UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 10-cr-047-JD Opinion No.

Luckenson Dorceant

O R D E R

Luckenson Dorceant moves, pursuant to

(c)(1)(A), to have his sentence reduced to time served

based on the combined effect of his medical conditions and the

risks presented by the COVID-19 pandemic.1 The government

objects to the requested relief. United States Probation and

Pretrial Services has filed a report and recommendation.

Counsel on Dorceant’s behalf requested a hearing on the

motions. Under the local rules of this district, motions are

decided without oral argument unless a party provides a written

statement “outlining the reasons why oral argument may provide

assistance to the court.” LR 7.1(d). No such statement was

provided here. Therefore, no hearing was held.

1 Dorceant filed a motion pro se, and then counsel was appointed to represent him, for purposes of seeking relief under § 3582(c)(1)(A), and counsel filed a supplemental motion. Although Dorceant reversed his name to “Dorceant Luckenson” in his motion, his appointed counsel uses the name Luckenson Dorceant, which is the name used during the criminal proceedings. The court, therefore, will use Luckenson Dorceant. 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.

§ 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 is United States Sentencing

Guidelines § 1B1.13. 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

2 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. See United

States v. Jones,

, at *2 (D. Mass. Oct. 22, 2020).

Application Note 1 to U.S.S.G. § 1B1.13 provides additional

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.” BOP Program Statement 5050.50 also provides

guidance as to when post-sentencing developments, medical

conditions, age, and family circumstances support a motion for

sentence reduction under § 3582(c)(1)(A). Program Statement No.

5050.50, Compassionate Release/Reduction in Sentence: Procedures

for Implementation of

and 4205(g) (Jan. 17,

2019), www.bop.gov/policy/progstat/5050_050_EN.pdf.

Background

Dorceant was found guilty by a jury of conspiring with

others to possess with the intent to distribute more than 500

grams of cocaine and conspiring to import more than 500 grams of

cocaine, which resulted in the death of another person. He was

sentenced to a term of 360 months of incarceration on each

count, to be served concurrently, with four years of supervised

3 release. He has now served 127 months or approximately 35.3% of

his full sentence. His projected release date is January 10,

2036.

Dorceant is a permanent legal resident of the United

States. The probation officer reports that Immigration and

Customs Enforcement (“ICE”) has a detainer against him and that

at the end of his incarceration, Dorceant will likely be

released to the custody of ICE for deportation to the Dominican

Republic.2 In addition, Dorceant has pending charges against him

from Miami-Dade County Court (Florida) for kidnapping and

battery.

Dorceant’s crimes in this case involved a drug smuggling

operation in which Dorceant and others recruited women in Puerto

Rico to transport cocaine for them. The women were required to

travel to the Dominican Republic where they swallowed “eggs” or

“fingers” of cocaine and then flew to Boston, Massachusetts,

transporting the cocaine internally. There, the women were

taken to a motel in Salem, New Hampshire, where the eggs or

fingers of cocaine were expelled through the use of laxatives.

One woman died of acute cocaine intoxication during that

process, having ingested at least forty-three fingers of

cocaine.

2 The government states in its objection that Dorceant is a native of Haiti and will likely be deported to Haiti by ICE.

4 In November of 2014, Dorceant applied for a reduction in

his sentence based on an amendment to the United States

Sentencing Guidelines (“U.S.S.G.”), Amendment 782. Amendment

782 reduced the base offense levels assigned to drug quantity

tables in U.S.S.G. §§ 2D1.1 and 2D1.11. Dorceant’s offense

level, however, was not based on the drug quantity tables.

Instead, his offense level was based on the offense level

applicable to drug offenses that result in death under

§ 2D1.1(a)(2). Therefore, the motion was denied.

Dorceant is forty-nine years old and has hypertension,

along with a list of other medical and health conditions. Dr.

Gavin Muir, Chief Medical Officer of Amoskeag Health, in

Manchester, New Hampshire, reviewed Dorceant’s medical records

and provided an opinion that Dorceant’s hypertension could put

him at higher risk if he contracted COVID-19. Dr. Muir wrote

that the other conditions did not raise Dorceant’s risk.

In addition to hypertension, Dorceant lists “reflex

sympathetic dystrophy” of his leg. His leg condition is a

regional pain syndrome that develops after an injury with pain

that is out of proportion to the actual injury. Dorceant

injured his foot in 2002, and apparently the regional pain

syndrome developed from that injury. When the presentence

investigation report in his case was filed in March of 2011,

Dorceant used a crutch to walk. He now uses a wheelchair.

5 Dorceant also identifies a medical condition of idiopathic

peripheral neuropathy, which Dorceant describes as debilitating

and incurable. Dorceant declined an MRI in June of 2020 to

further assess his neuropathy condition. Dorceant also has an

immune deficiency, which Dr. Muir concluded was not sufficiently

documented to show a diagnosis or an acute condition.

Dorceant is now incarcerated at the Federal Correctional

Institution in Loretto, Pennsylvania (“FCI Loretto”). The

Bureau of Prisons (“BPO”) reports that there are currently seven

active cases of COVID-19 among its staff but no cases among

inmates. https://www.bop.gov/coronavirus/ (October 20, 2020).

FCI Loretto is using the BOP’s modified operations in response

to the COVID-19 pandemic that includes quarantining, screening,

limited group gatherings, limited movement of inmates within the

facility, and restrictions on access by contractors and

visitors. All inmates and staff have been issued masks. Social

visits are limited to non-contact visits.3

During his ten years of incarceration, Dorceant has had

multiple disciplinary reports.4 Those include many incidents of

3 Dorceant’s sisters, Kathy Dorceant and Geraldina Turlington-Santana, and his father, Philneus Dorceant, submitted letters in support of his motion.

4 Dorceant has brought at least two pro se lawsuits challenging disciplinary matters. Dorceant v. Purdue, Civil Action No. 17-cv-169 (M.D. Pa. April 10, 2019) (denying petition for writ of habeas corpus that challenged disciplinary

6 refusing to obey an order and being insolent to officers,

stealing food, tampering with a security device, and possessing

gambling paraphernalia. Because of his disciplinary reports,

Dorceant has lost privileges and good time credit and has been

placed in disciplinary segregation.

On April 4, 2019, Dorceant sent a document to the court

titled “Affidavit of Truth Legal Notice” that was docketed as a

new case, 19-mc-12-LM.5 After further consideration, it appeared

that Dorceant did not intend to begin a new action but deposited

the document with the court in anticipation of other litigation

in the future. Dorceant further represented that the document

was part of a private matter between him and the prosecutor in

his criminal case. The case was terminated.

Dorceant applied to the Warden at FCI Loretto for a motion

for sentence reduction. The Warden denied his request.

proceedings at FCI Lompoc); Dorceant v. Fox, Civil Action No. 17-cv-150 (M.D. Pa. Feb. 6, 2017) (denying petition for a writ of habeas corpus challenging another disciplinary proceeding at FCI Lompoc).

5 The affidavit appears to attempt to show that Title 18 of the United States Code was not properly adopted or is otherwise unenforceable and argues that Dorceant’s incarceration is unlawful. He accuses the prosecutor in this case of a variety of misdeeds and argues that this case should be dismissed.

7 Discussion

Dorceant seeks a reduction of his sentence on the ground

that his medical conditions pose an increased risk if he were to

contract COVID-19. He also argues that the sentencing factors

in § 3553(a) support his motion. The government opposes the

motion on the ground that the § 3553(a) factors do not support a

reduction in Dorceant’s sentence.

A. Administrative Exhaustion and Extraordinary and Compelling Reason to Reduce Sentence

The government does not dispute that some of Dorceant’s

medical conditions could cause an increased risk if he were to

contract COVID-19, which provides an extraordinary and

compelling reason in support of his motion. The government also

does not dispute that Dorceant exhausted administrative

remedies. Therefore, those matters need not be addressed

further.

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

8 are particularly pertinent for purposes of this motion.6 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 (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

Dorceant was sentenced to 360 months in prison, which was an

appropriate sentence for his extremely serious crimes. The only

intervening significant change is the COVID-19 pandemic.

Although Dorceant may be at increased risk if he were to

contract COVID-19, the risk is currently low and managed at FCI

Loretto, where Dorceant is incarcerated. Therefore, the COVID-

19 pandemic does not weigh in favor of a reduced sentence.

6 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.

9 Dorceant argues that the sentencing factors support a

reduction in his sentence. Dorceant’s record does not support

his argument.

Although he did not have criminal history points when he

was sentenced, his presentence investigation report noted, based

on the reports of others in the conspiracy, that he had engaged

in the same drug smuggling activities before the operation for

which he was arrested and charged. The probation officer

reports for purposes of the present motion that Dorceant had

been arrested at least a dozen times for driving offenses and

battery offenses. His prison disciplinary record is significant

and ongoing.

Dorceant’s crimes of conviction involved large quantities

of drugs smuggled into the United States from the Dominican

Republic. Those crimes resulted in the death of one of the

women recruited to transport the drugs. Dorceant was an

organizer or leader of the criminal activity that included more

than five other people. His sentencing range was 360 months to

life, and his sentence was at the lowest end of that range.

Another sentencing consideration is that if Dorceant’s

sentence were reduced, he likely would be released to the

custody of ICE for deportation.7 As a result, he likely would

7 Probation reports that Dorceant also has outstanding criminal charges against him in Florida.

10 remain incarcerated pending deportation. He has not shown that

a reduction in his sentence would allow him to live in a place

with less risk of exposure to COVID-19 than he may have at FCI

Loretto.8

For the reasons discussed, the § 3553(a) sentencing factors

weigh heavily against reducing Dorceant’s sentence under

§ 3582(c)(1)(A). Although Dorceant has shown an increased risk

if he were to contract COVID-19 in prison, he has not shown that

the circumstances at FCI Loretto put him at increased risk as

opposed to the circumstances that would exist if his sentence

were reduced. Therefore, Dorceant has not shown that he is

entitled to a reduction in his sentence under § 3582(c)(1)(A).

Conclusion

For the foregoing reasons, the defendant’s motions for

reduction of his sentence (documents nos. 132 and 137) are

denied.

SO ORDERED.

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

November 2, 2020 cc: Counsel of record.

8 For example, if Dorceant were held in ICE custody in New Hampshire, he likely would be housed at the Strafford County House of Corrections. If he were held in Pennsylvania, he likely would be in one of three correctional facilities there.

11