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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

ANTONIO RODRIGUEZ,

Defendant.

Case No. 17-cr-00021-WHO-1 

ORDER DENYING WITHOUT 

PREJUDICE MOTION FOR

COMPASSIONATE RELEASE 

Re: Dkt. No. 49

INTRODUCTION

I am disturbed by the Bureau of Prison’s (“BOP”) decision-making concerning and 

treatment of defendant Antonio Rodriguez, a paraplegic whom I sentenced on August 10, 2017. 

The BOP originally sent him (after many interim stops) to FCI Allenwood, which apparently 

could not provide the assisted physical therapy his medical records demonstrated that he needed. 

When the BOP recognized its error, it inexplicably transferred him to a Medical Facility (FMC 

Devens) where he could not be placed in the general population, necessitating his placement in a 

segregated housing unit (“the SHU”). Faced with the deterioration of his mental health, an even 

more serious risk than the BOP’s continued inability to maintain his physical health, Rodriguez 

signed a waiver refusing medical services in order to transfer out of the SHU and FMC Devens. 

The BOP shipped him back to FCI Allenwood, failed to provide the medical services it previously 

concluded he needed, and now claims that those services are no longer necessary.1 

As a result of the BOP’s mind-boggling conduct, Rodriguez seeks compassionate release 

 

1 The government relies on medical records after January 2019, when Rodriguez signed a waiver 

refusing medical services, to support its argument that Rodriguez does not need physical therapy 

services. I view these records with skepticism because they are remarkably inconsistent with 

medical records prior to January 2019. 
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due to his declining physical condition, difficulty taking care of himself in prison, and the BOP’s 

demonstrated inability or unwillingness to provide him with the physical therapy and medical care 

that he needs. 

The present medical record does not establish that the severity of the deterioration of his 

physical condition alone warrants granting Rodriguez’s motion. He argues, in the alternative, that 

the totality of circumstances support a finding of “extraordinary and compelling reasons” to grant 

relief.

If Rodriguez was not coming to a nearby Residential Reentry Center (“RRC””) on January 

14, 2020, where the government has promised that he will receive the services he has been 

requesting, I would likely grant the motion. However, my concern about Rodriguez’s welfare is 

balanced by my desire that he serve the sentence that I imposed. The record of his current 

physical health is confused in light of a recent evaluation at the BOP that contradicts the earlier 

ones. Because of the representation of the government that Rodriguez will receive assisted 

physical therapy services and necessary medical equipment (such as a standing frame) while at the 

RRC, and the short time between now and his arrival at the RRC, I will deny the motion without 

prejudice. But should the representations regarding services at the RRC prove untrue, I may sua 

sponte grant the requested relief. Given the record in this case, and to ensure that Rodriguez is 

receiving the services he needs, a Status Conference is scheduled for January 30, 2020, at 1:30 

p.m. I direct that Probation Officer Gerstel file a written report by January 23, 2020, informing 

me and the parties whether the RRC is providing the promised services. 

BACKGROUND

I. FACTUAL BACKGROUND

On September 5, 2019, Rodriguez filed a motion for compassionate release pursuant to the 

First Step Act (“FSA”), newly amended 18 U.S.C. § 3582(c)(1)(A)(i). Motion for Compassionate 

Release (“Mot.”) [Dkt. No. 49] 1. Rodriguez requests that I resentence him to home-confinement 

due to his declining physical condition, difficulty taking care of himself in prison, and the BOP’s

demonstrated inability or unwillingness to provide him with the physical therapy and medical care 

that he needs. Id. 
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A. Medical Condition Before Incarceration 

In 2010, Rodriguez suffered rib, spine and sternal fractures due to gunshot wounds. 

Declaration of David Rizk in Support of Motion for Compassionate Release (“Rizk Decl.”) [Dkt. 

No. 50], Ex. C (October 2011 medical record from Kaiser primary care physician). He also 

suffered a spinal cord severance, rendering him paraplegic. Id. Medical care providers who 

examined him in the years prior to his incarceration found that Rodriguez requires “help from a 

caregiver for most of his day to day needs.” Id.; see also Rizk Decl., Ex. D (July 2012 medical 

record from Kaiser Spinal Cord Wellness Clinic recommending daily use of a standing frame and 

exercise with the assistance of a physical therapist); Ex. E (February 2013 correspondence from 

Rodriguez’s physical therapist recommending the same); Ex. F (April 2013 medical record from 

Kaiser Spinal Cord Wellness Clinic noting Rodriguez was receiving assistance from his brother to 

complete his exercises); Ex. G (January 2015 medical record from Kaiser recommending 

continued physical therapy); Ex. H (December 2015 medical record from Kaiser noting 

improvements following one year of therapy). In particular, Rodriguez’s doctor recommended 

physical therapy to mitigate the tightness and spasticity in his legs. Rizk Decl., Ex. I (February 

2016 medical record from Kaiser). Rodriguez’s brother confirms that he was aiding his brother 

twice daily with exercises, stretches, and transfers to a standing frame up until the point when 

Rodriguez went into federal custody. Mot. 5; see Declaration of Anthony Rodriguez in Support of 

Motion for Compassionate Release [Dkt. No. 51], ¶ 5. 

On January 12, 2017, Rodriguez was charged with one count of violating 18 U.S.C. § 

922(g)(1), felon in possession of a firearm. Indictment [Dkt. No. 1]. He violated the conditions of 

his pre-trial release with a second firearms violation as well as a failed drug test. Presentence 

Report [Dkt. No. 35] ¶ 4. He pleaded guilty. On August 10, 2017, I sentenced Rodriguez to 41 

months in prison followed by three years of supervised release. Judgment [Dkt. No. 39]. 

Rodriguez was committed to BOP custody on December 22, 2017. His current statutory release 

date is projected to be July 29, 2020 and his expiration of full term date is projected to be January 

6, 2021. Rizk Decl., Ex. K. 
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B. Transfer from FCI Allenwood to FMC Devens for Physical Therapy Services

Rodriguez has been moved multiple times while in BOP custody. Mot. 6. Following 

sentencing, he was transferred to Santa Rita County Jail on September 14, 2017, Nevada Southern 

Detention Center on November 15, 2017, FTC Oklahoma City on November 30, 2017, FCI El 

Reno Oklahoma City on December 22, 2017, back to FTC Oklahoma City on February 24, 2018, 

FCI Allenwood on March 12, 2018, FMC Devens on December 6, 2018, and back to FCI 

Allenwood on March 12, 2019, where he remains now. Mot. 6; Rizk Decl., Ex. A (compassionate 

release request sent on January 30, 2019 detailing his multiple transfers while in BOP custody). 

Rodriguez claims that starting in late 2017 and continuing through 2018 and 2019, he 

submitted numerous requests for access to physical therapy services, but BOP rejected his 

requests. Mot. 6; Rizk Decl., Ex. M (compilation of inmate request forms sent by Rodriguez). 

Rodriguez cites numerous medical records from BOP as evidence that he was not given the 

physical therapy services prescribed to him. Mot 6 –7. 

On August 8, 2018, an independent therapist not associated with BOP, Susan Andrews, 

evaluated Rodriguez. She noted that he can improve his mobility if “he is provided the 

opportunity for hands on and skilled rehab services (vs. independent exercise and rehab activities 

without the assistance or input of trained, skilled therapist).” Rizk Decl., Ex. N. Ms. Andrews

further noted that “hands-on rehab cannot be done in the FCI Allenwood setting,” and “as such, 

incarceration in a setting where these services are readily available might offer him the access to 

these services and ultimately increased mobility.” Id.2 On August 22, 2018, BOP acknowledged 

the recommendation to have him moved to a facility with physical therapy services. Mot. 7; Rizk 

Decl., Ex. O (BOP Health Services administrative note stating that BOP “[w]ill inquire about this 

as a possibility”).

Two months later, on October 24, 2018, Rodriguez was examined by an independent 

 

2 On November 5, 2019, Ms. Andrews conducted a second evaluation which facially contradicts to

her first evaluation. See Second Supplemental Brief in Opposition [Dkt. No. 78]. As I said at the 

November 7, 2019 hearing, this second evaluation does not hold much weight given the 

inconsistencies. 
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doctor of osteopathy, Dr. Melissa Michaluk, who recommended that Rodriguez have “ample 

access to therapeutic equipment, a standing frame, wheelchair vendors, and a gym.” Rizk Decl., 

Ex. P. Dr. Michaluk concluded that if he “could have access to these services, his risk of 

worsening spasticity, nerve pain, and permanent loss of ability to stand would decrease 

significantly.” Id. Citing this evaluation, BOP approved his transfer to a medical facility on 

November 16, 2018. Id., Ex. Q. On December 6, 2018, Rodriguez was transferred to FMC 

Devens; the BOP transfer form indicates the reason for transfer as “Hospitalization and 

Treatment.” Id., Ex. R (BOP Transfer Form); id., Ex. S (BOP Inmate Activity Form). BOP 

officials at FMC Devens determined that Rodriguez required a “care level” of 4, which means he

“requires daily or nearly daily nursing interventions.” Id., Ex. T; see also id., Ex. U (BOP 

Medical Classification Algorithm for Medical/Psychiatric Conditions or Disabilities). 

C. SHU Confinement at FMC Devens and January 2019 Waiver Refusing 

Medical Treatment 

Upon his arrival at FMC Devens, BOP placed Rodriguez in the SHU because FMC Devens 

was “dominated by MS-13 and the Sureños, meaning that Rodriguez was not safe in the general 

inmate population.” Mot. 8; Rizk Decl., Ex. V (“Due to security reasons, Inmate Rodriguez has 

been housed in the SHU since his arrival.”). Rodriguez argues that instead of finding a different 

medical facility, BOP put him in the SHU, where he was “confined for 23 hours a day,” and only 

had “limited access to email, telephone calls, recreation time, and visitation.” Mot. 8. 

Rodriguez “begged to be moved out of the SHU,” requesting BOP staff to lower his care 

level to 3 or 2 so that he could get out of the SHU. Mot. 8; Rizk Decl., Ex. W. On January 2, 

2019, he wrote: “It makes no sense having me at a medical center if I’m not able to be on the 

compound. There is no medical center in the BOP I can be at . . . so I think it’s best to just lower 

my care level to a 3 or 2 and send me back to FCI Allenwood which is a care level 3.” Rizk Decl., 

Ex. W. He added, “It’s unhealthy to keep me back here in my mental state of mind for no reason. 

It’s clearly a form of abuse and neglect. I’m not in trouble, so I should not have to be treated like I 

am.” Id. 

Rodriguez alleges that on January 4, 2019, BOP persuaded him to sign a waiver of 
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physical therapy services in order to leave the SHU and FMC Devens. Rizk Decl., Ex. W; Mot. 8. 

The waiver form, titled “Medical Treatment Refusal,” required Rodriguez to acknowledge that if 

he refuses treatment recommended by the BOP Medical staff, defined as “physical therapy for 

rehabilitation,” then he could suffer “continued degeneration of muscles and breakdown of skin, 

increase in falls and sequelae.” Id. 

D. Inconsistent BOP Records After January 2019

The BOP documents subsequent to the January 4, 2019 waiver are inconsistent with the 

prior medical record, raising questions concerning their reliability. On January 8, 2019, a BOP 

medical examiner noted that Rodriguez signed a physical therapy waiver and expressed his 

frustration of being confined in the SHU. Rizk Decl., Ex. X. On January 16, 2019, a BOP staff 

member noted that Rodriguez “was sent to FMC Devens for PT eval[ulation] and assessment for 

possible PT and rehab[ilitation] from his spinal injury.” Declaration of Ryan Parkyn in Support of 

Opposition (“Parkyn Decl.”) [Dkt. No. 58], Ex. F. On January 17, 2019, a BOP medical 

document states that Rodriguez “was evaluated by Physical Therapy on January 16, 2019” and 

concluded that their assessment “revealed that the patient is completely independent with all 

[activities of daily living]” and that there is “no indication for PT given his absent prognosis for 

returning to functional ambulation.” Rizk Decl., Ex. V. Rodriguez argues that these documents 

should not be given much weight given that it was only days after Rodriguez “was coerced into 

signing the physical therapy waiver.” Mot. 9. 

Rodriguez also argues that these January 2019 documents are inconsistent with the medical 

documents prior to his transfer to FMC Devens. Mot. 9–10; see Rizk Decl., Ex. P (October 24, 

2018 independent doctor suggesting access to standing frame); Ex. N (August 8, 2018 independent 

physical therapist suggesting “hands on and skilled rehab services (vs. independent exercise and 

rehab activities without the assistance or input of trained, skilled therapist)”); Ex. O (August 22, 

2018 BOP medical staff recommending “transfer to a medical facility where these services would 

be readily available and ultimately increase mobility”).

E. Transfer Back to FCI Allenwood and Request for Compassionate Release

On March 12, 2019, Rodriguez was transferred from FMC Devens to FCI Allenwood. 
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Rizk Decl., Ex. B. An internal BOP medical record noted that Rodriguez is at risk for skin 

breakdowns. Id., Ex. Y. After moving back to FCI Allenwood, Rodriguez submitted a request for 

compassionate release to the prison administration. Rizk Decl., Ex. B. On April 2, 2019, the 

warden denied the request and stated that Rodriguez did not meet the “Debilitated Medical 

Condition” which she defined, citing to BOP Program Statement 5050.50, as: “Completely 

disabled, meaning the inmate cannot carry on any self-care and is totally confined to a bed or 

chair; or [c]apable of only limited self-care and is confined to a bed or chair more than 50% of 

waking hours.” Id., Ex. B and Ex. Z. According to the warden, “the Health Services personnel 

have confirmed that though you are a paraplegic, you continue to independently perform activities 

of daily living.” Id., Ex. B. 

F. Third Independent Medical Expert Confirms Rodriguez Needs Physical 

Therapy

The defense retained, and I authorized, Dr. Thomas DiBenedetto to provide a professional 

opinion concerning Rodriguez’s condition and care. Mot. 10; Order Authorizing Medical 

Examination of Rodriguez [Dkt. No. 48]. Dr. DiBenedetto was provided with Rodriguez’s entire 

medical record from both prior to his incarceration and during BOP custody. Mot. 11. Dr. 

DiBenedetto’s report of July 30, 2019 finds that Rodriguez has developed increasing knee 

contractures of 10 to 15 degrees in his knees. Rizk Decl., Ex. BB (DiBenedetto Report at 4). Dr. 

DiBenedetto also finds that Rodriguez is losing range of movement in his ankles. Id. He

concludes that while Rodriguez’s condition is permanent, the absence of physical therapy 

assistance will increasingly limit his ability to complete the most basic daily activities. Id. at 8. 

Specifically, he recommends that Rodriguez “should be under the care of a Board Certified 

Physiatrist with specialty training in a spinal cord injury,” who can provide “supervision of a 

medication regimen to control spasticity and if need be to prescribe various devices to prevent 

contracture and to do a comprehensive home exercise program.” Id. at 9. 

Rodriguez argues that Dr. DiBenedetto’s recommendations are consistent with prior 

independent care providers who also recommended assisted physical therapy services. Mot. 12. 

Dr. DiBenedetto’s conclusion is also, notably, consistent with the BOP waiver that acknowledges 
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that, in the absence of physical therapy, “continued degeneration of muscles and breakdown of 

skin, increase in falls and sequelae.” Rizk Decl., Ex. W (medical treatment refusal waiver); Mot. 

12. 

II. PROCEDURAL HISTORY

A. Motion for Compassionate Release

On September 5, 2019, Rodriguez filed a motion for compassionate release pursuant to the 

First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i). See Mot. Rodriguez does not challenge the validity 

of the sentence originally imposed, but rather seeks a reduction in his sentence given the 

“extraordinary and compelling” reason that BOP has not, and possibly cannot, provide him the 

requisite physical therapy he needs. Id. The government opposed the motion on several grounds. 

Opposition (“Oppo.”) [Dkt. No. 57]. The first hearing was held on October 10, 2019. Dkt. No. 

69. Given the complexity of the issues and the muddled factual record, I continued the hearing 

and directed the parties to file supplemental briefing. 

B. Supplemental Briefing

On October 21, 2019, U.S. Probation Officer Alex Gerstel reported that Rodriguez had

been approved to transfer to a RRC on January 14, 2020. In its supplemental opposition, the 

government continued to argue that Rodriguez does not require assisted physical therapy, and 

additionally argues that the court does not have authority to consider “other compelling reasons” 

for compassionate release outside of those defined by the Sentencing Commission. Government 

Supplemental Opposition [Dkt. No. 71] 1–3.

In his supplemental reply, Rodriguez argues that there is no reason to further delay his

medical care given BOP’s refusal to change its position, and that the court has authority to 

consider “other compelling reasons” for compassionate release. Rodriguez Supplemental Reply

[Dkt. No. 74] 1. A continued hearing occurred on October 31, 2019 and November 7, 2019.

LEGAL STANDARD

In 2018, Congress passed the First Step Act (“FSA”). First Step Act of 2018, Pub. L. No. 

115-391, 132 Stat. 5194. The statute amends numerous portions of the U.S. Code to promote 

rehabilitation of prisoners and unwind decades of mass incarceration. Cong. Research Serv., 
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R45558, The First Step Act of 2018: An Overview 1 (2019). Relevant here, the FSA amended the 

procedures by which defendants can seek sentence reductions through compassionate release. 

Under the old regime, a defendant could only petition the BOP Director for compassionate release, 

who could then make a motion, at her discretion, to a district court. See U.S. Sentencing 

Guidelines Manual § 1B1.13 cmt. n.4 (U.S. Sentencing Comm’n 2018) (“U.S.S.G.”). The BOP

Director rarely did so. See Hearing on Compassionate Release and the Conditions of Supervision 

Before the U.S. Sentencing Comm’n (2016) (statement of Michael E. Horowitz, Inspector 

General, Dep’t of Justice).

The FSA allows defendants, for the first time, to petition district courts directly for 

compassionate release. 18 U.S.C. § 3582(c)(1)(A)(i). First, as a threshold matter, the statute 

requires defendants to exhaust administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, a 

district court may grant compassionate release only if “extraordinary and compelling reasons 

warrant such a reduction” and “that such reduction is consistent with applicable policy statements 

issued by the Sentencing Commission. Id. Third, the district court must also consider “the factors 

set forth in Section 3553(a) to the extent that they are applicable.” Id. 

DISCUSSION

I. EXHAUSTION OF ADMINISTRATIVE REMEDIES

A court may reduce a term of imprisonment on a motion from a 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.” 18 U.S.C. § 

3582(c)(1)(A). A defendant who has not “requested compassionate release from the [Bureau of 

Prisons] or otherwise exhausted his administrative remedies” is not entitled to a reduction of his 

term of imprisonment. United States v. Solis, No. 16-CR-015-CG-MU, 2019 WL 2518452, at *2 

(S.D. Ala. June 18, 2019). 

Here, Rodriguez filed an administrative request for compassionate release to the warden at 
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FCI Allenwood on March 21, 2019.3 Parkyn Decl., Ex. B. The court gained jurisdiction in the 

lapse of thirty days, i.e., April 20. 2019. Rodriguez filed his motion for compassionate release on 

September 5, 2019. See Mot. Rodriguez has met the threshold requirement of administrative 

exhaustion as set forth in 18 U.S.C. § 3582(c)(1)(A).

4

II. EXTRAORDINARY AND COMPELLING REASON

18 U.S.C. § 3582(c) provides a path for defendants in “extraordinary and compelling 

circumstances” to be released from prison early. 18 U.S.C. § 3582(c)(1)(A). Such a sentence 

reduction must comply with the 18 U.S.C. § 3553(a) factors and “applicable policy statements 

issued by the Sentencing Commission.” Id. Congress has not defined what constitutes 

“extraordinary and compelling” other than that “[r]ehabilitation of the defendant alone” is 

insufficient. 28 U.S.C. § 994(t). Instead, the statute directs the Sentencing Commission to 

promulgate “the criteria to be applied and a list of specific” extraordinary and compelling 

examples. Id. Before the FSA’s passage, the Commission concluded “extraordinary and 

compelling reasons” are limited to four scenarios. Included among them are a defendant’s 

medical condition (Subdivision (A)), health and age together (Subdivision (B)), and family 

circumstances (Subdivision (C)). U.S.S.G. § 1B1.13, cmt. n .1(A)–(C). The “medical condition” 

scenario under Subdivision (A) describes a defendant who suffers from a “terminal illness” or a

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.” 

 

3 Rodriguez also filed administrative requests for compassionate release on April 10, 2018, August 

22, 2018, and January 30, 2019. See Rizk Decl., Exs. A and M; Parkyn Decl., Ex. I.

4 The government also argued that Rodriguez had waived his right to seek compassionate release

under 18 U.S.C. § 3582 in his plea agreement. Oppo. 5. This argument was not at all well taken. 

Waiver is the relinquishment of a known right. The First Step Act amended Section 3582 and was 

passed after his sentence, so he could not have waived the rights it contains. In particular, a 

waiver of rights under Section 3582 is enforceable if “(1) the language of the waiver encompasses 

the relief sought, and (2) the waiver is knowingly and voluntarily made.” United States v. 

Charles, 581 F.3d 927, 931 (9th Cir. 2009). His waiver could not have encompassed the relief 

sought under the newly amended Section 3582, nor could he have knowingly waived rights that 

were not in existence, or even contemplated, at the time of his plea. Moreover, he could not have 

thought, and I absolutely did not think, that the BOP would decide that the only way to treat his 

demonstrated medical condition was to house him in a SHU. No inmate waives the right to be 

treated properly by the BOP in a plea agreement.
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U.S.S.G. § 1B1.13 cmt. n.1(A).

The Sentencing Commission also provided a catch-all provision under Subdivision (D) that 

allows the BOP Director to determine if “there exists in the defendant’s case an extraordinary and

compelling reason other than, or in combination with, the reasons described in Subdivisions (A) 

through (C).” U.S.S.G. § 1B1.13 cmt. n.1(D). However, the Sentencing Commission “never 

harmonized its policy statements with the FSA.” United States v. Brown, No. 4:05-CR-00227-1, 

2019 WL 4942051, at *2 (S.D. Iowa Oct. 8, 2019). Rather, the outdated policy statements still 

assume compassionate release “may by granted only upon motion by the Director of the Bureau of 

Prisons.” Id. (quoting U.S.S.G. § 1B1.13 cmt. n.4). Because this is no longer the law with the 

First Step Act, which allows defendants to seek relief directly from the court, this “leaves district 

courts in a conundrum.” Id. (describing that Congress now allows district courts to grant petitions 

“consistent with the applicable policy statements” from the Sentencing Commission, but the 

Commission “has not made the policy statements for the old regime applicable to the new one”). 

This court follows the growing number of district courts that have concluded that, in the 

absence of applicable policy statements, courts “can determine whether any extraordinary and 

compelling reasons other than those delineated in U.S.S.G. § 1B1.13 cmt. n.1(A)–(C) warrant 

compassionate release. See, e.g., Brown, 2019 WL 4942051, at *2; United States v. Beck, No. 

1:13-CR-186-6, 2019 WL 2716505, at *5 (M.D.N.C. June 28, 2019); United States v. Cantu, No. 

1:05-CR-458-1, 2019 WL 2498923, at *5 (S.D. Tex. June 17, 2019); United States v. Fox, No. 

2:14-CR-03-DBH, 2019 WL 3046086, at *3 (D. Me. July 11, 2019). Congress knew that the BOP

rarely granted compassionate release petitions, and the purpose of the FSA was to allow 

defendants to file motions in district courts directly even after the BOP Director denies their 

petition. Brown, 2019 WL 4942051, at *3. “[T]he only way direct motions to district courts 

would increase the use of compassionate release is to allow district judges to consider the vast 

variety of circumstances that may constitute ‘extraordinary and compelling’.” Id. (internal citation 

and quotation marks omitted).

Rodriguez seeks compassionate release under the “medical condition” scenario in 

Subdivision (A), or alternatively, under the “other reasons” catch-all provision in Subdivision (D).
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A. Medical Condition Reason

Rodriguez argues that he satisfies the “medical condition” reason for compassionate 

release in Subdivision (A) because he is “suffering from a physical or medical condition” that 

“substantially diminishes [his] ability . . . to provide self-care within the environment of a 

correctional facility” and from which “he [] is not able to recover.” Mot. 14 (quoting U.S.S.G. § 

1B1.13, n.1(A)). 

The government contends that Rodriguez does not satisfy the “medical condition” 

requirement. It cites to post-January 2019 documents in his medical record to show that he did not 

need assisted physical therapy and that he was capable of independently performing activities of 

daily living. Oppo. 8. However, as emphasized above, the BOP documents subsequent to the 

January 4, 2019 waiver Rodriguez signed in the SHU are inconsistent with the prior record and 

therefore do not hold much weight. 

Nevertheless, viewed through the lens of Dr. DiBenedetto’s and the earlier records, 

Rodriguez’s situation, while troubling, does not show the severity of deterioration in his “medical 

condition” that courts have required for compassionate release. See, e.g., United States v. 

Bellamy, No. 15-CV-1658-JRT-LIB, 2019 WL 3340699, at *3 (D. Minn. July 25, 2019) (granting 

compassionate release to 71 year-old wheelchair bound defendant who had heart problems, and 

suffered from diabetic kidney disease, among other conditions); United States v. Willis, 382 F. 

Supp. 3d 1185, 1189 (D.N.M. 2019) (granting compassionate release to wheelchair bound and 

blind defendant who required 24/7 care and had an estimated eighteen months to live); United 

States v. Gray, No. 2:02-CR-00018-JMS-CMM-13, 2019 WL 4572816, at *5 (S.D. Ind. Sept. 20, 

2019) (granting compassionate release to 64-year old defendant who had been hospitalized for 

multiple procedures, including chemoembolization of a liver tumor); United States v. Gasich, No. 

2:14-CR-63, 2019 WL 4261614, at *1 (N.D. Ind. Sept. 9, 2019) (granting compassionate release 

for defendant who had an estimated four months to live). At least on this record, Rodriguez has 

not satisfied the “medical condition” reason for compassionate release.

B. Other Extraordinary and Compelling Reasons

Only a few cases have been decided since the passage of the First Step Act where district 
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courts have considered other compelling reasons under Subdivision (D). In United States v. Beck, 

the court granted compassionate release under Subdivision (D) to a defendant who established that 

BOP’s delays in her medical treatment for breast cancer increased the risk that her cancer spreads. 

No. 1:13-CR-186-6, 2019 WL 2716505, at *8 (M.D.N.C. June 28, 2019). The court found that

BOP’s “gross mismanagement of medical care for an inmate’s deadly disease is extraordinary,” 

and concluded that “a compelling reason exists when BOP appears unable to provide [medical 

care] without court oversight.” Id. 

The record here shows that BOP mishandled Rodriguez’s case in an extraordinary way,

repeatedly neglecting to provide him with the services that he needs unless he agreed to housing in 

the SHU at FMC Devens. This is indefensible. But while this motion was pending, Rodriguez’s 

transfer to the RRC was confirmed to be in January instead of July 2020, as originally feared by 

Rodriguez, and the government committed to providing the services at the RRC that Rodriguez 

has sought. My choice is either to enforce the government’s promises or to hold further 

evidentiary hearings given the contradictory medical records created by the BOP.5 Since the latter 

will take some time and not speed up Rodriguez’s receipt of the services he desires, I choose the 

former. 

At the November 7, 2019 hearing, U.S. Probation Officer Alex Gerstel stated after 

investigation that he had been informed that Rodriguez would have access to physical therapy and 

other required services at the RRC. Gerstel also stated that he could assist the court in 

determining whether Rodriguez is receiving the promised care at the RRC, but noted that the 

Probation Office has no jurisdiction to control the provision of services and care by the BOP while 

Rodriguez resides at the RCC under a custodial sentence. Id. To give the Court the authority to 

direct Rodriguez’s medical care, defense counsel suggests that I resentence Rodriguez now “to a 

term of supervised release, with the condition that it be spent in the RRC from now until his home 

confinement eligibility date on March 5, 2020; and thereafter, to be spent on home confinement 

 

5 Defense counsel’s unforgettable suggestion at the hearing on November 7, 2019 that I “do the 

courageous thing” and bring his client home is legally unsupportable on this record and is 

inconsistent with the sentence that I imposed. 
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until his current custodial release date of July 6, 2020; and thereafter followed by three years of 

supervised release under all of the same conditions previously imposed by the Court.” November 

8, 2019 Letter from David Rizk [Dkt. No. 81].

I choose instead to take the government at its word. If it does what has been represented to 

me, there is no compelling reason to resentence Rodriguez. Given the record in this case, and to 

ensure that Rodriguez receives the services he needs at the RRC, a Status Conference is scheduled 

for January 30, 2020 to review compliance. 

CONCLUSION

Rodriguez’s motion for compassionate release is DENIED without prejudice. A Status

Conference is scheduled for January 30, 2020. I direct that Probation Officer Gerstel file a written 

report by January 23, 2020, informing me and the parties whether the RRC is providing the 

promised services. 

IT IS SO ORDERED. Dated: 

November 25, 2019 

William H. Orrick

United States District Judge