UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 16-cr-59-PB-1 Opinion No.

Brian Powell

ORDER

Brian Powell is serving a 300-month sentence for production of child

pornography. Although he has served less than half his sentence, Powell

seeks a sentence reduction pursuant to

(c)(1). His

principal argument is that he needs to be released now to care for his

ailing mother. He also claims that he should be granted a sentence

reduction because he received a disproportionately harsh sentence when

compared to other similar offenders, his participation in programming

while incarcerated and his spotless disciplinary record demonstrate that

he is at low risk of reoffending, and because his sentence was unusually

harsh because he was incarcerated during the height of the COVID-19

pandemic. Doc. 74.

The First Circuit Court of Appeals has explained that a court may

grant a request for a sentence reduction brought by a defendant who has

exhausted administrative remedies if “(1) there are extraordinary and

1 compelling reasons that warrant a sentence reduction; (2) such a reduction

is consistent with applicable policy statements issued by the Sentencing

Commission; and (3) after considering the factors set forth in [18 U.S.C.] §

3553(a) to the extent they are applicable, the court finds, in its discretion,

that the particular circumstances of the case justify reducing the

defendant’s sentence.” United States v. D’Angelo,

, 48 (1st Cir.

2024) (cleaned up); United States v. Ayala-Vázquez,

, 12-13 (1st

Cir. 2024); United States v. Ruvalcaba,

, 18-19 (1st Cir. 2022). I

determine whether these requirements have been met by bearing in mind

“the holistic context” of the defendant’s case. D’Angelo, 110 F.4th at 48.

As a preliminary matter, I am not persuaded by the defendant’s

claim that he needs to be released now to care for his elderly mother.

Neither the defendant acting pro se nor his former appointed counsel have

presented a persuasive case that his mother, although seriously ill, is

either unable to obtain home health care where she currently resides or

cannot sell her home and move closer to her other son who currently

resides in the lakes region. Thus, the defendant cannot establish that his

mother’s need for care qualifies as an extraordinary and compelling

circumstance warranting his release.

2 Nor am I persuaded by the defendant’s additional claims that his

spotless disciplinary record, his rehabilitative efforts, the length of his

sentence when compared with the sentences given to other defendants, or

the harsh realities of incarceration during the COVID-19 pandemic, alone

or in combination, amount to extraordinary and compelling circumstances.

Even if the defendant could establish extraordinary and compelling

circumstances, I would not grant his request because the § 3553(a) factors

continue to require the sentence I originally imposed. When I sentenced

the defendant, I varied substantially downward at the government’s

request and imposed a sentence that was five years below the bottom of

the applicable sentencing guideline range of 360 months to life. In doing

so, I imposed the minimum sentence that I deemed to be necessary to

satisfy the requirements of the sentencing statute. In my view, that

sentence remains the appropriate sentence. When I sentenced the

defendant, I explained that one of the most troubling aspects of the case

was the defendant’s use of extortionate methods to control children for his

own sexual gratification. Doc. 67 at 28. Given the nature of the defendant’s

criminal conduct, I believed then, and I continue to believe now, that a

300-month sentence is the minimum sentence necessary to produce a just

sentence and to protect the public from future crimes by the defendant and

3 deter others from committing similar crimes. For these reasons, I deny the

defendant’s motion for a sentence reduction. Doc. 74.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

October 23, 2024

cc: Brian Powell, pro se Counsel of Record U.S. Probation U.S. Marshal

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