USA v. BELANGER, et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
v. 	) 	No. 1:15-cr-00072-JDL-2
)
KELLI MUJO, 	)
)
Defendant. 	)
ORDER ON MOTION FOR COMPASSIONATE RELEASE
On August 19, 2016, Kelli Mujo was convicted of one count of conspiracy to
distribute and possess with intent to distribute five kilograms or more of cocaine and
oxycodone, in violation 21 U.S.C.A. §§ 846, 841(a)(1) and 841(b)(1)(A) (West 2022),
and one count of using or maintaining a drug involved premises and aiding and
abetting, in violation of 21 U.S.C.A. §§ 856(a)(1), 856(b) (West 2022), and 18 U.S.C.A.
§ 2 (West 2022). On March 6, 2017, Mujo was sentenced to a term of imprisonment
of 168 months, to be followed by a term of supervised release of five years. 	She is
currently 	incarcerated 	in 	Alderson, 	West 	Virginia. 	Mujo 	now 	moves 	for
compassionate release pursuant to 18 U.S.C.A. § 3582(c)(1)(A)(i) (West 2022) due to
her physical health, a substantially-diminished ability to provide self-care in prison,
circumstances related to the care of her adult son, and the alleged health risks that
she faces in custody due to the COVID-19 pandemic (ECF No. 701). 	She requests
that the Court reduce her sentence to time served and modify the terms of her
supervised release. In the alternative, she requests that the Court order her release
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into home confinement pursuant to §12003(B)(2) of the Coronavirus Aid, Relief, and
Economic Security (“CARES”) Act and 18 U.S.C.A. § 3624(c)(2) (West 2022).
The Government objects to Mujo’s request, arguing that (1) Mujo’s medical
records do not support a finding of a substantially-diminished capacity to provide self-
care, (2) the BOP has implemented extensive preventative measures to manage the
pandemic, (3) Mujo’s family circumstances do not give rise to an extraordinary and
compelling reason for compassionate release, and (4) the sentencing factors do not
warrant compassionate release.
Magistrate 	Judge 	John 	C. 	Nivison 	issued 	a 	Recommended 	Decision 	on
September 	14, 	2022, 	recommending 	that 	the 	Court 	deny 	Mujo’s 	Motion 	for
Compassionate Release because she has not shown an extraordinary and compelling
reason to order a sentence reduction and that consideration of the sentencing factors
counseled against granting compassionate release (ECF No. 715). Judge Nivison also
concluded that the Court does not have the authority to order home confinement
under the CARES Act. Mujo filed a timely objection on September 29, 2022 (ECF No.
720).
After reviewing and considering the Recommended Decision, together with the
entire record, I have made a de novo determination of all matters adjudicated by
Judge Nivison. I concur with Judge Nivison’s ultimate recommendation to deny the
motion. I do, however, address some of Mujo’s specific objections and the sentencing
factors set forth in 18 U.S.C.A. § 3553(a) (West 2022).
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First, Judge Nivison concludes that Mujo’s preexisting medical conditions
“elevate her risk of serious illness to some degree” but that due to the availability of
vaccines, the “overall risk from COVID-19 does not amount to an extraordinary and
compelling reason for compassionate release.” ECF No. 715 at 6-7. The record shows
that Mujo suffers from diabetes, hypertension, and obesity, and as a result of these
medical conditions, she faces a heightened risk of serious illness if she contracts
COVID-19. See Coronavirus Disease 2019 (COVID-19): People with Certain Medical
Conditions, 	Ctrs. 	For 	Disease 	Control 	and 	Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last visited Jan. 20, 2023); see also Obesity, Race/Ethnicity,
and 	COVID-19, 	Ctrs. 	For 	Disease 	Control 	and 	Prevention,
https://www.cdc.gov/obesity/data/obesity-and-covid-19.html 	(last 	visited 	Jan. 	20,
2023). The record also shows that she has experienced significant delays in accessing
medical care, including a delay in receiving a diabetes diagnosis and treatment, and
she alleges that the facility did not provide her with treatment until after she filed
her Motion for Compassionate Release. She argues that, due to insufficient medical
care, her medical conditions are unmanageable while she is in custody.
Mujo also alleges that she struggles to breathe because of her obesity, and that
she consistently wears a mask (including when she sleeps), which contributes to her
difficulty breathing. As a result, she claims that she is forced into a chair or bed for
over 50% of her waking hours due to low carbon dioxide levels. A debilitating medical
condition may be grounds for a reduction in sentence when the inmate is “[c]apable
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of only limited self-care and is confined to a bed or chair more than 50% of waking
hours.” 	See 	Compassionate 	Release/Reduction 	in 	Sentence: 	Procedures 	for
Implementation of 18 U.S.C. §§ 3582 and 4206(g), Fed. Bureau of Prisons, (Jan. 17,
2019). 	While 	the 	record 	shows 	that 	Mujo 	has 	repeatedly 	requested 	medical
appointments for breathing difficulties, as well as other issues with numbness in her
hands and blurred vision, there is no indication that Mujo has been diagnosed with a
serious 	medical 	condition 	that 	corroborates 	her 	shortness 	of 	breath. 	Mujo’s
symptoms may be an indication of a more serious underlying condition, but the
possibility of a future diagnosis does not constitute an extraordinary and compelling
reason for compassionate release. 	See United States v. Benoit, No. 2:16-cr-00070-
JDL, 2020 WL 6487193 (D. Me. Nov. 4, 2020).
Second, Mujo objects to Judge Nivison’s finding that the Court does not have
the authority to order home confinement. 	She argues that even if the CARES Act
does not authorize the court to order home confinement, that I nonetheless have the
authority to modify her sentence to require home confinement. However, the district
court may not order home confinement in the absence of a sentence reduction, either
pursuant to 18 U.S.C.A § 3621(b) (granting discretion to the BOP to designate the
place 	of 	imprisonment, 	subject 	to 	certain 	enumerated 	factors 	including 	the
sentencing court’s recommendation) or 18 U.S.C.A. § 3624(c)(2) (authorizing the BOP
to order a prisoner to serve the remainder of a sentence in home confinement). While
the court may grant compassionate release to modify a term of imprisonment
pursuant to 18 U.S.C. § 3582(c)(1), the Court may not order the remainder of an
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unmodified term of imprisonment to be served at home. See United States v. Texeira-
Nieves, 23 F.4th 48, 59 (1st Cir. 2022) (noting that “‘the absence of’ any reference to
modifying a defendant’s location of confinement denotes that section 3582(c)(1)(A)
does not afford a district court the authority to order a defendant to serve his
unmodified sentence at home”). 	Because I have declined to reduce Mujo’s sentence,
the Court is not authorized to order home confinement pursuant to 18 U.S.C. §
3582(c)(1).
Regarding the sentencing factors, Judge Nivison considered two out of seven
factors set forth in 18 U.S.C.A. § 3553(a). He concluded that the “nature and extent
of the drug trafficking operation that is the basis of [her] convictions” and the current
length of time served did not warrant compassionate release. 	ECF No 715 at 8. 	I
note that consideration of additional sentencing factors might weigh in favor of
granting compassionate release. 	Mujo (1) has no prior criminal history, (2) had an
adolescence of extreme poverty and lack of parental supervision, (3) has had an
extremely positive rehabilitation record while in custody, and (4) will have strong
community support and viable employment options upon release. However, Mujo has
served less than 50% of her total sentence. As I noted at Mujo’s sentencing hearing,
“this is a very serious crime. And the sentence in this case has to reflect that because
. . . it’s really extraordinary, this conspiracy. It’s so far out of the ordinary it qualifies
as extraordinary, both in its breadth and in its length.” 	No. 1:15-cr-00072-JDL-2,
Sent’g. Tr. at 30:13-17. My assessment of the seriousness of Mujo’s offenses and the
appropriateness of her sentence has not changed. Weighing the sentencing factors in
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their entirety, together with the fact that she has not demonstrated an extraordinary
and compelling reason for release, I conclude that a reduction in sentence is not
warranted.
Mujo has demonstrated that she suffers from serious medical conditions, and
I recognize that individuals with obesity, diabetes, and hypertension in federal
custody face unique challenges in accessing medical treatment and managing their
care. 	If Mujo serves a greater portion of her sentence, receives a medical diagnosis
that confirms the severity of her breathing difficulties, or if her medical conditions
worsen, these factors may warrant reconsideration of compassionate release and she
may renew her request at that time.
Accordingly, it is ORDERED that the Magistrate Judge’s Recommended
Decision (ECF No. 715) is ACCEPTED and Mujo’s Motion for Compassionate
Release (ECF No. 701) is DENIED.
SO ORDERED.
Dated: January 20, 2023
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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