UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 16-cr-0059-PB Opinion No. 2024 DNH 090 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
18 U.S.C. § 2251. 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 18 U.S.C. §
3582(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
Pub. L. No. 115-391, § 603(b), 132 St. 5194, 5239 (2018) (amending 18 U.S.C.
§ 3582). 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 18 U.S.C. § 3582(c). See United
States v. Manso-Zamora, 991 F.3d 694, 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, 15 F.4th 1027, 1032
(10th Cir. 2021); United States v. Meeks, 971 F.3d 830, 833 (8th Cir. 2020);
United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (per curiam),
2 overruled on other grounds by United States v. Taylor, 778 F.3d 667, 669 (7th
Cir. 2015); United States v. Webb, 565 F.3d 789, 795-96 (11th Cir. 2009) (per
curiam); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United
States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996) (per curiam); United
States v. Reddick, 53 F.3d 462, 464 (2d Cir. 1995); United States v.
Whitebird, 55 F.3d 1007, 1011 (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, 501 U.S. 722, 752 (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, 787 F.2d 1, 2
(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 id. (citing Childs v. Duckworth, 705 F.2d 915,
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, 2024 WL 3042905, at *1 (4th Cir. June 18, 2024); United States v. Latin, No. 22-10173, 2023 WL 3580758, at *1 (9th Cir. May 22, 2023); United States v. Cain, 827 Fed.Appx. 915, 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, 34 F.4th 71, 77 (1st Cir. 2022)
(noting that criminal defendants are not automatically entitled to evidentiary
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Case No. 16-cr-0059-PB Opinion No. 2024 DNH 090 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
18 U.S.C. § 2251. 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 18 U.S.C. §
3582(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
Pub. L. No. 115-391, § 603(b), 132 St. 5194, 5239 (2018) (amending 18 U.S.C.
§ 3582). 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 18 U.S.C. § 3582(c). See United
States v. Manso-Zamora, 991 F.3d 694, 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, 15 F.4th 1027, 1032
(10th Cir. 2021); United States v. Meeks, 971 F.3d 830, 833 (8th Cir. 2020);
United States v. Forman, 553 F.3d 585, 590 (7th Cir. 2009) (per curiam),
2 overruled on other grounds by United States v. Taylor, 778 F.3d 667, 669 (7th
Cir. 2015); United States v. Webb, 565 F.3d 789, 795-96 (11th Cir. 2009) (per
curiam); United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United
States v. Townsend, 98 F.3d 510, 512-13 (9th Cir. 1996) (per curiam); United
States v. Reddick, 53 F.3d 462, 464 (2d Cir. 1995); United States v.
Whitebird, 55 F.3d 1007, 1011 (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, 501 U.S. 722, 752 (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, 787 F.2d 1, 2
(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 id. (citing Childs v. Duckworth, 705 F.2d 915,
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, 2024 WL 3042905, at *1 (4th Cir. June 18, 2024); United States v. Latin, No. 22-10173, 2023 WL 3580758, at *1 (9th Cir. May 22, 2023); United States v. Cain, 827 Fed.Appx. 915, 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, 34 F.4th 71, 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, 958 F.3d 494, 499 (6th Cir. 2020); United States v.
Williams, 943 F.3d 841, 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