The Motion



                                   No. 07-CR-0354 (JSR)
    MONZER AL-KASSAR,                     
                                  MEMORANDUM OF LAW


    Monzer Al-Kassar, by undersigned counsel, moves this Court pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, for a modification of his sentence based on extraordinary and compelling reasons, that is, advanced age and debilitating illness.
    The current Covid19 epidemic poses an additional extraordinary and compelling reason to release Mr. Al-Kassar and other elderly, ill inmates who are at great risk of death if exposed to the virus. The virus has already reached at least two federal prisons (in New Hampshire and Florida) - soon it may be too late for Mr. Al-Kassar and many inmates at high risk from the virus. See  HYPERLINK ""

        Mr. Al-Kassar has been incarcerated in connection with this case for nearly thirteen years, since his arrest in Spain in June 2007.  Mr. Al-Kassar was extradited to the United States in June, 2008, convicted after trial in November, 2008, and sentenced to 360 months in February, 2009. He is not due to be released until July 25, 2033, at which point he, if still alive, will be 88 years old.
        Mr. Al-Kassar is currently 74 years old, and suffers from several serious and chronic medical conditions, as described below – they include spinal stenosis which has significantly compromised his ability to function in prison, as well as diabetes with polyneuropathy, hypertension and hyperlipidemia. It is submitted that he meets the United States Sentencing Commission criteria for “extraordinary and compelling circumstances” set for in USSG 1B1.13 comment n 1 (B) based on “Age of the Defendant.” He also meets the USSG 1B1.13 comment n 1 (A) criteria based on “Medical Condition of the Defendant.”
        Moreover, Mr. Al-Kassar does not pose a danger to anyone’s safety, and the 18 USC 3553(a) factors also support a reduction in sentence. Several people have written compelling letters requesting that the Court grant this motion because continued incarceration would be unduly harsh.
    Jurisdiction and Authority to Act
    Mr. Al-Kassar is presently incarcerated, under BOP Register Number 61111-054, at the Communications Management Unit at USP Marion. On July 1, 2019, he requested of the Warden that the Bureau seek his release under § 3582(c)(1)(A)(i). The Warden denied this request on August 8, 2019. (Mr. Al-Kassar’s Application and the Warden’s Denial are attached at Exhibit “A”) Well more than 30 days have elapsed since the Warden received Mr. Al-Kassar’s request. Accordingly, this Court is empowered under § 3582(c)(1)(A) to act on the defendant’s own motion.  
    Mr. Al-Kassar is Eligible for Release Under 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act, and the Criteria Set Forth in USSG 1B1.13

        The governing statute directs the Court to first determine if there are “extraordinary and compelling reasons” consistent with policy Statements by the Sentencing Commission; to determine whether the defendant poses a “danger to the safety of any other person or the community” as set forth in 18 USC 3142(g); and finally to grant the motion if the factors set forth in section 3553(a) do not require its denial. 18 USC 3582(c); 18 USCS Appx 1B1.13; United States v. Ebbers, 2020 US Dist. LEXIS 3746 (SDNY 2020.)
    The Commission’s policy statement, USSG § 1B1.13, contains two different provisions under which Mr. Al-Kassar is eligible for sentence modification: Medical Condition of the Defendant (1B1.13, Application Note 1[A] and Age of the Defendant (1B1.13, Application Note 1[B]). Application Note 1(A) provides:
    “(A) Medical Condition of the Defendant.
       (ii) The defendant is -
         (III) experiencing deteriorating physical or mental health because of the aging process, that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
        Application Note 1(B) – Age of the Defendant – provides:
        (B) Age of the Defendant. The 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.”

        As already noted, Mr. Al-Kassar is presently 74 years of age and has served nearly 13 years of his 30 year term, and thus certainly meets two of the three criteria set forth in the Age of the Defendant section.
        Medical Records and Report of Bryan Kurtz. M.D.
    In addition, Monzer Al-Kassar has been experiencing a serious deterioration of his physical health as a result of aging in several different ways. His medical records show several chronic conditions. (Medical Records attached as Exhibit “B”) The Clinical Encounter from 2/7/19 documented the following conditions. (Exhibit “B: at 1)
    DIABETES, for which he takes Metformin and Glipizide;
    HYPERLIPIDEMIA, for which he takes aspirin and Atorvastin;
    DIABETIC NEUROPATHY, for which he takes Amitriptyline;
    HYPERTENSION, for which he takes Amlodipine, Lisinopril  
                         [also used for back pain], Propanolol and HCTZ            

    ORTHO/ Low back pain. An MRI showed DJD (degenerative  
               Joint disease), facet disease, disc protrusion, and stenosis. This
               condition has been worsening and the pain has been bad in the
               back and also spreading down the right leg. He has also been
               having significant pain in his right palm with difficulty making
               a fist.

    Mr. Al-Kassar was given permission to have and use a cane on 5/23/18. (Exhibit “B” at 6) All of the above conditions are chronic and he is dependent on medication to try to control them.
    Over the past few years Monzer Al-Kassar has been suffering the most from the back and leg pain caused by his degenerative joint disease, disc protrusion and related stenosis. The defense consulted with Dr. Bryan Kurtz, who wrote a Report which mainly focused on these conditions, as they are what is making life in prison the most difficult for Mr. Al-Kassar. (Report attached as Exhibit “C”) Dr. Kurtz’ CV is attached at Exhibit “C” at 8-10)
    Dr. Kurtz is experienced in internal medicine and emergency medicine, and previously served as the director of a small nursing home, so he is accustomed to evaluating functional disability with regard to the environment. (Exhibit “C” at 1)
    Dr. Kurtz reviewed the records the defense was able to obtain, and found that Mr. Al-Kassar’s conditions were chronic, related to the aging process, and that they diminished his ability to function in a prison environment. (Exhibit “C” at 5) Dr. Kurtz also found that the conditions were unlikely to improve with conventional therapy. (Exhibit “C” at 5)
    Dr. Kurtz’ findings show that Monzer Al-Kassar is eligible for compassionate release under the “Medical Condition of the Defendant” criteria in 1B1.13, Application Note 1(A.) His findings also would clearly apply to the lesser medical requirements contained in 1B1.13, Application Note 1(B) (“Age of the Defendant”), which simply require a serious deterioration in physical health due to the aging process. It is submitted that the five different chronic conditions listed above meet that criterion, without even considering the extent to which the back problems are making life very painful and difficult for Mr. A-Kassar.
    In the Report, Dr. Kurtz discussed the back issues based on the medical records he reviewed. (Exhibit “C” at 1-4) He noted that the chronic back pain was first documented in 2013. (Exhibit “C” at 2) At that point Mr. Al-Kassar had pain radiating down his left leg. (Exhibit “C” at 2)
    Dr. Kurtz said that films of the lumbar spine taken 4/13/18 showed multilevel degenerative disc disease which was moderate to severe at L3-L5. (Exhibit “C” at 2) It was around that time that Mr. Al-Kassar began experiencing pain in his lower right leg. (Exhibit “C” at 2)
    Dr. Kurtz then said that a month later, on 5/23/18, the pain in the back and right leg had gotten a lot worse. (Exhibit “C” at 3) Mr. Al-Kassar was given predisone which, along with use of a cane, seemed to help, but he had to stop the prednisone because it interfered with his glucose levels. (Exhibit “C” at 3) An MRI done on 7/23/18 showed additional multilevel degenerative disc disease at L2-S1 (higher than it had been in the earlier film) with associated spinal stenosis and bilateral neural foraminal compromise. (Exhibit “C” at 3)
    By 8/6/19 the pain had gotten even worse, and Mr. Al-Kassar had more trouble walking, and was requesting some sort of intervention, something he had been apprehensive about in the past. (Exhibit “C” at 3; discussions with client.) On 10/25/19 he was evaluated by a surgical consultant, and he said he had been buckling to the knees and falling lately. (Exhibit “C” at 3) He was unable to stand on one leg, something he had been able to do previously. (Exhibit “C” at 3) On 12/9/19 he had a physical therapy evaluation, and later received some pillows, which have provided a little relief. (Exhibit “C” at 3; discussions with client)
    A CT of the lumbar spine taken 12/9/19 showed some herniation and degenerative changes at L4, and severe left and moderate right neural foraminal stenosis at L5-S1. (Exhibit “C” at 3-4) There was stenosis throughout the lumbar spine, with additional moderate to severe stenosis at L3-L4. (Exhibit “C” at 4) Dr. Kurtz noted that compared to the result from the year before, this showed the degenerative disease had worsened at L3-S1. (Exhibit “C” at 4)
    Dr. Kurtz also noted that he received information from Mr. Al-Kassar, via undersigned counsel, in which he discussed how hard it is for him to walk to the mess hall, bend to pick things up, and how he needs assistance cleaning his cell, and with some other daily activities. (Exhibit “C” at 4)
    In his Conclusion, Dr. Kurtz discussed how, though it is hard to document pain with an MRI, the MRI findings do corroborate Mr. Al-Kassar’s reported pain and disability, and his reports of greater pain and disability are corroborated by the worsening scans over time. (Exhibit “C” at 4-5) Dr. Kurtz stated:
        “Given that the spinal levels involved with neural foraminal compromise and central canal stenosis would be associated with weakness of hip, knee and ankle flexion as well as the pain syndrome described, I can state with a reasonable degree of medical certainty that the criteria put forth for reduction in sentence based on medical review are met.
        These criteria include the presence of a serious or chronic medical condition related to the aging process that diminishes the ability to function in a correctional facility. It follows that as a result of his condition, Mr. Al-Kassar’s ability to perform the instrumental activities of daily living – particularly those activities which require significant mobility and flexibility such as cleaning his cell and ambulating to the mess hall – would be compromised.
        This is corroborated by Mr. Al-Kassar’s self-reported situation as well as by the history documented in his surgical evaluation. He is reported in this evaluation as being unable to stand for more than ten minutes, sit for more than ½ hour, and only being able to walk with crutches or a cane….
        I can conclude based on my review of the records, the relevant medical literature, and my years of experience, that there is a low probability that he would receive substantial long-term benefits from conventional medical treatments.” Exhibit “C” at 5-6)
    Based on Dr. Kurtz’s findings, it is submitted that Monzer Al-Kassar meets the USSC 1B1.13 criteria stated above for “Medical Condition of the Defendant.” As stated above, if he meets those criteria, Mr. Al-Kassar certainly meets the less stringent criteria set forth under “Age of the Defendant.”
    Therefore, Monzer Al-Kassar requests that this Court find that he meets either or both of the above criteria and is eligible for compassionate release. As noted above in Footnote 1, further medical documentation could be obtained if necessary, and the most efficient way to do that is if the government makes the request. In addition, if the Court wishes to have a hearing, Dr. Kurtz is willing to testify.

    The Denial by the Bureau of Prisons was not Based on the Same Criteria Utilized by the Court and was Erroneous in Any Event
    The governing statute does not call upon the Court to give any weight or consideration to the Bureau of Prisons’ denial of the inmate’s request. And the criteria used by BOP is not the same as that set forth in USSG 1B1.13, though it is similar to the criteria under “Medical Condition of the Defendant.” But even with regard to the BOP criteria, the reasons for rejecting Mr. Al-Kassar’s application are not supported by the medical records.
    The BOP criteria for Elderly Inmates with Medical Conditions state that the elderly inmate must be “experiencing deteriorating mental or physical health that substantially diminishes their ability to function in a correctional setting.” (Warden’s Denial, attached as Exhibit “A” at 2) The Warden stated that Mr. Al-Kassar’s conditions did not “substantially diminish [his] ability to function in a correctional setting.” (Exhibit “A” at 2)
    The Warden also provided Mr. Al-Kassar with a Reduction in Sentence Medical Review document which did concede that he suffers from a chronic progressive illness (diabetes) but that his prognosis was good, and his life expectancy was not said to be less than 18 months. (Exhibit “A” at 4) Despite the fact that he believed he had prostate cancer, Mr. Al-Kassar made no claim that he had less than 18 months to live, and the determination was not based on a terminal diagnosis, so that statement was not relevant.
    The document also claimed that conventional treatment could provide substantial improvement – it did not mention which condition(s) this was referring to, or what treatment. (Exhibit “A” at 4) As to the severe back problems, this contradicts Dr. Kutz’ findings – he determined that conventional treatment was not likely to provide substantial improvement. (Exhibit “C” at 6) As to his other conditions, while the diabetes, diabetic neuropathy, hypertension and hyperlipidemia are kept under control for now through medication, there is no indication that conventional treatment will provide any substantial improvements.
    Moreover, Dr. Kurtz also found that Mr. Al-Kassar’s ability to function in the prison environment – particularly his ability to walk where needed, to clean his cell, and other daily living activities, was compromised by his condition. (Exhibit “C” at 5) Dr. Kurtz noted that the “Instrumental Activities of Daily Living” referred to on the BOP document were more relevant to “the more debilitated elderly population in a nursing facility” rather than the general correctional population. (Exhibit “C” at 5)
    Therefore, it is submitted that Mr. Al-Kassar does meet the BOP criteria for Elderly Inmates with Medical Conditions, but regardless, those are not the criteria utilized by the Court. As set forth above, Mr. Al-Kassar meets the criteria set forth in 1B1.13 and is eligible for compassionate release.
    In United States v. Modica, 2020 US Dist. LEXIS 37483 (SDCA 2020) the court very recently granted released to a 77 year-old man serving a life sentence whose medical condition was similar to Monzer Al-Kassar’s, and who was also mistreated in prison. The Modica court stated:
        “Before passage of the FSA, the Sentencing Commission limited ‘extraordinary and compelling reasons’ to four scenarios…One of those scenarios applies here. Specifically, 1B1.13 cmt n. 1(B) provides that ‘extraordinary and compelling reasons’ exist where a 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….
        Defendant meets these criteria. He is 77 years old and he has served at least 10 years of his term of imprisonment. He also has a well-documented history of serious deterioration in physical and mental health which is age-related. He is enrolled in a general chronic care clinic, and presents several age-related conditions, including ‘benign prostatic hypertrophy,’ ‘mild-to-moderate degenerative disc disease,’ and ‘some decrease in memory.’ He was placed on suicide watch in December, 2018, after being assaulted. … These facts are not disputed, and are sufficient to show Defendant is experiencing serious deterioration in physical and mental health because f the aging process. Defendant has therefore presented extraordinary and compelling reasons in support of his motion.” Modica, supra, at 6-9.
        Similarly, in United States v. Cantu-Rivera, 2019 US Dist. LEXIS 105271 (SDTX 2019), the court also found that the defendant was eligible under the “Age of Defendant” criteria (and granted the motion), stating, at 3:
        “Mr. Cantu-Rivera meets the age-related definition of extraordinary and compelling circumstances in USSG 1B1.13, comment (n.1(B)). He is 69 years old, he is experiencing serious deterioration in physical health because of the aging process (arthritic conditions in multiple joints, cataracts, diabetes, prostate conditions), and he has served 30 years in prison.”
        Monzer Al-Kassar has even more serious chronic health conditions than the defendants in Modica and Cantu-Rivera – he has diabetes, diabetic neuropathy, hypertension, hyperlipidemia, and his severe degenerative disc disease, which has made things very difficult for him. Mr. Al-Kassar was also assaulted in prison twice, albeit years ago. More recently, as discussed below, in 2016, he was placed in a “hot box” in FCI Terre Haute, which subjected him to extreme heat causing him to pass out, and also subjected him to extreme noise, which has caused hearing problems.
        Like the Modica and Cantu-Rivera defendants, based on his age, time served and his several chronic health conditions, Monzer Al-Kassar meets the criteria for “extraordinary and compelling reasons” set forth in 1B1.13.
    Letters of Support
    Several people have written letters in support of release for Monzer Al-Kassar. Add Stavis letter Spanish Attorney Sara Martinez Lumbreras wrote about Mr. Al-Kassar’s condition seven years ago when she visited him, and how much worse it must be now, stating:
        “…I met Mr. Al-Kassar 30 years ago, and I have dealt with him both professionally and also as a friend. …
        …[T]he most important thing now is to get a reduction of Monzer’s sentence because he is suffering in a terrible way. I went to visit him 7 years ago in South Carolina (FCI Estill) and even then I could see with my eyes how he has changed. He lost a lot of weight and he looked much older. I can only imagine how he looks now.
        For more than 10 years he wasn’t able to have any visits from his family. Monzer lost two brothers and a sister during this time. His son and three daughters have never been able to visit him. I think this has been even more difficult for him than his long sentence.
        Monzer has had excellent behavior in prison. …He is very old now and has problems with his back, which are very painful, and this makes it so he can’t exercise. He also has problems with his blood sugar, and has high blood pressure as well.
        Please try to have some charity for someone who will be 80 years [old] soon. … He doesn’t have connections with any terrorist groups. He only wants to go home to be with his family…”  (Exhibit “D” at 1)

        Monzer Al-Kassar’s wife, Raghdaa Habbal, and four adult children, who currently live in Spain, wrote a group letter about how hard it has been not to even be able to visit him, and how much they want for him to be released to Syria, stating:
        “…We would like to speak …about … [what] we are facing for the past 12 years without Monzer Alkassar, a husband, a wonderful dad. …My daughter Monawar Alkassar, the eldest daughter, is facing a melancholic depression due to the shock of his arrest and now facing mental illness for not seeing her dad [for] 11 years, her situation is critical. … We haven’t seen him for 11 years and we have tried to get American visas… the American Embassy has not given us a real answer… Haiffa and myself Raghdaa tried to go … in 2009 to go to his trial … we got detained in Newark airport for three days, we weren’t treated well… We… are now speaking out because we know he is sick and [we] would like to see him in his last days… We know he has a cane, has eyesight problems and has trouble walking… …[H]e is 75 years old and still has another 15 years to go which we doubt he will live for that long… We as a family are asking you to have mercy on us and try to help us bring him home to his beloved country Syria… …[W]e are suffering without him, we believe a person should always get a second chance in life… He has lost a lot of family members during the 12 years… …[S]peaking to him for 15 mins twice a week is very stressful and when he does not call we all panic… this is not the way to live life…” (Exhibit “D” at 2)
    Mr. Al-Kassar’s former employee, Assuman Munyantore Nyampeta, wrote about how well he treated him, and how much he and his family are suffering, stating:
        “I was [the] chief employee for Alkassar’s family for 17 years till the day of his arrest. I became like a family member.
        Mr. Monzer Alkassar treated me and his [other] employees with dignity, love and pride. … His hands [were] always being extended to the poor, and, the ones who needed help. He was a real man for his family and others!
        His wife and his great children … [have] suffered and [are] still suffering a lot of mental and physical problems, from prohibiting them to enter the U.S.A. to visit him. …[H]is health [has been] deteriorating … in the last few years. Now, he is walking with a cane and has so many serious illness[es] for an old man of 75.
        I ask you from the heart of my heart to consider giving him a second change… for him to be able to see his loved ones and to live with his family [for] whatever time [he has] left…” (Exhibit “D” at 3)
    The Smolders family of the Netherlands, who became close to Mr. Al-Kassar when they lived in Spain, wrote that they had been able to visit him recently, and were upset to see his condition, stating:
        “…We have … known Alkassar and his great family for many years.  Alkassar is a real Gentleman, … respected by the Spanish people for his kindness, help to poor people, and for many other human aspects. …
        Last month (July 2019) we came … for one week to visit him after we heard of his serious health issue, when his direct family was not allowed to visit him for the last 12 years… …We were choked and sad to see him with very bad health issue, and not being able to walk and supported by cane.
        …He remained steadfast, morally, with all the suffering and hard conditions… adding the loss of two brothers and two sisters during his incarceration [and] his great children, who are suffering and worried for not seeing him again. We trust in God and your compassion for Alkassar [so he] could spend whatever days he has left with his family.” (Exhibit “D” at 4)

        Reginald Falice also wrote in support of his friend, Monzer Al-Kassar, stating:
        “…I’ve known Al Kassar for more than several years now. …RECIDIVISM will not be an issue, with him.
        …Al Kassar has earned a rightful access to whatever benefit(s) offered by … Congress [the First Step Act.]
        Al Kassar is over 74 … with medical conditions which prove debilitating… Kassar relies on support of a cane. Complicating his wellness are disorders with high blood pressure, diabetes…
        May the reader(s) of these words move .. to provide a redemption to one deserving of relief…” (Exhibit “D” at 5)

        Dr. Kees Jan Kuilwijk, an attorney who took an interest in Mr. Al-Kassar’s case, wrote a lengthy letter in support of release, which gave his opinion on the underlying case, as well as discussing Mr. Al-Kassar’s family. He stated:
        “I am writing as a friend of Mr. Assuman Munyantore… Through him, I became aware of Mr. Al-Kassar’s legal troubles. As an attorney, I took a professional interest in the case.
        By way of introduction, I was a partner at a US law firm, Steptoe & Johnson for well over a decade. During those years… I was involved in a number of cases in which you have been asked to render judgment, for example Motorola Credit Corp. v. Uzan. It is a small world indeed. In that particular case, I was asked… to chase Uzan assets in Europe that were bought with Motorola money.
        I guess Mr. Al-Kassar’s case has worked its way through the cogs and gears of the legal system, and that he has no appeals left. At this time, it is essentially a case about human rights, in the broad sense of the term.
        …I understand Mr. Al-Kassar’s request is mainly based on medical … changes in his situation.
        Arms brokers merely organize and facilitate transfers in military equipment. They do not manufacture arms and they do not use them…
        In February of this year, CNN reported that Saudi Arabia and its coalition partners have transferred American-made weapons to Al Qaeda-linked fighters, Salafi militias, and other factions…Some of America’s ‘beautiful military equipment,’ as President Donald Trump once called it, has been, ‘passed on, sold, stolen or abandoned in Yemen’s state of chaos…’
        In his first year in office, President Trump has earnestly played the role of salesman-in-chief for United States arms manufacturers….
        Mr. Al-Kassar … has been attacked and tortured several times; while awaiting his extradition to the U.S. in Spain and also in a U.S. prison. His own family is not allowed to visit him.
        …The visitation restriction imposed upon Mr. Al-Kassar’s family is a cruel and unusual confinement condition…
        …When a judge and jury send a man to prison, they punish more people than just one; people who are clearly innocent of any crime.
        Mr. Al-Kassar’s incarceration has affected his family in an enormous way. It has basically destroyed their lives. One of his daughters is suffering from serious mental issues because of it. …
        At this point in time, Mr. Al-Kassar’s case is about whether the sentence which was handed down is (still) just in light of his deteriorating health and whether there might be compelling reasons to release him.
        The media often portrays Mr. Al-Kassar in a negative light… However the stories I know.. paint a different picture. For instance, I am deeply involved in the Rwandan community, my wife is Rwandan Tutsi and a genocide survivor. I have encountered so many people in this community who have benefitted from Mr. Al-Kassar’s efforts to obtain a visa for them to be able to stay and work in Spain. …
        I respectfully ask you to grant Mr. Al-Kassar’s request for compassionate release. …” (Exhibit “D” at ??, emphasis supplied; see also Exhibit “B” at 32-33, medical records where Mr. Al-Kassar discusses being attacked in Spain and in the US prison.)    
        Gail Gray, one of Mr. Al-Kassar’s attorneys, wrote a letter in 2016 about his having been held in a “hot box” at FCI Terre Haute, where he suffered from extreme heat, causing him to faint, and causing his mental state to deteriorate greatly. She stated:
        “I saw Monzer on Thursday, 27 October 2016. I was shocked.
        I did not recognize him. He was not the same man I had visited… just a few months ago. Now he is gaunt and pale with bags under his eyes and looks to have lost at least 20 pounds….
        He reported a tiny, windowless concrete cell, blisteringly hot from deliberate proximity to prison heat pipes and a floor so hot he couldn’t stand. …He recalled fainting and, upon waking, praying to stay alive long enough to see his loved ones once more…
        In addition to box torture, Monzer was subjected to earsplitting sound torture, another practice that causes suicide, severe sleep deprivation, and unrelenting disruption of sensory perception…
        When Monzer was finally removed from the isolation chamber at FCI Terre Haute, he was shackled and transported to Marion in a box barely big enough to contain the chair he sat in. …By the time he arrived he couldn’t even state his own name or stand without assistance. …
        The deliberate and prolonged proximity to the sweltering heat pipes and the deafening noise of the prison generators has compromised Monzer’s long-term health. His hearing, his sight, and his balance are all impaired…” (Exhibit “D” at ?; see also Exhibit “B” at 31, where this incident was mentioned.)
    Finally, Isabelle Coutant Peyre, another of Mr. Al-Kassar’s attorneys, also wrote in support of his release, stating:
        “Being one of Mr. Monzer Al-Kassar’s attorney[s], registered in Paris bar and specializ[ing] in international law… I write…regarding the extraordinary and compelling reasons for reducing the sentence of my client.
        I knew Mr. Monzer Al Kassar for many years. I was his lawyer [opposing] his extradition to the U.S.A. and for being tortured in Spain before being sent to America. Since then, I had been following his case and …I am aware of the ‘New First Act for Reduction of Sentence’.
        He is 75 years old now, spent more than 12 years in prison, and his health is very bad… I am aware he suffers …because of …several discs degenerations… [and] severe diabetes…
        I ask you to consider giving him a second chance to live his [remaining] time with his loved ones who [were] stopped from visiting him for the last 12 years. …” (Exhibit “D” at ?)
    Prison Record and Environment
    Monzer Al-Kassar has an excellent record – he has successfully completed a multitude of programs and classes over the years and his disciplinary record, while not completely clean over the years, shows no recent infractions. (2019 Male Custody Classification Form and Individualized Reentry Plan – Program Review, attached as Exhibit “E.”)
    Mr. Al-Kassar successfully completed at least thirty classes over the years, including human language; European Civilization; Persian; nutrition; infectious diseases; Health and many more. (Exhibit “E” at 2) He also served as a tutor in the English Department at FCI Terre Haute. (Exhibit “E” at 4)
    The Reentry Plan noted that Mr. Al Kassar was a chronic care case, with a medical hold and other medical restrictions. (Exhibit “E” at 3)
    While undersigned counsel has not been able to obtain all of the relevant records, upon information and belief, he hasn’t had any disciplinary violations since 2016, and the 2016 charge only involved him giving another inmate some commissary supplies.
    As noted above, Mr. Al-Kassar’s time in prison has been very difficult for him. He was assaulted after his arrest in Spain; assaulted again after arriving here in 2008; and then he suffered greatly from being placed in the “hot box” isolation unit at FCI Terre Haute in 2016.
    Even worse, unlike most inmates, he has not been able to see any of his immediate family for the past 12 years. Monzer’s wife and children have never been able to visit him because they could not obtain US visas to do so. This has been heartbreaking both for him and for them, and has contributed to his eldest daughter’s serious mental illness.
    Finally, given the current Covid19 outbreak, Mr. Al-Kassar is at great risk due to his incarceration. It is unfortunately probably only a matter of time until the virus spreads within many or all prisons – as of mid-March, it has already been detected in two federal prisons, as well as several state prisons and county jails. Given Mr. Al-Kassar’s age and serious medical problems, his likelihood of surviving the virus, should he contract it, is much lower than for the general population.
    Mr. Al-Kassar Poses no Danger
    USSG 1B1.13(2) states that the court must find that the defendant “is not a danger to the safety of any other person or to the community, as provided in 18 USC 3142(g).” 18 USC 3142(g) contains three factors for the court to consider in this regard: “1) the nature and circumstances of the offense charged; 2) the history and characteristics of the person, including character, physical and mental condition, family ties, employment, financial resources, past conduct, criminal history and drug and alcohol abuse; and 3) the nature and seriousness of the danger to any person or to the community that release would impose.”
    In Modica, supra, the court found that defendant did not present a danger despite some concerns in that regard, stating:
        “1. Nature and Circumstances of the Offense Charged
        …While defendant’s statement to the government informant about ‘wanting to kill’ another informant is of concern… Defendant has no history of committing … acts of violence. …The nature and circumstances of the offense charged do not reveal a propensity for violence or danger to others.
        2. History and Characteristics of the Person
        …While he is a repeat offender, his time in prison is characterized by many years of counseling and coursework designed for self-improvement, general education and vocational training. …
        Defendant has numerous family ties, including family members who will provide for him. …
        3. Nature and Seriousness of Danger Posed by Release
        …Defendant’s health has declined significantly, as discussed. …Defendant will either be removed to Mexico or paroled into the United States – where family awaits in both locations. …
        On balance, the foregoing factors weigh heavily in favor of Defendant. The Court finds Defendant is not a danger to the safety of any person or to the community upon release.” Modica, supra, at 10-13

        In Spears, supra, the court likewise found the defendant didn’t pose a danger to the community, despite his extensive (and violent) criminal history, and his having possessed guns as part of a large drug conspiracy. The court stated:
        “The government argues that Spears in a danger because the crime of conviction was a large drug conspiracy, he possessed guns during the drug conspiracy, … he was investigated in 1978 for tax evasion and offered a man $500 to burn down an IRS agent’s home in the evening… and was then convicted of conspiracy to commit murder, for which he was sentenced to 25 years, he was convicted in 1990 (after being released early from the sentence for the murder conspiracy conviction) of possession of a controlled substance, and after he was released he became part of the instant drug conspiracy. The government argues that Spears’ age and medical condition do not render him ‘so incapacitated’ that he could not resume his former criminal conduct. The government notes that when Spears was in his fifties, he was a leader of a major drug conspiracy.
        The Court recognizes that the underlying offense involved controlled substances of great volume… The Court further considers Spears’ past violent conduct… The Court also considers, however, that Spears most recent controlled substance conviction is more than 19 years old… The Court also acknowledges the significant family and community support awaiting Spears if he is released.
        In light of the age of Spears’ previous convictions, Spears’ age [76] and Spears’ physical and mental condition, the Court does not find that at this time Spears poses a significant risk to the community.” Spears, supra, at 12-14, emphasis supplied.

    Similarly, in Fai, supra, the court stated:

        “The Court is persuaded that Mr. Wong does not present a danger to the community in his current state, and that any conceivable danger would be easily mitigated by supervision conditions. First, Mr. Wong is frail, he requires a walker and can barely eat on his own. … Second, any remote possibility of dangerousness will be further diminished because Mr. Wong will be released to the custody of his family. …” Fai, supra, at 10
    In contrast to the defendants in Modica and Spears, Mr. Al-Kassar has no criminal history (see PSR, Page 24.) Unlike the defendants in all three of those cases (Mondica, Spears and Fai) Mr. Al-Kassar was never involved in violent acts or threats of violence. He was an arms dealer caught in a DEA sting operation and convicted of trying to sell arms to the FARC, which was at that time a designated foreign terrorist organization. As stated by this Court, his goal was to make money, not to support terrorism.
    At this point, like the defendants in the above cases, Mr. Al-Kassar is elderly and frail, and simply wants to be with his family for his remaining years. He will be deported to Syria where, upon information and belief, he will be joined by his wife and children, who have been suffering without him, and who are very worried about his health. This Court should find that he does not pose a danger to the safety of any person or to the community.
    The 18 USC 3553(a) Factors Support Release
    Consideration of the applicable factors from 18 U.S.C. §
     3553(a), as also required by § 3582(c)(1)(A), leads to the conclusion that reduction at this time of Mr. Al-Kassar’s term of imprisonment to the time already served is warranted. In short:
        (a) The “characteristics of the defendant,” § 3553(a)(1), now include his painful and incurable medical conditions.
        (b) Service of nearly 13 years imprisonment fully reflects the seriousness of the offense, and satisfies the need to provide just punishment and to afford adequate deterrence, particularly because service of a sentence while suffering physical pain and other ailments inflicts more punishment in a shorter period of time. In United States v. McGraw, 2019 US Dist. LEXIS 78370 (SDIN 2019), the court stated, at 15-16:
         “…Mr. McGraw has served much of his sentence while seriously ill and in physical discomfort. This means that his sentence has been significantly more laborious than that served by most inmates.”
    In addition, Mr. Al-Kassar’s time incarcerated was made even more difficult by the fact that he was assaulted twice, and mistreated by being placed in the torturous “hotbox” in 2016.  He also suffered greatly by not being able to see his wife or children for the past 12 years.
        (c) Being 74 years old, Mr. Al-Kassar’s age places him in the class of prisoners least likely to recidivate. USSC, The Effects of Aging on Recidivism Among Federal Offenders (Dec. 2017), available at  HYPERLINK ""; United States v. Modica, supra, at 15. His physical condition makes any recidivism very unlikely. Moreover, he will be deported to Syria upon release. Based on these circumstances, the need to protect the public from further crimes is fully addressed.
        (d) Consideration of providing needed medical care in the most effective manner suggests release rather than continued incarceration. This is particularly true at this time when prisoners are at great risk from the coronavirus. The virus has already reached federal prisons (thus far in New Hampshire and Tallahassee) and if Mr. Al-Kassar is exposed to it, his risk of death is very high, given his age and medical conditions. For this reason alone, he and many other elderly and ill inmates should be released.
       (e) Given all the facts and circumstances discussed herein, particularly the fact that he is not likely to survive the full 30 year sentence, a reduction in sentence is not inconsistent with the need to avoid unwarranted sentencing disparities. As stated in United States v. Bellamy, 2019 US Dist. LEXIS 124219 (DMN 2019), at 19, “…any disparity resulting from a reduced sentence is not unwarranted given the special circumstances he faces in prison as a result of his health and age.”
       (f) Finally, upon consideration of the overall statutory command that all sentences, while sufficient to achieve the objectives identified in subsection (a)(2), are not “greater than necessary,” 18 U.S.C. § 3553(a), the sentence of imprisonment in this case should be reduced to time served for extraordinary and compelling reasons, allowing Mr. Al-Kassar to be deported to Syria. See McGraw, supra, at 16 (stating that based on the defendant’s age and health considerations, further incarceration would be greater than necessary.)
    Other Cases Where Compassionate Release was Recently Granted
    In addition to the cases cited above, where the motions for release were granted, there are many other recent cases where courts have granted compassionate release applications based on age and medical conditions. United States v. Ebbers, 2020 US Dist. LEXIS 3746 (SDNY 2020); United States v. Gray, 2019 WL 4572816 (SDIN 2020); United States v. York, 2019 US Dist. LEXIS 119768 (EDTN 2019); United States v. Beck, 2019 US Dist. LEXIS 108542 (MDNC 2019); United States v. Johns, 2019 US Dist. LEXIS 107850 (DAZ 2019); United States v. Karr, 2020 US Dist. LEXIS 27149 (EDKY 2020); United States v. Sotelo, 2019 US Dist. LEXIS 135051 (EDPA 2019); United States v. Schmitt, 2020 US Dist. LEXIS 2832 (NDIA 2020); United States v. Gasich, 2019 WL 4261614 (NDIN 2019); United States v. Wolcott, 2:08-cr-00013 (MDTN 2020.)


    For the foregoing reasons, this Court should reduce Monzer Al-Kassar’s sentence to time served based on extraordinary and compelling reasons of age and health. Alternatively, the Court could grant a reduction in the term of imprisonment without granting immediate release, as occurred in United States v. Urkevich, 2019 US Dist. LEXIS 197408 (DNE 2019) although that would still leave him at great risk from the coronavirus.
    Dated: March ?, 2020
                        Respectfully submitted,
                        Kathy Manley
                        KATHY MANLEY
                        Attorney for Monzer Al-Kassar
                        NDNY Bar Roll No. 105730
                        26 Dinmore Road
                        Selkirk, NY 12158
                        (518) 635-4005 (phone and fax)


     Counsel ordered medical records via FOIA but has yet to obtain them. The records attached here are those which Mr. Al-Kassar was able to obtain, and are not comprehensive. If more records are needed, it is likely that the United States Attorney will be able to obtain them from BOP more expeditiously, and then they could be reviewed by Dr. Bryan Kurtz, the expert retained by the defense.
     Neural foraminal compromise refers to compression of a spinal nerve as it leaves the spinal canal through the foramen (the opening between the vertebrae through which spinal nerve roots travel and exit to other parts of the body.)
     Back in 2008, it was suspected Mr. Al-Kassar may have prostate cancer, but he declined an exam to find out more. Thus it is not clear whether he has this cancer or not. (Exhibit “B” at 30)