1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS, 

EASTERN DIVISION

UNITED STATES OF AMERICA )

) 12 CR 459 

) (20 CV 01792)

v. )

)

) Hon. Judge Gary Feinerman

JOSEPH MARIO MORENO ) 

DEFENDANT MORENO’S EMERGENCY MOTION FOR 

COMPASSIONATE RELEASE OR RECOMMENDATION FOR 

IMMEDIATE HOME CONFINEMENT

JOSEPH MARIO MORENO, by and through his attorney RICHARD KLING, and

Illinois Supreme Court Rule 711-Certified Law Student BENJAMIN JAMBOIS, respectfully 

moves this Court to grant his motion for compassionate release under the First Step Act, 18 

U.S.C. § 3852(c)(1)(A)(i), or in the alternative, a recommendation to the BOP that he be 

transferred to home confinement immediately pursuant to § 12003(b)(2) of the CARES Act and 

18 U.S.C. § 3621(b)(4). In this case, there are extraordinary and compelling reasons to grant 

relief because Mr. Moreno’s advanced age—67 years old—and serious health conditions (a long 

history of hypertension, anemia, cancerous tumors, glaucoma, and complications from prior 

contraction of tuberculosis and polio and cigarette smoking for 40 plus years) mean that he faces 

a significant risk of death or serious injury from COVID-19. 
2

Mr. Moreno is classified by the Bureau of Prisons as “Chronic Care Level II”, due to 

significant hypertension, diabetes, and glaucoma problems.1 The medical team at Mr. Moreno’s 

facility has been unable to successfully manage his myriad of illnesses which substantially 

diminishes his ability to function within the correctional facility. Based on his age and his health 

conditions, the Centers for Disease Control calculates that Mr. Moreno is in the highest 

possible risk group for serious complications or death, should he get infected with COVID19.2

If this Court granted compassionate release, Mr. Moreno would pose no danger to the 

community at large. Mr. Moreno is a nonviolent, first-time offender, who is currently serving a 

sentence for one count of conspiracy to commit extortion. At present, Mr. Moreno is at FPC

Duluth, which is a minimum security camp. The BOP has rated Mr. Moreno as representing a 

“minimal” risk of recidivism, which is the lowest possible level on their scale. See Exh. A, FPC

Duluth First Step Act Eligibility and Recidivism Risk Level Review.

Accordingly, Mr. Moreno requests that this Court grant him compassionate release under 

18 U.S.C. § 3582(c)(1)(A)(i), because his serious health conditions and vulnerability to COVID19 infection are “extraordinary and compelling reasons” that support a reduction in his sentence.

BACKGROUND

I. Factual and Procedural History

On February 24, 2014, Mr. Moreno was sentenced to 132 months in prison after pleading 

guilty to one count of conspiracy to commit extortion. At present, he has been in custody for

more than 60 months. See Exh. B, Summary Reentry Plan at 1-3. Accounting for an extra 9.9 

 

1 https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf

2 People Who Are at Higher Risk, Ctr. for Disease Control & Prevention, Apr. 7, 2020, 

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html.
3

months of good time credit, he has served approximately fifty-three percent (53%) of his 

sentence. According to his Individualized Reentry Plan, the Bureau of Prisons currently 

expects to release Mr. Moreno on January 1, 2024. Given the COVID-19 crisis in the BOP, 

Attorney General William J. Barr has relaxed home confinement eligibility and, as a result, 

Mr. Moreno is eligible for immediate release to home confinement. 

This motion does not seek to challenge, in any way, the original sentencing decision made 

by this Court. Although the Court imposed a significant sentence in Mr. Moreno’s case, there is 

no indication that the Court intended to impose a death sentence. Given Mr. Moreno’s age and 

his increased vulnerability to COVID-19, the defense believes that the ends of justice in this case 

would be best achieved by allowing Mr. Moreno to return home, rather than requiring him to 

run the risk of death or serious illness while in BOP custody.

In considering whether to grant Mr. Moreno compassionate release, the Court should 

consider the progress that he has made since sentencing occurred over six years ago. Mr. Moreno 

has been a model inmate. He has actively participated in the camp’s inmate education program 

and has taken approximately 75 educational courses, including several that specifically focus on

reentry skills. See Exh. B, Summary Reentry Plan at 1-3. More importantly, Mr. Moreno has 

taught several classes for over three years, including. Toastmasters International (public 

speaking), Health and Nutrition, Positive Mental Attitude, History of the Ancient World, Life 

Lessons from the Great Books, Astrophysics and Cosmology, Drivers License Workshops, and 

Goal Setting, as well as assisting Spanish-speaking residents in reading and speaking. See Exh. 

B, Summary Reentry Plan at 1.

Mr. Moreno has also taken jobs in the facility’s kitchen and law library. Currently, he 

works in the facility as a Compound Orderly and in the Recreation Department. His re-entry 
4

plan states that “inmate Moreno has consistently earned average and above average work 

evaluations during this period of incarceration.” See Exh. B, Summary Reentry Plan at 1. The 

re-entry plan goes on to state that Mr. Moreno has gained employable work skills through his 

employment in the Recreation department of the facility. Mr. Moreno has continuously made 

voluntary contributions through the BOP’s inmate financial responsibility program. See Exh. B, 

Summary Reentry Plan at 4. He has paid the full $142,000 of his restitution despite having to 

file for bankruptcy. See Exh. B, Summary Reentry Plan at 4. In all, Mr. Moreno’s prison record 

reflects the fact that he has worked hard to rehabilitate himself and to prepare to lead a successful 

and law-abiding life. 

Immediate release is all the more appropriate because this offense occurred nearly eight

years ago when Mr. Moreno was a Cook County Commissioner. Mr. Moreno will never be able 

to hold any type of public office again, or practice law. All of the circumstances of Mr. Moreno’s 

life at the time of the offense and his behavior since, lower his risk of reoffending under § 

3582(c)(1)(A)(ii). 

II. Mr. Moreno’s Age and Health Problems Place Him at High Risk for Death from 

COVID-19.

To prevent Mr. Moreno’s sentence for conspiracy to commit extortion from becoming a 

death sentence, he respectfully requests this Court to immediately enter an order reducing his 

sentence to time served. Mr. Moreno faces a significantly heightened risk of a serious or fatal 

COVID-19 infection on account of his age alone. In the United States, 80% of reported deaths 
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from COVID-19 have been in adults who are age 65 or older.3 A recent study in New 

York found that—even without considering other risk factors—more than one third of men in 

Mr. Moreno’s age group die of COVID-19 after being admitted to the hospital. Older adults are 

also far more likely to be hospitalized in the first place.4 The Centers for Disease Control and 

Prevention (CDC) estimates that 31–59% of adults ages 65–84 with COVID-19 will require 

hospitalization and a significant portion will require intensive care.5 The Intensive Care 

National Audit and Research Centre in London reports that 56.4% of those between the ages of 

60-69 admitted to the ICU as a result of COVID-19 died there.6

While those numbers are stark, Mr. Moreno’s risk is even greater than that of a typical 

person his age because he suffers from a number of preexisting health conditions that are

associated with particularly severe COVID-19 infections. For one, Mr. Moreno is diagnosed 

with hypertension and currently takes nine (9) medications to manage his various degenerative 

age related problems. There is a medical consensus that “[p]eople with cardiovascular disease 

face more life-threatening complications and a substantially higher risk of death from the new 

coronavirus.”7 

These risks are particularly acute for Mr. Moreno, because the BOP has already proven

incapable of successfully managing his hypertension. At present, the BOP classifies Mr. 

Moreno as Chronic Care Level II because his hypertension, glaucoma, diabetes, and nine 

 

3 Older Adults, Ctr. for Disease Control & Prevention, Apr. 7, 2020, 

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.

4

Id.

5

Id.

6

ICNARC Report on COVID-19 in Critical Care, ICNARC, Apr. 10, 2020, https://tinyurl.com/smfm6zf.

7 Betsy McKay, Heart Conditions Prove Especially Dangerous for COVID-19 Patients, The Wall Street 

Journal, Apr. 12, 2020, www.wsj.com/amp/articles/heart-conditions-prove-especially-dangerous-forcovid-19-patients11586683801 (noting that even mild cases of hypertension can increase risk)
6

separate medications needed to manage his comorbidity of conditions.8In Mr. Moreno’s case, 

too, the presence of multiple risk factors means that he is at far greater risk than are people who 

only have a single condition.

III. Mr. Moreno Has a Solid Release Plan That Will Protect His Health And

Ensure the Safety of the Community.

If released from custody, Mr. Moreno would live with his sister in-law at 5224 S. Mayfield 

Ave. in Chicago, Illinois. There will be no other people living in the home besides Mr. Moreno 

and his sister-in-law. The Probation Department has done an inspection on this residence and 

determined it to be suitable. Mr. Moreno has a thorough plan to financially support himself. He 

plans to collect social security payments and work at a job helping people get their driver's 

licenses reinstated. 

ARGUMENT

Mr. Moreno meets the criteria for compassionate release because his age and medical 

conditions mean that he is highly vulnerable to COVID-19. Releasing him will not only 

potentially save his life, but will also protect the inmates and staff at FPC Duluth as well as the 

broader community. “When officers and staff members who work in prisons get infected, they 

will bring the virus home to their families.”9 A chorus of public health experts have confirmed 

that releasing more “people will protect the community from COVID-19: “We must protect 

public safety. But, today, there is no greater threat to public safety than the coronavirus.”10

 

8 https://www.bop.gov/resources/pdfs/care_level_classification_guide.pdf

9 Mary Bassett et al., Andrew Cuomo, Stop a Coronavirus Disaster: Release People from Prison, NY 

Times, Mar. 30, 2020, https://www.nytimes.com/2020/03/30/opinion/nyc-prison-release- covid.html.

10 Id.; see also Letter from the Justice Collaborative to Donald J. Trump, President of the United States, 

Mar. 27, 2020, https://thejusticecollaborative.com/wp-content/uploads/2020/03/Public- Health-ExpertLetter-to-Trump.pdf (“[W]e ask that you commute sentences for all elderly people.... [O]lder people are at 
7

I. This Court Should Grant Mr. Moreno Compassionate Release and Reduce His 

Sentence Pursuant to the First Step Act

In 2018, the First Step Act modified the compassionate release statute to end the BOP’s 

gatekeeping function and to allow inmates to directly file compassionate release motions in

certain circumstances. See 18 U.S.C. § 3582(c)(1)(A)(i). Under the First Step Act, the Court may 

grant an inmate’s motion for a sentencing reduction if three requirements have been satisfied. 

First, the Court must determine either that (a) 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 that (b) 30 days have elapsed since the receipt of such a request by the 

warden of the defendant’s facility. Id. Second, the Court must determine that “extraordinary and 

compelling reasons warrant such a reduction...and that such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 

3582(c)(1)(A)(i). Third, the Court may reduce a defendant’s sentence after determining that the 

reduction is consistent with the sentencing factors outlined in 18 U.S.C. § 3553(a). Id.

A. Mr. Moreno has satisfied the exhaustion requirement because more 30 days have 

passed since he first submitted a request for Compassionate Release to the Warden 

of FPC Duluth, and his request was denied.

Even before COVID-19 presented a significant threat to his health, Mr. Moreno submitted 

a compassionate release request to the warden of FPC Duluth on February 23, 2019. See Exh. 

C, Mr. Moreno’s Request for Compassionate Release. His application was forwarded to the 

Central Office on March 13, 2019. See Exh. D, Warden Review. His application was ultimately 

denied on July 15, 2019. See Exh. E, Office of the General Counsel Denial. He again made a 

 

a higher risk of getting severe COVID-19 disease and dying.... Also, older people who are released from 

prison pose little risk to public safety.”).
8

request for compassionate release. Under the statute, because 30 days have lapsed since the 

warden received and denied Mr. Moreno’s request and the Bureau of Prisons has not filed a 

compassionate release motion on Mr. Moreno’s behalf, Mr. Moreno is entitled to pursue 

compassionate release in this Court. See 18 U.S.C. § 3582(c)(1)(A) (the Court may rule on 

compassionate release “upon motion of the defendant after...the lapse of 30 days from the 

receipt of such a request by the warden of the defendant’s facility”). 

B. Mr. Moreno is eligible for compassionate release because his heightened 

vulnerability to COVID-19 is an extraordinary and compelling circumstance that 

weighs in favor of immediate release.

As Mr. Moreno has satisfied the exhaustion requirement, the First Step Act empowers this 

Court to make an independent determination as to whether there are “extraordinary and

compelling reasons” for compassionate release. The Court is no longer required to defer to the 

BOP’s determination of whether such circumstances exist. See, e.g., United States v. Ebbers, 

2020 WL 91399, at *4 n.6 (S.D.N.Y. Jan. 8, 2020) (“[T]he First Step Act reduced the BOP’s 

control over compassionate release and vested greater discretion with courts. Deferring to the 

BOP would seem to frustrate that purpose.”); United States v. Cantu, 2019 WL 2498923, at *3-

4 (S.D. Tex. June 17, 2019) (same).

Rather than deferring to the BOP, the First Step Act directed courts to consider whether 

the reduction is “consistent with applicable policy statements issued by the Sentencing 

Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). As a number of courts have noted, the Sentencing 

Commission has not issued any applicable policy statements since the passage of the First Step 

Act. See, e.g., United States V. Beck, 2019 WL 2716505, at *5–6 (M.D.N.C. June 28, 2019) (“By 

its terms, the old policy statement applies to motions for compassionate release filed by the BOP 

Director and makes no mention of motions filed by defendants.”). Nevertheless, courts have 
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found that the old policy statement provides helpful guidance in determining whether a 

defendant is eligible for compassionate release. See id.; United States v. Ebbers, No.

S402CR11443VEC, 2020 WL 91399, at *4 (S.D.N.Y. Jan. 8, 2020).

The old policy statement issued by the Sentencing Commission listed four conditions that 

would constitute “extraordinary and compelling reasons” to reduce a sentence. U.S.S.G. 

§ 1B1.13 cmt. n.1(A)-(D). While the first three conditions set out precise criteria for eligibility, 

the Sentencing Commission recognized the limits of that mechanical approach and included a

“catch-all” provision designed to cover “an extraordinary and compelling reason other than, or 

in combination with, the reasons described in subdivisions (A) through (C).” U.S.S.G. § 1B1.13 

cmt. n.1(D).

Since the passage of the First Step Act, courts have found that they may rely on this “catchall” provision to determine eligibility, even in cases where the BOP has made no determination 

regarding an inmate’s eligibility for compassionate release. See, e.g., United States v. Reyes, 

No. 04 CR 970, 2020 WL 1663129, at *2 (N.D. Ill. Apr. 3, 2020) (Leinenweber, J.)(granting 

compassionate release motion under the catch-all provision in the absence of any BOP finding 

regarding eligibility); United States v. Owens, No. 97-CR-2546-CAB, ECF No. 93 at 4 (S.D. 

Cal. Mar. 20, 2020) (“In the wake of the First Step Act, numerous courts have recognized the 

court can determine whether extraordinary and compelling reasons exist to modify a 

sentence—and may do so under the ‘catch all’ provision similar to that recognized in U.S.S.G. 

Manual § 1B1.13 n.1(D). . . .”) (collecting cases); United States v. Redd, No. 1:97-cr-0006-

AJT, 2020 WL 1248493, at *8 (E.D. Va. Mar. 16, 2020) (“[T]he Court joins other courts in 

concluding that a court may find, independent of any motion, determination or recommendation 

by the BOP Director, that extraordinary and compelling reasons exist based on facts and 

circumstances other than those set forth in U.S.S.G. § 1B1.13 cmt. n.1(A)- (C)...”). As a result, 

the policy statement in the Sentencing Guidelines does not prevent this Court from making an 
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independent determination that the COVID-19 pandemic is an extraordinary and compelling 

reason justifying early release.

i. COVID-19’s rapid spread through the BOP system is an 

unprecedented public health crisis.

As of April 30, 2020, 1,031,659 people in the United States had been diagnosed with 

COVID-19 and 60,057 people have died of the disease.11 The COVID-19 death toll includes at 

least 34 federal inmates.12 The President of the United States has declared that the pandemic is 

a national emergency and has issued guidance advising everyone in the United States to “work 

or engage in schooling from home whenever possible” and to “avoid social gatherings in 

groups of more than 10 people.”13 Prisons and jails are especially susceptible to the rapid spread 

of coronavirus.14 Despite the BOP’s efforts to limit the spread of COVID-19, the virus 

continues to spread rapidly throughout BOP facilities. As of April 30, 2020, the BOP has 

confirmed that 1,692 federal inmates and 349 BOP staff have tested positive for COVID-19. 15

Even these numbers are likely a drastic undercount of the extent of the infection. Wilson v. 

Williams, 20-CV-794 (N.D. Ohio Apr. 22, 2020) (ECF 22 at 3) (“it is unlikely that these figures

represent the actual number of cases at the institution, given the paltry number of tests the federal

government has made available for the testing of Elkton’s inmates”)

 

11 Coronavirus in the U.S.: Latest Map and Case Count, The New York Times, Apr. 27, 2020, 

https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html.

12 COVID-19 Coronavirus page, Federal Bureau of Prisons, 

https://www.bop.gov/coronavirus/index.jsp. 

13 The President’s Coronavirus Guidelines for America, Mar. 16, 2020, https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus- guidance_8.5x11_315PM.pdf

14 Joseph A. Bick, Infection Control in Jails and Prisons, 44 Clinical Infectious Diseases 1047, 1055 

(2007) at https://academic.oup.com/cid/article/45/8/1047/344842 (noting that in jails “[t]he probability of 

transmission of potentially pathogenic organisms is increased by crowding, delays in medical evaluation

and treatment, rationed access to soap, water, and clean laundry, [and] insufficient infection-control 

expertise”)

15 COVID-19 Coronavirus Page, Federal Bureau of Prisons, Apr. 30, 2020, 

https://www.bop.gov/coronavirus/index.jsp.
11

ii. FPC Duluth has failed to take adequate steps to slow or prevent

COVID-19 spread.

At present, although there are no confirmed coronavirus cases at FPC Duluth, as judges in 

this district have already noted, “the fact that there have been no confirmed cases of coronavirus

diseases at [a BOP facility] . . . is not the same as saying that the institution is coronavirus-free or 

that there is no risk to [the defendant].” United States v. Manning, 15-cr-50007 (N.D. Ill. Apr. 20, 

2020) (Kennelly, J.) (ECF 90 at 3). Other prisons around Minnesota have already begun to face 

coronavirus outbreaks.16 The BOP’s Residential Reentry Center in Minneapolis just announced 

three COVID-19 cases on April 23, 2020. 17Furthermore, according to the Minnesota Department 

of Health’s latest state specific COVID-19 modelling, the state is not expected to hit peak cases 

until July 13. 18

Mr. Moreno’s current living situation demonstrates that the protective measures being 

taken by FPC Duluth are inadequate to prevent COVID-19 from emerging in the facility. Mr. 

Moreno is currently housed in a 225 square foot cell with three other people. Meals are still eaten 

communally and computers and phones are not sanitized or wiped down between uses by different 

inmates. Under these circumstances, the further spread of COVID-19 is a virtual certainty. 

While FPC Duluth claims to be taking measures to “quarantine” symptomatic inmates, 

courts have already found similar “quarantine” measures at other institutions to be ineffective. 

 

16 Liz Sawyer, As COVID-19 Spreads, Pressure Mounts to Release Nonviolent, Vulnerable 

Prisoners in Minnesota, Star Tribune, Apr. 14, 2020, https://www.startribune.com/ascoronavirus-spreads-pressure-mounts-to-release-nonviolent- vulnerable-prisoners/569447792/ 

(noting outbreaks at Red Wing juvenile facility and at Moose Lake Prison, which is only fifty 

miles from Mr. Moreno’s facility in Duluth). 

17 COVID-19 Coronavirus Page, Federal Bureau of Prisons, 

https://www.bop.gov/coronavirus/index.jsp. 

18 Stefan Gildemeister, Eva Enn, Shalini Kulasingam, Minnesota Department of Health, 

SARS-CoV-2 (COVID-19) Modeling, Apr. 16, 2020, 

https://mn.gov/covid19/assets/MNmodel_PPT_tcm1148-427787.pdf, at 13 (noting that the state 

expects to experience 22,000 deaths from the crisis).
12

Wilson v. Williams, 20-cv-794 (N.D. Ohio Apr. 22, 2020) (ECF 22 at 2-4) (describing Elkton’s 

modified operation plan and concluding that such steps are insufficient to stop further spread of 

COVID-19); see also United States v. Scparta, No. 18-CR-578 (AJN), 2020 WL 1910481, at *1 

(S.D.N.Y. Apr. 20, 2020) (finding that so-called “quarantine” will be ineffective because

defendant “is housed with many other people in conditions that will inevitably permit the virus to 

spread.”). Given FPC Duluth’s remote location in northern Minnesota, an outbreak of the disease 

would be particularly dangerous there.19

iii. Given Mr. Moreno’s age and poor health, this public health crisis is an

extraordinary and compelling reason justifying compassionate release.

Health statistics show that contracting COVID-19 would quite possibly be a death 

sentence for Mr. Moreno.20 His age alone puts him at significant risk and, as discussed above, 

Mr. Moreno’s risk is further heightened by his hypertension and diabetes. See supra at 4-6. And, 

as great as the risk Mr. Moreno faces would be under normal circumstances, in prison he cannot 

practice social distancing or proper hygiene. Similarly, his ability to go to a hospital or get tested 

(and treated) early is curtailed by the very fact of him being in custody. As a result, Mr. Moreno 

is at a far greater risk of death or serious injury than he would be if he were released from 

custody.21

In comparable cases involving elderly and vulnerable defendants, courts have found that 

the COVID-19 pandemic is an extraordinary and compelling reason justifying a sentence 

 

19 Paul John Scott, New Data Puts Minnesota Coronavirus Peak in Summer, with Supplies 

Uncertain, Duluth News Tribune, Apr. 8, 2020 (noting state health commissioner’s concerns 

regarding “smaller number of hospital beds and other resources in rural Minnesota”)

20 Safiya Richardson, Jamie S. Hirsch, Mangala Narasimhan, James M. Crawford, Thomas

McGinn, Karina W. Davidson, Presenting Characteristics, Comorbidities, and Outcomes Among

5,700 Patients Hospitalized With COVID-19 in the New Yor kCity Area, Journal of the American

Medical Association, Apr.22, 2020, https://jamanetwork.com/journals/jama/fullarticle/2765184.

21 Centers for Disease Control, FAQs for Administrators, Staff, Incarcerated People & Family Members, 

Mar. 28, 2020, https://www.cdc.gov/coronavirus/2019-ncov/community/correction- detention/faq.html. 

(“People in correctional and detention facilities are at greater risk for illnesses, such as COVID-19 

because of their close living arrangement wit hother people.”)
13

reduction.22 In one recent case, a district court granted the defendant compassionate relief 

because he had served about 50% of his sentence for non-violent, financial offenses and because 

he was at significant risk of serious infection. United States v. Edwards, No. 6:17-CR-00003, 

2020 WL 1650406, at *6 (W.D. Va. Apr. 2, 2020) (finding extraordinary and compelling reason 

for compassionate release because “[d]efendant has made a particularized showing that he is

susceptible to contracting COVID-19, and that he is at high risk if he contracts it.”). The Court 

should make a similar finding here. Also See United States v. Tomlinson, 17-cr-773 (N.D. Ill. Apr. 

28, 2020) (Pallmeyer, J.); see also United States v. Thompson, 15-cr-448 (N.D. Ill. Apr. 17, 2020) 

(Dow, J.).

IV. The 3553(a) factors weigh in favor of Mr. Moreno’s immediate release.

 

22 See, e.g., United States v. Hernandez, No. 18-cr-20474, R. 41 (S.D. Fla. Apr. 2, 2020) (granting

unopposed motion for compassionate release for defendant with cancer and immunosuppression and just 

under 12 months left to serve on 39 month sentence); Rodriguez, 2020 WL 1627331 (granting release 

after finding risk factors for COVID-19 constitute extraordinary and compelling reason and noting that 

prisons are “tinderboxes for infectious disease”); United States v. Gonzalez, No. 2:18-cr-232-TOR, R. 834 

(E.D. Wash. Mar. 31, 2020) (releasing defendant one month into a 10 month sentence in light of medical 

issues; ordinarily these conditions would be manageable but “these are not ordinary times”); United States 

v. Marin, No. 15-cr-252, R. 1326 (E.D.N.Y. Mar. 30, 2020) (“[F]or the reasons stated in his motion, 

including his advanced age, significantly deteriorating health, elevated risk of dire health consequences 

due to the current COVID-19 outbreak, status as a non-violent offender, and service of 80% of his 

original sentence.”); United States v. Muniz, Case No. 4:09-cr-199, R. 578 (S.D. Tex. Mar. 30, 2020)

(releasing defendant serving 188-month sentence for drug conspiracy in light of vulnerability to COVID19: “[W]hile the Court is aware of the measures taken by the Federal Bureau of Prisons, news reports of 

the virus’s spread in detention centers within the United States and beyond our borders in China and Iran 

demonstrate that individuals housed within our prison systems nonetheless remain particularly vulnerable 

to infection.”); United States v. Bolston, Case No. 1:18-cr-382-MLB, R. 20 (N.D. Ga. Mar. 30, 2020)

(releasing defendant in part because “the danger inherent in his continued incarceration at the R.A. 

Deyton Detention Facility . . . during the COVID-19 outbreak justif[y] his immediate release from 

custody”); United States v. Powell, No. 1:94-cr-316-ESH, R. 98 (D.D.C. Mar. 28, 2020) (granting 

unopposed motion for compassionate release in light of COVID-19 and finding it “would be futile” to 

require defendant to first exhaust in light of open misdemeanor case); United States v. Campagna, 2020 

WL 1489829 (S.D.N.Y. Mar. 27, 2020) (compassionate release grant); United States v. Barkman, 2020 

U.S. Dist. LEXIS 45628 (D. Nev. Mar. 17, 2020) (suspending intermittent confinement because “[t]here 

is a pandemic that poses a direct risk if Mr. Barkman . . . is admitted to the inmate population of the 

Wahoe County Detention Facility”).
14

The § 3553(a) factors weigh in favor of releasing Mr. Moreno immediately. See

18 U.S.C. § 3582(c)(1)(A) (directing the court to “consider the sentencing factors set forth in 

section 3553(a) to the extent that they are applicable.”); see also U.S.S.G. § 1B1.13(2) (advisory 

guideline suggesting one factor weighing in favor of compassionate release is that “the defendant 

is not a danger to the safety of any other person or to the community”).

As a non-violent, first time offender, the “benefits of keeping him in prison for the

remainder of his sentence are minimal, and the potential consequences of doing so are

extraordinarily grave.” United States v. Perez, No. 17 CR. 513-3 (AT), 2020 WL 1546422, at *4 

(S.D.N.Y. Apr. 1, 2020). Especially in light of the danger Mr. Moreno faces if he remains in 

custody, the time that he has already served is sufficient “to reflect the seriousness of the offense, 

to promote respect for the law, and to provide just punishment for the offense” under § 

3553(a)(2)(A). See, e.g., United States v. Rodriguez, 2020 WL 1627331, at *12 (E.D. Pa. Apr. 1, 

2020) (finding § 3553(a)(2)(A) satisfied for the purposes of compassionate release after the 

defendant served the majority of his prison sentence). The “just punishment” factor is especially 

important under these highly unusual circumstances. When the Court sentenced Mr. Moreno, 

surely “the Court did not intend for that sentence to ‘include incurring a great and unforeseen 

risk of severe illness or death’ brought on by a global pandemic.” Zukerman, 2020 WL 1659880, 

at *6; see also United States v. Wurzinger, 467 F.3d 649, 652 (7th Cir. 2006) (“There is a worthy 

tradition that death in prison is not to be ordered lightly, and the probability that a convict will 

not live out his sentence should certainly give pause to a sentencing court.”).

Keeping Mr. Moreno locked up is also not necessary “to protect the public from further 

crimes” under § 3553(a)(2)(C). As the BOP has already recognized, Mr. Moreno’s individual 

risk of recidivism is minimal. See Exh. A, FPC Duluth First Step Act Eligibility and Recidivism 

Risk Level Review.
15

Finally, the Court should consider that Mr. Moreno’s age renders him a very low risk of 

recidivism under § 3553(a)(2)(C). The Sentencing Commission finds that fully 93.5% of people 

age 65 or older do not commit new offenses after release.23 Sentencing Commission studies 

further indicate these low recidivism rates hold constant regardless of whether someone 

served their full-sentence or gained early release.24 The Seventh Circuit has repeatedly affirmed 

reduced sentences for older individuals because the sentencing guidelines “do not factor in a 

defendant’s age.” United States v. Powell, 576 F.3d 482, 499 (7th Cir. 2009); see also United 

States v. Carter, 538 F.3d 784, 792 (7th Cir. 2008) (affirming lower sentence for tax fraud 

partially based on age); United States V. Holt, 486 F.3d 997, 1004 (7th Cir. 2007) (affirming 

below-range sentence based solely on age).

Finally, it almost goes without saying that requiring Mr. Moreno to remain in custody will 

not provide him with “medical care... in the most effective manner” under § 3553(a)(2)(D). Even 

before the pandemic, the BOP was failing to provide adequate healthcare.25The situation has 

only worsened with the COVID-19 onslaught.26 One recent district court judge weighed this 

 

23 U.S. Sentencing Commission, The Effects of Aging on Recidivism Among Federal Offenders, at 23, Fig. 

14, Dec. 2017, https://www.ussc.gov/sites/default/files/pdf/research-and- publications/researchpublications/2017/20171207_Recidivism-Age.pdf.

24 U.S. Sentencing Commission, Recidivism Among Federal Offenders Receiving Retroactive Sentence 

Reductions: The 2011 Fair Sentencing Act Guideline Amendment, at 3, Mar. 2018, 

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2018/20180328_Recidivism_FSA-Retroactivity.pdf.

25 U.S. Dep’t of Justice, Office of the Inspector General Review of the Federal Bureau of Prison’s 

Medical Staffing Challenges, at i, Mar. 2016, (describing an inability to hire a sufficient number of 

healthcare professionals to meet the needs of a teeming incarcerated population); see also Erica Zunkel, 

Article: 18 U.S.C.§3553(a)’s Undervalued Sentencing Command: Providing a Federal Criminal 

Defendant With Rehabilitation, Training, and Treatment in “The Most Effective Manner,” 9 Notre 

Dame J. Int’l & Comp. L. 49, 57–60 (2019) (detailing the BOP’s systematic failure to procure 

healthcare for inmates).

26 Lisa Freeland et al, We’ll See Many More COVID-19 Deaths in Prison if Congress and Barr Don’t 

Act Now,WASH. POST, Apr. 6, 2020, https://www.washingtonpost.com/opinions/2020/04/06/covid-19sthreat-prisons-argues-releasing- at-risk-offenders (“Numerous credible public-health experts have 

observed that overcrowded prisons with communal living; shared toilets, showers, and sinks; poor 

sanitation; and wholly inadequatemedicalcarewouldallowcovid19tosweepthroughtheprisonpopulationfarmore quickly than the general public — with devastating 

consequences.”); see also Joe Davidson, Unions for Prison, VA Workers 

File“ImminentDanger”Reports about Coronavirus Conditions, WASH. POST, Apr. 9, 2020, 
16

factor in granting compassionate release to an elderly defendant with underlying conditions, 

concluding that the defendant was “unlikely to be able to get the medical care he needs in the 

midst of an ongoing pandemic.” United States v. Burrill, 2020 WL 1846788, at *3 (N.D. Cal. 

Apr. 10, 2020). Further, BOP staff recently filed a complaint with the Occupational Safety and 

Health Administration, contending that various BOP policies “are proliferating the spread of 

a known and deadly contagion both within our prisons system and to our surrounding 

communities.”27 Living in his own home with access to health care provided through Medicare 

would dramatically reduce Mr. Moreno’s risk of infection due to COVID-19 and would set up 

him for success as he re-enters society.

Conclusion

For the foregoing reasons, Mr. Moreno respectfully requests that the Court modify his 

sentence under 18 U.S.C. § 3582(c)(1)(A)(i) to time served. Should the Court wish to 

hold a hearing on this motion, counsel waives Mr. Moreno’s appearance.

 By: /s/Richard Kling

Richard S. Kling 

The C-K Law Group of Chicago-Kent 

565 West Adams Street, Suite 600

Chicago, Illinois 60661

By: Isabella Romano

 Benjamin Jambois

 Emily Motin

 Hailee Mckie

Law Students

The C-K Law Group of Chicago-Kent

 

https://www.washingtonpost.com/politics/unions-for-prison-va-workers-file-imminent-danger-reportsabout-coronavirus-conditions/2020/04/08/78962ea0-79e4-11ea-8cec-530b4044a458_story.html.

27 Council of Prison Workers 33, Imminent Danger Report, at 3, Mar. 31, 2020, available at 

https://www.afge.org/globalassets/documents/generalreports/coronavirus/4/osha-7-form-nationalcomplaint.pdf (describing BOP’s policy of requiring staff to appear for work within 48 hours even after 

having contact with individuals showing symptoms of COVID-19, and BOP’s policy of continuously 

moving infected defendants).
17

565 West Adams Street, Suite 600

Chicago, Illinois 60661

CERTIFICATE OF SERVICE

The undersigned, Richard Kling, an attorney, hereby certifies that, in accordance with FED. 

R. CRIM P. 49, FED. R. CIV. P. 5, L.R. 5.5, and the General Order on Electronic Case Filing 

(ECF), the following document(s): 

DEFENDANT MORENO’S EMERGENCY MOTION FOR 

COMPASSIONATE RELEASE OR RECOMMENDATION FOR 

IMMEDIATE HOME CONFINEMENT

was served pursuant to the district court’s ECF system as to ECF filings, if any, and were sent 

by first-class mail/hand delivery on May 4, 2020, to counsel/parties that are non-ECF filers.
18

By: /s/Richard Kling

Richard S. Kling 

The C-K Law Group of Chicago-Kent 

565 West Adams Street, Suite 600

Chicago, Illinois 60661

By: Isabella Romano

 Benjamin Jambois

 Emily Motin

 Hailee Mckie

Law Students

The C-K Law Group of Chicago-Kent

565 West Adams Street, Suite 600

Chicago, Illinois 60661

EXHIBITS:

Exhibit Title

A FPC Duluth First Step Act Eligibility and 

Recidivism Risk Level Review

B Summary Reentry Plan

C Mr. Moreno’s Request for Compassionate 

Release

D Warden Review

E Office of the General Counsel Denial
Exhibit A
Exhibit B



Exhibit C


Exhibit D
Exhibit E