IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

United States of America

v. Case No. 2:18-cr-147

Bilal A. El Yousseph

OPINION AND ORDER

Defendant pleaded guilty to a superseding information charging

him with conspiracy to distribute and to possess with the intent to

distribute controlled substances (marijuana, Adderall and Xanax) in

violation of 21 U.S.C. §846 (Count 1) and brandishing, carrying and

using a firearm during and in relation to a drug trafficking crime

(Count 2). By judgment entered on August 26, 2019, he was

sentenced to a term of incarceration of 18 months on Count 1, and

a consecutive term of imprisonment of 84 months on Count 2, or a

total term of 102 months, to be followed by concurrent terms of

supervised release of 3 and 5 years. He has been in custody

approximately 31 months since his arrest on the federal warrant. 

His projected release date from the institution is October 17,

2025. 

On December 2, 2020, defendant filed a pro se motion for

compassionate release pursuant to 18 U.S.C. §3582(c)(1)(A)(i), as

amended by the First Step Act of 2018, stating that he was at risk

from COVID-19 due to obesity. Doc. 55. Counsel was appointed to

represent the defendant. On December 28, 2020, counsel filed a

supplement to the motion, arguing that defendant’s obesity and his

mental health issues warranted a reduced sentence. Doc. 58. The

government responded on January 15, 2021, contending that defendant

failed to demonstrate that he had exhausted his administrative

remedies as required under §3582(c)(1)(A). Doc. 62. On January

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21, 2021, the court denied defendant’s motion without prejudice due

to his failure to exhaust his administrative remedies. Doc. 63.

On January 29, 2021, defendant filed a supplement to his

motion and submitted a copy of a request for release dated

September 15, 2020, which he made to the warden. Doc. 64. In that

request, defendant stated that he was at risk from COVID-19 due to

medical issues (obesity and former chain smoker) and his minority

status (he is of Middle Eastern ancestry). Defendant claimed that

he received no response to his request. On February 8, 2021,

counsel filed another supplemental memorandum arguing that

defendant had exhausted his administrative remedies, and that

defendant’s release was warranted due to his health issues, which

had not been addressed by the Bureau of Prisons (“BOP”). Doc. 67. 

On February 26, 2021, the government filed a response stating that

exhaustion was not contested, but that defendant’s motion should be

denied based on the factors in 18 U.S.C. §3553(a). Doc. 69. 

I. Standards for Compassionate Release 

Under 18 U.S.C. §3582(c)(1)(A)(i), 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). District courts have full discretion

to define what constitutes an “extraordinary and compelling”

reason. See United States v. Jones, 980 F.3d 1109, 1111 (6th Cir.

Nov. 20, 2020). 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). If, after weighing the §3553(a) factors, the court

decides that the motion is well taken, the court “may reduce the

term of imprisonment[.]” §3582(c)(1)(A). The grant of

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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 Medical Conditions

Defendant, who is 29 years old, alleges that he has medical

conditions which place him at risk for serious illness from COVID19. He has submitted no medical records in support of this claim,

nor has he demonstrated in what respect the BOP has failed to treat

any particular condition. Rather, defendant relies on information

contained in the presentence investigation report (“PSR”). When

that report was prepared, defendant stated that his health was good

and denied any serious conditions. However, he was diagnosed with 

Attention-Deficit/Hyperactivity Disorder (“ADHD”) as a child and

took Adderall into adulthood. Defendant also used marijuana,

cocaine and Xanax on a regular basis.

At the time of the PSR, defendant was 5 feet, 11 inches, and

weighed 215 pounds. According to the Centers for Disease Control

(“CDC”), obesity (a body mass index over 30kg/m) is a condition

which poses a risk of severe illness from COVID-19.

https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html#obesity. (last

visited March 2, 2021). However, there is no evidence that

defendant suffers from any adverse physical problems specifically

linked to his weight. See United States v. Tranter, 471 F. Supp.3d

861, 865 (N.D. Ind. July 8, 2020)(noting that BMI is “a notoriously

blunt tool” with clinical limitations, including its inability to

differentiate between excess fat, muscle and bone mass, and that

defendant had not identified any current medical issues resulting

from his obesity).

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Defendant notes that he was formerly a chain smoker. Being a

former smoker is also a circumstance that can render a person more

susceptible to a risk of serious illness due to COVID-19. 

https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html#smoking. (last

visited March 2, 2021). There is no evidence that defendant has

smoked since being confined in a federal institution in 2019. 

Defendant has also presented no evidence of any adverse physical

symptoms which he is currently experiencing or has experienced in

the past due to his smoking. See Tranter, 471 F.Supp. 3d at 865

(rejecting defendant’s argument that his status as a former smoker

placed him at increased risk where defendant identified no adverse

health effects resulting from his smoking past).

Other than defendant’s substance abuse problems and his ADHD

diagnosis, defendant has produced no evidence of any mental

conditions. Mental conditions are not on the list of conditions

which the CDC has recognized as resulting in an increased risk of

serious illness due to COVID-19. Even outside the context of

COVID-19, the defendant’s mental conditions are not extraordinary

and compelling. Substance abuse problems are not uncommon or

unusual. Despite the ADHD diagnosis, defendant graduated from high

school and earned some college credit hours.

Defendant also states that he is a member of a minority group. 

The CDC has noted that some racial and ethnic minority groups have

been disproportionately affected by COVID-19 due to factors such as

poverty, discrimination, lack of access to health care, type of

employment, and housing. See https://www.cdc.gov/coronavirus/2019-

ncov/community/health-equity/race-ethnicity.html (last visited

march 2, 2021). There is no indication that any of these factors

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would make defendant any more susceptible than non-minority inmates

to COVID-19 in a federal institution, or put him in a less

favorable position for obtaining medical treatment or other

services.

As to the risk of contracting COVID-19 at the institution, the

BOP reports that at Gilmer FCI, the facility housing 1,400 inmates

where defendant is confined, 292 inmates and 61 staff have

recovered from COVID-19, and 2 inmates and 5 staff have currently

tested positive. https://www.bop.gov/coronavirus (last checked

March 1, 2021). This indicates that although Gilmer FCI has had a

problem with COVID-19 in the past, the rate of infection is now

much more controlled. The court also notes that the BOP is now

working with the CDC and the federal government’s COVID-19

Vaccine/Therapeutics Operation to ensure that the BOP is prepared

to receive and administer the COVID-19 vaccines. At this point,

114 staff and 113 inmates at Gilmer have been vaccinated. See

https://www.bop.gov/coronavirus (last checked March 2, 2021).

The court concludes that the above factors relied on by

defendant do not constitute an extraordinary and compelling reason

for his release.

III. §3553(a) Factors

The court must also address the applicable §3553(a) factors. 

The offenses in this case were serious. Defendant participated in

a conspiracy to distribute and to possess with the intent to

distribute fentanyl, Xanax, marijuana and Ritalin. He was an

organizer and leader and recruited others to join the conspiracy,

including at least one juvenile. He participated in an incident in

which an individual who was suspected of stealing drugs from the

conspiracy was threatened with death. The PSR reported that

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defendant and others repeatedly pointed firearms at the victim and

threatened to kill him and his family members unless he wrote a

confession. This violent incident, which amounted to the prolonged

psychological torture of the victim, highlights the need for the

sentence imposed to deter similar conduct in the future and to

protect the public from additional crimes by the defendant. 

As to the history and characteristics of the defendant, at the

time of his convictions for the offense in this case, defendant was

in Criminal History Category II. His prior record includes a 2010

conviction for assault, which involved defendant and three others

assaulting a high school student; 2011 convictions for under-aged

possession of alcohol and physical control; a 2012 conviction for

under-aged drinking; and a 2016 conviction for possession of drug

paraphernalia related to marijuana. The prior conviction for a

violent offense is troubling and reinforces the need for defendant

to serve a sentence which protects the public.

Defendant reported that he was raised in a good home. He was

employed prior to his arrest. However, he has a history of

substance abuse, including the use of marijuana, cocaine and Xanax,

which probably contributed to his involvement in the offenses in

this case. The PSR reported that defendant never received

treatment for these addictions. As part of the judgment in this

case, the court recommended to the BOP that the defendant be

enroled in substance abuse and vocational and educational programs. 

There is no evidence that defendant has yet had the opportunity to

participate in any such programs, particularly in light of any

restrictions in place due to the COVID-19 pandemic. This raises

concerns as to whether defendant’s early release would lead to

defendant reverting to the use of controlled substances and

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committing additional crimes. 

Defendant has served approximately 31 months, less than onethird of the imposed sentence. A reduced sentence would not be

sufficient to reflect the seriousness of the offenses, promote

respect for the law, provide just punishment, afford adequate

deterrence and protect the public from more crimes by the

defendant. The court concludes that the §3553(a) factors warrant

denying defendant’s motion for a reduced sentence. Even assuming,

arguendo, that defendant’s health conditions and other concerns are

sufficient to constitute an “extraordinary and compelling reason”

for a sentence reduction, that reason is outweighed by the

statutory factors which militate against defendant’s early release.

IV. Conclusion

In accordance with the foregoing, defendant’s motion for a

reduced sentence (Docs. 64 and 67) is denied.

Date: March 2, 2021 s/James L. Graham 

 James L. Graham

 United States District Judge

 

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