Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 1 of 59
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF NEW MEXICO
`
`
`
`
`Plaintiff,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` No. CR 12-3013 JB/CG
`
`UNITED STATES OF AMERICA,
`
`
`
`vs.
`
`ALFONSO THOMPSON,
`
`
`
`
`
`
`Defendant.
`
`MEMORANDUM OPINION AND ORDER1
`
`
`
`THIS MATTER comes before the Court on the Defendant’s Motion for Compassionate
`
`Release, filed January 6, 2021 (Doc. 140)(“Motion”). The Court held a hearing on January 31,
`
`2022. See Clerk’s Minutes, filed January 31, 2022 (Doc. 151). The primary issues are: (i) whether
`
`Defendant Alfonzo Thompson has exhausted his administrative remedies, where Thompson filed
`
`an Inmate Request for compassionate release and the warden denied his request or did not reply
`
`within thirty days; (ii) whether Thompson’s pulmonary sarcoidosis, sleep apnea, and seizure
`
`disorder in addition to the heightened risk of severe COVID-19 infection these conditions present
`
`constitute extraordinary and compelling reasons warranting his release; (iii) whether a reduction
`
`in Thompson’s sentence is consistent with applicable policy statements from the United States
`
`Sentencing Commission (“Sentencing Commission”); and (iv) whether a sentence reduction aligns
`
`with the applicable 18 U.S.C. § 3553(a) factors. The Court concludes that: (i) Thompson has
`
`
`1In its Sealed Memorandum Opinion and Order, filed March 18, 2024 (Doc. 156)(“Sealed
`MOO”), the Court requested that the parties propose redactions, if any are necessary to protect
`confidential information. See Sealed MOO at 1 n.1. The Court gave the parties fourteen calendar
`days to provide notice of any proposed redactions. See Sealed MOO at 1 n.1. The parties have
`not contacted the Court or made any filings within CM/ECF to indicate that they have any proposed
`redactions. Consequently, the Court is now re-filing the Sealed MOO in an unsealed form.
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 2 of 59
`
`exhausted his administrative remedies, because the warden has not replied to Thompson’s request
`
`for compassionate release, despite that more than thirty days have elapsed since Thompson made
`
`his request; (ii) Thompson’s case does not present extraordinary and compelling reasons
`
`warranting his compassionate release under 18 U.S.C. § 3582(c)(1)(A) and the reduction of his
`
`fifteen-year sentence, because Thompson already has contracted COVID-19, at which time
`
`Thompson had a mild case of the illness, and Thompson refused the COVID-19 vaccination; (iii)
`
`a reduction in Thompson’s sentence is not consistent with applicable United States Sentencing
`
`Guideline Manual (U.S. Sent’g Comm’n 2023)(“U.S.S.G.”) policy statements; and (iv) the 18
`
`U.S.C. § 3553(a) factors do not support Thompson’s release, because a time-served sentence is
`
`not sufficient to reflect the seriousness of his offense, to promote respect for the law, to provide
`
`just punishment for the offense, to afford adequate deterrence to criminal conduct, to protect the
`
`public from Thompson, nor to provide Thompson with needed educational or vocational training,
`
`medical care, or other correctional treatment in the most effective manner. Accordingly, the Court
`
`denies the Motion.
`
`FACTUAL BACKGROUND
`
`
`
`The Court takes its facts from: (i) the Motion; (ii) the Response to Motion for Motion [sic]
`
`to Reduce Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A), filed January 27, 2021
`
`(Doc. 142)(“Response”); (iii) the Presentence Investigative Report, filed February 16, 2022
`
`(Doc. 153-1)(“PSR”); (iv) the Notice of Factual and Legal Developments, filed April 12, 2021
`
`(Doc. 145)(“First Notice”); (v) the Second Notice of Factual and Legal Developments, filed May
`
`26, 2021 (Doc. 146)(“Second Notice”); and (vi) the Notice of Information Regarding Booster
`
`Shots, filed February 11, 2022 (Doc. 152)(“Third Notice”). The Court first describes Thompson’s
`
`
`
`
`- 2 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 3 of 59
`
`previous criminal history. Second, the Court discusses Thompson’s offense of conviction. Last,
`
`the Court outlines Thompson’s time in prison, including his medical problems and matters related
`
`to the COVID-19 pandemic.
`
`1.
`
`1.
`
`2.
`
`Thompson’s Criminal History.
`
`Thompson was arrested three times as a juvenile. See PSR ¶¶ 62-64, at 31.
`
`Thompson has nine prior criminal convictions, see PSR ¶¶ 47-55, at 21-28, five of
`
`which involve violence, PSR ¶¶ 47, 49-51, 54, at 20-24, 26.
`
`3.
`
`On March 30, 1998, Thompson was convicted of assault against a household
`
`member after he told his ex-girlfriend that he would “kill” her and “shoot” her, and then broke
`
`the front window of her home. PSR ¶ 47, at 21.
`
`4.
`
` On February 5, 2002, Thompson was convicted of battery upon a peace officer
`
`after he struck an Albuquerque Police Department (“APD”) officer, knocking him backwards,
`
`slammed a car door on the officer’s leg, and later kicked and struck the officer. PSR ¶ 49, at 22.
`
`5.
`
`Also on February 5, 2002, Thompson was convicted of attempt to commit
`
`aggravated battery against a household member after Thompson committed domestic violence
`
`against an ex-girlfriend by restraining her and using force against her with a seat belt, a knife, and
`
`a screwdriver. See PSR ¶ 50, at 24.
`
`6.
`
`On November 21, 2003, Thompson was convicted of attempt to commit first-degree
`
`murder and sentenced to nine years’ custody after pleading guilty to shooting a man named Tampa
`
`Mitchell in Albuquerque, New Mexico. See PSR ¶ 51, at 25; Response at 12-13.
`
`7.
`
`Also on November 21, 2003, Thompson was convicted of an additional attempted
`
`first-degree murder charge -- Thompson shot a woman named Mandy Lavato in the chest -- and
`
`
`- 3 -
`
`
`
`
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 4 of 59
`
`Thompson was sentenced to an additional nine years’ custody to serve concurrently with the
`
`sentence he received for Mitchell’s attempted murder. See PSR ¶ 54, at 27; Response at 13-14.
`
`8.
`
`In addition to his criminal convictions, Thompson has an extensive arrest record,
`
`including arrests for robbery, assault, trafficking a controlled substance, and additional domestic-
`
`violence related charges. See PSR ¶¶ 62-75, at 31-36.
`
`
`
`2.
`
`9.
`
`The Underlying Offense.
`
`On April 28, 2012, at approximately 2:48 a.m., APD dispatch received calls from
`
`several residents of the Warren Apartments in Albuquerque, “in reference to a disturbance and
`
`possible fight between females.” PSR ¶ 8, at 6.
`
`10.
`
`Later that morning, at approximately 3:07 a.m., APD dispatch received calls from
`
`several residents of the apartments who represented that they heard multiple gunshots, the sound
`
`of glass breaking, and screaming. See PSR ¶ 9, at 6.
`
`11.
`
`APD officers arrived at the scene of a shooting, which was determined to be at
`
`Naomi Trujillo’s apartment. See PSR ¶ 9, at 6.
`
`12.
`
`Officers located a female, later identified as Naomi Trujillo, lying in the open
`
`doorway to her apartment, suffering from an apparent gunshot wound. See PSR ¶ 10, at 7.
`
`13.
`
`Trujillo was transported to the University of New Mexico Hospital (“UNMH”)
`
`where she later died. See PSR ¶ 10, at 7.
`
`14.
`
`Upon clearing the residence, APD officers located a second female, later identified
`
`as May Valerio, lying in a bedroom closet, deceased, and suffering from at least one gunshot
`
`wound. See PSR ¶ 11, at 7.
`
`
`
`
`- 4 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 5 of 59
`
`15.
`
`It was later discovered that a male, Rodney Davis, drove himself to UNMH with a
`
`gunshot wound to his torso. See PSR ¶ 61, at 30.
`
`16.
`
`Davis told APD officers that a fight had taken place between Trujillo and Valerio,
`
`and two other females, later identified as Shalaka Booker and Sabrina Garley. See PSR ¶ 61, at
`
`30.
`
`17.
`
`Davis described that he had been staying at Trujillo’s apartment after the altercation
`
`between the women, when a black male with a grey hoodie broke the glass window on the
`
`apartment’s front door and “began shooting into the apartment.” PSR ¶ 61, at 30.
`
`18.
`
`APD officers identified Booker and her boyfriend, Thompson, as suspects in Davis’
`
`shooting, and in Trujillo and Valerio’s murders. See PSR ¶ 61, at 30.
`
`19.
`
`APD officers obtained an arrest warrant for Thompson for two counts of murder,
`
`in addition to search warrants for Thompson’s place of business, DBD Jeweler, Thompson’s
`
`residence, and Thompson’s vehicle. See PSR ¶ 12, at 7.
`
`20.
`
`On July 12, 2012, APD detectives set up surveillance at DBD Jeweler in an attempt
`
`to take Thompson into custody. See PSR ¶ 13, at 7.
`
`21.
`
`After observing Thompson leaving the business, APD detectives conducted a
`
`traffic stop of Thompson and took Thompson into custody. See PSR ¶ 13, at 7.
`
`22.
`
`APD detectives discovered a loaded Smith & Wesson 9 mm semiautomatic
`
`handgun in addition to two cellophane-wrapped bundles of cash in the vehicle. See PSR ¶¶ 14-
`
`15, 22, 29, at 7, 16-17.
`
`
`
`
`- 5 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 6 of 59
`
`23.
`
`Inside a safe in Thompson’s place of business, officers discovered twelve firearms,
`
`including four semiautomatic rifles, along with more than a thousand rounds of ammunition. See
`
`PSR ¶¶ 18-19, 22, at 10-15.
`
`24.
`
`On November 27, 2012, Thompson was charged with one count of felon in
`
`possession of a firearm. PSR ¶ 1, at 6.
`
`25.
`
`On January 14, 2014, Thompson pled guilty to one count of felon in possession of
`
`a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), and was sentenced,
`
`pursuant to a written plea agreement, to fifteen years in custody. See PSR ¶¶ 2-4, at 6; Judgment
`
`in a Criminal Case, filed October 20, 2014 (Doc. 92)(“Judgment”).
`
`
`
`3.
`
`26.
`
`Thompson’s Medical Conditions and Time in Prison.
`
`Thompson suffers from pulmonary sarcoidosis. See Motion at 7; Selected Medical
`
`Records for Alfonzo Thompson, filed January 6, 2021 (Doc. 140-3)(“Medical Records”).
`
`27.
`
`“Sarcoidosis is a disease characterized by the growth of tiny collections of
`
`inflammatory cells (granulomas) in any part of your body -- most commonly the lungs and lymph
`
`nodes.”
`
`
`
`Sarcoidosis,
`
`Mayo
`
`Clinic,
`
`http://www.mayoclinic.org/diseases-
`
`conditions/sarcoidosis/symptoms-causes/syc-20350358
`
`(last
`
`visited
`
`March
`
`18,
`
`2024)(“Sarcoidosis Information”).
`
`28. When sarcoidosis affects the lungs, it is referred to as pulmonary sarcoidosis. See
`
`Sarcoidosis Information.
`
`29.
`
`“Untreated pulmonary sarcoidosis can lead to permanent scarring in your lungs
`
`(pulmonary fibrosis), making it difficult to breathe . . . .” Sarcoidosis Information.
`
`
`
`
`- 6 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 7 of 59
`
`30.
`
`Pulmonary sarcoidosis is an interstitial lung disease. See Claudio Tana et al.,
`
`Sarcoidosis and COVID-19: At the Cross-Road between Immunopathology and Clinical
`
`Manifestation, Biomedicines, at 3 (October 9, 2022).
`
`31.
`
`The Center for Disease Control (“CDC”) lists “interstitial lung disease” as a
`
`medical condition that places an individual at “high risk” for severe illness from COVID-19.
`
`Underlying Medical Conditions Associated with Higher Risk for Severe COVID-19: Information
`
`for Healthcare Professionals, CDC, https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-
`
`care/underlyingconditions.html (last visited March 18, 2024). See People with Certain Medical
`
`Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-
`
`with-medical-conditions.html (last visited March 18, 2024)(stating that “[h]aving damaged or
`
`scarred lung tissue known as interstitial lung disease” “can make you more likely to get very sick
`
`from COVID-19”).
`
`32. When sarcoidosis is in remission, “flare ups” are still possible, but “[t]he longer
`
`you go without symptoms, the less likely you are to have a flare.” Living With Sarcoidosis, Nat’l
`
`Heart, Lung, & Blood Inst., https://www.nhlbi.nih.gov/health/sarcoidosis/living-with (last visited
`
`March 18, 2024).
`
`33.
`
`Between 2007 and 2009, Thompson’s sarcoidosis was treated with steroids and
`
`antibiotics. See Motion at 7-8; Bureau of Prisons Health Services Clinical Encounter at 1 (dated
`
`March 29, 2021), filed April 12, 2021 (Doc. 145-1)(“March 2021 Clinical Report”).
`
`34.
`
`Thompson’s sarcoidosis is in remission, see March 2021 Clinical Report at 2, but
`
`has left him with scarring to the lungs, see Motion at 7; Medical Records at 84 (describing 2019
`
`chest x-ray results).
`
`
`
`
`- 7 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 8 of 59
`
`35.
`
`The BOP has provided ongoing care and checkups to monitor Thompson’s
`
`sarcoidosis. See Medical Records at 58, 84, 89; First Notice at 1, 3-5.
`
`36.
`
`Thompson also suffers from sleep apnea, see Medical Records at 3, 16, and has
`
`experienced seizures in his sleep, the cause of which has yet to be determined, see Medical Records
`
`at 1, 3; First Notice at 4 (indicating a “[n]ormal MRI evaluation of the brain” after an MRI was
`
`conducted to determine Thompson’s seizures’ cause).
`
`37.
`
`On March 15, 2021, Thompson tested positive for COVID-19, and experienced no
`
`symptoms apart from the loss of his taste and smell. See First Notice at 1.
`
`38.
`
`On March 29, 2021, a chest x-ray was performed after Thompson reported that he
`
`was concerned that his sarcoidosis might be returning, and no notable changes from previous x-
`
`rays were observed. See First Notice at 1-2; March 2021 Clinical Report at 1.
`
`39.
`
`On April 20, 2021, Thompson refused the Moderna COVID-19 vaccine when it
`
`was offered to him, despite that Thompson has no known medical contraindication to the vaccine.
`
`See Second Notice at 2; Bureau of Prisons Health Services Immunizations at 1-2 (dated May 24,
`
`2021), filed May 26, 2024 (Doc. 146-1)(“Immunization Report”).
`
`40.
`
`The BOP classifies Thompson as a “Level-1 inmate,” which is “the lowest of
`
`BOP’s four medical care levels, with Level 4 inmates requiring the most intensive medical care.”
`
`Response at 19. See BOP Care Level Classification for Medical and Mental Health Conditions or
`
`Disabilities, https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf (last visited
`
`February 5, 2024).
`
`41.
`
`COVID-19 vaccinations and booster shots are available to inmates at FCI Florence.
`
`See Immunization Report at 1; Third Notice at 1.
`
`
`
`
`- 8 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 9 of 59
`
`42.
`
`During the six months preceding the Motion’s filing, Thompson had no disciplinary
`
`incidents. See Individualized Needs Plan at 1, filed January 6, 2021 (Doc. 140-2)(“Needs Plan”).
`
`43. While incarcerated, Thompson has taken over twenty educational courses and
`
`completed drug education. See Needs Plan at 1-2.
`
`PROCEDURAL HISTORY
`
`
`
`Thompson filed his Motion on January 6, 2021. See Motion at 1. The United States filed
`
`its Response on January 27, 2021. See Response at 1. The United States filed notices of factual
`
`and legal developments on April 12, 2021, see First Notice at 1, and May 26, 2021, see Second
`
`Notice at 1. The Court held a hearing on January 31, 2022. The United States filed a third notice
`
`of factual and legal developments on February 11, 2022. See Third Notice at 1.
`
`1.
`
`The Motion.
`
`
`
`In the Motion, Thompson argues that “his medical infirmities and his particular
`
`vulnerability to severe infection and/or death due to COVID-19,” constitute extraordinary and
`
`compelling reasons warranting his release. Motion at 1. Specifically, Thompson identifies his
`
`sarcoidosis as “diminish[ing] his ability to provide self-care within the prison” and placing him at
`
`high risk of a severe COVID-19 infection. Motion at 6-10. In addition, Thompson contends that
`
`his “ongoing seizures” place him at high risk of “complications in the event he is infected with the
`
`virus.” Motion at 11. Finally, Thompson argues that the relevant 18 U.S.C. § 3553(a) factors
`
`favor his release, because he has “suffered from anxiety and post-traumatic stress disorder, likely
`
`due at least in part to the turbulence in his early life,” has “maintained clear conduct” during his
`
`incarceration while taking advantage of “educational and rehabilitative opportunities,” and has
`
`“served more than two thirds of his 180 month sentence.” Motion at 12-13.
`
`
`
`
`- 9 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 10 of 59
`
`2.
`
`The Response.
`
`
`
`The United States responds that “the relevant factors under 18 U.S.C. § 3553(a) command
`
`the conclusion that Thompson must remain in BOP custody until his sentence is complete,”
`
`Response at 1, even if the Court were to conclude that extraordinary and compelling reasons
`
`warrant Thompson’s release, see Response at 9. The United States contends that the need to
`
`protect the public through incapacitation and the potential for incarceration to provide specific
`
`deterrence are § 3553(a) factors that weigh heavily against Thompson’s release. See Response at
`
`2. The United States describes in detail Thompson’s lengthy criminal history, which it argues
`
`provides further evidence that Thompson must serve out his remaining sentence. See Response at
`
`9-16 (“Affording due consideration to Thompson’s long, violent criminal history requires him to
`
`serve his full sentence.”).
`
`
`
`Next, the United States argues that, pursuant to U.S.S.G. § 1B1.13, the Court may not
`
`reduce Thompson’s sentence if the Court determines that Thompson is “‘a danger to the safety of
`
`any other person or to the community.’” Response at 17 (quoting U.S.S.G. § 1B1.13). The United
`
`States avers that Thompson’s “early release would pose an unacceptable danger to the
`
`community.” Response at 17. Moreover, the United States contends that Thompson’s medical
`
`conditions are not an extraordinary and compelling reason for a sentence reduction, because
`
`Thompson has not demonstrated that his conditions are “so unusually severe” that they merit his
`
`release, Response at 18, particularly where the BOP has classified Thompson at the “lowest of
`
`BOP’s four medical care levels,” Response at 19. Specifically, the United States argues that
`
`Thompson has not established that his sarcoidosis, his treated sleep apnea, or his unconfirmed
`
`seizures constitute “a severe COVID risk factor.” Response at 19-22. Finally, the United States
`
`
`
`
`- 10 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 11 of 59
`
`provides that inmate vaccination, which is currently underway, is an additional factor weighing
`
`against Thompson’s release. Response at 22-23.
`
`3.
`
`The United States’ First and Second Notices of Factual and Legal
`Developments.
`
`Following its Response, the United States filed two notices of factual and legal
`
`
`
`
`developments. In the First Notice, the United States notifies the Court that Thompson tested
`
`positive for COVID-19 on March 15, 2021, and experienced a mild COVID-19 case. First Notice
`
`at 1. The United States provides that, following his COVID-19 diagnosis, Thompson underwent
`
`a new chest x-ray that discovered no changes to the scarring on Thompson’s lungs, and that an
`
`MRI conducted to evaluate Thompson’s seizures “was normal.” First Notice at 1-2. Finally, the
`
`United States asserts that the BOP “has made substantial progress in vaccinating staff and
`
`Inmates.” First Notice at 2.
`
`
`
`In the Second Notice, the United States acknowledges that a recent change to the CDC’s
`
`guidance on COVID-19 indicates that sarcoidosis is now a “risk factor” for a severe COVID-19
`
`case. Second Notice at 1-2. Nevertheless, because Thompson declined the COVID-19 vaccine
`
`when it was offered to him, the United States argues, his medical issues do not present any
`
`extraordinary and compelling reasons meriting his release. See Second Notice at 2, 4-9. Courts
`
`largely have held, the United States contends, that an inmate’s refusal to take the COVID-19
`
`vaccination weighs against a finding that the inmate’s release is warranted. See Second Notice at
`
`4-9.
`
`4.
`
`The Hearing.
`
`
`
`At the hearing, Thompson argued that, as a forty-six-year-old man with significant
`
`comorbidities, the difficulty in taking care of himself while incarcerated coupled with COVID-
`
`
`
`
`- 11 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 12 of 59
`
`19’s particular danger to him, warrants his release. See Draft Transcript of January 31, 2022,
`
`Hearing at 4:2-8 (taken January 31, 2022)(“Tr.”)(Fox-Young).2 Thompson clarified that there
`
`was no dispute that he had exhausted his administrative remedies. See Tr. at 4:8-10 (Fox-Young).
`
`Thompson argued that the United States does not dispute that Thompson’s sarcoidosis,
`
`specifically, presents an extraordinary and compelling circumstance, but that the United States
`
`argues that Thompson is ineligible for release, because he refused the COVID-19 vaccination. See
`
`Tr. at 3:7-14 (Fox-Young). Despite that Thompson does not deny that he refused the vaccination,
`
`he argues that he is “legitimately fearful and skeptical about the [vaccine’s] potential
`
`complications,” and highlights that the vaccine is not entirely effective at preventing illness from
`
`COVID-19 nor “prevent[ing] severe outcomes for a lot of people, particularly people who have
`
`underlying conditions.” Tr. at 4:15-6:2 (Fox-Young). It is somewhat contradictory, Thompson
`
`identifies, that the United States argues that he is ineligible for release on the basis of his declining
`
`the COVID-19 vaccine, where, in other cases, the United States has argued that an inmate’s receipt
`
`of the vaccine is also a factor weighing against their release, because they are better protected from
`
`the virus. Tr. at 6:2-15 (Fox-Young)(“[I]t just cannot be that regardless of your vaccination status
`
`you’re no longer eligible for release simply by virtue of the fact that vaccines are available and out
`
`there.”). Regarding the 18 U.S.C. § 3553(a) factors, Thompson provides that his clear record
`
`during his incarceration and the fact that he has “availed himself of . . . more than 20 courses at
`
`the BOP including work towards his GED [and] completing drug education and non[-]residential
`
`
`2The Court’s citations to the draft transcript of the hearing refers to the court reporter’s
`original, unedited version. Any final transcript may contain slightly different page and/or line
`numbers.
`
`
`
`
`
`- 12 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 13 of 59
`
`drug treatment” compel his release. Tr. at 7:9-17 (Fox-Young). Thompson concluded that he has
`
`more than served the time to which he was sentenced, because of the difficult nature of serving
`
`time during the COVID-19 pandemic. See Tr. at 8:4-19 (Fox-Young).
`
`
`
`The United States responded that it is requesting that the Court deny the Motion on two
`
`independent grounds. See Tr. at 9:14-18 (Messec). First, the United States posited that
`
`“Thompson has not presented extraordinary or compelling [] reasons for his release,” because
`
`health issues and the “danger of contracting COVID” are insufficient where Thompson has
`
`declined the vaccine. Tr. at 9:19-10:1 (Messec). Despite that new variants have made COVID-19
`
`infections more likely even in those who have been vaccinated, the United States argued, nothing
`
`has changed regarding the fact that vaccination continues to help “prevent severe consequences []
`
`from a COVID-19 infection.” Tr. at 10:1-17 (Messec). Second, the United States “contends that
`
`the 3553(a) factors do not weigh in favor of Mr. Thompson’s release,” because Thompson still has
`
`a quarter of his sentence left and the seriousness of his criminal record and charged conduct
`
`compels his continued incarceration to “promot[e] respect for the law” and achieve the goals of
`
`“general and specific deterrence.” Tr. at 10:18-11:13 (Messec).
`
`
`
`Thompson replied briefly that he did not believe the record indicating that he had
`
`contracted COVID-19 was “reliable” enough for the Court to consider and represented that the
`
`BOP was not providing COVID-19 booster shots at its facilities. Tr. at 11:17-12:22 (Fox-Young).
`
`The Court agreed that Thompson has “some serious health problems,” but expressed that “the
`
`vaccine would reduce consider[]ably his risk [of] hospitalization and death” from COVID-19. Tr.
`
`at 13:2-10 (Court). The Court indicated that it is not clear whether Thompson would have better
`
`health outcomes outside prison than while incarcerated, particularly where the risk of contracting
`
`
`
`
`- 13 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 14 of 59
`
`COVID-19 in public remains. See Tr. at 13:12-16 (Court)(“He might be better off in prison with
`
`the health care that he gets and the attention that he gets . . . .”). The Court concluded that it was
`
`inclined to deny the Motion, because the Court did not believe that Thompson’s case presented
`
`extraordinary and compelling circumstances and agreed with the United States that the 18 U.S.C.
`
`§ 3553(a) factors weighed against Thompson’s release. Tr. at 13:22-14:9 (Court)(“I think to
`
`protect the public he need to finish out his term.”).
`
`The United States’ Third Notice of Factual and Legal Developments.
`
`5.
`
`The United States submitted the Third Notice shortly after the hearing on February 11,
`
`
`
`
`2022. See Third Notice at 1. In the Third Notice, the United States disputes Thompson’s
`
`contention at the hearing that booster shots are not widely available within the BOP. See Third
`
`Notice at 1. The United States provides that “the United States has consulted with BOP health
`
`officials responsible for facilities in Thompson’s region and has confirmed that booster shots are
`
`being offered to inmates,” and calls the Court’s attention to a study highlighting the effectiveness
`
`of COVID-19 booster shots. Third Notice at 1-2.
`
`LAW REGARDING THE GUIDELINES
`
`In United States v. Booker, 543 U.S. 220 (2005), the Supreme Court of the United States
`
`of America severed the mandatory provisions from the Sentencing Reform Act, Pub. L. No.
`
`98-473, 98 Stat. 1976, thus making Guidelines sentencing ranges effectively advisory. See United
`
`States v. Booker, 543 U.S. at 261. In excising the two sections, the Supreme Court left the
`
`remainder of the Sentencing Reform Act intact, including 18 U.S.C. § 3553: “Section 3553(a)
`
`remains in effect, and sets forth numerous factors that guide sentencing. Those factors in turn will
`
`guide appellate courts, as they have in the past, in determining whether a sentence is unreasonable.”
`
`
`
`
`- 14 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 15 of 59
`
`United States v. Booker, 543 U.S. at 261. Accordingly, even though the sentencing guidelines are
`
`not mandatory, courts must consult them for advice in arriving at an appropriate sentence. See
`
`Peugh v. United States, 569 U.S. 530, 541-42 (2013). The sentencing guidelines should provide
`
`a starting point for the court’s determination of a proper sentence. See Gall v. United States, 552
`
`U.S. 38, 50 n.6 (2007)(“[D]istrict courts must begin their analysis with the Guidelines and remain
`
`cognizant of them throughout the sentencing process.”); Peugh v. United States, 569 U.S. at 541
`
`(“The post-Booker federal sentencing scheme aims to achieve uniformity by ensuring that
`
`sentencing decisions are anchored by the Guidelines and that they remain a meaningful benchmark
`
`through the process of appellate review.”).
`
`Congress has directed sentencing courts to “impose a sentence sufficient, but not greater
`
`than necessary, to comply with” the four statutorily defined purposes enumerated in
`
`18 U.S.C. § 3553(a)(2):
`
`(A)
`to reflect the seriousness of the offense, to promote respect for the
`law, and to provide just punishment for the offense;
`
`(B)
`
`(C)
`
`to afford adequate deterrence to criminal conduct;
`
`to protect the public from further crimes of the defendant; and
`
`(D)
`to provide the defendant with needed educational or vocational
`training, medical care, or other correctional treatment in the most effective
`manner . . . .
`
`18 U.S.C. § 3553(a)(2)(A)-(D).
`
`[A] defendant who has been found guilty of an offense described in any Federal
`statute . . . shall be sentenced in accordance with the provisions of this chapter so
`as to achieve the purposes set forth in subparagraphs (A) through (D) of section
`3553(a)(2) to the extent that they are applicable in light of all the circumstances of
`the case.
`
`18 U.S.C. § 3551. To achieve these purposes, § 3553(a) directs sentencing courts to further
`
`
`
`
`- 15 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 16 of 59
`
`consider: (i) “the nature and circumstances of the offense,” as well as the defendant’s “history and
`
`characteristics”; (ii) the available sentences; (iii) the Guidelines; (iv) any pertinent Sentencing
`
`Commission policy statements in effect on the date of sentencing; (v) the policy favoring
`
`uniformity in sentences for defendants who commit similar crimes; and (vi) the need to provide
`
`restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).
`
`The United States Court of Appeals for the Tenth Circuit holds that, while the Guidelines
`
`are one of several factors which § 3553(a) enumerates, they are entitled to careful consideration.
`
`See United States v. Cage, 451 F.3d 585, 593 (10th Cir. 2006)(describing the Guidelines as more
`
`than “just one factor among many”). They are significant, because “the Guidelines are an
`
`expression of popular political will about sentencing that is entitled to due consideration . . . .”
`
`United States v. Cage, 451 F.3d at 593. A court’s careful consideration of the Guidelines is proper
`
`in light of the fact that “[t]he Guidelines as written reflect the fact that the Sentencing Commission
`
`examined tens of thousands of sentences and worked with the help of many others in the law
`
`enforcement community over a long period of time in an effort to fulfill [its] statutory mandate.”
`
`Rita v. United States, 551 U.S. 338, 349 (2007).
`
`“[A] sentence within the applicable Guidelines range is presumptively reasonable.” United
`
`States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006), overruled on other grounds by Rita v.
`
`United States, 551 U.S. at 349, as recognized in United States v. Zamora-Solorzano, 528 F.3d
`
`1247, 1251 n.3 (10th Cir. 2008). This presumption, however, is an appellate presumption, and not
`
`one that the trial court can or should apply. See Gall v. United States, 552 U.S. at 46-47;
`
`Kimbrough v. United States, 552 U.S. 85, 90-91 (2007); Rita v. United States, 551 U.S. at 351.
`
`Instead, the trial court must undertake the § 3553(a) balancing of factors without any presumption
`
`
`
`
`- 16 -
`
`

`

`Case 1:12-cr-03013-JB-CG Document 157 Filed 04/10/24 Page 17 of 59
`
`in favor of the advisory3 Guidelines sentence. See Rita v. United States, 551 U.S. at 351; Gall v.
`
`
`3Attorneys and courts often say that the Guidelines are advisory, but it is more accurate to
`say that the resulting Guidelines ranges are advisory. See Gall v. United States, 552 U.S. 38, 46
`(2007)(“As a result of our decision [in United States v. Booker], the Guidelines are now
`advisory . . . .”); United States v. Leroy, 298 F. App’x 711, 712 (10th Cir. 2008)(“[T]he Guidelines
`are advisory, not mandatory.”); United States v. Sells, 541 F.3d 1227, 1237 (10th Cir. 2008)(“[T]he
`sentence ultimately imposed by the district court was based on a correctly calculated Guidelines
`range, a stated consideration of the § 3553(a) factors, and an understanding that the Guidelines are
`advisory.”). The Court must consider the Guidelines, see Gall v. United States, 552 U.S. at 46 (“It
`is . . . clear that a district judge must give serious consideration to the extent of any departure from
`the Guidelines . . . .”), and must accurately calculate the Guidelines range, see Gall v. United
`States, 552 U.S. at 49 (“[A] district court should begin all sentencing proceedings by correctly
`calculating the applicable Guidelines range.”). The Court is not mandated to apply, however, a
`sentence within the calculated Guidelines range. See United States v. Sierra-Castillo, 405 F.3d
`932, 936 n.2 (10th Cir. 2005)(“[D]istrict courts post-Booker have discretion to assign sentences
`outsi