1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

Plaintiff,

v. 

Mary Alice Reed,

Defendant.

No. CR-18-00310-001-PHX-DJH

ORDER 

Defendant Mary Alice Reed, an inmate housed at the Federal Correctional 

Institution, Dublin, CA, filed a Motion for Compassionate Release pursuant to 18 U.S.C. 

3582(c)(1)(A). (Doc. 26). The Government filed a Response in opposition. (Doc. 27). 

The Defendant has filed a Supplement to her Motion (Doc. 34) to which the Government 

has filed a Response (Doc. 36). The Defendant subsequently filed a Reply (Doc. 39). The 

Court will deny Defendant’s Motion for the reasons that follow.

A. Background

The Defendant was sentenced to a seven-year term of custody on August 20, 2018. 

She was convicted of Possession with Intent to Distribute Methamphetamine in violation 

of Title 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(viii). (Doc. 24). 

Defendant brings her Motion pursuant to 18 U.S.C. § 3582(c)(1)(A), which was 

recently modified by the First Step Act of 2018. See Pub. L. No. 115-391, § 603. That 

statute provides: 

The court may not modify a term of imprisonment once it has been imposed 

except that –

Case 2:18-cr-00310-DJH Document 41 Filed 10/09/20 Page 1 of 5
- 2 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(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 

Prison 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, may reduce the term of 

imprisonment . . . after considering the factors set forth in section 

3553(a) to the extent that they are applicable, if it finds that –

(i) extraordinary and compelling reasons warrant such a 

reduction[.]

18 U.S.C. § 3582(c).

B. Analysis

a. Exhaustion of Remedies – Jurisdictional Bar

This Court “may not modify a term of imprisonment” unless the Congressionally 

mandated exception is present. 18 U.S.C. § 3582(c). That exception is present when either 

the motion to modify sentence is brought by the Bureau of Prisons (“BOP”) “or upon 

motion of the defendant after the defendant has fully exhausted all administrative rights to 

appeal[.]” 18 U.S.C. § 3582(c)(1)(A) (emphasis added). The statutory language is 

unambiguous and not waivable. See United States v. Weidenhamer, 2020 WL 1929200 *2 

(D. Ariz. Apr. 21, 2020) (“If the statutory language contains mandatory language . . . a 

court may not excuse a failure to exhaust”) (citing Ross v. Blake, 136 S. Ct. 1850, 1858 n.2 

(2016)). Thus, the statute prohibits this Court from acting without a showing by Defendant 

that she has exhausted her available BOP administrative remedies.

In her Motion, Defendant claimed to have “submitted a BP9 to the Warden, Mr. 

Jenkins II on 04/13/20, with no response,” stating that this is all that is required for 

exhaustion. (Doc. 26 at 1). The Government disagrees, stating that on review of the 

administrative requests to the Federal Bureau of Prisons [“FBOP”] none had been filed by 

the Defendant as of May 23, 2020. (Doc. 27 at 1). Defendant’s Supplement retorts that “a 

failure of the Bureau of Prisons to being [sic] a motion to the Court on her behalf; and/or 

2) the lapse of thirty days from the receipt of her request by the Warden of Ms. Reed’s 

Case 2:18-cr-00310-DJH Document 41 Filed 10/09/20 Page 2 of 5
- 3 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

facility has occurred.” (Doc. 34 at 5). The Defendant contends that she has fully exhausted 

her administrative remedies because “[s]ec. 3582(c)(1)(A) does not contain a full-fledged 

exhaustion requirement.” (Id.). In its Response, the Government attaches Defendant’s July 

8, 2020 request for compassionate release. (Doc. 36-1). Also attached is the Warden’s 

response to that request stating, “[a] review of this matter reveal [sic] the following. You 

have not yet filed for compassionate release to the Warden’s office for response.” 

Although pointing out the Defendant’s procedural error, the Warden nonetheless 

determined to initiate a review on her request. (Id.). The Government states that, as of 

August 20, no determination had been made. (Doc. 36 at 1). The Government does not, 

however, clearly state whether the Defendant has exhausted her administrative remedies.

As stated above, to address the merits of her compassionate release complaint, the 

Court must be satisfied that it has jurisdiction to do so. That is, that she has exhausted her 

administrative remedies. The Defendant bears the burden to show that she has exhausted 

her administrative rights of appeal. On this record, the Court finds that she has. First, it is 

hard to conceive of why, in April, she would have filled out a compassionate release request

without submitting it to the FBOP Warden. Moreover, it is not inconceivable that the 

FBOP simply lost her request, or failed to log it into their records. Second, she apparently 

believed she had correctly filed a request because she then filed a second request on June 

25, 2020. See (Doc. 36-1) (“This is my 2nd Request I’m Sending In.”). Third, although the 

Warden may treat the Defendant’s second request as her original, the Court sees no benefit 

in delaying a decision thereon.1

Even assuming that the Defendant has not exhausted her administrative rights to 

appeal the Warden’s decision or failure to make one, her Motion does not meet the 

extraordinary and compelling reasons making her eligible for compassionate release.

b. Extraordinary and Compelling Reasons?

 The First Step Act cross-references the sentencing commission’s policy statement 

1

It is indeed the preferred course to have the Warden’s views on a prisoner’s 

compassionate release request, given his familiarity with the detainee’s circumstances. 

However, the Court’s delay in doing so now, would unfairly extend the time in which such 

decision could have been made in this Defendant’s circumstances. 

Case 2:18-cr-00310-DJH Document 41 Filed 10/09/20 Page 3 of 5
- 4 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

for considering what is an extraordinary and compelling reason. Pertinent to Defendant, 

sentencing guideline section 1B1.13 n. 1 defines “extraordinary and compelling reasons” 

for compassionate release to include: “The defendant is suffering from a terminal illness 

(i.e., serious advanced illness with an end of life trajectory)[;] . . . a serious physical or 

medical condition . . . that substantially diminishes the ability of the defendant to provide 

self-care within the . . . correctional facility[;] and . . . [a] defendant who is at least 65 

years old . . . .” U.S.S.G. § 1B1.13 cmt. 1(A)-(B). The Defendant also invokes USSG. 

1B113n. 1D stating that the Court may consider “other reasons” in finding her eligible for 

release. Defendant has not met her burden to show that she fits within these criteria. 

The Defendant lists the following medical conditions: Diabetes, Rheumatoid 

Arthritis, body mass index of over 40, and hypertension. (Doc. 26 at 3). She lists taking 

the following medications: insulin injections, Humira Lisinopril, Methotrexate and 

Astrovastatin. (Id. at 7). She argues that “[h]er medical conditions will have severe

repercussions to her immune system, and once her immune system breaks down, there is a 

good possibility that she may join the nearly one million people who have died after 

contracting the Corona Virus.” (Doc. 34 at 3). The Government concedes that the 

Defendant has medical conditions that are listed in the CDC’s criteria for those at a higher 

risk of severe illness if they contract COVID-19. (Doc. 27 at 1-2). They nonetheless assert 

that she is ineligible for her requested compassionate release. The Court agrees.

First, although the Defendant’s health conditions require regular medication, she 

does not assert that she is suffering from a terminal illness or that she suffers from a serious 

physical or medical condition, or from a serious functional or cognitive impairment or 

deteriorating physical or mental health due to the aging process that substantially 

diminishes her ability to provide self-care within the correctional environment. To the 

contrary, she appears to be on a regulated health care plan, and she has participated in 

multiple educational programs in the facility. See (Doc. 26 at 5) (Doc. 39 at 4). Moreover, 

if released, she intends on finding employment, volunteering in the community and 

continuing her education. (Doc. 34 at 4). Obviously, she does not currently meet the 

Case 2:18-cr-00310-DJH Document 41 Filed 10/09/20 Page 4 of 5
- 5 -

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

criteria set forth in U.S.S.G. § 1B1.13, application note 1(A). 

Second, the Government points out that FCI Dublin, where the Defendant is 

currently incarcerated, “has 0 active cases among inmates and staff, 15 pending inmate 

tests, and only 1 historical inmate test (with 1 recovery).” (Doc. 36 at 1-2). The Defendant 

does not contest these assertions and acknowledges that no one in FBOP Dublin has been 

“identified or released according to the CARES Act”. (Doc. 26 at 4). Instead, her Motion 

and Reply rely almost exclusively on broad generalizations about the pandemic, the rates 

of national infection, and inmates, in other correctional facilities, who have succumbed to 

COVID-19. In essence, she is concerned about what may happen if she contracts COVID. 

Yet, as other courts have recognized, requests for compassionate release based on the 

presence of COVID, without more, does not arise to an extraordinary and compelling 

reason for release. See United States v. Esparza, 2020 WL 2838732, at 2 (S.D. Cal. June 

1, 2020) (citing cases); see also United States v. Partida, 2020 WL 3050705 at *6 (D. Ariz.

June 8, 2020) (citing cases). The Defendant, therefore, has not met the requirements for 

extraordinary and compelling reasons.2 

Accordingly,

IT IS ORDERED denying Defendant’s Motion for Compassionate Release (Doc. 

26).

Dated this 9th day of October, 2020.

Honorable Diane J. Humetewa

United States District Judge

2 Having so found, the Court need not consider the 18 U.S.C. § 3553(a) factors, as it did 

when it sentenced the Defendant to seven-years in federal custody followed by eight-years 

on supervised release. (Doc. 24).

Case 2:18-cr-00310-DJH Document 41 Filed 10/09/20 Page 5 of 5