United States v. KILKEARYUnited States v. KILKEARY
WIGENTON, District Judge.
Before this Court is pro se1 Defendant David B. Kilkeary‘s (“Defendant“) Motion for Compassionate Release under the First Step Act (“FSA“),
I. BACKGROUND AND PROCEDURAL HISTORY
For a more detailed overview of the facts, the parties may refer to the Third Circuit‘s opinion addressing Defendant‘s sentencing appeal. United States v. Kilkeary, 410 F. App‘x 554, 555-57 (3d Cir. 2011).2
On August 19, 2009, Defendant pleaded guilty to one count of willfully threatening to cause harm to persons and property by conveying false information concerning the use of an
Defendant has been in continuous custody since his arrest on November 14, 2007,5 and has an expected release date of July 30, 2029. (PSR at 1 (noting Defendant has been in custody since his arrest)); D.E. 54 at 2.)
On December 7, 2024, Defendant submitted a compassionate release request to the warden of Federal Correctional Institution (“FCI“) Victorville. Defendant did not receive a response from the warden within thirty days, and consistent with the FSA‘s administrative exhaustion requirement,6 submitted the instant Motion on February 10, 2025. (D.E. 54; D.E. 54-2 at 3; D.E. 54-3 at 1.) The Government filed its opposition on July 14, 2025. (D.E. 55.)
II. LEGAL STANDARD
Although a district court generally has limited ability to modify a federally imposed sentence once it commences, the FSA permits district courts to grant compassionate releases when there exist “extraordinary and compelling reasons” to reduce a sentence. Dillon v. United States, 560 U.S. 817, 824-25 (2010);
The compassionate release statute, as amended by the FSA on December 21, 2018, states that a defendant seeking compassionate release must ask the Bureau of Prisons (“BOP“) to file a motion for a reduced sentence on his behalf.
Once the procedural prerequisites have been satisfied, a court may reduce a sentence if it “finds that the sentence reduction is (1) warranted by ‘extraordinary and compelling reasons‘; (2) ‘consistent with applicable policy statements issued by the Sentencing Commission‘; and (3) supported by the traditional sentencing factors under
The Sentencing Commission has identified categories of circumstances that may constitute extraordinary and compelling reasons, including medical conditions, age, family circumstances, and other reasons. U.S.S.G. § 1B1.13(b) (U.S. SENT‘G COMM‘N 2025). The Commission‘s April 2023 amended policy statement (“Policy Statement“) also added “[u]nusually [l]ong [s]entence” as a potential ground under § 1B1.13(b)(6). 88 Fed. Reg. at 28,254. The Supreme Court concluded, however, that this provision is inconsistent with the governing statute, reasoning that when “Congress declines to make a sentencing amendment retroactive, the fact that a preamendment sentence is longer than it would have been postamendment is not an ‘extraordinary and compelling reaso[n]’ that ‘warrant[s]’ a sentence reduction.” Rutherford, 146 S. Ct. at 1326, 1330 (alterations in original) (quoting
Additionally, a defendant‘s rehabilitation, standing alone, does not constitute an extraordinary and compelling reason for compassionate release.
III. DISCUSSION
A. Extraordinary and Compelling Reasons
Defendant has failed to present extraordinary and compelling reasons to reduce his sentence. Defendant argues that his rehabilitation efforts, the length of his sentence, and his need to financially support his sister constitute extraordinary and compelling reasons for his release. (D.E. 54-2 at 1, 3.) This Court construes these arguments as raising rehabilitation and family circumstances under § 1B1.13(b)(3), and an unusually long sentence under § 1B1.13(b)(6), respectively. Each ground will be addressed in turn.
i. Rehabilitation
Defendant cites his participation in educational services, completion of BOP programming, receipt of psychological treatment with BOP doctors, good behavior, and other ways that he has bettered himself as reasons in support of his motion for compassionate release. (See id. at 1, 3.) According to Defendant, not only has he volunteered to “share his knowledge with other inmates,”
ii. Family Circumstances
Defendant also argues that he should be released early to support his sister financially by helping her pay basic bills and the mortgage of their late parents’ home to keep the house. (D.E. 54-2 at 1.) Defendant notes that in 2024, both of his parents passed away due to age-related Alzheimer‘s and dementia. (Id.) Due to his incarceration, his sister was their parents’ full-time caretaker for over five years. (Id.) He explains that as a result of undertaking that responsibility, his sister has been out of the workforce for five years and that due to her age, she is unable to find steady income. (Id.)
The Policy Statement lists several examples of family circumstances that may be extraordinary and compelling, including the incapacitation of the defendant‘s spouse, partner, parent, minor child, or mentally/physically disabled adult child, along with “circumstances similar
Determining incapacity requires, among other things, consideration of various statements, which include verifiable medical documentation regarding the incapacitation, along with “a statement and letters of documentation that the inmate is the only family member capable of caring for the [family member], and a statement and documentation regarding the inmate‘s release plan.” United States v. Doolittle, No. 19-501, 2020 WL 4188160, at *3 (D.N.J. July 21, 2020) (alteration in original) (emphasis added). Absent such documentation, courts will deny compassionate release. See id. (explaining that where a defendant “present[s] no medical documentation or other competent evidence demonstrating that his [family members are] incapacitated,” relief will be denied). While Defendant has submitted a release plan, he has not submitted medical documentation or a statement establishing that he is his sister‘s only caregiver. (D.E. 54-2 at 1-2.) While courts have granted compassionate release in “circumstances such as caring for a close relative who is terminally ill or requires around-the-clock care and include other compelling reasons justifying the release,” here, Defendant has failed to allege facts showing that his sister is incapacitated as defined under the Policy Statement. See Doolittle, 2020 WL 4188160, at *3.
Although Defendant‘s sister‘s financial situation is unfortunate and his desire to support her honorable, “[i]t is not uncommon . . . for a criminal sentence to impose burdens, sometimes severe ones, on family members.” United States v. Dunich-Kolb, No 14-150, 2022 WL 580919, at *8 (D.N.J. Feb. 14, 2022); see also United States v. Jones, No. 13-252, 2021 WL 1060218, at *9-10 (W.D. Pa. Mar. 18, 2021) (holding that assisting his mother in her daily activities while she
Based upon the foregoing, this Court cannot find that Defendant‘s familial needs with respect to financially assisting his sister constitute extraordinary and compelling circumstances warranting his compassionate release.
iii. Unusually Long Sentence
Finally, Defendant argues that his 300-month sentence is excessively long and that the enhancements added at sentencing could now be challenged. (D.E. 54-2 at 1.) While 300 months may be a long sentence, that is not an extraordinary and compelling circumstance in and of itself. See Andrews, 12 F.4th at 260-61 (“The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.“).
Section 1B1.13(b)(6) states that a long sentence that would likely be lower under current law may create extraordinary and compelling circumstances. U.S.S.G § 1B1.13(b)(6) (U.S. SENT‘G COMM‘N 2025). U.S.S.G. § 1B1.13(b)(6) states in part:
[A] change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant‘s individualized circumstances.
Furthermore, even if Section 1B1.13(b)(6) were valid, Defendant‘s claim still fails. Defendant does not identify any changes in the law that would result in a lower sentence if one were imposed today. If sentenced today, Defendant‘s advisory guidelines would be substantially the same. The only difference would be related to Amendment 791‘s changes to financial thresholds due to inflation.8 At sentencing, Judge Sheridan applied a six-point increase to Defendant‘s offense level pursuant to Sentencing Guideline § 2B3.2(b)(2) since Defendant demanded $3 million during commission of the crime.9 (D.E. 48 at 173; PSR ¶ 66.) If sentenced today, the increase would be five points instead of six. See U.S. Sentencing Commission, Amendment 791, https://guidelines.ussc.gov/apex/r/ussc_apex/guidelinesapp/appendixc-detail?APP_AMEND_ID=791 (last accessed June 10, 2026). This does not amount to an extraordinary and compelling reason given that the one-point change would not produce a gross disparity between the sentence Defendant is currently serving and that which would be imposed if he were re-sentenced today. See United States v. Jones, 2020 WL 7640944, at *3 (E.D. Pa. Dec. 23, 2020) (holding that Amendment 791 does not present an extraordinary and compelling reason to provide relief under
Finally, Defendant states that his probation officer calculated a range of 108 to 144 months when drafting his PSR. (D.E. 54-2 at 1.) However, the PSR calculated an offense level of forty-one and criminal history category of two, which corresponded to a guideline range of 360 months to life imprisonment at the time the PSR was created. (PSR ¶¶ 86, 93, 135); U.S.S.G § 5A (U.S. SENT‘G COMN‘N 2009). The sentence imposed on Defendant was substantially lower than that recommended in the PSR. For the reasons set forth above, Defendant does not put forth any extraordinary and compelling reasons for his release.
B. 3553(a) Factors Weigh Against Defendant‘s Release
Even where extraordinary and compelling reasons are established, this Court must consider the
Defendant relies on evidence involving his completion of programming, development of new skills, psychological treatment, the need to financially support his sister, and his exceedingly long sentence. (D.E. 54-2 at 1.) Defendant asserts that he has developed a release plan and plans to seek employment as a county building inspector or work in construction. (Id. at 2.) He also claims that if he had been sentenced within his applicable Guidelines range of 188 to 235 months’
First, the facts underlying Defendant‘s sentence, considered and noted at sentencing, continue to counsel against Defendant‘s release. The sentencing court varied upwards to a 300-month sentence because Defendant‘s conduct was “very egregious” and involved many victims. (D.E. 45 at 5; D.E. 48 at 242); see
At sentencing, the psychologist testifying on behalf of Defendant opined that after his conviction for the prior bank robberies, Defendant‘s mental health treatment was inadequate, and that if he had received medication, appropriate psychotherapy, and remained monitored, the crime and the prior crimes were “not very likely to occur in the future.” (D.E. 48 at 136-38.) Notably, when asked if Defendant would need to “be medicated for the remainder of his life,” the psychologist responded: “There is no question about that.” (D.E. 48 at 138:8-11.) The psychologist‘s opinion was further echoed by Defendant‘s parents, who stated that their son “need[ed] to continue to be on medication” and “need[ed] to have psychological counseling.” (PSR ¶ 108.) His father specifically stated that he was “convinced this situation would have never happened if [Kilkeary] was on medication and under the care of a counselor.” (PSR ¶ 111.)
After considering the relevant
For the foregoing reasons, Defendant‘s Motion for Compassionate Release is DENIED.
An appropriate order follows.
/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.
Orig: Clerk
cc: Parties