ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) - 1 

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UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

UNITED STATES OF AMERICA, 

 Plaintiff, 

 v. 

THOMAS EVANS DUNIGAN, 

 Defendant. 

CASE NO. CR05-5823RJB 

ORDER GRANTING 

DEFENDANT DUNIGAN’S 

AMENDED MOTION IN 

SUPPORT OF 

COMPASSIONATE RELEASE 

PURSUANT TO 18 U.S.C. § 

3582(c)(1)(A)(i) 

THIS MATTER comes before the Court on the above-referenced motion (Dkt. 342). The 

Court is familiar with the records and files herein and all documents filed in support of, and in 

opposition to, the motion. The Court is fully advised. 

 Defendant was convicted of Kidnapping Resulting in Death and was sentenced to 240 

months in prison and five years of supervised release. He has now served approximately 184 months 

with a current release date of January 6, 2023. 

/ / / 

/ / / 

/ / / 

/ / / 

Case 3:05-cr-05823-RJB Document 353 Filed 01/22/21 Page 1 of 7
ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) - 2 

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THE LAW1

In pertinent part, 18 U.S.C. § 3582(c)(1) reads as follows: 

(c) Modification of an imposed term of imprisonment.--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 (and may impose a term of probation or supervised release with or 

without conditions that does not exceed the unserved portion of the original 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; or 

(ii) . . . . 

and that such a reduction is consistent with applicable policy statements issued by 

the Sentencing Commission[.] 

 The Policy Statement referenced by the statute is USSG § 1B1.13 was required by 28 

U.S.C. § 944(f), which provides: 

The Commission, in promulgating general policy statements regarding the sentencing 

modification provisions in section 3582(c)(1)(A) of title 18, shall describe what should be 

considered extraordinary and compelling reasons for sentence reduction, including the 

criteria to be applied and a list of specific examples. Rehabilitation of the defendant alone 

shall not be considered an extraordinary and compelling reason. 

 In pertinent part, the policy statement at USSG § 1B1.13 provides: 

Upon motion of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A), 

the court may reduce a term of imprisonment (and may impose a term of supervised 

release with or without conditions that does not exceed the unserved portion of the 

original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 

3553(a), to the extent that they are applicable, the court determines that-- 

(1) (A) Extraordinary and compelling reasons warrant the reduction; or . . . 

(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); and 

(3) The reduction is consistent with this policy statement. 

1

 The sections herein on The Law and Discussion – Legal Issues are taken from this Court’s Order Granting Motion 

for Compassionate Release (Dkt 209) in United States v McPherson, WDWA Cause Number CR94-5708RJB, and 

are equally applicable here. 

Case 3:05-cr-05823-RJB Document 353 Filed 01/22/21 Page 2 of 7
ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) - 3 

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Commentary 

Application Notes: 

1. Extraordinary and Compelling Reasons. – Provided the defendant meets the 

requirements of subdivision (2), extraordinary and compelling reasons exist under any of 

the circumstances set forth below: 

 (A) Medical Condition of the Defendant – 

 (i) The defendant is suffering from a terminal illness (i.e., a serious and 

advance illness with an end of life trajectory). A specific prognosis of life expectancy 

(i.e., a probability of death within a specific time period) is not required. Examples 

include metastatic solid-tumor cancer, amyotrophic later sclerosis (ALS), end-stage organ 

disease, and advance dementia. 

 (ii) The defendant is – 

 (I) suffering from a serious physical or medical condition, 

 (II) suffering from a serious functional or cognitive impairment, or 

(III) experiencing deteriorating physical or mental health because 

of the aging process 

that substantially diminishes the ability of the defendant to provide self-care within the 

environment of a correctional facility and from which he or she is not expected to 

recover. 

 (B) Age of the Defendant.--The defendant is (i) at least 65 years old; (ii) is 

experiencing a serious deterioration in physical or mental health because of the aging 

process; and (iii) has served at least 10 years or 75 percent of his or her term of 

imprisonment, whichever is less. 

 (C) Family Circumstances – 

 (i) The death or incapacitation of the caregiver of the defendant’s minor 

child or minor children. 

 (ii) The incapacitation of the defendant’s spouse or registered partner 

when the defendant would be the only available caregiver for the spouse or registered 

partner. 

 (D) Other Reasons.—As determined by the Director of the Bureau of Prisons, 

there exists in the defendant’s case an extraordinary and compelling reasons other than, 

or in combination with, the reasons described in subdivision (A) through (C). 

2. Foreseeability of Extraordinary and Compelling Reasons.—For purposes of this 

policy statement, an extraordinary and compelling reason need not have been unforeseen 

at the time of sentencing in order to warrant a reduction in the term of imprisonment. 

Therefore, the fact that an extraordinary and compelling reason reasonably could have 

been known or anticipated by the sentencing court does not preclude consideration for a 

reduction under this policy statement. 

3. Rehabilitation of Defendant.—Pursuant to 28 U.S.C. § 994(t), rehabilitation of the 

defendant is not, by itself, an extraordinary and compelling reason for purposes of this 

policy statement. 

Case 3:05-cr-05823-RJB Document 353 Filed 01/22/21 Page 3 of 7
ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) - 4 

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4. Motion by the Director or the Bureau of Prisons.—A reduction under this policy 

statement may be granted only upon motion by the Director of the Bureau of Prisons 

pursuant to 18 U.S.C. § 3582(c )(1)(A). The Commission encourages the Director of the 

Bureau of Prisons to file such a motion if the defendant meets any of the circumstances 

set forth in Application Note 1. The court is in a unique position to determine whether 

the circumstances warrant a reduction (and, if so, the amount of reduction), after 

considering the factors set forth in 18 U.S.C. § 3553(a) and the criteria set forth in this 

policy statement, such as the defendant’s medical condition, the defendant’s family 

circumstances, and whether the defendant is a danger to the safety of any other person or 

to the community. 

This policy statement shall not be construed to confer upon the defendant any right not 

otherwise recognized in law. 

5. Application of Subdivision (3).—Any reduction made pursuant to a motion by the 

Director of the Bureau of Prisons for the reasons set forth in subdivisions (1) and (2) is 

consistent with this policy statement. 

DISCUSSION – LEGAL ISSUES 

 First, because of the existing Policy Statements at USSG § 1B1.13 were adopted before 

18 U.S.C. § 3582 (c)(1), parts of the Policy Statements are obsolete and must be disregarded. 

The parts to be disregarded are underlined, above. 

 Second, 28 U.S.C. § 944(f) required the Sentencing Commission in the Policy Statement, 

to include “the criteria to be applied” in considering extraordinary and compelling reasons for 

sentence reduction. This the Commission failed to do, except for determining, in Application 

Note 4, that, “The court is in an unique position to determine whether the circumstances warrant 

a reduction (and, if so, the amount of reduction), after considering the factors set forth in 18 

U.S.C. § 3553(a) and the criteria set forth in this policy statement” followed by a non-exclusive 

list of things the Court should consider. This listing of things the Court should consider hardly 

sets the criteria for a finding of extraordinary and compelling reasons for a sentence reduction, 

leaving it to the Court to determine what qualifies, after appropriate analysis. 

Case 3:05-cr-05823-RJB Document 353 Filed 01/22/21 Page 4 of 7
ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) - 5 

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 Third, these further observations support this conclusion: First, the listing of examples of 

extraordinary and compelling reasons in the Policy Statements § 1B113 and Application notes is 

not, by its language, exclusive. Second, the listing of things that are not considered 

extraordinary and compelling does not limit what else may be considered extraordinary and 

compelling. Third, Application Note 1(D) clearly opens the door to consider reasons other than 

the examples listed in determining whether extraordinary and compelling reasons for a sentence 

reduction exists. 

 “Extraordinary and compelling” means “extraordinary and compelling.” 

DISCUSSION – DEFENDANT’S CLAIMS 

 Health Issues. Defendant seeks sentence reduction on the grounds of his health issues 

(obesity, COVID-019, hypertension and pre-diabetes). Dkt. 342 at 2. “[T]he government 

acknowledges that obesity is a risk factor under the CDC Guidelines, which the Court could 

determine amounts to an extraordinary and compelling reason to consider him for a 

compassionate release . . . .” Dkt. 347 at 11. In light of the fact that Defendant has already 

contracted COVID-19 (all be it, apparently, a mild case), the Court finds that Defendant’s 

obesity (he is 5’8, 232 pounds, with a BMI of 37.2 (see Dkt. 342 at 4)), along with his other 

health issues, amounts to extraordinary and compelling reasons to consider him for a 

compassionate release – if he otherwise qualifies. 

 Exhaustion. There is no question that Defendant has fulfilled the exhaustion requirement. 

 Defendant’s Sentence. Defendant’s serious crime earned him a reasonable 20-year 

sentence. This Order is not an attempt by this Court to re-sentence the Defendant, or to be 

critical of his original sentence. It was well-earned and reasonable. 

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ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

RELEASE PURSUANT TO 18 U.S.C. § 3582(C)(1)(A)(I) - 6 

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 Defendant’s Rehabilitation. Defendant accepted responsibility early, and has shown 

remorse. He has used his over 15 years of prison time productively, both personally and for the 

benefit of others (see Dkt. 342 at 6-7, as well as his pro se Motion (Dkt. 333), and his Motion for 

Appointment of Counsel (Dkt. 330)). He has family support and a satisfactory release plan. His 

rehabilitation has been – and is – extraordinary and compelling and supports his health-related 

extraordinary and compelling reasons for a sentence reduction. 

CONCLUSION ON EXTRAORDINARY AND COMPELLING FACTORS 

The foregoing factors, considered together, amount to extraordinary and compelling 

factors justifying a sentence reduction to time served – if Defendant is safe to be at large and the 

18 U.S.C. § 3553(a) factors support the reduction. 

18 U.S.C. § 3553(a) factors. The Defendant’s crime justified a long prison sentence in 

order to protect the public and to provide punishment. The question before the Court is whether, 

and to what degree, his characteristics have changed for the better during his already long 

incarceration. It appears to the Court that he is a different man now than he was in 2005. See 

above section Rehabilitation. 

 It further appears to the Court, and the Court finds, that the time Defendant has served 

reflects the seriousness of his crimes and criminal history, provides just punishment and 

promotes respect for the law. The Court further finds that the time Defendant has served has 

afforded adequate deterrence to criminal conduct and has amply protected the public from 

further crimes of Defendant. Further incarceration would serve no purpose for Defendant or the 

public. The Court finds that Defendant is safe to be at large, and poses no danger to any 

individual or the public, provided that he follow a satisfactory release plan (Dkt. 338) and the 

requirements of his term of supervised release and the conditions thereof. 

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ORDER GRANTING DEFENDANT DUNIGAN’S AMENDED MOTION IN SUPPORT OF COMPASSIONATE 

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ORDER 

 Therefore, it is now ORDERED that Defendant Dunigan’s Amended Motion in Support 

of Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Dkt. 342) is GRANTED. It 

is further 

ORDERED that Defendant’s term of imprisonment shall be reduced to time served and he 

shall be released 14 days from the date of this Order to accommodate a quarantine period with the 

Federal Bureau of Prisons. If Defendant tests COVID-19 positive at any time during this quarantine 

period, BOP will notify the Government who will immediately notify the Court so the Order can be 

modified appropriately. 

The Clerk is directed to send uncertified copies of this Order to all counsel of record and 

to any party appearing pro se at said party’s last known address. 

Dated this 22nd day of January, 2021. 

 A 

 ROBERT J. BRYAN

 United States District Judge 

Case 3:05-cr-05823-RJB Document 353 Filed 01/22/21 Page 7 of 7