United States v. Bikundi

• Court: District Court, District of Columbia
• Decided: January 25, 2021
• Docket: Criminal No. 2014-0030
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA

v. Criminal Action No. 14-30-1 (BAH) FLORENCE BIKUNDI, Chief Judge Beryl A. Howell Defendant.

MEMORANDUM AND ORDER

Pending before the Court is defendant Florence Bikundi’s pro se Motion for

Reconsideration of Compassionate Release Due to New Evidence (“Def.’s Mot.”), ECF No. 659.

Defendant’s Motion for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(A), ECF No.

653, was denied, on September 14, 2020, because defendant did not demonstrate that a reduction

in her sentence was warranted upon consideration of the requisite factors in 18 U.S.C. § 3553(a).

Memorandum Opinion & Order (“Mem. & Order”) at 8, 11, ECF No. 658. Defendant now

moves for reconsideration on two grounds: first, that the Court erred in determining that

defendant made a misrepresentation in the request for sentence reduction form filed with the

facility in which she is incarcerated and, second, that worsening COVID-19 conditions at her

facility warrant compassionate release. Neither ground warrants reconsideration.

In resolving motions for compassionate release under 18 U.S.C. § 3852(c)(1)(A), the

court may reduce a term of imprisonment only “after considering the factors set forth in [18

U.S.C. §] 3553(a) to the extent that they are applicable,” id., and upon making two findings: first,

that “extraordinary and compelling reasons warrant such a reduction,” id. § 3582(c)(1)(A)(i);

and, second, “that such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission,” id. § 3582(c)(1)(A)(ii). The applicable policy statement set out in

1 U.S.S.G. § 1B1.13, like the statutory requirements, provides that a reduction of a term of

imprisonment may be warranted, “after considering the factors set forth in 18 U.S.C. § 3553(a),

to the extent that they are applicable,” id., and when “extraordinary and compelling reasons

warrant the reduction,” U.S.S.G. § 1B1.13(1)(A). The policy statement also requires a

determination that “the defendant is not a danger to the safety of any other person or the

community.” U.S.S.G. § 1B1.13(2). The government conceded in its briefing on defendant’s

motion for compassionate release that defendant’s medical condition presented an extraordinary

and compelling reason for a reduction, but nonetheless no reduction was determined to be

appropriate in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). Mem. & Order at

8-10. Thus, defendant’s motion for compassionate release was denied. Id. at 11.

As to defendant’s first argument for reconsideration, she contends that the government

misstated, and the Court misinterpreted, what was written in the Request for Reduction In

Sentence (“RIS”) form she completed and submitted to the Warden of the Federal Correctional

Institution at Hazelton (“FCI Hazelton”), Def.’s Mot. at 5, and that the denial of her motion for

compassionate release was in part predicated on this misstatement. Specifically, the RIS form

poses the following four straight-forward questions under “1. Proposed Release Plan”: “Where

will you reside and with whom?”; “How will you support yourself?”; “Where will you receive

medical treatment?”; and “How will you pay for medical treatment?” Gov’t’s Opp’n to Def.’s

Mot. for Compassionate Release, Ex. C at 3, ECF No. 656-3. In response to the second

question—“[h]ow will you support yourself?”—defendant answered, “I am a [r]egistered nurse

by profession with lots of experience. I also have a BA background from the University of

Maryland, College Park. I have lots of family members as well (doctors, pharmacists, nurses,

etc.).” Id.

2 Defendant says that her response to this question was not meant to indicate she planned

to work as a nurse, but rather that she would, if released, be able to ensure that her medical needs

were met. Def.’s Mot. at 4. She strains to read the second question as a “financial question”

about “how inmates would pay for medical expenses if released from prison,” id., explaining that

her response ‘was that [her] son and other family member had pledged to help [her] financially,”

id. This is revisionist history. Defendant’s response clearly indicates that she would support

herself as a registered nurse if she were released, and defendant is not licensed as a nurse in any

jurisdiction. As the Court has previously noted, “lying about [her nursing credentials] is what

resulted in her exclusion from participation in any federal health care program and thus underlies

her conviction in this case.” Mem. & Order at 9 (citing United States v. Bikundi, Crim. Case No.

14-30 (BAH), 2016 WL 912169, at *4 (D.D.C. Mar. 7, 2016)). Defendant made a similar

argument regarding the government’s interpretation of this statement in her initial motion for

compassionate release, which the Court rejected. Mem. & Order at 9 n.5. Defendant presents no

compelling reason to doubt that she made a misrepresentation on the form, which the Court

properly considered in considering the 18 U.S.C. § 3553(a) factors.

Second, defendant alleges that a failure to take appropriate precautions to prevent the

spread of COVID-19 has led to worsening conditions and an increase in the number of COVID-

19 cases at FCI Hazelton, which puts her at greater risk. Def.’s Mot. at 5–7. According to

defendant, inmates have not recently been provided with hand sanitizer, soap, or new masks, and

that weekly temperature checks were stopped. Id. at 7. She further alleges that many of the

guards do not wear masks. Id. Defendant believes that she is at heightened risk from the virus

because she “experienc[ing] rapid heart palpitations.” Id. at 8. The government responds by

emphasizing the steps taken by the Warden at FCI Hazelton to help ensure inmate safety,

3 including suspension of out-of-cell time, as well as “mandatory screening and temperature

checks for any inmate released from a housing unit[] and ordered meals to be served in the

housing units.” Gov’t’s Opp’n to Def.’s Mot. for Reconsideration (“Gov’t’s Opp’n”) at 6-7,

ECF No. 662. The government indicates that as of December 18, 2020, 24 inmates (out of over

1600) and 5 staff members had tested positive for COVID-19 at FCI Hazelton, Gov’t’s Opp’n at

7, though the website cited by the government now states that 162 inmates and 70 staff have

tested positive for the virus to date, COVID-19 Cases, Federal Bureau of Prisons,

http://www.bop.gov/coronavirus/ (last visited Jan. 22, 2021).

The Court does not take the risks posed by COVID-19 lightly, and the rising number of

COVID-19 cases at FCI Hazelton is troubling and may indicate, as defendant suggests, lax

enforcement of safety protocols to reduce the risk of viral transmission. Even assuming that

worsening conditions at FCI Hazelton present a heightened risk to defendant, however,

compassionate release would not be warranted. The § 3553(a) sentencing factors weigh heavily

against a reduced sentence given defendant’s role as “‘the prime moving force behind’ a fraud

that bilked the District of Columbia’s Medicaid program out of over $80 million.” Mem. &

Order at 8 (quoting Sentencing Hr’g Tr. at 168:22–23, ECF No. 563). Furthermore, “defendant

was already given a significant departure from her guidelines-recommended sentence of 360

months to life imprisonment.” Id. at 9. Reducing her already heavily-reduced sentence further

“would not adequately reflect the seriousness of defendant’s crime.” Id.; see also 18 U.S.C.

§ 3553(a)(2)(A).

Defendant has not introduced any new evidence demonstrating that a reduction in her

sentence to a comparatively short period of home confinement is warranted upon consideration

of the factors in 18 U.S.C. § 3553(a) and U.S.S.G. § 1B1.13. Accordingly, it is hereby

4 ORDERED that defendant’s Motion for Reconsideration of Compassionate Release Due

to New Evidence, ECF No. 659, is DENIED.

SO ORDERED.

Date: January 25, 2021

__________________________ BERYL A. HOWELL Chief Judge