United States v. Fowle

559 F.Supp.3d 17

UNITED STATES of America

v.Charles FOWLE

Criminal No. 14-cr-086-01-LM

United States District Court, D. New Hampshire.

Signed November 10, 2020

Terry L. Ollila, Assistant US Attorney, US Attorney's Office, Concord, NH, for United States of America.

Andrew Scott Winters, Cohen & Winters PLLC, Concord, NH, for Charles Fowle.

ORDER

Landya McCafferty, United States District Judge

Charles Fowle moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A). The government does not dispute that Fowle has exhausted his administrative remedies and has health conditions that create extraordinary and compelling reasons for release. See 18 U.S.C. § 3582(c)(1)(A). The government objects to release based on the sentencing factors set forth in 18 U.S.C. § 3553(a). The court has considered the goals of sentencing and finds that release is consistent with § 3553(a).

COMPASSIONATE RELEASE STATUTE

A court may grant so-called "compassionate release" to a defendant under 18 U.S.C. § 3582(c)(1)(A). The statute provides, in relevant part, that:

[T]he court, upon motion of the Director of the Bureau of Prisons or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that—

(i) extraordinary and compelling reasons warrant such a reduction ...

...

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ....

18 U.S.C. § 3582(c)(1)(A) ; see also U.S.S.G. § 1B1.13 (sentencing guidelines policy statement on compassionate release).

Where, as here, a motion for compassionate release is properly before the court, the court must determine if defendant is eligible for release. The statutory language quoted above requires that defendant show that "extraordinary and compelling reasons warrant" a reduction in his sentence, that the court consider the factors set forth in 18 U.S.C. § 3553(a) to the extent applicable, and that the reduction be "consistent" with the Sentencing Commission's "applicable policy statements." 18 U.S.C. § 3582(c)(1)(A). Some courts have held that the policy statement, U.S.S.G. § 1B1.13, is not applicable to a prisoner's motion for compassionate release. See United States v. Brooker, 976 F.3d 228, 234–36 (2d Cir. 2020). The policy statement, however, provides "helpful guidance" even if consistency with § 1B1.13 is not a strict statutory requirement. See United States v. Dent, Crim. No. 2:15-CR-10-DBH-01, 2020 WL 6157693, at *1 (D. Me. Oct. 21, 2020). For example, the policy statement requires that "the defendant is not a danger to the safety of any other person or to the community" in order to be eligible for a sentence reduction. U.S.S.G. § 1B1.13(2). Since public protection is a sentencing factor under § 3553(a), dangerousness is a consideration in every compassionate release case. See United States v. Bradshaw, No. 1:15-CR-422, 2019 WL 7605447, at *3 (M.D.N.C. Sept. 12, 2019) (explaining overlap between dangerousness requirement in compassionate release policy statement and § 3553(a) requirement that courts consider the need to protect the public).

The defendant bears the burden of showing that he is entitled to a sentence reduction. United States v. Hilow, No. 15-CR-170-JD, 2020 WL 2851086, *3 (D.N.H. June 2, 2020). And the court has "broad discretion in deciding whether to grant or deny a motion for sentence reduction." United States v. Britton, 473 F.Supp.3d 14, 16 (D.N.H. 2020) (internal quotation marks omitted).

BACKGROUND

Fowle is currently imprisoned for a violation of supervised release. Fowle's underlying convictions are: (1) possession with intent to distribute oxycodone and (2) conspiracy to distribute and possession with intent to distribute marijuana. See 21 U.S.C. §§ 841(a)(1), 846. He was sentenced on September 28, 2015 to 37 months incarceration and 3 years supervised release. He was released on February 28, 2017.

Since his release, Fowle has violated conditions of supervised release three times. Fowle's first violation was for repeatedly using marijuana and cocaine, refusing to permit his probation officer to visit and search him, and associating with a felon. On February 27, 2018, the court sentenced Fowle to time served (49 days) and 24 months of supervised release.¹

Fowle's second violation was for use of marijuana and cocaine, and for failure to report a change in employment. On January 11, 2019, the court sentenced Fowle on that violation to 9 months incarceration and 12 months supervised release. Fowle was released from custody on May 8, 2019.

Less than one week following his release, Fowle committed his third violation. This is the violation for which he is currently incarcerated. During his initial visit with his probation officer, Fowle provided a urine sample and then destroyed it by dumping the contents of the collection cup on the ground. The court also found that Fowle had used cocaine and marijuana since his release. The court sentenced him on this third violation on January 16, 2020. Although the advisory guideline range was 6 to 12 months, the court sentenced Fowle to the statutory maximum: 24 months incarceration with no additional supervised release. Fowle appealed this sentence to the First Circuit. See USCA no. 20-1129. That appeal is still pending.

For this most recent period of incarceration, Fowle has served 13 months, more than one-half of his sentence. His projected release date is July 4, 2021.

DISCUSSION

I. Procedural History

There is no dispute that Fowle has exhausted his administrative right to appeal within BOP and that his motion is properly before the court. Fowle filed this motion for compassionate release while his underlying sentence was on appeal to the First Circuit. See USCA no. 20-1129. After this court ordered him to show cause why it had jurisdiction over his motion, Fowle moved for an indicative ruling under Federal Rule of Criminal Procedure 37 and Federal Rule of Appellate Procedure 12.1. See doc. no. 248; see also United States v. Pena, 463 F. Supp. 3d 118 (D. Mass. 2020) (issuing an indicative ruling in favor of defendant's motion for compassionate release). On November 4, 2020, after hearing oral argument on the motion, the court issued an indicative ruling in favor of release. See Endorsed Order dated Nov. 4, 2020. On November 6, 2020, the First Circuit remanded Fowle's case to this court to rule on the motion. See doc. no. 254.

II. Extraordinary and Compelling Reasons

A prisoner's medical condition may be an "extraordinary and compelling reason" that justifies a sentence reduction. See U.S.S.G. § 1B1.13, App. Note 1. During the current pandemic, health factors that put a prisoner at "a substantially higher risk due to COVID-19" along with "a documented risk of the disease in the facility where the prisoner is incarcerated" may, together, "demonstrate extraordinary and compelling reasons to reduce the prisoner's sentence." United States v. Bischoff, 460 F. Supp. 3d 122, 125 (D.N.H. 2020) (collecting cases in support). To determine whether a prisoner is at a particularly high risk of experiencing severe illness from COVID-19, courts have generally looked to the guidelines from the Centers for Disease Control and Prevention ("CDC"). See, e.g., United States v. Nygren, No. 1:16-CR-00106-JAW, 2020 WL 4208926, at *11-12 (D. Me. July 22, 2020).

Fowle claims he is at high risk of serious illness if he contracts COVID-19 because of two medical conditions, hypertension and hepatitis C. Additionally, he is a long-time, heavy smoker. See doc. no. 243-1. The government concedes that Fowle has medical conditions that place him at high risk of severe illness should he contract COVID-19. The court agrees.² Viewed collectively, Fowle's medical conditions and history of smoking places him at an increased risk for severe illness if he is infected. See United States v. Hilow, Crim. No. 15-cr-170-JD, 2020 WL 2851086, at *4 (D.N.H. June 2, 2020) (discussing the collective risks of several medical conditions).

Fowle has also shown that the risk that he will become infected with COVID-19 while incarcerated is more than speculative. Many courts, including this one, have recognized that the nature of the prison environment itself enhances the likelihood that prisoners will catch this highly contagious virus. See Gomes v. US Dep't of Homeland Sec., Acting Sec'y, 460 F. Supp. 3d 132, 138–39 (D.N.H. 2020) ; Bischoff, 460 F. Supp. 3d at 125 (collecting cases). That is especially true where there has already been a documented outbreak at the prison.

At FCI Danbury, where Fowle is housed, 81 prisoners and 65 staff members have recovered from the virus and one prisoner has died.³ This spring, FCI Danbury experienced a "serious outbreak" of the virus. Martinez-Brooks v. Easter, 459 F. Supp. 3d 411, 439 (D. Conn. 2020). Although FCI Danbury is not presently experiencing an outbreak, a prison—by nature of its size, the number of its prisoners, and the difficulty of keeping prisoners physically distant from one another—is a potential "tinderbox" for this contagious virus. See Gomes, 460 F. Supp. 3d at 138–39 ; see also United States v. Tate, No. 17-CR-30037, 2020 WL 3791467, at *4 (C.D. Ill. July 7, 2020) (collecting cases finding extraordinary and compelling circumstances even when the facility does not have confirmed active cases of COVID-19). Considering all the above facts, the court finds that Fowle has shown a particularized risk of contracting COVID-19 while incarcerated.

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