United States v. Gil, Criminal No. 19-cr-074-LM-1

484 F.Supp.3d 19

UNITED STATES of America

v.Jared GIL

Criminal No. 19-cr-074-LM-1

United States District Court, D. New Hampshire.

Signed September 8, 2020

John S. Davis, US Attorney's Office, Concord, NH, for United States of America.

Simon R. Brown, Preti Flaherty Beliveau Pachios LLP, Concord, NH, for Jared Gil.

ORDER

Landya McCafferty, United States District Judge

Defendant moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on the threat posed to his health by the combination of his asthma and the possibility that he will become infected with COVID-19 while incarcerated at Federal Correctional Institution ("FCI") Fairton in New Jersey. The government concedes that defendant has exhausted his administrative remedies as required by § 3582(c)(1)(A), but objects to his release. The court held a video hearing on defendant's motion on July 28, 2020, at which defendant appeared via telephone and made a statement.

STANDARD OF REVIEW

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). The Sentencing Commission's policy statement regarding compassionate release mirrors the statutory language and adds the requirement that the court find that "the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g)." See U.S.S.G. § 1B1.13(2). A defendant's dangerousness is a paramount concern as a court weighs the decision to grant a defendant early release. 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 court consider the need to protect the public).

In short, a court may reduce a term of imprisonment under the compassionate release provision if it: (1) finds that extraordinary and compelling reasons warrant the reduction; (2) finds that the defendant will not pose a danger to the safety of any other person or the community; and (3) considers the sentencing factors outlined in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3582(c)(1)(A) ; U.S.S.G. § 1B1.13 ; see also United States v. Rasberry, No. 2:15-CR-00127-JDL, 2020 WL 3977614, at *1 (D. Me. July 14, 2020) ; United States v. Hilow, No. 15-CR-170-JD, 2020 WL 2851086, at *1 (D.N.H. June 2, 2020). The defendant bears the burden of showing that he is entitled to a sentence reduction. Hilow, 2020 WL 2851086, at *3. And the court has "broad discretion in deciding whether to grant or deny a motion for sentence reduction." United States v. Britton, Crim. No. 18-cr-108-LM, 473 F.Supp.3d 14, 16 (D.N.H. May 12, 2020) (internal quotation marks omitted).

BACKGROUND

Defendant was arrested on federal drug-trafficking charges on March 26, 2019 and stipulated to detention at that time. On August 1, 2019, defendant pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute 40 grams or more of fentanyl in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vi), and 846. On March 6, 2020, the court sentenced defendant to 40 months imprisonment and three years of supervised release. The court recommended to the Bureau of Prisons ("BOP") that it house the defendant at FCI Danbury in Connecticut and permit him to participate in a drug treatment program and in mental health treatment. See doc. no. 60 at 2.

Due to an outbreak of COVID-19 at FCI Danbury, defendant could not be placed there and was re-routed to FCI Fairton in New Jersey. Because defendant was designated to be housed at FCI Danbury but was re-routed to FCI Fairton, defendant is considered a "holdover" inmate. Doc. no. 77-1 at 1. This means that he will not be able to "partake in the usual orientations, operation, or activities new arrivals are offered or allowed" at FCI Fairton. Id. On June 15, 2020, defendant filed a pro se motion for compassionate release, which was later supplemented by appointed counsel.

DISCUSSION

I. Extraordinary and Compelling Reasons

Defendant contends that he has moderate asthma that puts him at high risk for experiencing severe illness should he become infected with COVID-19. He has submitted medical records in support of that diagnosis. See doc. no. 77-5 at 1-2. He argues that his health condition combined with the known presence of COVID-19 at FCI Fairton constitute extraordinary and compelling reasons supporting his release. The government concedes that defendant suffers from moderate asthma and its medical expert agrees that this condition puts defendant at high risk for severe illness from COVID-19. The government further concedes that, in the context of the current pandemic, defendant's high-risk medical condition constitutes an extraordinary and compelling reason.

The court agrees that defendant has established extraordinary and compelling reasons supporting his release. Under the Centers for Disease Control and Prevention ("CDC") guidelines, moderate asthma is among the underlying health conditions that "might" put a person at higher risk for severe illness from COVID-19.¹ And defendant has a substantial risk of becoming infected with COVID-19 in the first instance because FCI Fairton has an active outbreak of the virus. There are four inmates and one staff member at the facility who are currently positive for COVID-19.² Based on a documented risk of infection at FCI Fairton and defendant's undisputed high-risk medical condition, the court finds that extraordinary and compelling reasons support defendant's release. See United States v. Rich, Crim. No. 17-cr-094-LM, 471 F.Supp.3d 441, 445-46 (D.N.H. June 3, 2020) (finding that defendant's documented history of bronchitis, reactive airway disease, and smoking combined with current outbreak at the prison constituted extraordinary and compelling reasons); United States v. Hernandez, No. 18-CR-034-04 (PAE), 451 F.Supp.3d 301, 302-03, 303-04 (S.D.N.Y. Apr. 2, 2020) (finding extraordinary and compelling reasons to reduce sentence of defendant who suffered from asthma ).

II. Sentencing Factors

Next, the court must consider whether a reduction in defendant's sentence is consistent with the sentencing factors outlined in 18 U.S.C. § 3553(a) to the extent they are applicable. See 18 U.S.C. § 3582(c)(1)(A). The § 3553(a) factors a court must consider at sentencing include the nature and circumstances of the defendant's offense and the defendant's personal history and characteristics. 18 U.S.C. § 3553(a)(1). Section 3553(a) requires that the court ensure that the sentence imposed reflects the seriousness of the offense that was committed, promotes respect for the law, provides just punishment, affords adequate deterrence, protects the public from further crimes of the defendant, and provides the defendant with needed training, medical care, and other treatment in the most effective way. 18 U.S.C. § 3553(a)(2). Section 3553(a) further requires the court consider the kinds of sentences available, the Sentencing Guidelines, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to any victims. 18 U.S.C. § 3553(a)(3)-(7).

The court assesses the relevant sentencing factors below. After considering the applicable § 3553(a) factors, the court will consider whether those factors support a reduction in defendant's sentence, or, alternatively, whether they outweigh the "extraordinary and compelling reasons" discussed above and compel denial of the motion. See, e.g., United States v. Tidwell, 476 F.Supp.3d at 74-75 (E.D. Pa. Aug. 5, 2020) ; United States v. Daugerdas, ––– F. Supp. 3d ––––, ––––, 2020 WL 2097653, at *4 (S.D.N.Y. May 1, 2020).

A. Need to Protect the Public and Nature and Circumstances of Offense

Defendant was part of a serious drug-trafficking conspiracy in which he orchestrated or participated in multiple hand-to-hand sales of fentanyl, a dangerous drug. Defendant also acted in a managerial role by conscripting his co-defendant (his cousin) to be a "runner" for him and drive him to various drug transactions. There is no evidence, however, that defendant possessed a firearm or used violence to carry out the drug-trafficking conspiracy.

Defendant's federal offense appears to have been driven largely by his substance abuse issues, which began at a young age and continued up to the time of the federal offense. Since being incarcerated, however, defendant has endeavored to confront...