United States v. Perry

512 F.Supp.3d 194

UNITED STATES of America, Plaintiff,

v.Kevin A. PERRY, Jr., Defendant.

CIVIL ACTION NO. 4:17-cr-40010-TSH

United States District Court, D. Massachusetts.

Filed January 12, 2021

Greg A. Friedholm, United States Attorney's Office, Worcester, MA, for Plaintiff.

ORDER ON DEFENDANT'S SUPPLEMENTAL MOTION FOR COMPASSIONATE RELEASE (Docket No. 261)

HILLMAN, D.J.,

I sentenced Mr. Perry to 168 months of incarceration after he entered into a guilty plea to nine counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B), three counts of unlawful structuring of cash deposits of 31 U.S.C. §§ 5324(a) ; one count of false statement on a loan application; and one count of distribution of fentanyl in violation of 21 U.S.C. §§ 841(a) and (b)(1)(A). In exchange for his guilty plea, the Government agreed not to file a § 851 Information, which would have imposed a mandatory minimum sentence of 20 years.

Mr. Perry previously sought to convert the reminder of his sentence to home confinement due to the COVID-19 pandemic in motions before this Court on April 27, 2020; June 8, 2020; August 7, 2020; and October 19, 2020 (Docket Nos. 232, 245, 249, and 256). All were denied without prejudice so that Mr. Perry could renew his motion upon a change in circumstances in his health or at his assigned BOP facility relating to the COVID-19 pandemic.

Upon consideration of the current and potential prospective impact of the pandemic together with an individualized assessment of relevant factors as they pertain to Mr. Perry, including (1) the defendant's age and health, including whether the defendant has any health conditions that place him at increased risk of serious illness or death from COVID-19; (2) the health, safety, and living conditions at the facility where the defendant is housed, any specific crowding issues, and the specific steps taken by the facility in response to the spread of COVID-19; and (3) the crime of conviction and length of the defendant's remaining sentence, I am not convinced that he has, at this time, met the burden necessary to secure a compassionate release.

Since my Order on November 10, 2020 (Docket No. 258), Mr. Perry has substantially recovered from COVID-19, but continues to experience lingering symptoms including "periodic, lingering headaches, memory loss and "just not feeling like himself." (Docket No. 261 at 3). He adds that he remains at risk for reinfection, though according to the BOP there are currently 0 inmate COVID-19 cases and 5 staff COVID-19 cases at FCI Berlin. BUREAU OF PRISONS: COVID-19 CASES , https://www.bop.gov/coronavirus/index.jsp (last accessed Jan. 11, 2021).¹ Furthermore, reinfection appears to be rare. CENTERS FOR DISEASE CONTROL & PREVENTION , REINFECTION WITH COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/your-health/reinfection.html (last accessed Jan. 10, 2021). Finally, Mr. Perry notes that he should be released so that he may live with and care for his ailing father, and that the Court should take into account future potential reductions in his sentence when assessing what proportion of that sentence he has already served, including good time credit from programming that was cancelled due to COVID-19, his eligibility for a pre-release placement, and his pending motion to vacate his underlying conviction.

I have already considered factors including his prior course of COVID-19 and his prolonged time in isolation due to the BOP's preventative measures to reduce the spread of the disease throughout the prison population. I have also previously recognized that Mr. Perry is at an increased risk...