govinfo:USCOURTS-azd-2_03-cr-00917-2

1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
United States of America, 
 
Plaintiff, 
 
v. 
 
Philip James Chillemi, 
 
Defendant. 
No. CR-03-00917-001-PHX-DJH 
No. CR-97-00199-001-PHX-DJH 
 
ORDER 
 
 
 
 Pending before the Court is the Defendant’s Amended Motion for Compassionate 
Release. (Doc. 120). The Government has filed a Response in opposition (Doc. 122) to 
which the Defendant has Replied. (Doc. 123). For the following reasons, the Court denies 
the Defendant’s request. 
I. Background 
 The Defendant was convicted post jury trial of Bank Robbery in violation of 18 
U.S.C. § 2113(a), on December 11, 2003. On August 16, 2004, he was sentenced to two -
hundred-forty months in federal custody followed by three years on supervised release. 
(Doc. 59). At the time he committed the bank robbery, the Defendant was on supervised 
release. Consequently, he was committed to federal custody for twenty-four months to be 
served consecutively to the bank robbery sentence. (Doc. 133; 97 -CR-00199). The 
Defendant is presently held in the federal correctional institute in Phoenix, Arizona 
(“FCI”), a medium security facility. Although the FCI shows his projected release date as 
May 12, 2030, the Government disputes that and agrees that he has just about finished his 

 
- 2 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
bank robbery sentence and will soon begin his two-year supervised release violation term. 
(Doc. 122 at 3). 
 II. Legal Standards 
 The basis for the Defendant’s Motion is the arrival of the COVID -19 virus. 1 
Defendant brings h is Motion pursuant to 18 U.S.C. § 3582(c)(1)(A), which was recently 
modified by the First Step Act of 201 8. See Pub. L. No. 115 -391, § 603 . That statute 
provides: 
The court may not modify a term of imprisonment once it has been imposed 
except that – 
(1) In any case – 
(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 
Prison 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 . . . 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[.] 
 
18 U.S.C. § 3582(c). 
a. Exhaustion of Remedies 
 This Court “may not modify a term of imprisonment” unless the Congressionally 
mandated exception is present. 18 U.S.C. § 3582(c). That exception is present when either 
the motion to modify sentence is brought by the Bureau of Prisons (“BOP”) “or upon 
motion of the defendant after the defendant has fully exhausted all administrative rights to 
appeal[.]” 18 U.S.C. § 3582(c)(1)(A) (emphasis added). The statutory language is 
unambiguous and not waivable. See United States v. Weidenhamer, 2020 WL 1929200 *2 
(D. Ariz. Apr. 21, 2020) (“If the statutory language contains mandatory language . . . a 
court may not excuse a failure to exhaust”) (citing Ross v. Blake, 136 S. Ct. 1850, 1858 n.2 
 
1 The Court adopts the Defendant’s description of COVID-19 noted at pages 4-5 of his 
Motion. (Doc. 120). 

 
- 3 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
(2016)). Thus, the Court may not consider a defendant’s motion without proof that he 
meets this exhaustion requirement. 
b. Extraordinary and Compelling Reasons 
 The First Step Act references the sentencing commission’s policy statement for 
what should be considered as an extraordinary and compelling reason. Sentencing 
guideline section 1B1.13 n. 1 defines “extraordinary and compelling reasons” for 
compassionate release. It includes considerations of 1) whether the defendant has a serious 
advanced illness or medical condition ; 2) whether the defenda nt is at least 65 and 
experiencing physical or mental health problems due to his/her advanced age, and the 
length of time incarcerated; 3) specific family circumstances; and 4) other reasons as 
determined appropriate by the Director of the BOP. See U.S.S.G. § 1B1.13 cmt. 1(A)-(B). 
The sentencing commission has not altered its guidance since the First Step Act was 
amended, thus, courts may independently determine whether such other reasons are present 
on a case -by-case basis and without deference to the BO P. See United States v. Carter 
2020 WL 3458598, at *4 n.3, n.4 (D. Ariz. June 25, 2020) (citations omitted). 
 In considering motions for compassionate release, the Court must also “consider [ ] 
the factors set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C . § 
3582(c). Those factors include “the nature and circumstances of the offense and the history 
and characteristics of the defendant; the purposes of sentencing; the kinds of sentences 
available; the sentences and ranges established by the Sentencing Guidelines; relevant 
policy statements issued by the Sentencing Commission; the need t o avoid unwarranted 
sentencing disparities among similarly situated defendants; and the need to provide 
restitution to victims. ” United States v. Trujillo , 713 F.3d 1003, 1008 (9 th Cir. 2013). 
Therefore, the Court must find both extraordinary and compelling reasons for 
compassionate release and that the 3553(a) factors support such release. See United States 
v. Ruelas, 2020 WL 5645093, *2 (D. Ariz. Sept. 22, 2020) (citations omitted). 
III. Analysis 
a. Exhaustion of Remedies 

 
- 4 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
 The parties agree, as does the Court, that the Defendant has met the exhaustion 
requirement. See (Doc. 120 at 3; exh. A) (Doc. 122 at 6). The Court notes that in evaluating 
the Defendant’s request, the Warden used the established criteria for Home Confinement 
under the First Step Act and the Attorney General Memorandum, Prioritization of Home 
Confinement as Appropriate in Response to COVID -19 Pandemic. (Doc. 1201 -1). The 
Defendant’s medical condition was also considered in applying the evaluation criteria. (Id. 
at 1). The Warden concluded the Defendant “to be ineligible for direct home detention” 
because he did not meet the aforementioned criteria. ( Id.) Nonetheless, the Defendant 
seeks a judicial determination of whether he may be considered for compassionate release. 
b. Extraordinary and Compelling Reasons 
 Defendant’s Motion does not put forth any argument that he meets the second or 
third criteria for extraordinary and compelling reasons . Thus, the Court will not consider 
them. The Defendant urges two reasons for compassionate release: 1) he is “particularly 
vulnerable to the COVID -19 because he suffers from Hepatitis -C, obesity and malignant 
hypertension” and 2) should he become infected “he faces a very high likelihood of death 
or permanent bodily injury.” (Doc. 120 at 1-2). The Defendant acknowledges two factors 
projected to result in severe illness or death should one contract the virus: age and the 
presence of comorbidities. ( Id. at 6). Further, he argues that despite the multiple efforts 
made to curb the spread of COVID -19 within BOP facilities, generally these efforts have 
not eliminated the virus. ( Id. at 7) . He further notes that the FCI Phoenix facility has 
instituted lock-downs that include limiting detainee time outside of their cells. ( Id. at 9). 
He contends that despite these efforts, inmates are particularly susceptible to the virus , 
given the prison environment. The Government retorts that his “medical records do not 
establish any medical conditions that have b een identified by the CDC as putting him at 
higher risk for severe illness,” and even if he were otherwise eligible for relief, such relief 
“must also be denied because he remains a danger to the community.” (Doc. 122 at 7 , 
11). The Court agrees. 
 

 
- 5 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
 The medical records indicate that the Defendant is 52, has malignant and essential 
hypertension; chronic viral hepatitis C, and keratoconus.2 His most recent examinations, 
and indeed a majority of his health exams, involve examinations for keratoconus and 
dental hygiene care . In February and June 2019, he was examined related to his 
hypertension for which he was prescribed medication, and at that time, he denied any other 
medical problems. (Doc. 113 -1 at 22, 25). In May 2019, he denied having a history of 
diabetes, cardio-respiratory issues, and he refused care for his hepatitis. Regarding his 
weight, the Defendant states that “[he] is obese, but it [is] not clear to what degree.” (Doc 
120 at 10). He later urges that the medical records are not clear as to his weight. However, 
the medical record of February 2019 notes he was 194 pounds, and in June 2019, he was 
196 and the Government notes that at time of sentencing he was six feet tall. (Doc. 122 at 
9). Thus, based on this record, whether he meets the criteria for obesity remains 
questionable. 
 Considering the Defendant’s current age and health, the Court finds that he is not 
suffering from a serious physical or medical condition that warrants the extraordinary 
relief he seeks. A review of h is medical record belies his argument. First, according to 
the Centers for Disease Control and Prevention (“CDC”), adults with hypertension “might 
be” at an increased risk of severe illness from the virus. 3 Moreover, w hile the CDC 
indicates that people with liver disease “might be at higher risk for severe illness from 
COVID-19” specifically regarding those with Hepatitis C, they state “[c]urrently, we have 
no information about whether people with . . . hepatitis C are at increased risk for getting 
COVID-19 or having severe COVID-19.” Essentially, the combination of age and specific 
comorbidities may result in serious health effects should one be infected. The Court has 
reviewed the Defendant’s available medical record and can find nothing to support hi s 
 
2 Keratoconus is a correctable cornea eye condition. Keratoconus, MAYO CLINIC, 
https://www.mayoclinic.org/diseases-conditions/keratoconus/symptoms-causes/syc-
20351352 (last visited Nov. 12, 2020). 
 
3 Certain Medical Conditions and Risk for Severe COVID-19 Illness, CENTERS FOR 
DISEASE CONTROL & PREVENTION (Nov. 2, 2020), 
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last visited Nov. 12, 2020). 

 
- 6 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
contention that should he become infected “he faces a very high likelihood of death or 
permanent bodily injury.” The Defendant’s age is outside of the vulnerability factors . 
Given his refusal for treatment of his hepatitis-C diagnosis, the Court can only conclude 
that the diagnosis itself does not arise to a serious health condition. 
 The Government also asserts that overall, the BOPs aggressive efforts to protect its 
detainees has resulted in “a very low percentage of the inmate population [ ] curren tly 
confirmed positive” for COVID -19. (Doc. 122 at 4). The Government notes that the 
numbers at FCI Phoenix “are slightly better than the national average” with eight persons 
currently confirmed positive. (Id. at 4–5). As of this Order, the FCI Phoenix facility notes 
four detainees and five staff confirmed positive with thirty-five detainees having recovered 
from COVID-19.4 While the Court understands the Defendant’s concern about the virus 
and his potential contraction of it, this, and many other district courts recognize that a fear 
of infection is not an extraordinary and compelling reason that warrants compassionate 
release. See United States v. Baye 2020 WL 2857500, at *10 (D. Nev. June 2, 2020) 
(citing United States v. Mogavero 2020 WL 1853754, at *3 (D. Nev. Apr. 13, 2020) ). 
Thus, on this record, the Court finds that the two grounds upon which his motion is based 
do not arise to extraordinary and compelling reasons. Nonetheless, it will also consider 
whether he presents a present danger as asserted by the Government. 
c. The 3553(a) Factors 
 Although the Court finds that the Defendant does not meet the requisite 
extraordinary and compelling reasons based on his health, it will nonetheless consider the 
3553(a) factors. The Government contends, and the Defendant denies , that he poses a 
continuing danger. The Defendant’s argument is that he has been incarcerated for 17 years 
and the bank robbery that he committed in 2003, was committed while he was unarmed. 
(Doc. 123 at 11). The Government points out, however, that at the time he was sentenced, 
he was designated as a career offender , having committed multiple bank robberies 
beginning at age 16. (Doc. 122 at 1 –2). He has amassed three federal convictions fo r 
 
4 COVID-19 Coronavirus, FEDERAL BUREAU OF PRISONS, 
https://www.bop.gov/coronavirus/ (last visited Nov. 12, 2020). 

 
- 7 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
bank robbery for which he received sentences of seven years in 1988, seventy -three 
months for a 1997 bank robbery and two-hundred-forty months for the 2003 bank robbery. 
(Id.) At least twice, the Defendant committed bank robbery while he was on parole, pre-
trial or supervised release. (Id.) 
 The Defendant argues that he was addicted to cocaine at the time he committed the 
offenses, and that while in prison, he has completed drug classes and a rehabilitation 
program. (Doc. 123 at 11). Further, he mentions that the only prison infraction incurred 
is a fifteen-day suspension of telephone use for “phone abuse.” (Id. at 13). He also notes 
that he has paid restitution, that his father died leaving him “with a comfortable financial 
situation” and that he would reside in his mother’s home. (Id.) The Defendant states that 
his sister supports his release and his mother has been placed in a care facility in Nevada, 
thus, it is presumed that he would be living in her residence, alone. 
 Upon his release , the D efendant will be in a better p osition than those similarly 
situated. However, rehabilitation and community immersion outside of federal custody is 
trying, even under the best of circumstances. On this record, it is difficult to determine 
whether the drug classes and rehabilitation program that he completed suffice to meet the 
Defendant’s burden to show he is not a danger to the community, or himself. The nature 
and circumstances of the crime he committed are concerning. First, bank robbery is 
considered a “crime of violence” pursuant to 18 U.S.C. § 16. I t is punishable by a 
maximum statutory term of 20 years in prison. 18 U.S.C. § 2113(a). Here, the Defendant 
committed multiple bank robberies, at least ten, according to the Government. (Doc. 122 
at 2). It is noteworthy that at least three of his past bank robberies were committed while 
he was under court supervision. In addition, he continued committing the same offense 
after he had already sustained lengthy prison terms for the same acts . Moreover, at the 
time of sentencing, pursuant to the sentencing guidelines, the Defendant qualified as a 
career offender as he was in a criminal history category six. Thus, these factors weigh 
heavily against the Defendant’s early release. In sum, the Court’s analysis of the 3553(a) 
factors also militate against his compassionate release. Accordingly, 
 

 
- 8 - 
 
 
 
1 
2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 
21 
22 
23 
24 
25 
26 
27 
28 
 
IT IS ORDERED denying Defendant’s Motion for Compassionate Release (Doc. 
120). 
 Dated this 13th day of November, 2020. 
 
 
 
Honorable Diane J. Humetewa 
United States District Judge 
 
 

Passage view · GavelSight