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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, CRIMINAL NO. 15-20023 

v. HON. MARK A. GOLDSMITH 

JERMAINE SHUMATE, 

 Defendant. 

 / 

United States’ Response Opposing 

the Defendant’s Motion for Compassionate Release 

The defendant, Jermaine Shumate, has served less than one year of 

a nine-year sentence for conspiring to distribute heroin. He does not 

have any CDC risk factors for risk of severe illness from Covid-19. He 

nonetheless filed a motion for compassionate release. But he has not 

even made this request to the Bureau of Prisons. So his motion should 

be denied because he has not exhausted his administrative remedies. In 

any case, given his age and health, compassionate release is not 

appropriate. 

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Background 

Shumate was sending large quantities of heroin through the mail. 

(PSR, ¶ 7). DEA caught on and made controlled purchases of drugs from 

him. (Id., ¶ 8). In January 2015, they searched his house and found 

more heroin, kilogram packaging materials, assault-style firearms, and 

a large amount of cash. (Id.). 

Shumate was charged with conspiring to distribute heroin. (PSR, 

¶ 1). He eventually pleaded guilty without a plea agreement. (Id., ¶ 4). 

His sentencing guideline range was 292-365 months. (PSR ¶ 50). And 

the Court sentenced him to nine years in prison. 

Shumate began serving that prison sentence on May 30, 2019. He is 

currently at Butner Low FCI in Butner, North Carolina. (Butner Low 

FCI has, as of May 15, 2020, 23 inmates and 3 staff members who have 

tested positive for Covid-19. There have also been 38 inmates and 4 

staff members that have fully recovered.) His projected release date is 

March 22, 2027. So, he has served roughly 10% of his sentence. 

Prior to sentencing, Shumate reported to probation that he was “in 

good physical health.” (PSR, ¶ 41). On May 14, 2020 (or one day after he 

filed his motion), Shumate had a medical visit and reported a history of 

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asthma. (Exhibit 1 – Clinical Encounter on 5/14/20, sealed). Shumate 

noted that he had been without an inhaler since 2019. (Id.). The 

medical provider ultimately diagnosed him with “intermittent” asthma. 

(Id.). 

Shumate filed a motion for compassionate release on May 13, 2020. 

(R.45: Motion). He has not, however, made an administrative request to 

the BOP seeking this remedy. 

Argument 

I. The Bureau of Prisons has responded to Covid-19 by 

protecting inmates and increasing home confinement. 

A. The Bureau of Prisons’ precautions have mitigated 

the risk from Covid-19 within its facilities. 

The Bureau of Prisons has reacted quickly to confront Covid-19’s 

spread within its facilities. For over almost a decade, the Bureau of 

Prisons has maintained a detailed protocol for responding to a 

pandemic. Consistent with that protocol, the Bureau of Prisons began 

planning for Covid-19 in January 2020. 

On March 13, 2020, the Bureau of Prisons began modifying its 

operations to implement its Covid-19 Action Plan and minimize the risk 

of Covid-19 transmission into and inside its facilities. See BOP Covid-19 

Modified Operations Website. Since then, as the worldwide crisis has 

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evolved, the Bureau of Prisons has repeatedly revised its plan. The 

current plan, which is in effect until May 18, 2020, requires that 

inmates in every institution be secured in their assigned cells or 

quarters for at least 14 days to stop the spread of the disease. Only 

limited group gathering is allowed, and social distancing is maximized. 

Staff and inmates are issued face masks to wear in public areas. See

BOP FAQs: Correcting Myths and Misinformation. And the movement 

of inmates and detainees between facilities is severely restricted, with 

exceptions only for medical treatment and similar exigencies. 

Every newly admitted inmate is screened for Covid-19 risk factors 

and symptoms. Asymptomatic inmates with risk of exposure are placed 

in quarantine for a minimum of 14 days or until cleared by medical 

staff. Symptomatic inmates are provided with medical evaluation and 

treatment and are isolated from other inmates until testing negative for 

Covid-19 or being cleared by medical staff under the CDC’s criteria. In 

areas with sustained community transmission, all staff are screened for 

symptoms. Staff registering a temperature of 100.4 degrees Fahrenheit 

or higher are barred from the facility on that basis alone. A staff 

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member with other symptoms can be placed on leave by a medical 

officer. 

Other access to the facilities has likewise been restricted. 

Contractors are only permitted access if performing essential services, 

and any contractor who requires access is screened for symptoms and 

risk factors. Social and legal visits have been suspended to limit the 

number of people entering the facility and interacting with inmates. 

But to ensure that relationships and communication are maintained 

throughout this disruption, the Bureau of Prisons has increased 

inmates’ telephone allowance to 500 minutes per month. Legal visits 

are permitted on a case-by-case basis after the attorney has been 

screened for infection. 

Like all other institutions, penal and otherwise, the Bureau of 

Prisons has not been able to eliminate the risks from Covid-19 

completely, despite its best efforts. But the Bureau of Prisons’ measures 

will help federal inmates remain protected from Covid-19 and ensure 

that they receive any required medical care during these difficult times. 

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B. The Bureau of Prisons is increasing the number of 

inmates who are granted home confinement. 

The Bureau of Prisons has also responded to Covid-19 by increasing 

the placement of federal prisoners in home confinement. New 

legislation now temporarily permits the Bureau of Prisons to “lengthen 

the maximum amount of time for which [it] is authorized to place a 

prisoner in home confinement” during the Covid-19 pandemic. 

Coronavirus Aid, Relief, and Economic Security Act (CARES Act) 

§ 12003(b)(2), Pub. L. No. 116-136, 134 Stat. 281, 516 (Mar. 27, 2020). 

The Attorney General has also issued two directives, ordering the 

Bureau of Prisons to use the “various statutory authorities to grant 

home confinement for inmates seeking transfer in connection with the 

ongoing Covid-19 pandemic.” (03-26-2020 Directive to BOP, at 1; accord

04-03-2020 Directive to BOP, at 1). The directives require the Bureau of 

Prisons to identify the inmates most at risk from Covid-19 and “to 

consider the totality of circumstances for each individual inmate” in 

deciding whether home confinement is appropriate. (03-26-2020 

Directive to BOP, at 1). 

The Bureau of Prisons’ efforts on this point are not hypothetical. 

Over 2,549 federal inmates have been granted home confinement since 

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the Covid-19 pandemic began, and that number continues to grow. BOP 

Coronavirus FAQs. As the Attorney General’s directives have explained, 

these home-confinement decisions have required evaluating several 

criteria: 

1.) Each inmate’s age and vulnerability to Covid-19; 

2.) Whether home confinement would increase or decrease 

the inmate’s risk of contracting Covid-19; and 

3.) Whether the inmate’s release into home confinement 

would risk public safety. 

(03-26-2020 Directive to BOP; 04-03-2020 Directive to BOP). 

These criteria not only make sense, but also fit the realities of the 

Covid-19 pandemic far better than any other solution does. The Bureau 

of Prisons cannot open its facilities’ gates indiscriminately and unleash 

tens of thousands of convicted criminals, en masse. It must focus on the 

inmates who have the highest risk factors for Covid-19 and are least 

likely to engage in new criminal activity. This is true not just to protect 

the public generally, but to avoid the risk that a released defendant will 

bring Covid-19 back into the jail or prison system if he violates his 

terms of release or is caught committing a new crime. See 18 U.S.C. 

§ 3624(g)(5); 34 U.S.C. § 60541(g)(2). The Bureau of Prisons’ homeCase 2:15-cr-20023-MAG-APP ECF No. 48, PageID.166 Filed 05/18/20 Page 7 of 22
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confinement initiative thus appropriately focuses on the inmates who 

will most benefit from release and whose release is least risky. 

The Bureau of Prisons must also balance another important 

consideration: how likely is an inmate to abide by the CDC’s socialdistancing protocols or other Covid-19-based restrictions on release? 

Many inmates—particularly those who have been convicted of serious 

offenses or have a lengthy criminal record—been already proven 

unwilling to abide by society’s most basic norms. It is more than 

reasonable to evaluate whether a particular inmate would adhere to 

release conditions, social-distancing protocols, and stay-at-home orders 

during the pandemic. And if a prisoner would be unlikely to take any 

Covid-19 restrictions seriously, he would also be far more likely than 

the general public to contract and spread Covid-19 if released. 

The Bureau of Prisons also must account for the current strain on 

society’s first responders. Police departments in many cities have 

stretched to their limits as officers have either contracted Covid-19 or 

been placed in quarantine. Some cities, including Detroit, have seen 

spikes in shootings and murders. Child sex predators have taken 

advantage of bored school-aged kids spending more time online. CovidCase 2:15-cr-20023-MAG-APP ECF No. 48, PageID.167 Filed 05/18/20 Page 8 of 22
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19-based fraud schemes have proliferated. There are real risks to public 

safety, and those risks will only increase if communities are faced with 

a sudden influx of prisoners. That is just one reason, among many, why 

the Bureau of Prisons must focus on releasing inmates who are the 

most vulnerable to Covid-19 and whose release will least endanger the 

public. 

Finally, the Bureau of Prisons’ home-confinement initiative allows it 

to marshal and prioritize its limited resources for the inmates and 

circumstances that are most urgent. For any inmate who is a candidate 

for home confinement, the Bureau of Prisons must first ensure that his 

proposed home-confinement location is suitable for release, does not 

place him at an even greater risk of contracting Covid-19, and does not 

place members of the public at risk from him. It must assess 

components of the release plan, including whether the inmate will have 

access to health care and other resources. It must consider myriad other 

factors, including the limited availability of transportation right now 

and the probation department’s reduced ability to supervise inmates 

who have been released. All of those decisions require channeling 

resources to the inmates who are the best candidates for release. 

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Those types of system-wide resource-allocation decisions are difficult 

even in normal circumstances. That is why Congress tasked the Bureau 

of Prisons to make them and has not subjected the decisions to judicial 

review. 18 U.S.C. § 3621(b) (“Notwithstanding any other provision of 

law, a designation of a place of imprisonment under this subsection is 

not reviewable by any court.”); United States v. Patino, No. 18- 20451, 

2020 WL 1676766, at *6 (E.D. Mich. Apr. 6, 2020) (“[A]s a general rule, 

the Court lacks authority to direct the operations of the Bureau of 

Prisons.”). It is especially true now, given the Bureau of Prisons’ 

substantial and ongoing efforts to address the Covid-19 pandemic. 

II. The Court should not grant Shumate compassionate 

release. 

The Court should not grant Shumate’s motion for compassionate 

release. A district court has “no inherent authority . . . to modify an 

otherwise valid sentence.” United States v. Washington, 584 F.3d 693, 

700 (6th Cir. 2009). Quite the contrary: a district court’s authority to 

modify a defendant’s sentence is “narrowly circumscribed.” United 

States v. Houston, 529 F.3d 743, 753 n.2 (6th Cir. 2008). Absent a 

specific statutory exception, a district court “may not modify a term of 

imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). Those 

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statutory exceptions are narrow. United States v. Ross, 245 F.3d 577, 

586 (6th Cir. 2001). Compassionate release under 18 U.S.C. 

§ 3582(c)(1)(A) is equally narrow. 

First, compassionate release requires exhaustion. If a defendant 

moves for compassionate release, the district court may not act on the 

motion unless the defendant files it “after” either completing the 

administrative process within the Bureau of Prisons or waiting 30 days 

from when the warden at his facility received his request. 18 U.S.C. 

§ 3582(c)(1)(A); United States v. Raia, 954 F.3d 594, 595–96 (3d Cir. 

2020). Because this requirement is a statutory one and not judicially 

crafted, it is mandatory. Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016); 

Island Creek Coal Co. v. Bryan, 937 F.3d 738, 751 (6th Cir. 2019). 

Second, even if a defendant exhausts, he must show “extraordinary 

and compelling reasons” for compassionate release, § 3582(c)(1)(A), and 

release must be “consistent with” the Sentencing Commission’s policy 

statements. As with the identical language in § 3582(c)(2), compliance 

with the policy statements incorporated by § 3582(c)(1)(A) is 

mandatory. See Dillon v. United States, 560 U.S. 817 (2010); United 

States v. Jackson, 751 F.3d 707, 711 (6th Cir. 2014). To qualify, a 

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defendant must have a medical condition, age-related issue, family 

circumstance, or other reason that satisfies the criteria in USSG 

§ 1B1.13(1)(A) & cmt. n.1, and he must “not [be] a danger to the safety 

of any other person or to the community,” USSG § 1B1.13(2). 

Third, even if a defendant is eligible for compassionate release, the 

district court may not grant the motion unless the factors in 18 U.S.C. 

§ 3553(a) support release. 18 U.S.C. § 3582(c)(1)(A); USSG § 1B1.13. As 

at sentencing, those factors require the district court to consider the 

defendant’s history and characteristics, the seriousness of the offense, 

the need to promote respect for the law and provide just punishment for 

the offense, general and specific deterrence, and the protection of the 

public. 18 U.S.C. § 3553(a). 

A. The Court is barred from granting release because 

Shumate has not exhausted his administrative 

remedies. 

The Court must dismiss Shumate’s motion, because he has not 

satisfied the exhaustion requirement for compassionate release under 

18 U.S.C. § 3582(c)(1)(A). Until recently, only the Bureau of Prisons 

could move for compassionate release. The First Step Act of 2018 

amended the statute, permitting defendants to move for it too. First 

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Step Act § 603(b), Pub. L. No. 115-319, 132 Stat. 5194, 5239 (Dec. 21, 

2018). 

But the provision permitting a defendant-initiated motion includes 

an exhaustion requirement. Id. A district court may not grant a 

defendant’s motion for compassionate release unless the defendant files 

it “after” the earlier of (1) the defendant “fully exhaust[ing] all 

administrative rights to appeal a failure of the Bureau of Prisons to 

bring a motion on the defendant’s behalf” or (2) “the lapse of 30 days 

from the receipt of such a request by the warden of the defendant’s 

facility.” 18 U.S.C. § 3582(c)(1)(A); United States v. Raia, 954 F.3d 594, 

595 (3d Cir. 2020). 

Statutory exhaustion requirements, like the one in § 3582(c)(1)(A), 

are mandatory. Ross v. Blake, 136 S. Ct. 1850, 1856–57 (2016). As the 

Sixth Circuit has explained, there is a “sharp divide” that “separates 

statutory from prudential exhaustion.” Island Creek Coal Co. v. Bryan, 

937 F.3d 738, 751 (6th Cir. 2019). Unlike judicially crafted 

requirements, statutory requirements may not be excused, even to 

account for “special circumstances.” Ross, 136 S. Ct. at 1856–57. 

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Section 3582(c)(1)(A) is likely even a jurisdictional bar on the Court’s 

authority to consider a motion for compassionate release. The Sixth 

Circuit has labeled § 3582(c)’s limitations “jurisdiction[al].” Williams, 

607 F.3d at 1125. The statute “speak[s] to the power of the court rather 

than to the rights or obligations of the parties.” Landgraf v. USI Film 

Prods., 511 U.S. 244, 274 (1994). And it delineates “when, and under 

what conditions,” a court may exercise its “‘adjudicatory authority.’” 

Bowles v. Russell, 551 U.S. 205, 212–13 (2007) (quoting Eberhart v. 

United States, 546 U.S. 12, 16 (2005)). But even if § 3582(c)’s 

requirements were not considered truly jurisdictional, they would still 

be mandatory claim-processing rules that must be enforced when a 

party “properly rais[es]” them. Eberhart, 546 U.S. at 19 (2005). Thus, 

regardless of how it is labeled, § 3582(c)(1)(A)’s exhaustion requirement 

is mandatory. See Ross, 136 S. Ct. at 1856–57; United States v. 

Marshall, 954 F.3d 823, 826–29 (6th Cir. 2020). 

The only court of appeals to address this question has agreed. In 

United States v. Raia, 954 F.3d 594, 595–97 (3d Cir. 2020), the Third 

Circuit held that the Covid-19 pandemic does not permit inmates or 

district judges to bypass § 3582(c)(1)(A)’s exhaustion requirement. 

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Rather, “[g]iven BOP’s shared desire for a safe and healthy prison 

environment, . . . strict compliance with § 3582(c)(1)(A)’s exhaustion 

requirement takes on added—and critical—importance.” Id. at 597. 

The majority of district courts to decide this question nationwide, 

including many in our district, have similarly held that a “failure to 

exhaust” under § 3582(c)(1)(A) “cannot be excused, even in light of the 

Covid-19 pandemic.” United States v. Alam, No. 15-20351, 2020 WL 

1703881, at *2–*3 (E.D. Mich. Apr. 8, 2020); accord United States v. 

Shah, No. 16-20457, 2020 WL 1934930, at *2 (E.D. Mich. Apr. 22, 

2020); United States v. Mathews, No. 14-CR-20427-02, 2020 WL 

1873360, at *2–*3 (E.D. Mich. Apr. 15, 2020). As one of the those 

decisions has explained, the few courts that have excused exhaustion 

under § 3582(c)(1)(A) have mistakenly relied on cases addressing judgemade exhaustion requirements, not statutory exhaustion requirements. 

Mathews, 2020 WL 1873360, at *2–*3. 

Congress’s reasons for § 3582(c)(1)(A)’s exhaustion requirement 

apply with even greater force during the COVID-19 pandemic. The 

Bureau of Prisons is already responding to the pandemic—not just 

through heightened safety measures, but by evaluating its entire prison 

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population for home confinement. By requiring a defendant to exhaust, 

§ 3582(c)(1)(A) gives the Bureau of Prisons the opportunity to gather his 

medical documentation and other records, evaluate his request, and 

decide in the first instance whether it justifies either compassionate 

release or some other form of relief. As the Third Circuit observed: 

“Given BOP’s shared desire for a safe and healthy prison environment, 

. . . strict compliance with § 3582(c)(1)(A)’s exhaustion requirement 

takes on added—and critical—importance.” Raia, 954 F.3d at 597. 

Shumate did not exhaust his administrative remedies. His motion 

should therefore be dismissed. 

B. There are no extraordinary and compelling reasons to 

grant Shumate compassionate release. 

Even if Shumate had exhausted his administrative remedies, 

compassionate release would be improper. Compassionate release must 

be “consistent with applicable policy statements issued by the 

Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A). Congress tasked the 

Sentencing Commission with “describ[ing] what should be considered 

extraordinary and compelling reasons for [a] sentence reduction” under 

§ 3582(c)(1)(A), as well developing “the criteria to be applied and a list 

of specific examples” for when release is permitted. 28 U.S.C. § 994(t). 

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Because the Sentencing Commission has fulfilled Congress’s 

directive in USSG § 1B1.13, that policy statement is mandatory. Section 

3582(c)(1)(A)’s reliance on the Sentencing Commission’s policy 

statements mirrors the language governing sentence reductions under 

18 U.S.C. § 3582(c)(2) for retroactive guideline amendments. Compare

§ 3582(c)(1)(A) with § 3582(c)(2). When Congress uses the same 

language in the same statute, it must be interpreted in the same way. 

Marshall, 954 F.3d at 830. In both contexts, then, the Sentencing 

Commission’s restraints “on a district court’s sentence-reduction 

authority [are] absolute.” United States v. Jackson, 751 F.3d 707, 711 

(6th Cir. 2014); accord Dillon v. United States, 560 U.S. 817, 830 (2010). 

The First Step Act did not change that. It amended only who could 

move for compassionate release under § 3582(c)(1)(A). It did not amend 

the substantive requirements for release. United States v. Saldana, No. 

19-7057, 2020 WL 1486892, at *2–*3 (10th Cir. Mar. 26, 2020); United 

States v. Mollica, No. 2:14-CR-329, 2020 WL 1914956, at *4 (N.D. Ala. 

Apr. 20, 2020). Section 1B1.13 remains binding. 

Section 1B1.13 cabins compassionate release to a narrow group of 

defendants who are most in need. That policy statement limits 

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“extraordinary and compelling reasons” to four categories: (1) the 

inmate’s medical condition; (2) the inmate’s age; (3) the inmate’s family 

circumstances; and (4) other reasons “[a]s determined by the Director of 

the Bureau of Prisons,” which the Bureau of Prisons has set forth in 

Program Statement 5050.50. USSG § 1B1.13 cmt. n.1. As the Tenth 

Circuit recently explained, a district court “lack[s] jurisdiction” to grant 

compassionate release when a defendant’s circumstances do not fall 

within those categories. Saldana, 2020 WL 1486892, at *3. 

Shumate claims that he has “severe asthma.” (R.45: Motion, 151). 

But he is not eligible for compassionate release on this basis. See, e.g., 

USSG § 1B1.13 cmt. n.1(A)(i) (defendant may be released in certain 

cases where suffering from a “terminal illness”) and id. (A)(ii) 

(defendant suffering from condition that “substantially diminishes” 

defendant’s ability to provide self-care and which he is not expected to 

recover from). At 45, he is a relatively young man who is otherwise 

healthy. He even recently explained to the BOP medical provider that 

he has been dealing with his asthma without an inhaler since 2019. 

The Covid-19 pandemic should not alter this analysis. Even 

assuming, in other cases, that a defendant’s risk from Covid-19 might 

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make the difference in his eligibility for release under § 1B1.13, 

Shumate’s circumstances do not satisfy that standard. He does not have 

any of the CDC risk factors for higher risk for severe illness if he 

contracts Covid-19. CDC does list “moderate to severe asthma” as a risk 

factor. There are different classifications of asthma, from intermittent 

to severe. As explained above, Shumate was recently diagnosed with 

the “intermittent” asthma—the mildest form. In other words, even with 

asthma, Shumate is not at a higher risk for severe illness if he contracts 

Covid-19. 

Nor does the Covid-19 pandemic by itself qualify as the type of 

inmate-specific reason permitting compassionate release. As the Third 

Circuit explained, “the mere existence of Covid-19 in society and the 

possibility that it may spread to a particular prison alone cannot 

independently justify compassionate release, especially considering 

BOP’s statutory role, and its extensive and professional efforts to curtail 

the virus’s spread.” Raia, 954 F.3d at 597. The Bureau of Prisons has 

worked diligently to implement precautionary measures reducing the 

risk from Covid-19 to Shumate and other inmates. Nothing in the 

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statute or USSG § 1B1.13 supports an unbounded interpretation of 

§ 3582(c)(1)(A). See Raia, 954 F.3d at 597. 

Shumate is not eligible for compassionate release. 

C. The factors in 18 U.S.C. § 3553(a) weigh against 

compassionate release. 

Even when an inmate is statutorily eligible for a sentence 

modification based on “extraordinary and compelling reasons,” 

compassionate release is not necessarily appropriate. Before ordering 

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

§ 3553(a) and determine that release is still appropriate. So even if the 

Court were to find Shumate eligible for compassionate release, the 

§ 3553(a) factors should still disqualify him. 

Shumate was involved in a dangerous criminal activity that injected 

poison into the community. He was in possession of two assault style 

firearms at the time of his arrest. Besides this case, he has a history of 

drug trafficking. And he has served less than one year of his nine year 

sentence. 

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III. If the Court were to grant Shumate’s request, it should 

order a 14-day quarantine before release. 

If the Court were inclined to grant Shumate’s family’s request 

despite the government’s arguments above, the Court should order that 

he be subjected to a 14-day quarantine before release. 

Conclusion 

 The Court should deny Shumate’s request for compassionate 

release. 

 Respectfully submitted, 

 

 Matthew Schneider 

United States Attorney 

 

/s/ Steven P. Cares 

Dated: May 18, 2020 

Assistant United States Attorney 

United States Attorney’s Office 

Eastern District of Michigan 

211 West Fort Street, Suite 2001 

Detroit, MI 48226 

Phone: (313) 226-9139 

Email: steven.cares@usdoj.gov 

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Certificate of Service 

I certify that on May 18, 2020, I electronically filed this motion for 

the United States with the Clerk of the United States District Court for 

the Eastern District of Michigan using the ECF system, which will send 

notification of such filing to the following: 

Steven Scharg 

I further certify that I have mailed by U.S. mail the Government’s 

response to the following non-ECF participant: 

n/a 

/s/ Steven P. Cares 

Assistant United States Attorney 

United States Attorney’s Office 

Eastern District of Michigan 

211 West Fort Street, Suite 2001 

Detroit, MI 48226 

Phone: (313) 226-9139 

Email: steven.cares@usdoj.gov 

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