UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 19-cr-09-JD Opinion No.

Kristina Blake

O R D E R

Kristina Blake moves pursuant to

(c)(1)(A)

to have her sentence reduced to time served based on the

combined effect of her history of hepatitis C and the risks

presented by the COVID-19 pandemic.1 In the alternative, she

asks the court to recommend to the Bureau of Prisons (“BOP”)

that she be allowed to spend the maximum amount of her sentence

in home confinement under

. The government

objects to the requested relief. United States Probation and

Pretrial Services has filed a report and recommendation on the

motions.

Standard of Review

The Director of the BOP may bring a motion on behalf of a

defendant to reduce the term of the defendant’s imprisonment.

1 Blake filed a motion pro se, and then her counsel was reappointed to represent her for purposes of seeking relief under § 3582(c)(1)(A) and filed a second motion. § 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 statute also directs consideration of whether

the requested “reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” § 3582(c)(1)(A).

The applicable policy statement, United States Sentencing

Guidelines § 1B1.13, was issued before § 3582(c)(1)(A) was

amended under the First Step Act of 2018 to allow defendants to

seek a reduction of their sentences in court. See United States

v. Tardif,

, at *1 (D. Me. July 13, 2020). As a

result, courts have concluded that U.S.S.G. § 1B1.13 may guide

but does not limit the court’s authority to grant relief under

2 § 3582(c)(1)(A). That guidance provides that a defendant’s

term of imprisonment may be reduced if extraordinary and

compelling reasons warrant the reduction or the defendant meets

the age and time-served requirements and the defendant is not “a

danger to the safety of any other person or to the community”

and the reduction is consistent with the policy statement.

In addition, 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. Those

reasons include medical conditions, age, family circumstances,

and extraordinary and compelling reasons “other than, or in

combination with, the reasons described.”2

Background

Blake pleaded guilty to conspiracy to distribute and

possess with intent to distribute fifty grams or more of

methamphetamine, in violation of

and

841(b)(l)(A)(viii), and conspiracy to knowingly possess firearms

in furtherance of a drug trafficking crime, in violation of

(o). She was sentenced on November 21, 2019, to 120

2 The government also cites a BOP regulation from BOP Program Statement 5050.50 as providing additional guidance for sentence reduction under § 3582(c)(1)(A). The cited parts of the regulation, however, do not appear to be material to Blake’s motion.

3 months in prison. Her current release date, with good conduct

time, is October 31, 2027. She has served only 14% of her full

term. Blake is serving her sentence in a low security facility

at the Federal Correctional Institute in Danbury, Connecticut

(“FCI Danbury”).

Blake is thirty years old and has had hepatitis C since

2015 as a result of intravenous drug use. The government

consulted with Dr. J. Gavin Muir, Chief Medical Officer of

Amoskeag Health in Manchester, New Hampshire, about Blake’s

medical condition. Dr. Muir reviewed Blake’s records and

confirmed that she has had hepatitis C since 2015. Although the

records do not definitively establish that she has liver

disease, Dr. Muir concluded that it is likely that Blake does

have liver disease because of inflammation in her liver.

The CDC states that currently it has “no information about

whether people with hepatitis B or hepatitis C are at increased

risk for getting COVID-19 or having severe COVID-19.”

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-

precautions/liver-disease.html (last visited September 30,

2020). The CDC also states, however, that people serious

medical conditions, might be at higher risk for severe illness

from COVID-19, particularly if the underlying medical conditions

are not well controlled.” Id.

4 As is noted above, Blake is housed at FCI Danbury. At the

time of the motions and response, there were two active cases of

COVID-19 among inmates and none among the staff at FCI Danbury.3

Blake has made requests to the warden for a motion under

§ 3582(c)(1)(A), which have been denied.

In his report, the probation officer states that Blake has

a significant criminal history, primarily involving drug

offenses. Her crime of conviction involved significant amounts

of drugs and firearms. After her arrest, Blake attempted to

coerce her codefendant to provide false information on her

behalf. She also has close ties to gangs through family members

and friends, Gangster Disciple and BOWW, which is a white

supremacist gang. She committed the crime of conviction while

she was on parole for another drug crime.

In support of her motion, Blake states that if her sentence

were reduced and she were released to home confinement, she

would live with her mother in Franklin, New Hampshire. Blake’s

thirteen-year-old child also lives with her mother. Blake

represents that she would continue to participate in programs

for her medical and mental health and for drug addiction

treatment.

3 The same numbers are reported by the BOP at www.bop.gov/coronavirus, as of October 15, 2020.

5 The probation officer reports that Blake’s mother’s home

has not been approved. The probation office called Blake’s

mother, but she did not return their calls. The probation

officer also notes that Blake’s mother threatened Blake’s

codefendant, after Blake’s arrest, that he would have problems

with Gang Disciples if he went to prison.

Discussion

Blake seeks to have her sentence changed to home

confinement for the remaining term of imprisonment, or,

alternatively, seeks a recommendation that the BOP allow the

maximum amount of time in home confinement at the end of her

sentence. The government opposes both requests. There is no

dispute in this case that Blake has exhausted administrative

remedies.

As a preliminary issue, however, Blake asks the court both

to reduce her sentence to time served and to convert her

remaining prison sentence to home confinement. She cites no

authority to support the request to convert her sentence to home

confinement. Contrary to Blake’s request, the BOP has the

exclusive authority to decide whether to release a defendant to

home confinement § 3624(c); United States v. Perkins, --- F.

Supp.3d ---,

, at *8 (D.N.H. Aug. 18, 2020);

6 United States v. Duford,

, at *4 (D.N.H. June 30,

2020). Therefore, to the extent Blake asks the court to convert

her sentence to home confinement, that request is denied.

A. Extraordinary and Compelling Reason

Blake contends that she has a heightened risk of severe

illness and death due to the combination of hepatitis C and the

risk of contracting COVID-19 in prison. The government argues

that Blake has not shown an extraordinary and compelling reason

to support her motion because her medical condition is

asymptomatic and does not meet the criteria listed in U.S.S.G.

1B1.13, Application Note 1(A).

Although Application Note 1(A) does not apply to Blake,

Application Note 1(D) provides discretion in deciding when

extraordinary and compelling circumstances exist.4 Dr. Muir

found that it was likely that Blake has liver disease because of

hepatitis C, and the CDC states that liver disease may cause an

increased risk of severe illness from COVID 19. In addition,

the government stated in is objection: “Dr. Muir has advised

4 Application Note 1(D) on its face is limited to the Director of the BOP. Courts have relied on that note, however, because the Sentencing Commission has been unable to amend the Guidelines to conform to the changes in § 3582(C) under the First Step Act. United States v. Murphy,

, at *3, n.1 (D. Me. Aug. 11, 2020).

7 that he would not contest Blake’s motion based on her Hepatitis

C medical condition.” Doc. 73, at *3.

Therefore, the court will assume, without deciding, that

Blake has met her burden of showing an extraordinary and

compelling reason to support a reduction in her sentence.

B. Sentencing Factors

Section 3553(a) states that the “court shall impose a

sentence sufficient, but not greater than necessary, to comply

with the purposes” provided in § 3553(a)(2), and lists factors

for determining an appropriate sentence. The first two factors

are particularly pertinent for purposes of this motion.5 The

first factor directs the sentencing court to consider “the

nature and circumstances of the offense and the history and

characteristics of the defendant.” § 3553(a)(1). The second

factor focuses on the purposes of sentencing, including:

the need for the sentence imposed— (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and

5 The third factor directs consideration of “the kinds of sentences available;” the fourth and fifth factors focus on the Sentencing Guidelines; the sixth factor addresses “the need to avoid unwarranted sentence disparities;” and the seventh factor directs courts to consider the defendant’s restitution obligations.

8 (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

§ 3553(a)(2).

The court considered all of the § 3553(a) factors when

Blake was sentenced, less than a year ago, to 120 months in

prison, which is an appropriate sentence for her serious crimes.

The only intervening change is the COVID-19 pandemic. Although

Blake may be at increased risk if she were to contract COVID-19,

the risk is currently low at FCI Danbury, where Blake is

incarcerated. Therefore, the COVID-19 pandemic does not weigh

in favor of a reduced sentence for Blake.

Further, as determined at sentencing, Blake’s crimes were

serious, and her criminal history is significant. She was

convicted of distributing large amounts of drugs and conspiracy

to possess firearms for purposes of the drug crimes. She

committed those offenses while on probation for another drug

crime. She attempted to coerce her codefendant to provide false

information on her behalf, and her mother threatened her

codefendant. Given her crimes of conviction and her history,

Blake is likely to pose a danger to others and to the community

if she were released from prison.

If more were needed, which it is not, her release plan to

live at her mother’s house is unacceptable. Her mother’s home

9 has not been approved by probation. Blake’s mother did not

return calls from probation, which suggests that her home likely

would not be approved.6 Therefore, Blake does not have an

acceptable place to live if she were released.

III. Release to Home Confinement under § 3624

Alternatively, Blake asks the court to recommend to the BOP

that she be allowed to serve the maximum amount of her sentence

in home confinement. While the BOP has exclusive authority to

decide whether to release a defendant to home confinement, the

court may recommend home confinement in an appropriate case.

§ 3624(c); United States v. Duford,

, at *4

(D.N.H. June 30, 2020). In determining whether to recommend

home confinement, the court considers factors provided by

Attorney General Barr in a memorandum issued on March 26, 2020,

which include the risk of danger if the defendant were released,

her conduct while in prison, and her risk associated with COVID-

19.

Those factors have been considered in the context of

§ 3582(c)(1)(A) and do not support a recommendation for home

confinement. The BOP is in a better position to decide whether

In addition, Blake’s mother threatened her codefendant 6

with harm from gang members, which suggests that her home would not be an appropriate place for Blake to live.

10 to release an inmate to home confinement in light of the

circumstances of the inmate population and the spread of the

COVID-19 virus. See, e.g., United States v. Richard,

, at *8 (C.D. Ill. Aug. 5, 2020); United States v. Beahm,

, at *3 (E.D. Va. Aug. 5, 2020).

Conclusion

For the foregoing reasons, Kristina Blake’s motions for

reduction of her sentence or alternatively for a recommendation

of home confinement (document no. 68 and 70) are denied.

Blake’s motion to seal BOP medical records (document no.

72) is granted.

SO ORDERED.

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

October 19, 2020 cc: Counsel of record.

11