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UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

UNITED STATES OF AMERICA, 

 Plaintiff,

v.

LEROY GREEN,

 Defendant.

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Case No. 3:17-cr-00189

Judge Thomas M. Rose

______________________________________________________________________________

ENTRY AND ORDER DENYING DEFENDANT’S MOTION FOR 

COMPASSIONATE RELEASE (DOC. 33)

______________________________________________________________________________

This case is before the Court on the Motion for Compassionate Release [or] Reduction in 

Sentence [Pursuant to] 18 U.S.C. § 3582(c)(1)(A) (Doc. 33) (the “Motion”), filed by Leroy Green

(“Green”). Green is currently incarcerated at McCreary USP [United States Penitentiary] in 

Kentucky. He asks the Court for compassionate release or a reduction in his term of imprisonment

because his asserted medical ailments make him more vulnerable to the disease COVID-19. 

Green’s appointed attorney filed a supplemental memorandum in support of the Motion (the 

“Supplement”). (Doc. 37.) The United States (the “Government”) filed a Response to the Motion 

(Doc. 38) (the “Response”), in which the Government opposes the Motion. Green did not file a 

reply brief in support of the Motion, and the time to do so has now passed. (See 02/04/2021 

Notation Order.) The matter is ripe for review.

1

 For the reasons discussed below, the Court 

1 Section 603(b) of the First Step Act, which was signed into law on December 21, 2018, modified 18 U.S.C. § 3582 

to allow a defendant to bring a motion on his or her own behalf either “[1] 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 [2] 

the lapse of 30 days from the receipt of such request by the warden of the defendant’s facility, whichever is earlier.” 

18 U.S.C. § 3582(c)(1)(A); Pub L. No. 115-391, 132 Stat. 5194; see also United States v. Alam, 960 F.3d 831, 833-

34 (6th Cir. 2020) (“If the Director of the Bureau of Prisons does not move for compassionate release, a prisoner 

may take his claim to court only by moving for it on his own behalf. To do that, he must fully exhaust all 

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DENIES Green’s Motion.

I. BACKGROUND

On November 14, 2017, the Government filed a single-count Indictment against Green in 

this case, charging him with attempted armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) 

and (d). (Doc. 13.) On July 23, 2018, pursuant to a plea agreement, Green pleaded guilty to the 

offense in the Indictment. (See Docs. 24 and 27.) The Statement of Facts attached to the Plea 

Agreement, signed by Green and his attorney, states:

On or about October 30, 2017, in the Southern District of Ohio, defendant LEROY 

GREEN (“GREEN”), by force and violence and by intimidation, attempted to take 

from the person and presence of Key Bank, N.A. employees, in [sic] United States 

currency belonging to and in the care, custody, control, management and possession 

of Key Bank, N.A., 10 W. Second Street, Dayton, Ohio. In carrying out this 

attempted bank robbery, GREEN pointed and brandished a knife at the victim 

tellers demanding “his money.” At the time of the bank robbery, the deposits of 

the Key Bank, N.A. were fully insured by the Federal Deposit Insurance 

Corporation.

(Doc. 27 at PAGEID # 103 (incorporating edits agreed to by the parties).) 

The Final Presentence Investigation Report (“PSI”) regarding Green provided additional 

information about the circumstances of the offense, and it identified approximately ten prior adult 

criminal convictions and some other minor convictions. (PSI ¶¶ 14, 40-51.) The offense involved 

a dangerous weapon: a large kitchen knife. (Id. at ¶ 14, 23; Doc. 27 at PAGEID # 103.) Green’s

extensive criminal history, which spans decades, includes separate convictions for burglary, an 

administrative rights to appeal with the prison or wait 30 days after his first request to the prison,” and “[p]risoners 

who seek compassionate release have the option to take their claim to federal court within 30 days, no matter the 

appeals available to them”) (internal quotation marks omitted) (alterations adopted); United States v. Ruffin, 978 

F.3d 1000, 1004 (6th Cir. 2020) (“defendants now may bring reduction-of-sentence motions on their own once they 

exhaust any administrative remedies or wait 30 days from the date they request relief from the Bureau of Prisons”). 

Here, Green sent the Warden a request, which the Warden denied on or about August 31, 2020. (Doc. 33 at 

PAGEID # 130; see also Doc. 38 at PAGEID # 145.) Regardless, the Government does not contest exhaustion, so 

the Court proceeds with the understanding that Green could move for compassionate release on his own behalf. 

Additionally, the Court notes that it previously denied a similar motion filed by Green because he simply sought a 

change to the place where his sentence would be served, from McCreary USP to his home. (See Doc. 32.) As 

explained in that Order, the Court lacked authority to grant Green’s request; it is the BOP that has the authority to 

determine the place of a defendant’s confinement, not the courts. (Id. (citing authority).) 

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aggravated robbery that involved Green using a knife to threaten the victim while demanding 

money, a robbery where Green attempted to rob a bank while indicating he had a gun, and another 

robbery where Green succeeded in robbing a bank while indicating that he had a gun. (Id.) 

Additionally, the PSI indicated that Green has a history of incurring new charges while on 

supervision. (Id. at ¶ 48.) The PSI also indicated that Green accepted responsibility for his actions. 

(Id. at ¶ 32.)

This Court imposed a 77-month term of incarceration, five years of supervised release with 

special conditions, and a $100 special assessment. (Docs. 28 and 29.) Green is currently 56 years 

old and has an anticipated release date of May 15, 2023. See https://www.bop.gov/inmateloc.

II. ANALYSIS

A. Legal Standards

A district court has limited authority to modify a sentence. United States v. Ruffin, 978 

F.3d 1000, 1003 (6th Cir. 2020) (“[s]ince the Sentencing Reform Act of 1984, federal law has 

generally prohibited a district court from modifying a term of imprisonment once it has been 

imposed”) (alterations adopted) (internal quotation marks omitted). “Generally speaking, once a 

court has imposed a sentence, it does not have the authority to change or modify that sentence 

unless such authority is expressly granted by statute.” United States v. Hammond, 712 F.3d 333, 

335 (6th Cir. 2013). Section 3582(c)(1)(A) grants such authority in certain limited circumstances. 

It provides, in part: 

The court may not modify a term of imprisonment once it has been imposed except 

that—in any case—the court ... 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 [18 U.S.C.] section 3553(a) to the extent that 

they are applicable, if it finds that extraordinary and compelling reasons warrant 

such a reduction ... and that such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission.

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18 U.S.C. § 3582(c)(1)(A)(i).2 

The decision to reduce a term of imprisonment pursuant to Section 3582(c)(1)(A) involves 

a three-step test, based on three substantive requirements. United States v. Jones, 980 F.3d 1098, 

1106-08 (6th Cir. 2020); 18 U.S.C. § 3582(c)(1)(A)(i). At step one, a court must find that 

extraordinary and compelling reasons warrant a sentence reduction.3 Jones, 980 F.3d at 1107-08. 

At step two, a court must find that such a reduction is consistent with applicable policy statements 

issued by the Sentencing Commission. Id. at 1108. At step three, a court must consider any 

applicable Section 3553(a) factors and, in its discretion, find that the reduction authorized by steps 

one and two is warranted in whole or in part under the particular circumstances of the case. Id. A 

court may deny a compassionate release motion when any of the three substantive requirements is 

lacking and need not address the others. United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021). 

However, a court cannot grant such a motion unless the court addresses “all three steps.” Id.

Regarding the first step, “Section 3582(c)(1)(A) does not define ‘extraordinary and 

compelling reasons.’” Ruffin, 978 F.3d at 1004. Congress instructed that “[r]ehabilitation of the 

defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 

994(t). But apart from this instruction, “Congress delegated to the Sentencing Commission the 

responsibility of describing what should be considered extraordinary and compelling reasons for 

sentencing reduction, including the criteria to be applied and a list of specific examples by 

promulgating general policy statements regarding the sentencing modification provisions in § 

3582(c)(1)(A).” Jones, 980 F.3d at 1108-09 (alterations adopted) (internal quotation marks 

omitted). The Sentencing Commission’s policy statement regarding compassionate release under 

2 Subpart (ii) of this portion of the statute provides “a separate basis for compassionate release tied to the 

defendant’s age and years in prison.” Ruffin, 978 F.3d at 1003.

3

“Or, alternatively, whether the defendant fulfills the requirements of § 3582(c)(1)(A)(ii).” Jones, 980 F.3d at 1108 

n. 12.

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Section 3582(c)(1)(A) resides in § 1B1.13 of the United States Sentencing Commission Guidelines 

Manual. Id. at 1109; U.S.S.G. § 1B1.13 (“Reduction in Term of Imprisonment Under 18 U.S.C. 

§ 3582(c)(1)(A) (Policy Statement)”). However, “the Commission has not updated § 1B1.13 since 

the First Step Act’s passage in December 2018.” Jones, 980 F.3d at 1109. Therefore, and for 

reasons more fully explained in Jones, the Sixth Circuit held that—until the Sentencing 

Commission updates § 1B1.13 to reflect the First Step Act—district courts “have full discretion to 

define ‘extraordinary and compelling’ without consulting the policy statement § 1B1.13” in cases 

where an incarcerated person files a motion for compassionate release.4 Id. at 1109-11 (“[u]ntil 

the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full 

discretion in the interim to determine whether an ‘extraordinary and compelling’ reason justifies 

compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion”). 

Regarding the second step, again, the Sentencing Commission’s policy statement regarding 

compassionate release under 18 U.S.C. § 3582(c)(1)(A) resides in U.S.S.G. § 1B1.13. Jones, 980 

F.3d at 1109. However, the Sixth Circuit held in Jones that “the passage of the First Step Act 

rendered § 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for 

compassionate release.” Id.; see also Elias, 984 F.3d at 518 (“§ 1B1.13 is not applicable to inmatefiled compassionate-release motions”). Thus, U.S.S.G. § 1B1.13 currently is not an “applicable 

policy statement[] issued by the Sentencing Commission” in such cases. 18 U.S.C. § 

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In Elias, while not mandating that future courts apply the two-part test used by the district court in that case, the 

Sixth Circuit held that the district court did not abuse its discretion in applying a “two-part test for deciding when 

the concern of contracting COVID-19 becomes an extraordinary and compelling reason for compassionate release: 

(1) when the defendant is at high risk of having complications from COVID-19 and (2) the prison where the 

defendant is held has a severe COVID-19 outbreak.” Elias, 984 F.3d at 520-21 (the district court did not abuse its 

discretion in relying on that two-part test; the district court properly considered the Centers for Disease Control and 

Prevention (CDC) guidance in effect at the time, a scientific journal, and information from the BOP concerning the 

number of reported COVID-19 cases at the prison). Additionally, the Sixth Circuit held that a district court may 

deny a motion for compassionate release if the defendant does not provide any records in the motion to support his 

or her claimed medical ailment(s). Id.

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3582(c)(1)(A); Jones, 980 F.3d at 1101, 1109. So now, “where incarcerated persons file motions 

for compassionate release, federal judges may skip step two of the § 3582(c)(1)(A) inquiry,” at 

least until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act. Jones, 980 

F.3d at 1111. 

Regarding the third step, “[d]istrict courts should consider all relevant § 3553(a) factors 

before rendering a compassionate release decision.” Jones, 980 F.3d at 1114. The factors set forth 

in Section 3553(a) “consider such things as the characteristics of the defendant, the nature of the 

offense, and various penological goals, such as the need to promote respect for law and to protect 

the public.” Ruffin, 978 F.3d at 1005. More specifically, 18 U.S.C. § 3553(a) states:

(a) Factors to be considered in imposing a sentence.--The court shall impose a 

sentence sufficient, but not greater than necessary, to comply with the purposes 

set forth in paragraph (2) of this subsection. The court, in determining the 

particular sentence to be imposed, shall consider--

(1) the nature and circumstances of the offense and the history and 

characteristics of the defendant;

(2) the need for the sentence imposed--

(A) to reflect the seriousness of the offense, to promote respect for the 

law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the most effective 

manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for--

(A) the applicable category of offense committed by the applicable 

category of defendant as set forth in the guidelines--

(i) issued by the Sentencing Commission pursuant to section 994(a)(1) 

of title 28, United States Code, subject to any amendments made to 

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such guidelines by act of Congress (regardless of whether such 

amendments have yet to be incorporated by the Sentencing 

Commission into amendments issued under section 994(p) of title 28); 

and

(ii) that, except as provided in section 3742(g) [18 U.S.C. § 3742(g)], 

are in effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release, the 

applicable guidelines or policy statements issued by the Sentencing 

Commission pursuant to section 994(a)(3) of title 28, United States Code, 

taking into account any amendments made to such guidelines or policy 

statements by act of Congress (regardless of whether such amendments 

have yet to be incorporated by the Sentencing Commission into 

amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement--

(A) issued by the Sentencing Commission pursuant to section 994(a)(2) of 

title 28, United States Code, subject to any amendments made to such 

policy statement by act of Congress (regardless of whether such 

amendments have yet to be incorporated by the Sentencing Commission 

into amendments issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g) [18 U.S.C. § 3742(g)], is in 

effect on the date the defendant is sentenced[;]

(6) the need to avoid unwarranted sentence disparities among defendants with 

similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

18 U.S.C. § 3553(a). Among the variety of items that courts have considered in this step are 

conditions at the place of incarceration, the defendant’s health issues, whether the defendant is 

receiving medical treatment for his or her health issues, the defendant’s behavior in prison, the 

type of offense(s) for which the defendant was convicted, whether the defendant had prior criminal 

convictions (and, if so, how many and the seriousness of such crimes), whether the defendant had

prior juvenile convictions, whether the defendant previously complied with any presentence or 

post-incarceration conditions, the amount of the sentence that the defendant has served to date,

whether the court varied downward from the guidelines range when imposing the sentence,

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whether the defendant has had a drug addiction, the defendant’s successful participation in 

substance abuse programming or other rehabilitation efforts while incarcerated, the defendant’s 

successful participation in educational or vocational training while incarcerated, and whether the 

defendant took responsibility for his or her actions. Jones, 980 F.3d at 1115; Ruffin, 978 F.3d at 

1008-09. Of course, not all of these items will be applicable or relevant (or known to the court) in 

all cases, and other items may be applicable or relevant. Id.; see also 18 U.S.C. § 3582(c)(1)(A)(i) 

(a court should consider “the factors set forth in [18 U.S.C.] section 3553(a) to the extent that they 

are applicable”).

Finally, “Congress’s use of ‘may’ in § 3582(c)(1)(A) dictates that the compassionate 

release decision is discretionary, not mandatory.” Jones, 980 F.3d at 1106; see also 18 U.S.C. § 

3582(c)(1)(A)(i) (stating that a court “may” reduce the term of imprisonment); Ruffin, 978 F.3d at 

1005 (a “district court has substantial discretion” in deciding whether to reduce a term of 

imprisonment pursuant to Section 3582(c)(1)(A)); Elias, 984 F.3d at 518 (a district court may 

reduce the term of imprisonment if all three of the substantive requirements are met, “but need not 

do so”).

B. Application

Green asks the Court for compassionate release or a reduction in his sentence (or both), 

pursuant to Section 3582(c)(1)(A). (Doc. 33.) Green argues that “glacuma [sic], high blood 

pressure, prostrate [sic] cancer, and [a] hernia, and [his] age (55 years old) ... all causes [him] 

heightened vulnerability due to COVID-19.” (Id. at PAGEID # 123.) He also argues that he 

qualifies as “a ‘new law’ elderly inmate, an elderly inmate with medical conditions, or an ‘other 

elderly inmate.’” (Id. at PAGEID # 127.) Additionally, Green asserts that USP McCreary has 

been on lockdown since March 15, 2020, “[a]fter the one year lockdown there are eight COVID

cases in [his] unit,” he has cancer and is receiving chemotherapy, and that, despite the lockdown, 

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“there is still a high number of Covid cases.” (Doc. 37.) Among other things, Green also says that 

he has completed drug abuse education courses, completed “the release preparation program,” and 

has a clear record of “conduct, without any dissiplanary [sic] infractions as of 9-17-2019 (only one 

minor infraction).” (Doc. 33 at PAGEID # 126.)

In response, the Government argues that the Motion fails on its merits. (See Doc. 38.) The 

Government says that the Bureau of Prisons (“BOP”) has taken steps to protect inmates during the 

COVID-19 pandemic, Green did not provide the Court with any evidence to substantiate his 

purported medical ailments or their severity, and that, in light of the nature and circumstances of 

his crime of conviction and his long history of engaging in similar violent crimes, the Section 

3553(a) factors weigh against granting the Motion. (Id.)

The Court denies Green’s Motion for two independent reasons. First, regarding step one,

Green failed to provide the Court with any medical records or other evidentiary support for his 

asserted medical conditions. (See Docs. 33 and 37.) A district court may deny a motion for 

compassionate release if the movant fails to provide any records in the motion to support his or 

her claimed medical ailment(s) that form the basis for arguing “extraordinary and compelling 

reasons” warrant a reduction in the term of imprisonment. Elias, 984 F.3d at 520-21 (because 

movant “did not provide any records in her motion to support that she had hypertension[,] [t]he 

district court could have denied [the] motion for compassionate release on th[at] basis”); United 

States v. Tomes, No. 20-6056, 2021 U.S. Dist. LEXIS 6773, 2021 WL 868555, at *4 (6th Cir. Mar. 

9, 2021) (explaining that, although the defendant said in his compassionate release motion that he 

has chronic asthma (which increases the risk of serious illness from COVID-19), the district court 

could have denied the motion because he did not provide any records in his motion to support that 

he has chronic asthma). Here, although Green attached to his Motion a “Response to Inmate 

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Request to Staff,” an “Inmate Education Data Transcript,” and a “Summary Reentry Plan –

Progress Report,” none of those documents even mention any of the asserted medical ailments. 

The Court finds that Green’s age, lack of supported medical conditions, and asserted conditions at 

McCreary USP (which are similarly unsupported by any records or citation), are insufficient to 

demonstrate an “extraordinary and compelling” reason that would warrant a reduction in his term 

of imprisonment, even during the current COVID-19 pandemic. 

Second, even if Green had provided the Court with evidentiary support for his asserted 

medical ailments, the Court separately finds that Green’s requested relief should be denied at the 

third step in the analysis: consideration of any applicable Section 3553(a) factors and 

determination of whether, in the Court’s discretion, the reduction is warranted in whole or in part 

under the particular circumstances of this case. Elias, 984 F.3d at 519; Jones, 980 F.3d at 1108; 

18 U.S.C. § 3582(c)(1)(A)(i); see also Ruffin, 978 F.3d at 1005 (“[e]ven if [the first two 

requirements] are met, ... a district court may still deny relief if it finds that the applicable § 

3553(a) factors do not justify it”) (internal quotation marks omitted).

The Court has considered the Section 3553(a) factors to the extent that they are applicable. 

18 U.S.C. § 3582(c)(1)(A)(i). This includes that the Court considered Green’s history and 

characteristics, such as his behavior in prison, rehabilitation efforts, and acceptance of 

responsibility for his actions. See 18 U.S.C. § 3553(a)(1). And, for the analysis of the third step, 

the Court will assume the truth of Green’s assertions regarding medical ailments and challenging 

conditions at McCreary USP during the current COVID-19 pandemic. See 18 U.S.C. § 3553(a)(1), 

(a)(2)(B), (a)(2)(D). 

Yet, the “nature and circumstances of the offense” do not favor early release. See 18 U.S.C. 

§ 3553(a)(1). As shown above, the offense for which Green is currently incarcerated involved use 

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of a dangerous weapon in attempting to commit a bank robbery. (Doc. 27 at PAGEID # 27; PSR 

at ¶¶ 14 and 23.) It was a serious crime. Additionally, Green has an extensive criminal history,

and the offense for which he is currently incarcerated was similar to multiple separate crimes for 

which he was previously incarcerated. (Id.; PSR at ¶¶ 47, 48, 49.) Plus, Green has a history of 

violating conditions of supervision. (PSR at ¶ 48.) All of this greatly concerns the Court. See 18 

U.S.C. §3553(a)(1), (a)(2)(A), (a)(2)(B), (a)(2)(C), (a)(6). The Court finds that the need for the 

sentence imposed to reflect the seriousness of the offense, promote respect for the law, provide 

just punishment, afford adequate deterrence to criminal conduct, and protect the public from 

further crimes of the defendant do not favor early release. See 18 U.S.C. § 3553(a)(2)(A)-(C). 

Furthermore, Green still has a substantial amount of his sentence remaining. See 18 U.S.C. § 

3553(a)(2)(A), (a)(2)(B), (a)(6); Ruffin, 978 F.3d at 1008 (considering the amount of the sentence 

that the petitioner had served); United States v. Kincaid, 802 F. App’x 187, 188 (6th Cir. 2020)

(“the need to provide just punishment, the need to reflect the seriousness of the offense, and the 

need to promote respect for the law permit the court to consider the amount of time served in 

determining whether a sentence modification is appropriate”). Releasing Green with so much time 

remaining on his sentence “minimizes both the impact of [his] crime and seriousness of [his] 

offense.” United States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020). 

Having considered the factors set forth in Section 3553(a) to the extent that they are 

applicable, the Court finds that the requested reduction in the term of imprisonment is not 

warranted. Thus, the Court finds that consideration of the applicable Section 3553(a) factors calls 

for denial of the Motion. Jones, 980 F.3d at 1102 (affirming decision to deny motion for 

compassionate release where “the district court found for the sake of argument that an 

extraordinary and compelling circumstance existed in [defendant’s] case but that the § 3553(a) 

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factors counseled against granting compassionate release”); United States v. Pawlowski, 967 F.3d 

327, 330 (3d Cir. 2020) (affirming denial of a compassionate release motion where “the District 

Court reasonably concluded that several of the § 3553(a) factors—including ... the need to reflect 

the seriousness of the offense, promote respect for the law, and afford adequate deterrence—

counsel against compassionate release ...”).

III. CONCLUSION

Although the Court commends Green’s apparent efforts to better himself while 

incarcerated (see, e.g., Doc. 33 at PAGEID # 126) and is sympathetic to his arguments about the 

fear of contracting COVID-19, the circumstances here do not warrant a reduction in the term of 

imprisonment pursuant to Section 3582(c)(1)(A). For the reasons stated above, the Court DENIES

the Motion for Compassionate Release [or] Reduction in Sentence [Pursuant to] 18 U.S.C. § 

3582(c)(1)(A) (Doc. 33). 

DONE and ORDERED in Dayton, Ohio, this Wednesday, March 17, 2021. 

s/Thomas M. Rose

________________________________

THOMAS M. ROSE 

UNITED STATES DISTRICT JUDGE

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