UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 15-cr-60-JD Opinion No.

Rafael Beamud

O R D E R

Rafael Beamud moves pursuant to

(c)(1)(A)

to be released from prison or to have his sentence reduced based

on the risks presented by the COVID-19 pandemic in combination

with his medical conditions and the changes made by the First

Step Act to sentencing under

(c).1 The government

objects to relief under § 3582(c)(1)(A). United States

Probation and Pretrial Services has filed a report.

Standard of Review

A court may reduce an inmate’s sentence if the inmate

establishes an extraordinary and compelling reason for the

reduction and if the reduction is consistent with the sentencing

factors in

(a) and applicable policy statements

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

the Sentencing Commission has not released an updated policy

1 After Beamud filed a pro se motion, counsel was appointed to represent him, and counsel filed a supplemental motion. 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. 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 or reasons, as determined by

the court. § 1B.13, cmt. n.1 (A-D). United States v. Manning,

,

, at *1 (D.N.H. Jan. 8, 2021);

Vigneau, 473 F. Supp. 3d at 36.

Background

In May of 2015, Beamud pleaded guilty to a charge of using

and carrying a firearm during a crime of violence and a charge

of controlled substance robbery using a dangerous weapon. Those

charges arose from armed robberies of pharmacies in Nashua and

Manchester. He was sentenced to a term of 300 months plus one

day, to be served consecutive to a 141-month sentence imposed in

the District of Massachusetts.

2 Beamud’s criminal history begins in 1998 with disorderly

conduct and assault and battery. Over the next fifteen years,

Beamud amassed criminal convictions that include credit card

misuse, breaking and entering, possession and distribution of

drugs, and armed robbery.

The crimes of conviction occurred in March and April of

2013 when Beamud robbed CVS pharmacies in Nashua and Manchester.

On each occasion, Beamud confronted the pharmacist and demanded

Percocet pills. Beamud was armed with a handgun during both

robberies. He took a large quantity of oxycodone pills from the

pharmacy in Nashua and oxycodone and morphine pills from the

pharmacy in Manchester.

The pharmacy robberies were part of a robbery spree, which

included armed bank robberies in Massachusetts. The robbery

spree began on February 21, 2013, after Beamud was released on

bail in New Hampshire. The spree ended when Beamud was arrested

in Massachusetts on April 23, 2013, for the bank robberies that

occurred there.

In April of 2015, Beamud was arrested for the pharmacy

robberies in New Hampshire. He entered a plea agreement the

same day, which was “in furtherance of a global resolution” of

the charges brought against him in Massachusetts and New

Hampshire. Doc. no. 2, at *10.

3 As part of the plea agreement, the parties agreed that

Beamud’s total sentence for the crimes charged in Massachusetts

and New Hampshire would be thirty-six years, nine months, and

one day. That sentence includes 141 months for the crimes

charged in the District of Massachusetts and 300 months plus one

day for the crimes charged in this case. The plea agreement

states: “the defendant specifically agrees that, although such

sentence is the minimum sentence permitted for a second or

subsequent violation of

(c) under current law, a

consecutive twenty-five year sentence is appropriate under the

circumstances, even if it were not mandatory.” Doc. no. 2, at

*11. He was sentenced on October 13, 2015.

Currently, Beamud is serving his sentence at the United

States Penitentiary – Hazelton (“USP Hazelton”) in Bruceton

Mills, West Virginia. Beamud has incurred four disciplinary

reports while incarcerated, two of which related to use of drugs

or alcohol in prison.2 His projected release date is December 4,

2044, and he has served 21% of his full sentence.

The probation officer reports that Beamud has participated

in programs and classes, which include drug treatment and

education. He obtained his GED in 2016. Beamud submitted a

2 Beamud challenges the grounds for two of the reports.

4 letter in support of his motion for reduction in his sentence in

which he expresses regret for his actions that resulted in his

convictions and sentence, professes to have changed while in

prison, describes the challenges family members have faced while

he has been in prison, provides the programs and classes that he

has participated in, and criticizes the length of his sentence.

Beamud’s daughter also submitted a statement in support of his

motion.

Beamud is now forty years old. He has a history of

transient ischemic attacks, known as mini-strokes, and has high

cholesterol levels. In September of 2019, Beamud’s body mass

index was 34.9. The government had Beamud’s medical records

reviewed by Dr. Gavin Muir, Chief Medical Officer of Amoskeag

Health in Manchester, New Hampshire. Based on his review, Dr.

Muir’s opinion is that Beamud is obese and has cerebrovascular

disease.

If he were released from prison, Beamud plans to live with

his parents in Puerto Rico or alternatively in an apartment

owned by his sister in the Lawrence, Massachusetts area. He

states that he has explored options for employment in

collections, customer service, and the construction trades. The

probation officer spoke with Beamud’s sister who stated that

their parents are now divorced, that her brother could live in

Puerto Rico with their mother in her apartment above a

5 convenience store she owns and would take care of their mother

who has significant health issues. Alternatively, his sister

stated that her brother could live with their father, who is a

retired Cambridge, Massachusetts, police officer, or in an

apartment that she owns.

Discussion

Beamud asks that his sentence be reduced to time served

based on extraordinary and compelling reasons due to the changes

in sentencing under § 924(c) and his risk of severe illness if

he contracted COVID-19.3 In response, the government opposes

Beamud’s argument based on sentencing changes but acknowledges

that he has shown an extraordinary and compelling reason based

on his medical conditions in combination with the risks

presented by COVID-19. The government contends that Beamud’s

motion should be denied because he remains a danger to the

community and because the sentencing factors under § 3553(a)

weigh against a reduction of his sentence.

3 To the extent Beamud asked for a reduction in his sentence to something more than just time served, he did not develop that theory or provide any guidance as to what sentence was requested. Further, a sentence of more than time served would not address his concerns about COVID-19 infection.

6 A. Extraordinary and Compelling Reason

Section 403(a) of the First Step Act, passed in 2018,

changed sentencing for § 924(c) convictions to remove stacking

sentences for contemporaneous convictions. United States v.

Cruz-Rivera,

, 411 (1st Cir. 2020). The amendment

also provides that the changes apply to those who had committed

a crime in violation of § 924(c) but had not yet been sentenced

at the time the amendment was enacted. Id. at 412. The First

Circuit interpreted Congress’s purpose as intending “to put a

stop to unreasonably harsh stacked sentences without requiring

courts to redo sentences imposed while the old law was in

effect.” Id.

Some courts have considered the changes to § 924(c)

sentencing under the First Step Act as contributing to an

extraordinary and compelling reason to support sentence

reduction under § 3592(c)(1)(A) for a defendant who was

sentenced prior to the amendment. See, e.g., United States v.

McCoy,

, 288 (4th Cir. 2020); United States v.

Nafkha,

, at *1 (D. Utah Jan. 11, 2012); United

States v. Harris,

, at *7-*13 (E.D. Pa. Dec. 31,

2020) (citing and discussing cases); United States v. Gaines,

, at *2 (W.D. Wash. Dec. 23, 2020); Vigneau, 473

F. Supp. 3d at 36-39. Other courts have declined to do so.

United States v. Loggins,

, 892 (8th Cir. 2020);

7 United States v. Scott,

, at *4 (N.D. Ind. Dec.

18, 2020). The issue has not yet been addressed by the First

Circuit.

The court need not wade into this disputed area of the law

in this case because the government acknowledges that Beamud has

shown an extraordinary and compelling reason for reduction of

his sentence due to the risk of serious illness if he were to

contract COVID 19. Once an extraordinary and compelling reason

is found, the court must determine whether the sentencing

factors weigh in favor of reduction, which would also be true if

the reason were based on the First Step Act amendment. In this

case, consideration of the sentencing factors precludes a

reduction of Beamud’s sentence.

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

are particularly pertinent for purposes of this motion.4 The

4 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.

8 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 Beamud was

sentenced in 2015. The sentencing requirements under § 924(c)

and the § 3553(a) factors contributed to and supported the long

sentence that was imposed. Although the sentencing framework

under § 924(c) has been changed, those changes were not made

retroactive.

Beamud asks to have his sentence reduced to time served so

that he can be released from prison to avoid the danger of a

COVID-19 infection. Even if the court were to reassess Beamud’s

sentence in light of the changes to sentencing under the First

Step Act, his request would not be granted.

9 In support of his motion for a reduction in his sentence,

Beamud calculated that under the current version of § 924(c) he

would have a sentencing guideline range of 285 to 314 months, of

which 168 months would be mandatory. As Beamud presents it, the

recalculated guideline range encompasses the 300-month sentence

that was imposed in this case. Therefore, Beamud has not shown

that his sentence is entirely out of line with current

sentencing standards.

Further, Beamud has only served 92 months to date. He has

not completed the sentence of 144 months imposed in the District

of Massachusetts. He also has not completed the mandatory

sentence under the current version of § 924(c), if that were

imposed here.

Beamud’s crime spree that lead to his arrest and

convictions here and in the District of Massachusetts was

serious and dangerous. His drug use and activities and his use

of loaded weapons in the commission of those crimes shows that

he was then a danger to the community and may remain dangerous.

The court views the defendant to be at a high risk of

recidivism. The drastic reduction in his sentence that Beamud

requests would not be appropriate, and he has not shown that a

reduction in his sentence at this time is warranted.

10 Conclusion

For the foregoing reasons, the defendant’s motion for a

reduction in his sentence (document no. 23) and the supplemental

motion (document no. 31) are denied.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge February 1, 2021

cc: Counsel of record. U.S. Probation U.S. Marshal

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