UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CASE NO.: 1:15-CR-33-HAB

)

KELLY CUSTER )

OPINION AND ORDER

After this Court denied Defendant, Kelly Custer’s first request for compassionate release, 

(ECF No. 288), she has returned eight months later for a second bite of the proverbial apple. (ECF 

No. 289). The grounds for her second request are not much different than those in her first goround except she now claims she is more sickly than eight months ago and continues to fear 

COVID-19 despite having had, and recovered from, the virus without any complications. Like the 

first time, she asserts a list of physical ailments, including her morbid obesity (she has a BMI >54),

diabetes, “bad lungs,” hypertension, chronic kidney disease, and neuropathy, that she contends put 

her at an increased risk of harm from COVID-19. Like the first time, her records show that her 

ailments and complaints are well-addressed and controlled by the BOP. Like the first time, the 

medical records suggest that Defendant’s filing exaggerates the nature of her medical conditions 

as there are no records since this Court’s prior Opinion showing that any of her conditions have 

worsened, gone untreated by the BOP or otherwise limited her ability to care for herself while in 

the BOP’s custody. And, like the first time, the records demonstrate that Defendant has refused at 

least some care offered to her, including the Moderna Vaccine. (See ECF No. 295, at 67, 78).

In its response, the Government reiterates the arguments it made the first time and utilizes 

this Court’s original Opinion to further bolster its position that she has not laid the groundwork for 

compassionate release. Ultimately, it is Defendant’s burden to establish that a “compassionate 

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release” is warranted under the statute. United States v. Wesley, 2020 WL 3868901, *1 (D. Kan. 

July 9, 2020); see also United States v. Bright, 2020 WL 473323, at *1 (“extraordinary and 

compelling” imposes a heavy burden on a defendant seeking relief under Section 3582(c)(1)(A)).

Defendant has not met her burden here.

First, Defendant has not pointed to any new medical condition or exacerbated medical 

condition since this Court’s original Opinion so as to demonstrate an extraordinary and compelling 

reason under the statute. Likewise, there is no indication of any serious illness occurring from her 

COVID-19 diagnosis and even less suggesting that her pre-existing medical conditions increased 

the severity of COVID-19 in her system. In determining whether to grant compassionate release 

to an inmate with COVID-19, district courts consider the inmate’s current symptoms and need for 

urgent treatment as well as the inmate’s chronic medical conditions. United States v. Fraley, No. 

4:15-CR-28 TWP-VTW-10, 2020 WL 5913284, at *5 (S.D. Ind. Oct. 6, 2020). Where, as here, a 

defendant does not appear to have any current symptoms nor a need for urgent treatment, the Court 

does not have to hypothesize as to Defendant’s reaction to COVID-19. Indeed, it appears the 

Defendant has weathered the storm of COVID without severe illness and her contention that if she 

contracts COVID-19 a second time, it could be deadly is simply not borne out in the record.

Further, even if she had not been diagnosed with COVID-19, there remains nothing in the 

medical records or in the Defendant’s motion suggesting her medical conditions “substantially 

diminish[] 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.” See U.S.S.G. 1B1.13 (requiring a 

defendant relying on a serious physical or medical condition to demonstrate a diminution in selfcare abilities as a result of the condition). Thus, the Defendant’s various medical conditions do not 

support her request for compassionate release.

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That said, even if the Court was inclined to find that the Defendant’s health issues 

constituted an “extraordinary and compelling” reason justifying release and it determined that her 

self-care in the BOP was hindered by those conditions, the Court concludes that her release remains

inappropriate in light of the factors set forth in § 3553(a). At the time of her original request, this 

Court noted that Defendant had served only 10 months of her 63-month sentence for engaging in 

white collar crime and bilking her victims out of nearly $1.5 million. Now, she has served 18 

months of that sentence – a sentence imposed to reflect the particularly egregious facts of her 

scheme; indeed, the Defendant conspired with her own children to fraudulently obtain money from 

victims who, in turn, believed the Defendant and her family were being threatened by the mafia. 

(ECF No. 28). As this Court previously noted, “[g]iven the nature of her white collar crime and 

the short time she has spent incarcerated for it, the Court cannot be assured that she is not a danger 

to the community should she be released.” (ECF No. 288 at 8). This sentiment bears repeating here 

as Defendant has not served even half of the sentence imposed for her crime. 

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 her motion is DENIED.

CONCLUSION

Based on the foregoing, the Defendant’s Motion (ECF No. 289) is DENIED.

So ORDERED on April 20, 2021.

s/ Holly A. Brady 

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT

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