                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
UNITED STATES OF AMERICA                  )
                                          )
                                          )
            v.                            )                Criminal No. 13-231-01 (ESH)
                                          )
HERMAN CURTIS MALONE,                     )
                                          )
                        Defendant.        )
__________________________________________)


                                              ORDER

       Before the Court is defendant Herman Curtis Malone’s pro se emergency motion for

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). (Mot., ECF No. 225.) The

government opposes defendant’s motion, arguing that it should be dismissed for failure to

exhaust administrative remedies. (See Opp., ECF No. 227.) For the reasons stated herein, the

motion is denied without prejudice.

I.     BACKGROUND

       Defendant is presently serving a 100-month sentence, and his current projected release

date is December 5, 2020. The Baltimore Residential Reentry Management Office previously

designated defendant to move to a residential reentry center in Washington, D.C. on May 21,

2020. However, once the selected location (Hope Village) ceased operating, he had to wait for a

new designation. As of today, he has been designated to go to the Volunteers of America in

Baltimore on May 21, 2020, from where he will be placed on home confinement.

II.    MOTION FOR RELEASE

       Section 3582(c)(1)(A) provides that:

       [T]he court, 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, may reduce the term of
       imprisonment (and may impose a term of probation or supervised release with or
       without conditions that does not exceed the unserved portion of the original term
       of imprisonment), after considering the factors set forth in section 3553(a) to the
       extent that they are applicable, if it finds that—

       (i) extraordinary and compelling reasons warrant such a reduction . . . .

18 U.S.C.A. § 3582(c)(1)(A).

       Defendant argues that “extraordinary and compelling reasons warrant” his release

because of the COVID-19 pandemic and his “medical condition.” According to defendant, his

medical condition includes diabetes, high cholesterol, and the need for two hip replacements. He

acknowledges that he has not complied with the statutory requirement to first ask the Bureau of

Prisons to file a motion on his behalf, as the statute requires. But he argues that the Court should

waive this requirement because if he is forced to pursue administrative remedies, the consequent

delay in granting him relief could result in his getting sick, and perhaps dying, and also cause

additional deaths among those he infects.

       The government’s opposition urges the Court to treat the statutory exhaustion

requirement in § 3582(c)(1)(A) as jurisdictional or, even if it is not jurisdictional, as non-

waivable. In the alternative, it argues that defendant’s situation does not justify waiving the

requirement.

       The government’s position conflicts with the position it took in several other cases,

including one before the undersigned, that the exhaustion requirement was waivable. See

Defendant’s Unopposed Emergency Motion for Compassionate Release, United States v. Powell.

No. 94-cr-0316 (D.D.C. 2020); see also Joint Submission Regarding Defendant Ghorbani’s

Motion for Reduction of Sentence Pursuant to Compassionate Release at 2 n.1, United States v.

                                                      2
Ghorbani, No. 18-0255 (D.D.C. Apr. 3, 2020) (ECF No. 129). It has also been rejected by

another judge in this district, see United States v. Jennings, No. 18-cr-0017, slip. op. at 2-4

(D.D.C. Apr. 22, 2020), and by a number of other courts. See, e.g., United States v. Scparta, No.

18-cr-0578, slip. op. at 8-15 (S.D.N.Y. Apr. 19. 2020) (relying on United States v. Russo, No.

16-cr-0441, 2020 WL 1862294, at *2-7 (S.D.N.Y. Apr. 14, 2020)); see also Opp. at 15. While

there is contrary authority from outside this district, see Opp. at 14-15, given the Court’s prior

decision in Powell and Judge Chutkan’s decision in Jennings, the Court will not dismiss for lack

of jurisdiction or on the ground that the requirement is not waivable, but will proceed to what

turns out to be the dispositive question: whether defendant has established a basis for waiving the

exhaustion requirement in his case.

       Although a single legal standard has yet to emerge for cases arising under the relatively

new language in § 3582(c)(1)(A), courts have waived exhaustion in a limited set of

circumstances, such as when pursuing administrative remedies would be “futile,” see, e.g., Joint

Submission Regarding Defendant Ghorbani’s Motion for Reduction of Sentence Pursuant to

Compassionate Release at 2 n.1, United States v. Ghorbani, No. 18-0255 (D.D.C. Apr. 3, 2020)

(citing cases), or where “irreparable injury would result unless immediate judicial review is

permitted.” Jennings, slip op. at 3; see also, e.g., Scparta, slip op. at 15 (excusing exhaustion

because “waiting for [the defendant] to exhaust his remedies would both be futile and cause him

irreparable harm”); see also Opp. at 15 (citing cases).

       The seriousness of the COVID-19 pandemic and the increased risk of potentially life-

threatening complications for individuals with certain underlying conditions, including diabetes,

is undisputed. Nonetheless, the present record does not provide a basis for waiving

§ 3582(c)(1)(A)’s exhaustion requirement. Exhaustion under § 3582(c)(1)(A) does not require a



                                                      3
defendant to wait for a final decision from the BOP. Rather, once a defendant submits a request

to the warden of the prison, the maximum time he has to wait before filing a motion in court is

30 days. As of today, there have been no confirmed cases of COVID-19 among the inmates or

staff at the Fort Dix FCI.1 Thus, even though diabetes has been identified as a risk factor for

more serious complications from COVID-19,2 there is no basis to assume that defendant’s risk of

exposure at Fort Dix FCI is any greater than it would be outside of prison. In addition, defendant

is currently scheduled to be moved from Fort Dix to a residential reentry center in Baltimore on

May 21, 2020, and from there to home confinement.3 Accordingly, given the facts now before

the Court, it will not waive the exhaustion requirement in § 3582(c)(1)(A).

        Accordingly, it is hereby

        ORDERED that defendant’s motion for release is DENIED WITHOUT PREJUDICE;

it is further

        ORDERED that the Clerk of Court shall mail a copy of this Order to defendant at the

following address:

        Herman Curtis Malone 32862-016
        FCI Fort Dix
        FEDERAL CORRECTIONAL INSTITUTION
        P.O. BOX 2000
        JOINT BASE MDL, NJ 08640



1
  As of April 27, 2020, there had been 30 confirmed cases of COVID-19 at Fort Dix, but the
cases are all at the minimum-security satellite camp not the low security prison, where defendant
is, and there is no contact between the inmates in these two locations.
2
  “Diabetes, including type 1, type 2, or gestational, may put people at higher risk of severe
illness from COVID-19.” See https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/groups-at-higher-risk.html (accessed April 27, 2020).
3
 Even if the Court were to grant his motion for release, it would order that he first complete 14
days of quarantine at his current location, so his earliest release date would not be until May 11,
2020.

                                                     4
The Court will also email a copy of this Order to defendant’s case manager at Fort Dix.




                                                    _______________________
                                                    ELLEN S. HUVELLE
                                                    United States District Judge


Date: April 27, 2020




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