                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA


    UNITED STATES OF AMERICA

    v.
                                     Crim. Action No. 17-58 (EGS)
    DOMINIC RANDY QUEEN,

                       Defendant.


                      MEMORANDUM OPINION AND ORDER

         Defendant Dominic Randy Queen (“Mr. Queen”), who has served

less than two years of his five-year sentence for the unlawful

possession of a firearm by a convicted felon and the unlawful

possession with intent to distribute marijuana, moves for

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A).

Def.’s Am. Mot. for Compassionate Release (“Def.’s Mot.”), ECF

No. 61 at 1. 1 Mr. Queen, who is twenty-eight years old, concedes

that he suffers from no health conditions placing him at a

heightened risk of severe illness or death from COVID-19. The

government opposes Mr. Queen’s motion, arguing that he satisfies

none of the requirements for compassionate release. Gov’t’s

Opp’n, ECF No. 63 at 11. Upon careful consideration of the

parties’ submissions, the applicable law, and the entire record

herein, Mr. Queen’s motion is DENIED WITHOUT PREJUDICE.


1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
     Under the compassionate release statute, as amended by the

First Step Act, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194,

5239 (2018), the Court may reduce a defendant’s term of

imprisonment, “after considering the factors set forth in

section 3553(a) to the extent that they are applicable, if it

finds 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.” 18 U.S.C. § 3582(c)(1)(A)(i). By its terms, the

Court may reduce a term of imprisonment “upon motion of the

Director of the Bureau of Prisons, or upon motion of the

defendant after the defendant 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.” Id.

§ 3582(c)(1)(A).

     Mr. Queen fails to demonstrate that he exhausted his

administrative remedies before filing his motion. See Def.’s

Mot., ECF No. 61 at 1-5; see also Gov’t’s Opp’n, ECF No. 63 at

12. Mr. Queen claims that the warden of the facility where he is

incarcerated—Rivers Correctional Institution (“CI Rivers”) in

Winton, North Carolina—“has not acted within 30 days upon

request to release [him].” Def.’s Mot., ECF No. 61 at 3. The

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government points out—and Mr. Queen does not dispute—that his

motion does not provide any documentation showing that he

submitted a request to the Warden of CI Rivers. See Gov’t’s

Opp’n, ECF No. 63 at 1, 4.

     The government acknowledges—albeit “[r]egrettably”—it has

taken the position that the exhaustion requirement was waivable.

Gov’t’s Opp’n, ECF No. 63 at 13 n.5; see, e.g., Unopposed

Emergency Mot. for Compassionate Release, United States v.

Powell, No. 94-cr-0316 (ESH) (D.D.C. 2020), ECF No. 96 at 5;

Joint Submission Regarding Def. Ghorbani’s Mot. for Reduction of

Sentence Pursuant to Compassionate Release, United States v.

Ghorbani, No. 18-cr-255 (PLF) (D.D.C. Apr. 3, 2020), ECF No. 129

at 2 n.1. And the government has waived the exhaustion

requirement in other cases in light of the COVID-19 pandemic.

See, e.g., United States v. Gentille, No. 19-cr-590 (KPF), 2020

WL 1814158, at *3 (S.D.N.Y. Apr. 9, 2020) (agreeing with the

government that “§ 3582(c)(1)(A)’s exhaustion requirement is not

jurisdictional, but rather is a claims-processing rule that the

[g]overnment can waive by failing to raise an exhaustion

argument”); United States v. Jasper, No. 18-cr-390-18 (PAE),

2020 WL 1673140, at *2 (S.D.N.Y. Apr. 4, 2020). The government,

however, takes a different view in this case, arguing that

“[t]he requirement that a defendant either exhaust

administrative appeals or wait 30 days after presenting a

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request to the warden before seeking judicial relief is

mandatory and must be enforced by the Court.” Gov’t’s Opp’n, ECF

No. 63 at 13.

     Courts in this District have rejected the government’s

argument. See, e.g., United States v. Morris, No. 12-cr-154

(BAH), 2020 WL 2735651, at *6 (D.D.C. May 24, 2020) (collecting

cases); United States v. Jennings, No. 18-cr-17 (TSC), 2020 U.S.

Dist. LEXIS 70800, *4 (D.D.C. Apr. 22, 2020) (finding that

“waiving the exhaustion requirement is appropriate here given

the history of the compassionate release statute and the urgency

of the COVID-19 pandemic”). Indeed, this Court noted that “[t]he

exhaustion requirement . . . can be waived in light of the

extraordinary circumstances posed by the COVID-19 pandemic.”

Order, United States v. Evans, No. 18-cr-103-2 (EGS) (D.D.C.

Apr. 10, 2020), ECF No. 225 at 4 n.2 (citing United States v.

Powell, No. 94-cr-316 (ESH), 2020 WL 1698194, at *1 (D.D.C. Mar.

28, 2020)). Courts outside of this jurisdiction have reached

different conclusions. See, e.g., United States v. Raia, 954

F.3d 594, 597 (3d Cir. 2020) (explaining that the exhaustion

requirement “presents a glaring roadblock foreclosing

compassionate release”); United States v. Epstein, No. 14-cr-287

(FLW), 2020 WL 1808616, at *5 (D.N.J. Apr. 9, 2020) (denying

compassionate release motion for failure to exhaust

administrative remedies).

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     Although the United States Court of Appeals for the

District of Columbia Circuit (“D.C. Circuit”) has not addressed

this issue, “every court [in this District] that has considered

the jurisdictional or non-jurisdictional nature of the mandate .

. . has consistently concluded that section 3582(c)(1)(A)’s

exhaustion requirement is not jurisdictional and is thus subject

to equitable waiver by the court.” United States v. Johnson,

No. 15-cr-125 (KBJ), 2020 WL 3041923, at *3 (D.D.C. May 16,

2020) (collecting cases). Given the case law in this District

and the “contrary authority from outside this [D]istrict,” “the

Court will not dismiss for lack of jurisdiction or on the ground

that the requirement is not waivable, but will proceed to” the

merits. United States v. Malone, No. 13-cr-231-1 (ESH), 2020 WL

1984261, at *1 (D.D.C. Apr. 27, 2020); see also United States v.

Wheeler, No. 19-cr-85 (ESH), 2020 WL 2801289, at *2 (D.D.C. May

29, 2020) (concluding that “requiring [the defendant] to exhaust

would cause an unnecessary delay contrary to the purposes of the

First Step Act, especially given that the Court agrees with

prison officials that [the defendant] does not meet the

standards for compassionate release”).

     On the merits, Mr. Queen fails to establish that he

satisfies the remaining requirements for compassionate release.

See Def.’s Mot., ECF No. 61 at 1-5. The government argues—and

the Court agrees—that Mr. Queen does not meet his burden of

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demonstrating any “extraordinary and compelling reasons” for a

sentence reduction under Section 3582(c)(1)(A)(i). Gov’t’s

Opp’n, ECF No. 63 at 18. As the government correctly points out,

the Sentencing Commission’s applicable policy statement

delineates the specific circumstances that constitute

“extraordinary and compelling reasons.” Id. at 19 (citing

U.S.S.G. § 1B1.13, cmt. n.1(A)). One such circumstance is where

a 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.” U.S.S.G. § 1B1.13, cmt. n.1(A)(ii).

     Mr. Queen cannot clear this hurdle. Mr. Queen does not

claim that he is currently suffering from a serious physical or

medical condition—let alone a medical condition—that

substantially diminishes his ability to provide self-care within

CI Rivers. See Def.’s Mot., ECF No. 61 at 1-5. At the time of

sentencing, Mr. Queen advised the United States Probation

Officer that “he is healthy and has no history of health

problems.” Presentence Investigation Report, ECF No. 42 at 22 ¶

68. But Mr. Queen argues that the risk of contracting COVID-19

alone is an “extraordinary and compelling reason” warranting

release. Def.’s Mot., ECF No. 61 at 3. To support this

proposition, Mr. Queen relies on two cases. See id. at 3 n.1, 5

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(citing United States v. Norbert, No. 19-cr-50-CWR-FKB, 2020

U.S. Dist. LEXIS 61799, at *1-*8 (S.D. Miss. Apr. 8, 2020);

United States v. Garlock, No. 18-cr-00418-VC-1, 2020 WL 1439980,

at *1 (N.D. Cal. Mar. 25, 2020)). Both cases are inapposite,

however.

     Neither Norbert nor Garlock involved a motion for

compassionate release. In Norbert, the court granted the

defendant’s motion for bond pending an interlocutory appeal and

supplemental motion for bond after weighing the factors set

forth in Section 3142(g) of the Bail Reform Act. 2020 U.S. Dist.

LEXIS 61799, at *3-*8. In doing so, the court found that

“[w]hile the weight of the [g]overnment’s evidence in support of

its case in chief was strong at the detention hearing, now that

the evidence has been suppressed, the [g]overnment’s case is

relatively weak.” Id. at *3; see also United States v. Norbert,

432 F. Supp. 3d 705, 718 (S.D. Miss. 2020) (granting defendant’s

motion to suppress). In Garlock, the court, sua sponte, issued

an order extending the defendant’s self-surrender date from June

12, 2020 to September 1, 2020 in light of the COVID-19 pandemic.

2020 WL 1439980, at *1. Here, the government contends—and the

Court agrees—that Mr. Queen “is already serving a sentence of

incarceration after being convicted, and he has failed to

demonstrate, as he must under the federal compassionate release

statute, that any ‘extraordinary and compelling reasons’ justify

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a sentence reduction in his case.” Gov’t’s Opp’n, ECF No. 63 at

20.

      For its part, “[t]he government acknowledges that if an

inmate has a chronic medical condition . . . that the [Centers

for Disease Control and Prevention] has identified as elevating

the risk of becoming seriously ill from COVID-19, that may

qualify as a ‘serious’ condition” under the applicable policy

statement “even if the same condition would not have constituted

an ‘extraordinary and compelling reason’ absent the risk of

COVID-19.” Id. (citing U.S.S.G. § 1B1.13, cmt. n.1(A)(ii)(I)).

Mr. Queen, however, has not presented any documentation or

proffered any facts that would permit this Court to find that he

suffers from a serious physical or medical condition increasing

his risk of becoming seriously ill from COVID-19. Cf. Mem. Op. &

Order, United States v. Barber, No. 14-cr-239 (EGS) (D.D.C. June

16, 2020), ECF No. 57 at 11 (finding that a defendant met his

burden of demonstrating extraordinary and compelling reasons

that justified a sentence reduction because his medical

conditions substantially diminished his ability to provide self-

care in prison where he was unable to protect himself from

contact with inmates who were infected with COVID-19). In the

absence of such evidence and factual proffers, the Court cannot

find that the risks created by the COVID-19 pandemic alone

constitute an extraordinary and compelling reason within the

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meaning of Section 3582(c)(1)(A)(i). See Wheeler, 2020 WL

2801289, at *3 (explaining that “the Court must concern itself

primarily with the particular characteristics of an individual

defendant when determining what constitutes an ‘extraordinary

and compelling reason,’ not a generalized risk to the prison

population as a whole”). The Court therefore finds that

Mr. Queen has not demonstrated any “extraordinary and compelling

reasons” for granting his motion for compassionate release. 2

     This Court recognizes that the global COVID-19 pandemic is

unprecedented. COVID-19 is a novel respiratory illness that has

infected 7.94 million individuals worldwide and 2.07 million

people in the United States. S. Poverty Law Ctr. v. U.S. Dep’t

of Homeland Sec., No. CV 18-760 (CKK), 2020 WL 3265533, at *4

(D.D.C. June 17, 2020) (citation omitted). As of June 16, 2020,

COVID-19 has resulted in 115,484 deaths in the United States.

Id. “At this time, there is no known cure, no effective




2 The Court need not consider the Section 3553(a) factors,
including Mr. Queen’s dangerousness under U.S.S.G. § 1B1.13(2).
See United States v. Schlifstein, No. 18-cr-217 (KMW), 2020 WL
2575633, at *3 (S.D.N.Y. May 21, 2020) (declining to “reach
other issues raised in the parties’ submissions, including
consideration of the Section 3553(a) sentencing factors” after
finding no extraordinary and compelling reason warranted
compassionate release). The Court rejects Mr. Queen’s arguments
challenging BOP’s calculation of his sentence for the reasons
articulated in this Court’s prior opinion. See United States v.
Queen, No. 17-cr-58 (EGS), 2020 WL 2748495, at *3-*6 (D.D.C. May
27, 2020).


                                9
treatment, and no vaccine.” S. Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613, 2020 WL 2813056, at *1 (May 29, 2020)

(Roberts, C.J., concurring).

     COVID-19 continues to rapidly spread around the world

through symptomatic individuals as well as asymptomatic

individuals. Id. And “[i]t is undisputed that COVID-19 is

already at CI Rivers.” Wheeler, 2020 WL 2801289, at *3 (citation

omitted). “Realistically, the best — perhaps the only — way to

mitigate the damage and reduce the death toll is to decrease the

jail and prison population by releasing as many people as

possible.” United States v. Nkanga, No. 18-cr-713 (JMF), 2020 WL

1529535, at *1 (S.D.N.Y. Mar. 31, 2020). On the current record,

however, the Court cannot grant Mr. Queen’s requested relief

without documentation and medical information verifying a

serious physical or medical condition that demonstrates he is at

a particularly high risk of illness from COVID-19.

     Accordingly, it is hereby

     ORDERED that Defendant’s Amended Motion for Compassionate

Release, ECF No. 61, is DENIED WITHOUT PREJUDICE.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          June 24, 2020




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