UNITED STATES v. VONGXAY (2020)

DECISION AND ORDER

Defendant James Vongxay (“Vongxay”) pleaded guilty to conspiring to possess with intent to distribute 50 kilograms or more of marijuana. Although the United States Sentencing Guidelines recommended a sentence of between 46-57 months imprisonment, on December 28, 2019, this Court sentenced Vongxay principally to a term of imprisonment of 24 months to be followed by a three-year term of supervised release. Vongxay is presently serving his sentence at the Federal Correctional Institution Allenwood Low (“FCI Allenwood Low”).

On May 11, 2020, Vongxay filed a motion (Dkt. #165), pro se, seeking release to home confinement pursuant to 18 U.S.C. § 3582(c)(1)(A). Vongxay seeks release because of the potential to be infected by the COVID-19 virus.

This Court is certainly aware of the COVID-19 pandemic which has affected this country and the world. But for several reasons, Vongxay's pro se motion must be denied. First of all, Vongxay must demonstrate that he has met the procedural requirement which requires that he exhausts his administrative remedies by filing a request for release with the Warden or the Bureau of Prisons (“BOP”). Vongxay makes no claim that he has done that and the Government specifically recommends that the BOP has no record of Vongxay making any administrative request for compassionate release. On that basis alone, the Court must deny Vongxay's motion.

Even if the matter were properly before the Court, Vongxay bears the burden of showing that there are “extraordinary and compelling reasons” for a reduction of the sentence. One of the factors the Court must consider is the medical condition of the defendant. There does not appear to be any significant medical issue with Vongxay. He is classified at the BOP as a “Medical Care Level 1,” which is the lowest level. According to the Report (Dkt. #167) of Probation concerning Vongxay's situation at FCI Allenwood Low, Vongxay has no documented medical problems at the facility and, in fact, the original Presentence Report in the case, at paragraph 146, noted defendant's statement that he was in good physical health with no history of significant illness or injury. Therefore, Vongxay does not appear to be a person with a preexisting medical condition that makes him particularly vulnerable to the COVID-19 virus.

In addition, Probation's Report (Dkt. #167) indicates that currently no inmates or staff have contracted the virus. Thus, unlike other larger BOP facilities, FCI Allenwood Low does not appear to have a significant COVID-19 problem.

In sum, Vongxay is a young person, approximately 22 years old, and is therefore not vulnerable because of advanced age. He does not appear to have any medical conditions and he is at a facility which does not have COVID-19 issues. In addition, of course, Vongxay's motion must be denied because he has failed to exhaust his administrative remedies by seeking release from the Warden or the BOP.

CONCLUSION

Defendant James Vongxay's motion (Dkt. #165) for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) is DENIED.

IT IS SO ORDERED.

DAVID G. LARIMER, United States District Judge