UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States Case No. 16-cr-75-1-PB v. Opinion No.

Andrew Dufresne

MEMORANDUM AND ORDER

Defendant Andrew Dufresne moves for compassionate release

pursuant to

(c)(1)(A) (“Section 3582(c)(1)(A)”),

as amended by Section 603(b)(1) of the First Step Act of 2018

(“First Step Act”),

(b)(1),

, 5239, or, in the alternative, seeks a recommendation from

the court that he serve the final twelve months of his sentence

in a residential reentry center, pursuant to

.

For the following reasons, I grant Dufresne’s motion for

compassionate release subject to the conditions specified in

this Memorandum and Order (Doc. No. 23).1

I. STANDARD OF REVIEW

Following its amendment by the First Step Act, the

compassionate release statute, codified as Section

3582(c)(1)(A), provides that

the court, upon motion of the Director of the Bureau of Prisons [(“BOP”)], or upon motion of the defendant after

1 Because I grant Dufresne’s motion on these grounds, I need not address his argument for alternative relief. the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s behalf or the lapse of [thirty] 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 . . . after considering the factors set forth in [S]ection 3553(a) to the extent that they are applicable . . . .

§ 3582(c)(1)(A). The court may reduce a defendant’s prison

sentence if it finds that “extraordinary and compelling reasons

warrant such a reduction,” id. § 3582(c)(1)(A)(i), and that

“such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission,” id.

§ 3582(c)(1)(A).

The Sentencing Commission’s policy statement (“the policy

statement”), which was promulgated prior to the passage of the

First Step Act, provides as follows:

Upon motion of the Director of the [BOP] under [Section 3582(c)(1)(A)], the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in [Section 3553(a)], to the extent that they are applicable, the court determines that —

(1) (A) Extraordinary and compelling reasons warrant the reduction; . . .

(2) The defendant is not a danger to the safety of any other person or to the community, as provided in

(g); and

(3) The reduction is consistent with this policy statement.

2 U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S.

Sentencing Comm’n 2018). The commentary to the policy statement

further explains what is meant by “extraordinary and compelling

reasons.” It states, in relevant part, that “[p]rovided the

defendant meets the requirements of subdivision (2),

extraordinary and compelling reasons exist,” USSG § 1B1.13 cmt.

n.1, when “[t]he defendant is . . . suffering from a serious

physical or medical condition,” id. § 1B1.13 cmt. n.1(A)(ii)(I).

District courts are divided on whether the policy statement

remains binding following the enactment of the First Step Act.

Cf. United States v. Fox, No. 2:14-cr-03-DBH,

,

at *2 (D. Me. July 11, 2019) (collecting cases). I am not aware

of any court that has chosen to disregard the policy statement

entirely. I conclude, instead, that it “provides helpful

guidance on the factors that support compassionate release,

although it is not ultimately conclusive given the statutory

change.” Id. at *3.

II. BACKGROUND

In 2016, Dufresne “waived indictment and pled guilty to an

[i]nformation[,]” charging him with “bank robbery in violation

of

(a).” Mot. for Compassionate Release or

Alternative Relief (“Mot. for Compassionate Release”), Doc. No.

23 at 2; accord Waiver of an Indictment, Doc. No. 8. His

“guideline [sentencing] range . . . was [sixty-three] to

3 [seventy-eight] months[,]” and I sentenced him to a term of

imprisonment of sixty-three months, “to be served consecutive to

a sentence he was then serving in the Commonwealth of

Massachusetts, with three years of supervised release to

follow.” Doc. No. 23 at 2; accord J. in a Crim. Case, Doc. No.

19 at 2–3. “He has served approximately [seventeen] months

. . . of his statutory sentence and has another approximate

[thirty-seven] months . . . left to serve (allowing for good

conduct credit),” Doc. No. 23 at 2, and is presently

incarcerated at the Metropolitan Detention Center in Brooklyn,

New York (“MDC Brooklyn”), after various transfers between BOP

facilities in New Hampshire, Massachusetts, and West Virginia,

Doc. No. 23 at 2.

Dufresne currently suffers from chronic obstructive

pulmonary disease (“COPD”), asthma, and bronchitis. Doc. No. 23

at 1, 4. He has been prescribed at least three different

inhalers to manage his asthma and COPD. Doc. No. 23 at 4.

Although he has already undergone several hernia surgeries, he

needs another that is presently delayed until “his pulmonary

condition” improves. Doc. No. 23 at 4. He also “struggles with

. . . Attention Deficit Hyperactivity Disorder . . . and anxiety

disorder.” Doc. No. 23 at 9.

In light of his medical conditions, Dufresne submitted two

requests for compassionate release to the BOP — first, on April

4 15, 2020, and a second on April 24. Doc. No. 23 at 6. The BOP

denied his requests on April 30. Doc. No. 23 at 6; accord Ex. B

to Mot. for Compassionate Release, Doc. No. 23-2. Dufresne

administratively appealed. Doc. No. 23 at 6. He then filed this

motion for compassionate release on July 25, requesting a

sentence reduction to time served, among other relief. Doc. No.

23 at 11. I held a hearing on Dufresne’s motion on August 26.

III. DISCUSSION

Because the BOP denied Dufresne’s request for a reduction

in sentence, Doc. No. 23-2; accord Doc. No. 23 at 6, and failed

to respond to his administrative appeal within thirty days, Doc.

No. 23 at 6, Dufresne has exhausted his administrative rights,

and so his motion is properly before me under Section

3582(c)(1)(A). At the hearing on this motion, the government

agreed that Dufresne’s medical conditions — namely, his COPD —

meet the policy statement commentary’s definition of

“extraordinary and compelling reasons” in light of the COVID-19

pandemic. See United States’ Opposition to Def.’s Mot. for

Release, Doc. No. 28 at 8 (agreeing that the statement’s

“threshold requirement” is met). Other federal district courts

have found this requirement is met for defendants with similar

medical conditions to Dufresne’s, recognizing COPD, for example,

as a medical condition that places a defendant “at a heightened

risk of severe illness from COVID-19.” E.g., United States v.

5 Hernandez, No. 10-CR-1288-LTS,

, at *2 (S.D.N.Y.

July 10, 2020) (finding “extraordinary and compelling

circumstances” during COVID-19 pandemic for a defendant with

COPD, among other illnesses); United States v. McCarthy, No.

3:17-CR-0230 (JCH),

, at *5 (D. Conn. Apr. 8,

2020) (same for a defendant with COPD and asthma); accord Doc.

No. 23 at 5 (providing cases); cf. United States v. Hernandez,

, 303 (S.D.N.Y. 2020) (same for a defendant

with asthma). Although the generalized risk of contracting

COVID-19 at MDC Brooklyn remains low, the risk specific to

Dufresne based on his current health conditions is high, and the

potential health ramifications should he contract the virus are

severe. See, e.g., Hernandez,

, at *2. I concur,

therefore, that the “extraordinary and compelling reasons” are

met under the policy statement. Accordingly, I must return to

the familiar Section 3553(a) factors and also determine whether

Dufresne is “a danger to the safety of any other person or to

the community” under Section 1B1.13(1)(B) of the USSG.

After reviewing Dufresne’s presentence investigation report

(“PSR”), the parties’ briefs and supplemental materials, and his

BOP records, I find that the bulk of the Section 3553(a) factors

weigh in favor of compassionate release. When reaching this

decision, I consider, among other factors, “the nature and

circumstances of the offense and the history and characteristics

6 of the defendant,” § 3553(a)(1), and “the need for the sentence

imposed . . . to provide the defendant with needed . . . medical

care[] or other correctional treatment in the most effective

manner,” § 3553(a)(2)(D).

Dufresne, presently forty-eight years old, Doc. No. 23 at

7, has a lengthy criminal history dating back to his first adult

criminal conviction in 1989 at the age of seventeen, PSR, Doc.

No. 16 at 6 ¶ 26. The offense for which he is presently

incarcerated — bank robbery — is a serious one, though he was

not armed at the time, Doc. No. 28 at 9, and had never before

committed bank robbery, Doc. No. 23 at 9. He has a history of

drug use, namely cocaine, which he started using at age

eighteen, at first “using it every weekend in the 1990s,” until

“his use progressed to every other day,” in 2005. Doc. No. 16 at

28 ¶ 90. He completed residential treatment in 2012 and “resided

at . . . a sober house . . . for approximately two years

. . . from July 2012 to March 2014.” Doc. No. 16 at 28 ¶ 91.

Both of his parents used cocaine, as well. Doc. No. 16 at 26 ¶

82.

The only Section 3553(a) factor potentially weighing

against release is the need “to protect the public from further

crimes of the defendant.” § 3553(a)(2)(C). This factor is

substantially similar to the policy statement’s instruction to

7 evaluate whether the defendant is “a danger to the safety of any

other person or to the community.” USSG § 1B1.13(2).

The danger that Dufresne poses to the public is real. His

past criminal conduct includes numerous state convictions for

theft and burglary, as well as assault and battery. Doc. No. 16

at 6 ¶ 26 — 22 ¶ 62. He is currently serving a federal sentence

for a serious felony that he committed while wanted on unrelated

state charges in the Commonwealth of Massachusetts. Doc. No. 23

at 8; Doc. No. 16 at 4 ¶ 7 — 5 ¶ 8. When I sentenced him, he was

serving a multi-year sentence imposed by a Massachusetts state

court on twelve counts of larceny, credit card fraud, and

receiving stolen property. Doc. No. 16 at 22 ¶ 62.

Despite his extensive criminal history, Dufresne has

incurred relatively few “minor disciplinary write-ups” while in

federal prison, including one for “hitting a distress button in

FCI Berlin after experiencing severe pain from his hernia,” for

which he was later hospitalized. E.g., Doc. No. 23 at 8. At the

motion hearing, U.S. Probation also confirmed that the last

infraction Dufresne incurred was approximately one year ago.

Furthermore, he has participated in several educational courses,

was employed while incarcerated at FCI Berlin, and has engaged

in two drug education programs. Doc. No. 23 at 8.

The danger that Dufresne poses is substantially mitigated

if he addresses his underlying addiction issues, see Letter from

8 Andrew Dufresne to the Hon. Ct. (Aug. 17, 2020), Ex. to Addendum

to Def.’s Mot. for Compassionate Release, Doc. No. 30-1 (“I have

never successfully completed drug treatment, but I would like to

do that now.”), which is bolstered by his pre-negotiated

reacceptance into his former sober house, should he be released,

see Addendum to Def.’s Mot. for Compassionate Release, Doc. No.

29 at 1. Although he has pursued “two . . . drug education and

relapse prevention programs,” Doc. No. 23 at 8, while in federal

prison, “[c]urrently he has no access to” the BOP’s residential

drug abuse program (“RDAP”) “or any other in-depth drug

treatment program,” Doc. No. 23 at 9. Because Dufresne’s drug

use and criminal history seemingly go hand-in-hand, it benefits

the public if he receives the intensive drug treatment

programming required to support his efforts to become a law-

abiding citizen. Cf. § 3553(a)(2)(D) (providing defendant with

appropriate treatment is one of the factors to consider). His

physical incapacitation by his medical conditions further

reduces his risk to the public.

Although I am not blind to the risk that Dufresne poses to

the public if he is released without adequate supervision, I am

satisfied that that risk can be mitigated by requiring him to

serve the first year of his remaining sentence in a residential

reentry center and then requiring him to reside at, and abide

by, all requirements of a sober house approved by his probation

9 officer. During the remaining portion of his sentence, Dufresne

shall abide by all previously imposed conditions of supervised

release. After he completes the incarcerative portion of his

sentence, he shall serve the supervised release term imposed as

a part of his original sentence.

IV. CONCLUSION

For the foregoing reasons, Dufresne’s motion for

compassionate release (Doc. No. 23) is granted as follows:

1) Dufresne’s previously imposed sentence of imprisonment

of sixty-three months is reduced to time served.

2) Dufresne shall be subject to a term of special

supervised release until August 16, 2023, his projected

statutory release date. During this special supervised release

period, Dufresne shall abide by all of his originally imposed

supervised release conditions.

3) During the first twelve months of the special supervised

release period, Dufresne shall reside at a residential reentry

center.

4) For the remaining portion of the special supervised

release period, Dufresne shall reside at and abide by all rules

of the Able House, a recovery home in Springfield,

Massachusetts, or an alternate facility approved by his

probation officer.

10 5) Following the completion of the special supervised

release period, Dufresne shall be subject to his original three-

year supervised release term.

6) The clerk shall set a telephone conference with counsel

to discuss proposed terms of supervised release and the content

of the amended judgment that the court will issue prior to

Dufresne’s release.

7) This order is stayed up to fourteen days, for the

verification of Dufresne’s release plan, to make appropriate

travel arrangements, and to ensure his safe release. He shall be

released as soon as this information is verified and

arrangements are made.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

September 29, 2020

cc: Jeffrey S. Levin, Esq. Charles L. Rombeau, Esq. Helen W. Fitzgibbon, Esq. Michael T. McCormack, Esq. U.S. Marshal U.S. Probation

11