UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

UNITED STATES OF AMERICA ) 

) 

v. ) CASE NO.: 1:15-CR-16-HAB 

) 

ARTHUR COOPER ) 

OPINION AND ORDER 

Arthur Cooper (“the Defendant”) filed a motion seeking compassionate release under 18 

U.S.C. § 3582(c)(1)(A) (ECF No. 69).1 The Government filed its response to his Motion on July 

2, 2020. (ECF No. 73). For the following reasons, the Defendant’s Motion will be DENIED. 

PROCEDURAL BACKGROUND 

On March 25, 2015, the Defendant was charged in a three count Indictment with being a 

felon in possession of a firearm (Count 1), possession with intent to distribute a controlled 

substance (Count 2), and possession of a firearm in furtherance of and carrying a firearm during 

and in relation to a drug trafficking crime (Count 3). 

These charges stemmed from activities during the early hours of February 11, 2015. On 

that day, a New Haven, Indiana police officer observed a vehicle to be running in the Hometown 

Inn parking lot. The officer observed the Defendant sleeping behind the steering wheel. After 

waking the Defendant, the officer found a gun in the Defendant’s front coat pocket, a large baggie 

1 To the extent the Defendant was seeking a reduction pursuant to the First Step Act (“FSA”) and pursuant 

to this Court’s General Order 2020-11, the Court referred the letter to the Northern District of Indiana 

Federal Community Defenders, Inc. (“FCD”) for it to consider representing the defendant with respect to 

his motion. (ECF No. 69). On June 18, 2020, the FCD filed a Notice indicating that it would not be 

appearing on the Defendant’s behalf. (ECF No. 72). Consistent with the Court’s order, the Government 

responded to Defendant’s pro se motion. (ECF No. 73).

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containing smaller baggies holding 13.5 grams of crack cocaine on the front seat, and a scale with 

white residue in the center console of the vehicle. (Presentence Investigation Report, ¶¶ 7–10, 

ECF No. 59). On October 16, 2015, the Defendant pled guilty to Count 2 for possession with 

intent to distribute a controlled substance, in violation of 18 U.S.C. §841(a)(1). Defendant was 

eventually sentenced to 144 months of imprisonment and three years of supervised release. (ECF 

No. 67). The Defendant is currently serving his sentence at FCI Terre Haute. 

DISCUSSION 

The Defendant’s Motion requests compassionate release. Generally, a court is statutorily 

prohibited from modifying a term of imprisonment once imposed. See 18 U.S.C. § 3582(c). A 

handful of statutory exceptions exist, however, one of which allows a court to grant an inmate 

compassionate release if the inmate meets certain requirements. See 18 U.S.C. § 3582(c)(1)(A). 

Under this provision, a court may not modify a term of imprisonment except that – 

 (1) in any case -- 

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon 

motion of the 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 . . . after considering the 

factors set forth in section 3553(a) to the extent that they are applicable, . . . finds 

that— 

(i) extraordinary and compelling reasons warrant such a reduction ... 

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

by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A)(i). 

Because the Defendant, not the Director of the BOP, filed the motion, the Government 

asserts that the Defendant must first demonstrate that he meets the statutory exhaustion 

requirement to proceed further, and he has not done so here. In his motion, the Defendant states 

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that “[i]t’s been more than 30 days and Warden Lammer hasn’t responded to my request for a 

Compassionate Release.” (ECF No. 69). The Government, having missed this statement in his 

letter, states in its brief, “Cooper’s letter makes no mention of, nor does he provide any proof that 

he has exhausted his administrative remedies.” (ECF No. 73 at 9). Later, the Government indicates 

that “as of June 24, 2020, Cooper has filed no RIS (Reduction in Sentence) requests with the 

warden at FCI Terre Haute nor has he filed any administrative remedies since he has been 

incarcerated.” (ECF No. 10). 

This Court has previously held that § 3582(c)(1)(A)’s exhaustion requirement is not 

jurisdictional, see United States v. Hayden, No. 1:07-CR-68-HAB, 2020 WL 2079293, at *1 (N.D. 

Ind. Apr. 30, 2020); see also United States v. Santiago, No. 2:16-CR-174-JVB-JEM, 2020 WL 

3396899, at *2 (N.D. Ind. June 19, 2020); United States v. Council, No. 1:14-CR-14-5-TLS-SLC, 

2020 WL 3097461, at *4 (N.D. Ind. June 11, 2020); United States v. Cox, No. 4:18-cr-17-TWPVTW-1, 2020 WL 1923220, at *3 (S.D. Ind. Apr. 21, 2020). Thus, the Defendant’s motion is 

properly adjudicated in this Court regardless of whether he has or has not completed the statutory 

exhaustion process.2 

This is not the first compassionate release case before the Court where a Defendant’s 

representations (sometimes accompanied by supporting documentation) and the Government’s 

representations (based on information obtained from the BOP) have not meshed. However, this 

Court has repeatedly declined to weigh in on whether the exhaustion requirement is a mandatory 

one or subject to equitable considerations, such as waiver. See United States v. Russell, No. 1:14-

CR-6-HAB, 2020 WL 2989160, at *3 (N.D. Ind. June 4, 2020) (“District courts across the country 

2

 The Court is aware that the Government resists the argument that § 3582(c)(1)(A)’s exhaustion 

requirement is not jurisdictional and has, in all other compassionate release cases in this division, reserved 

its right to contest this issue. 

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are struggling daily with whether strict compliance with the exhaustion provision is necessary, 

especially in light of the serious risks associated with COVID-19.”) (listing cases). Instead, this 

Court’s preference has been to “put to the side the thorny issue of exhaustion to tackle the easier 

issue” of whether the defendant has presented extraordinary and compelling reasons to warrant a 

sentence reduction. United States v. Wolfe, 1:15-cr-169, 2020 WL 2615010, at *2 (S.D. Ind. May 

22, 2020); Council, 2020 WL 3097461, at *5. This case is no different. 

 The Defendant asserts that he is 68 years old and in a high-risk category for contracting 

COVID-19. He indicates that he suffers from “chronic conditions,” but presents no evidence as to 

what those conditions are or how they are presently being managed. He claims he is more than 

halfway through his sentence, he fears dying from the virus, and that there have been COVID-19 

cases at his facility. 

Congress did not define “extraordinary and compelling reasons” in the statute, instead 

delegating the matter to the Sentencing Commission to promulgate a policy statement that 

"describe[s] what should be considered extraordinary and compelling reasons for sentence 

reduction, including the criteria to be applied and a list of specific examples." 28 U.S.C. § 994(t). 

The policy statement, contained in United States Sentencing Guidelines ("U.S.S.G.") § 1B1.13 and 

the accompanying Application Notes, in line with the statutory directive in § 3582(c)(1)(A), 

requires a court to make several findings. 

First, the court must address whether "[e]xtraordinary and compelling reasons warrant the 

reduction" and whether the reduction is otherwise "consistent with this policy statement." U.S.S.G. 

§ 1B1.13(1)(A), (3). To this end, a court is to consider the medical condition of the defendant, his 

age, his family circumstances, and whether there exists in the defendant’s case an extraordinary or 

compelling reason “other than or in combination with” the other reasons described in the 

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Application Notes. Second, the Court must determine whether the Defendant is "a danger to the 

safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." U.S.S.G. § 

1B1.13(2). Finally, the Court must consider the § 3553(a) factors, "to the extent they are 

applicable." U.S.S.G. § 1B1.13. 

Additionally, when the Defendant moves for a reduction based on COVID-19, Courts have 

also considered: (1) the specificity of the defendant’s COVID-19 concerns, (2) whether the 

defendant has a medical condition that makes him especially susceptible to the dangers of COVID19, and (3) the extent that the defendant’s release would mitigate or aggravate the COVID-19 

pandemic. See Council, 2020 WL 3097461, at *5–7; United States v. Barrett, No. 2:17-CR-1, 2020 

WL 3264112, at *3 (N.D. Ind. June 17, 2020); see also United States v. Davis, No. 2:19-CR-74-3, 

2020 WL 1951652, at *1–2 (N.D. Ind. Apr. 23, 2020) (applying similar factors to consider whether 

there was a “compelling reason” for pretrial release due to the COVID-19 pandemic). In the 

context of the COVID-19 pandemic, “§ 3582(c)(1)(A) contemplates a sentence reduction for 

specific individuals based on the individuals’ particular circumstances of where he is housed and 

his personal health conditions.” See Council, 2020 WL 3097461, at *5; United States v. Melgarejo, 

No. 12-cr-20050, 2020 WL 2395982, at *3 (C.D.Ill. May 12, 2020). 

 In this case, the Defendant’s filings give this Court very few reasons, let alone 

extraordinary or compelling ones, to justify granting his motion. The Defendant has not articulated 

any medical condition that makes him more susceptible to the virus nor has he provided any basis 

for the Court to conclude that he suffers from a serious condition that increases the likelihood of 

severe consequences from COVID-19. Neither the Defendant nor the Government have filed any 

medical documentation from which the Court could draw a conclusion that the Defendant suffers 

from any chronic medical condition. 

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Defendant has identified his age as a factor warranting a reduction in sentence. It is true 

that at age 68, Defendant falls within the 65-year-old threshold set by the Centers for Disease 

Control and Prevention (the “CDC”) regarding risk for severe illness from COVID-19 based on 

age. See People at Increased Risk for Severe Illness, Ctrs. for Disease Control & Prevention, 

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html. However, 

his age alone without any underlying medical condition making him more likely to experience 

serious complications from the disease, does not support a finding that extraordinary and 

compelling reasons require a reduction in her sentence. See United States v. Roeder, 807 F. App’x 

157, 161 n.16 (3d Cir. 2020) (observing that the mere “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”); see also, United States v. Haney, No. 19 Cr. 541, 

2020 WL 1821988, at *5 (S.D.N.Y. Apr. 13, 2020) (finding fact that defendant was 61 years old 

insufficient by itself to establish extraordinary and compelling reasons justifying a sentence 

reduction); United States v. Sattar, No. 02 Cr. 395, 2020 WL 3264163, at *2 (S.D.N.Y. June 17, 

2020) (concluding the same where defendant was 60-years-old). 

As for his confinement, as of the date of this Opinion and Order, FCI Terre Haute is 

reporting zero COVID-19 positive inmates, one recovered inmates and one inmate death.3 Thus, 

there is no evidence to suggest that the conditions at FCI Terre Haute place him at a significant 

risk. See, Melgarejo, , 2020 WL 2395982, at *3 (“[A] prisoner [may] satisfy the extraordinary and 

compelling reasons requirement by showing that his particular institution is facing a serious 

outbreak of COVID-19 infections, the institution is unable to successfully contain the outbreak, 

and his health condition places him at significant risk of complications should he contract the 

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

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virus.”), United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020) (“[T]he mere existence of 

COVID-19 in society and the possibility that it may spread to a particular prison alone cannot 

independently justify compassionate release.”). 

Moreover, the Government’s brief cites ongoing efforts by the Bureau of Prisons to take 

serious and substantial steps to reduce the spread of COVID-19 within its facilities. See Federal 

Bureau of Prisons, COVID-19 Action Plan: Phase Seven (posted on May 20, 2020), 

https://www.bop.gov/resources/news/20200520_covid-19_phase_seven.jsp (last visited July 27, 

2020); see also, BOP COVID-19 Modified Operations Plan, 

https://www.bop.gov/coronavirus/covid19_status.jsp. The minimal number of cases at this 

institution is a testament to the BOP’s mitigation and safety efforts. 

Finally, with respect to the § 3553(a) factors, the Court observes that the Defendant has 

served between 44% and 52% of his sentence depending on whether the Court considers the full 

term sentence (with a release date of February 10, 2027), or his good time credit sentence (with a 

release date of May 3, 2025). This sentence was imposed to reflect the seriousness of the offense, 

promote respect for the law as well as to afford adequate deterrence and to protect the public from 

further crimes of the defendant. The presentence report details over 50 years of criminal history 

attributable to the Defendant involving firearms and drugs. Based on this history, the Defendant 

was designated a career offender at the time of his sentencing. Thus, the Court finds that the 

significant sentence reduction Defendant seeks would greatly undermine the above statutory 

purposes of sentencing. 

In sum, because this Court does not find extraordinary and compelling circumstances exist 

for the Defendant’s release and a reduction of sentence is inconsistent with the § 3553(a) factors, 

Defendant does not meet the criteria for compassionate release and his motion is DENIED.

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CONCLUSION 

Based on the foregoing, the Defendant’s Motion (ECF No. 69) is DENIED. 

So ORDERED on August 20, 2020. 

s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT 

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