UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 14-cr-20814

v. Hon. Victoria A. Roberts

STEVEN SMITH,

Defendant.

_________________________________/

Response in Opposition to [53] Smith’s Renewed Motion 

for Compassionate Releaseand [55] Supplemental Brief

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Issues

I. Should Smith’s renewed motion for compassionate release be 

denied because, even considering his revised release plan, he continues 

to pose a danger to others and the community, see USSG § 1B1.13(2), 

and reducing his sentence would be improper considering the 18 U.S.C. 

§ 3553(a) factors? 

II. Are the conditions at Smith’s facility irrelevant to whether 

Smith would pose a danger to the community if released and whether 

reducing his sentence would be improper consider the § 3553(a) factors? 

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Introduction

Steven Smith asks the Court to reconsider its decision denying his 

motion for compassionate release because he has made other living 

arrangements, he would be willing to undergo non-residential sex 

offender treatment, and his incarcerated son does not oppose his 

release. None of this, however, adequately addresses the Court’s 

concerns about dangerousness. Nor does it tip any of the relevant 

sentencing factors in his favor.

The conditions at Smith’s facility do not change this analysis, 

since there is no dispute that Smith has shown extraordinary and 

compelling circumstances. Those conditions have no bearing on whether 

releasing a prisoner would present a danger to the communityor fail to

fulfill the purposes of sentencing, which are the two grounds on which 

Smith’s initial motion was denied. The Court should deny Smith’s

renewed motion for compassionate release.

Background

An investigation revealed that Smith was sharing child 

pornography online using a peer-to-peer program. (PSR ¶¶ 9-10). That 

program was running on the family computer when agents searched 

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Smith’s home. (PSR ¶ 11). A forensic review of the items seized revealed 

1,158 images and 404 videos of child pornography, the bulk of which 

belonged to Smith. (PSR ¶ 16). Smith’s collection mainly depicted 

prepubescent children—in some instances toddlers—engaged in sex acts

with adult males and sadomasochism. (PSR ¶ 16). Smith admitted that 

he had been downloading child pornography for over 15 years. (PSR 

¶ 15). Sadly, Smith influenced his adult son, who first viewed child 

pornography on Smith’s computer about ten years earlier as a teenager. 

(PSR ¶ 12). Smith’s son pleaded guilty to receiving child pornography 

and is still serving his 110-month sentence. (Case No. 14-cr-20815).

Smith pleaded guilty to distributing child pornography.(ECF No. 

22, Plea Agreement). Although his guidelines range was 151 to 188 

months in prison, the Court sentenced Smith to 130 months in prison

and five years of supervised release. (ECF No. 30, Judgment). The 

Court recommended that the BOP place Smith in a residential sex 

offender treatment program. (Id., PgID.131). 

Smith’s projected release date is May 10, 2025. He has served less 

than half his below-guidelines sentence and has not yet participated in 

sex offender treatment, which BOP offers toward the end of a sentence. 

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The Court denied Smith’s initial motion for compassionate release

on the merits. (ECF No. 51, PgID.615-625). The Court concluded—and 

the government does not contest—that Smith established extraordinary 

and compelling reasons for compassionate release based on his obesity 

and Type 2 diabetes, which places him at heightened risk from Covid19. (Id., PgID.618-620). Nonetheless, the Court properly denied Smith’s 

motion because he poses a danger to the communityunder USSG 

§ 1B1.13(2) and because the relevant § 3553(a) sentencing factorsweigh

against a reduction in sentence. (Id., PgID.620-624). 

In his renewed motion, Smith proposes a revised release plan

along with information about available non-residential sex offender 

treatment, with the hope of addressing the Court’s concerns regarding

dangerousness. He also includes a letter from his incarcerated son, 

with the hope of addressing the Court’s concerns regarding the 

sentencing disparity between father and son that would result if Smith 

were released.Finally, Smith discusses the conditions at his facility.

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Argument

I. The Court should deny Smith’s renewed motion for 

compassionate release.

A. Smith remains ineligible for compassionate 

release based on dangerousness. 

Section 1B1.13(2) only permits release if a “defendant is not a 

danger to the safety of any other person or to the community, as 

provided in 18 U.S.C. § 3142(g).” Evaluating dangerousness under 

§ 3142(g) requires a comprehensive view of community safety—“a 

broader construction than the mere danger of physical violence.” United 

States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989) (per curiam). 

“[F]ederal courts have been disinclined to grant compassionate 

release to petitioners convicted of crimes involving child pornography, 

even for vulnerable petitioners during the COVID-19 pandemic, citing 

potential dangerousness.” Coleman v. United States, 2020 WL 3039123, 

at *4 (E.D. Va. June 4, 2020). And “given the ease with which child

pornography is accessible in the modern world,” releasing such 

offenders “is likely to require stringent and frequent monitoring,” which 

creates a safety risk for the officers tasked with that responsibility

during a health pandemic. United States v. Sears, 2020 WL 3250717, at 

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*3 (D.D.C. June 16, 2020); see also United States v. Meizin, 2020 WL 

1985042, at *5 (N.D. Ohio Apr. 27, 2020) (denying compassionate 

release because of the easy access to electronic devices).

Here, the Court provided a multitude of reasons why Smith 

presented a danger to the community and was therefore ineligible for 

compassionate release. Without home visits, the probation department 

would not be able to implement or monitor the internet and device 

restrictions that his family proposed. (ECF No. 51, PgID.622). The 

Court also expressed concern about the length of Smith’s criminal 

history—he downloaded child pornography for over 15 years, 

undetected by his family. (Id.). Although recognizingSmith’s minimum 

PATTERN score, the Court concluded that Smith would still pose a 

danger if released. In particular, the Court noted that Smith proposed 

returning to the same home environment where he committed his 

offense, had not completed residential sex offender treatment, would 

have easy access to electronic devices, and is skilled in hiding his 

criminal conduct. (Id., PgID.622-623). In addition, given that Smith 

influenced his now-adult son to view child pornography as a teenager, 

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the Court worried that allowing Smith to live with his 16-year-old son 

would risk “the same corrupting danger.” (Id., PgID.623). 

Smith’s revised release plan, in which he would live with his 

mother and sister instead of his wife and teenage son, somewhat 

addresses the Court’s last concern regarding risk of corrupting 

influence. (ECF No. 53, PgID.635-636). But the proposal does little else 

to ensure that Smith will not reoffend and, consequently, does not 

alleviate the danger he poses to the community. His mother’s home, 

although not the precise location where he committed the underlying 

offense, is nonetheless a residential environment with electronic devices 

and internet access. And if he was able to hide his criminal conduct 

from his wife for over 15 years, the government is concerned that he 

could conceal criminal conduct from other individuals like his mother.

Smith points out that the probation department is able to take 

some measures to supervise individuals during the pandemic, including 

through remote monitoring. (ECF No. 53, PgID.637). But this is not new 

information and does not address the Court’s concern that in-home 

visitswould be needed to protect the community in this case. In-home 

visits would be critical because Smith’s release plan depends on family 

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members implementing safeguards to prevent his access to their 

electronic devices that are located in the home without the use of any 

remote monitoring. Smith does not propose, for example, that the 

probation department remotely monitor his mother’s laptop. 

Smith also argues that the Court can require him to participate in 

non-residential sex offender treatment if released. (ECF No. 53, 

PgID.636-637). This, too, is not new information to the Court. And the 

fact that Smith has looked into treatment options other than Shanle 

Psychological Services does not adequately reduce the danger he poses. 

At sentencing, the Court properly determined that the BOP’s residential 

program was appropriate for Smith and should be completed before he 

returned to society. (ECF No. 30, PgID.131). This residential program is 

a “high intensity program designed for high-risk sexual offenders.” BOP 

Program Statement 5324.010, at p. 14. Like the name suggests, inmates

in the residential program “co-house” or live together. Id. This “permits 

the implementation of a modified therapeutic community,” which has 

“been proven effective in reducing inmate recidivism.” Id. This 

“therapeutic community in a prison setting stresses pro-social values 

and behaviors that are needed in the outside community.” Id. The 

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program can take up to two years to complete. Smith is on the waitlist 

because he BOP prioritizes enrollment based on projected release date 

to maximize inmate participation. Id. at p. 16.

In sum, the bulk of the Court’s reasoning on dangerousness 

remains intact. Smith downloaded child pornography for over 15 years 

undetected by his wife, influenced his now-adult son to view child 

pornography, has not participated in residential sex offender treatment, 

has served less than half his below-guidelines sentence, and proposes 

living with family members who have electronic devices, all in the midst 

of a pandemic during which the probation department is not conducting

in-home visits. The Court should deny Smith’s renewed motion because 

USSG § 1B1.13 precludes his release.

B. The relevant sentencing factors still weigh against 

compassionate release. 

Even if Smith were eligible for compassionate release, he would

not automatically be entitled to a reduction in sentence. Before ordering 

relief, the Court must consider the factors set forth in 18 U.S.C. 

§ 3553(a) and determine that release is appropriate. See United States 

v. Murphy, 2020 WL 2507619, at *6 (E.D. Mich. May 15, 2020) (denying 

compassionate release because “the 18 U.S.C. § 3553(a) sentencing 

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factors do not favor release”); see also United States v. Kincaid, 802 F. 

App’x 187, 188–89 (6th Cir. 2020) (upholding a district court’s denial of 

compassionate release based on the § 3553(a) factors). 

Here, Smith’s online distribution of child pornography for more 

than a decade is undeniably serious, the types of images he shared are 

especially disturbing, and his criminal behavior adversely influenced 

his own son. See United States v. Sears, 2020 WL 3250717, at *2 (D.C. 

Cir. June 16, 2020) (“[T]he possession and distributionof child 

pornography is an extremely serious crime because it involves trading 

depictions of the actual sexual assault of children, and the abuse that 

these child victims endure will remain available on the internet 

forever.”). And although Smith contends that he is unlikely to 

recidivate, the Court already considered Smith’s risk of recidivism when 

deciding to sentence him below the guidelines. See United States v. 

Hull, 2020 WL 2475639, at *4 (D. Conn. May 13, 2020).

Further, Smith is less than halfway through his below-guidelines 

sentence, has not yet served the mandatory minimum 60 months for his 

offense, and has not yet undergone residential treatment. With respect 

to child pornography offenders, courts have typically refused to release 

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inmates with a significant portion of their sentence remaining. Compare 

Hull, 2020 WL 2475639, at *3 (refusing to release an inmate who had 

“only served a little over half of his 60-month sentence”for receipt of 

child pornography) and United States v. Riter, 2020 WL 3428144, at *4 

(S.D.N.Y. June 23, 2020) (refusing to release an inmate who had served 

roughly one third of his sentence for receipt, distribution, and 

possession of child pornography) with United States v. Pippin, 2020 WL 

2602140, at *3 (W.D. Wash. May 20, 2020) (releasing inmate who had 

served 70 percent of his sentence for possession of child pornography) 

and United States v. Feucht, 2020 WL 2781600, at *4 (S.D. Fla. May 28, 

2020) (releasing inmate who had served about 86 percent of his 

sentence for distributing child pornography). Courts also consider 

whether an inmate “has participated in rehabilitative programming 

specific to his offense of conviction.” Coleman, 2020 WL 3039123, at *5.

Here, the Court properly determined that the relevant § 3553(a) 

factors counseled against Smith’s release. “Given the nature of his 

crime, to release Smith with more than half of his sentence remaining 

and before he completed a sex offender treatment program would not 

reflect the seriousness of the offense, promote respect for the law, 

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provide just punishment, afford adequate deterrence, or protect the 

public.” (ECF No. 51, PgID.624). The Court also reasoned that the need 

“to avoid unwarranted sentence disparities” weighed against Smith, 

since his own son, whom he influenced down a path of criminality, is 

still imprisoned and will remain behind bars for over two years, yet 

“Smith’s conduct was more egregious than his son’s, and his sentence 

was 20 months longer than his son’s.” (Id.). 

Smith attempts to address this unwarranted disparity by offering 

a letter from his incarcerated son, who states that he does not oppose 

Smith’s release. (ECF No. 53, PgID.640). But the son’s opinion does 

nothing to remedy the concern. Congress instructed courts to consider 

“the need to avoid unwarranted sentence disparities among 

defendants,” irrespective of how those defendants would feel about

unwarranted sentence disparities. 18 U.S.C. § 3553(a)(6). And releasing 

Smith before serving the mandatory minimum sentence for his crime 

would result in a disparity from a national perspective as well.

Because the relevant sentencing factors are unchanged and still 

weigh against a reduction in sentence, the Court should deny Smith’s 

renewed motion for compassionate release.

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II. The facility at which Smith is located does not change 

the outcome.

In denying Smith’s initial motion for compassionate release, the 

Court acknowledged that“COVID-19 was particularly rampant and 

uncontrolled at FCI Elkton at one point,” but it appeared, in more 

recent months, that “the BOP [had] put measures in place to 

successfully control the spread of the virus at Elkton.”(ECF No. 51, 

PgID.619-620). Ultimately, though, the specific conditions at FCI 

Elkton were not needed to show extraordinary and compelling 

circumstances, which the Court found based on Smith’s medical 

conditions. The Court denied relief based on Smith’s dangerousness and 

the relevant sentencing factors. 

Smith was recently transferred to FCI Fort Dix. (ECF No. 55, 

PgID.893-906). In his supplemental filing, Smith goes to great lengths 

to show that he remains vulnerable at FCI Fort Dix. This discussion, 

however, is effectively moot, since those conditions would relate only to 

whether Smith has established extraordinary and compelling 

circumstances for release, which the Court already concluded based on 

his medical conditions.The circumstances at Smith’s facility have no 

bearing on whether Smith would pose a danger to the community if 

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released or whether reducing his sentence would be improper 

considering the relevant sentencing factors, which are the two bases on 

which the Court denied his initial motion. 

Conclusion 

For these reasons, Smith’s renewed motion for compassionate 

release should be denied.

Respectfully submitted,

MATTHEW SCHNEIDER

United States Attorney

s/ Jessica V. Currie

Jessica V. Currie

Assistant U.S. Attorney

211 West Fort Street, Suite 2001

Detroit, MI 48226

(313) 226-9531

jessica.currie@usdoj.gov

Dated: November 10, 2020

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Certificate of Service

I certify that on November 10, 2020, I electronically filed the 

foregoing document with the Clerk of the Court for the Eastern District 

of Michigan using the ECF system, which will send notification of the 

filing to all users of record.

s/ Jessica V. Currie

Assistant U.S. Attorney

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