UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 16-cr-0059-PB Opinion No.

Brian Powell

ORDER

Brian Powell is currently serving a 300-month prison sentence

following a conviction for the production of child pornography in violation of

. Doc. 67 at 30; Doc. 34 at 18; Doc. 9 at 1. Since 2016, Powell

has been incarcerated at FCI Danbury. In September 2024, Powell acted pro

se in filing a motion for compassionate release pursuant to

(c)(1)(A). See Doc. 74. I appointed Attorney Jaye Rancourt of the Federal

Public Defender Office as counsel for the duration of the postconviction

compassionate release proceedings. Attorney Rancourt filed a supplemental

brief supporting Powell’s pro se motion for compassionate release. See Doc.

76. The United States objected to Powell’s motion. See Doc. 78. In response,

Powell filed a pro se reply to the government’s objection. See Doc. 80.

Attorney Rancourt then filed a motion on Powell’s behalf to determine

status of counsel and to allow Powell to proceed pro se with the assistance of standby counsel. See Doc. 79. Powell requests that his pro se filings be

docketed and considered on their merits. Id. at 1. Powell also seeks transport

to the Court for an in-person hearing in his postconviction proceedings so as

to address the Court directly. Id. at 2. For the reasons set forth below, I grant

the motion for Powell to proceed pro se and deny the request that I appoint

standby counsel. I deny the request for an in-person hearing on Powell’s

outstanding motion for compassionate release.

I. Right to Counsel

The First Step Act of 2018 allows an incarcerated defendant to file a

motion directly with the trial court seeking compassionate release after

exhausting all administrative options through the Bureau of Prisons. See

(b), 132 St. 5194, 5239 (2018) (amending

). Courts have repeatedly held that, as in similar postconviction

matters, defendants do not have a right to appointed counsel in proceedings

pursuant to the First Step Act, as codified at

(c). See United

States v. Manso-Zamora,

, 696 (6th Cir. 2021) (“[E]very federal

court of appeals to address the issue has agreed that there is no

constitutional (or statutory) right to appointed counsel in § 3582(c)

proceedings.”); see also United States v. Hemmelgarn,

, 1032

(10th Cir. 2021); United States v. Meeks,

, 833 (8th Cir. 2020);

United States v. Forman,

(7th Cir. 2009) (per curiam),

2 overruled on other grounds by United States v. Taylor,

(7th

Cir. 2015); United States v. Webb,

(11th Cir. 2009) (per

curiam); United States v. Legree,

(4th Cir. 2000); United

States v. Townsend,

(9th Cir. 1996) (per curiam); United

States v. Reddick,

(2d Cir. 1995); United States v.

Whitebird,

(5th Cir. 1995). 1 Neither the Sixth

Amendment nor the statute entitles a defendant to counsel when he seeks

compassionate release. See, e.g., Manso-Zamora, 991 F.3d at 696 (citing

Coleman v. Thompson,

(1992)).

In limited cases, courts have noted that a litigant can demonstrate that

their exceptional circumstances justify the appointment of counsel where no

preexisting right would require it. See Cookish v. Cunningham,

(1st Cir. 1986). Litigants should be appointed counsel when the denial of

proper representation would result in fundamental unfairness and impinge

on their due process rights. See

(citing Childs v. Duckworth,

,

1 Though several circuits only directly addressed the question of a defendant’s right to counsel during § 3582(c) proceedings prior to the enactment of the First Step Act, courts have continued to hold that nothing in the statute provides a right to counsel during the pendency of motions for compassionate release. See, e.g., United States v. Al-Shabazz, No. 24-6068,

, at *1 (4th Cir. June 18, 2024); United States v. Latin, No. 22-10173,

, at *1 (9th Cir. May 22, 2023); United States v. Cain,

, 921 (11th Cir. 2020).

3 922 (7th Cir. 1983)). In determining whether fundamental fairness requires

the appointment of counsel, relevant factors include the complexity of the

legal or factual issues and the ability of the litigant to investigate and

present their case. See id. at 3.

In this matter, I appointed Attorney Rancourt to represent Powell for

the duration of the compassionate release process. That appointment was a

privilege, not a right. To be sure, equitable principles of fundamental fairness

can require the appointment of counsel where no right exists. Here, however,

Powell has not demonstrated any reason why he would need counsel or the

support of standby counsel. Powell’s pro se filings have been thorough and

clearly organized. See, e.g., Doc. 74 (including over fifty pages of legal

argument as to why he should be eligible for an early release). His motion for

compassionate release and the grounds for it are clearly set out with section

headings and citations to statutes as well as case law. See id. The facts

underlying this matter and the law of § 3582(c) are not complex enough that

allowing Powell to proceed pro se would be fundamentally unfair.

Because Powell has requested to proceed pro se, he may do so. I will

consider both Powell’s pro se filings and the filings already made by

appointed counsel in my consideration of his motion for compassionate

4 release. Attorney Rancourt’s appointment is terminated, and I decline to

appoint standby counsel.

II. Request for a Hearing

Neither § 3582(c) nor any of the relevant provisions of the U.S.

Constitution suggest a right to a hearing on a motion for compassionate

release. Circuit courts of appeal have consistently held that a defendant is

not entitled to a hearing on a postconviction motion for compassionate

release. See United States v. Sepulveda,

, 77 (1st Cir. 2022)

(noting that criminal defendants are not automatically entitled to evidentiary

hearings on posttrial motions); see also Hemmelgarn, 15 F.4th at 1032 n.3;

United States v. Smith,

, 499 (6th Cir. 2020); United States v.

Williams,

, 843 (8th Cir. 2019).

Under the text of the First Step Act, district courts have discretion to

impose reduced sentences, but “the Act does not mention, let alone mandate,

a hearing.” Williams, 943 F.3d at 843. Accordingly, district courts have broad

discretion in determining the propriety of an evidentiary hearing when

considering a motion. Id.

Nothing in either Powell’s or the government’s motions suggests that a

hearing is necessary to adjudicate the propriety of a sentencing modification

pursuant to § 3582(c). While Powell requests the hearing so that he may

5 “address the Court himself,” Doc. 79 at 2, Powell’s pro se filings already

provide him with a sufficient opportunity to do so. He does not raise any

further reasons that an in-person hearing might be necessary.

In light of the foregoing considerations, I grant the motion for Powell to

proceed pro se, deny the motion to appoint standby counsel, and deny the

motion for a hearing.

SO ORDERED.

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

October 15, 2024

cc: Counsel of Record

6