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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

UNITED STATES OF AMERICA, 

 Plaintiff, Case No. 09-20326 

v. Honorable Nancy G. Edmunds 

CLARENCE HENRY COHEN (D-9), 

 

 Defendant. 

_______________________________/ 

ORDER DENYING DEFENDANT’S SECOND 

MOTION FOR COMPASSIONATE RELEASE [593] 

Defendant Clarence Henry Cohen is currently in the custody of the Federal Bureau 

of Prisons (“BOP”) at the Federal Correctional Institute in Terre Haute, Indiana, serving a 

235-month sentence imposed in this case. On January 12, 2021, the Court entered an 

order denying Defendant’s motion for compassionate release under 18 U.S.C. § 

3582(c)(1)(A). (ECF No. 588.) The matter is now before the Court on Defendant’s second 

emergency motion for compassionate release. (ECF No. 593.) Defendant once again 

seeks his release due to the health concerns associated with the COVID-19 pandemic. 

The government opposes Defendant’s request. (ECF No. 597.) Defendant has filed a 

reply. (ECF No. 598.) Upon its initial review, the Court determined that additional 

information was needed to resolve this motion. (ECF No. 599.) The government has 

now provided the documents requested by the Court. (ECF No. 600.) The Court has 

reviewed the record in its entirety and finds that a hearing is not necessary. For the 

reasons set forth below, the Court DENIES Defendant’s motion. 

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Under § 3582(c)(1)(A), a defendant may move for a sentence reduction “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 . . 

. .” In support of his previous motion, Defendant noted he had submitted an administrative 

request for his release. However, the government attached an email to its response, 

indicating that the BOP had no record of receiving a request for release from Defendant. 

Because the government objected to Defendant’s failure to exhaust his administrative 

remedies, the Court denied Defendant’s motion for compassionate release without 

prejudice. 

In support of the present motion, Defendant has attached two administrative 

requests for his release—the first is premised on the health concerns associated with the 

COVID-19 pandemic and his medical conditions and the second is based on an alleged 

sentencing disparity. (ECF No. 593, PgID 2497-98, 2527-28.) The government argues 

that because Defendant now relies on the health concerns raised in his first request but 

the warden of his facility only addressed and denied the second request raising the 

sentencing issues, he has not properly exhausted his administrative remedies. The 

government, however, appears to base this argument on a “presumption” that the warden 

only received the second request. (See ECF No. 597, PgID 2640.) Because there is no 

evidence that refutes Defendant’s contention that he also sent the request raising his 

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health concerns and the warden simply did not respond, the Court finds that Defendant 

has satisfied the exhaustion requirement.1 

 In its previous order denying Defendant’s motion for compassionate release, the 

Court also found, alternatively, that Defendant had not demonstrated there are 

extraordinary and compelling reasons that would warrant his release as required by § 

3582(c)(1)(A). To the extent Defendant’s current motion relies on the same health 

concerns raised previously, much of that analysis remains the same.2 And even if 

Defendant could establish that he faces a heightened risk of severe illness from the virus, 

the government has now submitted evidence indicating that Defendant refused to take a 

dose of the COVID-19 Pfizer vaccine on March 1, 2021. (ECF No. 600-5.) The Court 

agrees with courts that have found that access to the vaccine mitigates the health 

concerns that may otherwise constitute extraordinary and compelling reasons in light of 

the pandemic. See, e.g., United States v. Kennedy, No. 18-20315, 2021 U.S. Dist. LEXIS 

75535, at *3 (E.D. Mich. Apr. 20, 2021); United States v. Austin, No. 15-20609, 2021 U.S. 

Dist. LEXIS 56340, at *5 (E.D. Mich. Mar. 25, 2021). In sum, Defendant has not 

established there are extraordinary and compelling reasons warranting his release.3 In 

1 Because the Court finds that Defendant has exhausted his administrative 

remedies in this case, the Court need not address the government’s arguments regarding 

whether the exhaustion requirement in § 3582(c)(1)(A) requires issue exhaustion. 

2 Defendant now adds that he was recently diagnosed with hypertension, but his 

medical records indicate that he has been prescribed medication to manage this 

condition. Defendant’s medical records also confirm that his obesity is mild.

3 Defendant also argues that the alleged sentencing disparity as a result of 

Amendment 790 constitutes an extraordinary and compelling reason warranting his 

release. Even if a nonretroactive amendment to the sentencing guidelines could serve 

as the basis for compassionate release, it is not clear what effect, if any, this amendment 

would have on Defendant’s sentence. Amendment 790 simply clarified the “jointly 

undertaken criminal activity” analysis for relevant conduct purposes, United States v. 

Barona-Bravo, 685 F. App’x 761, 779 n.16, 780-81 (11th Cir. 2017), and, here, the Court 

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light of this conclusion, the Court need not address the sentencing factors in 18 U.S.C. § 

3553(a). See United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021) (a court may deny 

a compassionate release motion “when any of the three prerequisites listed in § 

3582(c)(1)(A) is lacking and do[es] not need to address the others”). 

Based upon the foregoing, Defendant’s motion for compassionate release is 

DENIED. 

SO ORDERED. 

 s/Nancy G. Edmunds 

 Nancy G. Edmunds 

 United States District Judge 

Dated: April 22, 2021 

I hereby certify that a copy of the foregoing document was served upon counsel of record 

on April 22, 2021, by electronic and/or ordinary mail. 

 s/Lisa Bartlett 

 Case Manager 

 

found Defendant maintained a leadership position in the conspiracy, (ECF No. 392, PgID 

1172). 

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