United States v. Patten

560 F.Supp.3d 613

UNITED STATES of America

v.Nicholas J. PATTEN

Criminal No. 18-cr-073-LM-1

United States District Court, D. New Hampshire.

Signed January 27, 2021

Debra M. Walsh, Assistant US Attorney, US Attorney's Office, Concord, NH, for United States of America.

ORDER

Landya McCafferty, United States District Judge

The defendant, Nicholas J. Patten, moves for compassionate release under 18 U.S.C. § 3582(c)(1)(A) based on the combination of his underlying medical conditions and the possibility that he will become infected with COVID-19 while imprisoned at Federal Correctional Institute ("FCI") Allenwood-Low in Pennsylvania. See doc. no. 22. The government concedes that Mr. Patten has exhausted his administrative remedies and that there are extraordinary and compelling reasons for release, but nevertheless objects based on the sentencing factors. The court held a video hearing on Mr. Patten's motion on January 12, 2021, at which Mr. Patten appeared via telephone and made a statement. After careful consideration and for the reasons that follow, the court grants Mr. Patten's motion.

STANDARD OF REVIEW

A court may grant so-called "compassionate release" to a defendant under 18 U.S.C. § 3582(c)(1)(A). This statute imposes several requirements for granting a defendant's motion for compassionate release. First, the defendant must either fully exhaust his administrative remedies within the Bureau of Prisons ("BOP") or wait thirty days after BOP receives his request to file a compassionate release motion on his behalf. See 18 U.S.C. § 3582(c)(1)(A). Second, there must be "extraordinary and compelling reasons" for a sentence reduction. § 3582(c)(1)(A)(i). Third, the court must "consider[ ] the factors set forth in section 3553(a) to the extent they are applicable." Id. Finally, a sentence reduction must be "consistent with applicable policy statements issued by the Sentencing Commission." Id.; see also U.S.S.G. § 1B1.13 (sentencing guidelines policy statement on compassionate release).

The Sentencing Commission's policy statement on compassionate release largely mirrors the statutory language and adds the requirement that the defendant be unlikely to pose a danger to the safety of any other person or the community as provided in 18 U.S.C. § 3142(g). See U.S.S.G. § 1B1.13(2). However, the policy statement has not been updated since enactment of the First Step Act, which amended 18 U.S.C. § 3582(c)(1)(A) to allow defendants, rather than BOP alone, to petition the court for compassionate release. See United States v. Brooker, 976 F.3d 228, 231-34, 236 (2d Cir. 2020) (holding that the policy statement does not apply to motions for compassionate release brought by defendants). Even absent the policy statement, however, a defendant's dangerousness is a paramount concern under § 3553(a), which the court is required to consider in every compassionate release case. See 18 U.S.C. § 3582(c)(1)(A) ; 18 U.S.C. § 3553(a)(1), (2)(C) (court must consider "the nature and circumstances of the defendant's offense," the defendant's "history and characteristics," and the need "to protect the public from further crimes of the defendant"); United States v. Bradshaw, No. 1:15-CR-422, 2019 WL 7605447, at *3 (M.D.N.C. Sept. 12, 2019) (noting overlap between policy statement's dangerousness requirement and analysis of § 3553(a) factors).

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

BACKGROUND

The grand jury indicted Mr. Patten on these charges on May 16, 2018, and a warrant for his arrest issued that same day. Mr. Patten was arrested pursuant to that warrant on September 5, 2018. He has been in custody since that time. On January 29, 2019, Mr. Patten pled guilty pursuant to a plea agreement on one count of possession with intent to distribute a controlled substance and one count of possession of a firearm and ammunition by an unlawful user of a controlled substance. See 21 U.S.C. § 841(a)(1) ; 18 U.S.C. § 922(g)(3). The parties’ plea agreement contained a stipulation to a 48-month sentence under Federal Rule of Criminal Procedure 11(c)(1)(C). On May 29, 2019, the court sentenced Mr. Patten to a 48-month term of imprisonment and a three-year period of supervised release. The court also recommended to BOP that Mr. Patten participate in BOP's intensive drug education and treatment program while incarcerated. Mr. Patten has served more than one-half of his 4-year sentence. On December 17, 2020, Mr. Patten filed the instant motion for compassionate release.

DISCUSSION

Mr. Patten has exhausted his administrative remedies. The BOP denied Patten's request for a reduction in sentence (doc. no. 22-1), so his motion is properly before the court. Thus, to determine whether Mr. Patten is eligible for a sentence reduction, the court must consider: (1) whether there are extraordinary and compelling reasons for a sentence reduction; and (2) applicable sentencing factors under § 3553(a). See 18 U.S.C. § 3582(c)(1)(A).

I. Extraordinary and Compelling Reasons

Mr. Patten contends that he has several medical conditions that put him at a high risk for experiencing severe illness should he contract COVID-19. The government concedes that Mr. Patten's medical conditions meet the "extraordinary and compelling" prong of the test for early release.

Specifically, Mr. Patten has Hepatitis C, chronic elevation of liver enzymes suggesting a diagnosis of nonalcoholic fatty liver disease, a "mildly heterogeneous" liver, and hyperlipidemia (more commonly known as high cholesterol). Doc. no. 22 at 4-5. He also states that, as of September 9, 2019, his body mass index (BMI) was 28.7. Mr. Patten argues that these conditions, combined with the known presence of COVID-19 at FCI Allenwood-Low, constitute extraordinary and compelling reasons for a sentence reduction.

In the context of the current pandemic, courts have held that a generalized risk of infection by the virus is not, by itself, sufficient to constitute an extraordinary and compelling reason for release.

See United States v. Ramirez, 459 F. Supp. 3d 333, 337-38 (D. Mass. 2020) (collecting cases). "On the other hand, a combination of health and age 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 defendant is incarcerated may 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) ; see also, e.g., United States v. Rich, 471 F. Supp. 3d 441, 446-47 (D.N.H. 2020) (finding that defendant's documented history of bronchitis, reactive airway disease, and smoking combined with current outbreak at defendant's prison constituted extraordinary and compelling reason for release).

When determining whether a defendant is at a particularly high risk of experiencing severe illness from COVID-19, courts have generally looked to the CDC guidelines. See, e.g., United States v. Nygren, 1:16-cr-00106-JAW, 2020 WL 4208926, at *11-12 (D. Me. July 22, 2020). The CDC emphasizes that "COVID-19 is a new disease" and that currently there is "limited data and information about the impact of many underlying medical conditions on the risk for severe illness from COVID-19."¹ Based on the limited information known, the CDC has identified certain categories of people who are at an increased risk for experiencing severe illness from COVID-19: older adults and people of all ages with certain underlying medical conditions.²

The CDC states that persons with chronic liver disease may be at an increased risk of severe illness from COVID-19.³ Here, Mr. Patten has multiple chronic liver conditions, including hepatitis C and nonalcoholic fatty liver disease. The CDC expressly acknowledges that nonalcoholic fatty liver disease is a chronic liver condition that may increase the risk of contracting a severe case of COVID-19.⁴ In addition, the CDC states that being overweight—i.e., having a BMI of between 25 and 30—might increase the risk of severe illness from COVID-19.⁵ Mr. Patten asserts, and the government does not contest, that BOP recorded his BMI as 28.7 in September 2019. The court concludes that, when considered together, Mr. Patten's chronic liver conditions and his BMI, both of which are recognized by the CDC as potential risk factors, increase the risk that he will suffer a severe case of COVID-19. See United States v. Gonzalez-Quiroz, No. 18-CR-4517 (DMS), 2020 WL 3868751, at *2 (S.D. Cal. July 9, 2020) (defendant demonstrated extraordinary and compelling reason for release where he suffered from fatty liver disease and hypertension and had a BMI of approximately 37); United States v. Khawaja, Crim. No. 18-cr-127-LM, 2020 WL 5549123, at *3-4 (D.N.H. Sept. 16, 2020) (defendant demonstrated extraordinary and compelling reason for release where he suffered from two conditions recognized by CDC to potentially increase risk from COVID-19).

In addition, Mr. Patten suffers from hyperlipidemia. While elevated cholesterol is not a medical condition expressly recognized by the CDC to increase the risk from COVID-19, the CDC does recognize that "[t]he more underlying medical conditions someone has, the greater the risk is for severe illness from COVID-19."⁶ As this court has previously recognized, "[t]he collective risks associated with several non-serious medical conditions, when considered together and in combination with the risks posed by COVID-19 in the defendant's facility, can provide an extraordinary and compelling reason to reduce the defendant's sentence." Hilow, 2020 WL 2851086, at *4 ; see United States v. McElrath, No. 3-cr-235 (JNE)(1), 2020 WL 5423067, at *2 ...