UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

UNITED STATES OF AMERICA ) 

 ) 

v. ) Cause No. 1:15-CR-42-HAB 

 ) 

SHAIKI SUTTON ) 

OPINION AND ORDER 

 This matter comes before the Court on Defendant’s Emergency Motion for Compassionate 

Release (ECF No. 355). Defendant’s motion was referred to the Federal Community Defender to 

consider representing Defendant. (ECF No. 358). The FCD declined. (ECF No. 359). The 

Government filed its response (ECF No. 360) on November 24, 2020. The time for a reply has 

passed with no filing from Defendant. This matter is ripe for review. 

A. Offense of Conviction 

 Defendant was part of a group of five people that attempted to rob a locked credit union in 

July 2015. They were unsuccessful, but Defendant was successful in being found with a mask and 

zip ties shortly after the attempted offense. Following an indictment, Defendant pleaded guilty to 

Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and (b) and carrying a firearm during and 

in relation to a crime of violence in violation of 18 U.S.C. § 924(c). He was sentenced to a total 

term of 96 months’ imprisonment with two years of supervised release to follow. Defendant is 

currently incarcerated at FCI Elkton in Lisbon, Ohio, with an anticipated release date of June 6, 

2022. 

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B. Legal Discussion 

1. Extraordinary and Compelling Reasons 

Defendant’s Motion requests a sentencing modification. 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 permits the court to reduce a sentence 

based on a retroactively applicable amendment to the sentencing guidelines that lowers the 

defendant’s guideline range. 18 U.S.C. § 3582(c)(2). Another allows a court to grant an inmate 

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

 Defendants request is one for compassionate release pursuant to § 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. Here, there is no evidence as to whether Defendant exhausted his 

remedies with the warden of his prison facility. “Two questions are presented by this issue, namely 

whether the exhaustion requirement is jurisdictional and whether, if not jurisdictional, the 

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exhaustion requirement is waivable over the government’s objection.” United States v. Council, 

No. 1:14-CR-14-5-TLS-SLC, 2020 WL 3097461, at *4 (N.D. Ind. June 11, 2020). 

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), relying on the Seventh Circuit’s decision in United States v. Taylor, 778 F.3d 

667, 670 (7th Cir. 2015); United States v. Santiago, No. 2:16-CR-174-JVB-JEM, 2020 WL 

3396899, at *2 (N.D. Ind. June 19, 2020) (“Because Congress did not mark the exhaustion 

requirement as jurisdictional, the Court finds that it is non-jurisdictional.”); United States v. Cox, 

No. 4:18-cr-17-TWP-VTW-1, 2020 WL 1923220, at *3 (S.D. Ind. Apr. 21, 2020). The Seventh 

Circuit has recently weighed in on the issue, confirming this Court’s approach. United States v. 

Gunn, --- F.3d ---, *1 (7th Cir. Nov. 20, 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. 

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, her 

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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 

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). 

Whether Defendant has conditions that would entitle him to compassionate release is a 

question the Court need not reach. Defendant bears the burden of establishing his entitlement to 

compassionate release. United States v. Gold, 2020 WL 2197839 at *1 (N.D. Ill. May 6, 2020). 

No conditions are identified in Defendant’s motion, and no medical evidence has been submitted. 

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Therefore, the Court has absolutely no basis before it on which it could find that Defendant suffers 

from a medical condition that would support the granting of a request for compassionate release. 

2. § 3553(a) Factors 

Finally, the Court finds that the § 3553(a) do not support release. Defendant received the 

statutory mandatory minimum on the § 924(c) charge, and the bottom end of the guideline range 

on the Hobbs Act charge. 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. Having already given the Defendant a lenient sentence, the Court 

finds that the significant reduction Defendant requests would undermine the foregoing statutory 

sentencing factors. 

3. Conclusion 

 For the foregoing reasons, Defendant’s request for compassionate release (ECF No. 355) 

is DENIED. 

SO ORDERED on December 14, 2020. 

 s/ Holly A. Brady 

JUDGE HOLLY A. BRADY 

UNITED STATES DISTRICT COURT 

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