USA v. REMBERT

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
V .
WILLIE REMBERT,
DEFENDANT
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CRIMINAL NO. 2:12- CR-66-DBH
DECISION AND ORDER ON DEFENDANT’S MOTION
FOR COMPASSIONATE RELEASE
Willie Rembert has moved to reduce his sentence to time served under 18
U.S.C. § 3582(c)(1)(A)(i).1 	Def.’s Updated Pet. for Compassionate Release (ECF
No. 115). As amended by the First Step Act, this so-called compassionate release
provision allows a judge, without a BOP motion, to reduce a sentence where
“extraordinary and compelling reasons warrant such a reduction.”2 	I have
previously ruled that the Sentencing Commission’s Guideline policy statement
on this provision, 1B1.13 cmt. n.1(A), which the Commission has not changed
to reflect the First Step Act,3 “provides helpful guidance” but “is not ultimately
conclusive given the statutory change.” 	United States v. Fox, No. 2:14-cr-03-
DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019), aff’d, No. 19-1785 (1st
Cir. July 23, 2020) (“the district court did consider other relevant circumstances
1 I earlier granted his motion to appoint counsel. (ECF No. 111).
2 Rembert has met the requirement that 30 days pass after the Warden receives his request. 18
U.S.C. § 3582(c)(1)(A).
3 Currently, the Commission lacks a quorum to amend the Guidelines.
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not specifically enumerated in the guidelines”). 	The Second Circuit has gone
further and ruled that the Guideline policy statement applies only to motions
brought by the Director of the Bureau of Prisons, not to motions for relief brought
by defendants, and that nothing limits judges’ discretion in considering “the full
slate of extraordinary and compelling reasons that an imprisoned person might
bring 	before 	them 	in 	motions 	for 	compassionate 	release,” 	except 	that
rehabilitation alone is not to be considered an extraordinary and compelling
reason. 	United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020).
I 	proceed 	therefore 	to 	assess 	whether 	Rembert 	has 	presented
“extraordinary and compelling reasons” for his release. On November 20, 2013,
I sentenced him to 132 months in prison for crack trafficking. 	Judgment (ECF
No. 72). 	His projected release date now is September 5, 2021, with release to a
halfway house March 5, 2021. Ex. 2 to Gov’t’s Resp. to Mot. for Compassionate
Release (ECF No. 109-2).4 According to the Revised Presentence Report prepared
in connection with his 2013 sentencing, Rembert was born in 1974; he now is
46 years old. 	Rembert says that he has “a host of medical conditions including
Evans 	syndrome, 	asthma, 	esophageal 	reflux, 	and 	gastritis—with 	Evans
syndrome being the most significant of his afflictions” and that as “an African-
American male,” he is “disproportionately affect[ed]” by the COVID-19 virus.
Def.’s Updated Pet. at 1. 	Rembert is imprisoned at FCI Jesup in Georgia. 	The
BOP reports that FCI Jesup currently has 105 inmates and 19 staff positive for
4 The BOP form actually says “home detention,” but the government and Rembert both say he is
scheduled for halfway house. Def.’s Reply to Gov’t’s Resp. to Updated Pet. at 7 (ECF No. 119);
Gov’t’s Resp. to Mot. for Compassionate Release at 8 (ECF No. 109).
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COVID-19, and 238 inmates and 3 staff who have recovered. 	See BOP, COVID-
19 	Cases, 	Federal 	Bureau 	of 	Prisons 	(last 	updated 	Nov. 	10, 	2020),
https://www.bop.gov/coronavirus/.
The spread of the COVID-19 pandemic and its threat in prison concern
many people in this country, but the resulting fear of contracting it is not, in and
of itself, an extraordinary and compelling reason to justify release from a prison
sentence. 	There must be more. See United States v. Urrabazo-Maldonado, No.
20-3727, 2020 U.S. App. LEXIS 29873, at *3-4 (6th Cir. Sept. 17, 2020).
Here, Rembert’s medical conditions, even combined with the pandemic’s
spread, do not amount to “extraordinary and compelling reasons” to release him
early. 	The CDC does not describe people with Rembert’s conditions as “at
increased risk of severe illness from the virus,” but rather as “might be at an
increased 	risk.”5 	People 	with 	Certain 	Medical 	Conditions, 	CDC,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-
with-medical-conditions.html 	(last 	updated 	Nov. 	2, 	2020). 	These 	are 	not
“extraordinary and compelling reasons.”
As for Rembert’s risks as an African American, Judge Levy of this Court
has ruled that although, “as a demographic matter, people of color are being
5 Asthma is listed in that category. 	Evans Syndrome is not specifically listed. 	I take judicial
notice that according to the National Institutes for Health it is “a very rare autoimmune disorder
in which the immune system destroys the body’s red blood cells, white blood cells and/or
platelets.” 	National Institutes of Health, Evans Syndrome, https://rarediseases.info.nih.gov/
diseases/6389/evans-syndrome (last visited Nov. 11, 2020). 	It affects people differently. 	Id.
While immune system disorders are a concern for anyone, the CDC treats them in the increased
risk category only if they result from a solid organ transplant. See People with Certain Medical
Conditions, 	CDC, 	https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last updated Nov. 2, 2020). Where they result
from other causes, the CDC says they “might” increase the risk. Id. Rembert’s medical records
do not demonstrate current complications from Evans Syndrome.
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disproportionately 	affected 	by 	COVID-19,” 	the 	disparities 	“arise 	from
longstanding and systemic social and economic disparities, such as access to
healthcare,” and “do not aid in assessing the individual medical risk for a person
whose 	medical 	condition, 	social 	situation, 	and 	access 	to 	healthcare 	are
specifically known.” 	Order on Mot. for Compassionate Release, United States v.
Hassan, No. 2:16-cr-84-JDL, 2020 WL 6163125, at *3 (D. Me. Oct. 21, 2020)
(ECF No. 169) (quotation marks omitted). I apply that reasoning here; Rembert’s
medical condition, social situation, and access to healthcare are specifically
known and are not “extraordinary and compelling reasons” for early release.
I understand Rembert’s apprehension; but based on his medical condition,
I DENY his motion for compassionate relief.
SO ORDERED.
D ATED THIS 11 TH DAY OF N OVEMBER, 2020
/S/D. BROCK HORNBY
D. BROCK H ORNBY
UNITED STATES DISTRICT JUDGE
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