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

Kelly Custer has previously asked this Court to grant her compassionate release. (ECF Nos. 

274, 289). Her latest request seeks release because of the untimely death of her adult son and her 

various medical conditions. (ECF No. 322) Along with her letter, she attached an exhibit which 

she contends shows her attempt to exhaust her administrative remedies and the futility of that 

request. (ECF No. 322-1). 

Generally, a court is statutorily prohibited from modifying a term of imprisonment once 

imposed. See 18 U.S.C. § 3582(c). But a handful of statutory exceptions exist, 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, “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 ... may reduce the term of imprisonment ... after considering the factors set 

forth in [18 U.S.C. § 3553(a)] ... if it finds that extraordinary and compelling reasons warrant such 

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

the Sentencing Commission...” Accordingly, for a defendant to be eligible for compassionate 

release she must have exhausted her administrative remedies. Additionally, the Court must find 

that (1) extraordinary and compelling reasons for release exist, and (2) considering the applicable 

factors in 18 U.S.C. § 3553(a), the extraordinary and compelling reasons warrant release. 

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Prisoners must exhaust their administrative remedies prior to filing a request for 

compassionate release. United States v. Sanford, 986 F.3d 779 (7th Cir. 2021). A court may excuse 

a failure to exhaust where an inmate can show that such a request is futile, see Gambino v. Morris, 

134 F.3d 156, 171 (3d Cir. 1998).

Here, Defendant asserts that the warden failed to respond to provide her with “an 8 and a 

9 paperwork on 11/25/22 to start the proper remedies.”1 She submits an email to the Warden dated

the following day, November 26, 2022, and declares in that email that “this exhausts my 

administrative remedies because I was denied my rights, making the administrative remedies 

futile.” (ECF No. 322-1). Having reviewed the email submission from the Defendant, the Court is

skeptical that her self-determination that her access to the administrative process is futile, makes 

it so. The Court has nothing before it from the Warden showing that she was, in fact, denied 

paperwork. Nor is the fact that she may have been denied grievance paperwork determinative of 

her ability to petition the Warden for compassionate release. 

But, even if the court were to find that exhaustion was futile and reach the merits based on 

her letter, the Defendant has not met her burden of demonstrating “extraordinary and compelling 

reasons” to justify a sentence reduction. This Court has previously explained to the Defendant that 

her medical conditions do not rise to the level of “extraordinary and compelling” as they are being 

managed by the BOP. She has not produced any additional evidence to show that her health has 

declined or that the BOP is not properly addressing her medical conditions. Further, the 

1 The Court presumes that the Defendant is referring to a BP-8 and a BP-9 form. A BP-8 form is an informal 

complaint provided to staff. A BP-9 is a Request for Administrative Remedy and is the way a formal complaint 

process begins. See BOP Administrative Remedies 11.15.17 REVISED.pdf (dc.gov). However, these forms appear 

unrelated to compassionate release and are inmate grievance complaints. The BOP procedure for compassionate 

release/reduction in sentence is described in Program Statement 5050.50, dated January 17, 2019.

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circumstances of her adult son’s death, while certainly sad and unfortunate, does not create an 

avenue for compassionate release. See U.S.S.G. §1B1.13 n. 1.2

Finally, even if Defendant did establish that her health conditions and her family 

circumstances were extraordinary and compelling, this Court is not required to 

grant compassionate release if the §3553(a) factors weighed against it. A court may authorize 

compassionate release only if, “after considering the factors set forth in section 3553(a),” it decides 

that extraordinary and compelling reasons justify release. United States v. Saunders, 986 F.3d 

1076, 1078 (7th Cir. 2021) (quoting § 3582(c)(1)(A)). This Court has twice before explained that 

the factors under §3553(a) do not warrant the Defendant’s release. (ECF No. 288 at 8; ECF No. 

297 at 3). Nothing the Defendant states in her letter alters this conclusion. The Court emphasizes 

again that for nearly eight years, the Defendant participated in a scheme with her own children to 

bilk innocent victims out of nearly 1.5 million dollars. Her 63-month sentence was warranted at 

the time of her initial sentencing and the circumstances are not more propitious today. Therefore, 

her letter requesting compassionate release (ECF No. 322) is DENIED. 

SO ORDERED on December 12, 2022. 

s/ Holly A. Brady 

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT

2 The Sentencing Guidelines policy statement related to compassionate release does mention family 

circumstances as a basis for compassionate release. U.S.S.G. § 1B1.13 n.1. This policy statement and its 

definitions are not binding, but it provides useful guidance to the district courts. The family circumstances 

section of this statement states the following should be considered extraordinary and compelling reasons: 

(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children. 

(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would 

be the only available caregiver for the spouse or registered partner.

U.S.S.G. § 1B1.13 n.1. The Defendant’s circumstances do not qualify under this policy statement. 

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