UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 06-cr-047-JD Opinion No.

Stephen M. Butler

O R D E R

Stephen Butler moves for reduction of his sentence pursuant

to

(c)(1)(A), arguing that he has an increased

risk of serious illness if he were to contract COVID-19.1 The

government objects to a reduction of Butler’s sentence on the

grounds that he is not at increased risk, as he contends, and

the sentencing factors weigh against reducing his sentence. An

officer of the United States Probation and Pretrial Services has

filed a report.

Standard of Review

After an inmate exhausts available administrative remedies,

a court may reduce his sentence if the inmate establishes an

extraordinary and compelling reason for the reduction and if the

reduction is consistent with the sentencing factors in 18 U.S.C.

1 Butler filed a pro se motion for reduction of his sentence under § 3582(c)(1)(A). Counsel was appointed to represent him for purposes of that motion, and counsel filed a supplement on Butler’s behalf. § 3553(a) and applicable policy statements issued by the

Sentencing Commission. § 3582(c)(1)(A). Because the Sentencing

Commission has not released an updated policy statement since

enactment of the First Step Act, courts continue to use its most

recent statement from November of 2018, U.S.S.G. § 1B1.13,

without the limitation to the Director of the Bureau of Prisons.

See, e.g., United States v. Newton,

, at *6 (D.

Me. Mar. 15, 2021); United States v. Gonzalez,

,

at *1 (D. Mass. Jan. 14, 2021); United States v. Vigneau,

, 35 (D.R.I. 2020). That policy statement is

clarified in the commentary, which states that an extraordinary

and compelling reason may exist based on a serious physical or

medical condition, age of the defendant, family circumstances,

or another reason, as determined by the court. § 1B.13, cmt.

n.1 (A-D). Newton,

, at *6; United States v.

Manning,

,

, at *1 (D.N.H. Jan. 8,

2021); Vigneau, 473 F. Supp. 3d at 36.

Background

In March of 2008, Butler pleaded guilty to nine counts of

robbery in violation of

and two counts of bank

robbery in violation of

(a). Butler’s eleven

crimes of conviction occurred between December of 2004 and

2 September of 2005. During that crime spree, he robbed grocery

stores, restaurants, video stores, a hotel, and two banks. In

each case, he brandished what appeared to be a gun or said that

he had a gun and threatened to shoot employees while demanding

money.2 Although not charged, Butler stole vehicles from

dealerships that he used to commit the robberies. In addition,

when officers were attempting to arrest him, Butler tried to

flee, ramming his car into police vehicles and driving toward

the officers. He was shot multiple times before the arrest

because of his failure to obey the officers’ commands.

Prior to the crimes of conviction and the related

robberies, Butler had amassed a significant criminal history.

Beginning more than twenty years before the crime spree that

resulted in his convictions, Butler was arrested and charged

with armed robbery, larceny of a motor vehicle, possession of

tools for burglary, breaking and entering, assaults with

dangerous weapons, and assaults and batteries on police

officers. His criminal history resulted in a determination that

Butler was a career offender with a criminal history category of

VI. Based on the aggravating circumstances of his crimes of

2Butler used pellet guns that resembled a sawed off shotgun and a hand gun during the robberies.

3 conviction, the court granted an upward departure from the

Guideline range.

Butler was sentenced to 240 months on each count to be

served concurrently. He has served about 15 1/2 years of his

sentence, which he contends is 91% of his sentence and the

government contends is 77% of his sentence. He is currently

incarcerated at FCI Ray Brook in New York and is scheduled to be

released in September of 2022. He is assessed to have a medium

risk of recidivism and is designated at the medium security

level in the prison. Butler filed a request for reduction of

his sentence with the warden at FCI Bay Brook, which was denied.

The government agrees that Butler has exhausted administrative

remedies.

Butler is fifty-seven years old. As is noted above, during

his arrest in 2005, he was shot multiple times. Those injuries

required a series of surgical procedures, including removal of

his spleen and part of his pancreas. He was hospitalized and

then was incarcerated at FMC Devens at the beginning of his

sentence for purposes of medical treatment. Butler submitted

guidance from the CDC website that the risk of hospitalization

and death from COVID-19 increases with age.

For purposes of addressing Butler’s motion for reduction in

his sentence, the government had his medical records reviewed by

4 Dr. J. Gavin Muir, Chief Medical Officer of Amoskeag Health in

Manchester, New Hampshire. Dr. Muir noted Butler’s serious

medical history, which required extensive treatment. On review

of Butler’s current medical records, however, Dr. Muir concluded

that Butler does not have a medical condition that would put him

at increased risk if he were to contract COVID-19.

Butler submitted a newspaper article dated February 18,

2021, about inadequate efforts to deal with COVID-19 at FCI Ray

Brook and argues that the prison is not doing enough to protect

inmates from the disease. The government responds with

information about the efforts made by the BOP to avoid COVID-19

spread. Currently, the BOP website reports that at FCI Ray

Brook no inmates are infected with COVID-19 and one staff member

has the disease.

Butler represents that if he were released from prison, he

would live with his sister and her family in Taunton,

Massachusetts. He plans to quarantine there and to follow the

social distancing guidelines. He intends to get a commercial

driver’s license and to work as a truck driver.

Discussion

Butler asks to have his sentence reduced to time served

with the remainder of the sentence to be served as a special

5 term of supervised release in home confinement. In support, he

contends that his age and medical conditions put him at

increased risk of serious illness if he were to contract COVID-

19. The government agrees that Butler has exhausted

administrative remedies but contends that he lacks an

extraordinary and compelling reason to reduce his sentence and

contends that the sentencing factors preclude relief. The

probation officer’s report was also considered for purposes of

this order.

A. Exhaustion and Extraordinary and Compelling Reason

There is no dispute that Butler has exhausted

administrative remedies as required under § 3582(c)(1)(A).

Butler argues that his age and medical conditions put him at

increased risk if he were to contract COVID-19, which provides

an extraordinary and compelling reason to reduce his sentence.

The government disagrees, arguing that Butler lacks a medical

condition that puts him at increased risk and has not shown that

his risk of contracting COVID-19 at FCI Ray Brook satisfies that

requirement.

The CDC has reported, as Butler contends, that advancing

age is a risk factor for COVID-19. Butler, however, has not

shown that his circumstances present a sufficient risk to create

6 an extraordinary and compelling reason to reduce his sentence.

Although he claims that he has medical conditions that put him

at risk, Dr. Muir found otherwise.

Further, the current risk at FCI Ray Brook, where Butler is

incarcerated, is not great, with only staff member is diagnosed

with COVID-19 and no inmates are reported to be ill. Butler was

tested for the virus twice in January with negative results each

time. The information provided in the newspaper article filed

by Butler appears to be based on data during a spike in cases in

January of 2021, which has now abated.

Therefore, Butler has not shown an extraordinary and

compelling reason to reduce his sentence. Even if he could make

that showing, however, reduction would not be appropriate in

light of the factors under § 3553(a).

B. Sentencing Factors under § 3552(a)

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.3 The

3 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

7 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 the § 3553(a) factors when Butler was

sentenced, and he received an appropriate sentence for his

serious crimes and in light of his extensive criminal history.

Butler notes that he has served more than three quarters of his

sentence, has made commendable efforts toward rehabilitation,

and has not had disciplinary issues while in prison.

Nevertheless, he remains classified at medium security and as a

medium risk of recidivism.

The court considers Butler’s classification at medium

security and medium risk of recidivism to be significant factors

avoid unwarranted sentence disparities;” and the seventh factor directs courts to consider the defendant’s restitution obligations.

8 weighing against reduction of his sentence. Further, the number

and violence of his crimes, along with the circumstances during

his arrest, demonstrate that he presents a significant risk of

danger to the public. For these reasons, even if Butler could

show an extraordinary and compelling reason to reduce his

sentence, the court would not grant that request based on the

sentencing factors.

Conclusion

For the foregoing reasons, the defendant’s motion for

reduction of his sentence (documents no. 70) is denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge March 22, 2021

cc: Counsel of record.

9