Stringer v. United States ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CO-0445
BARRY L. STRINGER, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the
District of Columbia
(2005-FEL-004970)
(Hon. Julie H. Becker, Trial Judge)
(Argued February 7, 2023 Decided June 27, 2024)
Thomas T. Heslep for appellant.
Paul Maneri, with whom Samia Fam and Alice Wang, Public Defender
Service, were on the brief, for amicus curiae on behalf of appellant.
Eric Hansford, Assistant United States Attorney, with whom Matthew M.
Graves, United States Attorney and Chrisellen R. Kolb, Assistant United States
Attorney, were on the brief, for appellee.
Before EASTERLY, * DEAHL, and HOWARD, Associate Judges.
*
Associate Judge AliKhan was originally assigned to this case. Following
her appointment to the U.S. District Court for the District of Columbia, effective
December 12, 2023, Associate Judge Easterly has been assigned to take her place on
the panel.
2
HOWARD, Associate Judge: In this appeal, we are asked to explain what
qualifies an incarcerated person as “acute[ly] vulnerab[le]” to severe medical
complications or death from COVID-19 under the District of Columbia’s
compassionate release statute. See D.C. Code § 24-403.04(a)(3)(B)(iii). Following
our 2021 remand order 1 in this matter and an evidentiary hearing, the trial court
denied appellant Barry Stringer’s 2 motion for compassionate release. On appeal,
Mr. Stringer argues that the trial court erred in concluding that his “diabetes, obesity,
high blood pressure, and high cholesterol” do not establish his “acute vulnerability
to severe medical complications or death as a result of COVID-19.” For the reasons
set forth below, we deny Mr. Stringer’s request and affirm the trial court’s decision.
I. Legal Framework
Under the District of Columbia’s compassionate release statute, a court “shall
modify a term of imprisonment” if an incarcerated person can satisfy two
requirements by a preponderance of evidence: non-dangerousness and eligibility
1
See Stringer v. United States, No. 21-CO-0132 (D.C. June 24, 2021)
(Judgment). The mandate issued forthwith.
2
Barry Stringer, across multiple appeals and proceedings at the trial court, has
alternately been referred to as Barry L. Stringer and Barry D. Stringer.
3
under the terms of the statute. Colbert v. United States, 310 A.3d 608, 610 (D.C.
2024) (quoting D.C. Code § 24-403.04(a)). Those requirements, as relevant to this
case, include that the movant is (1) “not a danger to the safety of any other person
or the community,” 3 and (2) “eligible for release, which generally requires [the
movant] to show that they suffer an acute vulnerability to severe medical
complications or death as a result of COVID-19[.]” Id. (internal quotations omitted).
To demonstrate eligibility, an incarcerated person may show that they satisfy
one of two “primary examples,” Autrey v. United States, 264 A.3d 653, 656 (D.C.
2021), including either: having a “terminal illness” or being “60 years of age or older
and ha[ving] served at least 20 years in prison,” D.C. Code § 24-403.04(a)(1)-(2); or
satisfying something akin to (in the trial court’s discretion) “four ‘other’ illustrative
examples in a catch-all provision,” Autrey, 264 A.3d at 656 (quoting D.C. Code
§ 24-403.04(a)(1)-(3)). That catch-all provision reads, in pertinent part:
(3) Other extraordinary and compelling reasons warrant
such a modification, including:
. . . (B) Elderly age, defined as a defendant who:
3
To satisfy the dangerousness requirement, an individual must show that the
individual is “not a danger to the safety of any other person or the community” based
on factors from 18 U.S.C. §§ 3142(g) and 3553(a) and “evidence of the defendant’s
rehabilitation while incarcerated.” D.C. Code § 24-403.04(a).
4
(i) Is 60 years of age or older;
(ii) Has served the lesser of 15 years or 75% of the
defendant’s sentence; and
(iii) Suffers from a chronic or serious medical
condition related to the aging process or that causes
an acute vulnerability to severe medical
complications or death as a result of COVID-
19; . . . .
D.C. Code § 24-403.04(a)(3)(A)-(B). Despite the terms of Section
24-403.04(a)(3)(B)(iii), “trial courts have generally concluded that under the
‘catch[-]all provision, a D.C. prisoner can demonstrate eligibility for compassionate
release by showing that they are at risk for severe illness from COVID-19, regardless
of age or time served.’” Colbert, 310 A.3d at 612 n.1 (quoting Page v. United States,
254 A.3d 1129, 1133 (D.C. 2021) (Easterly, J., dissenting)).
To show a risk of severe illness or death from COVID-19, an incarcerated
person who has been vaccinated 4 must offer more than “unsubstantiated claims.”
4
In Colbert v. United States, we clarified that like an incarcerated person who
has been vaccinated and remains acutely vulnerable to COVID-19, an unvaccinated
incarcerated person:
may likewise be eligible for release if (1) they had a
compelling reason to refuse the vaccine, such as an
inability to benefit from it or if the vaccine itself posed a
5
Autrey, 264 A.3d at 659. Rather, an incarcerated person “must show” that they
remain “acutely vulnerable to those outcomes despite being vaccinated,” and “must
do so by a preponderance of the evidence.” Id. (internal quotation marks omitted).
II. Factual and Procedural Background
In June 2003, police found the body of Tilford Johnson in the driver’s seat of
a vehicle parked in an alley in southeast D.C. Stringer v. United States, No. 06-CF-
1515, Mem. Op. & J. at 1 (D.C. July 20, 2009); see also Stringer v. United States,
301 A.3d 1218, 1220 (D.C. 2023) (same). Following a jury trial, Mr. Stringer was
found guilty of murdering Mr. Johnson. A jury convicted Mr. Stringer of felony
murder, armed robbery, second-degree murder, and three related firearm counts.
Stringer, Mem. Op. & J. at 3-4. The trial court sentenced Mr. Stringer to an
aggregate term of thirty-six years in prison. On direct appeal, we affirmed
Mr. Stringer’s convictions, but remanded for the merger of certain offenses and
resentencing. Stringer, Mem. Op. & J. at 6. After merger, the trial court imposed
meaningful risk to them, or (2) they would remain acutely
vulnerable to severe medical complications or death as a
result of COVID-19 even had they vaccinated.
310 A.3d at 613.
6
the same aggregate prison sentence. 5 Mr. Stringer then filed a compassionate release
motion, which was denied and is now on appeal before us.
A. The Compassionate Release Motion
Mr. Stringer, proceeding without counsel, moved for compassionate release in
September 2020 due to the ongoing COVID-19 pandemic. The trial court appointed
him counsel, who filed a supplemental motion. In January 2021, the trial court
denied his motion. The trial court agreed with the United States’ concession that
Mr. Stringer had demonstrated “extraordinary and compelling reasons” for release:
his Type 2 diabetes and obesity put him at “greater risk of severe consequences from
COVID-19.” But Mr. Stringer had failed to show that he was “not a danger to the
safety of any other person or the community.”
Mr. Stringer appealed and moved for summary reversal. In June 2021, this
court remanded the matter because it was “unclear whether the trial court analyzed
both eligibility and dangerousness under the preponderance of the evidence
5
In 2014, based on new evidence, Mr. Stringer moved under the Innocence
Protection Act, D.C. Code § 22-4131 et seq., to vacate his convictions. The trial
court denied his motion. Mr. Stringer appealed, and this court remanded that matter
to the trial court. Stringer, 301 A.3d at 1220.
7
standard.” Stringer v. United States, No. 21-CO-0132 (D.C. June 24, 2021)
(Judgment). On remand, the trial court allowed the parties to supplement their prior
filings. The United States withdrew its earlier concession that Mr. Stringer had
demonstrated “extraordinary and compelling reasons” for release because
Mr. Stringer had been vaccinated against COVID-19. 6
B. The Evidentiary Hearing
The trial court held an evidentiary hearing on two dates: December 17, 2021,
and April 26, 2022. Mr. Stringer introduced expert testimony from Dr. Amir
Mohareb, an infectious disease physician at Massachusetts General Hospital and
instructor at Harvard Medical School. The trial court qualified Dr. Mohareb as an
expert in epidemiology and COVID-19, and the same in prisons. Dr. Mohareb
testified about the risks of COVID-19 in prisons, the benefits and limitations of
COVID-19 vaccinations, the potential effects of COVID-19 vaccination booster
shots, and Mr. Stringer’s general risks with respect to COVID-19.
Dr. Mohareb observed that correctional facilities across the country “have had
higher rates of COVID-19.” As Dr. Mohareb summarized, an incarcerated person
who contracts COVID-19 is “more likely to have severe illness or hospitalization,
6
Mr. Stringer received the second of two doses of the Pfizer mRNA vaccine
for COVID-19 in March 2021 and a booster dose of the vaccine in January 2022.
8
they’re less likely to have effective or early treatment than they would [have] in the
community.” Dr. Mohareb based his conclusion on factors common to the carceral
setting: “poor ventilation;” “limitations in how individuals can move and separate
from one another;” rotations of staff, visitors, and incarcerated persons; and
heightened risks for people with “certain medical comorbidities who are older,” such
as diabetes, hypertension, obesity, and cardiovascular disease. “Anyone who is
incarcerated is at a high risk of COVID-19 because they have less control over how
they protect themselves from other people,” Dr. Mohareb concluded.
Dr. Mohareb stated that COVID-19 vaccines have been a “lifesaving
intervention” since vaccines “dramatically reduc[e] the risk of symptomatic
infection of severe disease, of hospitalizations, and of death.” But, Dr. Mohareb
noted, the efficacy of vaccines can be limited for patients who are “older,” have
“more comorbidit[ies],” or are “immunosuppressed.” Such patients could have a
“fairly high risk of severe illness if they’re hospitalized with COVID, even if they’ve
gotten vaccinated.”
Based on his “review of the medical records,” Dr. Mohareb concluded that
“ . . . Mr. Stringer is not immunocompromised, but does have those co-morbidities
that put him at a higher risk, and he’s a long-term inhabitant of a carceral facility, so
I would say he’s at high risk.” Those comorbidities included, “by virtue of him being
9
incarcerated;” being “someone who is older;” “on medication for diabetes” and
“being screened for diabetes;” “ta[king] medication for high blood pressure [and]
high cholesterol;” and, because his “body mass index [wa]s high,” “he[ wa]s obese.”
“And all of those put him at higher risk of developing severe lung disease, severe
complications if he were to acquire COVID-19.” Dr. Mohareb explained that the
risk factors worked “independent of one another,” such that “[s]omeone who has two
of those risk factors [is] at higher risk than if they were to just have one of those risk
factors.”
To reduce the risk of reinfection following vaccination, Dr. Mohareb
explained, a person may get a booster shot six months after receiving the primary
series of the vaccine. 7 Dr. Mohareb confirmed that Mr. Stringer completed his
primary series of the vaccine in March 2021, making him eligible for a booster shot
in September 2021. Mr. Stringer did not receive his booster shot until January 2022,
7
“Primary series completion was defined as receipt of two vaccine doses for
persons who received Phizer-BioNTech, Moderna, or unspecified U.S.-authorized
or approved mRNA COVID-19 vaccine, or receipt of one dose for persons who
received Janssen.” Hannah E. Fast, et al., Booster & Additional Primary Dose
COVID-19 Vaccinations Among Adults Aged ≥ 65 Years—U.S., Aug. 13, 2021-Nov.
19, 2021, MMWR Morbidity & Mortality Wkly. Rep. 2021 (Dec. 16, 2021),
https://www.cdc.gov/mmwr/volumes/70/wr/mm7050e2.htm#:~:text=Primary%20s
eries%20vaccine%20product%20is,administered%20for%20the%20second%20do
se; https://perma.cc/3E22-YL54. In September 2021, the CDC recommended a third
dose (“booster”) of an mRNA vaccine six months after completion of the primary
series.
10
“during or after the peak of the Omicron outbreak after repeatedly asking for
it . . . four or five months later after he was eligible.” This “ma[de Dr. Mohareb]
concerned that [Mr. Stringer] would be at future risk of severe complications”
because it showed the slowness of the facility to provide preventative care. To Dr.
Mohareb, the delay Mr. Stringer experienced—while “unacceptable”—was
“completely normal to physicians who take care of patients in carceral settings.”
C. The Trial Court Order
On May 19, 2022, the trial court denied Mr. Stringer’s motion for
compassionate release. While Mr. Stringer proved that he was no longer a danger to
the community, he failed to show an “acute vulnerability” to severe illness or death
from COVID-19.
In reaching this conclusion, the trial court found Dr. Mohareb both
“thoroughly credible” and “knowledgeable about all of the areas within his
expertise.” The court credited the doctor’s testimony that “prison inmates as a group
are more vulnerable to COVID-19 because of the congregate setting, the inability to
social distance or avoid unvaccinated people, and deficiencies in the prison health
care system” and that “as compared to other vaccinated prisoners, Mr. Stringer’s
comorbidities and age make him more vulnerable should he contract COVID-19.”
11
But the trial court found that Mr. Stringer’s expert had not addressed “how
vulnerable Mr. Stringer himself actually is.” While Dr. Mohareb had classified
Mr. Stringer as “high risk,” Dr. Mohareb
did not define that term in any way except in relation to
people without comorbidities or who are not incarcerated.
Most importantly, he did not offer any testimony, either
generally or specifically regarding Mr. Stringer, that
contradicts or narrows the observation in Autrey that the
vaccines have generally, at least to date, proven extremely
effective at preventing severe illness or death.
The trial court reached this conclusion since Dr. Mohareb had not
testif[ied], for example, that Mr. Stringer’s comorbidities
themselves make the vaccine less effective or are more
likely to lead to a breakthrough infection. Nor did he
identify any other fact that makes Mr. Stringer less likely
than other individuals to benefit from the vaccine. In light
of these facts, and notwithstanding Dr. Mohareb’s use of
the term ‘high risk,’ the Court cannot find that Mr. Stringer
is “acutely vulnerable” to severe illness or death under the
standard established in Autrey.
While the trial court acknowledged Mr. Stringer’s level of risk, the court determined
that his risk could not “be termed ‘urgent,’ ‘nearly a crisis,’ or ‘critical,’ given that
the vaccine remains extremely effective in protecting against severe illness and
death.”
This timely appeal followed.
12
III. Discussion
D.C. Code § 24-403.04(a)(3)(B)(iii) does not provide a “precise definition of
‘acute vulnerability.’” Autrey v. United States, 264 A.3d 653, 659 n.13 (D.C. 2021).
Our cases, however, make clear that “acute vulnerability” requires a movant to show
why they face a “more than an ‘above-average’ risk, as compared to the general
population.” United States v. Facon, 288 A.3d 317, 336 (D.C. 2023) (quoting
Autrey, 264 A.3d at 659 n.13). In turn, we conclude that the trial court acted within
its discretion when it concluded that Mr. Stringer did not carry his burden to show
that he has an “acute vulnerability” to serious injury or death from COVID-19.
A. Precedent on “Acute Vulnerability”
In cases under Section 24-403.04(a)(3)(B)(iii), this court has defined “acute
vulnerability” based on the requirement articulated in Autrey v. United States. While
we declined to “hazard a precise definition” of “acute vulnerability” in that case, we
observed that acute vulnerability “requires more than ‘above-average’ risk, as
compared to the general population.” 264 A.3d at 659 n.13 (quoting Acute,
Webster’s Third New International Dictionary Unabridged 23 (2020) (defining
“acute” as “serious, urgent, and demanding attention; intensified or aggravated
13
nearly to a crisis, culmination, or breaking point: extreme, severe, critical”)). 8 We
then concluded that an incarcerated person “cannot rely on the mere possibility of
residual risks without evidence that those risks actually exist, apply to the prisoner,
and rise to the level of an acute vulnerability.” Id. at 659. The appellant had “a host
of comorbidities generally increasing his risk of severe illness or death from
COVID-19”—including obesity, diabetes, hyperlipidemia, hypertension, and
asthma. Id. at 654-55, 659. But the appellant presented no evidence to meet his
“burden to demonstrate some acute vulnerability to severe illness or death from
COVID-19 despite being vaccinated.” Id. at 659.
Following Autrey, a showing of “acute vulnerability” to severe illness or death
from COVID-19 has required more than showing an individual’s “heightened
susceptibility.” See Facon, 288 A.3d at 336. In United States v. Facon, we remanded
a compassionate release appeal so that a trial court could make “particular findings”
as to whether an incarcerated person’s risk factors rendered him “acutely”
8
Additional dictionaries emphasize that the word “acute” carries a sense of
severity and urgency. See Acute (adj. 1.c), Oxford English Dictionary (2023),
https://doi.org/10.1093/OED/8282842164; https://perma.cc/Z5UH-V7JA (defining
“acute” as “severe, intense”); Acute, Merriam-Webster Dictionary 13 (11th ed.
2014) (defining “acute” as “characterized by sharpness or severity”).
14
vulnerable. Id. at 337. The trial court had concluded that an incarcerated person
who had obesity, Type 2 diabetes, and hypertension 9 but had been vaccinated had
shown a “heightened susceptibility” to COVID-19 since the Pfizer vaccine was not
“100% effective at preventing infection or serious complications.” 10 Id. at 336. We
disagreed after concluding that the “more than an ‘above-average’ risk” requirement
of Autrey required more than a showing of “heightened susceptibility.” Id. at 336-37
(quoting Autrey, 264 A.3d at 659 n.13).
We made a similar observation in Colbert v. United States, 310 A.3d 608 (D.C.
2024). The appellant did not suffer from comorbidities that would leave him
“acutely vulnerable to severe illness even if he [had been] vaccinated.” Id. at 611.
But the appellant was sixty-seven years old and “repeatedly” cited age as a risk
factor. Id. at 614. We declined to uphold a trial court’s ineligibility finding where
that court “failed to account for—and did not so much as mention—a significant risk
factor that Colbert had highlighted for the court: his age.” Id. at 613. That mattered
9
The United States “acknowledged that the Centers for Disease Control and
Prevention had concluded that obesity, Type 2 diabetes, and, possibly, hypertension
increase the risk of severe illness from COVID-19,” but disputed that the
incarcerated person’s age and hepatitis C increased his risk. Facon, 288 A.3d at 324.
10
The trial court’s focus on the efficacy of the vaccine also “improperly
shifted the burden to the government” to disprove the movant’s risks of serious
illness or death from COVID-19. Facon, 288 A.3d at 337.
15
because “vaccinated or not, eligibility depends on an individualized assessment of
the person’s risk factors.” Id.
In short, “acute vulnerability” under D.C. Code § 24-403.04(a)(3)(B)(iii)
requires an individualized showing. An incarcerated person has the burden to show
by a preponderance of the evidence how that individual has “more than an ‘above-
average’ risk, as compared to the general population,” and how that risk may, with a
reasonable likelihood, 11 lead to an acute vulnerability of severe illness or death from
COVID-19 for that individual. Facon, 288 A.3d at 336 (quoting Autrey, 264 A.3d
at 659 n.13).
When gauging an individual’s acute vulnerability, courts should continue to
consider “any reasonable factor”—and “not just vaccination” 12 status—as to
11
We agree with amicus Public Defender Service that the word
“vulnerability” focuses on “a person’s relative weakness or exposure to harm, not
on the absolute likelihood that harm will occur.” But that definition does not reduce
the showing required for an acute vulnerability—that is, an exposure to an “extreme,
severe, critical” harm. See Autrey, 264 A.3d at 659 n.13 (quoting dictionary
definition of “acute”).
12
We emphasize that nothing in this opinion forecloses compassionate release
to persons vaccinated from COVID-19 yet still facing serious individual risks. As
the trial court here found, incarcerated persons as a group are more vulnerable to
COVID-19. And, as amicus Public Defender Service notes, treatments such as
Paxlovid have not been readily available in Federal Bureau of Prisons facilities.
Vaccinated or not, an incarcerated person must make an individualized showing of
risk as required by the language of the statute and our case law.
16
whether an incarcerated person has shown “an ‘extraordinary and compelling’
reason warranting a sentence modification.” Autrey, 264 A.3d at 658 (quoting Page
v. United States, 254 A.3d 1129, 1130 (D.C. 2021) (Easterly, J., dissenting), and
listing factors). In doing so, a judge should exercise their discretion and consider
evidence of any factor they find relevant.
Still, an incarcerated person moving for compassionate release bears the
burden to show by a preponderance of the evidence the extent to which their medical
conditions render them “acutely vulnerable” to severe illness or death from
COVID-19. While we still do not demand “conclusive statistical evidence” to meet
this standard, an incarcerated person may not “rely on the mere possibility of residual
risks without evidence that those risks actually exist, apply to the prisoner, and rise
to the level of an acute vulnerability.” Id. at 659. Finally, we reiterate that, “[g]iven
how rapidly the above eligibility calculus can change, it would also be prudent for
trial courts in each compassionate release case to decide whether the prisoner has
demonstrated their non-dangerousness, regardless of any eligibility determination.”
Id.B. Application to Mr. Stringer
Here, the parties only dispute the trial court’s eligibility ruling, which we
review under the abuse of discretion standard. See Colbert, 310 A.3d at 614 (citing
17
Facon, 288 A.3d at 336). To be sure, the trial court credited Dr. Mohareb’s
testimony about the heightened risks from COVID-19 that incarcerated individuals
face. And the trial court credited Dr. Mohareb’s testimony that “as compared to
other vaccinated prisoners, Mr. Stringer’s comorbidities and age make him more
vulnerable should he contract COVID-19.” But based on the abuse of discretion
standard, the definition of acute vulnerability, and the record before us, we have no
basis to disturb the trial court’s conclusion that “[w]hat Dr. Mohareb did not
address . . . was how vulnerable Mr. Stringer himself actually is.”
Dr. Mohareb concluded that Mr. Stringer’s comorbidities of age, diabetes,
obesity, high blood pressure, and high cholesterol put Mr. Stringer at a “higher risk”
of “severe complications if he were to acquire COVID-19.” But the trial court
determined that Dr. Mohareb “did not define that term in any way except in relation
to people without comorbidities or who are not incarcerated.” Consider:
• When asked about the “significance of Mr. Stringer’s age” for
Mr. Stringer’s COVID-19 risks, Dr. Mohareb explained that
Mr. Stringer was at “higher risk . . . by virtue of being incarcerated,”
and by virtue of the way in which “someone who has long-term
incarceration kind of behaves like an older person in terms of his
health.”
18
• When asked about the “significance of diabetes,” Dr. Mohareb
explained that “[i]t seems that people who have diabetes are at higher
risk of complications from COVID-19.”
• When asked about Mr. Stringer’s “high blood pressure,” “high
cholesterol,” and “high body mass index,” Dr. Mohareb replied that “all
of those put him at higher risk of developing severe lung disease, severe
complications if he were to acquire COVID-19.”
These explanations—framed only in terms of Mr. Stringer’s “higher risk” and higher
“likelihood” of contracting COVID-19—make it difficult to conclude that
Mr. Stringer’s risk amounted to a “more than ‘above-average’ risk, as compared to
the general population.” See Facon, 288 A.3d at 336 (quoting Autrey, 264 A.3d at
659 n.13).
We acknowledge that Mr. Stringer faces risk: he bears comorbidities, as the
trial court concluded, that make him “more vulnerable” if he contracts COVID-19.
And Dr. Mohareb explained that each risk factor functions “independent of one
another, meaning that someone who has . . . two of those risk factors [is] at higher
risk than if they were to have just one of those risk factors.” But, as Dr. Mohareb
replied when asked specifically about the significance of high blood pressure: “A
risk factor doesn’t mean that everyone who has those conditions will necessarily
19
have severe disease. It just means . . . their likelihood of developing severe disease
would be higher than someone who did not have them.”
This is not a box-checking exercise. A movant for compassionate release must
explain why their particular likelihood of developing COVID-19 rises past
“heightened” and to a level that falls under the “serious, urgent, and demanding
attention” language first introduced in Autrey. See 264 A.3d at 659 n.13 (quoting
Acute, Webster’s Third New International Dictionary Unabridged 23 (2020)). Our
conclusion about whether Mr. Stringer provided a sufficient explanation might differ
if Mr. Stringer had shown why his particular combination of comorbidities could
make his vaccination less effective or lead to a higher likelihood of a breakthrough
infection. See id. at 658 (noting that courts may consider whether an incarcerated
person’s “medical conditions continue to render [them] acutely vulnerable to severe
illness or death despite receiving some benefit from the vaccine, which may
implicate vaccine efficacy data for certain subpopulations”). But, like the movant
in Autrey, Mr. Stringer has not presented “evidence to the contrary” to show why his
vaccination does not “substantially mitigat[e] his risk.” See id. at 659.
To be sure, Mr. Stringer introduced evidence that, in general, people who have
comorbidities still have a “fairly high risk of severe illness . . . even if they’ve gotten
vaccinated,” and that people who are incarcerated do not have control over their
20
close contacts. Upon reviewing Mr. Stringer’s medical records, however,
Dr. Mohareb concluded that Mr. Stringer “does have those comorbidities that put
him at a higher risk” but is “not immunocompromised.” Nor did the trial court
observe Dr. Mohareb “identify any other fact that makes Mr. Stringer less likely than
other individuals to benefit from the vaccine.” Without such testimony, we conclude
that the trial court acted within its discretion when it determined that Mr. Stringer
failed to meet his burden to show that his individual risks “ris[e] to the level of an
acute vulnerability.” See Autrey, 264 A.3d at 659. And, under our case law, we may
not support a determination of acute vulnerability where a movant for compassionate
release provides only the “‘possibility of residual risks without evidence that those
risks actually exist, apply to the prisoner, and rise to the level of an acute
vulnerability’ even though the prisoner has been vaccinated.” Facon, 288 A.3d at
337 (quoting Autrey, 264 A.3d at 659).
We therefore conclude that the trial court acted within its discretion when it
determined that Mr. Stringer’s risk from COVID-19—while higher “than other
vaccinated persons without his medical conditions”—could not “be termed ‘urgent,’
‘nearly a crisis,’ or ‘critical.’”
21
IV. Conclusion
We affirm the trial court’s order denying Mr. Stringer’s motion for
compassionate release.
So ordered.