1

 UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

v. 

TORIONO HUMPHREY, 

 Defendant. 

 / 

Case No. 2:15-cr-20329-4 

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING 

DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE [287] 

Defendant Toriono Humphrey moved for compassionate release under the 

First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i). ECF 287, PgID 1124. Defendant offers 

several reasons why he is entitled to a reduced sentence including hypertension, 

Graves disease, a body mass index ("BMI") in the obese range, and asthma as a child. 

Id. at 1125. The Government responded arguing Defendant's conditions were not 

extraordinary or compelling to warrant a reduction in his sentence. ECF 290. For the 

following reasons, the Court will deny the compassionate release motion. 

Under the First Step Act's compassionate release provision, the Court may 

modify Defendant's sentence only if: (1) he has exhausted all administrative 

remedies, or (2) thirty days have passed since the warden received Defendant's 

request for the BOP to bring a motion on his behalf. 18 U.S.C. § 3582(c)(1)(A). The 

exhaustion condition is "mandatory." United States v. Alam, 960 F.3d 831, 833–34 

(6th Cir. 2020) (alteration in original) (quoting § 3582(c)(1)(A)). It is Defendant's 

Case 2:15-cr-20329-SJM-MKM ECF No. 294, PageID.1550 Filed 04/15/21 Page 1 of 6
 2

burden to establish that he has exhausted all his administrative remedies. See United 

States v. Pena-Lora, No. 15-20695, 2020 WL 3886384, at *1 (E.D. Mich. July 9, 2020) 

(citation omitted). And, most importantly, a defendant fails to exhaust his 

administrative remedies when "the factual basis in the administrative request and 

the motion before the [C]ourt are different[.]" United States v. Asmar, 465 F. Supp. 

3d 716, 719 (E.D. Mich. 2020). 

Because Defendant has exhausted his request for compassionate release based 

on his health, ECF 287, PgID 1132–33, he must satisfy "three substantive 

requirements" for the Court to grant compassionate release. United States v. Ruffin, 

978 F.3d 1000, 1004 (6th Cir. 2020). First, the Court must "find[] 

that . . . extraordinary and compelling reasons warrant such a reduction." Id. at 1003 

(quoting § 3582(c)(1)(A)(i)). Second, the Court must "find that such a reduction is 

consistent with applicable policy statements issued by the Sentencing Commission." 

Id. at 1005 (quoting § 3582(c)(1)(A) (alterations omitted)); but see United States v. 

Hampton, 985 F.3d 530, 532 (6th Cir. 2021) (explaining that district courts "may now 

'skip step two'" because there is no applicable policy statement) (quoting United 

States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020)). Third, the Court must consider 

the applicable § 3553(a) sentencing factors. Ruffin, 978 F.3d at 1005 (quoting 

§ 3582(c)(1)(A)). 

For the first requirement, Defendant must show that "extraordinary and 

compelling reasons" warrant a reduction in sentence. § 3582(c)(1)(A)(i). "[D]istrict 

courts have discretion to define 'extraordinary and compelling' on their own 

Case 2:15-cr-20329-SJM-MKM ECF No. 294, PageID.1551 Filed 04/15/21 Page 2 of 6
 3

initiative." United States v. Elias, 984 F.3d 516, 519–20 (6th Cir. 2021) (citing Jones, 

980 F.3d at 1111; Ruffin, 978 F.3d at 1007). 

 "Several cases in the Eastern District of Michigan have adopted textual 

analyses to determine what reasons are 'extraordinary and compelling[.]'" United 

States v. Powell, No. 2:12-cr-20052-2, 2021 WL 613233, at *2 (E.D. Mich. Feb. 17, 

2021) (Murphy, J.) (collecting cases). An "extraordinary and compelling reason" for 

compassionate release is one that is "beyond what is common, and the forcefulness of 

the evidence tends to convince the Court to release the inmate." Id. (internal 

quotation marks and quotations omitted). "Put another way, an extraordinary and 

compelling reason is one that is beyond what is usual, customary, regular, or common, 

and is so great that irreparable harm or injustice would result if the relief is not 

granted." Id. (cleaned up). 

But Defendant's claimed "extraordinary and compelling reasons" are not 

persuasive for several reasons: 

First, there is no evidence in the record to support Defendant's claims of 

hypertension. ECF 293-1, PgID 1215, 1252, 1332, 1413 (under seal). Instead, the 

record suggests Defendant has healthy blood pressure. Id. (under seal). And while 

the record does suggest that Defendant has Graves disease, ECF 293-1, PgID 1276 

(under seal), the CDC does not specify that Graves disease or any other Thyroid 

issues place a person at heightened risk of severe illness from COVID-19. See People 

with Certain Medical Conditions, CDC, (Apr. 14, 2021), https://bit.ly/31WKhck 

Case 2:15-cr-20329-SJM-MKM ECF No. 294, PageID.1552 Filed 04/15/21 Page 3 of 6
 4

[https://perma.cc/6SX2-5ESJ]. A diagnosis of Graves disease alone does not constitute 

an extraordinary or compelling reason for compassionate release. 

Next, there is nothing uncommon about the risks that Defendant faces to 

serious illness because of his obesity. Indeed, "[o]besity and overweight are common 

conditions; 42% of American adults are obese and 32% are overweight." United States 

v. Mungarro, No. 07-20076, 2020 WL 6557972, at *2 (E.D. Mich. Nov. 9, 2020) 

(Cleland, J.) (collecting sources). Nor is obesity a compelling reason to warrant 

compassionate release because "[w]ith monitoring and effective lifestyle changes, 

high [BMI] can be improved, if not fully treated." Id. (collecting sources). All told, the 

Court is confident that Defendant can take proactive steps to monitor and reduce his 

BMI. Because of that, Defendant's high BMI does not warrant compassionate release. 

Fourth, Defendant's COVID-19 reinfection concerns are overblown. For one, 

Defendant's COVID-19 diagnosis was uneventful—he lacked symptoms. ECF 293-1, 

PgID 1505, 1530 (under seal). For another, the existing scientific consensus does not 

support Defendant's COVID-19 concerns. Research from the National Institutes of 

Health ("NIH") has explained that ninety-five percent of individuals who recover from 

COVID-19 have up to eight months immunity to the virus. See Lasting Immunity 

Found After Recovery From COVID-19, NIH, (Apr. 14, 2021), https://bit.ly/3rHl6nB, 

[https://perma.cc/FW78-ABEV]. Other courts in the Eastern District of Michigan 

have reviewed the scientific literature and found that the extremely low COVID-19 

reinfection risk is not an extraordinary and compelling reason under the First Step 

Case 2:15-cr-20329-SJM-MKM ECF No. 294, PageID.1553 Filed 04/15/21 Page 4 of 6
 5

Act. See Mungarro, 2020 WL 6557972, at *3; United States v. Lawrence, No. 17-20259, 

2020 WL 5944463, at *2 (E.D. Mich. Oct. 7, 2020) (Roberts, J.) (collecting cases). 

Finally, the Court is not persuaded that Defendant is concerned about the 

actual health risks from re-contracting COVID-19. First, COVID-19 reinfection is 

very rare. Mungarro, 2020 WL 6557972, at *3 (collecting sources). With that in mind, 

Defendant can reduce his small chance of reinfection even more through vaccination. 

See United States v. Toney, No. 17-20184, 2021 WL 1175410, at *1 (E.D. Mich. Mar. 

29, 2021) (Levy, J.) (collecting sources on the effectiveness of COVID-19 vaccines). 

But Defendant declined to receive the COVID-19 vaccine. ECF 293-1, PgID 1544 

(under seal). Courts in the Eastern District of Michigan routinely "refuse[] to find 

extraordinary and compelling medical circumstances when a defendant declines the 

COVID-19 vaccine." Id.; see, e.g., United States v. Austin, No. 15-20609, 2021 WL 

1137987, at *2 (E.D. Mich. Mar. 25, 2021) (Cleland, J.). The finding is even more 

straightforward here because Defendant moved for compassionate release after he 

refused the COVID-19 vaccine. ECF 287, PgID 1128 (moving for compassionate 

release on February 18, 2021); ECF 293-1, PgID 1544 (refusal to receive the vaccine 

on January 27, 2021) (under seal). Altogether, even if there were good reasons to 

refuse a COVID-19 vaccine, Defendant never explained why he did so. In sum, the 

Court will deny compassionate release because no extraordinary or compelling 

reasons warrant Defendant's release. 

Case 2:15-cr-20329-SJM-MKM ECF No. 294, PageID.1554 Filed 04/15/21 Page 5 of 6
 6

WHEREFORE, it is hereby ORDERED that Defendant's motion for 

compassionate release [287] is DENIED.

SO ORDERED. 

 

 s/ Stephen J. Murphy, III 

 STEPHEN J. MURPHY, III 

 United States District Judge 

Dated: April 15, 2021 

I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on April 15, 2021, by electronic and/or ordinary mail. 

 s/ David P. Parker 

 Case Manager 

Case 2:15-cr-20329-SJM-MKM ECF No. 294, PageID.1555 Filed 04/15/21 Page 6 of 6