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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, 

v. Case No. 15-cr-20442 

 District Judge Paul D. Borman 

DAVON KEMP, 

 

 Defendant. / 

ORDER DENYING DEFENDANT'S "MOTION FOR COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(c)" (ECF NO. 313) 

 On August 21, 2020 Defendant filed a Motion for Compassionate Release 

Pursuant to 18 U.S.C. § 3582. Defendant cites as CONTROLLING AND 

PERSUASIVE AUTHORITY: 18 U.S.C. § 3582, U.S.S.G. § 1B1.13, and the case 

of "United States v. White, Case No. 13-20653 [ECF No. 54] (E.D. Mich., May 20, 

2020)." [Leitman, J.] (ECF No. 313, Page ID 3452.). 

 Defendant states that he: 

[i]s a 34-year-old African American inmate currently 

serving a 180-month sentence following his conviction 

on a single count of attempted possession with intent to 

distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) 

and 846, and 18 U.S.C. § 2. See PSR, ¶ 3, Pg. 4: Dkt. 

208. Kemp was acquitted of the more serious charges of 

conspiring to possess, to possess with intent to distribute 

cocaine and heroin and he was also acquitted of the 

924(c) charge of possessing a firearm in furtherance of a 

drug trafficking offense. Defendant is currently housed at 

 

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FCI Safford in Arizona. Defendant's release date is 

scheduled for August 2029. 

(ECF No. 313, Page ID 3453.) 

 Defendant concisely summed up the prerequisites to the Court's 

consideration of compassionate release: 

In sum, a defendant seeking compassionate release must 

present extraordinary and compelling circumstances, 

must have § 3553(a)'s sentencing factors weighing in his 

favor, must not be a threat to others as determined by § 

3142(g), and must fit within one of the four categories in 

§ 1B1.13 of the Sentencing Guidelines. 

(Defendant's Motion, ECF No. 313 at Page ID 3454.) 

 As to the relevant first prerequisite set forth in 18 U.S.C. § 3582(c), that 

there has been a lapse of 30 days from submitting his request to his warden on July 

13, 2020, to bring a motion on Defendant's behalf, on August 3, 2020 his warden 

denied his request, and Defendant filed his Motion in this Court on August 21, 

2020. (ECF No. 313, Page ID 3455.) The Court finds that Defendant has satisfied 

this prerequisite. 

 Defendant contends that he has presented "extraordinary and compelling" 

medical circumstances because he is being treated for hypertension for which he 

takes medications, suffers from obesity with a Body Mass Index (BMI) of 35 (5' 

8", weighs 234 lbs.), and suffers from sleep apnea, for which he uses a CPAP 

machine. (Id. at Page ID 3455-3456.) Defendant contends that the health 

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conditions at FCI-Safford render him at high risk from the COVID-19 illness. In 

addition, Defendant asserts that as an African American, he has a higher risk 

category if he contracts COVID-19, which is more likely to occur in a prison 

setting where social distancing is not possible. 

 Defendant notes that in United States v. White, supra, Judge Leitman 

granted compassionate release to a defendant, incarcerated at FCI-Milan, who 

suffered from hypertension and obesity (BMI of 38.6--5' 8" and 254 lbs.) This 

Court notes that in granting White's release, Judge Leitman stated in his opening 

paragraph, and again on pages three, 15 and 16, that White had served more than 

80 percent of his 120-month sentence. United States v. White, supra (ECF No. 54). 

 Defendant notes that "at present [8-21-2020] there have been several 

confirmed cases of the virus at FCI Safford between inmates and staff such that 

there is a strong likelihood of further community spread." (ECF No. 313, Page ID 

3461.) The Court notes that on September 18, 2020, the BOP COVID report stated 

that there were 0 (zero) COVID-19 inmate positive cases at FCI-Safford, two 

positive staff COVID-19 cases, and two inmates have recovered from COVID-19. 

(Phone call, BOP regional supervisor, Tracy Knutson, St. Louis, MO, 9-22-2020.) 

 Defendant states that "both Eighth Amendment and Due Process concerns" 

would arise if he is not released to home confinement because he is "a non-violent, 

non-dangerous offender...with serious medical conditions." (Id. at Page ID 3461.) 

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The Sixth Circuit has recently rejected an Eighth Amendment claim that the BOP 

has exhibited deliberate indifference to the COVID-19 pandemic, and pointed out 

that the BOP has put in place and updated its protocols to address the risks from 

COVID-19. Wilson v. Williams, 961 F.3d 829, 844 (6th Cir. 2020). 

 Defendant claims that he "poses no danger to the safety of any other person 

or the community," as evidenced by the fact that he has no BOP misconduct issues, 

and is permitted to leave and return to the institution for various work-related 

functions outside the prison. (BOP regional supervisor Tracy Knutson noted that a 

prisoner with a gate pass to work outside of the prison proper, is still within the 

prison's perimeter. Phone call 9-22-2020.) 

 On September 1, 2020 the Government filed an Amended Response in 

Opposition (ECF No. 319), pointing out that Defendant had arranged in Arizona 

for 25 kilograms of cocaine to be delivered to Detroit to be distributed, that he has 

served less than four years of his 15-year sentence, and "Even if his obesity 

qualifies as an 'extraordinary and compelling' in light of COVID-19, Kemp should 

not be released before his scheduled date--he remains a danger to the community, 

which forecloses relief under U.S.S.G. § 1B1.13(2)...Likewise, § 3553(a) factors--

which the Court must also consider under § 3582(c)(1)(A)--do not support 

release." (Id. at Page ID 3667-3668.) 

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 The Government points out: 

As the leader, Kemp directly negotiated the prices and 

terms of three separate drug deliveries with the source of 

supply. When the kilograms arrived in Detroit, Kemp 

travelled from Arizona to oversee their distribution. 

(Id. at Page ID 3668.) The Government notes that a loaded high-powered SKS rifle 

with a large-capacity magazine was in the entryway closet at the apartment Kemp 

and his co-conspirators used, and where Kemp's computer and mattress were 

found. (Id. at Page ID 3669.) 

 The Government further noted that upon conviction, Judge Gerald Rosen 

(retired), detained Defendant, and subsequently imposed a sentence of 15 years 

(180 months) "for his role as a leader in trafficking multiple kilograms of cocaine, 

and then denied his request for release pending appeal." (Id. at Page ID 3670.) 

 The Government summarizes the parameters of the Court's necessary 

considerations and limitations with regard to compassionate release: 

Even if a defendant is eligible for compassionate release 

because they properly exhausted their administrative 

remedies and the record supported the assertion that their 

medical condition qualifies as "extraordinary and 

compelling," the district court may not grant the motion 

if he is "a danger to the safety of any other person or to 

the community" and the factors in 18 U.S.C. § 3553(a)--

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 protection of the public--do not 

support release. 18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 

1B1.13. 

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(Id. at Page ID 3575-76.) 

 

 As to Defendant's medical condition claims--obesity, hypertension and sleep 

apnea--the Government asserts that the CDC does not list sleep apnea as a COVID19 risk factor, and that his primary hypertension is being treated with medication. 

Further, although the CDC acknowledges that individuals with a BMI of 30 or 

higher are at increased risk for effects of COVID-19, and that qualifies as an 

extraordinary and compelling medical condition, that only meets the first eligibility 

threshold for compassionate release, and does not require the Court to grant 

compassionate release (Id. at page ID 3678), because he is a danger to the 

community: he has five prior convictions escalating in seriousness to the instant 

offense, where he was the leader/organizer of this conspiracy. The Government 

concludes that dangerousness alone is a per se ban to release. (Id. at Page ID 

3680.) In discussing the 3553(a) factors, the Government states that because 

Defendant has served less than four years of his 15-year sentence, the Court should 

conclude that it would not promote respect for the law or provide deterrence and 

just punishment for his serious offense to grant him compassionate release. 

The Government further notes that in United States v. White, supra, the defendant 

had served more than 80 percent of his sentence. 

 The Court notes that a recent Sixth Circuit Opinion, United States v. 

Kinkaid, 805 F. App'x 395, 395-396 (6th Cir. 2020) approves of a court's 

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consideration of the percentage of time served in its required discussion of these 

3553(a) factors: 

District courts routinely weigh whether a certain amount 

of time served is "sufficient but not greater than 

necessary" to serve § 3553(a)'s purposes. That's what 

happens at sentencing. A district court may use that same 

calculus when deciding whether to grant a motion for 

compassionate release. 

 Defendant's Reply filed on September 2, 2020 (ECF No. 321) reiterates that 

he is not a danger to the community because the Government did not even seek 

pretrial detention, and that since incarcerated he has no BOP misconducts, and 

does landscaping outside the FCI-Safford walls. 

DISCUSSION 

 Because of the importance of the Court's consideration of the overriding 

factor contained in both § 3582, and U.S.S.G. § 1B1.13(2)--danger to the 

community--the Court sets forth additional relevant information on that issue 

contained in the Defendant's Presentence Investigation Report prepared by the 

Court's probation department: 

Page 5, ¶ 9: 

On at least one occasion the Defendant spoke to his 

pretrial services officer in a verbally abusive manner at 

which time he used expletives and racial epithets directed 

at the officer...after the...officer advised KEMP he was 

to apprize the officer of his schedule so his departures 

from home could be authorized and monitored. 

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Page 6, ¶ 16: 

Agents recovered from apartment 312: ...KEMP's 

MacIntosh computer (kitchen); and a SKS 7.62 assault 

rifle loaded with a high-capacity magazine (open front 

closet).... 

Page 7, ¶ 21: 

KEMP was looking [in Arizona] for a source of supply 

for cocaine to be distributed by KEMP in the Detroit 

area...KEMP negotiated a price of $34,000 per kilogram 

of cocaine and advised Islava-Sanchez he could move 

between eight and 12 kilograms of cocaine in 

approximately two weeks' time....KEMP purchased 

inflatable beds to utilize while staying at the apartment 

awaiting the cocaine shipment. 

Page 10, ¶ 31: [Role in the offense] 

Organizer/leader 

DAVON KEMP 

 With regard to Defendant Kemp's medical claims, the Court finds the 

relevant following information from his 2017 Presentence Report: 

[D]efendant denied being diagnosed or treated for any 

chronic illness and/or medical condition. He is not 

currently taking any prescriptions medications and 

denied having any allergies. 

PSR, Page 18, ¶ 64. Further, the Court notes that Defendant's blood pressure on 

August 12, 2020 was 133/87. (ECF No. 320, Page ID 3726.) 

 With regard to the 18 U.S.C. § 3553(a) factors, the Court finds: 

(1) The nature and circumstances of the instant 

offense are very serious; Defendant was the 

organizer and leader of a prolonged large-scale 

cocaine trafficking organization. Defendant 

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possessed a high-powered rifle with a largecapacity magazine in the apartment in which he 

slept and in which he kept his computer and 

mattress. Defendant's criminal history convictions 

place him in Criminal History Category III. 

(2) Defendant has served only four years of his 180-

month sentence. There is a need for a very 

significant part of that sentence to be served to 

promote respect for the law, to provide just 

punishment for the organizer/leader of a largescale drug trafficking operation, and to deter others 

from engaging in such serious criminal conduct. 

The Court also concludes that given the significant 

planning of this multi-state enterprise, the 

possession of a high-powered rifle, and his 

leadership skills which were used to create this 

multi-state operation, there is a need to protect the 

public from further crimes of Mr. Kemp if he were 

to be released. 

CONCLUSION 

 The Court concludes that Defendant Davon Kemp does not qualify for 

compassionate release because if released he would be a danger to the community. 

 The Court can only consider Defendant's claims of Extraordinary and 

Compelling Reasons as set forth in U.S.S.G. § 1B1.13 cmt. App. Note 1, "provided 

the defendant meets the requirements of subdivision (2) to § 1B1.13: (2): "the 

defendant is not a danger to the safety of any other person or to the community as 

provided in 18 U.S.C. § 3142(g)." The Court finds, pursuant to the 18 U.S.C. 

3142(g) factors that there are no conditions of release that will reasonably assure 

the safety of the community. The Court further finds that the application of the 18 

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U.S.C. § 3553(a) factors support the Court's denial of Defendant's compassionate 

release. 

 Thus, after considering the strict limiting preconditions contained in 18 

U.S.C. § 3582(c)(1)(A), which requires that he Court consider the 18 U.S.C. § 

3553(a) factors, and after considering the strict and limiting conditions in U.S.S.G 

§ 1B1.13(2), which incorporates the need to consider both 18 U.S.C. 3553(a) and 

18 U.S.C. § 3142(g), the Court concludes that Defendant Davon Kemp, the leader 

of this large-sale drug conspiracy, who coordinated both the large-scale purchases 

in Arizona and the shipments to Detroit, who oversaw the "drug house" where he 

slept and to which the drugs were delivered, and which was protected by the 

heavily-armed firearm, would be a serious danger to the community if released. 

 In discussing Defendant's medical claims, the Court concludes that his BMI 

index does not require his release. There is no evidence that Defendant Kemp is 

presently suffering from a serious medical condition that substantially diminishes 

his ability to provide self-care, and from which he is not expected to recover as 

required in U.S.S.G. § 1B1.13 (App. Note 1(A)(ii)). Finally, the Court concludes 

that, in this case, the fact that the Defendant is an African American, and the fact 

that he has a BMI of 35, do not support granting his request for compassionate 

release from FCI-Safford. 

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 Accordingly the Court DENIES Defendant Kemp's Motion for 

Compassionate Release. 

 SO ORDERED. 

DATED: September 24, 2020 s/Paul D. Borman 

 PAUL D. BORMAN 

 UNITED STATES DISTRICT JUDGE 

 

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