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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

Criminal No. 15-20094

v.

Hon. Matthew F. Leitman

Verdell Kennedy,

Defendant.

United States’ Response Opposing the Defendant’s Renewed 

Motion for Compassionate Release Post Covid Surge

The United States of America, by and through Assistant U.S. 

Attorney, Patrick E. Corbett, submits this response pursuant to the 

Court’s December 17, 2020, Order requiring a response. This is 

Kennedy’s third motion for compassionate release since May 4, 2020. 

The Government incorporates by reference the response and exhibits 

filed on May 21, 2020 (ECF No. 286, PageID.1237), the supplemental 

brief filed on June 8, 2020 (ECF No. 288, PageID.1284), and the 

response filed on September 2, 2020 (ECF No. 294, PageID.1308). In 

this response, in addition to submitting a summary of the case that 

highlights a few passages from earlier filings, the Government will 

provide an update with relevant facts provided by Ryan Nelson, Senior 

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Attorney, Federal Bureau of Prisons Consolidated Legal Center, after 

consultation with staff at FCI Ashland (Ashland), and from the Bureau 

of Prisons website.

Background

On September 1, 2015, Kennedy pleaded guilty to conspiracy to 

commit wire fraud. Kennedy had been detained from March 10, 2015, 

until September 10, 2015, at which time Judge Battani authorized 

Kennedy’s release pending sentencing. On March 30, 2016, while out on 

bond, Kennedy was arrested for the same type of fraudulent activity as 

in this case. Kennedy was attempting to purchase jewelry using a 

fraudulent credit card. After his arrest, deputies recovered from his 

person a total of nine fraudulent credit cards as well as a false 

identification. ECF No.218, PgID.895-896 (Government’s Sentencing 

Memorandum). 

On May 12, 2016, Judge Battani sentenced him to the top of his 

guideline range, due in part to his committing the same type of crime 

while out on bond. ECF No. 223, PgID.908 (Judgment); ECF No. 231, 

PgID.964-966 (Sentencing Hearing); ECF No. 218, PgID.896

(Government’s Sentencing Memorandum). 

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Kennedy began serving his current sentence of 105 months in prison

on July 19, 2016. His projected statutory release date is April 5, 2023,

and his full term expires July 20, 2024. Exhibit One (Public 

Information, Inmate Data, 12-16-20). Kennedy filed his initial motion 

for compassionate release on May 4, 2020. ECF No. 278, PageID.1105. 

This Court denied this motion for compassionate release on June 10, 

2020. ECF No. 289, PageID.1292.Two months later, on August 13, 

2020, Kennedy filed a renewed motion for compassionate release. ECF 

No. 290, PageID.1294. The Court denied that motion on October 7, 

2020. ECF No. 297, PageID.1328. Two months later, on December 17, 

2020, Kennedy filed this second renewed motion for compassionate 

release. ECF No. 300, PageID.1356. Like his first two motions, his 

second renewed motion should also be denied.

Argument

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

protecting inmates and increasing home confinement. 

As the Court already knows, since January 2020, the Bureau of 

Prisons has been preparing for Covid-19, implementing strict 

precautions to minimize the virus’s spread in its facilities. “Since the 

release of the Attorney General’s original memo to the Bureau of 

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Prisons on March 26, 2020 ... to prioritize home confinement as an 

appropriate response to the Covid-19 pandemic, the BOP has 

significantly increased its placement of offenders on home confinement. 

Currently, the BOP has 8,015 inmates on home confinement. The total 

number of inmates placed in home confinement from March 26, 2020 to 

the present (including inmates who have completed service of their 

sentence) is 19,654.” See BOP Covid-19 Website (last visited January 4, 

2021). For comparison, when the Government responded to Kennedy’s 

initial motion on May 21, 2020, 2,932 inmates had been released to 

home confinement. ECF No. 286, PageID.1239. And, as of November 

23, 2020, at least 137 defendants from the Eastern District of Michigan 

have been released into home confinement.The BOP has clearly worked 

to make home confinement—when appropriate—a high priority.

II. The Court should deny Kennedy’s renewed motion for 

compassionate release.

A. Kennedy’s medical condition

In connection with the original motion and his first renewed motion, 

the Government acknowledged that, during the Covid-19 pandemic, 

Kennedy’s Type 2 diabetes presented a qualifying medical condition 

under 18 U.S.C. § 3582(c)(1)(A)(i), and therefore, was “extraordinary 

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and compelling” under USSG 1B1.13(1)(A). ECF No. 286, 

PageID.1239; ECF No. 294, PageID.1310. Because Kennedy still 

appears to have Type 2 diabetes, the Government continues to 

acknowledge that, during the Covid-19 pandemic, Kennedy’s diabetes 

presents a qualifying medical condition under 18 U.S.C. 

§ 3582(c)(1)(A)(i) and guideline policy statement, USSG § 1B1.13.

Nevertheless, he is still not entitled to release. 

The acknowledgementthat Kennedy has a qualifying medical 

condition, however, does not suggest that the medical staff at Ashland, 

where Kennedy is presently living, is not addressing Kennedy’s needs. 

At the October 7, 2020 hearing on his first renewed motion for 

compassionate release, Kennedy asserted he was not getting proper 

medical care. This Court asked Government counsel to request that 

Ashland have a doctor look at Kennedy. Upon making that request, 

Ryan Nelson, Senior Attorney, Federal Bureau of Prisons Consolidated 

Legal Center, stated that Kennedy “can sign up for a sick call visit any 

time he wants. And has regularly scheduled chronic care visits, so in a 

practical sense, he is already scheduled to see a doctor.” Nelson also 

provided medical records revealing that in the three months prior to the 

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October 7, 2020 hearing, Kennedy received medical care on three 

occasions (July 13, 2020, September 1, 2020, and September 24, 2020). 

After the October 7 hearing, Kennedy visited a health care professional

on November 6, 2020, December 4, 2020, and December 10, 2020. 

Exhibit Two – 2020 Health Records (filed separately under seal).

On November 6, 2020, Kennedy was examined at the Chronic Care 

Clinic. The treating physician recommended Kennedy start taking 

Insulin for his Type II diabetes. The notes reflected that Kennedy chose 

not to follow this recommendation: “The pt does not want to start 

Insulin at this time. The pt understands the risk of MI, Kidney failure, 

CVA, vision loss, and death.” Other than a discussion about his blood 

pressure, the notes indicated that the “pt has no other new questions or 

concerns.” Id. at 3. The notes further reflected “Follow-up at Sick Call 

as Needed” and “Follow-up at Chronic Care Clinic as Needed.” Id. at 6.

On December 4, 2020, Kennedy was tested for Covid-19. The test 

came back negative. Id. at 2.

On December 10, 2020, a “Sick Call Note encounter [was] performed” 

on Kennedy. Kennedy requested and received a blood glucose check. 

The notes further reflected “Follow-up at Sick Call as Needed.” Id. at 1.

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Lastly, the medical notes reflected that Kennedy has laboratory tests 

scheduled for January 4, 2021, April 5, 2021, July 5, 2021, and October 

4, 2021, as well as a “Follow-up” or a “Chronic Care Visit” scheduled for 

January 18, 2021, April 19, 2021, July 19, 2021, and October 18, 2021. 

Id. at 5-6.

There is simply no reason to believe that, due to Covid-19 or any 

other reason, Kennedy is not getting proper care and will not continue 

to receive that care as needed. 

B. Application of USSG 1B.13

Defendant’s reference to United States v. Jones, 980 F.3d 1098 (6th 

Cir. Nov. 20, 2020), should not affect this Court’s use of USSG § 1B1.13. 

As the Court knows, a Sixth Circuit panel recently concluded in United 

States v. Jones, that § 1B1.13 is not “applicable”—and thus does not 

apply at all—to defendant-initiated motions for compassionate release. 

Id. at 1101.

Jones’s analysis on that point was incorrect, and the Government 

preserves for further review its argument that USSG § 1B1.13 is 

binding here and that Kennedy has failed to satisfy its requirements, 

because of the lifelong danger he has presented to the community.

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Further, as Judge Cook’s concurrence made clear, the Jones panel’s 

discussion of § 1B1.13 was dicta. Jones, Id. at 1116 (Cook, J., 

concurring). The only holding in Jones was that the district court there 

did not abuse its discretion in denying release based on the § 3553(a) 

factors. Id. So the remainder of the panel’s opinion is not binding. See 

Wright v. Spaulding, 939 F.3d 695, 700–02 (6th Cir. 2019) (explaining 

that “only holdings” and “not dicta” are binding in subsequent cases). 

But even if the Court were to follow the dicta in Jones, § 1B1.13 

continues to “provide a working definition of ‘extraordinary and 

compelling reasons,’” which can “guide” a district court’s decision 

“without being conclusive.” United States v. Gunn, 980 F.3d 1178, 1180

(7th Cir. Nov. 20, 2020). And even without § 1B1.13, the plain language 

of the compassionate-release statute does not permit “a sort of Wild 

West” or allow “every district judge [to] hav[e] an idiosyncratic release 

policy.” Id. The analyses of the Sentencing Commission, as represented 

in § 1B1.13 and its Application Notes, and the BOP Director should still 

be “given substantial weight,” and “strik[ing] out on a different path 

risks an appellate holding that judicial discretion has been abused.” Id.; 

see also Jones, 980 F.3d at 1112 (quoting with approval a prior panel’s 

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observations that “‘discretion’ does not mean ‘whim’” and “[a] court 

might abuse its discretion, for example, if it misreads the meaning of 

the extraordinary-reason requirement”).

As such, even though Kennedy’s diabetes presents a qualifying 

medical condition under USSG 1B1.13(1)(A), his offense and criminal 

history show that he is a danger to the community, see USSG 

§ 1B1.13(2), because, as is apparent from a review of his presentence 

report, Kennedy has spent his entire life stealing from others, 

fraudulently using others’ identities, and attempting to thwart law 

enforcement efforts to stop him. See ECF No. 286, PageID.1258-1263 

(Government’s May 21, 2020 Response Opposing the Defendant’s 

Motion to Modify Sentence for Compassionate Release).

C. Factors under 18 U.S.C. § 3553(a)

Moreover, the factors under 18 U.S.C. § 3553(a)—also fully discussed 

in the Government’s Response on May 21, 2020—do not support release. 

See ECF No. 286, PageID.1263-1268. Kennedy’s underlying federal 

crime victimized thousands of people. Release at this time would 

depreciate the seriousness of this offense. Moreover, Kennedy engaged 

in other fraudulent activity while on bond in this very case. His lifelong 

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attraction to committing crime—with no regard for its impact on his 

victims—demonstrates that he needs to be incarcerated in order to 

deter him from committing more crime and further endangering the 

community. 

And, while the BOP recently revised thePrisoner Assessment Tool 

Targeting Estimated Risk and Needs (PATTERN),1 which resulted in 

Kennedy’s Risk Level Category dropping from “medium” to “low”(as it 

did for 9,162 federal male inmates), a “low” score still indicates a 31% 

risk of recidivism, strongly indicating he is likely to return to crime 

upon release. Exhibit Three (Inmate History, First Step, 12-16-20). See

also The Attorney General’s First Step Act, Section 3634 Annual 

Report, at *5-6 (December 2020) 

(https://www.bop.gov/inmates/fsa/docs/20201221_fsa_section_3634_repo

rt.pdf). A recent case in the Eastern District of Michigan, Segars v. 

United States, 2020 WL 3172734, at *4 (E.D.MI. June 15, 2020), 

demonstrates that a “minimum” or “low” score should not be relied upon 

as a defining factor. In Segars, the Court released the defendant, 

finding Segarswas not a danger to the community due, in part, to the 

1 The tool is meant to be a predictive tool to assess whether someone is a high, medium, low, or 

minimum risk for reoffending based on several characteristics, or “risk factors.” 

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Court finding the defendant presented a “low risk of recidivism,” 

affirmed by the BOP’s “minimum” recidivism score. Six months later, a 

complaint was issued alleging that Segars fired a handgun at two 

victims “approximately eight times ... hitting each of them multiple 

times.” Exhibit Four (Criminal Complaint, No. 20-mj-30533, Ronald 

Segars).

D. Conditions at Ashland

The Government acknowledges that Ashland had a Covid-19 problem 

in November 2020. ECF No. 300-1, PageID.1369 (Defendant’s Exhibit 

2, November 24, 2020 Warden Memorandum noting 21 staff cases of 

Covid-19 and 183 inmate cases). While it appears to have temporarily 

worsened in November 2020 (in total, 6 inmates died and 321 inmates 

had Covid-19 and recovered), the problem now appears to be under 

control. As of January 4, 2021, approximately 4% of the inmate 

population had Covid-19 (38/963 total inmates). BOP Covid-19 site

(https://www.bop.gov/coronavirus/); Ashland Homepage 

(https://www.bop.gov/locations/institutions/ash/).

In denying Kennedy’s initial motion and his first renewed motion, 

the Court considered a supplemental brief and response which provided

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some specific information regarding Ashland, the facility where 

Kennedy resides. ECF No. 288, PageID.1284; ECF No. 294, 

PageID.1308. Given the November 2020 Covid-19 problem at Ashland,

BOP Senior Counsel, Ryan Nelson, sought and received some additional 

information from Ashland. In addition to the precautions noted in 

earlier briefs, Ashland has taken additional steps to protect inmates in 

response to November 2020 increase in Covid-19 cases:

• Ashland is on “Modified operations,” and all food is taken to the 

unit and delivered to the inmates. Ashland began serving 

commissary again as of December 15, 2020. Phone and email 

has continued with slight variances since August. 

• Numerous inmates have been tested, due to the increase in 

positive cases at Ashland.

• Inmates are tested based on CDC guidelines.

• Inmates are tested who are showing symptoms.

• Inmates are tested based on contact tracing due to the increase 

in Covid-19 cases.

• Currently, Ashland had a moratorium on receiving inmates due 

to the November 2020 Covid-19 cases. Movement will be 

reevaluated beginning January 2021.

• All new inmates are Covid-19 tested.They are then placed in 

quarantine for 14 days, and then re-tested with a PCR test, 

before being released to General Population.

While in no way intending to minimize the seriousness of the 

increased number of Covid-19 cases at Ashland in November 2020, it 

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appears that Ashland has addressed—and continues to address—this 

outbreak. And, as the medical records show, medical professionals at 

Ashland continued to provide Kennedy with medical care in November 

and December 2020, including a Covid-19 test on December 4, 2020 that 

came back negative. 

The risk of contracting Covid-19 is never zero—neither inside a 

prison nor outside a prison. In Michigan (outside of prison), where 

Kennedy asks to be released,2 the situation is bleak. As of December 31, 

2020, Michigan’s 7-day average of daily new cases sits at 2,736. The 

state is considered a place with the “highest COVID-19 risk level” 

indicating “unchecked community spread” of the virus. Wayne County 

currently has a 7-day average of 389 daily new cases and a frequency 

rate of 22.1 infections per 100,000 individuals—just under the state’s 

27.4 infections per 100,000 and an indication of “escalating community 

spread.” Across the state, 526,932 people have been infected and 13,008

people have died.

2 In his first renewed motion for compassionate release, Kennedy asserts he “has a suitable reentry program established as he will be living with family in Detroit....” ECF No. 290, 

PageID.1301.

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The Court might be wondering, in light of Covid-19, if Kennedy is 

safer inside prison or in Detroit. The Government urges the Court to 

avoid the “numbers” game, attempting to assess which location is safer

from a Covid-19 perspective. Kennedy is at risk whether he is in prison 

or outside of prison. Risk level will change from month to month. 

Ashland, however, has made significant steps to minimize the risk and, 

as demonstrated by his medical records, has fully cared for Kennedy 

while Covid-19 affected inmates and staff at the facility. Given the 

totality of facts of this case, Kennedy should remain an inmate. Other 

courts have denied motions for compassionate release when Covid-19 

affected inmates in the prison. See United States v. Thomas, 471 

F.Supp.3d 745, 750 (W.D. Va. July 10, 2020) (“While Forrest City Low 

may have had 454 inmates test positive for COVID-19 by June 1, 2020 

when Thomas filed his motion, today the BOP indicates that only 28 

inmates and 1 staff member currently have COVID-19. That dramatic 

decrease in positive tests in a one-month timeframe demonstrates that 

the methods that Forrest City Low and the BOP are undertaking are 

working, including ‘quarantines, limited contractor and volunteer 

access, a prohibition on social and legal visits, maximized social 

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distancing within the facilities, and additional cleaning and sanitizing 

of the prisons.’”); United States v. Frost, 2020 WL 3869294, at *4 (D.S.D. 

July 9, 2020) (Lange, C.J.) (inmate tested positive at Butner Low, which 

had huge outbreak, and suffers from many conditions, including type 2 

diabetes mellitus, cardiomyopathy, and COPD; court finds

circumstances not extraordinary); United States v. Todd, 2020 WL 

3839702, at *2 (S.D. Fla. July 8, 2020) (court denies motion for a “high 

risk” defendant while recounting steps taken at FCI Oakdale I to stem 

early outbreak). 

Summary and Conclusion

Following the guidance provided by USSG § 1B.13(2), and 

considering the factors under 18 U.S.C. § 3553(a), Kennedy remains an 

unsuitable candidate for release. While at Ashland, despite pursuing 

education courses (Exhibit Five – Inmate Education Data, 12-16-20; 

Exhibit Six – Program Review, 11-5-20), he continues to struggle with 

following rules. Exhibit Seven – Inmate Discipline Data, 12-16-20

(sanctioned incidents on November 30, 2020, and March 28, 2019). 

In the past, when not in prison, Kennedy actively pursued criminal 

activities. As the Court knows from the Government’s response to his 

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initial motion for compassionate release, Kennedy’s underlying identity 

theft and credit fraud scheme victimized thousands of people. ECF No. 

286, PageID.1240-1242. Federal law enforcement encountered three 

firearms when searching Kennedy’s residence. Id. at 1260. As of 

November 5, 2015, Kennedy had 17 aliases and 11 alternate IDs. PSR

at pp. 2-3. With a Criminal History Category of VI, Kennedy’s 19 

criminal convictions spanned nearly 30 years and three different states 

(MI, KY, MO) – from 1988 (when he was 19) to his federal wire fraud 

conspiracy conviction in 2015. Nearly every conviction involved similar 

conduct—misrepresenting/falsifying identity with intent to obstruct, 

retail fraud, breaking and entering a vehicle to steal property, failure to 

obey, financial transaction device use, false pretenses, fraudulent use of 

credit/debit, criminal possession of a forged instrument, fleeing and 

evading police, resisting arrest, theft/stealing property, tampering with 

physical evidence, and federal wire fraud conspiracy. He also added 

assault and battery and trafficking in controlled substances to his 

litany of fraud-related convictions. Id. at ¶¶42-65.

Kennedy’s criminal history shows that he would be a danger to 

himself and others if released. His past crimes involved direct contact 

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with people. Given the likelihood that he would be a repeat offender, 

Kennedy would be unlikely to follow basic restrictions on release—much 

less the CDC’s social-distancing protocols or a stay-at-home order. For 

nearly his entire adult life, he committed crimes—using other people’s 

identities—to make money. His crimes involved close contact with other 

people. His criminal history and spotty employment record strongly 

suggest he knows of no other way to make money. PSR at ¶¶79-81. 

As the Court knows from the Government’s response to Kennedy’s 

initial motion, at his sentencing, Judge Battani was very concerned 

about the danger posed by Kennedy: 

I mean, this identity thing, which is basically what all of these 

involved, is a very serious threat. It is an economic threat to our 

economy, but also a very personal threat. People whose identity is 

stolen, that person is very fearful and it changes their whole 

perspective. I think we have all known people, if not ourselves, 

who have had their identity stolen, credit cards opened in their 

names, et cetera. It is a very -- it has a great impact on their life. 

Yes, it is not physically assaultive, but it hurts in another way, so 

it is very serious.

ECF No. 231, PageID.963. Judge Battani then sentenced Kennedy to 

the top of his guideline range, acknowledging that she made a mistake 

trusting that he would not commit more fraud while out on bond: 

I think that, in doing the top of the guidelines, I mean, this is one 

case, I have to tell you this is probably the first case that I can’t 

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even remember going above the guidelines, because that’s how 

serious I think this is. ... And how much I don’t want to make 

another mistake with you. 

ECF No. 231, PageID.966. 

Finally, as noted in the Government’s response to the original 

motion, victims remain fearful of Kennedy: “As victim “E.M.” stated 

within days of being notified of Kennedy’s 5/26/20 Zoom hearing on his 

motion to modify sentence, “I still worry all the time about my stolen 

identity so he should serve every minute of his sentence.”” ECF No. 

286, PageID.1261.

In sum, the evidence does not support the compassionate release of

Verdell Kennedy. His second renewed motion should be denied.

Respectfully submitted,

MATTHEW SCHNEIDER

United States Attorney

s/Patrick E. Corbett

PATRICK E. CORBETT

Assistant U.S. Attorney

211 W. Fort Street, Suite 2001

Detroit, Michigan 48226

313-226-9703

Dated: January 4, 2021

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CERTIFICATE OF SERVICE

 I hereby certify that on January 4, 2021, I electronically filed the foregoing 

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

notification of such filing to all interested parties.

 s/Patrick E. Corbett

 Patrick E. Corbett, P41182

 Assistant U.S. Attorney

 211 W. Fort Street, Suite 2001

 Detroit, Michigan 48226

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