UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA, CASE NO. 15-CR-20351

Plaintiff, HON. SEAN F. COX

v.

D-2 WASEEM ALAM,

Defendant.

/

UNITED STATES’ RESPONSE TO DEFENDANT’S MOTION FOR 

COMPASSIONATE RELEASE

The United States of America opposes the Defendant’s motion asking the 

Court to grant a compassionate release to the Defendant. As explained below, the 

Defendant is not entitled to the relief he seeks, and his motion should be denied.

I. INTRODUCTION

Defendant Waseem Alam (“Alam”), Register Number 51097-039, an inmate 

in the custody of the Federal Bureau of Prisons (“BOP”), filed the instant motion 

asking the Court to grant his compassionate release preceding the expiration of his

period of confinement. Alam asks the Court to grant this relief in the wake of the 

COVID-19 pandemic or “coronavirus” because “Mr. Alam’s health conditions –

particularly diabetes, coronary artery disease, and hypertension – render Mr. Alam 

at extremely high risk for COVID-19.” Dkt. 331 at 2. 

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On May 22, 2017, Alam began serving a 101-month term of imprisonment 

as a result of his pleading guilty to one count of conspiracy to commit health care 

fraud and wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349. On November 

17, 2017, Alam submitted a motion to vacate his sentence due to the ineffective 

assistance of his counsel pursuant to 28 U.S.C. § 2255. Dkt. 256. Alam is 

currently designated to the Federal Correctional Institution in Milan, Michigan 

while he awaits an evidentiary hearing on this pending motion. His projected 

release date is July 23, 2024. 

As an initial matter, Alam has failed to show that he has exhausted BOP’s 

administrative procedures for requesting compassionate release that are required 

prior to seeking relief before this Court. In addition, even if Alam had exhausted

BOP’s administrative procedures, he has not demonstrated that the dangers posed 

to him due to the COVID-19 pandemic constitute an extraordinary and compelling 

reason that warrant his release from custody.

II. STATUTORY BACKGROUND 

A. Exhaustion of Administrative Remedies Under the First Step Act

The First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, was signed 

into law on December 21, 2018 (“First Step Act”). Among other reforms, the First 

Step Act expands the criteria for compassionate release and gives defendants the 

opportunity to appeal BOP’s denial of compassionate release. Pub. L. No. 115-

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391, § 603(b). To request a reduction in his or her term of imprisonment for a 

“compelling and extraordinary reason,” or “compassionate release,” a defendant 

must comply with the language set forth in 18 U.S.C. § 3582(c)(1)(A). The 

language of 18 U.S.C. § 3582(c)(1)(A) provides, in relevant part:

The Court may not modify a term of imprisonment once it has been imposed 

except that—

(1) in any case—

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon 

motion of the defendant after 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 the lapse of 30 days from the 

receipt of such a request by the warden of the defendant's facility, whichever 

is earlier, may reduce the term of imprisonment...after considering the 

factors set forth in section 3553(a) to the extent that they are applicable, if it 

finds that—

(i) Extraordinary and compelling reasons warrant such a reduction...

And that such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission. (Emphasis added).

The First Step Act gives defendants the opportunity to appeal BOP’s denial 

of compassionate release, but it does not alter the requirement that prisoners must 

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first exhaust administrative remedies before seeking judicial relief. Id.; see 

also, Pub. L. No. 115-391, § 603(b).

B. Extraordinary and Compelling Reasons

The Sentencing Commission has promulgated a policy statement regarding 

compassionate release under § 3582(c), which is contained in U.S.S.G. 

§ 1B1.13 and the accompanying Application Notes. United States v. McGraw, 

2:02-cr-18, 2019 WL 2059488, at *3 (S.D. Ind. May 9, 2019). While that particular 

policy statement has not yet been updated to reflect that defendants (and not just 

the BOP) may move for compassionate release, courts have universally turned 

to U.S.S.G. § 1B1.13 to provide guidance on the “extraordinary and compelling 

reasons” that may warrant a sentence reduction. Id. (citing United States v. Casey, 

No. 1:06-cr-71, 2019 WL 1987311, at *1 (W.D. Va. 2019); United States v. 

Gutierrez, No. CR 05-0217, 2019 WL 1472320, at *2 (D.N.M. 2019); United 

States v. Overcash, 3:15-cr-263, 2019 WL 1472104, at *2-3 (W.D.N.C. 2019)).

Application Note 1 in Section 1B1.13 provides three specific reasons that 

are considered extraordinary and compelling: (1) the inmate’s medical condition; 

(2) the inmate’s age; and (3) the inmate’s family circumstances. In addition, the 

note includes a catchall provision recognizing as “extraordinary and compelling” 

any other reason as previously “determined by the Director of the Bureau of 

Prisons.” See U.S.S.G § 1B1.13, app. note 1. 

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III. ARGUMENT

A. Alam Has Failed to Exhaust the Administrative Procedures 

Necessary to Warrant Judicial Review

Alam has not exhausted the administrative remedies required under 18 

U.S.C. § 3582(c)(1)(A) that would enable him to seek relief before this Court. On

March 25, 2020, Alam applied for compassionate release directly with BOP due to

his “serious medical conditions and the spread of COVID-19.” Dkt. 331 at 1. 

Alam has provided no documentation indicating that he exhausted his appeal rights 

before BOP that would warrant judicial review of that request. Rather, Alam 

concedes that he has not exhausted his administrative remedies before BOP, and 

instead argues that the exhaustion requirements for compassionate release under 

the First Step Act are not mandatory, and that the Court may carve out an 

exception to these requirements in light of the COVID-19 pandemic. See Dkt. 331 

at 6. 

In making this argument, Alam attempts to distinguish the language of the 

First Step Act from case law interpreting the language of the Prison Litigation 

Reform Act of 1995, in which the Supreme Court ruled that courts do not have the 

power to create emergency exceptions to the exhaustion requirement because 

Congress created a mandatory requirement. See Ross v. Blake, 136 S.Ct. 1850, 

1857 (2016). Contrary to Alam’s position, the Supreme Court’s ruling in Ross is 

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controlling here. Statutory exhaustion requirements, like the one in 

§ 3582(c)(1)(A), are mandatory. Id. at 1855–57. Those requirements may not be 

excused, even to account for “special circumstances.” Id.

Alam’s failure to exhaust administrative remedies is fatal to his claim. As 

the Third Circuit explained recently in denying a similar, unexhausted motion for 

compassionate release, the COVID-19 pandemic does not permit inmates or 

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

v. Raia, __ F.3d __, No. 20-1033, 2020 WL 1647922 (3d Cir. Apr. 2, 2020). 

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.; see also United States v. Miller, No. 16-CR-00269, 

2020 WL 113349, at *2 (D. Idaho Jan. 8, 2020) (“Miller’s motion will be 

dismissed without prejudice. Miller is free to refile it after fully exhausting the 

Bureau of Prison’s administrative appeals process.”); United States v. Eberhart, 

No. 13-CR-00313, 2020 WL 1450745, at *2 (N.D. Cal. Mar. 25, 2020) (“Because 

defendant has not satisfied the exhaustion requirement, the court lacks authority to 

grant relief [based on COVID-19] under § 3582(c)(1)(A)(i).”).

The appropriate course of action for Alam is to await a response from BOP, 

which currently has the authority to grant his request. Under the Attorney 

General’s recent directives and new statutory authority enacted on March 27, 2020, 

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BOP is actively evaluating its prison population to determine which inmates face 

the greatest risk from COVID-19 and pose the least risk to public safety if granted 

home confinement. By seeking judicial action without first exhausting 

administrative remedies before BOP, Alam is in effect asking this Court to 

circumvent established BOP protocols. Not only does this request attempt to 

undermine BOP’s authority, but it also attempts to prioritize Alam over other

inmates during a national crisis.

Alam has not shown that he has exhausted the appropriate channels through 

BOP for his request for compassionate release based upon the COVID-19 

pandemic. Given this lack of evidence, it does not appear that Alam has “fully 

exhausted all administrative rights to appeal a failure of the BOP to bring a motion 

on the defendant’s behalf,” as required under § 3582(c)(1)(A). As such, the United 

States respectfully request that this Court deny Alam’s motion.

B. Alam Has Not Demonstrated Extraordinary and Compelling 

Reasons to Warrant Compassionate Release

Even if Alam were to exhaust the administrative remedies that remain 

available to him within BOP, he has not established that the threat of contracting 

COVID-19 constitutes extraordinary and compelling circumstances that would 

warrant his release to home confinement. In support of his motion, Alam argues 

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that, as a 64-year-old who suffers from diabetes, coronary artery disease, and 

hypertension, he is at high risk of contracting coronavirus. Dkt. 331 at 1-2. 

Alam’s position that he is at risk of contracting coronavirus does not 

establish an extraordinary and compelling reason that warrants his release. First, 

Alam’s reason for modification of his sentence does not fall within any of the three 

specified reasons delineated in the Sentencing Commission’s policy statement. See

U.S.S.G. § 1B1.13, app. note 1. In this regard, Alam is not suffering from a 

terminal illness; Alam is not over 65 years old and has not served 75 percent of his

sentence; and Alam is not alleging the death or incapacitation of a caregiver for his

minor children, spouse, or partner. Thus, Alam is asking this Court to grant his

relief pursuant to the catchall provision of Application Note 1(D). 

The Court does not have the authority to override the plain language of 

Application Note 1(D) and determine for itself what the extraordinary and 

compelling reasons are for compassionate release. However, assuming that the 

Court, and not solely the Director of the BOP, has the authority to determine 

extraordinary and compelling reasons pursuant to Section 1B1.13, Application 

Note 1(D), the presence of the COVID-19 pandemic in the United States, 

generally, is insufficient to grant the relief Alam is requesting. BOP institutions, as 

a matter of policy and procedure, have “pandemic plans for preparedness in the 

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event of any infectious disease outbreak.”1 BOP is therefore equipped, prepared, 

and ready to deal with pandemics such as the coronavirus. Since at least October 

2012, BOP has had a robust plan in place to deal with other pandemics, including 

Pandemic Influenza, by taking steps such as increased hygiene, “social distancing,” 

and quarantining.2 

The dangers associated with COVID-19 are real, and in response to those 

dangers BOP has implemented new measures to prevent its potential spread and 

protect the health and safety of its staff and federal inmates. In response to the 

COVID-19 pandemic specifically, BOP has taken aggressive steps to protect 

inmates’ health and to keep COVID-19 outside of its facilities.”3

 BOP began 

planning for COVID-19 in January 2020, when it established a task force to develop 

policies in consultation with the CDC. BOP has implemented Modified Operations, 

including suspending social visits, suspending legal visits (but continuing to allow 

confidential legal calls), limiting inmate movement, maximizing social distancing, 

enhanced screening of staff, and continued screening of inmates.4

 Moreover, for 

inmates who have COVID-19 symptoms, or a temperature greater than 100.4 

 1 See BOP, “BOP’s COVID-19 Response,” 

https://www.bop.gov/coronavirus/overview.jsp#bop_covid-19_response. 2 See BOP, “Pandemic Influenza Plan” (Oct. 2012), 

https://www.bop.gov/resources/pdfs/pan_flu_module_1.pdf. 3 See BOP, “Updates to BOP COVID-19 Action Plan: Inmate Movement” (Mar. 19, 2020), 

https://www.bop.gov/resources/news/20200319_covid19_update.jsp. 4 See BOP, “COVID-19 Action Plan: Agency-Wide Modified Operations” (Mar. 13, 2020), 

https://www.bop.gov/resources/news/20200313_covid-19.jsp. 

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degrees Fahrenheit, they will immediately be placed in isolation.5

 On March 24, 

2020, BOP announced that it would quarantine all newly arriving inmates for 

fourteen days so as to not introduce the infection within the receiving facility.6

Finally, on March 31, 2020, BOP announced that, effective April 1, 2020, it would 

confine all inmates to their cells for 14 days to stem the spread of COVID-19.7 

In sum, BOP has a plan in place to protect inmates, including Alam, from the 

threats of COVID-19. Nothing in the First Step Act or U.S.S.G. § 1B1.13 supports 

the notion that the presence of COVID-19 alone qualifies as an extraordinary and 

compelling reason for compassionate release. As such, Alam’s request fails on the 

merits.

IV. CONCLUSION

For the foregoing reasons, the United States respectfully requests that this 

Court deny Alam’s motion.

Respectfully submitted,

MATTHEW SCHNEIDER

United States Attorney

 5 See id.

6 See BOP, “Bureau of Prisons Update on COVID-19” (Mar. 24, 2020), 

https://www.bop.gov/resources/news/pdfs/20200324_bop_press_release_covid19_update.pdf. 7 See BOP, “COVID-19 Action Plan: Phase Five” (Mar. 31, 2020), 

https://www.bop.gov/resources/news/20200331_covid19_action_plan_5.jsp.

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MALISA DUBAL

Assistant Chief

U.S. Department of Justice

Criminal Division, Fraud Section

s/Claire Sobczak

CLAIRE SOBCZAK

U.S. Department of Justice

Criminal Division, Fraud Section

1400 New York Ave., N.W.

Washington, D.C. 20005

Phone: (202) 591-5418

Email: claire.sobczak@usdoj.gov

Date: April 7, 2020

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CERTIFICATE OF SERVICE

I hereby certify that on April 7, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using the ECF system, which will send 

notification of such filing to counsel for Defendant.

s/Claire Sobczak

CLAIRE SOBCZAK

U.S. Department of Justice

Criminal Division, Fraud Section

1400 New York Ave., N.W.

Washington, D.C. 20005

Phone: (202) 591-5418

Email: claire.sobczak@usdoj.gov

Date: April 7, 2020

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