By Carolina Bolado

Law360 (November 17, 2020, 5:57 PM EST ) Imprisoned former defense contractor Reality Winner asked the Eleventh Circuit on Tuesday to reverse a decision denying her bid for early release over concerns about her health amid the COVID-19 pandemic, arguing that the lower court erred in concluding it did not have jurisdiction to consider her request.

At oral arguments conducted over Zoom, Winner's attorney Baruch Weiss urged the Eleventh Circuit panel to grant her request for release or remand the case for a hearing at the district court level, where he said Winner was prevented from presenting any evidence to support her request.

The district court rejected Winner's request because she is required to first petition the director of the Bureau of Prisons and not file a motion with the court for at least 30 days. But Weiss described that as a misreading of the First Step Act, which he said does not prohibit a defendant from filing a motion in federal court prior to the 30-day deadline.

In Winner's case, she put in a request for home confinement with the Bureau of Prisons on April 8 and filed a motion in federal court two days later.

"The statute by its very terms doesn't govern what the defendant can do; it governs what the court can do," Weiss said. "The court after the lapse of 30 days may reduce a sentence. It doesn't matter in our view if the defendant filed before the 30 days is up or after the 30 days is up."

Regardless, Weiss said, at this point it does not matter, as it has been several months since Winner's request, so administrative remedies should be considered exhausted.

Justin Davids, who argued for the government, said Winner never asked the court to wait 30 days before ruling and in fact requested an expedited schedule. He said he does not think the statutory language allows a defendant to prefile a motion and make the court wait 30 days.

The solution here, he said, is to dismiss this appeal and go back and file her motion again.

Winner is serving a 63-month sentence after having pled guilty to illegally leaking a report on Russian interference in U.S. elections while working as a linguist for Pluribus International Corp., a contractor for the National Security Agency. She is due to be released in November 2021.

In her request for release, Winner's attorneys cited a "propensity for respiratory illnesses" and the potential for a prison lockdown to exacerbate her bulimia nervosa. They also expressed concern that being confined to her cell would prevent her from using exercise as a coping mechanism for her eating disorder.

In April, U.S. District Judge J. Randal Hall rejected Winner's request because she had not exhausted her administrative remedies. But he added that even if she were to exhaust her options at the Bureau of Prisons, he did not find her a candidate for release from custody at FMC Carswell in Texas.

"Winner has not carried the burden of demonstrating that her specific medical conditions under the particular conditions of confinement at FMC Carswell place her at a risk substantial enough to justify early release," the judge said. "In fact, the court is constrained to observe that Winner is in a medical prison, which is presumably better equipped than most to deal with any onset of COVID-19 in its inmates."

Winner is represented by Baruch Weiss of Arnold & Porter and Joe D. Whitley, Brett A. Switzer and Laura E. Collins of Baker Donelson Bearman Caldwell & Berkowitz PC.

The U.S. government is represented by Justin Davids and Bobby L. Christine of the U.S. Attorney's Office for the Southern District of Georgia.

The case is U.S. v. Winner, case number 20-11692, in the U.S. Court of Appeals for the Eleventh Circuit.

--Editing by Daniel King.

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