United States v. Millette

UNITED STATES OF AMERICA, v. KEVIN MILLETTE, Defendant.

Docket No. 2:16-cr-00004-NT

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

December 21, 2020

ORDER ON MOTION FOR COMPASSIONATE RELEASE

The Defendant Kevin Millette filed a pro se motion for compassionate release on May 19, 2020 (ECF No. 68). After reviewing the motion, I appointed counsel to represent the Defendant (ECF No. 71). Appointed counsel filed the pending amended motion for compassionate release ("Def.'s Am. Mot.") (ECF No. 74), which the Government opposes (ECF No. 75). I have also considered the Government's supplemental memoranda (ECF Nos. 76, 85), the Defendant's supplemental memorandum (ECF No. 84), and the Defendant's reply briefs (ECF Nos. 77, 86). For the reasons that follow, the Defendant's amended motion for compassionate release (ECF No. 74) is GRANTED.

PROCEDURAL BACKGROUND

On January 28, 2016, the Defendant pleaded guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Presentence Investigation Report ("PSR") ¶ 4 (ECF No. 70-1). On June 6, 2016, I sentenced Mr. Millette to the mandatory minimum term of 120 months imprisonment, followed by 84 months of supervised release, and I ordered him to pay $39,000 in restitution. Judgment (ECF No. 37).

Mr. Millette is incarcerated at the Federal Correctional Institution, Danbury, ("FCI Danbury"). Mr. Millette first requested compassionate release from the Warden, but this request was denied. Def.'s Am. Mot. Ex. 3, at 1 (ECF No. 74-3). Mr. Millette's request for reconsideration of the Warden's decision was also denied. Def.'s Am. Mot. Ex. 3, at 2-5. The Government acknowledges that Mr. Millette has exhausted his administrative remedies. Gov't's Resp. to Def.'s Mot. for Compassionate Release ("Gov't Opp'n") 7 (ECF No. 75).

ANALYSIS

Congress enacted the compassionate release statute¹ to allow district courts to modify sentences of imprisonment, as relevant here, upon finding that:(1) extraordinary and compelling reasons warrant modification, (2) the modification accords with the § 3553(a) sentencing factors, and (3) the modification is consistent with "applicable policy statements" of the Sentencing Guidelines. In addition, Mr. Millette must provide an adequate plan for release. I address each part of the analysis in turn.

I. Extraordinary and Compelling Circumstances

Mr. Millette is a 48-year-old man with several chronic health conditions, including heart disease. Def.'s Am. Mot. 1-2. Mr. Millette suffered three heart attacks before his 39th birthday and has a stent implanted in an artery. Def.'s Am. Mot. 1-2; PSR ¶ 46. Additionally, Mr. Millette is obese and suffers from hypertension, high cholesterol, and various mental health conditions. Def.'s Supp. Mem. Supporting Mot. for Compassionate Release ("Def.'s Supp. Mem.") 2 (ECF No. 84); PSR ¶¶ 46, 51; Def.'s Medical Chronology (ECF No. 74-1).

Mr. Millette's medical conditions increase his risk of severe illness from COVID-19. The Centers for Disease Control and Prevention caution that individuals with certain underlying medical conditions, including "heart conditions" are at "increased risk of severe illness from the virus that causes COVID-19." See Centers for Disease Control and Prevention, "COVID-19 (Coronavirus Disease), People with Certain Medical Conditions," https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html (last visited Dec. 21, 2020) (emphasis deleted). Individuals with hypertension also "might be at an increased risk." Id. (emphasis deleted). In addition, the Government now concedes that Mr. Millette's obesity, at the very least, "presents an extraordinary and compelling reasonthat may warrant compassionate release." Resp. to Def.'s Supp. Mem. Supporting Mot. for Compassionate Release ("Gov't Supp. Opp'n") 1 (ECF No. 85). I find that Mr. Millette's medical conditions likely make him more susceptible to complications from COVID-19.

FCI Danbury is reporting as of December 21, 2020, that there are ninety-five inmates and zero staff testing positive for COVID-19. Bureau of Prisons, COVID-19 Inmate Test Information, https://www.bop.gov/coronavirus/ (last visited Dec. 21, 2020). FCI Danbury was the site of an early, severe COVID-19 outbreak last spring. Def.'s Am. Mot. 7. And the rapidly increasing numbers indicate that FCI Danbury may be on the verge of a second outbreak. The prison's ninety-five current inmate infections are up from twenty-three inmate infections as recently as December 8, and five inmate infections one week prior. Status Report ¶ 2 (ECF No. 81). FCI Danbury also reports that eighty-two inmates and sixty-nine staff have recovered from COVID-19 and that one inmate died from the virus.

The Government describes all that the Bureau of Prisons ("BOP") has done to try to prevent and contain the spread of COVID-19 within the walls of the federal prison system. Gov't Opp'n 2-6. I do not opine on the adequacy or effectiveness of these efforts. However, it speaks for itself that inmate infections at FCI Danbury have more than quadrupled since last week, this being after last week's numbers more than quadrupled from the week before. This is paradigmatic exponential growth. While the BOP may well be doing everything within its power to combat the spread of COVID-19 at FCI Danbury, it is apparent that these efforts are insufficient underthe circumstances. Rather than serve as evidence in support of the Government, this is evidence in support of the Defendant, because it shows that even despite BOP's best efforts, the virus is spreading rapidly at FCI Danbury. Mr. Millette's medical conditions, coupled with the increasing number of infections at FCI Danbury, constitute an extraordinary and compelling reason for release.

Because I find that Mr. Millette has established extraordinary and compelling reasons for a modification of his sentence, I go on to consider the § 3553(a) factors. See 18 U.S.C. § 3582(c)(1)(A).

II. Applicable 3553(a) Factors²

When I originally sentenced Mr. Millette for violating 18 U.S.C. § 2252A(a)(5)(B), his prior state conviction for Possession of Sexually Explicit Materials of Minor Under 12 triggered a ten-year mandatory minimum, pursuant to 18 U.S.C. § 2252A(b)(2). While I considered the § 3553(a) factors as I am always required to do, because of my obligation to impose the ten-year mandatory minimum, the § 3553(a) factors were somewhat beside the point. See PSR ¶ 33; 18 U.S.C. § 2252A(b)(2). I now review what I consider to be the applicable § 3553(a) factors in the context of the Defendant's motion.

A. Need for the Sentence to Reflect the Seriousness of the Offense & Provide Adequate Deterrence

I begin with the seriousness of the offense. There is no question that the possession of child pornography, particularly after a previous conviction for the same type of crime, is serious. The circulation of child pornography "is intrinsically related to the sexual abuse of children" and is itself harmful, separate and apart from the hands-on sexual abuse of a child. New York v. Ferber, 458 U.S. 747, 759-60 (1982). Mr. Millette's crime involved downloading images and videos of minors engaged in sexual conduct, and he possessed a significant number of images and videos. PSR ¶¶ 5-11. While extremely serious, there was no evidence that Mr. Millette ever committed a contact offense or groomed a child with the intent to commit one. In addition, Mr. Millette fully accepted responsibility for his crime even before he was charged in this case. PSR ¶ 10.

Mr. Millette has already served over five years in prison. The BOP, having considered deductions for good conduct, lists a projected release date of May 25, 2024. Sentence Monitoring Computation Data (ECF No. 74-1). Accordingly, Mr. Millette has served almost fifty-one percent of the sentence I imposed and almost sixty percent of his sentence if good-time deductions are factored in. At the time that I sentenced Mr. Millette to a term of imprisonment, prison posed no greater risk to his well-being than to the average criminal defendant. Now, prison has become a more dangerous place for Mr. Millette given his health conditions and given that prisons, by their nature, put those who are incarcerated at a heightened risk of infection. See United States v. Telson, Case No. 16-80178-CR, 2020 WL 5742624, at *3 (S.D. Fla. Sept. 21,2020) ("Due to the conditions under which inmates live, they are at extreme risk of infection once COVID-19 breaches prison walls."). When I originally sentenced Mr. Millette, I "did not intend for his sentence to 'include incurring a great and unforeseen risk of severe illness or death brought on by a global pandemic.' " United States v. Carter, No. 16-cr-156 (TSC), 2020 U.S. Dist. LEXIS 208639, at *3 (D.D.C. June 10, 2020) (quoting United States v. Zukerman, 451 F. Supp. 3d 329, 336 (S.D.N.Y. 2020)); United States v. Weikel, Criminal Case No. 16-20659, 2020 WL 6701914, at *5 (E.D. Mich. Nov. 13, 2020) ("While the nature of Weikel's offense was undeniably serious, it did not merit a death sentence . . . .").

I find that under these circumstances, a sentence of sixty-one months is a significant sentence that adequately reflects the seriousness of the crime and affords adequate deterrence.

B. History and Characteristics of the Defendant

The § 3553(a) factors also require an examination of the history and characteristics of the Defendant. Mr. Millette was born out of wedlock, and he never met his biological father. PSR ¶ 39. His mother's first husband physically abused him. PSR ¶ 40. He was sexually molested at the age of two by a family member and again between the ages of six and nine by a neighbor. PSR ¶ 41. Mr. Millette has a history of medical and mental health problems, including the heart conditions discussed above, but he also suffers from depression and suicidality. PSR ¶¶ 45-51.

Besides his prior state child pornography conviction, for which he received a...