UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 17-cr-094-LM Opinion No.

Tanner Rich

O R D E R

Defendant, Tanner Rich, pleaded guilty to one count of

conspiracy to possess with intent to distribute fentanyl in

violation of

(a)(1), 841(b)(1)(B)(vi), and 846 in

May 2018. On August 29, 2018, this court sentenced defendant to

60 months of imprisonment and four years of supervised release.

Defendant is currently serving that sentence at the Camp at the

Federal Medical Center (“FMC”) Devens. He requests that this

court grant him compassionate release pursuant to

(c)(1)(A) based on the danger posed to his health by the

combination of his underlying medical condition and the threat

of contracting COVID-19 while incarcerated. The government

concedes that defendant has exhausted his administrative

remedies under the statute but objects to defendant’s request.

The court held a telephonic hearing on defendant’s motion on May

22, 2020. STANDARD OF REVIEW

A court may grant so-called “compassionate release” to a

defendant under

(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.

(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

2 reasons warrant” a reduction in his sentence, that the court

consider the factors set forth in

(a) to the

extent applicable, and that the reduction be “consistent” with

the Sentencing Commission’s applicable policy statements.

(c)(1)(A). The Sentencing Commission’s policy

statement regarding compassionate release 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

(g). See U.S.S.G. § 1B1.13(2);

(g) (listing factors court should consider in

determining whether any conditions of release exist that will

“reasonably assure . . . the safety of any other person and the

community”).

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; (2)

finds that the defendant is not likely to be a danger to the

safety of any other person or the community; and (3) considers

the sentencing factors outlined in

(a). See

(c)(1)(A); U.S.S.G. § 1B1.13; see also United

States v. Sapp, No. 14-CR-20520,

, at *2 (E.D.

Mich. Jan. 31, 2020); United States v. Willis,

(D.N.M. 2019). The defendant has the burden of

3 showing that he is entitled to a sentence reduction. United

States v. Ebbers, No. S402CR11443VEC,

, at *4

(S.D.N.Y. Jan. 8, 2020). And the court has “broad discretion in

deciding whether to grant or deny a motion for sentence

reduction.” United States v. Paul Gileno, No. 3:19-CR-161-

(VAB)-1,

, at *2 (D. Conn. Mar. 19, 2020)

(internal quotation marks omitted).

DISCUSSION

I. Extraordinary and Compelling Reason

Defendant contends that his history of chronic bronchitis

and other respiratory illnesses puts him at substantial risk of

experiencing severe illness should he contract COVID-19. He

further contends that he has an increased risk of becoming

infected with the virus because inmates and staff members at FMC

Devens have tested positive.

The Commentary to the Sentencing Guidelines Policy

Statement regarding compassionate release identifies four

categories of “extraordinary and compelling reasons” that

justify a sentence reduction: defendant’s medical condition;

defendant’s age; defendant’s family circumstances; and a

catchall category. U.S.S.G. § 1B1.13, App. Note 1. Under the

policy statement, a medical condition constitutes an

4 “extraordinary and compelling reason” if defendant is suffering

from a terminal illness, or has a serious physical or medical

condition, cognitive impairment, or deteriorating physical or

mental health due to age “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.” U.S.S.G. § 1B1.13, App. Note

1(A)(i)-(ii). The catchall category encompasses any

“extraordinary and compelling reason other than, or in

combination with” the defendant’s medical condition, age, or

family circumstances. See U.S.S.G. § 1B1.13, App. Note 1(D).1

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

1 To the extent the government argues that the court’s discretion is constrained by the definition of “extraordinary and compelling reasons” in the Bureau of Prison’s program statement on compassionate release, the court disagrees. See doc. no. 32 at 4-5. The Sentencing Guidelines currently define the catchall category as being “determined by the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13, App. Note 1(D). However, that provision has not been amended since the passage of the First Step Act. Therefore, this court agrees with those courts that have held that the Sentencing Guidelines policy statement “provides helpful guidance” but “does not constrain the Court’s independent assessment of whether ‘extraordinary and compelling reasons’ warrant a sentence reduction under § 3582(c)(1)(A).” United States v. Beck,

, 579 (M.D.N.C. 2019); see also United States v. Bucci,

, 2 (D. Mass. 2019); United States v. Fox, No. 2:14-CR-03- DBH,

, at *3 (D. Me. July 11, 2019).

5 reason warranting release. See United States v. Ramirez, No. CR

17-10328-WGY,

, at *3 (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,

, at *2 (D.N.H. May 19, 2020) (collecting

cases in support); see also, e.g., Ramirez,

, at

*9 (granting compassionate release to 57-year old inmate

suffering from diabetes and hypertension housed in a facility

where several inmates and staff had tested positive for the

virus).

In determining whether a prisoner is at a particularly high

risk of experiencing severe illness from COVID-19, courts have

generally looked to the Centers for Disease Control and

Prevention (“CDC”) guidelines. See, e.g., United States v.

Ullings, No. 1:10-CR-00406,

, at *1 (N.D. Ga. May

12, 2020); United States v. Dunlap, No. 1:02CR165-1,

, at *2 (M.D.N.C. Apr. 29, 2020). The CDC emphasizes that

“COVID-19 is a new disease and there is limited information

6 regarding risk factors for severe disease.”2 Based on the

limited information known, the CDC has identified certain

categories of people as being at “high-risk for severe illness

from COVID-19.” Those high-risk individuals include “[p]eople

of all ages with underlying medical conditions, particularly if

not well controlled, including: People with chronic lung disease

or moderate to severe asthma . . . .”3 The CDC describes

“chronic lung disease” as including chronic obstructive

pulmonary disease (COPD) (including emphysema and chronic

bronchitis).”4

Defendant’s medical records demonstrate that he has a

history of bronchitis and other respiratory issues sufficient to

put him at a higher-risk for severe illness from COVID-19. Most

importantly, in December 2016, defendant was treated for

bronchitis and his treating physician wrote that defendant “is

2 CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-at-higher-risk.html (last visited May 22, 2020).

3 CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-at-higher-risk.html (last visited May 22, 2020).

4 CDC, Groups at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/groups-at-higher-risk.html (last visited May 22, 2020).

7 prone to bronchitis and has a history of reactive airway

disease.” Def.’s Ex. A at 1-2. Defendant was also treated for

bronchitis in 2008 and treated for other respiratory illnesses

in 2009 and 2007. See id. at 4-8. In addition to these medical

records, defendant’s mother testified credibly at the hearing

that defendant experienced respiratory illnesses “over and over”

throughout his adolescence, but that he did not always seek

medical care.

Also of note, defendant has a documented history as a

smoker prior to his incarceration. Doc. no. 32-4 at 6. The CDC

acknowledges that smoking can render people “immunocompromised,”

putting them in the high-risk category.5 And a recent study

shows that people who currently smoke or previously smoked

cigarettes are at a substantially higher risk for complications

from COVID-19 than non-smokers.6 Defendant’s documented history

of bronchitis, “reactive airway disease,” and smoking convince

the court that he is at a substantially higher risk of

5 CDC, People Who Are at Higher Risk for Severe Illness, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-at-higher-risk.html (last visited May 22, 2020).

6 See Elizbeth Fernandez, University of California San Francisco, Smoking Nearly Doubles the Rate of COVID-19 Progression, https://www.ucsf.edu/news/2020/05/417411/smoking- nearly-doubles-rate-covid-19-progression (last visited May 22, 2020).

8 experiencing severe illness or complications from COVID-19. Cf.

United States v. Khawaja, No. 18-CR-127-LM,

, at

*4, *6 (D.N.H. Apr. 22, 2020) (denying compassionate release

request where defendant submitted no medical records evidencing

his “breathing difficulties”).

The court acknowledges that defendant’s more recent

medical records from his current incarceration do not reflect

any ongoing respiratory issues. However, the health screenings

conducted by the Bureau of Prisons appear directed towards

detecting current problems, not long-term health conditions.

See, e.g., doc. no. 32-3 at 1 (showing “denied” as to

respiratory issues).

The government argues that the court should not find

defendant particularly vulnerable to COVID-19 because he does

not have a documented diagnosis for “chronic bronchitis.” Given

the novelty of the coronavirus and the medical community’s

evolving knowledge about who is high risk, the court is not

inclined to read defendant’s medical records as narrowly as the

government urges. Although defendant’s doctor did not use the

phrase “chronic bronchitis” to describe defendant’s condition,

the doctor described defendant as “prone to bronchitis” with “a

history of reactive airway disease.” That is close enough to

“chronic bronchitis” for the court. Moreover, defendant not

9 only has a history of bronchitis, he also has a history as a

heavy smoker. These two issues place him in a high-risk

category.

Defendant has also shown that the risk that he will

contract COVID-19 while incarcerated is more than speculative.

Many courts, including this one, have recognized that the nature

of the prison environment itself enhances the likelihood that

prisoners will catch this highly contagious virus. See Gomes v.

US Dep’t of Homeland Sec., Acting Sec’y et. al., No. 20-CV-453-

LM,

, at *4 (D.N.H. May 14, 2020); Bischoff,

, at *2 (collecting cases). That is especially true

where there is already a documented outbreak at the prison.

BOP’s website reports that, as of May 26, 2020, 24 inmates and 2

staff members at FMC Devens have tested positive for the virus,

and one inmate has already succumbed to the virus. See BOP,

COVID-19 Cases, https://www.bop.gov/coronavirus/ (last visited

May 26, 2020)(FMC Devens Facility); doc. no. 39-1.

The court finds that defendant’s health condition putting

him at higher risk for severe illness from the virus combined

with the increased likelihood that he may contract the virus

while at FMC Devens constitutes an extraordinary and compelling

reason.

10 II. Danger to Safety of Others

Next, the court must consider whether, if released,

defendant is likely to pose a danger to the safety of any other

person or the community. See U.S.S.G. § 1B1.13(2);

(g). Relevant factors include the nature of defendant’s

offense, his history and characteristics, and the nature of the

danger he might pose to a specific person or the community at

large. See

(g).

Defendant committed a serious drug offense involving a

dangerous drug—fentanyl. He also possessed a firearm during the

commission of that crime, enhancing the dangerousness factor.

At the time of that offense, defendant was struggling with

substance abuse issues. Since being incarcerated, however,

defendant has completed multiple drug treatment programs. These

rehabilitative efforts mitigate his dangerousness. Importantly,

other than the federal drug trafficking offense, defendant has a

minimal criminal history as acknowledged by the government. The

court therefore finds that if released defendant is not likely

to pose a danger to the safety of any person or the community.

11 III. Sentencing Factors

Finally, the court must consider whether a reduction in

defendant’s sentence is consistent with the sentencing factors

outlined in

(a) to the extent they are

applicable. See

(c)(1)(A). Specifically, the

court will consider whether the § 3553(a) sentencing factors

support a reduction in defendant’s sentence, or, alternatively,

whether they outweigh the “extraordinary and compelling reasons”

discussed above and compel denial of the motion. See, e.g.,

United States v. Webster, No. 3:91CR138 (DJN),

,

at *6 (E.D. Va. Feb. 10, 2020); Ebbers,

, at *7.

The court finds that the § 3553(a) factors support a

reduction in defendant’s sentence. As mentioned above,

defendant has completed multiple drug treatment programs. He

completed Moral Reconation Therapy while incarcerated in

Cheshire County and completed a non-residential drug treatment

program while in federal prison. Notably, the prison selected

defendant to participate in an outreach program in local schools

where defendant speaks to students about the dangers of drug

addiction. Defendant has been an active participant in that

program. As explained above, defendant is not likely to pose a

danger to the community. The court finds that a reduction to

time served followed by a term of special supervised release

12 until November 17, 2021 on home confinement will serve the goals

of sentencing, including punishment.

IV. Summary

The court finds that defendant has met his burden of

showing that he is entitled to a sentence reduction under §

3582(c)(1)(A). His underlying health issues combined with the

presence of COVID-19 at FMC Devens put him at a substantially

high risk of contracting the virus and suffering severe illness

or death. This constitutes an extraordinary and compelling

reason warranting release. Defendant’s minimal criminal history

and demonstrated efforts to rehabilitate himself show that he is

not likely to be a danger to the community and that a reduction

in his sentence of incarceration is consistent with

(a).

CONCLUSION

For the foregoing reasons, defendant’s motion for

compassionate release (doc. no. 31) is granted as follows:

1) The defendant’s sentence will be reduced to time served.

2) The defendant will be placed on a special term of

supervised release until November 17, 2021, which is equivalent

to what his discharge date would have been from the BOP, during

13 which time he will remain on home confinement under the terms of

release outlined in Appendix A.

3) Following the term of special supervised release, the

defendant will be placed on supervised release for a term of

four years.

4) During the terms of special supervised release and

supervised release, the defendant shall be subject to the

Supervision Conditions as set forth in Appendix A.

5) The BOP shall release the defendant immediately

following processing.

6) The court recommends that the BOP screen the defendant

for COVID-19 within twelve hours prior to his release, and if he

is displaying symptoms consistent with COVID-19, test the

defendant and share the results with the United States Probation

Office in the District of New Hampshire.

7) The court will issue an amended criminal judgment.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

June 3, 2020

cc: Counsel of Record U.S. Probation U.S. Marshal

14 APPENDIX A

SUPERVISION CONDITIONS:

Within seventy-two hours of release from custody of the Bureau of Prisons, the defendant shall report in person to the district to which the defendant is released.

While under supervision, the defendant must comply with the following mandatory conditions:

The defendant must not commit another federal, state, or local crime.

The defendant must not unlawfully possess a controlled substance.

The defendant must refrain from any unlawful use of a controlled substance. The defendant must submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

The defendant must cooperate in the collection of DNA as directed by the probation officer.

While under supervision, the defendant must also comply with the following standard conditions of supervision that have been adopted by this court:

1. The defendant must report to the probation office in the federal judicial district where he is authorized to reside within 72 hours of his release from imprisonment, unless the probation officer instructs him to report to a different probation office or within a different time frame.

2. After initially reporting to the probation office, the defendant will receive instructions from the court or the probation officer about how and when he must report to the probation officer, and he must report to the probation officer as instructed.

3. The defendant must not knowingly leave the federal judicial district where he is authorized to reside without first getting permission from the court or the probation officer. 4. The defendant must answer truthfully the questions asked by his probation officer.

5. The defendant must live at a place approved by the probation officer. If he plans to change where he lives or anything about his living arrangements (such as the people he lives with), the defendant must notify the probation officer at least 10 days before the change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change.

6. The defendant must allow the probation officer to visit him at any time at his home or elsewhere, and he must permit the probation officer to take any items prohibited by the conditions of his supervision that the probation officer observes in plain view.

7. The defendant must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses him from doing so. If the defendant does not have full-time employment he must try to find full-time employment, unless the probation officer excuses him from doing so. If the defendant plans to change where he works or anything about his work (such as his position or his job responsibilities), the defendant must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, the defendant must notify the probation officer within 72 hours of becoming aware of a change or expected change.

8. The defendant must not communicate or interact with someone he knows is engaged in criminal activity. If the defendant knows someone has been convicted of a felony, he must not knowingly communicate or interact with that person without first getting the permission of the probation officer.

9. If the defendant is arrested or questioned by a law enforcement officer, he must notify the probation officer within 72 hours.

10. The defendant must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or was modified for, the

2 specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

11. The defendant must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without first getting the permission of the court.

12. If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require him to notify the person about the risk and he must comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.

13. The defendant must follow the instructions of the probation officer related to the conditions of supervision.

In addition, the defendant must comply with the following special conditions:

1. Upon release, the defendant must obtain transportation directly from the prison to his approved residence. The defendant must eliminate or minimize any stops during that transport.

2. The defendant must self-quarantine in an approved residence during the first fourteen days of his supervised release.

3. The defendant is restricted to his residence at all times during his term of special supervised release except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the officer. During this time period, the defendant will be monitored by Location Monitoring technology at the discretion of the probation officer. The defendant must follow the rules and regulations of the location monitoring program. The defendant must pay for the cost of the program to the extent he is able, as determined by the probation officer. If, after six months, defendant has not violated this condition or any other condition of his special supervised release, the court will favorably consider his request to lift this condition.

3 4. The defendant must participate in a mental health treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise the defendant’s participation in the program (provider, location, modality, duration, intensity, etc.). The defendant must pay for the cost of treatment to the extent he is able, as determined by the probation officer.

5. The defendant must participate in an outpatient substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise the defendant’s participation in the program (provider, location, modality, duration, intensity, etc.). The defendant must pay for the cost of treatment to the extent he is able, as determined by the probation officer.

6. The defendant must not use or possess any controlled substances without a valid prescription. If the defendant has a valid prescription, he must disclose the prescription information to the probation officer and follow the instructions on the prescription.

7. The defendant must submit to substance abuse testing to determine if he has used a prohibited substance. The defendant must pay for the cost of testing to the extent he is able, as determined by the probation officer. The defendant must not attempt to obstruct or tamper with the testing methods.

8. The defendant must not use or possess alcohol.

9. The defendant must not go to, or remain at any place where he knows controlled substances are illegally sold, used, distributed, or administered without first obtaining the permission of the probation officer.

10. The defendant must not knowingly purchase, possess, distribute, administer, or otherwise use any psychoactive substances (e.g. synthetic marijuana, bath salts, etc.) that impair a person’s physical or mental functioning, whether or not intended for human consumption, except with the prior approval of the probation officer.

11. The defendant must submit his person, property, house, residence, vehicle, papers, computers (as defined in

(e)(1)), other electronic communications or data storage devices or media, or office, to a search conducted by the United

4 States probation officer. Failure to submit to a search may be grounds for revocation of release. The defendant must warn any other occupants that the premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this condition only when reasonable suspicion exists that the defendant has violated a condition of supervision and that the areas to be searched contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.

5