By Chris Villani

Law360 (March 1, 2021, 6:41 PM EST ) A former Texas tennis academy director who admitted to being a middleman in the "Varsity Blues" college admissions scheme lost a bid to cut his prison term short amid the pandemic, with a federal judge noting he failed to take advantage of an earlier opportunity to delay reporting until after the COVID-19 outbreak waned.

Martin Fox had asked U.S. District Judge Indira Talwani in February to shorten his three-month prison term, citing his need to quarantine while behind bars and a long list of medical conditions. Prosecutors pushed back, saying Fox had a chance earlier in the pandemic to delay prison but did not take advantage of it.

In an order Monday, Judge Talwani agreed with the government.

"The court recognizes that Martin Fox's medical condition places him at an increased risk of complications from COVID-19," Judge Talwani wrote in a brief order. "At sentencing, however, the court not only acknowledged his 'substantial health issue,' but also made clear that a request to delay his report date to get past the worst of the COVID pandemic would be accommodated."

During the November sentencing hearing, Fox's attorney said his client's health issues included stomach pains, hernias, "out of control" diabetes, an inability to digest food and organ damage. An attorney for Fox, David Gerger of Gerger Khalil Hennessy & McFarlane LLP, called Judge Talwani's order "concerning."

"We are very concerned about his medical care," Gerger told Law360 in an email Monday.

Fox said in his early release motion that he decided to go forward with starting his prison term Jan. 8 — just as coronavirus cases were peaking in the U.S. — because his connection to the college admissions case put his life on hold for two years and he wanted to put it behind him.

When he was sentenced in the fall, he was facing a potential guideline range of 21 to 27 months in prison with the COVID-19 vaccines not yet approved. Between the hearing and the date he reported to the Texas prison, vaccines had been given the green light and Fox knew he would only be in prison for three months, Judge Talwani noted, yet he still chose not to ask for a delay.

"Mr. Fox's post-judgment choice not to request a postponement of his report date undermines his request here," the judge wrote.

Fox argued that being in prison puts his life at risk and the COVID-19 quarantine measures at the Fort Worth facility amount to a "Catch-22": when a new prisoner arrives, the quarantine period is extended. Prosecutors said the extended quarantine was due to Fox's cohort of inmates accidentally co-mingling with another cohort, and that he has been out of quarantine since Feb. 10.

At FMC Fort Worth, 12 inmates have succumbed to the virus and there are currently five known infected detainees and 34 staff members who have tested positive, Fox's lawyers wrote in his early release motion, with two inmate deaths in recent months.

Prosecutors said Fox played a "vital role" in both aspects of the college admissions scheme. He helped two students get into college as fake tennis recruits, the government alleged, took steps toward getting a third into college and helped scheme mastermind William "Rick" Singer "control" a Houston testing center to help four students cheat on college admissions exams.

A government representative declined to comment Monday.

The government is represented by Justin D. O'Connell, Leslie A. Wright and Kristen A. Kearney of the U.S. Attorney's Office for the District of Massachusetts.

Fox is represented by David Gerger of Gerger Khalil Hennessy & McFarlane LLP and Michael J. Pineault of Anderson & Kreiger LLP.

The case is U.S. v. Ernst et al., case number 1:19-cr-10081, in the U.S. District Court for the District of Massachusetts.

--Editing by Regan Estes.

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