UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 19-cr-091-JD Opinion No.

Dustin Grant

O R D E R

Dustin Grant moves pursuant to

(c)(1)(A) to

have his sentence reduced to time served based on his medical

conditions and the risks presented by the COVID-19 pandemic.

The government has filed an objection, which is supported by an

opinion by Dr. Gavin Muir about Grant’s medical conditions in

relation to COVID-19. The United States Probation and Pretrial

Services has filed a report.

Standard of Review

The Director of the Bureau of Prisons {“BOP”} may bring a

motion on behalf of a defendant to reduce the term of the

defendant’s imprisonment. § 3582(c)(1)(A). If the Director

does not file such a motion on behalf of a defendant, the

defendant may file a motion on his or her own behalf in certain

circumstances. The defendant must have “fully exhausted all

administrative rights to appeal a failure of the BOP to bring a

motion on the defendant’s behalf” or, thirty days must have passed since the warden at the defendant’s facility received the

defendant’s request without a response. Id.

When a defendant has satisfied the administrative

exhaustion requirement, the court may reduce a term of

imprisonment based on a finding that “extraordinary and

compelling reasons warrant such a reduction” and “after

considering the factors provided in [18 U.S.C. §] 3553(a) to the

extent that they are applicable.” § 3582(c)(1)(A). The court

also considers whether the requested “reduction is consistent

with applicable policy statements issued by the Sentencing

Commission.” § 3582(c)(1)(A). The applicable policy statement

provides guidance on when extraordinary and compelling

circumstances may be found.1 U.S.S.G. 1B1.13.

Background

Dustin Grant is thirty-five years old. He was convicted on

a charge of distribution of a controlled substance (Suboxone).

Although his sentencing guideline range was twenty-seven to

1 Application Note 1 to U.S.S.G. § 1B1.13 provides guidance as to when an extraordinary and compelling reason to reduce a defendant’s sentence may exist. “[A] serious physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover,” constitutes an extraordinary and compelling reason. Id.

2 thirty-three months, the court granted a downward variance and

sentenced him to twenty-four months in jail. He is serving his

sentence at Metropolitan Detention Center (“MDC”) in Brooklyn,

New York. His projected release date is December 21, 2020.

Counsel for Grant filed a motion for compassionate release

on his behalf with the BOP on March 30, 2020. His request was

denied on April 29, 2020, because the warden found that Grant

did not meet the criteria established in Program Statement

5050.50 for release or reduction in sentence under §

3582(c)(1)(A).2 It does not appear that he filed an appeal.

Grant has two medical conditions that he raises in support

of his motion, endocarditis and hepatitis C. He was

hospitalized because of endocarditis from June to October of

2018. He had open heart surgery on August 12, 2018, to repair

his mitral valve. He was hospitalized again in April of 2019,

following his arrest, because of chest pain. His records from

that time show that his valve was intact, that his vital signs

were stable, and that he did not have signs of heart failure.

Dr. Gavin Muir is the chief medical officer of Amoskeag

Health, in Manchester, New Hampshire. He is board certified in

family medicine and is affiliated with Elliot Hospital in

2 Program Statement 5050.50 is a BOP regulation for implementing § 3582. See United States v. Davis,

, at *4 (D. Md. June 23, 2020).

3 Manchester. In order to prepare the opinion that he provided to

the government in support of the government’s objection, Dr.

Muir reviewed the recommendations from the Center for Disease

Control website on patients at higher risk due to COVID-19 and

underlying medical conditions. He also reviewed Grant’s

underlying medical conditions of endocarditis and hepatitis C as

presented in his motion for compassionate release and in the

November of 2019 presentence report.

Dr. Muir concluded that Grant’s past endocarditis is not a

current serious heart condition. He explained that endocarditis

is an infection that is treated with antibiotics and is not an

ongoing disease process. He states that there is nothing

presented that shows problems after Grant’s heart surgery.

With respect to hepatitis C, Dr. Muir states that there is

no showing that Grant has liver disease. In the absence of

liver disease, hepatitis C does not pose a risk of health

complications. Therefore, Dr. Muir provided his opinion that

Grant does not have a condition that puts him at higher risk to

develop a severe illness if infected with COVID-19.

Senior United States Probation Officer Sean Buckley filed a

report on Grant’s request for compassionate release. In the

report, Officer Buckley reviewed Grant’s crime of conviction and

the grounds presented in support of Grant’s motion for

4 compassionate release. Officer Buckley reports that there has

been no change in Grant’s medical conditions since his

incarceration at the BOP. Officer Buckley informs the court

that, with respect to Grant’s risk of recidivism and danger to

the community, Grant has a significant criminal record and a

significant history of substance abuse. He committed the crime

of conviction while he was on parole and probation. Grant is

also alleged to have participated in misconduct at the Strafford

County Department of Corrections before his conviction.

The government provides information about the BOP’s

response to the COVID-19 pandemic. The government reports that

as of June 16, 2020, MDC Brooklyn, where Grant is incarcerated,

had only three COVID-19 cases among the inmates and six cases

among the staff.

Discussion

In support of his motion under § 3582(c)(1)(A), Grant

contends that his medical conditions of endocarditis and

hepatitis C in combination with the risk of infection with

COVID-19 provide an extraordinary and compelling reason to

reduce his sentence to time served and to release him to home

confinement. The government objects to the motion, arguing that

Grant has not shown an extraordinary or compelling reason to

5 reduce his sentence.

A. Administrative Exhaustion

Counsel filed a motion on Grant’s behalf with the warden

for relief under § 3582(c)(1)(A), which was denied. Although it

does not appear that Grant appealed the denial, the government

does not object on the ground that he failed to exhaust

administrative remedies. Therefore, the court moves on to the

merits of his motion under § 3582(c)(1)(A).

B. Extraordinary and Compelling Reason

“A generalized risk of infection with COVID-19, by itself,

is not enough to show extraordinary and compelling reasons for a

reduction in sentence.” United States v. Bischoff, --- F. Supp.

---,

, at *2 (D.N.H. May 19, 2020); see also

United States v. Raia,

, 597 (3d Cir. 2020); United

States v. Shaw,

, at *3 (E.D. Tex. June 24,

2020); United States v. Quintana,

, at *3 (D.

Conn. June 24, 2020); United States v. Boykin-Johnson,

, at *2 (E.D. Mich. June 23, 2020). A combination of

health factors that put the inmate at higher risk if infected

with COVID-19 along with a documented risk of infection in the

6 facility where the inmate is incarcerated, however, can meet the

§ 3582(c) standard. See, e.g., United States v. Plummer,

, at *2 (S.D.N.Y. June 23, 2020) (citing cases);

United States v. Oliver,

, at *6 (E.D. Mich. May

28, 2020); United States v. Jackson,

, at *3

(W.D. Va. May 26, 2020); Bischoff,

, at *2;

United States v. Ramirez,

, at *9 (D. Mass. May

12, 2020). An inmate seeking relief under § 3582(c) bears the

burden of showing that he meets the statutory requirements.

United States v. Ebbers,

, 426 (S.D.N.Y.

2020); United States v. Mayfield,

, at *1 (D.N.J.

May 27, 2020); United States v. Britton,

, at *1

(D.N.H. May 12, 2020).

Grant contends that endocarditis and hepatitis C are

serious medical conditions that put him at increased risk if he

were to contract COVID 19. He cites two cases filed by other

inmates at MDC Brooklyn that addressed the inmates’ motions

under § 3592(c)(1)(A) and provide information about the

incidence of COVID-19 at MDC Brooklyn. Those cases were decided

in April. Grant but provides no updated information about

numbers of cases of COVID-19 at MDC Brooklyn or about the

adequacy of the prison’s procedures to minimize the risk to

inmates. He provides no medical opinion to show that his

7 hepatitis C condition or his history of endocarditis are serious

medical conditions for him.

In contrast, the government provides information about the

BOP’s ongoing efforts to curb the spread of COVID-19 in prisons.

The government also represents that the number of cases at MDC

Brooklyn as of June 16 was low. More importantly, the

government provides the opinion of Dr. Muir who states that

neither hepatitis C nor endocarditis in Grant’s case is a

serious medical condition that puts him at increased risk if he

were to contract COVID-19.

Therefore, Grant has not carried his burden to show an

extraordinary and compelling reason to reduce his sentence under

§ 3582(c)(1)(A). Even if he were able to meet that burden,

however, the sentencing factors under § 3553(a) would weigh the

balance against a reduction in sentence.

C. Sentencing Factors

In addition to an extraordinary and compelling reason to

reduce his sentence, a defendant must show that the sentencing

factors under § 3553(a) support his motion to the extent the

factors are applicable. § 3582(c)(1)(A). He argues that if his

sentence were reduced as he asks, the reduced sentence would

still promote respect for the law, provide punishment, deter

8 further criminal conduct, and protect the public. The court

disagrees.

Grant’s sentence for this crime of conviction was only

twenty-four months. His criminal history, however, is

significant and includes several offenses for driving under the

influence of controlled substances or alcohol, several offenses

for possession of heroin and fentanyl, and violations of parole.

The crime of conviction was committed while Grant was on parole

and probation. Based on that history, Grant’s likelihood of

recidivism is significant, and incarceration is appropriate to

protect the public.

Conclusion

For the foregoing reasons, the defendant’s motion for

reduction in sentence under § 3582(c)(1)(A) (document no. 25) is

denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

June 29, 2020

cc: Counsel of record.

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