UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 18-cr-102-SE Opinion No.

Damon Austin

O R D E R

Damon Austin, who is serving an 84-month prison sentence

after pleading guilty to being a felon in possession of a

firearm, moves for compassionate release under

(c)(1)(A), seeking to serve the remainder of his sentence in

home confinement. As he did in an earlier motion for

compassionate release, see doc. no. 59, Austin argues that the

combined effects of his medical conditions and the risks

presented by COVID-19 necessitate his release from prison.

The court denied Austin’s prior motion, concluding that the

sentencing factors in

(a), which the court must

consider when ruling on a motion for compassionate release,

weighed heavily against reducing his sentence. See doc. no. 64

at 8-10. Those factors include the nature of Austin’s crime, his

criminal history of violence, and his drug use.

Although nearly two years have passed since the court

denied Austin’s first motion for compassionate release, those

factors have not changed. For the same reasons that the court

provided in that order, as well as Austin’s failure to meet the procedural requirements necessary to bring a motion for

compassionate release, the court denies Austin’s present motion

for compassionate release.

In the alternative, Austin asks the court to recommend to

the Bureau of Prisons that it place him in home confinement for

the remainder of his sentence pursuant to

(b)

and § 3624(c)(2). The court declines to make the recommendation.

Background

The criminal charges against Austin arose from an

altercation in Somersworth, New Hampshire, when Austin

threatened Christopher Brown at Brown’s home with a loaded gun.

United States v. Austin,

(1st Cir. 2021). Austin

left Brown’s house in a vehicle driven by Tanya Phillips, and

Brown called the police. Id.; doc. no. 64 at 4. Officers located

and stopped Phillips’s vehicle. Austin,

. They

found a loaded magazine on Austin and retrieved a gun from the

front seat of the vehicle.

While still at the scene of the

arrest, “Austin revealed in a post-Miranda statement that he was

a convicted felon.”

Later, during booking, he “stated that

he was a member of the Mattapan Avenue Crips street gang.”

During a subsequent search of Austin’s apartment, officers found

more guns, ammunition, cocaine and crack cocaine, other drugs,

and cash. Doc. no. 64 at 4.

2 In January 2019, Austin pleaded guilty to two counts of

possession of a firearm by a prohibited person in violation of

(g)(1) and § 924(a)(2). The court sentenced him

to 84 months in prison. Austin is currently serving his sentence

at FCI Otisville in Otisville, New York.

Austin seeks to serve the remainder of his sentence in home

confinement. He pursues that goal through two avenues. The first

is that he seeks compassionate release, requesting that the

court order him to be placed in home confinement pursuant to

§ 3582(c)(1)(A), which authorizes a court to reduce a

defendant’s term of imprisonment under certain circumstances.

Should the court decline to grant Austin compassionate release,

he requests that the court recommend to the BOP that it place

him in home confinement for the remainder of his sentence under

§ 3621(b) and § 3624(c)(2).

In support of both requests, Austin submits medical

records, dated December 19, 2022, that document health

conditions of obesity, hypertension, asthma, major depressive

disorder, vitamin D deficiency, reflux disease, unspecified mood

disorder, and sarcoidosis.1 He argues that his health conditions,

1 Austin provided a quote from the Mayo Clinic website to explain that “‘[s]arcoidosis is a disease characterized by the growth of tiny collections of inflammatory cells (granulomas) in any part of your body — most commonly the lungs and lymph nodes.’” Doc. no. 75 at 1 n.2.

3 which increase his risk of serious illness or death if he

contracts COVID-19, justify his move to home confinement under

all of the applicable statutes.

Discussion

Although Austin offers the same arguments in support of his

separate requests for relief, the analysis required in

considering a motion for compassionate release and a request for

a recommendation to the BOP for release to home confinement

differs in part. Therefore, the court addresses each request

separately.

I. Compassionate Release

“Before a court considers a defendant’s motion for

compassionate release, it must determine whether the defendant

has met the procedural prerequisites for bringing such a

motion.” United States v. Crosby, No. 1:17-CR-00123-JAW-01,

, at *6 (D. Me. Oct. 27, 2020). Specifically, a court

may consider a defendant’s motion for compassionate release

“only if he has either: (1) fully exhausted all administrative

rights to appeal [BOP’s] failure to bring a compassionate

release motion on his behalf; or (2) filed a request for

compassionate release with BOP and BOP failed to respond within

30 days,” whichever is earlier. United States v. Eisenberg, 470

(D.N.H. 2020) (citing § 3582(c)(1)(A)); see

also United States v. Texeira-Nieves,

, 52–53 (1st

Cir. 2022).

Once the defendant has satisfied the procedural

requirements, the court may grant a motion for compassionate

release if it finds “both that the defendant has presented an

‘extraordinary and compelling’ reason warranting a sentence

reduction, and that ‘such a reduction is consistent with

applicable policy statements issued by the Sentencing

Commission.’” United States v. Ruvalcaba,

, 18-19

(1st Cir. 2022) (quoting § 3582(c)(1)(A) and citation omitted).2

In addition, “the . . . court must consider any applicable

section 3553(a) factors and determine whether, in its

discretion, the reduction . . . is warranted in whole or in part

under the particular circumstances of the case.” Id. at 19

2 The court notes that the First Circuit Court of Appeals has held that courts are not bound to consider the Sentencing Commission’s policy statement regarding compassionate release motions when the motions are “prisoner-initiated,” rather than brought by the BOP. Ruvalcaba, 26 F.4th at 19-21. The Sentencing Commission, however, has proposed an amendment to its compassionate release policy statement that may make it specifically applicable to motions filed by prisoners. See United States v. Ozen, No. 1:14-CR-118,

, at *4 (E.D. Tex. July 11, 2023). Because consideration of the applicable policy statement does not change the outcome of the court’s order, the court assumes without deciding that it should consider the statement in ruling on Austin’s motion.

5 (citation and quotation omitted). Those factors include the

purpose of the defendant’s sentence and the need:

(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)(1).

The government argues that Austin is not entitled to relief

under § 3582(c)(A) for two reasons. First, he failed to satisfy

the statute’s procedural requirements. Second, even if he had

satisfied those requirements, he has not shown an extraordinary

and compelling reason to be placed in home confinement and he

remains a danger to the community.

A. Procedural Requirements

Austin states in his motion that he petitioned the warden

of his BOP facility for compassionate release more than 30 days

before filing the instant motion, but he did not receive a

response. He also represents that his unit counselor offered to

give him a letter certifying that he gave the counselor a

6 completed BP-8 form.3 He does not contend that he ever received

such a letter and none exists in the record. Nevertheless,

Austin argues that he has satisfied the procedural requirements

necessary to bring a motion for compassionate release.

The government disagrees. It submits an email from Irene

Chan, a staff attorney with the BOP, who conducted a search for

Austin’s requests for compassionate release. Doc. no. 77-1. Chan

states that the BOP has no record of a request for compassionate

release from Austin while he has been incarcerated at FCI

Otisville, from December 7, 2022, to the present. Id. at 2.

Chan did locate and provide a copy of an August 21, 2022

request which Austin filed while a prisoner in USP Canaan. See

id. at 3. That request, however, is unrelated to Austin’s

instant motion based on his health concerns, as it alleges

extraordinary and compelling reasons based on a need for Austin

to care for his elderly mother. Id. The acting warden at USD

Canaan denied that request on September 2, 2022 and Austin did

not file a motion based on that denial. Id. at 4.

Although Austin claims otherwise, the record the government

provides demonstrates that he did not satisfy the procedural

3 “A BP-8 form seeks informal resolution of a grievance with the prisoner’s unit team, and a BP-9 appeals to the warden if informal attempts fail.” Poole v. Johnson, No. EDCV191872JLSJPR,

, at *3 (C.D. Cal. Dec. 27, 2022), report and recommendation adopted, No. EDCV191872JLSJPR,

(C.D. Cal. Mar. 13, 2023).

7 requirements necessary for him to bring a motion for

compassionate release based on his health-related concerns.

Austin’s failure to do so precludes him from obtaining relief

under the statute. Because the court would deny Austin’s motion

on the merits regardless, the court addresses the relevant

considerations below.

B. Merits

As stated above, a defendant seeking compassionate release

must provide an extraordinary and compelling reason in support

of his motion and the court must find that his release would be

consistent with the Sentencing Commission’s policy statements.

The court must also consider the § 3553(a) sentencing factors.

Here, even assuming Austin had presented an extraordinary and

compelling reason warranting a reduction in his term of

imprisonment and the reduction was consistent with the

Sentencing Commission’s policy statements, the court would still

deny his motion after considering the applicable sentencing

factors.

For the reasons stated in the government’s objection, doc.

no. 77 at 6-9, and those stated in the court’s order denying

Austin’s first motion for compassionate release, doc. no. 64 at

8-10, the factors in § 3553(a)(1) weigh strongly against

reducing his term of imprisonment. Although Austin has now

8 served more of his sentence than he had when he previously

requested a sentence reduction and is expected to be released in

March 2024, his sentence of 84 months was appropriate for the

crimes of conviction and should not be reduced.

Therefore, the court denies Austin’s motion to his sentence

under § 3582(c)(1)(A).

II. Recommendation of Home Confinement

The BOP has exclusive authority to determine where a

defendant will serve his sentence, including whether to have the

defendant serve his sentence in home confinement. § 3621(b); §

3624(c); United States v. Duford,

(D.N.H. 2020). Austin acknowledges the BOP’s authority and asks

the court only to recommend home confinement, citing 18 U.S.C

§3621(b) and §3624(c). Nonetheless, it is not clear whether the

cited statutes give the court the authority to do so at this

stage. See United States v. Soto, No. 2:17-cr-157-JAW,

, at *10 (D. Me. Sept. 26, 2022), appeal dismissed, No.

22-1765,

(1st Cir. Dec. 13, 2022). Even if the

court were permitted to make such a recommendation, there is no

basis to recommend that the BOP place Austin in home confinement

for the reasons already stated.

9 Conclusion

For the foregoing reasons, Austin’s motion for a reduction

of his term of imprisonment (doc. no. 75) is denied.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge November 7, 2023

cc: Counsel of record.

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