and the sentence likely to be imposed at the
time the motion is filed.” Id. This section explicitly excludes non-retroactive changes “to the
Guidelines Manual.” Id. And Fifth Circuit precedent precludes considering non-retroactive
changes in any law. United States v. Austin, No. 24-30039, 2025 WL 78706, at *3 (5th Cir. Jan. 13,
2025) (“A non-retroactive change in the law cannot constitute an extraordinary and compelling
reason justifying sentence reduction under § 3582(c)(1).”). Thus, in this circuit, non-retroactive
changes are irrelevant.
II. 	The 18 U.S.C. § 3553(a) Factors
Section 	3553(a) 	directs 	courts 	to 	consider 	the 	following 	factors: 	the 	nature 	and
circumstances of the offense and the defendant’s history and characteristics; the need to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment for
the offense; the need to deter criminal conduct; the need to protect the public; the need to provide
the defendant with needed educational or vocational training, medical care, or other correctional
treatment in the most effective manner; the kinds of sentences and sentencing ranges established
for defendants with similar characteristics under applicable United States Sentencing Guidelines
provisions and policy statements; any pertinent policy statement of the United States Sentencing
Commission in effect on the date of sentencing; the need to avoid unwarranted disparities among
similar defendants; and the need to provide restitution to the victim. Wilson, 2024 WL 4267923,
at *3 n.7 (citing 18 U.S.C. § 3553(a)).
Importantly, the district court has broad discretion in considering these factors. As the
Supreme Court has explained, “the ‘sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) in the individual case . . . .’” United States v. Rollins, 53 F.4th
353, 359 (5th Cir. 2022) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Consistent with the
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broad discretion granted district courts, the Fifth Circuit has “regularly affirmed the denial of a
compassionate-release motion . . . where the district court’s weighing of the Section 3553(a) factors
can independently support its judgment.” Id. at 358 (citation omitted). In short, “compassionate
release is discretionary, not mandatory, and could be refused after weighing the sentencing factors
of 18 U.S.C. § 3553(a).” United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
III. 	The Defendant’s Burden
In sum, when seeking compassionate release on their own motion, the defendant must
demonstrate that: (1) the defendant exhausted administrative remedies; (2) “extraordinary and
compelling reasons” justify the defendant’s sentence reduction or the defendant satisfies the
requirements of § 3582(c)(1)(A)(ii);8 (3) the reduction is consistent with the policy statement of
U.S.S.G. § 1B1.13; and (4) the court should exercise its discretion to grant the motion after
considering the § 3553(a) factors. Wilson, 2024 WL 4267923, at *4 (citing United States v. Jackson,
27 F.4th 1088, 1089 (5th Cir. 2022); Shkambi, 993 F.3d at 392; United States v. Rollins, 53 F.4th
353, 358 (5th Cir. 2022)).
ANALYSIS
I. 	Defendant Satisfied § 3582(c)(1)(A)’s Exhaustion Requirement
A 	defendant 	must 	exhaust 	administrative 	remedies 	before 	filing 	a 	motion 	for
compassionate release, a requirement that is satisfied after a “lapse of 30 days” from when the
defendant first makes a request to their facility’s warden. Wilson, 2024 WL 4267923, at *4 (citing
18 U.S.C. § 3582(c)(1)(A)).
8 18 U.S.C. § 3582(c)(1)(A)(ii) states that “the defendant is at least 70 years of age, has served at least 30 years in
prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant
is currently imprisoned, and a determination has been made by the Director of the [BOP] that the defendant is not
a danger to the safety of any other person or the community, as provided under section 3142(g).”
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However, if the Government does not invoke the exhaustion requirement, the Court will
deem 	the 	matter 	waived 	for 	the 	purposes 	of 	a 	defendant’s 	motion
under § 3582(c)(1)(A). See Ward, 11 F.4th at 361; see also McLean, 2022 WL 44618, at *1 (finding
abuse of discretion where the failure to exhaust administrative remedies was raised sua sponte).
Here, on or about May 14, 2021, Defendant asked the warden at FCI Hazelton to grant him
compassionate release (Dkt. #157, Exhibit 1). The request was denied (Dkt. #157, Exhibit 1).
In June 	2021, Defendant filed a motion for Compassionate 	Release 	pursuant to
18 U.S.C. § 3582(c)(1)(A) wherein he seeks a reduction in sentence due to “extraordinary and
compelling circumstances.” Defendant was seeking an emergency compassionate release under
the First Step Act due to the COVID-19 pandemic. The Court denied this motion on September
28, 2021.
Defendant has, therefore, met § 3582(c)(1)(A)’s exhaustion requirement.
II. The 18 U.S.C. § 3553(a) factors do not favor compassionate release.
Even if there were “extraordinary and compelling” reasons at hand, the sentencing factors
under 18 U.S.C. § 3553(a), which Defendant bears the burden of showing, weigh against his
release.
Defendant moved to Texas, assumed a new alias and identified new investors and
committed wire fraud, bank fraud and money laundering. Defendant was untruthful to investors
about developing technology that did not exist. Defendant used the investor monies to fund an
extravagant lifestyle, including over $2 million in jewelry and an unknown number of vehicles.
Defendant used several aliases and falsified financial documents in order to obtain loans. A criminal
history score of 100 speaks for itself. Defendant can only be described as a habitual white-collar
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offender. Defendant cost society, including law enforcement, the Courts, and the individuals
whom he victimized, an unimaginable amount of time and money.
The nature of circumstances of the offense are serious. Granting Defendant’s Motion
would not serve the § 3553(a) factors because his release would not adequately reflect the serious
nature and circumstances of the offense. See 18 U.S.C. § 3553(a). Further, his release would
undermine the need for the sentence imposed to reflect the seriousness of the offense and would
not promote respect for the law. The Court also has an obligation to protect the public from further
crimes by Defendant and deter future criminal conduct. See id. Granting Defendant’s Motion
would undermine these aims. First, keeping Defendant in custody protects society from the
possibility that he will reoffend. Second, other individuals may become emboldened to engage in
similar conduct if lengthy sentences can 	routinely be 	reduced by granting 	motions for
compassionate release.
After considering the factors in 18 U.S.C. § 3553(a), the Court concludes that the factors
weigh against granting Defendant’s Motion. Because of this independent review of the § 3553(a)
factors, the Court need not consider Defendant’s arguments that extraordinary and compelling
reasons warrant his release. See United States v. Grams, No. 24-50686, 2025 WL 1079074, at *1
(5th Cir. Apr. 10, 2025).
III. Defendant’s medical circumstances (U.S.S.G. § 1B1.13(b)(1))
Defendant argues that his age at 66 years old, his obesity, high blood pressure, and staff
shortages are preventing him from self-care. In combination with this, Defendant claims he has an
urgent need for surgery for a hernia he has had for more than five years and therefore calls for a
reduction in his case. BOP medical records classify him as a Care 2, chronic care inmate and a Care
1 for mental health and that Defendant has received appropriate medical care and BOP is managing
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his medical conditions by providing Defendant with a hernia belt, eyeglasses, dentures, bed wedge,
an extra mattress, and allowing him to maintain a lower bunk.9 Defendant claims to be in need of
urgent hernia surgery, yet continues to work “full time” hours, claiming to work 12-hour days, 7
days a week. According to BOP records, Defendant is cleared for regular duty and to work with a
medical restriction. Although it is unknown what that restriction is, the restriction does not stop
him from working over 40 hours a week.
According to Defendant’s BOP discipline data, Defendant has no disciplinary infractions.
Additionally, records indicate that Defendant has taken a handful of classes (5) to work toward
rehabilitation.
In his second request for compassionate release (Dkt. #194), Defendant argues that Judge
Brown’s words have made him become a better person while incarcerated, that he has learned his
lesson, that he has taught classes while incarcerated, and works seven days a week while taking
classes. While these are admirable, they are expected as part of the rehabilitation process and do
not qualify the Defendant for compassionate release.
CONCLUSION
It is therefore ORDERED that Defendant’s Pro Se Motion to Reduce Sentence – First
Step Act and for Compassionate Release (Dkt. #193, Dkt. #194) are DENIED.
IT IS SO ORDERED.
9 	The United States Probation Office noted its opposition to the request for compassionate release in a letter sent to
the Court on February 6, 2025 (the “Probation Office Letter”). Unless otherwise indicated, factual statements in
the remaining analysis are derived from the Probation Office Letter.
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SIGNED this 13th day of January, 2026.
anos Mozgat
AMOS L. MAZZANT UNITED STATES DISTRICT JUDGE