congenital heart defect as well as recent onset non alcohol related cirrhosis of the liver he is also incarcerated in the middle of a global pandemic the district court correctly concluded that those are compelling and extraordinary reasons that could justify mr kibbles compassionate release however the district court was incorrect in concluding that mr kimball's release would pose a danger to the community or would be inconsistent with the sentencing factors laid out in eighteen and fifty three dollars a the district court ultimately abused its discretion by denying mr kibbles motion for compassionate release and we've asked this court to reverse that decision in order mr kibbles release as soon as practic the district court's decision to deny mr kimmel release came down to two separate provisions the st was district court's conclusion that mr cain would be a danger to the public if he was released  that is not supported by the record in this case which shows that not only would mr kimball when he is released be supervised release and would be released to a stable home  campbell's medical medical condition as it relates to co that your honor what i am aware of with regards to that he did test positive at one point in this litigation but as far as i'm my understanding that while there is a plan within the bureau of prisons to provide vaccinations to inmates it's kind of hit or miss at this point like like it is out in the rest of the world and the current situation a sci help in which is where he is still incarcerated is that there are five inmates and thirty staff members who are currently affected with the with cove it there have been nine deaths at the vet institution b b granted compassionate release he has numerous special conditions that have been imposed including the requirement of mental health treatment requirement that he undergo a sex offender evaluation  circumstances so here's here's my question under your argument does if we have a covert outbreak in the prison does a district court have discretion to have a heightened risk or a certain level of risk at that point does the district court not have discretion no your honor i think the district court always has discretion based on the equities of any particular case i could conceive of a situation where you have someone with a condition similar to mr campbell but who is serving a life sentence pre press for a homicide in that case the question of releases it is a much different question because mr campbell is going to be released at some point it's a question of where i am and our position is both his his medical condition and also his the facts of his case should have led the the district court to the opposite conclusion let me ask one other question and i think appreciate your answer the government believe we have the authority to grant compassionate release for a certain period of time and in order or does a district court have this authority to grant relief for a certain period of time and in order to return to prison for the remaining of the sena us i am not aware of any courts they have decided that issue your honor what you're insistent about our position would be that the district court would not have that authority bets once they can once the releases done because you're going to have a situation where mr kimball would be on supervised release if he if you have problems on release are violated he could be revoked for the bass but if yours is released and six months or a year ago by who knows how long this is going to continue and he's performing well and supervised release it shows that the sentence that he actually served was the appropriate it's not completely gone but it's nowhere near the risk that you would posit it is now you know why would there be a restriction to allowing you to release for a period of time to the end income and that they return i think largely it would be a question of the equitable aspects of it in that you would have a person who would be released to the community and would be really interesting into the community who would then be through no necessary fault of their own like in a supervised release revocation b p put back him in prison i don't think three thousand five hundred and fifty three factors would support that because if you look at record supports the idea that mr gill has been deterred he was out in the community for up nearly a year without any issues if he were released and was again out in the community for six months a year without any issues when the main concern of the district court of supervision mr kimball will have for the next fifteen years and we also have leave the other finding of the district court at some saying that he was not a danger to the community so there's a conflict there and i think that finding is more supported by the t just a court may have said that he's not in danger to the community once he serves a long sentence but you know he's barely gotten started here and i can't say he will be a danger to others  with if that's the case it would be an unusual decision to leave him out on bond to self report for a month if he was a danger alternately it's a suggestion that what makes him dangerous is his term of  prisonment in which case that further mitigates against her towards cutting it short as soon as we could you know in other words he had been served enough of his time to make an impression on him that this is of imprisonment and it's not always a year's worth of imprisonment in a regular world but in a coded world i know keep coming back to that but it's hard to avoid time in prison during the pandemic has been harder than regular time to sell these have been locked down there's been no visitation replaces programming has been cut back and so mr cable has been subject to life has pretty much been completely up ended by this and it seems like the message got through to him because in all that time on bond there's no evidence that he was sarah fisher slee going back on the internet that he say that he will remain one sample and we get to a phase that is considered to be as close to normal full of scientific public health standpoint for i simply think that a situation well what about when they ask you to give up on your main point the article was just asking you do you and it was a question was the afford to do obscene you know you don't want that but the question was   under the statute i'm just not certain your honor that without its being specifically laid out in the statute that it's thirty the district court would have i'm not certain that it is not but i  that authority doesn't exists pretty can have a kinda say in a temporary situation like we have here is not contemplated by the compassionate release stat amat think that's a you know quite frankly i think that's a fairly dangerous position the advocate nama undermines whether code could be even the basis for i don't think so you want to get i think  thank your honor may i please the court the district court did not abuse its discretion in the naing compassionate release for this defendant the basis of this denial was the section thirty five of three factors which the st step act specifically calls out as something that must be considered in addition to those extraordinary police circumstances to determine if release is appropriate the court's bases were the egregious nature  the offense which had just been articulated by the court at the sentencing a few months prior the minimal portion of the sentence that the defendant had served and importantly not so much the need for specific deterrence mr campbell but the importance of general deterrence and that's also laid out in his order with regard to the length of this sentence the district court had a very valid concern that a roughly ninety percent reduction in his sentence at the time that he denied this would undermine just punishment it would undermine the reflection of the seriousness of the fence it would undermine the general deterrence that he was so concerned with at the initial sentencing only a few months prior and it could create unwarranted sentencing disparities and the court reasonably took into account the fact that this particular defendant had already tested positive for coven given that the entire argument for compassionate release is to avoid exposure to cope it in a prison situation when you have the kind of high risk factors that the defendant does have that is substantially reduced as a concern when they have already contracted it d and to this day the understanding is that re infection is fairly unlikely and were also to point where vaccines are rolling out in the p another factor you look at is the nature of the risk in that particular facility and as mr burns pointed out elkton currently has only five inmates that have active cases so details when he comes back to her about this but it is a large number of individuals at that facility and only five of them are currently active with infections of cove it it seems that staff is actually much more at risk in that facility right now than  people but more likely to someone who are both sides he was far is the science i don't know that any one person contracting it means that they have a predisposition to contract it but also along those lines w also argue that he apparently has a predisposition to be able to fight it off with his own body because he contracted it and never had any symptoms so that could also be an argument that he seems to have a natural immunity that other people do not have despite his medical conditions but again even with these issues those who are up for debate but what the court based on the court didn't argue that he was not did not have this extraordinary compelling circumstances based on general deterrence effect and the nature of the offense and his concerns about this individual's release into the community well you must admit to me i think you would admit there mr burns point is assuming to i don't think they're completely they are inconsistent with each other necessarily in particular to the point that the other three thousand five hundred and fifty three dollars act factors will be overridden but just to point out the specifics with regard to his relea agreement but further when he asked for the united states position united states had spoken with defense counsel and mr kimball was scheduled to have a surgery in the time between the plea hearing and the sentencing and that surgery would have been  able to be completed had he been remanded to the regional jail during the time between his plea and his sentencing so because of that the united states opted to find that that was a circumstance that would warrant his release on the restrictive electronic monitoring conditions that he was under at the time and given the short period of time for self report i think the court at sentencing simply said you've been on this for a long time i'm going to give this additional month before you report it took his one leg only three lives to one about post conviction post conviction your honor i think he looked at it as i'm giving you a very firm or court date that is a month out his sentencing the court did not make an adjudication at his plea hearing it withheld that heaven and a ban some till the sentencing and the time period between when he was a judge guilty at the sentencing hearing and support was thirty days  and again that time period between the clear hearing and the sentencing is when he had that surgery and that surgery was what was considered the specific reason that he was really a louse for made on that bond so i think that those specific circumstances undercut an argument that he can't be found dangerous now because he was allowed to remain on a what tronic home confinement during his the pendency of his case following u primary driving factor at their original sentencing he specifically a state of sensing that this case cried out for a sentence at the top end of the guidelines to allow for maximum deterrent effect and in that context he was speaking about general the tourettes not just punishment it would undermine a reflection of the seriousness of the offense and it would a dish and only create unwarranted sentencing disparities between individuals who engaged in similar conduct and who were serving many years for the defendant to get out after serving only a few months the court felt would create those unwarranted disparities under section three thousand five hundred and fifty three dollars a and these are all reasonable bases for this conclusion and the standard here is abuse of discretion and essentially record having met the defendant having participated in this case to find that the other three thousand five hundred and fifty three factors outweigh the danger there's nothing in the record to suggest that the court did not find that there was a concern about that at sci open and there was never a question whether the defendant had these qualify medical conditions so the court did not in appropriately nor those it simply found based on the reasons it's articulated that those factors were outweighed by other reasonable three thousand five hundred and fifty three factors and the fact that others may disagree in the balance which is what is argued by the defendant does not render the court's decision an abuse of its discretion too far weighing on only one the judge looked at literally all of the other factors he named four or five additional factors beyond that situation at the prison and the defense medical circumstances outweighing that so this wasn't something where the judge relied on one factor and decided that one factor alone a way it looked at a number of different factors and that is not an inappropriate single focus on one factor arguing that there is a a bright line rule of you have to serve this percentage the court is correct that's not articulated in the st step but in this particular circumstance the court found that this the offense itself the conduct of this defendant gauged in importance of general deterrence importance of reflecting the seriousness of the offense simply could not be satisfied by serving only ten percent of the sentence policy factors that could be interpreted arguably the th amendment could be a factor and that but obviously the th amendment itself has very high standards for what actually would constitute cruel and unusual punishment so i think that there would be a heavy burden to establish that cove it alone in a prison situation constituted crawling usual punishment particularly since covert exists outside the prison facilities as well and i think this is a very unique circumstance obviously the court in a status thing looking to policy could look too many different factors so i don't mean that i think that necessarily would preclude looking to the th amendment but i do not think that in most cases that would be something that would be reached on an individual basis as a reason to is it appropriate to look at the risk of covidien the situation to which the defendant would be released i think that is a factor that is appropriate your honor to look in some situations there have been cases where a prison facility that a particular defendant is in has very low rates and they were requesting to be released to say a a residential halfway house that had in and out traffic regularly in a community that had a high level of community spread which arguably would be a greater risk in the present self however it's one of those factors that has to be viewed very cautiously because just like the situation in prison the situation now the president's going to be very fluid and pace that could be a residence that might at this point be safe or could easily become more dangerous as the prison gets under control and that community has community spread so  it specially given the temporary hopefully nature of this pandemic that is a consideration i don't think the court will be prohibited from making but i think it has to be taken with great caution honor and to begin i'm happy to admit when i'm wrong and i want to put point the court on the issue of the district court's ability to do something other than order complete release i want to point the court to united states st is legan which is eighteen c r two hundred and eighty three docket number ninety one it's in the northern district of new york two thousand and twenty and in that case d the cour held and has met citations to other courts that have also held that the statute allows only for release not a temporary placing back into the community that would any and when situation is i don't think we can assume that because mr kimball got a positive test and didn't get sick but he's a mean and indeed in the government's brief they didn't take issue with the district court's conclusion of extraordinary compelling