UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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UNITED STATES OF AMERICA )
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v. ) Criminal No. 07-cr-00152-4 (ESH)
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ERNEST MILTON GLOVER, )
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Defendant. )
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MEMORANDUM OPINION
Before the Court is defendant Ernest Glover’s Motion for Compassionate Release under
18 U.S.C. § 3582(c)(1)(A)(i). (See Def.’s Mot., ECF No. 429-2.) Glover states that he “suffers
from a history of hypertension and high blood pressure, has been diagnosed as prediabetic, and
has a pre-existing lung condition, [all of] which place him at serious risk of becoming severely ill
from COVID-19.” (Id. at 1.) The government opposes Glover’s motion, arguing that “defendant
has not met his burden of establishing that a sentence reduction is warranted under the statute.
(See Gov’t’s Opp. at 2, ECF No. 437.) For the reasons stated below, the Court grants Glover’s
motion for release.
BACKGROUND
“On March 13, 2008, following a jury trial, Mr. Glover was found guilty of conspiracy to
possess[] with intent to distribute one kilogram or more of phencyclidine, in violation of 21
U.S.C. § 846.” (Def.’s Mot. at 1.) “In 2017, Mr. Glover received executive clemency which
reduced his sentence to 240 months of imprisonment.” (Id. at 2.) According to records from the
Bureau of Prisons (“BOP”), Glover is projected for release on October 25, 2025, which means he
has served approximately 70% of his sentence. (See BOP Sentence Computation Data at 1, ECF
No. 425-1; see also Def.’s Mot. at 2.)
Glover filed a pro se motion for compassionate release on May 27, 2020. (See ECF No.
423.) Counsel was subsequently appointed for Glover, and he requested that Glover’s pro se
motion be dismissed without prejudice so that Glover could exhaust his administrative remedies.
(See ECF Nos. 427, 428.) “On June 14, 2020, Mr. Glover filed a request for compassionate
release with the warden of FCI Schuykill,” where he is currently housed. (See Def.’s Mot. at 2.)
Glover filed the instant motion for compassionate release on July 23, 2020. He also sent two
letters to the Court in support of his motion, which the Court has reviewed as part of its analysis.
ANALYSIS
I. LEGAL STANDARD
18 U.S.C. § 3582(c) provides, in relevant part, that—
The court may not modify a term of imprisonment once it has been imposed
except that . . .
(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 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, may reduce the term
of imprisonment (and may impose a term of probation or supervised release with
or without conditions that does not exceed the unserved portion of the original
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 . . .
and that such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission . . . .
This section represents an expansion of the original regime of compassionate release, which only
allowed courts to hear motions brought by the Director of the BOP. As amended by the First
Step Act of 2018, the section now permits a defendant to move for compassionate release on his
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own behalf. See Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018) (“Increasing the Use and
Transparency of Compassionate Release”). However, before coming to court the statute requires
that a defendant either exhaust his administrative remedies within the BOP or wait thirty days
after submitting a request to the BOP that it file a motion on his behalf. For a Court to grant a
motion for compassionate release (made by either the BOP or a defendant), it must find
“extraordinary and compelling reasons” to reduce a defendant’s sentence.1 Furthermore, even if
a Court concludes that a defendant has presented such reasons, it must also “consider[] the
factors set forth in section 3553(a).” See 18 U.S.C. § 3582(c)(1)(A).
As noted above, Glover made a request to the warden of FCI Schuykill on June 14, 2020,
that a motion for compassionate release be made on his behalf. (See Def.’s Mot. at 2.) As more
than 30 days have passed since that request was made, Glover has exhausted his administrative
remedies. See 18 U.S.C. § 3582(c)(1)(a). The Court thus turns to the merits of Glover’s motion.
II. MOTION FOR RELEASE
A. Extraordinary and Compelling Reasons
Glover lists a number of “serious health conditions that give rise to heightened
vulnerability to [COVID-19]”: (1) his “history of hypertension” and high cholesterol; (2) his
diagnosis as a pre-diabetic; and (3) his “history of lung damage,” including “the inflammatory
lung disease Sarcoidosis.” (See Def.’s Mot. at 6-7.) He also points to his age of 56, as the
Centers for Disease Control and Prevention (“CDC”) has found that “the risk for severe illness
from COVID-19 increases with age.” (See id. at 6 (internal quotation marks omitted).)
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Section 3582(c)(1)(A) also provides that if a defendant is at least 70 years old and has served a
certain number of years in prison, his sentence may be reduced. See 18 U.S.C. 3582(c)(1)(A)(ii).
However, as Glover is only 56, that subsection is not relevant, and the Court need only consider
whether there exist “extraordinary and compelling reasons.”
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The commentary to Section 1B1.13 of the United States Sentencing Guidelines defines
“extraordinary and compelling reasons” as including: (1) certain medical conditions; (2) the age
of the defendant; (3) family circumstances of the defendant; and (4) reasons “other than, or in
combination with, the reasons described” in the three previous subsections. Medical conditions
warranting a reduction in sentence include both terminal illnesses and also other chronic
conditions that “substantially diminish[] 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.”
Id. at Application Note 1(A)(i)-(ii). The “extraordinary and compelling reason,” whatever it may
be, “need not have been unforeseen at the time of sentencing in order to warrant a reduction in
the term of imprisonment.” See id. at Application Note 2. Regardless of whether the Court
considers Section 1B1.13 and its commentary binding or merely helpful in light of the passage of
the First Step Act,2 “[t]he court is in a unique position to determine whether the circumstances
warrant a reduction” of a defendant’s sentence. See id. at Application Note 4.
First, the government argues that “[i]f an inmate has a chronic medical condition that has
been identified by the CDC as elevating the inmate’s risk of becoming seriously ill from
COVID-19, that condition may satisfy the standard of ‘extraordinary and compelling reasons,’”
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Section 1B1.13 only references “motion[s] of the Director of the Bureau of Prisons” when
describing what constitutes an “extraordinary and compelling reason,” as it has not been
amended since the First Step Act of 2018 provided an avenue for defendants to make their own
motions. In that way it is “anachronistic,” United States v. Asaro, 2020 WL 1899221, at *4
(E.D.N.Y. Apr. 17, 2020) (internal quotation marks omitted), as it has not been changed since
Congress “further increase[d] the use of compassionate release and . . . explicitly allow[ed]
courts to grant such motions even when [the BOP] finds they are not appropriate.” United States
v. Beck, 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019). “Because the Commission’s statutory
authority is limited to explaining the appropriate use of sentence-modification provisions under
the current statute,” United States v. Cantu, 423 F. Supp. 3d 345, 350 (S.D. Tex. 2019)
(emphasis in original), several courts have concluded that while the current policy statement may
be helpful, “it does not constrain the Court’s independent assessment of whether ‘extraordinary
and compelling reasons’ warrant a sentence reduction” under the regime created by the First Step
Act. Beck, 425 F. Supp. 3d at 579.
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but that Glover has provided evidence of no such conditions. (See Gov’t’s Opp. at 6.) However,
it “would be fundamentally unfair, if not contrary to the statute, to slam the compassionate
release door on any inmate whose medical condition does not appear on the CDC’s list.” See
United States v. Powell, 2020 WL 4578682, at *3 (D.D.C. June 18, 2020).
At the outset, Glover has hypertension, which the CDC states “may” increase the risk of
severe illness from COVID-19. See Centers for Disease Control and Prevention, People with
Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last accessed August 21, 2020) (hereinafter,
“CDC High-Risk Conditions”). Indeed, the CDC’s preliminary hospitalization data as of August
15, 2020, shows that over half of all adults hospitalized for COVID-19 have hypertension. See
COVID-NET, COVID-19 Laboratory-Confirmed Hospitalizations,
https://gis.cdc.gov/grasp/COVIDNet/COVID19_5.html (last accessed August 21, 2020).
Currently, Glover is only taking medication for his hypertension as a “precaution.” (See Gov’t’s
Opp. at 7 (internal quotation marks omitted).) However, Glover’s history of hypertension is
well-known—it has been documented at least as far back as his sentencing in 2007.
Glover also alleges he is at risk due to documented issues with his lungs.3 The
government asserts that Glover’s “left lung is clear,” and that therefore the Court should
disregard this injury. (See id. at 8 (internal quotation marks omitted).) However, the injury
Glover suffered in 1985 was to his right lung. This has resulted in “volume loss,” “chronic
pleural thinning,” and a “pleural-parenchymal abnormality.” (See Def.’s Mot. at 7 (internal
quotation marks omitted).) While a lung injury is not listed among the CDC’s high-risk
3
Glover “also asserts that he was exposed to tuberculosis as a child and has developed the
inflammatory lung disease Sarcoidosis.” (See Def.’s Mot. at 7.) However, there is no
documentation in Glover’s BOP medical records to support his assertion that he has sarcoidosis,
and thus the Court does not take it into consideration.
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categories, it is clear from a review of the listed conditions that lung issues put individuals at risk
for a more severe illness if they contract COVID-19. See CDC High-Risk Conditions. This is
unsurprising given that persistent shortness of breath and trouble breathing are some of the most
consistently cited symptoms of COVID-19 and, in fact, trouble breathing is an “emergency
warning sign[]” that medical care should be sought immediately. See CDC, Symptoms of
Coronavirus, https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html
(last accessed August 21, 2020).
Lastly, the government argues that “the Court should consider whether the inmate is more
likely to contract COVID-19 if he or she is released than if he or she remains incarcerated,” and
that FCI Schuylkill has reported only one positive case. (See Gov’t’s Opp. at 6-7 & n.5.)
However, “it cannot seriously be disputed that an individual in prison is less able to control his
own surroundings and exposure than he would be if living in single-family residenc[e] in the
community.” See Powell, 2020 WL 4578682, at *4. This is particularly salient for an individual
at Glover’s age, as the CDC reports that the hospitalizations per 100,000 people increase by
approximately 60% between individuals ages 40-49 and those aged 50-64. See CDC, Older
Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html
(last accessed August 21, 2020).
These factors, when considered altogether, convince the Court that Glover has provided
sufficient evidence to demonstrate an “extraordinary and compelling reason” warranting
compassionate release.
B. Section 3553(a) Factors
Having concluded that Glover has provided an “extraordinary and compelling reason”
justifying relief, the Court must now look at the factors under 18 U.S.C. § 3553(a) and determine
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whether Glover meets the statutory requirements for a sentence reduction. A sentence must take
into account “the nature and circumstances of the offense and the history and characteristics of
the defendant,” as well as, inter alia, afford adequate deterrence, provide just punishment, and
protect the public. See id. § 3553(a)(1)-(2). Moreover, a sentence must be “sufficient, but not
greater than necessary,” to promote these goals. See id. § 3553(a).
In 2008, the Court was required to sentence Glover to a life sentence due to his two prior
felony drug convictions. See 21 U.S.C. § 841(b)(1)(A)(iv). Of course, the Court is mindful of
the seriousness of that offense, and of the harm Glover caused to the community. However, both
of Glover’s predicate convictions were at least ten years old at the time of sentencing in this case.
Indeed, he was only 19 at the time of the first predicate conviction, and it involved a very small
quantity of drugs. Moreover, as was observed at the time of sentencing, “[h]is multiple
addictions fueled his criminal activity and resulted in his contacts with the criminal justice
system.” (See Def.’s Sentencing Mem. at 2, ECF No. 247.) Glover has already served a lengthy
sentence, almost twelve years, which surely “reflect[s] the seriousness of [his] offense, and
promote[s] respect for the law.” See 18 U.S.C. § 3553(a)(1).
Furthermore, the Court is impressed by the changes Glover has made since he was
incarcerated for the instant offense. Not only has Glover been a “model inmate”—learning new
skills and avoiding infractions—but he has been a leader to other inmates as well. (See Def.’s
Mot. at 10.) While incarcerated at FCI Cumberland, he acted as a mentor and facilitator in the
Young Men Incorporated program, which teaches leadership and re-entry skills to inmates. (See
id.) And, since being at FCI Schuykill, Glover has been active in the inmate church and even
preached on occasion. (See id.) He is praised by a staff chaplain who knew him at both
institutions, saying Glover “promote[s] peace and harmony,” and is a “leader” in the inmate
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community. (See Weaver Letter, ECF No. 429-3.) The “characteristics” of the defendant thus
suggest that a sentence of time served will be “sufficient, but not greater than necessary” to
achieve the goals of § 3553(a).
CONCLUSION
For the foregoing reasons, the Court will grant Glover’s Motion for Compassionate
Release (ECF No. 429-2). A separate Order accompanies this Memorandum Opinion.
_______________________
ELLEN S. HUVELLE
United States District Judge
Date: August 21, 2020
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