UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 16-cr-143-JD Opinion No. 2020 DNH 209 Anthony Barth
O R D E R
Anthony Barth, proceeding pro se, filed a motion for a
reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A).
Counsel was appointed to represent him, and counsel filed a
supplemental motion to have Barth’s sentence reduced based on
the combined effects of his medical conditions, the risks
presented by the COVID-19 pandemic, and the conditions of
confinement due to the pandemic.1 The government objects to the
motion. The Office of Probation and Pretrial Services has filed
a report.
Standard of Review
A defendant may file a motion in court for a reduced
sentence under § 3582(c)(1)(A) in certain circumstances. The
1 Although Barth requested a hearing on the motion, he did not provide a statement to show why a hearing was necessary or why oral argument would provide assistance to the court. LR 7.1(d). Therefore, no hearing was held. defendant must have “fully exhausted all administrative rights
to appeal a failure of the BOP to bring a motion on the
defendant’s behalf” or, thirty days must have passed since the
warden at the defendant’s facility received the defendant’s
request without a response. Id. If a defendant has satisfied
the administrative exhaustion requirement, the court may reduce
a term of imprisonment based on a finding that “extraordinary
and compelling reasons warrant such a reduction” and “after
considering the factors provided in [18 U.S.C. §] 3553(a) to the
extent that they are applicable.” § 3582(c)(1)(A). The statute
also directs consideration of whether the requested “reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.” § 3582(c)(1)(A).
The applicable policy statement is United States Sentencing
Guidelines § 1B1.13. That guidance provides that a defendant’s
term of imprisonment may be reduced if extraordinary and
compelling reasons warrant the reduction or the defendant meets
the age and time-served requirements and the defendant is not “a
danger to the safety of any other person or to the community” and
the reduction is consistent with the policy statement. See United
States v. Jones, 2020 WL 6205783, at *2 (D. Mass. Oct. 22, 2020).
Application Note 1 to U.S.S.G. § 1B1.13 provides additional
2 guidance as to when an extraordinary and compelling reason to
reduce a defendant’s sentence may exist. Those reasons include
medical conditions, age, family circumstances, and extraordinary
and compelling reasons “other than, or in combination with, the
reasons described.” BOP Program Statement 5050.50 also provides
guidance as to when post-sentencing developments, medical
conditions, age, and family circumstances will support a motion
for sentence reduction under § 3582(c)(1)(A). Program Statement
No. 5050.50, Compassionate Release/Reduction in Sentence:
Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g)
(Jan. 17, 2019), www.bop.gov/policy/progstat/5050_050_EN.pdf.
Background
Anthony Barth pleaded guilty on June 5, 2017, to two counts
of distribution of fentanyl and one count of possession with
intent to distribute fentanyl. He was sentenced to 168 months
of incarceration and has served approximately 30% to 35% of his
sentence. He is now incarcerated at FCI Berlin.
Barth is twenty-nine years old. In 2017, for purposes of
the presentence investigation, he denied any chronic medical
conditions or ailments except for migraines. During 2020, he
has had elevated blood pressure readings, but he has not
3 submitted a medical diagnosis of hypertension. He states that
he was diagnosed with anxiety in March of 2020.2
The government had Barth’s medical records reviewed by Dr.
Gavin Muir, Chief Medical Officer at Amoskeag Health in
Manchester, New Hampshire. Dr. Muir reports that Barth’s two
elevated blood pressure readings might result in a diagnosis of
hypertension but could also simply be elevated blood pressure
readings without hypertension. Dr. Muir explains that blood
pressure rechecks by a medical provider after support staff
found an elevated pressure are often lower but those were not
done in Barth’s case. Dr. Muir also notes that Barth had normal
readings previously, that he is only twenty-nine years old, and
that his weight has not changed significantly since his normal
readings. In Dr. Muir’s opinion, additional information would
be necessary to determine whether Barth has hypertension. Dr.
Muir notes that Barth has a history of anxiety.
The government provides information about the efforts taken
by the BOP to control COVID-19 infections in its prisons. Barth
states in his motion that he was in lock down at MDC Brooklyn
from April 1 to July 10 and then at FCI Berlin until August 6
because of the prisons’ response to the COVID-19 pandemic.
2 Although Barth cites a page in his medical records in support of his diagnosis, it does not appear that his medical records were submitted to the court.
4 Barth states that on November 4, 2020, FCI Berlin was
experiencing a spike in COVID-19 cases among its inmates and
staff and provides a graph that shows there were eight cases at
that time. Three and a half weeks later, the Bureau of Prisons
(“BOP”) reported two active cases of COVID-19 among the staff at
FCI Berlin and two active cases among inmates.3
https://bop.gov/coronavirus/ (last visited on November 30,
2020). As is widely reported in the news, cases of COVID-19 are
increasing across the country and in New Hampshire.
Before his sentencing, Barth was held at the Strafford
County Jail where he received disciplinary reports for a
positive drug test and for fighting. While in BOP custody,
Barth has received three disciplinary reports. He has
participated in classes, and he has had a work detail since
July. The BOP has assessed Barth’s risk for reoffending at
medium.
If he were released from prison, Barth plans to live in an
apartment in Manchester, New Hampshire, that would be rented by
his family for him. His mother and brother share a house in
3 Barth suggests that the BOP website does not report as many COVID-19 cases in its facilities as are reported by the Office of the Inspector General (“OIG”) of the Department of Justice. In addition to the BOP website, the court viewed the OIG website link, arcgis.com, provided by Barth and found that as of November 30, that site reported FCI Berlin to have only one active case while the BOP reports four cases.
5 Manchester, and the plan is that Barth’s apartment would be near
them. His family intend to find a larger house where Barth
could live with them.
Discussion
Barth contends that he has hypertension and anxiety that
cause him to have an increased risk of death or serious illness
if he were infected with COVID-19, which presents an
extraordinary and compelling reason to reduce his sentence to
time served.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 16-cr-143-JD Opinion No. 2020 DNH 209 Anthony Barth
O R D E R
Anthony Barth, proceeding pro se, filed a motion for a
reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(1)(A).
Counsel was appointed to represent him, and counsel filed a
supplemental motion to have Barth’s sentence reduced based on
the combined effects of his medical conditions, the risks
presented by the COVID-19 pandemic, and the conditions of
confinement due to the pandemic.1 The government objects to the
motion. The Office of Probation and Pretrial Services has filed
a report.
Standard of Review
A defendant may file a motion in court for a reduced
sentence under § 3582(c)(1)(A) in certain circumstances. The
1 Although Barth requested a hearing on the motion, he did not provide a statement to show why a hearing was necessary or why oral argument would provide assistance to the court. LR 7.1(d). Therefore, no hearing was held. defendant must have “fully exhausted all administrative rights
to appeal a failure of the BOP to bring a motion on the
defendant’s behalf” or, thirty days must have passed since the
warden at the defendant’s facility received the defendant’s
request without a response. Id. If a defendant has satisfied
the administrative exhaustion requirement, the court may reduce
a term of imprisonment based on a finding that “extraordinary
and compelling reasons warrant such a reduction” and “after
considering the factors provided in [18 U.S.C. §] 3553(a) to the
extent that they are applicable.” § 3582(c)(1)(A). The statute
also directs consideration of whether the requested “reduction
is consistent with applicable policy statements issued by the
Sentencing Commission.” § 3582(c)(1)(A).
The applicable policy statement is United States Sentencing
Guidelines § 1B1.13. That guidance provides that a defendant’s
term of imprisonment may be reduced if extraordinary and
compelling reasons warrant the reduction or the defendant meets
the age and time-served requirements and the defendant is not “a
danger to the safety of any other person or to the community” and
the reduction is consistent with the policy statement. See United
States v. Jones, 2020 WL 6205783, at *2 (D. Mass. Oct. 22, 2020).
Application Note 1 to U.S.S.G. § 1B1.13 provides additional
2 guidance as to when an extraordinary and compelling reason to
reduce a defendant’s sentence may exist. Those reasons include
medical conditions, age, family circumstances, and extraordinary
and compelling reasons “other than, or in combination with, the
reasons described.” BOP Program Statement 5050.50 also provides
guidance as to when post-sentencing developments, medical
conditions, age, and family circumstances will support a motion
for sentence reduction under § 3582(c)(1)(A). Program Statement
No. 5050.50, Compassionate Release/Reduction in Sentence:
Procedures for Implementation of 18 U.S.C. §§ 3582 and 4205(g)
(Jan. 17, 2019), www.bop.gov/policy/progstat/5050_050_EN.pdf.
Background
Anthony Barth pleaded guilty on June 5, 2017, to two counts
of distribution of fentanyl and one count of possession with
intent to distribute fentanyl. He was sentenced to 168 months
of incarceration and has served approximately 30% to 35% of his
sentence. He is now incarcerated at FCI Berlin.
Barth is twenty-nine years old. In 2017, for purposes of
the presentence investigation, he denied any chronic medical
conditions or ailments except for migraines. During 2020, he
has had elevated blood pressure readings, but he has not
3 submitted a medical diagnosis of hypertension. He states that
he was diagnosed with anxiety in March of 2020.2
The government had Barth’s medical records reviewed by Dr.
Gavin Muir, Chief Medical Officer at Amoskeag Health in
Manchester, New Hampshire. Dr. Muir reports that Barth’s two
elevated blood pressure readings might result in a diagnosis of
hypertension but could also simply be elevated blood pressure
readings without hypertension. Dr. Muir explains that blood
pressure rechecks by a medical provider after support staff
found an elevated pressure are often lower but those were not
done in Barth’s case. Dr. Muir also notes that Barth had normal
readings previously, that he is only twenty-nine years old, and
that his weight has not changed significantly since his normal
readings. In Dr. Muir’s opinion, additional information would
be necessary to determine whether Barth has hypertension. Dr.
Muir notes that Barth has a history of anxiety.
The government provides information about the efforts taken
by the BOP to control COVID-19 infections in its prisons. Barth
states in his motion that he was in lock down at MDC Brooklyn
from April 1 to July 10 and then at FCI Berlin until August 6
because of the prisons’ response to the COVID-19 pandemic.
2 Although Barth cites a page in his medical records in support of his diagnosis, it does not appear that his medical records were submitted to the court.
4 Barth states that on November 4, 2020, FCI Berlin was
experiencing a spike in COVID-19 cases among its inmates and
staff and provides a graph that shows there were eight cases at
that time. Three and a half weeks later, the Bureau of Prisons
(“BOP”) reported two active cases of COVID-19 among the staff at
FCI Berlin and two active cases among inmates.3
https://bop.gov/coronavirus/ (last visited on November 30,
2020). As is widely reported in the news, cases of COVID-19 are
increasing across the country and in New Hampshire.
Before his sentencing, Barth was held at the Strafford
County Jail where he received disciplinary reports for a
positive drug test and for fighting. While in BOP custody,
Barth has received three disciplinary reports. He has
participated in classes, and he has had a work detail since
July. The BOP has assessed Barth’s risk for reoffending at
medium.
If he were released from prison, Barth plans to live in an
apartment in Manchester, New Hampshire, that would be rented by
his family for him. His mother and brother share a house in
3 Barth suggests that the BOP website does not report as many COVID-19 cases in its facilities as are reported by the Office of the Inspector General (“OIG”) of the Department of Justice. In addition to the BOP website, the court viewed the OIG website link, arcgis.com, provided by Barth and found that as of November 30, that site reported FCI Berlin to have only one active case while the BOP reports four cases.
5 Manchester, and the plan is that Barth’s apartment would be near
them. His family intend to find a larger house where Barth
could live with them.
Discussion
Barth contends that he has hypertension and anxiety that
cause him to have an increased risk of death or serious illness
if he were infected with COVID-19, which presents an
extraordinary and compelling reason to reduce his sentence to
time served. Alternatively, he asks the court to resentence him
to 120 months of incarceration based on extraordinary and
compelling reasons presented by the COVID-19 risk and the
current prison conditions at FCI Berlin. The government opposes
the motion, arguing that Barth has not shown an extraordinary
and compelling reason to support reduction in his sentence and
that the sentencing factors under § 3553(a) weigh against
reduction.
A. Extraordinary and Compelling Reason
Based on his counsel’s research, Barth asserts that he has
hypertension, which would increase his risk of death or severe
illness from COVID-19. He has not been diagnosed with
hypertension. Dr. Muir provided his opinion that Barth has not
6 been diagnosed with hypertension and that his blood pressure
readings do not necessarily support that diagnosis.
Even if Barth could show a diagnosis of hypertension, that
would not be sufficient, by itself, to support his claim. As
the government points out, the CDC has recognized that
hypertension or high blood pressure might cause increased risk
for severe illness from COVID-19. https://www.cdc.gov/
coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last visited Nov. 30, 2020). Barth has
not shown that his condition necessarily would cause an
increased risk. Therefore, Barth has not shown that he has
hypertension that would put him at higher risk if he were to be
infected with COVID-19.4
Barth also argues that his history of anxiety in
combination with his hypertension causes an increased risk with
COVID-19. In support, Barth does not cite CDC guidance or a
medical opinion to show that his anxiety increases his risk from
COVID-19. Instead, he relies on cases which recognize that
mental health issues, including stress, anxiety, and depression,
4 To the extent that Barth argues he would be safer living in an apartment in Manchester rather than in prison, he has not shown that to be an extraordinary and compelling reason to reduce his sentence.
7 can lead to vulnerabilities and other needs that could be the
basis for reducing a prisoner’s sentence. In the absence of any
evidence that Barth’s anxiety is causing him to experience
specific vulnerability to COVID-19 or other problems that show
an extraordinary and compelling reason to reduce his sentence,
his anxiety condition does not support granting his motion.
Because Barth has not shown an extraordinary and
compelling reason to reduce his sentence, his motion would be
denied on that basis alone.5 Even if he could make that
necessary showing, however, the sentencing factors under
§ 3553(a) weigh against reducing his 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 a motion for
5 Barth represents that he has satisfied the exhaustion requirement by requesting relief from the warden in August, without a response for more than thirty days. The government agrees that he has satisfied the exhaustion requirement.
8 reduction of a defendant’s sentence.6 The 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 Barth was
sentenced to 168 months in prison, which was an appropriate
sentence for his serious crimes and in light of his criminal
history. Barth was convicted of distributing fentanyl and
possessing with intent to distribute fentanyl, which is a very
dangerous drug. In addition, before that crime, he was
convicted of drug trafficking-related crimes, served a prison
6 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.
9 sentence, and violated parole by selling drugs again. Barth has
served only approximately one third of his sentence.
The intervening change caused by the COVID-19 pandemic does
not support a reduction in Barth’s sentence. Therefore, based
on the § 3553(a) factors, Barth’s sentence remains appropriate
without reduction.
C. Conditions of Confinement
Alternatively, Barth asks that his sentence be reduced to
120 months because of the time he has spent in lock down due to
the prison’s response to the COVID-19 pandemic. He contends
that the conditions of his confinement have imposed additional
punishment on him so that he should be given more credit for the
time he has served under punitive conditions.
Although a few courts have considered the conditions of an
inmate’s confinement in deciding motions under § 3582(c)(1)(A),
the particular circumstances that existed in those cases do not
apply here. In United States v. Macfarlane, 438 F. Supp. 3d
125, 127 (D. Mass. 2020), the court reduced a six-month sentence
to time served based on crediting two weeks of solitary
quarantine time as two months of prison time. In United States
v. Indarte, 2020 WL 6060299, at *4 (W.D. Ind. Oct. 14, 2020),
10 the inmate was elderly and had only eight months left to serve
on his sentence.
In contrast, Barth has a lengthy sentence with two-thirds
of the time remaining. Further, the conditions of confinement
that Barth describes are not unique to him and instead have been
imposed generally for the safety of inmates and staff because of
the pandemic. Barth has not presented an extraordinary and
compelling reason to reduce his sentence and without that
showing, relief is not available. See United States v. Benoit,
2020 WL 6060885, at *2, n.3 (D. Me. Oct. 14, 2020).
Conclusion
For the foregoing reasons, the defendants’ motions for a
reduction in his sentence (documents nos. 47 and 52) are denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge December 3, 2020
cc: Counsel of record.