UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

v. Case No. 15-20017 

 Honorable Victoria A. Roberts 

NICHOLAS JAMES MANN, 

 Defendant. 

_______________________________/ 

ORDER DENYING DEFENDANT’S MOTION FOR SENTENCE 

MODIFICATION (COMPASSIONATE RELEASE) [ECF Nos. 34 and 44] 

Upon motion of ☒ the Defendant ☐ the Director of the Bureau of Prisons 

for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), and after considering 

the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy 

statements issued by the Sentencing Commission, IT IS ORDERED that the 

motion is: 

☐ GRANTED

☐ The defendant’s previously imposed sentence of imprisonment of 

__________________ is reduced to . If this 

sentence is less than the amount of time the defendant already served, the 

sentence is reduced to a time served; or 

☐ Time served. 

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If the defendant’s sentence is reduced to time served: 

☐ This order is stayed for up to fourteen days, for the 

verification of the defendant’s residence and/or establishment of a 

release plan, to make appropriate travel arrangements, and to ensure 

the defendant’s safe release. The defendant shall be released as soon 

as a residence is verified, a release plan is established, appropriate 

travel arrangements are made, and it is safe for the defendant to travel. 

There shall be no delay in ensuring travel arrangements are made. If 

more than fourteen days are needed to make appropriate travel 

arrangements and ensure the defendant’s safe release, the parties shall 

immediately notify the court and show cause why the stay should be 

extended; or 

☐ There being a verified residence and an appropriate release 

plan in place, this order is stayed for up to fourteen days to make 

appropriate travel arrangements and to ensure the defendant’s safe 

release. The defendant shall be released as soon as appropriate travel 

arrangements are made and it is safe for the defendant to travel. There 

shall be no delay in ensuring travel arrangements are made. If more 

than fourteen days are needed to make appropriate travel 

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arrangements and ensure the defendant’s safe release, then the parties 

shall immediately notify the court and show cause why the stay 

should be extended. 

☐ The defendant must provide the complete address where the defendant 

will reside upon release to the probation office in the district where they will be 

released because it was not included in the motion for sentence reduction. 

☐ Under 18 U.S.C. § 3582(c)(1)(A), the defendant is ordered to serve a 

“special term” of ☐ probation or ☐ supervised release of ________ months (not 

to exceed the unserved portion of the original term of imprisonment). 

☐ The defendant’s previously imposed conditions of 

supervised release apply to the “special term” of supervision; or 

☐ The conditions of the “special term” of supervision are as 

follows: 

__________________________________________

__________________________________________

__________________________________________

__________________________________________ 

☐ The defendant’s previously imposed conditions of supervised release are 

unchanged. 

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☐ The defendant’s previously imposed conditions of supervised release are 

modified as follows: 

____________________________________________________

____________________________________________________

____________________________________________________

____________________________________________________

____________________________________________________ 

☐ DEFERRED pending supplemental briefing and/or a hearing. The court 

DIRECTS the United States Attorney to file a response on or 

before__________________________, along with all Bureau of Prisons records 

(medical, institutional, administrative) relevant to this motion. 

☒ DENIED after complete review of the motion on the merits. 

☒ FACTORS CONSIDERED (Optional) 

A. Mann Exhausted Administrative Remedies 

Mann exhausted administrative remedies. The Court now examines whether: 

(1) Mann establishes extraordinary and compelling reasons warranting 

compassionate release, (2) he would present a danger to the community if released; 

and (3) the 18 U.S.C. § 3553(a) factors are applicable. 

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B. Mann’s Medical Conditions May Establish Extraordinary and 

Compelling Reasons for Release 

The defendant must prove there are extraordinary and compelling reasons 

warranting modification where “[t]he defendant is ... suffering from a serious 

physical or medical condition ... that substantially diminishes the ability to provide 

self-care within the environment of a correctional facility and from which he or she 

is not expected to recover.” United States v. Watkins, No. 15-20333, 2020 WL 

4016097, at *2 (E.D. Mich. July 16, 2020). 

Mann says extraordinary and compelling medical reasons exist because he: 

(1) has a BMI over 30, asthma, high blood pressure, major depression, gastroesophageal reflux disease, smoking history, and heel pain - all placing him in a 

category of high risk for severe illness from COVID-19; and (2) is at greater risk of 

contracting COVID-19 due to conditions at FCI Milan. The Government disagrees 

that these present extraordinary and compelling reasons for release. 

i. Obesity 

Mann is severely obese. He says his weight, coupled with a lack of mobility due 

to a bone spur in his right ankle, greatly diminishes his ability to provide self-care at 

FCI Milan and constitutes an extraordinary and compelling justification for release. 

The Government acknowledges Mann is obese but says that his obesity, alone, 

does not qualify as extraordinary and compelling. 

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The Centers for Disease Control and Prevention (“CDC”) recognizes that certain 

underlying medical conditions – including obesity – increase a person’s risk of 

severe COVID-19 illness. Centers for Disease Control, People with Certain Medical 

Conditions (Nov. 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-with-medical-conditions.html#obesity. The CDC 

categorizes a BMI between 30-40 as “obese” and a BMI greater than 40 as “severely 

obese.” Id. 

Mann’s medical records indicate that he has a BMI of 47.3 – well above the risk 

level noted by the CDC. [ECF No. 34, PageID.300]. Most recently, Mann weighed 

in at 304 pounds. Id. Additionally, Mann was diagnosed with a plantar calcaneal 

spur (heel spur) on his right ankle and was ordered to consult with an orthopedic 

physician regarding the injury. [ECF No. 42-1, PageID.789]. His physician 

proscribed Naproxen for pain relief but Mann claims that he remains in pain. Mann 

did not provide any medical records that described the results of the orthopedic 

consult, but nonetheless contends he received inadequate treatment to address his 

bone spur. 

Mann’s severe obesity does increase his risk of severe illness if he contracts 

COVID-19. The apparent lack of treatment for his bone spur may further increase 

his inability to provide self-care at FCI Milan. 

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Asthma 

Mann’s medical records document a history of asthma. Doctors prescribed 

him an inhaler. He characterizes his symptoms as “moderate to severe” and notes 

that asthma is recognized by the CDC as a risk factor associated with COVID-19. 

The Government concedes that Mann has asthma but says his asthma does not 

require the use an inhaler because it is merely “exercise induced” and does not affect 

Mann’s normal life activities. 

The Government also points to recent BOP COVID-19 data which shows 

that as of November 9, 2020 FCI Milan has zero confirmed active cases among 

inmates and two positive cases among staff. See https://www.bop.gov/coronavirus/ 

(last visited November 9, 2020). Although the threat of contracting COVID-19 is 

ever-present, the danger at FCI Milan, according to the data, appears to be 

lessened. 

The Court acknowledges asthma is a serious respiratory illness, and that the 

information regarding COVID-19 is continuously updating and at times conflicting; 

however, the Court must rely upon the medical community and its current consensus 

on the risk factors for severe illness. The CDC warns that “moderate to severe 

asthma” may increase the risk for severe illness from COVID-19. People With 

Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/people-with-medical-conditions.html (last visited Nov. 5, 2020). 

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Mann’s medication summary from the Bureau of Prisons shows an active 

prescription for an Albuterol inhaler, with instructions to use it “only as 

needed...up to four times a day.” [ECF No. 61-9, PageID.579]. No medical 

evaluation categorizes Mann’s asthma specifically as “moderate” or “severe” 

however, in 2018, a physician at the BOP concluded that Mann’s asthma was 

“mild intermittent,” and “exercise induced.” [ECF No. 42-1, PageID.687]. It is 

plausible that the exercise needed to lose weight could exacerbate his asthma. 

Although the question may be a close one, the Court concludes that Mann’s 

severe obesity, his difficulty walking, his inability to exercise because of asthma 

and his asthma, constitute an extraordinary and compelling justification warranting 

reduction. However, resolution here ultimately turns on the Court’s analysis of 

Mann’s potential dangerousness. 

C. Mann’s Conduct Demonstrates He is a Danger to the Community 

Even if Mann demonstrated extraordinary and compelling health conditions, 

he is ineligible for release under 18 U.S.C. § 3582(c)(1)(A) because he is a danger 

to the community. Section 1B1.13(2) of the Sentencing Guidelines permits release 

only if “a defendant is not a danger to the community, as provided in 18 U.S.C. § 

3142(g).” Section 3142(g) sets forth the factors the Court must consider to 

determine if there are conditions of release that will assure the safety of the 

community: (1) the nature and circumstances of the offense charged; (2) the weight 

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of the evidence against the person; (3) the history and characteristics of the person; 

and (4) the nature and seriousness of the danger to any person or the community 

that would be posed by the person’s release. 18 U.S.C. § 3142(g). These factors do 

not favor Mann’s release. 

Federal courts are disinclined to grant compassionate release to petitioners 

convicted of crimes involving child pornography. Courts cite to potential 

dangerousness and the lack of participation in rehabilitative sex treatment 

programs. See Coleman v. United States, 2020 WL 3039123, at *4 (E.D. Va. June 

4, 2020) (denying the motion for compassionate release because defendant’s 

release plan did not adequately protect the public from the potential of a 

subsequent offense involving child pornography and because defendant had not 

participated in rehabilitative programs specific to his offense). Nevertheless, 

“while offense conduct may inform the Court’s discretion in deciding a motion for 

compassionate release and determining the appropriate conditions of release, such 

a motion may not be denied simply because of the underlying offenses.” Id. 

Although encouraged by this Court to do so, Mann has not participated in 

sex offender treatment programs offered by the BOP. [ECF No. 42-1, PageID.310]. 

Several district courts recognized the dangerousness of this omission. See United 

States v. Mitchell, 2020 WL 2770070, at *4 (E.D. Cal. May 28, 2020) (denying 

compassionate release because defendant failed to participate in any rehabilitative 

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program and failed to provide a detailed plan to prevent reoffending); See also 

United States v. Webster, No. 3:91CR138 (DJN), 2020 WL 618828, at *6–7 (E.D. 

Va. Feb. 10, 2020) (denying motion for compassionate release in part because 

defendant did not present evidence of rehabilitation to change assessment made at 

time of sentencing or to suggest he would not recidivate). Mann’s lack of 

participation weighs heavily against him. 

Even more concerning is Mann’s continued display of pedophilic 

proclivities. Twice Mann violated BOP regulations. In 2017, Mann possessed 

eleven “sexual” photos that were mailed to him [ECF No. 42-1, PageID.309] and 

in 2019, Mann possessed “sexually suggestive” photographs depicting minor 

females wearing braces and school uniforms. [ECF No. 42-1, PageID.313]. After 

BOP staff requested that Mann discard the photos of minors, Mann protested that it 

was not “fair” that sex offenders are not allowed to possess such images. 

Nonetheless, staff forced him to shred the photos of the children. Id. Not only is 

the possession of the pedophilic contraband disturbing, but Mann’s persistent 

failure to comprehend the flaws of his actions indicates that he continues to be a 

danger to the community. 

Mann’s underlying offense, refusal to participate in sex offender treatment, 

and continued pedophilic interests make him a danger to the community. 

Accordingly, he is not an appropriate candidate for the extraordinary remedy of 

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compassionate release under USSG § 1B1.13(2). 

D. The 18 U.S.C. § 3553(a) Factors are Inapplicable 

Finally, USSG §1B1.13 directs the Court to consider the § 3553(a) factors to 

the extent they are applicable. Mann says these factors support release because he 

has: (1) a lack of criminal history; (2) an absence of disciplinary infractions; and 

(3) a minimal PATTERN score. Mann requests that the Court temporarily place 

him in a Residential Reentry Center with supervision. 

Since Mann fails to demonstrate he would not be a danger to the community 

if released, no § 3553(a) factor overrides these findings. The Court DENIES 

Mann’s Motion WITHOUT PREJUDICE. 

IT IS ORDERED. 

 s/ Victoria A. Roberts 

 Victoria A. Roberts 

 United States District Judge 

Dated: November 12, 2020 

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