IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:18-cr-48

Angela Faber

ORDER

Defendant Angela Faber was charged by complaint on January 22,

2018, with a drug conspiracy involving oxycodone under 21 U.S.C.

§846 and money laundering in violation of 18 U.S.C. §1956(a)(1). 

Doc. 1. Defendant was arrested on January 24, 2018, and was

released on bond on January 29, 2018. Doc. 7. On February 13,

2018, she failed to appear at a bond violation hearing, see Doc.

13, and a warrant was issued. An indictment was returned on

February 22, 2018. Doc. 13. Defendant was arrested on March 6,

2018, and was detained pending trial. Docs. 23, 27. She

subsequently entered a guilty plea to Count 1, conspiracy to

distribute and to possess with the intent to distribute oxycodone,

and Count 2, money laundering. Defendant was sentenced to a term

of incarceration of 48 months on Counts 1 and 2, to run

concurrently, and to concurrent 3-year terms of supervised release. 

Judgment was entered on October 24, 2018. Doc. 44. The website

for the Bureau of Prisons (“BOP”) indicates that her current

release date is July 3, 2021. See https://www.bop.gov/inmateloc/

(last visited December 7, 2020). However, the court has been

informed by the Probation Office that the BOP plans to release

defendant to a halfway house on February 4, 2021.

On October 15, defendant filed a motion for compassionate

release from imprisonment under 18 U.S.C. §3582(c)(1)(A), as

amended by the First Step Act of 2018, arguing that she is at risk

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of serious illness due to COVID-19 in light of her medical

conditions. Doc. 48. On October 16, the court entered an order

directing the government to respond to the motion by November 9,

2020. Doc. 49. On November 10, 2020, defense counsel moved for an

order granting defendant’s motion because the government did not

file a response by November 9th. Doc. 51. The government did file

a response in opposition to the motion on November 10, 2020, only

one day late. Doc. 52. Defendant filed a reply on November 13,

2020. Doc. 53.

The motion for an order granting defendant’s motion for

compassionate release on the ground that the government did not

file a response on November 9th is denied. The court notes

analogous authority in the context of civil litigation which holds

that even though a party does not respond to a summary judgment

motion, the district court cannot use that as a reason for granting

summary judgment without first examining all the materials before

it under Fed. R. Civ. P. 56(c). F.T.C. v. E.M.A. Nationwide, Inc.,

767 F.3d 611, 630 (6th Cir. 2014)(citing Smith v. Hudson, 600 F.2d

60, 65 (6th Cir. 1979). This is because a party is never required

to respond to a motion for summary judgment in order to prevail

since the burden of establishing the nonexistence of a material

factual dispute always rests with the movant. Id. (citing Hudson,

600 F.3d at 64). In this case, a defendant seeking a sentence

reduction under §3582(c)(1)(A) bears the burden of proving

entitlement to compassionate release. United States v. Lambert,

No. 1:16-cr-090, 2020 WL 6741311, at *2 (S.D. Ohio Nov. 17, 2020). 

Even if the government had filed no response, this court would

still be required to consider the materials in the record before

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ruling on the motion. In addition, the government substantially

complied with the briefing schedule, and some leeway is warranted

here due to the workplace challenges posed by COVID-19.

Under 18 U.S.C. §3582(c)(1)(A)(i), a motion for reduction in

sentence for “extraordinary and compelling reasons” can be filed

with the court if the defendant has exhausted his administrative

remedies. This exhaustion requirement is not jurisdictional, but

is a mandatory condition which must be enforced if the government

timely objects to the failure to exhaust. United States v. Alam,

960 F.3d 831, 833-834 (6th Cir. 2020). The government does not

dispute that defendant has exhausted her administrative remedies

and agrees that this court can rule on the merits of defendant’s

motion.

I. Standards for Compassionate Release

The court can reduce a sentence under §3582(c)(1)(A) if the

court finds that “extraordinary and compelling reasons warrant such

a reduction[.]” 18 U.S.C. §3582(c)(1)(A)(i). The court must also

consider the factors set forth in 18 U.S.C. §3553(a) to the extent

that they are applicable. §3582(c)(1)(A).1 District courts may

deny relief under §3582(c)(1)(A) based upon the court’s

discretionary balancing of the §3553(a) factors even if

1Section 3582(c)(1)(A) further provides that the court must

find “that such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission[.]” 18 U.S.C.

§3582(c)(1)(A). However, the Sixth Circuit has held that the

policy statement contained in United States Sentencing Guidelines

§1B1.13 do not apply to cases in which an inmate files a motion for

compassionate release, and that district courts have full

discretion to define “extraordinary and compelling” without

consulting the policy statement. See United States v. Jones, 

F.3d , 2020 WL 6817488, at *7, *9 (6th Cir. Nov. 20, 2020).

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extraordinary and compelling reasons would otherwise justify

relief. United States v. Ruffin, 978 F.3d 1000, 1008 (6th Cir.

2020). If, after weighing the §3553(a) factors, the court decides

that the motion is well taken, 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)[.]” 

§3582(c)(1)(A). The grant of compassionate release is at the

discretion of the court. United States v. Kincaid, 802 F. App’x

187, 188 (6th Cir. 2020).

II. Defendant’s Request for Release

Defendant argues that her sentence should be reduced because

of the dangers posed by COVID-19. However, §3582(c)(1)(A), as

amended by the First Step Act, “does not constitute a get-out-ofjail card.” United States v. Brady, S2 18 Cr. 316 (PAC), 2020 WL

2512100, at *3 (S.D.N.Y. May 15, 2020). Rather, “compassionate

release motions amid the COVID-19 pandemic have required a ‘factintensive’ inquiry ... made in the ‘unique circumstances’ and

‘context’ of each individual defendant.” Id., citing United States

v. Shakur, No. 82 CR 312 (CSH), 2020 WL 1911224, at *1 (S.D.N.Y.

Apr. 20, 2020) and United States v. Hart, 17 Cr. 248 (VSB), 2020 WL

1989299, at *6 (S.D.N.Y. Apr. 27, 2020)).

Defendant argues that she has a serious risk of complications

from COVID-19 due to her medical conditions.2 Defendant is 39

2Defense counsel indicates that defendant’s medical records

are available, but did not file them with the record. The court

concludes that it is not necessary to review these records,

particularly because the government does not dispute that defendant

has the medical conditions discussed in her motion. 

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years old. She claims that she is particularly at risk due to

obesity (she is 5'5" tall and weighs 187.6 pounds). Defendant

further states that she has chronic HCV (hepatitis C), a type of

liver disease. She notes that, according to the Centers for

Disease Control (“CDC”), these conditions are factors which may

increase the risk of negative outcomes from a COVID-19 infection.

According to the presentence investigation report (“PSR”),

defendant sustained multiple fractures in an auto accident in 2015,

and suffered a serious injury to her arm in an auto accident in

2016. She does not claim any disabilities as a result of these

injuries, but does contend that the multiple blood transfusions she

received following the 2015 accident compromised her immune system. 

Defendant states that during her incarceration at FCI Hazelwood,

she has had dermatophytosis (ringworm) in 2018, tinea cruris,

trichomoniasis, acute apical periodontitis (tooth disease) and a

yeast infection in 2019, and an ear infection, dermatitis (possibly

psoriasis), dysuria, a vaginal infection, a urinary tract

infection, and another yeast infection in 2020. There is no

evidence that defendant is currently suffering from any of these

infections. 

The government acknowledges that defendant’s obesity and

hepatitis C are conditions which, according to the CDC, may place

persons at increased risk of severe illness from COVID-19, but

notes that her other conditions are identified by the CDC as

presenting an increased risk. See https://www.bop.gov/coronavirus

(last visited December 7, 2020). Defendant acknowledges that a

compromised immune system due to blood transfusions is not

specifically listed in the CDC guidelines as posing an increased

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risk of COVID-19, but argues that those guidelines do recognize

that many conditions and treatments can weaken a person’s immune

system.

However, the government notes that there has been a low

incidence of COVID at FCI Hazelton, located in Bruceton Mill, West

Virginia, where defendant is incarcerated. The BOP reports that

there are currently 2 inmate and 6 staff cases of COVID-19, that

there have been no inmate or staff deaths, and that 6 inmates and

16 staff have recovered since the beginning of the pandemic. See

https://www.bop.gov/coronavirus (last visited December 10, 2020). 

Defendant argues that the BOP has not accurately reported cases of

COVID-19 in the institutions, including FCI Hazelton, citing

various news articles. However, there is no evidence before the

court to discredit the current statistics provided by the BOP for

FCI Hazelton.

Defendant indicates that if she is released, she would live

with her mother in Columbus, Ohio. The Ohio Department of Health

has reported that there have been 65,073 COVID-19 cases in Franklin

County, Ohio. In the zip code where defendant’s mother resides,

2,046 cases of COVID-19 have been reported. See

https://www.coronavirus.ohio.gov (last visited December 10,

2020).3 In contrast, there have been 800 confirmed cases, 103

probable cases and 15 deaths in Preston County, West Virginia,

where FCI Hazelton is located. See https://dhhr.wv.gov/COVID3This court can take judicial notice of the records of state

agencies. See Disabled Rights Action Committee v. Las Vegas

Events, Inc., 375 F.3d 861, 866 n. 1 (9th Cir. 2004)(citing Kottle

v. Northwest Kidney Centers, 146 F.3d 1056, 1064 n. 7 (9th Cir.

1988)(state health department records were properly judicially

noticed)).

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19/Pages/default.aspx (last visited December 10, 2020). The

defendant’s risk of infection may be no worse in prison than the

risk she would face if she is released to reside in Franklin

County.

The court concludes that defendant has not shown that her

medical conditions, viewed in the context of COVID-19, constitute

an “extraordinary and compelling reason” for her early release.

III. §3553(a) Factors 

The court is also required to consider the relevant factors in

§3553(a). The defendant was sentenced to a term of incarceration

of 48 months. This sentence was the result of a departure and

variance which yielded a sentence substantially below the guideline

range of 87 to 108 months. This case involved a serious drug

conspiracy offense. Defendant also opened a bank account and used

the account to launder drug proceeds. According to the PSR,

defendant traveled to Florida to obtain prescriptions for

oxycodone, a drug which leads to heroin addiction and overdose

deaths, and brought 1,680 pills back to the Central Ohio area. 

Taking into account the amount of money laundered by the defendant,

the total amount of relevant conduct attributed to the defendant

was 15,810 30-milligram oxycodone pills. Although defendant

received a minor role reduction, the court found that her

involvement in the offense was extensive. See Doc. 45.

As to the history and characteristics of the defendant, the

defendant has submitted evidence that she has completed several

classes at the institution, including a 12-hour drug program. The

court has considered defendant’s efforts towards post-offense

rehabilitation. The court has also considered defendant’s letters,

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and has reviewed the information concerning her personal history

contained in the PSR. The PSR reveals that defendant had a

troubled childhood which included sexual abuse. She also has a

long history of substance abuse, including alcohol, marijuana,

opiates, heroin and cocaine, which contributed to her involvement 

in the offenses in this case.

Nonetheless, as this court noted at defendant’s sentencing

hearing, defendant’s past criminal record is serious. The PSR

reveals that defendant’s record includes theft offenses in 2008,

2009 and 2001, attempted robbery in 2011, possession of criminal

tools (a fraudulent check) in 2012, one petit theft charge in 2016

and two petit theft charges in 2017, and possession of drug abuse

instruments (5 hypodermic needles) in 2017. In regard to the

attempted robbery charge, the probation officer reported in the PSR

that defendant and a codefendant lured two victims to a location

where they could be robbed by defendant’s boyfriend and another

individual. The victim’s vehicle was shot twice during the

attempted robbery. Defendant was sentenced to a term of community

control for this offense. While on probation, defendant tested

positive for controlled substances, failed to attend a substance

abuse assessment, and was declared an absconder. 

The sentence imposed in this case was lenient considering the

serious nature of the offense and the defendant’s criminal record. 

The court noted at the time of sentencing, and continues to

believe, that the chosen sentence was warranted because the

sentences imposed for defendant’s previous convictions were not

sufficient to deter her from engaging in further criminal activity. 

See Doc. 45. Defendant served very little jail time as a result of

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her state convictions. According to the defendant, she has now

served almost 33 months, approximately 70 percent of the sentence

of 48 months. Nonetheless, for the reasons stated above, the court

concludes that the sentence of 48 months imposed in this case was

necessary, and continues to be necessary, to reflect the

seriousness of the offenses, promote respect for the law, provide

just punishment, deter the defendant from engaging in criminal

conduct in the future, and protect the public from more crimes by

the defendant. 

The court also notes that the BOP plans to release defendant

to a halfway house on February 4, 2021, less than two months from

now. The court is reluctant to interfere with the plans the BOP

has in place to assist defendant’s transition back into society. 

Considering defendant’s long history of substance abuse and her

criminal record, defendant could greatly benefit from the structure

provided by a residential re-entry center. The Probation Office

has advised the court that if defendant’s sentence is reduced to

time served and the court orders a new term of supervised release

with a condition that defendant reside in a halfway house, no space

would be available until the middle of January at the earliest. 

The court further notes that compassionate release orders are

frequently stayed for fourteen days to permit the BOP to comply

with COVID-19 isolation protocols designed to protect the public. 

This could further delay any placement in a residential re-entry

center.

Defendant argues that if her sentence is reduced, the court

could place her on supervised release under the supervision of a

probation officer. However, defendant had problems complying with

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her conditions of supervision both during her term of probation

following her attempted robbery conviction and while she was on

pretrial release following her arrest on the charges in the instant

case. A residential re-entry center would provide a higher level

of supervision which would suit defendant’s needs better than the

less direct supervision which would be available if she is residing

with her mother. 

After weighing all of the relevant §3553(a) factors, the court

concludes that these statutory factors warrant denying defendant’s

motion for a reduced sentence. Even assuming, arguendo, that

defendant’s health conditions are sufficient to constitute an

“extraordinary and compelling reason” for a sentence reduction,

that reason is outweighed by the statutory factors which

predominantly militate against defendant’s early release.

IV. Conclusion

In accordance with the foregoing, defendant’s motions for

compassionate release (Docs. 48 and 51) are denied.

Date: December 11, 2020 s/James L. Graham 

 James L. Graham

 United States District Judge

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