UNITED STATES v. KILGO (2023)

ORDER: (1) GRANTING DEFENDANT GERALD ARTHUR KILGO'S UNOPPOSED MOTION FOR COMPASSIONATE RELEASE; (2) REDUCING DEFENDANT'S SENTENCE TO TIME SERVED; AND (3) DIRECTING THE BUREAU OF PRISONS TO IMMEDIATELY RELEASE DEFENDANT FROM FMC BUTNER TO HIS FAMILY'S CARE

This criminal case is before the Court on Defendant Gerald Arthur Kilgo's unopposed motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 39. Defendant seeks to modify his sentence because he was diagnosed with end-stage brain cancer. Id. at PageID 170. The Government does not oppose this request. Id. at PageID 164.

Typically, a “court may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). But this rule is subject to a few exceptions, including that a court may grant a defendant's motion for compassionate release, pursuant to 18 U.S.C. § 3582(c)(1)(A).

“[Section] 3582(c)(1)(A) authorizes a district court to reduce a defendant's sentence only if it finds that the defendant satisfies three requirements: (1) ‘extraordinary and compelling reasons warrant such a reduction’; (2) the ‘reduction is consistent with applicable policy statements issued by the Sentencing Commission’; and (3) the relevant § 3553(a) factors support the reduction.”

United States v. Hunter, 12 F.4th 555, 561 (6th Cir. 2021).

Defendant was sentenced on November 16, 2021 to a 2-year term of incarceration and a 3-year term of supervised release. Doc No. 36. In November 2022, Defendant suffered a seizure and was transported initially to the FMC in Lexington and then to the University of Kentucky for emergency brain surgery. Doc. No. 39 at PageID 165. Medical intervention revealed a grade 4 astrocytoma, “the most malignant tumor of the central nervous system[.]” Id. (citing Omar Skalli et al., Astrocytoma Grade IV (Glioblastoma Multiforme) Displays 3 Subtypes with Unique Expression Profiles of Intermediate Filament Proteins, 44 Human Pathology 2081 (2013)). The tumor is non-curable and while the standard of care includes surgery, chemotherapy, and radiation, none of these treatments is particularly effective. Id. Experimental treatments could offer a slight chance of survival. Id. Following his diagnosis, Defendant was moved from Federal Correctional Institution (“FCI”) Ashland to Federal Medical Center (“FMC”) Butner, where Defendant currently resides, because FCI Ashland was not equipped to provide chemotherapy and radiation. Doc. No. 39 at PageID 165.

Defendant learned of his diagnosis on December 8, 2022 and wrote to the Warden of FCI Ashland, David LeMaster, via email, to request compassionate release on December 9, 2022. Doc. No. 39-2 at PageID 173. On December 22, 2022, Warden LeMaster denied the request for compassionate release. Doc. No. 39-3, PageID 174. The Court may review this decision after “the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility,” among other options. 18 U.S.C. § 3582(c)(1)(A). As over 30 days have passed since the warden received Defendant's request, this motion is ripe for review.

Turning to the first requirement, extraordinary and compelling reasons exist to warrant a reduction in Defendant's sentence. A district court has discretion to define this term subject to limits including non-retroactive changes to the law, facts that existed when the defendant was sentenced, Hunter, 12 F.4th at 562, and the Federal Sentencing Guidelines. See United States v. Ruffin, 978 F.3d 1000, 1004 (6th Cir. 2020) (describing the relevant statutory history and articulating key factors). The Guidelines commentary lists reasons that are considered extraordinary and compelling, which include if “[t]he defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory) ․ Examples include metastatic solid-tumor cancer[.]” U.S.S.G. § 1B1.13 cmt. n.1(A)(i).

Here, there are no pertinent changes to the law and Defendant had no cancer diagnosis until over a year after he was sentenced. Rather, Defendant has a disease that was expressly recognized by the commentary to the Guidelines. Importantly, while Defendant's death is, unfortunately, likely, “[a] specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required.” Id. It is sufficient that Defendant has a serious and life-threatening cancer to find that the circumstances are extraordinary and compelling.

Turning to the second requirement, the Court finds that a sentence reduction is consistent with the Sentencing Commission policy statements. This step requires examining the three policy statements: (1) the “extraordinary and compelling” requirement; (2) whether Defendant is a danger to any person or community; and (3) whether a “reduction is consistent with this policy statement.” See U.S.S.G. § 1B1.13; Ruffin, 978 F.3d at 1005. Defendant's circumstances are exactly aligned with the purpose of this policy statement. Moreover, he was convicted of a non-violent offense, has already served over half of his sentence, and would re-enter the community anyway in less than a year.

Turning to the final requirement, the Court finds that 18 U.S.C. § 3553 factors weigh in favor of compassionate release. This step permits the Court to “weigh the facts that existed at sentencing—such as the ‘nature and circumstances of the offense,’ the defendant's background, and ‘sentence disparities.’ ” Hunter, 12 F.4th at 569. As stated above, Defendant was convicted of a non-violent offense and has already served over half of his term of incarceration. Moreover, Defendant is currently suffering from advanced cancer.

The Court recognizes that this part of the analysis gives courts discretion to deny compassionate release even if the first two steps suggest granting it. See Ruffin, 978 F.3d at 1005 (“The statute says that the district court ‘may’ reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so.”). Understanding that it has this discretion, the Court appreciates the uniquely tragic reality that Defendant suddenly faces: he was diagnosed with a rare and aggressive form of cancer; he very likely faces death; and because of that, he has limited time to spend with his family. This Court finds that Defendant unquestionably meets the criteria for compassionate release.

Thus, the Court GRANTS Defendant's motion for compassionate release and REDUCES Defendant's sentence to time served. It is the Court's understanding that Defendant's family is currently traveling to FMC Butner to pick him up today. There is no reason to delay and the Court finds that a stay of this order is unnecessary. Therefore, the Court DIRECTS the Bureau of Prisons to immediately release Defendant to his family's care. Upon Defendant's release from incarceration, he will be on supervised release subject to the conditions articulated at his sentencing, except that he will not be required to complete community service.

IT IS SO ORDERED.

Michael J. Newman, United States District Judge