United States v. Shepard ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v.
Criminal Action No. 07-85 (RDM)
AUBREY LYNN SHEPARD,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Aubrey Lynn Shepard’s emergency motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). Dkt. 54. Although the motion presents
a close question given Shepard’s advanced age and array of health issues, the Court is
unpersuaded that “extraordinary and compelling reasons warrant” Shepard’s release and, in any
event, concludes that the sentencing factors set forth in 18 U.S.C. § 3553(a) require that he
remain incarcerated for the time being. The Court will, therefore, DENY the motion.
I. BACKGROUND
In 2007, Shepard pled guilty to one count of Transportation of Visual Depictions of
Minors Engaging in Sexually Explicit Conduct, in violation of 18 U.S.C. § 2252(a)(1), and one
count of Attempted Coercion and Enticement of a Minor, in violation of 18 U.S.C. § 2422(b).
According to the statement of offense, over the course of a month in early 2007, Shepard
communicated online from his home in Arkansas with a detective in Washington, D.C., who was
posing as a child sex trafficker. Dkt. 17 at 4–8. In these conversations, Shepard and the
detective made plans for Shepard, who was then 63 years old, to travel to the District of
Columbia to sexually abuse children. Id. During their online chats, Shepard also shared roughly
sixty movie files and seventy images of children as young as 4-months-old “engaged in various
explicit sexual acts with adult men and women.” Id. at 7–8. On April 3, 2007, Shepard arrived
at a hotel in the District of Columbia and was arrested. Id. at 8. In Shepard’s car, the police
discovered a video camera and videotapes, lubricants, sleeping pills, various fruit drinks, stuffed
animals, and DVDs containing approximately 144 movie files and over 1,900 images of child
pornography. Id. After his arrest, Shepard confessed his crimes. Id. at 9. He also confessed
that, decades earlier, he had sexually assaulted his daughter when she was younger than 12. Id.In the presentence investigation report, Shepard’s daughter recounted an extended period of
abuse from her childhood, and she also indicated that Shepard had abused other family members.
See Dkt. 59 at 7–8.
On October 18, 2007, Judge Ricardo Urbina sentenced Shepard, who was then 64 years
old, to thirty years in prison. Dkt. 51 at 29. Judge Urbina applied an offense level of 39 under
the sentencing guidelines, which carried a sentencing range of 262 to 327 months, but he found
that range to be “inadequate” given the severity of the crime. Id. at 27. In announcing the
sentence, Judge Urbina stated that Shepard was the “the worst excuse for a human being that [he]
. . . [had] ever seen in [his] 26 years on the bench” and that he thus did not “have much faith in
the prospects of rehabilitation” in Shepard’s case. Id. at 27–28.
On January 8, 2020, Shepard moved for compassionate release, based primarily on risks
associated with the COVID-19 pandemic. Dkt. 54. At the time of his motion, he had served
approximately 13 years and 8 months of his sentence. Id. at 6. Mr. Shepard is now 77 years old
and suffers from several health conditions that he claimed increased his risk of death or grave
illness if he were to contract COVID-19. Id. at 3. The government opposed the motion, Dkt. 59,
and Shepard filed a reply, Dkt. 61. The parties then filed several supplemental notices and
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responses related to a prison psychologist’s opinion that Shepard would be a candidate for
“outpatient treatment in the community.” Dkt. 62 at 2; see also Dkt. 63; Dkt. 64; Dkt. 65. On
February 18, 2021, the Court held a hearing on the motion. See Minute Entry (Feb. 18, 2021).
At the hearing, Shepard stated that he was “truly sorry” for his crimes. Hrg. Tr. (Rough at 37).
He said that, if released, he planned to “sit[] in [his] little easy chair and watch[] television” and
that, “[a]s far as young girls go, there won’t be none in [his] life.” Hrg. Tr. (Rough at 37–38).
The motion is now ripe for decision.
ANALYSIS
Until 2018, the Bureau of Prisons (“BOP”) wielded “exclusive power over all avenues of
compassionate release.” United States v. Brooker, 976 F.3d 228, 231 (2d Cir. 2020). “BOP used
this power sparingly, to say the least.” Id. In 2018, as part of the First Step Act’s larger package
of criminal justice reforms, Congress amended the compassionate release statute to allow a
defendant, after exhausting his remedies with the BOP, to petition a court directly for
modification of his sentence. See 18 U.S.C. § 3582(c)(1)(A). This provision, titled “Increasing
the Use and Transparency of Compassionate Release” in the bill, see United States v. Johnson,
464 F. Supp. 3d 22, 25 (D.D.C. 2020) (quoting First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194, 5239 (2018)), was intended to “expand[]” and “expedite[]” compassionate release,
according to one of its co-sponsors, see Brooker, 976 F.3d at 233 (quoting 164 Cong. Rec. S7774
(daily ed. Dec. 18, 2018) (statement of Sen. Ben Cardin)).
A defendant seeking release under the revised § 3582(c)(1)(A) “bears the burden of
establishing that he is eligible for a sentence reduction.” United States v. Demirtas, No. 11-cr-
356, 2020 WL 3489475, at *1 (D.D.C. June 25, 2020). Before ordering a defendant’s release, a
court must answer three questions. First, the court must consider whether the defendant has
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exhausted his administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Second, it must consider
whether “extraordinary and compelling reasons warrant” release. Id. Third, the court must
consider whether release would be consistent with the sentencing “factors set forth in section
3553(a) to the extent that they are applicable.” Id. In conducting this inquiry, the Court must
ensure that any modification of sentence “is consistent with applicable policy statements issued
by the Sentencing Commission.” Id. The Court will consider each of the three requirements in
turn.
A. Exhaustion of Administrative Remedies
A court cannot modify a sentence under the compassionate release statute until “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.” 18 U.S.C.
§ 3582(c)(1)(A). Decisions in this district have uniformly held, however, that the exhaustion
requirement is not jurisdictional. See United States v. Queen, No. 17-cr-58, 2020 WL 3447988,
at *2 (D.D.C. June 24, 2020).
The government initially argued that Shepard had failed to exhaust administrative
remedies because his request to the BOP lacked sufficient specificity as to the reasons supporting
his release. Dkt. 59 at 20–25. Later, however, the government reversed course and conceded
that Shepard had exhausted. Dkt. 62 at 1. Regardless of the government’s concession, the Court
concludes that Shepard has exhausted his administrative remedies. Shepard submitted a request
for compassionate release to the warden of FCI Butner Low, where he is incarcerated, on June
29, 2020. Dkt. 54 at 22. BOP formally denied the request on July 13, 2020. Id. As such, far
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more than thirty days lapsed between the warden’s receipt of the request and the filing of
Shepard’s motion in this Court on January 8, 2021.
For present purposes, the Court accepts the government’s contention that it is possible
that a timely administrative request for release might nonetheless fail to satisfy the exhaustion
requirement if it does not give BOP fair notice of the reasons underlying the request. But this is
not such a case. Shepard asks the Court to grant his release based on his advanced age, his
declining health, and his risk factors for contracting severe COVID-19. Dkt. 54. He presented
those same grounds for release to the warden. Dkt. 61 at 2. His administrative request sought
release “in light of the extraordinary and compelling COVID-19 pandemic, as well as his age,
gender[,] and health,” in addition to the high number of COVID-19 cases that were active at
Butner Low at the time of his request. Id. Particularly in a context in which many inmates
submit their administrative requests pro se and in which health concerns may evolve on a day-to-
day basis, Shepard’s request was more than detailed enough to satisfy the statutory exhaustion
requirement.
B. Extraordinary and Compelling Reasons
Next, the Court must consider whether “extraordinary and compelling reasons” support
Shepard’s release. 18 U.S.C. § 3582(c)(1)(A). The law provides no definition of this phrase and
instead allows “applicable policy statements issued by the Sentencing Commission” to refine the
statutory standard. Id.; see also 28 U.S.C. § 994(t) (directing the Sentencing Commission to
develop policies as to what circumstances “should be considered extraordinary and compelling
reasons for sentence reduction”). The Sentencing Commission’s policy statement on
compassionate release, which was promulgated before the First Step Act, includes “application
notes” that list four “circumstances” that qualify as “extraordinary and compelling.” U.S.S.G.
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§ 1B1.13 cmt (1). First, the policy statement provides for release based on the “Medical
Condition of the Defendant.” U.S.S.G. § 1B1.13, cmt. (1)(A). Release is appropriate if the
defendant is “suffering from a terminal illness.” U.S.S.G. § 1B1.13, cmt. (1)(A)(i). Release may
also be appropriate if the defendant is “(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or (III) experiencing
deteriorating physical or mental health because of the aging process,” but these non-terminal
conditions provide a basis for release only if the relevant condition is irreversible and
“substantially diminishes the ability of the defendant to provide self-care within the environment
of a correctional facility.” U.S.S.G. § 1B1.13, cmt. (1)(A)(ii).
Second, the policy statement permits release based on “Age of the Defendant.” U.S.S.G.
§ 1B1.13, cmt. (1)(B). To qualify under this provision, the defendant must [1] be “at least 65
years old; . . . [2] [be] experiencing a serious deterioration in physical or mental health because
of the aging process; and [3] [have] served at least 10 years or 75 percent of his or her term of
imprisonment, whichever is less.” Id.
The policy statement’s third basis for release, not relevant here, pertains to family
circumstances, such as a situation in which the caregiver for a defendant’s minor children is
incapacitated. U.S.S.G. § 1B1.13, cmt. (1)(C). And the fourth provision is a catchall for “Other
Reasons” to be “[d]etermined by the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13,
cmt. (1)(D).
Of course, neither the Sentencing Commission in promulgating its policy statement nor
Congress in passing the First Step Act could foresee the COVID-19 pandemic. And yet, over the
past year, courts have been inundated with compassionate release requests from prisoners who
argue that their health conditions leave them particularly at risk for severe illness or death if
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exposed to the virus while in prison, where people are especially vulnerable to the virus despite
the various protective measures that BOP has put in place. See Dkt. 54 at 12–17 (recounting, in
the context of Shepard’s motion, the history of COVID-19 spread in federal prisons). Although
none of the grounds for release set forth in the policy statement is a neat fit for risks associated
with the pandemic, the courts have overwhelming concluded that they have discretion to grant
compassionate release based on serious risks to life or safety associated with the virus, although
they have taken slightly divergent paths to reach that result.
Many decisions, including decisions by several judges in this district, have concluded that
the policy statement remains binding, but that, in light of the First Step Act, the catchall
provision can be read to grant authority to identify additional reasons warranting release not only
to the Director of the Bureau of Prisons but also to the courts. See, e.g., United States v. Fields,
No. 19-cr-0048, 2021 WL 780738, at *2 (D.D.C. Mar. 1, 2021) (holding that “the COVID-19
pandemic falls under such an ‘other reason’ that may present an ‘extraordinary and compelling
reason’ for a sentencing reduction” within the meaning of the catchall provision); United States
v. Robinson, No. 16-cr-153-2, 2021 WL 736732, at *2 (D.D.C. Feb. 25, 2021); United States v.
Douglas, No. 10-cr-171-4, 2021 WL 214563, at *4 (D.D.C. Jan. 21, 2021); United States v.
Brooks, No. 18-cr-29, 2020 WL 7186157, at *2 (D.D.C. Dec. 7, 2020) (“In light of the COVID
crisis, . . . courts have invoked [the catchall provision], which acknowledges that reasons ‘other
than, or in combination with, the reasons described’ in [commentary sections (1)(A), (B), and (C)
of the policy statement] may present extraordinary and compelling circumstances.”).
Other decisions, including recent decisions from four circuits, have held that because the
policy statement predated the First Step Act and is directed exclusively at motions filed by the
BOP, it is not “applicable” to motions filed by defendants under 18 U.S.C. § 3582(c)(1)(A). See
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Brooker, 976 F.3d at 237; United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020) (“In cases
where incarcerated persons file motions for compassionate release, federal judges may skip step
two of the § 3582(c)(1)(A) inquiry and have full discretion to define ‘extraordinary and
compelling’ without consulting the policy statement § 1B1.13”); United States v. Gunn, 980 F.3d
1178, 1181 (7th Cir. 2020) (Until the Guidelines are revised, “the Guidelines Manual lacks an
‘applicable’ policy statement covering prisoner-initiated applications for compassionate
release.”); United States v. McCoy, 981 F.3d 271, 281 (4th Cir. 2020). In addition to the
reference to the “Director of the Bureau of Prisons” in U.S.S.G. § 1B1.13, cmt. (1)(D), the policy
statement also provides that “[a] reduction under this policy statement may be granted only upon
motion by the Director of the Bureau of Prisons,” U.S.S.G. § 1B1.13, cmt. (4), which these
courts have read as indicating that the policy statement is “applicable” only to the BOP and not
the courts, see Brooker, 976 F.3d at 235–36. As the Second Circuit put it: “[T]he First Step Act
freed district courts to consider the full slate of extraordinary and compelling reasons that an
imprisoned person might bring before them in motions for compassionate release,” and
“[n]either Application Note 1(D), nor anything else in the now-outdated version of [U.S.S.G.]
§ 1B1.13, limits the district court’s discretion.” Id. at 237. To hold otherwise, the Second
Circuit concluded, would fail to recognize that “Congress clearly did not view this—a break with
over 30 years of procedure—as a minor or inconsequential change.” Id. at 235.
The difference between these two lines of precedent is seemingly inconsequential for
compassionate release motions based on COVID-19. A court concluding that it can consider
such a motion under U.S.S.G. § 1B1.13, cmt. (1)(D) ends up in the same place as a court
concluding that it can do so because the policy statement does not apply. Both courts may grant
release based on serious COVID-19 risks “after considering the factors set forth in section
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3553(a) to the extent they are applicable.” 18 U.S.C. § 3582(c)(1)(A). But the distinction takes
on more meaning in a case in which the defendant seeks release based on age or family
circumstances or a medical condition not associated with a once-in-a-century pandemic. In those
cases, a court taking the position that the policy statement is still applicable would need to apply
U.S.S.G. § 1B1.13, cmt. (1)(A), (B), or (C), whereas a court taking the position that the entire
policy statement is inapplicable would have broader discretion to determine what types of
medical conditions or age-related declines qualify as “extraordinary and compelling.”
Although the D.C. Circuit has yet to address this question, the Court is persuaded by the
analysis adopted by the four courts of appeals that have considered the issue and, thus, concludes
that it is not bound by the existing policy statement, U.S.S.G. § 1B1.13, in determining what
qualifies as “extraordinary and compelling reasons warrant[ing]” release. 18 U.S.C.
§ 3582(c)(1)(A). Because the policy statement by its own terms applies only to motions filed by
the BOP, it is not “applicable” to compassionate release motions that defendants file directly
with the Court. At the same time, however, the Court will look to the application notes as highly
persuasive (albeit not binding) authority when considering motions based on medical conditions,
age, or family circumstances. These “outdated guidance documents remain helpful in defining a
vague standard.” United States v. Minicone, No. 5:89-cr-173, 2021 WL 732253, at *2 (N.D.N.Y.
Feb. 25, 2021) (internal quotation and citation omitted). And relying on the established
standards is preferable to conducting an unmoored inquiry into what qualifies as “extraordinary
and compelling.”
With that understanding of the statutory standard in mind, the Court turns to considering
whether Shepard has carried his burden of demonstrating that “extraordinary and compelling
reasons warrant” his release. In his motion, Shepard argues that he should be released on two
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separate grounds, although his briefing at times blurs the line between the two arguments. First,
Shepard argues that his age (combined with his poor health) is an extraordinary and compelling
reason warranting his release, under U.S.S.G. § 1B1.13, cmt. (1)(B). Dkt. 54 at 22. As
explained above, to qualify under this provision, the defendant must be “at least 65 years old; . . .
experiencing a serious deterioration in physical or mental health because of the aging process;
and [have] served at least 10 years or 75 percent of his or her term of imprisonment, whichever is
less.” U.S.S.G. § 1B1.13, cmt. (1)(B). Shepard is 77 years old and has served well over 10 years
of his sentence, and thus he satisfies at least two of the policy statement’s three requirements for
age-based extraordinary and compelling reasons. As for his “serious deterioration in physical or
mental health because of the aging process,” Shepard argues that he suffers from a bevy of health
problems, including skin cancer, obesity, high blood pressure, and lung problems associated with
his history of smoking. Id. at 22–29.
Shepard’s primary argument, however, is that those same health conditions, combined
with his age, put him at extreme risk from COVID-19. Id. According to CDC data, a 77-year-
old who contracts COVID-19 is approximately eight times more likely to be hospitalized and a
staggering 187 times more likely to die than someone between the ages of 18 and 29. See Ctrs.
for Disease Control and Prevention, Risk for COVID-19 Infection, Hospitalization, and Death by
Age Group (last updated Feb. 18, 2021), https://www.cdc.gov/coronavirus/2019-ncov/covid-
data/investigations-discovery/hospitalization-death-by-age.html. Shepard argues, “when taken
together, his advanced age and comorbidities combine and reinforce each other to render Covid-
19 a uniquely dangerous threat to [him] and provide this Court with extraordinary and
compelling reasons to grant his release.” Dkt. 54 at 29–30.
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In response, the government concedes that Shepard “meets the criteria of U.S.S.G.
§ 1B1.13, cmt. (1)(B), related to his age” and has thus “demonstrated an extraordinary and
compelling reason for release.” Dkt. 59 at 26. In particular, the government points to Shepard’s
enlarged prostate, high cholesterol, high blood pressure, and arthritis. 1 Id. With respect to
Shepard’s cancer, the government reports that Shepard “had a biopsy in 2012 for a lesion on his
left shoulder, which was identified as malignant melanoma, and it appears that defendant had
surgery and treatment with interferon.” Id. Then in December 2020, shortly before filing his
motion, Shepard “identified skin lesions that he reported were similar to his previous cancerous
lesion” and “had a biopsy and excision of at least one of the new lesions.” Id. In addition, “BOP
has classified [Shepard] as Care Level 3, the designation for individuals at BOP receiving
‘unstable, complex chronic care.’” Id. In light of this concession, the government argued that
the Court need not reach the separate question of whether Shepard had also shown extraordinary
and compelling reasons for his release in light of the pandemic. Id. at 28.
As an initial matter, the Court concludes that Shepard has not shown extraordinary and
compelling reasons based on the pandemic. His age combined with his other risk factors might
otherwise merit his release, but on the day that the Court held oral argument in the case, Shepard
received his first dose of the COVID-19 vaccine. See Minute Entry (Feb. 18. 2021); Hrg. Tr.
(Rough at 8–9). Overall, BOP has now fully vaccinated 576 staff members and 486 inmates at
Butner FCC. See COVID-19, Federal Bureau of Prisons (last visited Mar. 3, 2021),
1
The parties in their briefs list various other maladies with which Shepard has been diagnosed,
using technical terms that can make the conditions sound rather dire. The Court’s research,
however, reveals that Shepard’s “[i]mpacted cerumen,” Dkt. 54 at 29, is excessive earwax and
his “allergic rhinitis,” Dkt. 59 at 26, is hay fever. Needless to say, earwax is neither
extraordinary nor compelling.
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https://www.bop.gov/coronavirus. When providing emergency use authorization for the first two
COVID-19 vaccines, the Food and Drug Administration reported that in clinical trials, both
vaccines were roughly 95 percent effective at preventing infections, and only one person in the
trials had a severe case. 2 Given that Shepard received his first dose of the vaccine about two
weeks ago (and, presumably, will receive his second dose in the near future), he cannot show
that he needs to be released from prison to protect him from risks associated with COVID-19.
The question, then, is whether Shepard has demonstrated extraordinary and compelling
reasons supporting his release based on his advanced age, as Shepard and the government agree
he has. As an initial matter, the Court concludes that it is not bound by the government’s
concession. Compassionate release is a discretionary power, and the Court will not grant release
unless it independently finds that the statutory standard is satisfied. The Court agrees with the
parties in at least certain respects. The Court accepts the parties’ reliance on U.S.S.G. § 1B1.13,
cmt. (1)(B) and, even though that provision is not binding in the present circumstances, the Court
concludes that it provides a sensible framework for evaluating whether age-related circumstances
constitute extraordinary and compelling reasons for release. Of course, the Court also agrees that
Shepard is over age 65 and has served more than 10 years of his sentence. The only question
under the policy statement, then, is whether Shepard “is experiencing a serious deterioration in
2
See Food and Drug Admin., FDA Takes Key Action in Fight Against COVID-19 By Issuing
Emergency Use Authorization for First COVID-19 Vaccine (Dec. 11, 2020),
https://www.fda.gov/news-events/press-announcements/fda-takes-key-action-fight-against-
covid-19-issuing-emergency-use-authorization-first-covid-19; Food and Drug Admin., FDA
Takes Additional Action in Fight Against COVID-19 By Issuing Emergency Use Authorization
for Second COVID-19 Vaccine (Dec. 18, 2020), https://www.fda.gov/news-events/press-
announcements/fda-takes-additional-action-fight-against-covid-19-issuing-emergency-use-
authorization-second-covid.
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physical or mental health because of the aging process.” U.S.S.G. § 1B1.13, cmt. (1)(B)
(emphasis added).
What constitutes a “serious deterioration” admits of some ambiguity. But the text and
structure of the policy statement provide additional clues about the meaning of the phrase. Most
obviously, the section covering release based on age, U.S.S.G. § 1B1.13, cmt. (1)(B), is separate
from the section covering release based on medical conditions, U.S.S.G. § 1B1.13, cmt. (1)(A).
This indicates that the deterioration required for release based on age need not rise to the level of
a medical condition that would independently merit release, or else the age-based provision
would be surplusage. Likewise, although both the medical and age provisions include similar
language about deterioration based on age, they pair that requirement with different additional
requirements. Under the medical provision, a defendant who shows deterioration based on age
must also show that this deterioration is irreversible and “substantially diminishes the ability of
the defendant to provide self-care within the environment of a correctional facility.” U.S.S.G.
§ 1B1.13, cmt. (1)(A). By contrast, under the age provision, the defendant must show that he is
at least 65 and has served at least 10 years or 75 percent of his sentence, but there is no
requirement that his physical or mental deterioration diminishes his ability to provide self-care.
U.S.S.G. § 1B1.13, cmt. (1)(B). Again, this indicates that the “deterioration in physical or
mental health because of the aging process” required under U.S.S.G. § 1B1.13, cmt. (1)(B) is
something less than the type of deterioration that would qualify a defendant for medical release.
Nevertheless, the deterioration under the age provision must be “serious.” 3 Id.
3
Because Shepard was 64 at the time of sentencing, his aging in prison was a foreseeable
consequence of imposing a 30-year sentence. Under the policy statement, however, “an
extraordinary and compelling reason need not have been unforeseen at the time of sentencing in
order to warrant a reduction in the term of imprisonment.” U.S.S.G. § 1B1.13, cmt. (2).
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Caselaw provides some further guidance. Although most recent court decisions on
compassionate release have dealt with the pandemic, several decisions from both before and
during the pandemic have dealt with requests for release under the First Step Act based on the
age provision of the policy statement. In a case on which the government relied in conceding
that Shepard had shown extraordinary and compelling reasons, the Southern District of
California found extraordinary and compelling reasons for release under U.S.S.G. § 1B1.13,
cmt. (1)(B) based on circumstances similar to those in this case. See United States v. Mondaca,
No. 89-cr-0655, 2020 WL 1029024, at *3 (S.D. Cal. Mar. 3, 2020). The defendant in that case,
like Shepard, was 77 years old and had an enlarged prostate. Id. The defendant also had
degenerative disc disease and a decrease in memory. Id. Two years prior to seeking
compassionate release, he had been placed on suicide watch after he was the victim of an assault
and had “withdrawn to his cell out of fear of interaction with other inmates.” Id. (quotation
omitted). Although Shepard does not contend that he has become “increasingly vulnerable to
victimization within the correctional facility because of his age,” id., he has had cancer, and it is
possible that his cancer has now reoccurred, see Minicone, 2021 WL 732253, at *4 (granting
compassionate release in part because 72-year-old defendant had “endured seven surgeries to
remove cancerous skin lesions on various parts of his body” while in prison). The Court cannot,
of course, measure the comparative health of Shepard and Mondaca with any precision, but the
health challenges that Shepard faces appear similar to those that the Mondaca court found to
constitute a “serious deterioration in physical or mental health.” U.S.S.G. § 1B1.13, cmt. (1)(B).
Other courts, however, have set the bar somewhat higher for age-based compassionate
release under U.S.S.G. § 1B1.13, cmt. (1)(B), either denying motions from defendants with
conditions that are similar to Shepard’s or granting motions only where the defendant had
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suffered more severe deterioration. See, e.g., United States v. Gutierrez, No. 05-cr-0217, 2019
WL 1472320, at *2 (D.N.M. Apr. 3, 2019) (denying compassionate release to a 78-year-old
inmate with a prostate “problem that requires him to urinate every two hours,” as well as
cataracts and broken teeth); United States v. Gross, No. 2:04-cr-32, 2019 WL 2437463, at *3
(E.D. Wash. June 11, 2019) (denying compassionate release where the defendant’s deteriorating
health resulted from a detached retina, rather than the aging process); United States v.
Shmuckler, No. 1:11-cr-344, 2019 WL 6257959, at *1 (E.D. Va. Nov. 22, 2019) (denying
compassionate release to 76-year-old defendant who suffered from “a crimp in his aortic artery;
macular degeneration; hypertension; esophageal reflux; mycobacterium fortuitive infection;
hyperthyroidism; prostatic hypertrophy; and hyperlipidemia); United States v. Vasquez, No. 08-
cr-00065, 2021 WL 681174, at *2 (E.D.N.Y. Feb. 22, 2021) (granting compassionate release to
“a 65-year-old diabetic” defendant with “advanced heart disease” requiring an implanted
defibrillator and pacemaker); United States v. Clyne, No. 1:16-cr-115, 2019 WL 3292349, at *1
(D. Idaho July 22, 2019) (granting compassionate release to 72-year-old defendant who had
suffered “several heart attacks, had a pacemaker implanted, and [could] only walk with the aid of
a walker”); United States v. Wong Chi Fai, No. 93-cr-1340, 2019 WL 3428504, at *3 (E.D.N.Y.
July 30, 2019) (granting compassionate release to 65-year-old defendant with severe thyroid
cancer).
Although it presents a difficult question, the Court concludes that Shepard has not (at
least at this time) shown “serious deterioration in physical or mental health because of the aging
process” that would rise to the level of an extraordinary or compelling reason warranting his
release. U.S.S.G. § 1B1.13, cmt. (1)(B). It is possible that with more information about the
severity of his current conditions, the Court would reach a different conclusion. As the record
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stands now, however, it appears that Shepard’s most severe medical condition is his skin cancer.
It is unclear, however, whether his cancer is currently in remission, given the unknown results of
his recent biopsy, and whether his cancer has progressed beyond a localized (and treatable)
melanoma. His enlarged prostate is a common condition in older men, and there is no indication
in the record that it is currently anything more than a nuisance. The Court might reach a
different conclusion if Shepard were to demonstrate that his cancer has spread or is life
threatening or that his prostate condition is more severe than the Court currently understands it to
be. His borderline obesity, high blood pressure, and smoker’s cough may have been risk factors
for COVID-19, but now that he has received the vaccine, those conditions by themselves do not
merit release from prison. Likewise, his laundry list of other minor ailments, even in
combination, are not at a level where the Court would call them signs of serious deterioration.
Shepard has thus—at least at this time—failed to demonstrate extraordinary and compelling
reasons justifying his release.
C. Sentencing Factors
Because Shepard has failed to show extraordinary and compelling reasons justifying his
release, the Court need not reach the question of whether the sentencing factors favor his release.
But even if the Court had found Shepard’s circumstances extraordinary and compelling, the
Court would still deny his motion on the ground that the sentencing factors do not support his
release. (It is on this ground that the government opposes Shepard’s motion.) The factors for the
Court to consider include “the nature and circumstances of the offense and the history and
characteristics of the defendant” and the need for the sentence imposed to “to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
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offense;” “to afford adequate deterrence to criminal conduct;” and “to protect the public from
further crimes of the defendant.” 18 U.S.C. § 3553(a).
Shepard primarily argues that “his 30-year sentence overstates the seriousness of his
convictions.” Dkt. 54 at 31. This is because his “sentence was actually driven by his arguably
less serious offense—possession of child pornography and the corresponding guideline § 2G2.2,
which recommended 30 years to life.” Id. Shepard argues that the child pornography guideline
is overly harsh, and many judges and commentators have long agreed with that general
assessment. See, e.g., United States v. Dorvee, 616 F.3d 174, 188 (2d Cir. 2010) (describing
§ 2G2.2 as an “eccentric Guideline of highly unusual provenance” that in a given case may be
“manifestly unjust”); Brent E. Newton, A Partial Fix of a Broken Guideline: A Proposed
Amendment to Section 2G2.2 of the United States Sentencing Guidelines, 70 Case W. Rsrv. L.
Rev. 53 (2019) (noting that 69.1 percent of defendants sentenced under § 2G2.2 receive
downward variances or departures). The Court is unconvinced, however, that § 2G2.2 was what
determined Shepard’s 30-year sentence in this case. At the sentencing, Judge Urbina imposed a
sentence above the guidelines range because he found the facts of this case so shocking, calling it
the worst he had ever seen in his years on the bench. See Dkt. 51 at 27. Even setting aside the
child pornography, the facts of the case suggest that Shepard traveled to the District of Columbia
with sleeping pills and fruit drinks that he intended to use to drug and rape a child. Shepard also
admitted that he had sexually abused his daughter when she was a child, showing a pattern of
sexually abusive behavior that stretched over decades. Given the shocking nature of Shepard’s
crime, his sentence was appropriate, and he has not yet served enough of that sentence “to reflect
the seriousness of the offense, to promote respect for the law, and to provide just punishment for
the offense.” 18 U.S.C. § 3553(a).
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The Court is also concerned about the protection of the community. Shepard is now 77
years old, and, at that advanced age, the danger that he may have posed when he went to prison
more than thirteen years ago has likely decreased. But given the fact that Shepard committed the
offenses for which he was convicted at age 63, the Court is unpersuaded that his advanced age
alone provides a sufficient guarantee that his release would not endanger children.
Shepard’s claim that prisoners in his age group who are released have a zero percent
recidivism rate, Dkt. 54 at 40– 41, is unpersuasive. The figure is based on a report in which only
ten prisoners over age 70 were released—an insufficient sample size upon which to base such an
important decision about community safety. See OIG, The Impact of an Aging Inmate
Population on the Federal Bureau of Prisons, at 40 (2016). Nor is the Court persuaded that
Shepard could safely be released on the basis of the prison psychologist’s report indicating that
he “is scored as low risk to sexually reoffend” and that “outpatient treatment in the community is
completely acceptable.” Dkt. 62 at 2. Here again, this determination appears to have been based
almost entirely on Shepard’s age. But Shepard’s decades-long pattern of behavior and his
criminal activities well into his sixties suggest that he may pose a greater risk to the community
than other inmates in his age group. The sentencing factors thus support his continued
incarceration to protect the public. 18 U.S.C. § 3553(a).
The Court will, therefore, deny Shepard’s motion for compassionate release. The Court
recognizes, however, that Shepard is well into his older years and faces significant health issues.
Perhaps in the future, once he has served more of his sentence, he will be able to present a
stronger motion for release based on his health as it stands at that time. The Court will therefore
deny the motion but will do so without prejudice.
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CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Shepard’s emergency motion for
compassionate release, Dkt. 54, is DENIED without prejudice.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 5, 2021
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