IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

UNITED STATES OF AMERICA CRIMINAL ACTION 

v. 

PERRY SMITH 

PRATTER,J. 

No. 04-472-1 

MEM ORAN DUM 

DECEMBER 15, 2020 

Perry Smith seeks compassionate release under 18 U.S.C. § 3582(c)(l)(A)(i). Mr. Smith 

requests relief based on the COVID-19 pandemic and his asthma diagnosis, which he believes 

places him at increased risk of harm from the disease. The Government opposes Mr. Smith's pro 

se motion, given the danger he presents to the community and that his mild asthma does not 

constitute an extraordinary and compelling reason to justify his release. For the following reasons, 

the Court denies the motion. 

BACKGROUND 

I. Mr. Smith's Criminal Conduct

Mr. Smith was convicted of one count of conspiracy to commit Hobbs Act Robbery, in 

violation of 18 U.S.C. § 1951; one count of Hobbs Act Robbery, and aiding and abetting of same, 

in violation of 18 U.S.C. § 1951; and using and carrying a firearm during a crime of violence, and 

aiding and abetting of same, in violation of 18 U.S.C. § 924. 

Seventeen years ago, Mr. Smith and his co-defendant, Kevin Cleveland, robbed the 

Shemoff Salads Company, which manufactures deli salads. Shemoff Salads mainly supplies 

supermarkets and large-scale distributors. So it does not carry much cash. Nevertheless, during 

the armed robbery, Mr. Smith and Mr. Cleveland brandished firearms, threatened to kill 

Mr. Shemoff-the owner-while holding a gun to the side of Mr. Shernoffs head, and shot 

1 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 1 of 10
Mr. Shernoff's secretary in the abdomen. They then fled. Mr. Smith and Mr. Cleveland stole 

roughly $1,400. 

Mr. Smith was sentenced to 260 months imprisonment, to be followed by five years of 

supervised release. He was also ordered to pay restitution of $1, 100, a $1, 100 fine, and a $100 

special assessment. Mr. Smith is serving his sentence at FCI Fairton in New Jersey with an 

anticipated release date of March 8, 2023. He has incurred a significant disciplinary record, 

including repeated infractions for drugs or alcohol, and possession of a hazardous tool-a 

sharpened metal object. 

II. Mr. Smith's Request for Compassionate Release and Medical Records

On July 29, 2020, Mr. Smith requested compassionate release from the warden of the 

facility where he is confined. Before the requisite 30-day exhaustion window had passed, 

Mr. Smith filed a motion with this Court. Because he had not yet exhausted his administrative 

remedies, the motion was not yet ripe. 18 U.S.C.§ 3582(c)(l)(A). The warden denied his request 

on August 10, 2020 so the Court will now consider his motion. Mr. Smith seeks relief based on 

his mild asthma and his fear of contracting COVID-19 while incarcerated. 

Mr. Smith's medical records for the past year reveal that he had asthma, which is now in 

remission. Earlier this year, Mr. Smith informed a treating medical professional that he was not 

having troubles with his asthma. He stated that he used an inhaler only when exercising. 

Mr. Smith does have a hernia, but his condition is currently monitored and controlled with medical 

supplies provided by the Bureau of Prisons ("BOP"). He is reportedly ambulatory and engages in 

all normal activities of daily living within the prison. 

2 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 2 of 10
III. BOP's Response to the COVID-19 Pandemic

BOP's "highest priority [is] to continue to do everything [it] can to mitigate the spread of 

COVID-19 in [its] facilities,"' and it has taken significant measures to protect the health of the 

inmates in its charge. Indeed, BOP has had a Pandemic Influenza Plan in place since 2012.2 The 

protocol established a phased framework which requires BOP facilities to begin preparations in 

the face of a suspected outbreak overseas and further addresses social distancing, hygienic and 

cleaning protocols, and the quarantining and treatment of symptomatic inmates. BOP began 

planning for potential COVID-19 transmissions as early as January 2020, during the same time in 

which it established a working group to develop COVID-19 policies. In accordance with the 

Coronavirus (COVID-19) Action Plan, BOP began to modify its operations to minimize the risk 

of COVID-19 transmissions nine months ago, in March of this year. 

Presently, BOP operations are governed by Phase Nine of the Action Plan. The current 

modified operations plan permits only limited group gathering, with attention to social distancing 

efforts to the extent possible, to facilitate commissary, laundry, showers, telephone, and computer 

access. BOP has limited the movement of inmates and detainees among its facilities. Moreover, 

official staff travel has been suspended, as has most in-person staff training. BOP is endeavoring 

to regularly issue face masks to all staff and inmates, and strongly encourages masks to be worn 

in public areas where social distancing cannot be achieved. 

Inmates who travel outside of a BOP institution, such as for court appearances, are to be 

quarantined upon their return. Newly admitted inmates are screened for CO VID-19 exposure risk 

BOP, BOP Modified Operations (last updated Nov. 25, 2020), available at 

https://www.bop.gov/coronavirus/covidl9 _status.jsp (last visited Dec. 14, 2020). 

2 BOP Health Services Division, Pandemic lrifluenza Plan-Module 1: Surveillance and Infection 

Control (Oct. 2012), available at https://www.bop.gov/resources/pdfs/pan_flu_module_l.pdf (last visited 

Dec. 14, 2020). 

3 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 3 of 10
factors and symptoms. Asymptomatic inmates are placed in quarantine for at least 14 days or until 

cleared by medical staff. Symptomatic inmates are placed in medical isolation until they test 

negative for COVID-19 or are cleared by medical staff as meeting the CDC criteria for release 

from isolation. The Program Review Division will conduct unannounced site visits to ensure 

compliance with the Health Services Division and the CDC's guidance. 

As directed by the Attorney General, BOP is also prioritizing the use of statutory authority 

to place eligible prisoners in home confinement. 3 Pursuant to the Coronavirus Aid, Relief, and 

Economic Security (CARES) Act, BOP may also "lengthen the maximum amount of time for 

which the Director is authorized to place a prisoner in home confinement" in the event the Attorney 

General finds that emergency conditions will materially affect the functioning of BOP. Pub. L. 

No. 116-136 § 12003(b)(2). In April 2020, the Attorney General gave the Director of BOP the 

authority to exercise this discretion, beginning at the facilities that have seen the greatest incidence 

of COVID-19 transmission thus far. 

Taken together, these measures are designed to mitigate the risks of COVID-19 

transmission in a BOP institution. BOP has pledged to continue monitoring the pandemic and to 

adjust its practices accordingly to maintain the safety of prison staff and inmates while also 

fulfilling its mandate of incarcerating all persons sentenced or detained based on judicial orders. 

Mr. Smith currently lives at FCI Fairton. As of December 14, 2020, the facility reports 

that 13 inmates and three staff members are currently COVID-positive. Overall, at this facility, 

95 inmates and 17 staff members previously positive for COVID-19 have since recovered.4 There 

3 This authority includes the ability to place an inmate in home confinement during the last six 

months or the remaining 10% of a sentence, whichever is shorter, 18 U.S.C. § 3624(c)(2), and to move 

elderly and terminally ill inmates specified in 34 U.S.C. § 6054 l(g) to home confinement. 

4 The data is current as of December 14, 2020, according to the BOP website, available at 

https://www.bop.gov/coronavirus. 

4 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 4 of 10
have been no deaths from the disease at Fairton. The facility reports that it tested almost every 

inmate after a small breakout and has implemented strict quarantining procedures. 

LEGAL STANDARD 

"(A]s a general matter, a court cannot modify a term of imprisonment after it has been 

imposed without specific authorization." McMillan v. United States, 257 F. App'x 477, 479 (3d 

Cir. 2007). However, a defendant can move to reduce his or her term of imprisonment under 18 

U.S.C. § 3582(c)(l)(A). In order to do so, the defendant must first request that the BOP file a 

motion on his or her behalf, 5 which can only occur after he or she 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." 18 U.S.C. § 3582(c)(l)(A). 

In the event the moving defendant complies with the exhaustion requirement, 6 a court may 

reduce his or her term of imprisonment if it finds that extraordinary and compelling reasons 

warrant such a reduction, that the reduction is consistent with the Sentencing Commission's 

applicable policy statements,7 and that the § 3553(a) factors favor reduction. Pursuant to the 

Sentencing Commission's relevant policy statement, a court must also find that the defendant is 

5 "The recently enacted First Step Act allows 'incarcerated defendants to seek compassionate release 

from a court on their own motion, not just through the Bureau of Prisons."' United States v. Perri, No. 15-

cr-486, 2020 WL 6324384, at *2 (E.D. Pa. Oct. 28, 2020) (quoting United States v. Mark, No. 10-cr-742-

1, 2020 WL 5801495, *l (E.D. Pa. Sept. 29, 2020)). 

6 The Government does not contest that Mr. Smith has now met the exhaustion requirement. 

7 Despite § 3582(c)(l)(A) mandating that a reduction in sentence be "consistent with applicable 

policy statements issued by the Sentencing Commission," "the policy statement is now clearly outdated" 

in light of the Sentencing Commission's failure to update its policy statement to account for the changes 

imposed in light of the amendment to§ 3582(c)(l)(A) by the First Step Act of 2018. United States v. 

Rodriguez, 451 F. Supp. 3d 392,397 (E.D. Pa. 2020). Therefore, although the policy statement undoubtedly 

provides helpful guidance, it "does not limit the Court's independent assessment of whether 'extraordinary 

and compelling reasons' exist under§ 3582(c)(l)(A)(i)." Id at 398. 

5 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 5 of 10
not a danger to the safety of any person or the community as provided in 18 U.S.C. § 3142(g). 

U.S.S. G. § lBl.13(2). 

Although Congress has not defined the term "extraordinary and compelling," the 

Sentencing Commission has issued an application note to its relevant policy statement which 

provides guidance for defining the conjunctive term. Application Note 1 provides, in pertinent 

part, that a defendant's non-terminal illness may constitute an extraordinary and compelling 

justification where "the defendant is suffering from a serious physical or medical condition .. . 

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." 

U.S.S.G. § lBl.13. 

A court considers multiple factors under 18 U.S.C. § 3553(a), including, among other 

things, ( 1) "the nature and circumstances of the offense and the history and characteristics of the 

defendant"; (2) "the need for the sentence imposed ... to protect the public from further crimes of 

the defendant"; (3) "the need for the sentence imposed ... to afford adequate deterrence to criminal 

conduct"; and ( 4) "the need for the sentenced imposed . .. to reflect the seriousness of the offense, 

to promote respect for the law, and to provide just punishment for the offense." The defendant 

bears the burden of showing that a reduction in sentence is proper. United States v. Rengifo, 

No. 13-131, 2020 WL 4206146, at *2 (M.D. Pa. July 22, 2020) (citing United States v. Jones, 836 

F.3d 896, 899 (8th Cir. 2016)); see also United States v. Green, 764 F.3d 1352, 1356 (11th Cir.

2014). 

6 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 6 of 10
DISCUSSION 

The Court takes the critical health risk posed by the COVID-19 pandemic seriously. But 

as concerning as the current pandemic is, resolving Mr. Smith's motion still calls upon the Court 

to take into consideration the limits imposed pursuant to 18 U.S.C. § 3582(c)(l)(A)(i). 

Mr. Smith argues that he should be immediately released given his asthma, his 

rehabilitative efforts, and his fear of contracting COVID-19 while incarcerated. These are not 

extraordinary and compelling reasons which justify a reduction in his sentence. 

The mere existence of the pandemic, which poses a general threat to every non-immune 

individual, does not provide a basis for a sentence reduction on its own. See United States v. Raia, 

954 F.3d 594,597 (3d Cir. 2020) (holding that "the mere existence of COVID-19 in society and 

the possibility that it may spread to a particular prison alone cannot independently justify 

compassionate release, especially considering BOP's statutory role, and its extensive and 

professional efforts to curtail the virus's spread"); see also United States v. Roeder, 807 F. App'x 

157, 161 n.16 (3d Cir. 2020) (per curiam) ("[T]he existence of some health risk to every federal 

prisoner as the result of this global pandemic does not, without more, provide the sole basis for 

granting release to each and every prisoner within our Circuit."). 

Although COVID-19 is a dangerous, and sometimes lethal, virus for all individuals, the 

Centers for Disease Control and Prevention (CDC) has deemed certain people with specific 

underlying medical conditions and the elderly to be at a heightened risk of severe illness or death.8

"While this court is not bound by the CDC's guidelines, it follows suit with many other district 

8 See People at Increased Risk, Centers for Disease Control and Prevention (Nov. 30, 2020), 

available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/index.html (last visited 

Dec. 14, 2020). 

7 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 7 of 10
courts who have turned to the guidance as reliably informative." United States v. Perri, No. 15-

cr-486, 2020 WL 6324384, at *2 (E.D. Pa. Oct. 28, 2020) (listing cases). 

As demonstrated by his medical records, there is no evidence that Mr. Smith, who is 

43years old, suffers from a condition that is considered "high-risk." The CDC has recently revised 

its list of people with certain medical conditions who "are at increased risk of severe illness" from 

COVID-19.9 The CDC also lists several conditions where there "might be an increased risk for 

severe illness," but insufficient data exists to say more. "Moderate to severe" asthma fall into this 

"might" category. This condition is not considered high-risk by the CDC. 

Mr. Smith has not established that his asthma meets the clinical definition of "moderate to 

severe."10 His medical conditions are monitored and appropriately managed with medication at 

Fairton. Mr. Smith's medical records reveal that his asthma is in "remission." And he has told 

medical professionals that he has no issues with asthma and only uses his inhaler when he 

exercises. Moreover, there is no evidence that he has ever sought or received treatment from an 

acute asthmatic episode. 

Courts routinely deny motions for the extraordinary remedy of compassionate relief based 

on mild asthma. See, e.g., United States v. Vernon Gaskin, No. CR 15-352, 2020 WL 7263185 

(E.D. Pa. Dec. 9, 2020) (denying release to defendant without daily asthmatic symptoms who did 

not use his inhaler daily); United States v. Slone, No. CR 16-400, 2020 WL 3542196 (E.D. Pa. 

9 People with Certain Medical Conditions, Centers for Disease Control and Prevention (Dec. I, 

2020), available at https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-withmedical-conditions.html (last visited Dec. 14, 2020). 

10 The United States Department of Health and Human Services describes asthma as "moderate 

persistent" when any of the following are true: symptoms occur daily; symptoms limit normal activity; 

symptoms at night occur once a week; and lung function tests are abnormal. Department of Health and 

Human Services, Asthma Care Quick Reference: Diagnosing and Managing Asthma (Sept. 2012), 

available at https://www.nhlbi.nih.gov/sites/default/files/media/docs/12-5075.pdf (last visited Dec. 14, 

2020). 

8 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 8 of 10
June 30, 2020) (defendant's mild asthma, without other medical risk factors, did not constitute 

"extraordinary and compelling" circumstances); United States v. Towel, No. CR 17-519-6, 2020 

WL 2992528 (E.D. Pa. June 4, 2020) (denying release to defendant with mild, exercise-induced 

asthma, which was managed with limited use ofinhaler); US. v. Rodriguez, No. 16-167, 2020 WL 

1866040 (S.D.N.Y. Apr. 14, 2020) (experiencing "reportedly well controlled" asthma while 

incarcerated during COVID-19 is "not enough" to justify compassionate release). 

But even if Mr. Smith presented an extraordinary and compelling reason to warrant his 

release-which he does not-consideration of the § 3553(a) factors necessitates a denial of 

Mr. Smith's motion. Mr. Smith continues to present a danger to the community. 

Mr. Smith has failed to make any showing that an early release comports with the statutory 

sentencing factors. Mr. Smith committed armed robbery, during which he and his co-defendant 

shot a woman in the abdomen and threatened to kill another person. Nor was this Mr. Smith's first 

offense. Instead, his multiple prior convictions for stealing motor vehicles, eluding the police, 

robbery, and possession of crack cocaine amounted to a criminal history category of VI-the 

highest category provided in the Federal Sentencing Guidelines. And, Mr. Smith has demonstrated 

his disregard for court orders while on probation or parole. In three of his five adult convictions, 

he committed various violations which led to revocation of his probation or parole and an increased 

sentence. 

Mr. Smith has now indeed served the bulk of his sentence. But his time while in custody 

is pockmarked with 27 disciplinary violations. In the past five years alone, he has incurred 

infractions for possessing unauthorized items on several occasions, possessing marijuana 

paraphernalia and use of marijuana, possession of non-hazardous tool, and use of drugs and 

9 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 9 of 10
alcohol. This signals to the Court that Mr. Smith has not seriously made a substantive or in-depth 

attempt at rehabilitation.11

The Court will deny Mr. Smith's motion. He does not present a definite health risk related 

to COVID-19 that would warrant release. Nor does the violent nature of his crime suggest that the 

sentence imposed be shortened. See United States v. Pawlowski, 967 F.3d 327,331 (3d Cir. 2020) 

(noting district court reasonably concluded early release not warranted where defendant's "crimes 

were extraordinarily serious" and required "a significant period of incarceration"). 

CONCLUSION 

For the foregoing reasons, the Court denies Mr. Smith's motion for a reduction in sentence 

under 18 U.S.C. § 3582(c)(l)(A)(i). An appropriate order follows. 

11 To be sure, the Court certainly commends Mr. Smith for earning his GED while incarcerated and 

completing various programs offered at the facility. 

10 

Case 2:04-cr-00472-GEKP Document 262 Filed 12/15/20 Page 10 of 10