govinfo:USCOURTS-kywd-5_18-cr-00038-0

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF KENTUCKY 
PADUCAH DIVISION 

 
UNITED STATES OF AMERICA PLAINTIFF 
 
v. 
 
JOSHUA TRENZELL FOX DEFENDANT 
 
MEMORANDUM OPINION AND ORDER 
 
This matter is before the Court upon Defendant Joshua Fox’s (“Fox”) pro se Motion for 
Compassionate Release. [DN 54]. Fox then filed a supplement to that motion. [DN 55]. The 
government responded [DN 58] and then filed a sealed document. [DN 60]. As such, this matter 
is ripe for adjudication. For the reasons that follow, IT IS HEREBY ORDERED that Fox’s 
Motion for Compassionate Release [DN 54] is DENIED. 
I. Background 
Fox was indicted on nine counts of possession with the intent to distribute 
methamphetamine on September 11, 2018. [DN 1]. On September 5, 2019, Fox pleaded guilty to 
all nine counts. [DN 33]. He was subsequently sentenced to 150 months imprisonment. [DN 46]. 
Fox now seeks compassionate release due to the Covid-19 pandemic. 
II. Legal Standard 
“The First Step Act modified the statute co ncerning the compassionate release of federal 
prisoners, 18 U.S.C. § 3852, such that district courts may entertain motions filed by incarcerated 
defendants seeking to reduce their sentences.” United States of America v. D -1 Duwane Hayes , 
No. 16-20491, 2020 WL 7767946, at *1 (E.D. Mich. Dec. 30, 2020) (citing United States v. Jones, 
980 F.3d 1098, 1100 (6th Cir. 2020)). “Now, an imprisoned person may file a motion for 
compassionate release after (1) exhausting the BOP's adm inistrative process; or (2) thirty days PageID #:
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after the warden received the compassionate release request —whichever is earlier.” Jones, 980 
F.3d at 1105 (citing First Step Act of 2018, Pub. L. 115 -391, Title VI, § 603(b), 132 Stat. 5194, 
5239; 18 U.S.C. § 3582(c)(1)(A) (2020)). 
In considering a compassionate release motion under 18 U.S.C. § 3582(c)(1)(A), a district 
court must proceed through three steps of analysis. United States v. Elias, No. 20-3654, 2021 WL 
50169, at *1 (6th Cir. Jan. 6, 2021) (citing Jones, 980 F.3d at 1101). At step one, “the court must 
‘find’ that ‘extraordinary and compelling reasons warrant a sentence reduction.’” Id. (citing Jones, 
980 F.3d at 1101). In step two, the court must “ensure ‘that such a reduction is consistent with 
applicable policy statements issued by the Sentencing Commission.’” Id. (citing Jones, 980 F.3d 
at 1101). Although the Sentencing Commission's policy statement on reductions in terms of 
imprisonment under 18 U.S.C. § 3582(c)(1)(A) is recited at U.S.S.G. § 1B1.13, “the Commission 
has not updated § 1B1.13 since the First Step Act's passage in December 2018 ... [and] the policy 
statement does not wholly survive the First Step Act's promulgation.” Jones, 980 F.3d at 1109 
(citing U.S.S.G. § 1B1.13 (U.S. Sent'g Comm'n 2018 )). Consequently, the Sixth Circuit in Jones 
decided that “[u]ntil the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, 
district courts have full discretion in the interim to determine whether an ‘extraordinary and 
compelling’ reason j ustifies compassionate release when an imprisoned person files a § 
3582(c)(1)(A) motion.” Id. Thus, for now, district courts need not ensure that their ideas of 
extraordinary and compelling reasons for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A) 
are consistent with the Sentencing Commission's idea of extraordinary and compelling reasons for 
a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A) as currently reflected at U.S.S.G. § 
1B1.13. PageID #:
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Despite the Sixth Circuit's holding in Jones, this Court agrees with the United States 
District Court for the Eastern District of Kentucky in stating that “[w]hile the policy statement 
found in U.S.S.G. § 1B1.13 of the Sentencing Guidelines is not binding, it provides a useful 
starting point to determine whether extraordinary and compelling reasons exist.” United States v. 
Muncy, No. 6: 07-090-DCR, 2020 WL 7774903, at *1 (E.D. Ky. Dec. 30, 2020). The application 
notes to § 1B1.13 provide that extraordinary and compelling reasons for a reduction in terms of 
imprisonment include certain medical conditions, age of the defendant, family circumstances, and 
other reasons as determined by the Bureau of Prisons. U.S.S.G. § 1B1.13 cmt. n.1. Specific medical 
conditions of a defendant constituting extraordinary and compelling reasons for a reduction in 
terms of imprisonment may include “terminal illness,” “a serious physical or medical condition,” 
“a serious functional or cognitive impairment,” or “deteriorating physical or mental health because 
of the aging process.” Id. The application note to U.S.S.G. § 1B1.13 further provides that the age 
of a defendant may be a necessary and compelling reason for a reduction in terms of imprisonment 
when “[t]he defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in 
physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 
percent of his or her term of imprisonment, whichever is less.” Id. 
After considering whether extraordinary and compelling reasons warrant a sentence 
reduction the district court proceeds to the final step of the analysis. If a reduction is warranted the 
court is to consider whether that reduction is defensible under the circumstances of the case by 
considering any relevant factors of 18 U.S.C. § 3553(a). Elias, 2021 WL 50169, at *1 (citing Jones, 
980 F.3d at 1101); Jones, 980 F.3d at 1108. 
III. Discussion 
A. Exhaustion of Remedies PageID #:
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“Federal law has long authorized courts to reduce the sentences of federal prisoners facing 
extraordinary health conditions and other serious hardships, but only under very limited 
circumstances.” United States v. Beck, 425 F.Supp.3d 573, 577 (M.D.N.C. June 28, 2019). Under 
the First Step Act, courts are now permitted to “consider motions by defendants for compassionate 
release without a motion” by the BOP Director “so long as the defendant has asked the Director to 
bring such a motion and the Director fails to or refuses.” Marshall, 2020 WL 114437, at *1 (W.D. 
Ky. Jan. 9, 2020) . Here, Fox requested compassionate release from the warden. Warden Gomez 
denied Fox’s request in October of 2020. [DN 55 -1 at PageID 332]. Fox filed his motion on 
January 14, 2021 and has therefore exhausted his administrative remedies. 
B. Extraordinary and Compelling Reasons 
Fox argues his various medical conditions constitute extraordinary and compelling reasons 
for his release in light of the Covid-19 pandemic. The government argues the fear of contracting 
Covid-19 is not enough to satisfy the extraordinary and compelling reasons standard. 
Fox’s medical records support his claim that he suffers from hypertension, type 2 diabetes, 
asthma, sleep apnea, and high cholesterol. [See generally DNs 54-2; 60]. The Centers for Disease 
Control (“CDC”) states those with hypertension and asthma may be at an increased risk for severe 
illness.1 Those with type 2 diabetes are at a greater risk. 2 There is no indication that sleep apnea 
and high cholesterol increase any risk of experiencing severe Covid-19 symptoms. 
Fox does not argue the prison has not managed his medical conditions . According to his 
medical records, Fox has been seen several times by medical providers throughout this pandemic. 
 
1Centers for Disease Control, People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/people-with-medical-
conditions.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019 -ncov%2Fneed-
extra-precautions%2Fgroups-at-higher-risk.html (last accessed February 16, 2021). 
2 Id. PageID #:
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[DN 60]. His conditions appear to be well managed. Fox only argues the prison has failed to control 
the spread of the virus. At this time, USP McCreary, where Fox is located, has six positive inmates 
and fifteen positive staff members.3 Although the virus is present, there is no widespread outbreak 
at USP McCreary. The Court does recognize that Fox is at a higher risk for experiencing severe 
effects if he contracts Covid -19. However, due to the small number of positi ve cases and the 
prison’s ability to manage Fox’s medical conditions, extraordinary and compelling reasons are not 
present. Therefore, the Court must deny Fox’s motion. Even if Fox showed extraordinary and 
compelling reasons, he would not be entitled to release sue to the sentencing factors. 
C. 18 U.S.C. § 3553(a) Factors 
In the present case, Fox was found to possess a total converted drug weight of 19,147.80 
kg of methamphetamine. [DN 42 at 9]. Fox has a criminal record dating back to 2006. [Id. at 11]. 
His prior convictions range from possession of marijuana to trafficking cocaine and assault. [Id. at 
11-15]. In denying Fox’s request for compassionate release, the warden noted Fox’s “high 
recidivism risk score and history of violence.” [DN 55-1 at PageID 332]. Due to Fox’s risk score, 
his release would not comport with the sentencing factors. Therefore, th e Court must deny Fox’s 
motion. 
 
 
 
 
 
 
 
3 BOP, Coronavirus https://www.bop.gov/coronavirus/ (last accessed February 19, 2021). PageID #:
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IV. Conclusion 
For the above stated reasons, IT IS HEREBY ORDERED that Fox’s Motion for 
Compassionate Release [DN 54] is DENIED. 
IT IS SO ORDERED. 
 
 
 
 
 
 
 
 
cc: Joshua Trenzell Fox 
 19486-033 
 USP McCreary 
 Inmate Mail/Parcels 
 P.O Box 3000 
 Pine Knot, KY 42635 
 PRO SE 
March 3, 2021 PageID #:
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