UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-102-JD Opinion No. 2020 DNH 211 Damon Austin
O R D E R
Damon Austin moves pursuant to 18 U.S.C. § 3582(c)(1)(A) to
have his sentence reduced to time served based on the combined
effects of his medical conditions and the risks presented by the
COVID-19 pandemic.1 The government objects to the motion.2 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 Austin 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, not hearing was held.
2 In addition to objecting to reduction of Austin’s sentence under § 3582(c)(1)(A), the government objects to a recommendation from the court to the Bureau of Prisons to allow Austin to serve the maximum amount of his sentence in home confinement under 18 U.S.C. § 3624(c)(2). Austin, however, did not ask for that recommendation. For that reason, the court will not consider that alternative form of relief. 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 guidance as to when an extraordinary and compelling
2 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
In April of 2018, Austin was involved in an altercation in
Rochester, New Hampshire, with Christopher Brown who identified
Austin as his cocaine supplier.3 Austin threatened Brown by
putting a loaded gun in his face and then left in a vehicle
driven by a woman, who was identified as Tanya Phillips. Austin
threatened to return that night, and Brown feared he would come
3 The facts underlying Austin’s crimes of conviction are provided in his plea agreement. The court has also considered information provided for purposes of Austin’s motion to suppress evidence obtained from the search of his apartment and the report provided by the probation officer.
3 back to shoot up his house. Brown also said that Austin had
been staying at his house and that they had been using drugs
together.
After the altercation was reported, the police stopped a
vehicle that was registered to Phillips and fit the description
that Brown provided. Phillips was driving the vehicle, and
Austin was a passenger. Austin was arrested. The gun he used
to threaten Brown was found in his possession at the time of his
arrest. Phillips was also arrested. Their baby daughter and
two dogs were in the vehicle, and officers arranged to have them
taken by a relative.
Austin told officers during the booking process that he was
a member of the Mattapan (Massachusetts) Avenue Crips gang. The
officers also noted that Austin had gang-related tattoos.
The police obtained a search warrant for Austin’s
apartment. In the apartment, they found six other guns,
ammunition, drug paraphernalia, bags of cocaine, crack cocaine,
and marijuana. The officers also found cash, other drugs, and
keys to holding cells and exterior doors of a Boston Police
Department station.
Austin pleaded guilty to two counts of possession of a
firearm by a prohibited person. He was sentenced to eighty-four
months in prison and has served less than half of his sentence
4 to date. He is currently incarcerated at USP Canaan in
Pennsylvania. He filed a request with the warden for release
because of the COVID-19 pandemic, which was denied.
The government provides information about the BOP’s efforts
to control the spread of COVID-19 in its facilities. Currently,
the BOP reports that 107 inmates and 11 staff have confirmed
active cases of COVID-19 at USP Canaan.4 https://www.bop.gov
/coronavirus/ (last visited December 7, 2020). Cases of COVID-
19 are increasing rapidly around the country, including in New
Hampshire and Massachusetts, where Austin proposes to live if he
were released. See https://www.nytimes.com/interactive/2020/
us/coronavirus-us-cases.html (last visited December 7, 2020).
Austin, who is thirty-eight years old, submitted his
medical records in support of his motion, which were reviewed by
Dr. J. Gavin Muir, Chief Medical Officer of Amoskeag Health in
Manchester, New Hampshire. The medical records show that Austin
is a smoker, is morbidly obese, and has hypertension. The
government represents that based on his review, Dr. Muir found
that Austin has several medical conditions that put him at
increased risk if he were to contract COVID-19.
4 Austin filed an addendum on December 6, 2020, to show the increasing number of COVID-19 cases at USP Canaan.
5 Austin has a lengthy and serious criminal history. He
admitted gang affiliation during the booking process. When his
mother was interviewed as part of the presentence investigation,
she provided additional information that indicated Austin was
involved in street gangs. He has three convictions for assault
and battery with a dangerous weapon.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-102-JD Opinion No. 2020 DNH 211 Damon Austin
O R D E R
Damon Austin moves pursuant to 18 U.S.C. § 3582(c)(1)(A) to
have his sentence reduced to time served based on the combined
effects of his medical conditions and the risks presented by the
COVID-19 pandemic.1 The government objects to the motion.2 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 Austin 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, not hearing was held.
2 In addition to objecting to reduction of Austin’s sentence under § 3582(c)(1)(A), the government objects to a recommendation from the court to the Bureau of Prisons to allow Austin to serve the maximum amount of his sentence in home confinement under 18 U.S.C. § 3624(c)(2). Austin, however, did not ask for that recommendation. For that reason, the court will not consider that alternative form of relief. 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 guidance as to when an extraordinary and compelling
2 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
In April of 2018, Austin was involved in an altercation in
Rochester, New Hampshire, with Christopher Brown who identified
Austin as his cocaine supplier.3 Austin threatened Brown by
putting a loaded gun in his face and then left in a vehicle
driven by a woman, who was identified as Tanya Phillips. Austin
threatened to return that night, and Brown feared he would come
3 The facts underlying Austin’s crimes of conviction are provided in his plea agreement. The court has also considered information provided for purposes of Austin’s motion to suppress evidence obtained from the search of his apartment and the report provided by the probation officer.
3 back to shoot up his house. Brown also said that Austin had
been staying at his house and that they had been using drugs
together.
After the altercation was reported, the police stopped a
vehicle that was registered to Phillips and fit the description
that Brown provided. Phillips was driving the vehicle, and
Austin was a passenger. Austin was arrested. The gun he used
to threaten Brown was found in his possession at the time of his
arrest. Phillips was also arrested. Their baby daughter and
two dogs were in the vehicle, and officers arranged to have them
taken by a relative.
Austin told officers during the booking process that he was
a member of the Mattapan (Massachusetts) Avenue Crips gang. The
officers also noted that Austin had gang-related tattoos.
The police obtained a search warrant for Austin’s
apartment. In the apartment, they found six other guns,
ammunition, drug paraphernalia, bags of cocaine, crack cocaine,
and marijuana. The officers also found cash, other drugs, and
keys to holding cells and exterior doors of a Boston Police
Department station.
Austin pleaded guilty to two counts of possession of a
firearm by a prohibited person. He was sentenced to eighty-four
months in prison and has served less than half of his sentence
4 to date. He is currently incarcerated at USP Canaan in
Pennsylvania. He filed a request with the warden for release
because of the COVID-19 pandemic, which was denied.
The government provides information about the BOP’s efforts
to control the spread of COVID-19 in its facilities. Currently,
the BOP reports that 107 inmates and 11 staff have confirmed
active cases of COVID-19 at USP Canaan.4 https://www.bop.gov
/coronavirus/ (last visited December 7, 2020). Cases of COVID-
19 are increasing rapidly around the country, including in New
Hampshire and Massachusetts, where Austin proposes to live if he
were released. See https://www.nytimes.com/interactive/2020/
us/coronavirus-us-cases.html (last visited December 7, 2020).
Austin, who is thirty-eight years old, submitted his
medical records in support of his motion, which were reviewed by
Dr. J. Gavin Muir, Chief Medical Officer of Amoskeag Health in
Manchester, New Hampshire. The medical records show that Austin
is a smoker, is morbidly obese, and has hypertension. The
government represents that based on his review, Dr. Muir found
that Austin has several medical conditions that put him at
increased risk if he were to contract COVID-19.
4 Austin filed an addendum on December 6, 2020, to show the increasing number of COVID-19 cases at USP Canaan.
5 Austin has a lengthy and serious criminal history. He
admitted gang affiliation during the booking process. When his
mother was interviewed as part of the presentence investigation,
she provided additional information that indicated Austin was
involved in street gangs. He has three convictions for assault
and battery with a dangerous weapon. In one incident, he shot a
person who was standing in front of a gas station in Boston. In
another incident, he punched and kicked a woman in the head
during an argument over a spilled soda.
Austin has also been convicted of other assaults and crimes
and has a history of arrests for domestic violence. While he
was in custody at the Strafford County Jail he was involved in a
fight with another inmate. He has not had any disciplinary
reports while in BOP custody. He is participating in a
mandatory drug education program and has completed education
courses. He has also been assigned to a work detail.
If he were granted a reduction in his sentence and released
from prison, Austin plans to live with his mother in Mattapan,
Massachusetts. He intends to apply for a job and to continue
his efforts at recovering from drug and alcohol addiction. His
alternative plan is to live with Tanya Phillips, who was
arrested with him and is the mother of his children, in
Rochester, New Hampshire.
6 Discussion
Austin contends that he has met the exhaustion requirement
and that he has an extraordinary and compelling reason for a
reduction in his sentence because of the increased risk of death
or serious illness if he were to contract COVID-19. He argues
that he would be better able to address his health needs with
the support of his mother if he were released. The government
agrees that Austin has met the exhaustion requirement and has
shown medical conditions that constitute, in combination with
the risks associated with COVID-19, an extraordinary and
compelling reason for a reduction in his sentence. The
government opposes the reduction on the basis of the § 3553(a)
sentencing factors.
A. Exhaustion and Extraordinary and Compelling Reason
Because there is no dispute that Austin has met the
exhaustion requirement and has shown medical conditions that in
combination with the risks of COVID-19 provide an extraordinary
and compelling reason in support of his motion, those matters
need not be addressed further.
7 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
reduction of a defendant’s sentence.5 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).
5 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.
8 The court considered the § 3553(a) factors when Austin was
sentenced to 84 months in prison, which was an appropriate
sentence for his serious crimes and in light of his significant
criminal history. The government contends that Austin’s motion
should be denied because he is a danger to the community and the
sentencing factors under § 3553(a) do not support a reduction.
Austin’s crime of conviction, possession of a firearm by a
prohibited person, is particularly serious when taken in the
context of his actions. He not only possessed the gun, he
pointed the loaded gun in the face of the person he was
threatening. A search of his apartment resulted in finding more
guns and ammunition, along with evidence of drug trafficking.
Austin’s prior crimes involve a great deal of violence. He also
is an admitted gang member. The court considers Austin to be a
high risk for recidivism.
Austin has not yet served even half of his sentence. His
sentence is necessary because of the seriousness of his crimes,
as a just punishment, and to protect the public. The court
acknowledges that cases of COVID-19 are increasing in the prison
environment, which presents risks to Austin, but also notes the
increase in the number of cases across the county, including in
the states where Austin proposes to live. In this case, the
9 risk posed by the COVID-19 pandemic does not outweigh the
serious concerns raised by the sentencing factors.
Conclusion
For the foregoing reasons, the defendant’s motion for
reduction of his sentence (document no. 59) is denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge December 7, 2020
cc: Counsel of record.