                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


    UNITED STATES OF AMERICA
                                                                  Criminal Action No. 03-533 (BAH)
                          v.
                                                                  Chief Judge Beryl A. Howell
    CARLOS CURTIS,

                          Defendant.


                                   MEMORANDUM AND ORDER

        Pending before the Court are defendant’s two motions for compassionate release, one

filed in December of 2019, Def.’s Petition for Reduction in Sentence or Compassionate Release

Pursuant to 18 U.S.C. § 3582(c)(1)(A) (“Def.’s Initial Mot.”), ECF No. 223, which the parties’

agreed-upon briefing schedule would make ripe on June 1, 2020, see Scheduling Order (Jan. 16,

2020), and one filed on an emergency basis, on April 3, 2020, Def.’s Emergency Mot. for

Compassionate Release (“Def.’s Emergency Mot.”), ECF No. 228. Defendant, who suffers from

multiple sclerosis, “has lost 85% of his vision,” and “spends all of his days confined to an

electric wheelchair or bed” has served 17 years of his life sentence. Id. at 3, 6. He worries that

his deteriorating physical condition make him “particularly susceptible to contracting a life-

threatening illness” like COVID-19, currently the cause of a worldwide pandemic and national

emergency.1 Id. at 18. For the reasons set forth below, defendant’s motions are granted, and his

sentence of imprisonment is reduced to a sentence of time served.




1
         See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease
(COVID-19) Outbreak, OFFICE OF THE PRESIDENT OF THE UNITED STATES,
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-
coronavirus-disease-covid-19-outbreak/ (last visited April 22, 2020).

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I.       BACKGROUND

         On March 31, 2004, a federal grand jury issued a nine-count superseding indictment

charging defendant with numerous federal offenses arising out of a sex-trafficking operation

involving minors.2 Defendant was found guilty of six of those nine charges on July 2, 2004 and

was thereafter sentenced to six concurrent terms of life imprisonment. Judgment at 2, ECF No.

110.3 Although the Sentencing Judge imposed six terms of life imprisonment, the judgment also

sentenced defendant to two five-year terms of supervised release and four three-year terms of

supervised release to be served concurrently. Judgment at 3.4 Defendant appealed and the D.C.

Circuit affirmed his sentence. See United States v. Curtis, 481 F.3d 836 (D.C. Cir. 2007).

         Since losing his appeal, defendant has made several attempts to reduce his sentence. See

Motion Under 28 U.S.C. § 2255 (May 5, 2008), ECF No. 121; Motion to Alter or Amend

Judgment Pursuant to Fed. R. Civ. P. 59(e) (Mar. 17, 2010), ECF No. 155; Motion to Vacate

Judgment Denying Habeas Relief Pursuant to Fed. R. Civ. 60(b)(1) and (6) (Aug. 15, 2011),

ECF No. 167; Emergency Motion for Authorization to File a Second or Successive Motion

Under 28 U.S.C. § 2255 (Jun. 23, 2016), ECF No. 189; Petition for Relief Pursuant to Common

Law Writ of Error Audita Querela (Jun. 27, 2017), ECF No. 196. None have yet been

successful.




2
          In particular, defendant was charged with two counts of sex trafficking of children, in violation of 18
U.S.C. § 1591, two counts of transporting minors for prostitution, in violation of 18 U.S.C. § 2423(a), one count of
coercion and enticement of a minor, in violation of 18 U.S.C. § 2422(b), one count of transporting a person for
prostitution, in violation of 18 U.S.C. § 2421, one count of transportation of child pornography, in violation of 18
U.S.C. § 2252(a)(1), one count of conducting certain activities relating to material constituting or containing child
pornography, in violation of 18 U.S.C. §§ 2252(a)(5)(B) and 2256, and one count of tampering with a witness,
victim or informant, in violation of 18 U.S.C. § 1512(b)(1) and (b)(2)(A). See Superseding Indictment, ECF No. 19.
3
          Defendant’s motion for acquittal was granted as to Count 5 of the superseding indictment, see Min. Entry
(Jun. 30, 2004), and he was found not guilty on Counts 7 and 9, see Min. Entry (Jul. 2, 2004).This case was
reassigned to the undersigned Judge on July 14, 2017.
4
          This case was reassigned to the undersigned Judge on July 14, 2017.

                                                         2
       In 2019, defendant again sought a reduction in his sentence by requesting that the Federal

Bureau of Prisons (“BOP”) move for compassionate release on his behalf.5 He claimed that his

medical condition made him eligible for early release under BOP regulations and the statute

governing compassionate release. Def.’s Mot. to Appoint Counsel, App’x A (“BOP Decision”)

at 1, ECF No. 224. Specifically, in 2005, defendant was diagnosed with multiple sclerosis

(“MS”), a neurological condition that has created a slew of medical issues for defendant,

including “incomplete quadriplegia, hypertension, esophageal reflux, irritable bowel syndrome,”

and “diplopia[] and glaucoma” resulting in defendant’s loss of 85% of his vision. Def.’s

Emergency Mot. at 3. Defendant is unable to walk and so he spends all of his time in bed or in

an electric wheelchair. Id. He is also “intermittently incontinent of both bowel and bladder,”

BOP Decision at 2, and as a result, wears diapers, Def.’s Emergency Mot. at 3. As BOP put it,

defendant “requires assistance with all activities of daily living.” BOP Decision at 2. There is

no known cure for MS, and defendant expects that his “condition will not improve.” Id. at 17

(citing Multiple Sclerosis, MAYO CLINIC, https://www.mayoclinic.org/diseases-conditions/multiple-

sclerosis/diagnosis-treatment/drc-20350274 (last visited Apr. 22, 2020)).

       Despite finding that defendant was “in a debilitated medical condition,” BOP denied his

request owing to “the nature of his convitions [sic] and his discipline history.” BOP Decision at

2. On December 23, 2019, defendant filed a motion for compassionate release directly with this

Court. See Def.’s Initial Mot. Briefing on that motion was underway when the global COVID-

19 pandemic took hold. See Scheduling Order (Jan. 16, 2020); see also supra n.1. The spread of

COVID-19 prompted defendant’s second, emergency motion for compassionate release.

According to him, because the physical ailments that gave rise to his December motion for



5
       The record is unclear as to when defendant made this request.

                                                       3
compassionate release put him at greater risk of complications should he contract COVID-19, his

need for compassionate release is all the more urgent. Def.’s Emergency Mot. at 3.

II.      LEGAL STANDARD

         “Federal courts are forbidden, as a general matter, to ‘modify a term of imprisonment

once it has been imposed,’ 18 U.S.C. § 3582(c); but the rule of finality is subject to a few narrow

exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011). As originally enacted, one

such exception, codified in section 3582(c)(1)(A), empowered the BOP Director to “petition the

court for a reduction in . . . sentence” and gave courts the authority to grant those petitions if they

found “that the reduction was justified by ‘extraordinary and compelling reasons.’” S. Rep. 98-

223 at 118; see also Pub. L. No. 98-473, Title II, § 212(a)(2).6 As amended in the First Step Act

of 2018, Pub. L. No. 115-391, the exception in section 3582(c)(1)(A) is expanded to authorize a

defendant directly to file a motion for such compassionate release with the court after exhausting

“administrative rights to appeal a failure of the Bureau of Prisons to bring a [compassionate

release] motion” on his behalf or he waits at least “30 days” after he delivers his request for

compassionate release to “the warden of [his] facility.” 18 U.S.C. § 3582(c)(1)(A).

         In resolving motions for compassionate release, the court may reduce a term of

imprisonment only “after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent

that they are applicable,” id., and upon making two findings: first, that “extraordinary and



6
         As originally enacted, 18 U.S.C. § 3582 read as follows:

         The Court may not modify a term of imprisonment once it has been imposed except that . . . in any
         case . . . the court, upon motion of the director of the Bureau of Prisons, may reduce the 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 [United States]
         Sentencing Commission.

Pub. L. No. 98-473, Title II, § 212(a)(2).

                                                          4
compelling reasons warrant such a reduction,” id. § 3582(c)(1)(A)(i)7; and, second, “that such a

reduction is consistent with applicable policy statements issued by the Sentencing Commission,”

id. § 3582(c)(1)(A).8

         The Sentencing Commission’s policy statement at U.S.S.G. § 1B1.13, which was last

substantively amended on November 1, 2016, applies to motions for reduction of terms of

imprisonment under 18 U.S.C. § 3582(c)(1)(A), and provides guidance as to both of the

statutorily required findings. It states that a reduction of a term of imprisonment may be

warranted, “after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they

are applicable,” when the court makes three determinations: (1) “extraordinary and compelling

reasons warrant the reduction,” or the defendant meets certain age and a minimum incarceration

period, U.S.S.G. § 1B1.13(1)(A)–(B); (2) the defendant poses no danger to the safety of any

other person or the community, id. § 1B1.13(2); and (3) “the reduction is consistent with this

policy statement,” id. § 1B1.13(3). The commentary to this policy statement then describes four

“circumstances” that satisfy “extraordinary and compelling reasons warrant[ing] the reduction”:

(1) the medical condition of the defendant, who “is suffering from a terminal illness” or has

chronic and “substantially diminish[ed] . . . ability . . . to provide self-care” within the prison

environment, id. § 1B1.13, cmt. n.1(A); (2) the defendant is at least 65 years old, with a serious

deterioration in physical or mental health, after serving at least 10 years or 75 percent of the

prison term, “whichever is less,” id. § 1B1.13, cmt. n.1(B); (3) “[f]amily [c]ircumstances” of



7
          Though not relevant to the instant motion, the court may also reduce a prisoner’s sentence if he is “at least
70 years of age” and has served at least 30 years in prison, when BOP has determined “that the defendant is not a
danger to the safety of any other person or the community, as provided under [18 U.S.C. §] 3142(g).” 18 U.S.C.
§ 3582(c)(1)(A)(ii).o
8
          The Sentencing Commission is tasked, in its organic statute, with promulgating general policy statements
regarding “the sentence modification provisions set forth in section[] . . . 3582(c) of title 18,” 28 U.S.C. § 994(a)(2),
and “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. § 994(t).

                                                            5
“[t]he death or incapacitation of the caregiver of the defendant’s minor child or minor children”

or 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,” id. § 1B1.13, cmt. n.1(C);

and (4) “[o]ther [r]easons” found by the BOP Director to present an extraordinary and

compelling reason “other than, or in combination with,” the reasons specified in the policy

statement, id. § 1B1.13, cmt. n.1(D).

III.   DISCUSSION

       Much common ground exists between defendant and the government. For instance, the

parties agree that defendant has met the exhaustion requirements of the compassionate release

statute. See Gov’t Opp’n to Def.’s Emergency Mot. (“Gov’t Opp’n”) at 8, ECF No. 233 (“[T]he

statute allows defendant to file this motion with the court . . . because more than 30 days has

elapsed since the Warden’s receipt of the defendant’s request”); see also 18 U.S.C.

§ 3582(c)(1)(A) (allowing the defendant to file a compassionate release motion directly with the

court after “the lapse of 30 days from the receipt of . . . a request by the warden of the

defendant’s facility”); BOP Decision at 1 (denying defendant’s request on December 4, 2019).

The parties are also in accord that defendant’s medical condition “comports with” the

requirements of the Sentencing Commission Policy Statement’s definition of extraordinary and

compelling circumstances. Gov’t Opp’n at 8. In particular, the commentary to that policy

statement explains that “extraordinary and compelling reasons” warranting release exist when

(2) “[t]he defendant is . . . suffering from a serious physical or medical condition, . . . suffering

from a serious functional or cognitive impairment, or . . . experiencing deteriorating physical or

mental health because of the aging process” if that impairment “substantially diminishes the

ability of the defendant to provide self-care within the environment of a correctional facility” and



                                                   6
is a condition from which he is “not expected to recover.” U.S.S.G. § 1B1.13, cmt. n.1(A)(ii).

BOP itself found that defendant’s serious functional impairments caused by his advanced MS

mean he “requires assistance with all activities of daily living.” BOP Decision at 2 (emphasis

added). Defendant’s incurable medical condition thus renders him unable to “provide self-care

within the environment of a correctional facility” and satisfies the requirements of the policy

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

        Demonstrating that defendant falls into one of the categories of extraordinary and

compelling reasons enumerated in the Sentencing Commission’s Policy Statement is, however,

but one ingredient in the compassionate release inquiry. Both statute and policy statement

instruct courts to also “consider[] the factors set forth in 18 U.S.C. § 3553(a).” U.S.S.G.

§ 1B1.13; 18 U.S.C. § 3582(c)(1)(A). In addition, the policy statement requires courts to

determine whether “[t]he defendant is . . . a danger to the safety of any other person or to the

community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(2). The government stakes

its argument against compassionate release on these requirements. In the government’s view,

“compassionate release would minimize the severity of the offenses committed by defendant,”

Gov’t Opp’n at 10, and, in a single sentence, avers that “defendant has not established that he is

not a danger to any person or to the community,” id. at 8. Both arguments, however, miss the

mark.

        To begin, consideration of the factors listed in section 3553(a) does not counsel against

release. The “nature and circumstances of [defendant’s] offense” are certainly very serious. 18

U.S.C. § 3553(a)(1). Defendant enticed children into the sex trade and plied them with drugs

and alcohol. See Gov’t Opp’n to Def.’s Pro Se Motion for Modification or Reduction of Term of

Imprisonment at 4, ECF No. 217. Defendant acknowledges that his crimes were heinous—they



                                                 7
“disgust[]” him now. Def.’s Letter at 1, ECF No. 237. Aspects of the defendant’s “history and

characteristics” are also troubling. Before the six convictions that led to his current terms of life

imprisonment, defendant was convicted of “[p]romoting prostitution with a minor” in New

Jersey state court and of “[i]mporting [a] controlled substance.” Def.’s Emergency Mot. at 8–9.

This criminal history led directly to the imposition of a life sentence. Curtis, 481 F.3d at 838.

Under the then-applicable sentencing guidelines, “a defendant with at least two prior felony

convictions of qualifying offenses receive[d] a greatly enhanced guideline sentence when

convicted of another qualifying offense.” Id. Qualifying offenses for this “career offender”

designation included “controlled substance offense[s]” and “crime[s] of violence.” Id.; see also

U.S.S.G. § 4B1.1(a). At the time crimes of violence included “any offense under federal or state

law” that “involve[d] conduct that presents a serious potential risk of physical injury to another.”

Curtis, 481 F.3d at 838. In affirming the Sentencing Judge’s decision to label defendant a career

offender for purposes of sentencing, the D.C. Circuit held that defendant’s New Jersey

prostitution offense was one that “present[ed] a serious potential risk of physical injury to

another.” Id. at 838–39.

       The language used to categorize defendant’s state prostitution offense as a crime of

violence, the so-called “residual clause,” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015),

has since been the subject of considerable litigation. When the language was used in a statute to

define the elements of a particular crime, the Supreme Court held it to be unconstitutionally

vague. Id. at 2560. The Supreme Court, however, declined to find identical language

unconstitutionally vague when used as part of the advisory sentencing guidelines. Beckles v.

United States, 137 S. Ct. 886, 895 (2017). Nevertheless, the Sentencing Commission responded

to the “uncertainties in the residual clause” described by the Supreme Court, Johnson, 135 S. Ct.



                                                  8
at 2560, by excising it from the sentencing guidelines altogether. See U.S.S.G. § 4B1.2(a)

(defining “[t]he term ‘crime of violence’”). If defendant were sentenced today, he thus would

not be subject to an enhanced sentence. Indeed, according to defendant, absent the “career

offender” enhancement, the sentencing guidelines would have recommended a sentence of

between 188 months’ (15.5 years) and 235 months’ (19.5 years) imprisonment. Def.’s

Emergency Mot. at 32. The government does not quibble with this analysis or guideline re-

calculation. That a defendant sentenced today, identical in every way to the defendant in this

case, would face 15.5–19.5 years’ imprisonment is strong evidence that defendant’s 17 years’

imprisonment adequately reflects the “seriousness of [his] offense” and “provide[s] just

punishment for the offense.” 18 U.S.C. § 3553(a)(2). Moreover, a sentence that falls within the

guidelines range is consistent with two of the other section 3553(a) factors. Id. §§ 3553(a)(3)

(directing courts to consider “the kinds of sentences available”) and (a)(4) (requiring courts to

consider “the guidelines . . . issued by the sentencing commission”).

         Defendant’s already-served sentence of 17 years’ imprisonment also “protect[s] the

public from further crimes of the defendant,” especially in this case where the defendant to be

released in no way resembles the defendant sentenced in 2006. Id. § 3553(a)(2)(C). Not only

will defendant be under supervised release for five years,9 but his physical limitations seriously

undermine the notion that defendant might engage in further criminal conduct. Defendant also

shows true remorse for his actions, going so far as to say he “hate[s] who [he] was.” Def.’s

Letter at 1. His minimal disciplinary record also suggests that he is serious about his




9
         18 U.S.C. § 3582(c)(1)(A) provides only for reductions of “imposed term[s] of imprisonment,” and
contains no authority to adjust terms of supervised release. While other provisions of law may provide such
authority, the Court’s power under the instant motion is limited to adjusting defendant’s term of imprisonment.

                                                         9
commitment to becoming “a man of integrity.” Id.10 Defendant’s actions substantiate this

commitment—he has obtained his GED, has completed the non-residential drug treatment

program, and has taken advantage of “approximately 1,900 hours[’]” worth of educational

opportunities. Def.’s Emergency Mot. at 7. These rehabilitation steps are commendable and

may appropriately be taken into consideration. Cf. Pepper v. United States, 562 U.S. 476, 490

(2011) (permitting consideration of “evidence of a defendant’s rehabilitation since his prior

sentencing” and holding that “such evidence may . . . support a downward variance from the

advisory guidelines range” when a defendant’s case has been remanded to a district court for

resentencing).

        Finally, as discussed above, recent developments in the guidelines mean that defendant’s

life sentence is out-of-step with sentences that would be imposed on similarly-situated

defendants today. Section 3553(a)(6) specifically instructs courts to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” Although the amendment that led to a lower guidelines range for

individuals like defendant is not one made eligible for retroactive application by the sentencing

commission, see U.S.S.G. § 1B1.10(d), the explicit call for similar sentences for similarly-

situated defendants provides additional support for the notion that reducing defendant’s sentence

complies with the section 3553(a) factors.

        As to the government’s one-sentence comment that “defendant has not established that he

is not a danger to any person or to the community,” pursuant to U.S.S.G. § 1B1.13(2), Gov’t

Opp’n at 8, the record does not support such a contention. Defendant is confined to a bed or



10
          Defendant admits to having six infractions on his prison record: “four for refusing work assignments, one
for interfering with the [taking of the prison] count, and one for possessing gambling materials.” Def.’s Emergency
Mot. at 33–34.

                                                        10
wheelchair and has lost 85% of his vision. He requires assistance with even the simplest tasks of

everyday life. The Court does not deny the metaphysical possibility that a person in such

condition might commit further crimes, but to suggest the possibility is high or even middling

would be to ignore reality.

       In sum, defendant has met section 3582(c)(1)(A)’s exhaustion requirements, he has

shown that he fits neatly within one of the Sentencing Commission’s enumerated examples of

“extraordinary and compelling reasons” for release, consideration of the section 3553(a) factors

counsels in favor of relief, and little to nothing in the record suggests that defendant, in his

current debilitated condition, would pose a danger to the community. Even if this were not

enough, the spread of COVID-19 in BOP facilities, see COVID-19 Coronavirus, FED. BUREAU

40OF PRISONS, https://www.bop.gov/coronavirus/ (“[T]here are 540 federal inmates and 323

BOP staff who have confirmed positive test results for COVID-19 nationwide” including 23 who

have died as of April 21, 2020.) (last visited Apr. 22, 2020), and defendant’s particular

susceptibility to the worst effects of that virus adds great urgency to his request, see People Who

are at Higher Risk for Severe Illness, CENTERS FOR DISEASE CONTROL AND PREVENTION,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html

(listing “[p]eople of all ages with underlying medical conditions” among those at highest risk

from the disease) (last visited Apr. 22, 2020). Defendant’s request will therefore be granted.

IV.    ORDER

       For the foregoing reasons, defendant’s Emergency Motion for Compassionate Release

under 18 U.S.C. § 3582(c)(1)(A)(i), and his Petition for Reduction in Sentence or Compassionate

Release Pursuant to 18 U.S.C. § 3582(c)(1)(A) are GRANTED. Accordingly, it is hereby




                                                  11
       ORDERED that defendant’s previously imposed sentence of six terms of life

imprisonment are reduced to time served; and it is further

       ORDERED that the defendant abide by all supervised release conditions imposed in the

original judgment.

Date: April 22, 2020

                                                    __________________________
                                                    BERYL A. HOWELL
                                                    Chief Judge




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