Opinion
2:15-cr-00124-KJM
10-12-2022
United States of America, Plaintiff, v. Epati Malauulu, Defendant.
ORDER
Defendant Epati Malauulu, now acting without counsel, has renewed his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). The government opposes the motion, which is fully briefed and submitted. See generally Mot., ECF No. 309; Opp'n, ECF No. 314; Replies, ECF Nos. 318, 319.
Mr. Malauulu concedes he has been vaccinated against COVID-19. Mot. at 7, ECF No. 309. If a defendant is vaccinated, this court has employed a rebuttable presumption that the risk of severe harm from COVID-19 is not an “extraordinary and compelling” reason to reduce a sentence under § 3582(c)(1)(A)(i). United States v. Smith, 538 F.Supp.3d 990, 999 (E.D. Cal. May 11, 2021). A defendant can rebut this presumption by offering evidence of an elevated personal risk of severe harm despite the protections of vaccination. Id.; see also United States v. Peel, No. 14-00192, 2021 WL 2875658, at *3 (E.D. Cal. July 8, 2021). Evidence of such an elevated personal risk might include judicially noticeable information published by public health authorities, expert opinions, and scientific studies. See Smith, 538 F.Supp.3d at 996-97.
Mr. Malauulu has not shown that he faces such an increased personal risk. He refers only generally to the likelihood that the protections of a vaccine will wane over time, that vaccines might not be as effective against some coronavirus variants, and that people may suffer “long-haul” symptoms. See, e.g., Mot. at 7; Reply at 1-2, ECF No. 319.
The motion (ECF No. 309) is denied without prejudice to renewal with evidence of an elevated personal risk or severe harm despite the protections of vaccination, in addition to the other prerequisites of 18 U.S.C. § 3582(c)(1)(A).
IT IS SO ORDERED.