                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


                                              )
UNITED STATES OF AMERICA,                     )
                                              )
               v.                             )
                                              )
TIMOTHY JENNINGS,                             )     Case No. 18-cr-17 (TSC)
                                              )
                                              )
                                              )
Defendant.                                    )
                                              )

                                             ORDER
          Before the court is Defendant Timothy Jennings’ Emergency Motion to Reduce his

Sentence Pursuant to the Compassionate Release Statute, 18 U.S.C. § 3582(c)(1)(A)(i).

(ECF Nos. 25, 29 (Def. Reply).) The Government opposes the motion. 1 (ECF No. 27 (Gov

Opp.).)

                                       I. BACKGROUND

          Jennings pled guilty to two counts of Bank Robbery, in violation of Title 18, United

States Code, Section 2113(a) and was sentenced to 60 months to be followed by 36 months

of supervised release. 2 (ECF No. 23.) He has now served 33 months. (ECF No. 17 (PSR)

at 1 (arrest date of July 21, 2017).) Jennings is a 63-year-old Vietnam veteran with serious

health problems, including “an irregular heartbeat thought to be caused by a problem with his heart



1
 The Government also requests more time to get information from the prison regarding their
protocols and Jennings’s health conditions. (ECF No. 26.) Because the briefs already provide the
court with enough information to rule on the motion for compassionate release, the request for
additional time will be denied.
2
  A month after his sentencing in this case, Jennings was sentenced to a consecutive 24 months of
imprisonment on a supervised release violation from a 2006 case. See United States v. Jennings,
No. 06-cr-233 (RBW), Dkt. No. 41 (D.D.C. July 17, 2018). Jennings asserts that he will be moving
for compassionate release in that case as well. (Def. Reply at 4, n. 9.)
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valves, coronary artery disease, high blood pressure, elevated cholesterol, diabetes, hepatitis, and

sever[e] knee pain caused by arthritis and deterioration of the cartilage.” (ECF No. 20 at 5; see also

PSR ¶ 175.) He suffered a heart attack in November 2019 while incarcerated. (Def. Reply at 4.)

He was hospitalized for 7 days and told that he has ischemic heart disease that requires a

pacemaker, though he has thus far been unable to receive one. (Id.)

                                          II. DISCUSSION

       As modified by the First Step Act, 18 U.S.C. § 3582(c)(1)(A) allows a court to modify a

term of imprisonment “upon motion of the [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.” 18 U.S.C. § 3582(c)(1)(A). If the

exhaustion requirement is met, the court must then determine on the merits whether “extraordinary

and compelling reasons warrant such a reduction” and whether “such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” Id. In doing so, the court

must also consider the 18 U.S.C. § 3553(a) sentencing factors to the extent they apply. Id.

   A. Exhaustion

       Jennings concedes that he has not met the exhaustion requirement because though he filed a

compassionate release request with the Warden on April 18, 2020, the requisite 30 days have not

yet passed. (Def. Reply, Ex. A.) Nonetheless, Jennings urges the court to waive the requirement

and cites to one case in this Circuit, and several others outside the Circuit for support. (Def. Reply

at 21–23.) The Government argues that the exhaustion requirement may not be waived, citing to a

number of cases outside this Circuit. (Gov. Opp. at 7–8.)




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        It appears that the only two cases in the Circuit to reach the issue concluded that the

exhaustion requirement for the compassionate release statute can be waived. 3 In United States v.

Powell, the court waived the requirement because “requiring defendant to first seek relief through

the Bureau of Prisons’ administrative process would be futile . . .” United States v. Powell, 2020

WL 1698194, at *1 (D.D.C. Mar. 28, 2020). In United States v. Ghorbani, the Government actually

argued the opposite of its position here, asserting in a joint filing that “while 18 U.S.C. §

3582(c)(1)(A)(i) includes an exhaustion requirement, a Court can dispense with the administrative

exhaustion requirement where, as here, there are ‘exceptional circumstances of peculiar urgency . .

.’” United States v. Ghorbani, No. 18-cr-255, Dkt. No. 129, at 2, n. 1 (D.D.C. April 3, 2020) (citing

Hendricks v. Zenon, 993 F. 2d 664, 672 (9th Cir. 1993)). The court then waived the requirement

without further discussion. Id. at Dkt. No. 131.

        In addition, while the D.C. Circuit has not addressed this particular statute’s exhaustion

requirement, its cases instruct generally that a waiver of a non-jurisdictional exhaustion requirement

is appropriate where, inter alia, “administrative remedies are inadequate” and where “irreparable

injury would result unless immediate judicial review is permitted.” Randolph-Sheppard Vendors of

Am. V. v. Weinberger, 795 F. 2d 90, 107 (D.C. Cir. 1986). Both of those circumstances are present

in this case.

        The court also finds that waiving the exhaustion requirement is appropriate here given the

history of the compassionate release statute and the urgency of the COVID-19 pandemic. The First

Step Act, which created the 30-day rule, “was enacted to further increase the use of compassionate



3
 Outside of this Circuit, courts are divided. Many courts have held that the exhaustion requirement
may be waived. See, e.g., United States v. Smith, 2020 WL 1849748, at *2–4 (S.D.N.Y. Apr. 13,
2020); United States v. Colvin, 2020 WL 1613943, at *2 (D. Conn. Apr. 2, 2020); United States v.
Sawicz, 2020 WL 1815851, at *2 (E.D.N.Y. Apr. 10, 2020). Others have taken the opposite
position. See, e.g., United States v. Gross, 2020 WL 1673244, at *2–3 (S.D.N.Y. Apr. 6, 2020);
United States v. Zywotko, 2020 WL 1492900, at *1 (M.D. Fla. Mar. 27, 2020).
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release and . . . explicitly allows courts to grant such motions even when BOP finds they are not

appropriate.” United States v. Beck, 2019 WL 2716505, at *6 (M.D.N.C. June 28, 2019); see also

United States v. Cantu, 2019 WL 2498923, at *4 (S.D. Tex. June 17, 2019) (explaining that

“defendants no longer need the blessing of the BOP to bring such motions”). Thus, the 30-day

exhaustion period is best understood as a method to expand and accelerate, rather than hinder, the

ability of inmates to move for release. For that reason, it would frustrate Congressional purpose to

hold that it prohibits a decision on the merits in these exceptional circumstances. See United States

v. Russo, No. 16-cr-441, Dkt. No. 54, at 5 (S.D.N.Y. Apr. 3, 2020) (“In essence, the 30-day rule was

meant as an accelerant to judicial review. The Court is charged with interpreting congressional

intent and it would pervert congressional intent to treat it as a substantial obstacle to effective

judicial review.”)

       Finally, as other courts have found, the 30-day rule is not jurisdictional, but rather is a

claims processing rule that determines who moves for release and when. United States v. Haney,

2020 WL 1821988, at *2 (S.D.N.Y. Apr. 13, 2020) (citing Sebelius v. Auburn Reg’l Med. Ctr., 568

U.S. 145, 153 (2013) (“A rule qualifies as jurisdictional only if ‘Congress has clearly stated that the

rule is jurisdictional.’”) The 30-day rule “simply delineates the process for a party to obtain judicial

review, not referring to the adjudicatory capacity of courts.” Id.; see also, Avocados Plus Inc. v.

Veneman, 370 F.3d 1243, 1248 (D.C. Cir. 2004) (quoting I.A.M. National Pension Fund Benefit

Plan C v. Stockton Tri Industries, 727 F.2d 1204, 1208 (D.C. Cir. 1984) (“We presume exhaustion

is non-jurisdictional unless ‘Congress states in clear, unequivocal terms that the judiciary is barred

from hearing an action until the administrative agency has come to a decision.’”) For all these

reasons the court finds that the exhaustion requirement is non-jurisdictional and that it may be

waived in this circumstance.



                                                    4
   B. Extraordinary and Compelling Reasons for Sentence Reduction

       On the merits, the court finds that Jennings has set forth “extraordinary and compelling

reasons” to warrant a reduction in his sentence. 18 U.S.C. § 3582(c)(1)(A)(i).

       First, releasing him is consistent with the Sentencing Commission’s section 3553(a)

sentencing factors and applicable policy statements. See 18 U.S.C. 3553(a); U.S.S.G. § 1B1.13.

The sentence that Jennings has served thus far, and that he will continue to serve when on

supervised release, balances the seriousness of his crime with his acceptance of responsibility.

Jennings “has served much of his sentence while seriously ill and in physical discomfort.” United

States v. Williams, 2020 WL 1751545, at *4 (N.D. Fla. Apr. 1, 2020). “This means that his

sentence has been significantly more laborious than that served by most inmates. It also means that

further incarceration in his condition would be greater than necessary to serve the purposes of

punishment set forth in § 3553(a)(2).” Id. (quoting United States v. McGraw, 2019 WL 2059488,

at *5 (S.D. Ind. May 9, 2019)). And in sentencing Jennings, the court did not intend for his

sentence to “include a great and unforeseen risk of severe illness or death brought on by a global

pandemic.” United States v. Zukerman, No. 16-cr-194, Dkt. No. 116 (S.D.N.Y. Apr. 3, 2020).

       There are also a variety of factors suggesting that Jennings does not pose “a danger to the

safety of any other person or to the community.” U.S.S.G. § 1B1.13(2). He has had no disciplinary

issues while imprisoned. (Def. Reply at 39.) His release plan includes living with his son, a

tenured professor at Howard Community College and Coppin State University, who is healthy and

lives by himself in a home with an extra room. (Id.) In addition, Jennings’s age and poor health

make it considerably less likely that he would pose a threat to the community. Cf. United States v.

York, 2019 WL 3241166, at *7 (E.D. Tenn. July 18, 2019) (“The Court cannot fathom, and no party

has attempted to explain, how Defendant could pose a danger to the community in light of his

chronic physical impairments.”)

                                                  5
       Finally, Jennings’ medical conditions, and the rapid spread and lethality of COVID-19,

make for extraordinary and compelling reasons justifying release. Jennings’ advanced age,

diabetes, and heart issues place him at a heightened risk of developing serious complications should

he be exposed to COVID-19 while in prison. See U.S.S.G. § 1B1.13 comment n.1 (A)(ii). As the

Government notes, both “serious heart conditions” and “diabetes” are conditions that present

Jennings with a “high-risk for severe illness from COVID-19.” (Gov. Opp. at 11, n. 5.) If released,

Jennings will be able to more effectively avoid contracting COVID-19 and will have access to

medical care through the Veterans Administration’s “Health care for Re-Entry Veterans” Program.

(Def. Reply at 40.) For all these reasons, the court concludes that extraordinary and compelling

reasons warrant a reduction of Jennings’ sentence to time served.

                                             III. ORDER

        In light of the foregoing discussion, it is hereby

       ORDERED that Jennings’s motion is GRANTED and it is further ORDERED that Jennings

be RESENTENCED to TIME SERVED plus 36 months of supervised release under the conditions

in the original judgment.

       If Jennings is released in the next 90 days, it is further

       ORDERED that Jennings’s Supervised Release be transferred to the District Court of

Maryland;

       ORDERED that Jennings must reside at the location designated in Baltimore, Maryland in

his filing of April 20, 2020, ECF No. 29;

       ORDERED that Jennings must not leave the residence until two weeks after arrival at the

residence, unless he is seeking necessary medical care, and that in the event that Jennings must

leave the residence to seek such care, he shall report such medical visits to the Probation Office in

advance;

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          ORDERED that Jennings must call the Probation Office within 72 hours of his release; and

          ORDERED that all other provisions of the sentence imposed on June 22, 2018 remain in

effect.


Date: April 22, 2020


                                              Tanya S. Chutkan
                                              TANYA S. CHUTKAN
                                              United States District Judge




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