United States v. Perkins

480 F.Supp.3d 360

UNITED STATES of America

v.Roger PERKINS

Criminal No. 14-cr-104-LM-1

United States District Court, D. New Hampshire.

Signed August 18, 2020

Jennifer C. Davis, US Attorney's Office, Concord, NH, for United States of America.

ORDER

Landya McCafferty, United States District Judge In this case, the court recommends to the Bureau of Prisons (BOP) that it exercise its discretion to release defendant to home confinement on a temporary basis. The release would last for the duration of the national emergency declared as a result of the COVID-19 pandemic. Defendant has served almost 60% of his 12-year federal sentence for serious crimes. Defendant qualifies for release to home confinement on a temporary basis because of the high likelihood that defendant will die (or suffer severe illness) were he to contract COVID-19 while incarcerated. In addition, despite his criminal record, defendant appears to be a low risk for dangerousness if released under strict supervision. BOP has rated defendant a low risk for violence and has housed him in a low security prison facility.

The court sentenced defendant to a lengthy term of incarceration. The court did not intend, however, that defendant suffer the very real risk of death while serving that sentence. A court does not have the power to release a defendant on a temporary or furloughed basis. Rather, pursuant to a court's "compassionate release" order, a defendant typically receives a "time served" sentence and is released to home confinement for the remainder of his original sentence.

Were the court to grant compassionate release in this case, defendant would serve the approximately four years remaining on his prison sentence at home.¹ It appears unlikely, however, that the pandemic will last four more years. Should a successful vaccine be developed within the next year, for example, defendant would remain on release—pursuant to a court's compassionate release order—despite the elimination of the reason for his early release. This defendant serving 60% of his original sentence is a result at odds with the goals of sentencing, particularly the goal of promoting respect for the law.

There is an answer to this dilemma. BOP has the power to release this defendant to home confinement for a limited time: the duration of the national emergency. At the end of the pandemic, BOP may order defendant to return to prison to serve out the remainder of his original sentence. The court urges BOP to exercise its power in this manner rather than cede this decision to the court.

For the reasons explained below, a release to last only for the duration of the pandemic is consistent with all of the goals of sentencing.

BACKGROUND

On July 21, 2015, defendant, Roger Perkins, pleaded guilty to three charges: one count of conspiracy to possess with intent to distribute 28 grams or more of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(B)(iii), and 846 ; one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) ; and one count of possessing a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). On November 3, 2015, the court sentenced defendant to 147 months of imprisonment—87 months on counts 1 and 2 to be served concurrently and 60 months on count 3 to be served consecutively to counts 1 and 2—and five years of supervised release.

Defendant now moves for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A), based on the threat posed to his health by the combination of his underlying medical conditions and the spread of COVID-19 in the Federal Correctional Institution ("FCI") Danbury where he is incarcerated. 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 telephonic hearing on defendant's motion on July 23, 2020, at which defendant was present.

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 likely to pose 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; and (2) 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, 16–17 (D.N.H. May 12, 2020) (internal quotation marks omitted).

DISCUSSION

I. Extraordinary and Compelling Reasons

It is undisputed that defendant has several co-occurring medical conditions that put him at high risk for severe illness or death should he contract COVID-19, including morbid obesity, hypertension, obstructive sleep apnea, and several other less serious, but chronic, conditions. Defendant has submitted medical records evidencing these diagnoses. See doc. no. 80-8.² He argues that his health conditions combined with the known presence of COVID-19 at FCI Danbury constitute extraordinary and compelling reasons supporting his release. The government concedes that defendant is morbidly obese, that this diagnosis places him in a high-risk category under the Centers for Disease Control and Prevention ("CDC") guidelines, and that he has therefore established extraordinary and compelling reasons. Although this point is not disputed, the court will discuss it briefly to emphasize the severity of the risk to defendant's health.

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 warranting release. See United States v. Ramirez, No. CR 17-10328-WGY, 459 F.Supp.3d 333, 337–38 (D. Mass. May 12, 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 prisoner is incarcerated may demonstrate extraordinary and compelling reasons to reduce the prisoner's sentence." United States v. Bischoff, No. 17-CR-196-JD, 460 F.Supp.3d 122, 125 (D.N.H. May 19, 2020) (collecting cases in support); see also, e.g., United States v. Rich, Crim. No. 17-cr-094-LM, 471 F.Supp.3d 441, 445–48 (D.N.H. Jun. 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 reason).

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, No. 1:16-CR-00106-JAW, 2020 WL 4208926, at *11-12 (D. Me. July 22, 2020) ; Rasberry, 2020 WL 3977614, at *3-4. The CDC emphasizes that "COVID-19 is a new disease" and that there is "limited data and information about the impact of underlying medical conditions and whether they increase the risk for severe illness from COVID-19."³ 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...