United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER
Leonard T. Strand, Chief Judge.
case is before me on defendant Shirley Eileen Schmitt's
motion (Doc. No. 202) for compassionate release. The
Government has filed a response (Doc. No. 206) and Schmitt
has filed a reply (Doc. No. 207). Oral argument is not
necessary. See Local Rule 7(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
September 24, 2013, Judge Donald E. O'Brien sentenced
Schmitt to 120 months' imprisonment on one count of
conspiracy to manufacture and distribute methamphetamine and
one count of possession of pseudoephedrine with intent to
manufacture methamphetamine. See Doc. No. 166. In
October 2015, while in Bureau of Prisons (BOP) custody,
Schmitt was diagnosed with stage three breast cancer.
See Doc. No. 202-3 at 1. In 2016, she underwent
chemotherapy and a left breast modified radical mastectomy.
See Doc. No. 202-4 at 1. She also completed
postmastectomy radiation therapy and was prescribed a
chemotherapy drug to take from then on. See id.
December 7, 2018, Schmitt underwent an imaging scan that
showed her breast cancer had returned. Doc. No. 202-8. On
December 17, 2018, her doctor wrote that “this is stage
IV disease for which there is no cure.” Doc. No. 202-9
at 2. On January 14, 2019, Schmitt was formally diagnosed
with stage four breast cancer with metastasis in the bone,
specifically the upper sternum. Doc. No. 202-7 at 3. On that
date, Schmitt's doctor estimated her life expectancy to
be greater than 18 months. Id. Schmitt began to
receive chemotherapy in January 2019. See Doc. No.
202-11 at 1. On May 15, 2019, Schmitt underwent a whole-body
imaging scan. Doc. No. 202-14. The scan confirmed Schmitt has
metastatic breast cancer and destruction of bone in her
sternum due to the cancer. See Id. The scan also
indicated the cancer has spread to Schmitt's lymph nodes
and hilum. See Id. On August 1, 2019, Schmitt
underwent another imaging scan. Doc. No. 202-15. The scan
indicated the cancer has worsened in Schmitt's upper
chest and sternum but improved in her lymph
nodes. See id.
January 23, 2019, Schmitt submitted a request for
compassionate release based on her incurable breast cancer to
Warden Upton at the Federal Medical Center in Carswell,
Texas, where Schmitt is imprisoned. See Doc. No.
202-20. On February 5, 2019, Warden Upton denied
Schmitt's request because she did not have an end-of-life
trajectory. See Doc. No. 202-21 at 3. Schmitt
requested reconsideration of the denial on March 5, 2019.
See Id. at 1. Warden Upton denied Schmitt's
request again. See Doc. No. 202-22 at 3.
Subsequently, on March 15, 2019, Schmitt filed an appeal with
the BOP regional director. See Id. at 1. The
regional director denied the appeal because Schmitt does
“not currently have a life expectancy of 18 months or
less or an end-of-life trajectory.” Doc. No. 202-23 at
2. On April 16, 2019, Schmitt filed an appeal with the BOP
central office. See Id. at 1. Schmitt has not
received a decision from the BOP central office-at least
according to the record before me. See Doc. No. 202
at 10. On December 5, 2019, Schmitt filed the present motion
for compassionate release. See id.
COMPASSIONATE RELEASE STANDARDS
court's ability to modify a sentence after it has been
imposed is extremely limited. One way a court may modify a
sentence is through “compassionate release” as
outlined in 18 U.S.C. § 3582(c)(1)(A), which was
recently modified by the First Step Act (FSA). See
Pub. L. No. 115-391, § 603. In the past, 18 U.S.C.
§ 3582(c)(1)(A) permitted a court to reduce a
defendant's term of imprisonment only upon the motion of
the Director of Bureau of Prisons (BOP). The FSA modified
§ 3582(c)(1)(A) such that a defendant may now directly
petition the court “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.”
See Mohrbacher v. Ponce, No. CV18-00513, 2019 WL
161727, at *1 (C.D. Cal. Jan. 10, 2019) (discussing
modifications made to § 3582(c)(1)(A) by the FSA);
see also United States v. Perez-Asencio, No.
CR18-3611, 2019 WL 626175, at *2-3 (S.D. Cal. Feb. 14, 2019).
Schmitt has exhausted all available remedies within the BOP.
See Doc. Nos. 202-20, 202-21, 202-22, 202-23. While
Schmitt is still waiting for a decision from the BOP central
office approximately nine months after filing her appeal, I
find there is nothing more Schmitt can do to administratively
exhaust her remedies within the BOP. Further, the Government
does not argue that Schmitt has filed to exhaust
defendant fully exhausts administrative remedies, the court
may, upon motion of the defendant, reduce the defendant's
sentence, after considering the factors set forth in 18
U.S.C. § 3553(a) to the extent they are applicable, if
the court finds that:
(i) extraordinary and compelling reasons warrant such a
(ii) the defendant is at least 70 years of age, has served at
least 30 years in prison, pursuant to a sentence imposed
under section 3559(c), for the offense or offenses for which
the defendant is currently imprisoned, and a determination
has been made by the Director of the Bureau of Prisons that
the defendant is not a danger to the safety of any other
person or the community, as provided under section 3142(g);
and that such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission . . .
18 U.S.C. § 3582(c)(1)(A).
does not meet the requirements of § 3582(c)(1)(A)(ii).
She is under 70 years of age. See Doc. No. 202-2
(BOP record showing Schmitt is 61 years of age as of
September 19, 2019). Accordingly, Schmitt's only possible
avenue for relief is § 3582(c)(1)(A)(i).
starting point in determining what constitutes
“extraordinary and compelling reasons” under
§ 3582(c)(1)(A)(i) is the Sentencing Guideline
discussing compassionate release issued by the United States
Sentencing Commission. See U.S.S.G. § 1B1.13
(U.S. Sentencing Comm'n 2018); see also United States
v. Hall, No. CR98-7, 2019 WL 6829951, at *3 (E.D. Ky.
Dec. 13, 2019); United States v. Rivernider, No.
CR10-222, 2019 WL 3816671, at *2 (D. Conn. Aug. 14, 2019).
The Guideline provides that extraordinary and compelling
reasons exist in the following circumstances:
(A) Medical Condition of the Defendant.-
(i) The defendant is suffering from a terminal illness (i.e.,
a serious and advanced illness with an end of life
trajectory). A specific prognosis of life expectancy (i.e., a
probability of death within a specific time period) is not
required. Examples include metastatic solid-tumor cancer,
amyotrophic lateral sclerosis (ALS), end-stage organ disease,
and advanced dementia.
(ii) The defendant is-
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive
(III) experiencing deteriorating physical or mental health
because of the aging process, that substantially diminishes
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.
(B) Age of the Defendant.-The defendant (i) is at least 65
years old; (ii) is experiencing a serious deterioration in
physical or mental health because of the aging process; and
(iii) has served at least 10 years or 75 percent of his or
her term of imprisonment, whichever is less.
(C) Family Circumstances.-
(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 ...