UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 19-cr-074-LM-1 Opinion No.

Jared Gil

O R D E R

Defendant moves for compassionate release under

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

combination of his asthma and the possibility that he will

become infected with COVID-19 while incarcerated at Federal

Correctional Institution (“FCI”) Fairton in New Jersey. The

government concedes that defendant has exhausted his

administrative remedies as required by § 3582(c)(1)(A), but

objects to his release. The court held a video hearing on

defendant’s motion on July 28, 2020, at which defendant appeared

via telephone and made a statement.

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

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 mirrors the statutory

2 language and adds the requirement that the court find that “the

defendant is not 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). A defendant’s dangerousness is a

paramount concern as a court weighs the decision to grant a

defendant early release. See United States v. Bradshaw, No.

1:15-CR-422,

, at *3 (M.D.N.C. Sept. 12, 2019)

(explaining overlap between dangerousness requirement in

compassionate release policy statement and § 3553(a) requirement

that court consider the need to protect the public).

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 will not pose 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. Rasberry, No. 2:15-CR-00127-JDL,

, at

*1 (D. Me. July 14, 2020); United States v. Hilow, No. 15-CR-

170-JD,

, at *1 (D.N.H. June 2, 2020). The

defendant bears the burden of showing that he is entitled to a

sentence reduction. Hilow,

, at *3. And the

court has “broad discretion in deciding whether to grant or deny

a motion for sentence reduction.” United States v. Britton,

3 Crim. No. 18-cr-108-LM,

, at *2 (D.N.H. May 12,

2020) (internal quotation marks omitted).

BACKGROUND

Defendant was arrested on federal drug-trafficking charges

on March 26, 2019 and stipulated to detention at that time. On

August 1, 2019, defendant pleaded guilty to one count of

conspiracy to distribute and possess with intent to distribute

40 grams or more of fentanyl in violation of

(a)(1), 841(b)(1)(B)(vi), and 846. On March 6, 2020, the

court sentenced defendant to 40 months imprisonment and three

years of supervised release. The court recommended to the

Bureau of Prisons (“BOP”) that it house the defendant at FCI

Danbury in Connecticut and permit him to participate in a drug

treatment program and in mental health treatment. See doc. no.

60 at 2.

Due to an outbreak of COVID-19 at FCI Danbury, defendant

could not be placed there and was re-routed to FCI Fairton in

New Jersey. Because defendant was designated to be housed at

FCI Danbury but was re-routed to FCI Fairton, defendant is

considered a “holdover” inmate. Doc. no. 77-1 at 1. This means

that he will not be able to “partake in the usual orientations,

operation, or activities new arrivals are offered or allowed” at

FCI Fairton.

On June 15, 2020, defendant filed a pro se

4 motion for compassionate release, which was later supplemented

by appointed counsel.

DISCUSSION

I. Extraordinary and Compelling Reasons

Defendant contends that he has moderate asthma that puts

him at high risk for experiencing severe illness should he

become infected with COVID-19. He has submitted medical records

in support of that diagnosis. See doc. no. 77-5 at 1-2. He

argues that his health condition combined with the known

presence of COVID-19 at FCI Fairton constitute extraordinary and

compelling reasons supporting his release. The government

concedes that defendant suffers from moderate asthma and its

medical expert agrees that this condition puts defendant at high

risk for severe illness from COVID-19. The government further

concedes that, in the context of the current pandemic,

defendant’s high-risk medical condition constitutes an

extraordinary and compelling reason.

The court agrees that defendant has established

extraordinary and compelling reasons supporting his release.

Under the Centers for Disease Control and Prevention (“CDC”)

guidelines, moderate asthma is among the underlying health

conditions that “might” put a person at higher risk for severe

5 illness from COVID-19.1 And defendant has a substantial risk of

becoming infected with COVID-19 in the first instance because

FCI Fairton has an active outbreak of the virus. There are four

inmates and one staff member at the facility who are currently

positive for COVID-19.2 Based on a documented risk of infection

at FCI Fairton and defendant’s undisputed high-risk medical

condition, the court finds that extraordinary and compelling

reasons support defendant’s release. See United States v. Rich,

Crim. No. 17-cr-094-LM,

, at *3-4 (D.N.H. June 3,

2020) (finding that defendant’s documented history of

bronchitis, reactive airway disease, and smoking combined with

current outbreak at the prison constituted extraordinary and

compelling reasons); United States v. Hernandez, No. 18-CR-034-

04 (PAE),

, at *1, *3 (S.D.N.Y. Apr. 2, 2020)

(finding extraordinary and compelling reasons to reduce sentence

of defendant who suffered from asthma).

1 CDC, People With Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-with-medical-conditions.html?CDC_AA_ refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019- ncov%2Fneed-extra-precautions%2Fgroups-at-higher-risk.html, (last visited July 30, 2020).

2 BOP, COVID-19, https://www.bop.gov/coronavirus/, (FCI Fairton facility) (last visited August 31, 2020).

6 II. Sentencing Factors

Next, 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). The § 3553(a)

factors a court must consider at sentencing include the nature

and circumstances of the defendant’s offense and the defendant’s

personal history and characteristics.

(a)(1).

Section 3553(a) requires that the court ensure that the sentence

imposed reflects the seriousness of the offense that was

committed, promotes respect for the law, provides just

punishment, affords adequate deterrence, protects the public

from further crimes of the defendant, and provides the defendant

with needed training, medical care, and other treatment in the

most effective way.

(a)(2). Section 3553(a)

further requires the court consider the kinds of sentences

available, the Sentencing Guidelines, the need to avoid

unwarranted sentencing disparities, and the need to provide

restitution to any victims.

(a)(3)-(7).

The court assesses the relevant sentencing factors below.

After considering the applicable § 3553(a) factors, the court

will consider whether those factors support a reduction in

defendant’s sentence, or, alternatively, whether they outweigh

the “extraordinary and compelling reasons” discussed above and

7 compel denial of the motion. See, e.g., United States v.

Tidwell, ___ F. Supp. 3d ___,

, at *6 (E.D. Pa.

Aug. 5, 2020); United States v. Daugerdas, ___ F. Supp. 3d ___,

, at *4 (S.D.N.Y. May 1, 2020).

A. Need to Protect the Public and Nature and Circumstances of Offense

Defendant was part of a serious drug-trafficking conspiracy

in which he orchestrated or participated in multiple hand-to-

hand sales of fentanyl, a dangerous drug. Defendant also acted

in a managerial role by conscripting his co-defendant (his

cousin) to be a “runner” for him and drive him to various drug

transactions. There is no evidence, however, that defendant

possessed a firearm or used violence to carry out the drug-

trafficking conspiracy.

Defendant’s federal offense appears to have been driven

largely by his substance abuse issues, which began at a young

age and continued up to the time of the federal offense. Since

being incarcerated, however, defendant has endeavored to

confront his substance abuse issues. While incarcerated at the

Strafford County House of Corrections, defendant successfully

completed the Therapeutic Community Program, which is an

intensive drug and alcohol treatment program. The program

counselor reported that defendant’s progress during the program

8 was “excellent.” Doc. no. 82 at 1. That counselor also

reported that defendant excelled as a volunteer speaker for the

jail diversion program where he shared his story with groups of

high school students touring the jail. Defendant completed

various other rehabilitative classes, including anger

management, seeking safety, parenting, and career counseling.

The court finds that these rehabilitative efforts mitigate

defendant’s dangerousness. See Rich,

, at *4

(finding that defendant’s rehabilitative efforts mitigated his

dangerousness and supported release); Hilow,

, at

*4-5 (same).

The court also considers defendant to pose a low risk for

dangerousness based on his minimal criminal history prior to the

federal offense. Defendant’s federal offense—committed when he

was age 25—was his first adult criminal conviction. Defendant

has a series of juvenile convictions from when he was 14 and 15

years old, likely attributable to his fractured home life and

time in and out of foster care. But between ages 16 and 25

defendant had no convictions. Due to his lack of adult criminal

convictions, defendant had a criminal history score of zero,

placing him in criminal history category I, the lowest possible

category under the Sentencing Guidelines. Cf. Delacruz v.

United States, No. 18-CV-811-LM,

, at *4, *6

(D.N.H. June 17, 2020) (denying compassionate release where

9 defendant was sentenced on federal drug trafficking offenses as

a career offender after engaging in a pattern of similar yet

escalating drug offenses of the course of two decades).

Based on defendant’s minimal criminal history prior to his

federal offense and his efforts to rehabilitate himself, the

court finds that if released he is unlikely to pose a danger to

the safety of any person or the community.

B. Provision of Needed Educational or Vocational Training, Medical Care, or Other Treatment in Most Effective Manner

As discussed above, while in pretrial detention in state

custody, defendant achieved substantial personal growth with the

help of rehabilitative programming. He completed an intensive

drug and alcohol treatment program and became a spokesperson for

the jail diversion program for high school students. To further

support defendant’s personal growth during his time in federal

custody, the court recommended to BOP that defendant participate

in a drug treatment program and any available mental health

treatment.

Now, however, due to his holdover status at FCI Fairton and

the restrictions implemented to prevent the spread of COVID-19,

defendant has no access to drug treatment programming,

counseling, or educational or vocational classes. See doc. no.

77-1 at 1. At this point, defendant’s incarceration is failing

10 to fulfill the need for his sentence to provide him educational

and vocational training or experience, substance abuse

treatment, and mental health treatment in any manner, let alone

“in the most effective manner.”

(a)(2)(D).

Indeed, if defendant were to complete his term of imprisonment

without rehabilitative programming, he would be more likely to

return to criminal behavior and drug use upon release. See

United States v. Schafer, 6:18-CR-06152 EAW,

, at

*7 (W.D.N.Y May 18, 2020) (explaining that sentencing factors

favored compassionate release in part because the lack of

treatment and programming in the prison made it more likely that

defendant would eventually return to illegal drug use if he

remained incarcerated).

On the other hand, if released, defendant would have some

access, either in-person or remotely, to substance abuse

treatment and mental health treatment that would help him

continue his rehabilitation and sobriety. See

(a)(2)(D). And, importantly, defendant already has a job

offer awaiting him upon his release. See doc. no. 77-11. For

these reasons, the court finds that defendant’s release to home

confinement is the best way for him to access the substance

abuse treatment, mental health treatment, and employment

opportunities that will help him maintain and build upon the

11 progress he made while in pretrial detention. This finding

weighs in favor of defendant’s release.

C. Seriousness of the Offense, Adequate Deterrence, Respect for the Law, and Just Punishment

The court also finds that a reduction in defendant’s

sentence would reflect the seriousness of the offense, afford

adequate deterrence, promote respect for the law, and provide

just punishment. See

(a)(2)(A), (B). Defendant

has served 17 months of his 40-month sentence. His release date

is projected for January 24, 2022—about 16 months from now—

meaning defendant has served approximately half of his sentence,

assuming good-time credit. A 17-month imprisonment is

significant for defendant, as he has never served time as an

adult.

D. Weighing the Sentencing Factors Against the Extraordinary and Compelling Reasons

Finally, the court weighs the sentencing factors against

the strength of defendant’s extraordinary and compelling reasons

for release. See Tidwell,

, at *6; Daugerdas,

, at *4. Defendant’s high-risk medical condition

and the active outbreak of COVID-19 at FCI Fairton are

extraordinary and compelling reasons that weigh in favor of his

release. Defendant’s limited criminal history and

rehabilitative progress demonstrate that he will not pose a

12 danger to the community if released on conditions. And

defendant’s need for—but lack of access to—substance abuse

treatment, mental health treatment, and vocational opportunities

weigh heavily in favor of his release.

Considering all these factors, the court finds that

defendant has met his burden of establishing that he is entitled

to a sentence reduction under § 3582(c)(1)(A). A reduction of

defendant’s sentence to time served followed by a term of

special supervised release on home confinement until January 24,

2022 will best serve the goals of sentencing.

CONCLUSION

For the foregoing reasons, the court grants defendant’s

motion for reconsideration (doc. no. 84), his motion for

compassionate release (doc. no. 72), and his supplemental motion

for compassionate release (doc. no. 77) 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 January 24, 2022, which is equivalent

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

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

release outlined in Appendix A.

13 3) Following the term of special supervised release, the

defendant will be placed on supervised release for a term of

three 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

September 8, 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 the defendant plans to change where he lives or anything about his living arrangements (such as the people he lives with), he 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 the defendant’s supervision that he or she 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 the defendant 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 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.

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

6. The defendant must submit to substance abuse testing to determine if he has used a prohibited substance. The defendant shall 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.

7. The defendant must not use or possess alcohol.

8. 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.

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 participate in a cognitive- behavioral 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.). Such programs may include group sessions led by a counselor or participation in a program administered by the probation office. The defendant must pay for the cost of treatment to the extent he is able, as determined by the probation officer.

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

4 1030(e)(1)), other electronic communications or data storage devices or media, or office, to a search conducted by a United 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