UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America Case No. 16-cr-148-PB v. Opinion No.

Jordan Manning

MEMORANDUM AND ORDER

Defendant Jordan Manning 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. For the following reasons, I deny Manning’s motion.

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 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 . . . [18 U.S.C. §] 3553(a) [(“Section 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

1 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.

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.

2 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 2017, Manning pleaded guilty to unlawful possession with

intent to distribute 100 grams or more of heroin, in violation

of

(a)(1) and (b)(1)(B)(vii). See Def.’s Mot.

for Compassionate Release, Doc. No. 34 at 1. Manning was

arrested on a state probation violation for possession of over

100 grams of heroin. Gov’t’s Objection to Def.’s Mot. for

Release, Doc. No. 35 at 5-6. The defendant told law enforcement

that he acquired 200 grams of heroin daily from a source in

Massachusetts which he would then sell to customers in New

Hampshire.

.

Manning’s previous criminal activity was also serious and

extensive. It included convictions for drug trafficking and

3 possession, as well as counterfeiting and bail jumping. Doc.

No. 35 at 6. Additionally, Manning has multiple parole,

probation, and supervised release violations.

Due to

Manning’s extensive criminal history, I sentenced him to a term

of imprisonment of 96 months, a term significantly below the

federal sentencing guideline recommendations at the time of his

sentencing (120-150 months).

He has served approximately

39 months of his sentence. See id. at 1.

Manning is currently incarcerated at Federal Correctional

Institution (“FCI”) Berlin, New Hampshire. See Doc. No. 34 at

4. The BOP has developed and implemented a multi-point plan to

address the COVID-19 pandemic. See Doc. No. 35 at 4-5. Under

the plan, the BOP has implemented quarantine and isolation

protocols, restricted inmate transfers, reduced overcrowding,

limited group gatherings, introduced face mask distribution to

intimates, and suspended visitation and tours, among other

measures.1 According to the BOP’s website, as of January 8,

there were zero active cases of COVID-19 in the inmate

population and five active cases among staff at this facility.2

1 BOP Modified Operations, BOP, https://www.bop.gov/coronavirus/covid19_status.jsp (last visited Jan. 8, 2021). 2 COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/index.jsp

(last visited Jan. 8, 2021).

4 Manning is thirty years old and is severely obese, with a

body mass index (“BMI”) of 42.3 See Doc. No. 34 at 4; Appendix

to Def.’s Mot. for Compassionate Release at 2. Manning

submitted a request for compassionate release to the BOP on July

20, 2020. See Doc. No. 34 at 8. After the BOP denied his

request on July 29, he filed a pro se motion for compassionate

release on November 9. See id.; Def.’s Mot. for Compassionate

Release, Doc. No. 32. After counsel was assigned to Manning on

November 29, see Doc. 33, this motion for compassionate release

was filed on December 10, requesting a reduction in his sentence

to allow for his immediate release. See Doc. No. 34 at 1. I

held a hearing on the motion on December 30, 2020.

III. DISCUSSION

Manning argues that I should order his release because his

severe obesity places him at a high risk of severe illness for

COVID-19, and a reduction of his sentence would not undermine

Section 3553(a)’s sentencing factors. See Doc. No. 34 at 10-17.

The government opposes Manning’s motion. See Doc. No. 35.

Because Manning waited 30 days before filing his pro se motion

for compassionate release, Manning has exhausted his

3 An obese BMI is one over 30.0 and a severely obese BMI is one over 40.0. People with Certain Medical Conditions, CDC, https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-with-medical-conditions.html (last visited Jan. 8, 2021).

5 administrative rights, and so his motion is properly before me

under Section 3582(c)(1)(A).

Manning has met his burden of demonstrating that

“extraordinary and compelling reasons” exist that would render

him eligible for compassionate release, as conceded by the

government. See § 3582(c)(1)(A); Doc. No. 35 at 1. According

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

severe obesity places individuals at an increased risk for

severe illness if they contract COVID-19.4 On similar facts,

other district courts have found that severe obesity justifies a

finding of an “extraordinary and compelling reason.” Compare

United States v. Delgado,

, 89-90 (D. Conn.

2020) (BMI of 40 during COVID-19 pandemic constitutes

extraordinary and compelling circumstances due to “high risk for

serious complications”) and United States v. Dawson, No. 18-

40085-HLT,

, at *7 (D. Kan. Apr. 9, 2020)

(finding extraordinary and compelling circumstances during

COVID-19 pandemic where defendant’s BMI of 51.5 “puts him at an

increased risk of developing serious illness if he were to

become infected with COVID-19”), with United States v. German,

,

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

(German’s BMI of 36 did not qualify as “severe obesity” and

4

6 therefore did not “significantly increase[] the relative risk of

death or serious illness from COVID-19”). Fortunately, the

current risk of contracting the virus at the institution where

Manning is incarcerated is low. The BOP has a mitigation plan

in place that appears largely successful in controlling the

spread of the virus at FCI Berlin, given that there are

currently only five confirmed cases of active COVID-19 at the

facility.5 Nevertheless, I accept, as the government concedes,

that Manning’s severe obesity increases his relative risk of

COVID-19-related complications.

However, I must also consider the sentencing factors under

Section 3553(a). See § 3582(c)(1)(A). The factors include the

nature and circumstances of the offense; the history and

characteristics of the defendant; the need for the sentence to

reflect the seriousness of the offense, promote respect for the

law, provide just punishment, afford adequate deterrence, and

protect the public from future crimes by the defendant; and the

need to avoid unwarranted sentencing disparities. See

5 As I have previously stated, I acknowledge that confirmed cases are different from the number of actual cases. See United States v. Amarrah,

, 618 (E.D. Mich. 2020) (“Zero confirmed COVID-19 cases is not the same thing as zero COVID-19 cases. The Bureau of Prisons recently discovered this when it found that 70 percent of the inmates it tested were positive for the disease.”). However, Manning does not challenge this statistic and has presented no evidence that the reported number of cases substantially under-reports the actual number of cases in the facility.

7 § 3553(a). These factors do not support Manning’s early

release.

There is no doubt that Manning committed a serious crime.

He was involved in the distribution of 100 grams of a large

quantity of a dangerous drug that he intended to distribute to

other people in the state. This crime occurred while he was on

probation for a state crime. The sentence I originally imposed

reflected the serious nature of Manning’s offense and was well

below the federal sentencing guidelines at the time. Reducing

that sentence, particularly after less than half of the sentence

has been served, would not be consistent with the goals of

sentencing, including promoting respect for the law, providing

just punishment, deterring further criminal conduct, and

protecting the public. Accordingly, I conclude that the

interests of justice would not be served if his sentence were

reduced.

I recognize that Manning has made some efforts to

rehabilitate himself during his incarceration. He has completed

several courses while incarcerated, including courses in

electrical work, mathematics, man-made disasters, critical

thinking, and construction trades, he has earned his GED, and he

is currently enrolled in a wellness class and weatherization

class. See Doc. No. 34 at 4. However, he has struggled with

disciplinary infractions during his incarceration, accumulating

8 eleven disciplinary infractions, including six “100 level”

infractions, the most serious infractions in BOP facilities. In

2020 alone, he has had seven infractions ranging from possession

of drugs, possession of cigarettes, possession of a makeshift

bladder to circumvent drug testing, possession of a non-

hazardous tool, refusing to obey an order, and twice refusing

drug and alcohol testing. See Doc. No. 35 at 6. These

infractions demonstrate that he remains a risk to himself and

the community. They also raise doubts about his ability to

successfully transition to supervised release, because he has

not done substantial work to address his drug addiction.

Manning’s sentence remains no greater than necessary to

achieve the purposes of the sentencing statute. Consideration

of Section 3553(a)’s factors, therefore, weighs against granting

any reduction in Manning’s sentence.

IV. CONCLUSION

For the foregoing reasons, Manning’s motions for

compassionate release (Doc. Nos. 32 and 34) are denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge January 8, 2021

cc: Jennifer Cole Davis, Esq. James B. Reis, Esq. U.S. Marshal U.S. Probation

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