AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

MEMORANDUM OPINION & ORDER

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE.

Pending before the Court is Defendant Luis Gerardo Degante's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Dkt. #193). The Court, having considered the motion, the response, the record, and the applicable law, finds that the motion must be DENIED.

I. Background

On April 25, 2018, Defendant Luis Gerardo Degante (“Degante”) pleaded guilty to Conspiracy to Possess with the Intent to Manufacture and Distribute Methamphetamine in violation of 21 U.S.C. § 846. The Court sentenced Degante to 340 months' imprisonment (Dkt. # 165). Degante is serving his sentence at FCI Pollock, with an anticipated release date of September 19, 2041 (Dkt. #199 at p.1).

On May 12, 2021, Degante filed his first Motion for Sentence Reduction (Dkt. #179). The Court denied his Motion for failure to exhaust administrative remedies (Dkt. #181). On January 20, 2021, Degante again moved to reduce his sentence (Dkt. #184). The Court denied this request because the statutory provisions Degante relied on were inapplicable to his case (Dkt. #186). On May 12, 2021, Degante moved for a reduction of his sentence (Dkt. #187). On August 13, 2021, the Court denied the request for failure to exhaust (Dkt. #190).

On May 27, 2022, Degante filed his latest request for sentence reduction (Dkt. #193). Degante seeks compassionate release claiming that he cannot adequately protect himself against an infection in prison, he has been forced to suffer unhealthy and strenuous hardships due to COVID-19, his family circumstances, his rehabilitation efforts, and his lack of danger to the community (Dkt. #193). The Government opposes the sentence reduction, arguing Degante has not demonstrated “extraordinary and compelling reasons,” and a sentence reduction is unwarranted based on the § 3553(a) factors (Dkt. #199).

II. Legal Standard

A judgment of conviction imposing a sentence of imprisonment “constitutes a final judgment and may not be modified by a district court except in limited circumstances.” Dillon v. United States, 560 U.S. 817, 824 (2010) (quoting 18 U.S.C. § 3582(b)); see also 18 U.S.C. § 3582(c). One such circumstance arises from 18 U.S.C. § 3582(c)(1)(A), the statute authorizing compassionate release. Under § 3582(c)(1)(A), a district court may grant a sentence reduction if it finds: (1) a defendant “fully exhausted all administrative rights”; (2) “extraordinary and compelling reasons warrant such a reduction”; (3) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission”; and (4) such a reduction is appropriate “after considering the factors set forth in § 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(1)(A).

The First Step Act of 2018 made the first major changes to compassionate release since its authorization in 1984. Pub. L. 115-391, 132 Stat. 5194. Procedurally, the First Step Act removed the Director of the BOP as the sole arbiter of compassionate release. Instead, the law enabled a defendant to move for compassionate release directly in district court after exhausting their administrative rights. 18 U.S.C. § 3582(c)(1)(A). Prior to this change, the BOP retained sole gatekeeping authority over compassionate release petitions. United States v. Brooker, 976 F.3d 228, 232 (2d Cir. 2020). This resulted in underuse and mismanagement. Id. Through the First Step Act, Congress sought to mitigate this by “increasing the use and transparency of compassionate release.” Pub. L. 115-391, 132 Stat. 5194, 5239 (capitalization omitted).

Substantively, the First Step Act also modified the “extraordinary and compelling reasons” determination. Congress never defined what constitutes “extraordinary and compelling,” but rather delegated this determination to the Sentencing Commission. By the text of § 3582(c)(1)(A), any sentence reduction must be “consistent with applicable policy statements issued by the Sentencing Commission.” However, since passage of the First Step Act, the Sentencing Commission has not updated its guidelines on compassionate release. This has created significant disagreement across the country whether the pre-First Step Act policy statement is still “applicable,” and thus binding on district courts.

The Fifth Circuit recently joined the Second, Fourth, Sixth, Seventh, and Tenth Circuits in concluding that § 1B1.13 is no longer binding on a district court. See United States v. Shkambi, 993 F.3d 388, 393 (5th Cir. 2021) (“The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue.”). Under this new framework, § 1B1.13 still binds district courts on motions made by the BOP, but, for motions made directly by an inmate, district courts are free to consider any relevant fact in determining if “extraordinary and compelling reasons” exist. See Brooker, 976 F.3d at 235-36 (because the First Step Act allows both inmates and the BOP to file compassionate-release motions under § 3582(c)(1)(A), § 1B1.13 now applies only when such motions are made by the BOP and is inapplicable when a compassionate-release motion is made by a defendant); United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (“A sentence reduction brought about by motion of a defendant, rather than the BOP, is not a reduction ‘under this policy statement.'”); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020) (agreeing with Brooker and holding that there is no “applicable” policy statement for § 3582(c)(1)(A) motions after the First Step Act); United States v. Jones, 980 F.3d 1098, 1109 (6th Cir. 2020) (“Until 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 justifies compassionate release”).

Despite this newfound discretion, district courts are not without guidance in determining whether “extraordinary and compelling reasons” exist. First, Congress has explicitly limited that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason. 28 U.S.C. § 994(t) (emphasis added). Second, the Sentencing Commission's policy statement and commentary is still persuasive. United States v. Logan, No. 97-CR-0099(3), 2021 WL 1221481 (D. Minn., Apr. 1, 2021) (finding that § 1B1.13's definition of “extraordinary and compelling” should be afforded “substantial deference . . . as such deference is consistent with the intent (even if not mandated by the letter) of § 3582(c)(1)(A)”). Application Note 1 of the policy statement provides that “extraordinary and compelling reasons” exist when: (1) a terminal illness or other medical condition “substantially diminishes the ability of the defendant to provide self- care within the environment of a correctional facility”; (2) a defendant, who is at least 65 years old, “is experiencing a serious deterioration in physical or mental health because of the aging process” and “has served at least 10 years or 75 percent of his or her term of imprisonment”; and (3) a defendant has minor children without a caregiver or with an incapacitated spouse or partner who needs the defendant to be the caregiver. U.S.S.G. § 1B1.13, n.1(A)-(C). Lastly, BOP Program Statement 5050.50 (“PS 5050.50”), amended after passage of the First Step Act, describes the factors BOP considers grounds for compassionate release. See PS 5050.50 ¶¶ 3-6. These grounds are similar to the reasons identified by the Sentencing Commission, but also include a list of factors like rehabilitation and circumstances of the offense. Id.

Building from this guidance, district courts across the country have identified additional situations where “extraordinary and compelling reasons” exist. First, while rehabilitation alone is not an “extraordinary and compelling” reason for a sentence reduction, it can be a significant factor warranting a sentence reduction when an inmate has an otherwise qualifying condition. See United States v. Rodriguez, 451 F.Supp.3d 392, 405 (E.D. Pa. 2020) (noting that the Sentencing Commission itself interpreted § 3582(c)(1)(A) as allowing consideration of an inmate's rehabilitation). If an inmate demonstrates a long, comprehensive record of rehabilitation, it goes to whether injustice would result if they remain incarcerated. See Brooker, 976 F.3d at 238 (identifying “the injustice of [a] lengthy sentence” as a factor that may weigh in favor of a sentence reduction). Second, courts consider any changes in law and the sentencing guidelines when determining if a sentence is extraordinary. For example, courts grant compassionate release at a remarkable rate for inmates subject to the now abolished § 924(c) sentence-stacking. See McCoy, 981 F.3d at 285 (“As the court observed in Bryant, multiple district courts have concluded that the severity of a § 924(c) sentence, combined with the enormous disparity between that sentence and the sentence a defendant would receive today, can constitute an “extraordinary and compelling” reason for relief under § 3582(c)(1)(A)”). Though Congress did not retroactively eliminate § 924(c) sentence-stacking, courts consider whether the outdated policy warrants relief on a case-by-case basis. See id.

Even if extraordinary and compelling reasons exist, they must outweigh the 18 U.S.C. § 3553(a) factors to warrant sentence reduction. See 18 U.S.C. § 3582(c)(1)(A). These factors are:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and sentencing range [provided for in the U.S.S.G.] . . .

(5) any pertinent [Sentencing Commission] policy statement . . .

(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and

(7) the need to provide restitution to any victims of the offense.

III. Discussion

Degante moves for compassionate release based on health concerns related to the COVID-19 pandemic (Dkt. #193 at p. 6). Further, Degante contends that his family circumstances warrant his release (Dkt. #193). For example, he states that he needs to help provide financial stability because his mother suffers from cancer and a brain aneurysm, and the family is struggling with taking care of his children (Dkt. #193). In response, the Government argues Degante is not eligible for compassionate release because he is not at risk, he has limited medical needs, and his family circumstances do not rise to the level of “extraordinary and compelling” (Dkt. #199).

Although Degante has met § 3582(c)(1)(A)'s exhaustion requirement, he has not met the statute's requirement that “extraordinary and compelling reasons” exist warranting a reduction of his sentence. Degante's motion, therefore, must be denied.

A. Degante Has Met Section 3582(c)(1)(A)'s Exhaustion Requirement.

Degante's compassionate release motion may only be considered if he first meets § 3582(c)(1)(A)'s exhaustion requirement. Courts may not consider a modification to a defendant's sentence under § 3582(c)(1)(A)(i) unless a motion for such a modification is properly made by the Director of the BOP or by a defendant who has fully exhausted their administrative remedies. 18 U.S.C. § 3582(c)(1)(A). Fully exhausting administrative remedies requires a denial by the warden of a defendant's facility or waiting thirty days without receiving a response to a request. Id.

Section 3582(c)(1)(A)'s exhaustion requirement is not waivable. See United States v. Rivas, 833 Fed.Appx. 556, 558 (5th Cir. 2020) (“Because the statutory language is mandatory-that a prisoner must exhaust their BOP remedy before filing in district court-we must enforce this procedural rule . . .”); United States v. Reeves, No. 18-00294, 2020 WL 1816496, at *2 (W.D. La. Apr. 9, 2020) (“While the Court is well aware of the effects the Covid-19 pandemic . . . § 3582(c)(1)(A) does not provide this Court with the equitable authority to excuse Reeves' failure to exhaust his administrative remedies or to waive the 30-day waiting period.”). If a defendant has not sought relief from the BOP, or has not waited thirty days since seeking relief, the Court may not consider their motion.

On April 25, 2022, Degante asked the warden at FCI Pollock to grant his compassionate release (Dkt. #193 at p. 4). The Warden did not respond to the request (Dkt. # 193 at p. 4). Thus, more than thirty days have passed since he made this request. Degante has, therefore, met § 3582(c)(1)(A)'s exhaustion requirement.

B. Degante Has Not Met Section 3582(c)(1)(A)'s Requirement that “Extraordinary and Compelling Reasons” Warrant a Sentence Reduction.

Degante's request for sentence reduction turns on his assertions that (1) the health risks to him associated with COVID-19 constitute extraordinary and compelling reasons to reduce his sentence; and (2) that his children's and mother's need for financial support constitute extraordinary and compelling reasons to reduce his sentence. Degante's assertion fails because his circumstances are not severe enough to constitute “extraordinary and compelling reasons” under § 3582(c)(1)(A)(i).

The Court has discretion to decide whether Degante's conditions present “extraordinary and compelling reasons” warranting a sentence reduction. See Shkambi, 993 F.3d at 393. The Court is not bound by the Sentencing Commission's policy statement and may consider any relevant facts in evaluating Degante's condition of incarceration. Id. Typically, courts consider whether a defendant suffers from a serious health condition, has a record of rehabilitation, the nature and circumstances of defendant's offense, and whether a sentence is based on outdated law. See Brooker, 976 F.3d at 238.

Rehabilitation alone cannot support a claim for sentence reduction but may be considered as a factor in evaluating “extraordinary and compelling reasons.” See Brooker, 976 F.3d at 23738; United States v. Hudec, No. 4:91-1-1, 2020 WL 4925675, at *5 (S.D. Tex. Aug. 20, 2020). Here, Degante has successfully completed numerous adult education courses and programs during his incarceration (Dkt. #193 at p. 8). However, Degante was disciplined by the BOP three times in 2020 for refusing work assignments (Dkt. #199 at p. 2). Accordingly, his rehabilitative efforts do not favor early release.

When considering if a defendant's health condition supports compassionate release, the mere existence of COVID-19 in society cannot independently justify a sentence reduction. See United States v. Miller, No. 2:17-CR-015-D, 2020 WL 2514887, *2 (N.D. Tex. May 15, 2020) (citing United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020)). For a defendant to be granted compassionate release based on COVID-19, defendant must have a serious comorbidity and evidence the facility is not effectively controlling the spread of the virus. See United States v. Vasquez, No. CR 2:18-1282-S-1, 2020 WL 3000709, at *3 (S.D. Tex. June 2, 2020) (“General concerns about the spread of COVID-19 or the mere fear of contracting an illness in prison are insufficient grounds to establish the extraordinary and compelling reasons necessary to reduce a sentence.”).

In the instant case, Degante fails to show any health conditions that warrant compassionate release. Degante is not subject to a terminal illness. Degante's conditions do not substantially diminish his ability to provide self-care in prison, and Degante's health appears stable at this time. Indeed, BOP records indicate he is a Care Level 1 prisoner, meaning he is a generally healthy outpatient who requires clinician evaluations every six to twelve months (Dkt. #199 at p. 15). Thus, his medical and mental health conditions can be managed through routine care. His age of 33 also does not support compassionate release.

Additionally, Degante's records also indicate he has received two doses of the Pfizer-BioNTech vaccine for COVID-19 on April 26, 2021, and May 17, 2021, respectively, which similarly precludes his eligibility for compassionate release (Dkt. # 199, Exhibit C). See United States v. Smith, 2021 WL 364636, at *2 (E.D. Mich. Feb. 3, 2021) (“absent some shift in the scientific consensus, Defendant's vaccination against COVID-19 precludes the argument that his susceptibility to the disease is ‘extraordinary and compelling' for purposes of § 3582(c)(1)(A)”); United States v. Grummer, 2021 WL 568782, at *2 (S.D. Cal. Feb. 16, 2021) (denying compassionate release to defendant with several chronic medical conditions when defendant had been fully vaccinated).

Next, Degante's family circumstances do not warrant his release. When considering family circumstances sufficient to grant sentence reduction, the United States Sentencing Guidelines state that reduction should only be granted after the “death or incapacitation of the caregiver of the defendant's minor child or minor children” or after the “incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.” U.S.S.G. § 1B1.13, n.1(C). First, as to Degante's claims about his children, Degante acknowledged that his father, brother, sister, and two half-brothers live in close proximity to his mother and children (Dkt. #199 at p. 13). Further, Degante's wish to provide love and financial support for his children does not amount to “extraordinary and compelling” reasons. See United States v. Mount, No. 4:14-CR-28(20), 2021 WL 185309, at *4 (E.D. Tex. Jan. 19, 2021) (denying compassionate release for a father wishing to support children financially and be a good role model).

Second, though Degante contends he should be released to provide financial support for his mother and children, courts in this circuit have repeatedly held that caring for a sick and/or aging parent is not a qualifying “family circumstance” under U.S.S.G. § 1B1.13(1)(A). United States v. Latham, No. 6:18-CR-16-4, 2020 WL 4192920, at *3 (S.D. Tex. July 20, 2020); United States v. Caldwell, No. 2:17-CR-774, 2020 WL 3250728, at *2 (S.D. Tex. June 16, 2020); see also United States v. Ingram, 2019 WL 3162305, at *2 (S.D. Ohio Jul. 16, 2019) (denying compassionate release to defendant to care for ill mother because “[m]any, if not all inmates, have aging and sick parents. Such circumstance is not extraordinary.”). Further, while a few courts have expanded this language to include instances when the parents of a defendant can no longer care for themselves, see United States v. Nevers, No. CR 16-88, 2020 WL 3077034, at *6 (E.D. La. June 10, 2020), these courts have recognized this exception otherwise only applies if the terminal parent has no other potential family member who could provide the needed care. See United States v. Hudec, No. CR 4:91- 1- 1, 2020 WL 4925675, at *5 (S.D. Tex. Aug. 19, 2020). Here, Degante has offered no support for his statement that he is in desperate need of providing financial support for his family. Further, Degante has not provided evidence of his mother's health conditions or her incapability to provide for his children. Thus, while the Court recognizes the needs of Degante's family members and is sympathetic, the limited exceptions allowing for sentence reduction based on family circumstances are not applicable in this case.

Weighing the evidence, Degante fails to prove that his incarceration is “extraordinary and compelling” under § 3582(c)(1)(A)(i) framework. See United States v. Stowe, No. CR H-11-803(2), 2019 WL 4673725, at *2 (S.D. Tex. Sept. 25, 2019) (citation omitted) (stating that the defendant generally “has the burden to show circumstances meeting the test for compassionate release”).* * *

Under the rule of finality, federal courts may not “modify a term of imprisonment once it has been imposed” unless one of a few “narrow exceptions” applies. Freeman v. United States, 564 U.S. 522, 526 (2011) (citing 18 U.S.C. § 3582(c)) (plurality op.); see also Dillon, 560 U.S. at 819 (same). Compassionate release is one of those exceptions, but a defendant must conform both to the procedural and substantive requirements of § 3582(c)(1)(A) for a court to modify a sentence. Because Degante has failed to meet the controlling requirements for compassionate release set forth in § 3582(c)(1)(A)(i), his Motion must be denied.

IV. Conclusion

It is therefore ORDERED that Defendant Luis Gerardo Degante's Motion for Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i) (Dkt. #193) is DENIED.