UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 19-cr-091-JD Opinion No. 2020 DNH 107 Dustin Grant
O R D E R
Dustin Grant moves pursuant to 18 U.S.C. § 3582(c)(1)(A) to
have his sentence reduced to time served based on his medical
conditions and the risks presented by the COVID-19 pandemic.
The government has filed an objection, which is supported by an
opinion by Dr. Gavin Muir about Grant’s medical conditions in
relation to COVID-19. The United States Probation and Pretrial
Services has filed a report.
Standard of Review
The Director of the Bureau of Prisons {“BOP”} may bring a
motion on behalf of a defendant to reduce the term of the
defendant’s imprisonment. § 3582(c)(1)(A). If the Director
does not file such a motion on behalf of a defendant, the
defendant may file a motion on his or her own behalf in certain
circumstances. The 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.
When 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 court
also considers whether the requested “reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” § 3582(c)(1)(A). The applicable policy statement
provides guidance on when extraordinary and compelling
circumstances may be found.1 U.S.S.G. 1B1.13.
Background
Dustin Grant is thirty-five years old. He was convicted on
a charge of distribution of a controlled substance (Suboxone).
Although his sentencing guideline range was twenty-seven to
1 Application Note 1 to U.S.S.G. § 1B1.13 provides guidance as to when an extraordinary and compelling reason to reduce a defendant’s sentence may exist. “[A] serious physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover,” constitutes an extraordinary and compelling reason. Id.
2 thirty-three months, the court granted a downward variance and
sentenced him to twenty-four months in jail. He is serving his
sentence at Metropolitan Detention Center (“MDC”) in Brooklyn,
New York. His projected release date is December 21, 2020.
Counsel for Grant filed a motion for compassionate release
on his behalf with the BOP on March 30, 2020. His request was
denied on April 29, 2020, because the warden found that Grant
did not meet the criteria established in Program Statement
5050.50 for release or reduction in sentence under §
3582(c)(1)(A).2 It does not appear that he filed an appeal.
Grant has two medical conditions that he raises in support
of his motion, endocarditis and hepatitis C. He was
hospitalized because of endocarditis from June to October of
2018. He had open heart surgery on August 12, 2018, to repair
his mitral valve. He was hospitalized again in April of 2019,
following his arrest, because of chest pain. His records from
that time show that his valve was intact, that his vital signs
were stable, and that he did not have signs of heart failure.
Dr. Gavin Muir is the chief medical officer of Amoskeag
Health, in Manchester, New Hampshire. He is board certified in
family medicine and is affiliated with Elliot Hospital in
2 Program Statement 5050.50 is a BOP regulation for implementing § 3582. See United States v. Davis, 2020 WL 3447763, at *4 (D. Md. June 23, 2020).
3 Manchester. In order to prepare the opinion that he provided to
the government in support of the government’s objection, Dr.
Muir reviewed the recommendations from the Center for Disease
Control website on patients at higher risk due to COVID-19 and
underlying medical conditions. He also reviewed Grant’s
underlying medical conditions of endocarditis and hepatitis C as
presented in his motion for compassionate release and in the
November of 2019 presentence report.
Dr. Muir concluded that Grant’s past endocarditis is not a
current serious heart condition. He explained that endocarditis
is an infection that is treated with antibiotics and is not an
ongoing disease process. He states that there is nothing
presented that shows problems after Grant’s heart surgery.
With respect to hepatitis C, Dr. Muir states that there is
no showing that Grant has liver disease. In the absence of
liver disease, hepatitis C does not pose a risk of health
complications. Therefore, Dr. Muir provided his opinion that
Grant does not have a condition that puts him at higher risk to
develop a severe illness if infected with COVID-19.
Senior United States Probation Officer Sean Buckley filed a
report on Grant’s request for compassionate release. In the
report, Officer Buckley reviewed Grant’s crime of conviction and
the grounds presented in support of Grant’s motion for
4 compassionate release. Officer Buckley reports that there has
been no change in Grant’s medical conditions since his
incarceration at the BOP. Officer Buckley informs the court
that, with respect to Grant’s risk of recidivism and danger to
the community, Grant has a significant criminal record and a
significant history of substance abuse. He committed the crime
of conviction while he was on parole and probation. Grant is
also alleged to have participated in misconduct at the Strafford
County Department of Corrections before his conviction.
The government provides information about the BOP’s
response to the COVID-19 pandemic. The government reports that
as of June 16, 2020, MDC Brooklyn, where Grant is incarcerated,
had only three COVID-19 cases among the inmates and six cases
among the staff.
Discussion
In support of his motion under § 3582(c)(1)(A), Grant
contends that his medical conditions of endocarditis and
hepatitis C in combination with the risk of infection with
COVID-19 provide an extraordinary and compelling reason to
reduce his sentence to time served and to release him to home
confinement. The government objects to the motion, arguing that
Grant has not shown an extraordinary or compelling reason to
5 reduce his sentence.
A. Administrative Exhaustion
Counsel filed a motion on Grant’s behalf with the warden
for relief under § 3582(c)(1)(A), which was denied. Although it
does not appear that Grant appealed the denial, the government
does not object on the ground that he failed to exhaust
administrative remedies. Therefore, the court moves on to the
merits of his motion under § 3582(c)(1)(A).
B. Extraordinary and Compelling Reason
“A generalized risk of infection with COVID-19, by itself,
is not enough to show extraordinary and compelling reasons for a
reduction in sentence.” United States v.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 19-cr-091-JD Opinion No. 2020 DNH 107 Dustin Grant
O R D E R
Dustin Grant moves pursuant to 18 U.S.C. § 3582(c)(1)(A) to
have his sentence reduced to time served based on his medical
conditions and the risks presented by the COVID-19 pandemic.
The government has filed an objection, which is supported by an
opinion by Dr. Gavin Muir about Grant’s medical conditions in
relation to COVID-19. The United States Probation and Pretrial
Services has filed a report.
Standard of Review
The Director of the Bureau of Prisons {“BOP”} may bring a
motion on behalf of a defendant to reduce the term of the
defendant’s imprisonment. § 3582(c)(1)(A). If the Director
does not file such a motion on behalf of a defendant, the
defendant may file a motion on his or her own behalf in certain
circumstances. The 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.
When 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 court
also considers whether the requested “reduction is consistent
with applicable policy statements issued by the Sentencing
Commission.” § 3582(c)(1)(A). The applicable policy statement
provides guidance on when extraordinary and compelling
circumstances may be found.1 U.S.S.G. 1B1.13.
Background
Dustin Grant is thirty-five years old. He was convicted on
a charge of distribution of a controlled substance (Suboxone).
Although his sentencing guideline range was twenty-seven to
1 Application Note 1 to U.S.S.G. § 1B1.13 provides guidance as to when an extraordinary and compelling reason to reduce a defendant’s sentence may exist. “[A] serious physical or medical condition . . . that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover,” constitutes an extraordinary and compelling reason. Id.
2 thirty-three months, the court granted a downward variance and
sentenced him to twenty-four months in jail. He is serving his
sentence at Metropolitan Detention Center (“MDC”) in Brooklyn,
New York. His projected release date is December 21, 2020.
Counsel for Grant filed a motion for compassionate release
on his behalf with the BOP on March 30, 2020. His request was
denied on April 29, 2020, because the warden found that Grant
did not meet the criteria established in Program Statement
5050.50 for release or reduction in sentence under §
3582(c)(1)(A).2 It does not appear that he filed an appeal.
Grant has two medical conditions that he raises in support
of his motion, endocarditis and hepatitis C. He was
hospitalized because of endocarditis from June to October of
2018. He had open heart surgery on August 12, 2018, to repair
his mitral valve. He was hospitalized again in April of 2019,
following his arrest, because of chest pain. His records from
that time show that his valve was intact, that his vital signs
were stable, and that he did not have signs of heart failure.
Dr. Gavin Muir is the chief medical officer of Amoskeag
Health, in Manchester, New Hampshire. He is board certified in
family medicine and is affiliated with Elliot Hospital in
2 Program Statement 5050.50 is a BOP regulation for implementing § 3582. See United States v. Davis, 2020 WL 3447763, at *4 (D. Md. June 23, 2020).
3 Manchester. In order to prepare the opinion that he provided to
the government in support of the government’s objection, Dr.
Muir reviewed the recommendations from the Center for Disease
Control website on patients at higher risk due to COVID-19 and
underlying medical conditions. He also reviewed Grant’s
underlying medical conditions of endocarditis and hepatitis C as
presented in his motion for compassionate release and in the
November of 2019 presentence report.
Dr. Muir concluded that Grant’s past endocarditis is not a
current serious heart condition. He explained that endocarditis
is an infection that is treated with antibiotics and is not an
ongoing disease process. He states that there is nothing
presented that shows problems after Grant’s heart surgery.
With respect to hepatitis C, Dr. Muir states that there is
no showing that Grant has liver disease. In the absence of
liver disease, hepatitis C does not pose a risk of health
complications. Therefore, Dr. Muir provided his opinion that
Grant does not have a condition that puts him at higher risk to
develop a severe illness if infected with COVID-19.
Senior United States Probation Officer Sean Buckley filed a
report on Grant’s request for compassionate release. In the
report, Officer Buckley reviewed Grant’s crime of conviction and
the grounds presented in support of Grant’s motion for
4 compassionate release. Officer Buckley reports that there has
been no change in Grant’s medical conditions since his
incarceration at the BOP. Officer Buckley informs the court
that, with respect to Grant’s risk of recidivism and danger to
the community, Grant has a significant criminal record and a
significant history of substance abuse. He committed the crime
of conviction while he was on parole and probation. Grant is
also alleged to have participated in misconduct at the Strafford
County Department of Corrections before his conviction.
The government provides information about the BOP’s
response to the COVID-19 pandemic. The government reports that
as of June 16, 2020, MDC Brooklyn, where Grant is incarcerated,
had only three COVID-19 cases among the inmates and six cases
among the staff.
Discussion
In support of his motion under § 3582(c)(1)(A), Grant
contends that his medical conditions of endocarditis and
hepatitis C in combination with the risk of infection with
COVID-19 provide an extraordinary and compelling reason to
reduce his sentence to time served and to release him to home
confinement. The government objects to the motion, arguing that
Grant has not shown an extraordinary or compelling reason to
5 reduce his sentence.
A. Administrative Exhaustion
Counsel filed a motion on Grant’s behalf with the warden
for relief under § 3582(c)(1)(A), which was denied. Although it
does not appear that Grant appealed the denial, the government
does not object on the ground that he failed to exhaust
administrative remedies. Therefore, the court moves on to the
merits of his motion under § 3582(c)(1)(A).
B. Extraordinary and Compelling Reason
“A generalized risk of infection with COVID-19, by itself,
is not enough to show extraordinary and compelling reasons for a
reduction in sentence.” United States v. Bischoff, --- F. Supp.
---, 2020 WL 2561423, at *2 (D.N.H. May 19, 2020); see also
United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020); United
States v. Shaw, 2020 WL 3451716, at *3 (E.D. Tex. June 24,
2020); United States v. Quintana, 2020 WL 3446115, at *3 (D.
Conn. June 24, 2020); United States v. Boykin-Johnson, 2020 WL
3428975, at *2 (E.D. Mich. June 23, 2020). A combination of
health factors that put the inmate at higher risk if infected
with COVID-19 along with a documented risk of infection in the
6 facility where the inmate is incarcerated, however, can meet the
§ 3582(c) standard. See, e.g., United States v. Plummer, 2020
WL 3440548, at *2 (S.D.N.Y. June 23, 2020) (citing cases);
United States v. Oliver, 2020 WL 2768852, at *6 (E.D. Mich. May
28, 2020); United States v. Jackson, 2020 WL 2735724, at *3
(W.D. Va. May 26, 2020); Bischoff, 2020 WL 2561423, at *2;
United States v. Ramirez, 2020 WL 2404858, at *9 (D. Mass. May
12, 2020). An inmate seeking relief under § 3582(c) bears the
burden of showing that he meets the statutory requirements.
United States v. Ebbers, 432 F. Supp. 3d 421, 426 (S.D.N.Y.
2020); United States v. Mayfield, 2020 WL 2744607, at *1 (D.N.J.
May 27, 2020); United States v. Britton, 2020 WL 2404969, at *1
(D.N.H. May 12, 2020).
Grant contends that endocarditis and hepatitis C are
serious medical conditions that put him at increased risk if he
were to contract COVID 19. He cites two cases filed by other
inmates at MDC Brooklyn that addressed the inmates’ motions
under § 3592(c)(1)(A) and provide information about the
incidence of COVID-19 at MDC Brooklyn. Those cases were decided
in April. Grant but provides no updated information about
numbers of cases of COVID-19 at MDC Brooklyn or about the
adequacy of the prison’s procedures to minimize the risk to
inmates. He provides no medical opinion to show that his
7 hepatitis C condition or his history of endocarditis are serious
medical conditions for him.
In contrast, the government provides information about the
BOP’s ongoing efforts to curb the spread of COVID-19 in prisons.
The government also represents that the number of cases at MDC
Brooklyn as of June 16 was low. More importantly, the
government provides the opinion of Dr. Muir who states that
neither hepatitis C nor endocarditis in Grant’s case is a
serious medical condition that puts him at increased risk if he
were to contract COVID-19.
Therefore, Grant has not carried his burden to show an
extraordinary and compelling reason to reduce his sentence under
§ 3582(c)(1)(A). Even if he were able to meet that burden,
however, the sentencing factors under § 3553(a) would weigh the
balance against a reduction in sentence.
C. Sentencing Factors
In addition to an extraordinary and compelling reason to
reduce his sentence, a defendant must show that the sentencing
factors under § 3553(a) support his motion to the extent the
factors are applicable. § 3582(c)(1)(A). He argues that if his
sentence were reduced as he asks, the reduced sentence would
still promote respect for the law, provide punishment, deter
8 further criminal conduct, and protect the public. The court
disagrees.
Grant’s sentence for this crime of conviction was only
twenty-four months. His criminal history, however, is
significant and includes several offenses for driving under the
influence of controlled substances or alcohol, several offenses
for possession of heroin and fentanyl, and violations of parole.
The crime of conviction was committed while Grant was on parole
and probation. Based on that history, Grant’s likelihood of
recidivism is significant, and incarceration is appropriate to
protect the public.
Conclusion
For the foregoing reasons, the defendant’s motion for
reduction in sentence under § 3582(c)(1)(A) (document no. 25) is
denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge
June 29, 2020
cc: Counsel of record.