UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 14-cr-101-JD Opinion No. 2020 DNH 203 Eric Lord
O R D E R
Eric Lord moves pursuant to 18 U.S.C. § 3582(c)(1)(A) to
have his sentence reduced to time served based on the combined
effect of his medical conditions and the risks presented by the
COVID-19 pandemic.1 The government objects to relief under
§ 3582(c)(1)(A). United States 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
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
1 After Lord filed a pro se motion, counsel was appointed to represent him, and counsel filed a supplemental motion. 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
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
2 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
Eric Lord pleaded guilty to bank robbery and was sentenced
to 120 months in prison with three years of supervised release.
Judgment was entered on February 17, 2015. His anticipated
release date is August 22, 2023. He is currently serving his
sentence at Federal Correctional Institution – Allenwood (“FCI
Allenwood”) in White Deer, Pennsylvania.
The robbery for which Lord was convicted occurred on
February 21, 2014, the day after Lord was released on parole
from the New Hampshire State Prison. Lord entered the TD Bank
in New Ipswich, New Hampshire, and handed a teller a note
demanding $4,000.00 and saying that he had a gun. Lord was
arrested on February 23.
Lord has an extensive criminal record with many charges of
theft and burglary. He also has many parole violations. He has
a longstanding drug addiction problem. His criminal history
3 score was calculated to be 11, and he is a career offender. The
BOP has assessed Lord to be at the medium risk of recidivism
level.
Lord is forty-nine years old. He has type II diabetes,
which is treated with insulin, and he has hypertension, which is
treated with medication. Despite treatment, Lord’s diabetes is
not well controlled.
Lord states that he tested positive for COVID-19 on
September 29, 2020. He was asymptomatic and was surprised by
the test result. His cellmate was removed, but Lord was not
moved to the Secure Housing Unit as was done with other inmates
who had positive tests. A new cellmate arrived less than ten
days after the test. He has not been retested.
Lord has not received any disciplinary reports while in
prison. He has completed a drug treatment program. He has also
participated in classes in prison.
Lord represents that because of the COVID-19 pandemic, he
is experiencing changed conditions of confinement that were not
anticipated by the court when he was sentenced. He states that
he has a heighted fear of infection, has been unable to exercise
or eat a healthy diet, has been unable to have contact with his
family, has limited interactions with other inmates, and cannot
participate in work programs or rehabilitation.
4 The probation officer also reviewed Lord’s proposed plan if
he were released. He proposes to live with his father, David
Lord, in Greenville, New Hampshire. The probation officer
reports that in the presentence investigation interview Lord
said that his father abused him during his childhood and that he
was hospitalized on multiple occasions because of physical
injuries due to abuse. The probation officer talked with David
Lord and confirmed that he agreed to have his son live at his
house. Counsel on Lord’s behalf states that Lord has had
communication with a possible employer, who is a former inmate,
if he were released.
Discussion
In support of his motion for a reduction in his sentence,
Lord contends that his health conditions in combination with the
COVID-19 pandemic provide an extraordinary and compelling reason
to reduce his sentence. He also argues that the sentencing
factors under § 3553(a) support a reduction of his sentence.
The government does not dispute that Lord has raised an
extraordinary and compelling reason for sentence reduction but
contends that the sentencing factors preclude that result.
5 A. Administrative Exhaustion; Extraordinary and Compelling Reason
The government does not dispute that Lord’s medical
conditions could cause an increased risk of serious illness or
death if he were to contract COVID-19, which provides an
extraordinary and compelling reason in support of his motion.2
The government also does not dispute that Lord has exhausted
administrative remedies. Therefore, those matters need not be
addressed further.
B. Sentencing Factors under § 3553(a)
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 this motion.3 The
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 14-cr-101-JD Opinion No. 2020 DNH 203 Eric Lord
O R D E R
Eric Lord moves pursuant to 18 U.S.C. § 3582(c)(1)(A) to
have his sentence reduced to time served based on the combined
effect of his medical conditions and the risks presented by the
COVID-19 pandemic.1 The government objects to relief under
§ 3582(c)(1)(A). United States 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
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
1 After Lord filed a pro se motion, counsel was appointed to represent him, and counsel filed a supplemental motion. 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
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
2 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
Eric Lord pleaded guilty to bank robbery and was sentenced
to 120 months in prison with three years of supervised release.
Judgment was entered on February 17, 2015. His anticipated
release date is August 22, 2023. He is currently serving his
sentence at Federal Correctional Institution – Allenwood (“FCI
Allenwood”) in White Deer, Pennsylvania.
The robbery for which Lord was convicted occurred on
February 21, 2014, the day after Lord was released on parole
from the New Hampshire State Prison. Lord entered the TD Bank
in New Ipswich, New Hampshire, and handed a teller a note
demanding $4,000.00 and saying that he had a gun. Lord was
arrested on February 23.
Lord has an extensive criminal record with many charges of
theft and burglary. He also has many parole violations. He has
a longstanding drug addiction problem. His criminal history
3 score was calculated to be 11, and he is a career offender. The
BOP has assessed Lord to be at the medium risk of recidivism
level.
Lord is forty-nine years old. He has type II diabetes,
which is treated with insulin, and he has hypertension, which is
treated with medication. Despite treatment, Lord’s diabetes is
not well controlled.
Lord states that he tested positive for COVID-19 on
September 29, 2020. He was asymptomatic and was surprised by
the test result. His cellmate was removed, but Lord was not
moved to the Secure Housing Unit as was done with other inmates
who had positive tests. A new cellmate arrived less than ten
days after the test. He has not been retested.
Lord has not received any disciplinary reports while in
prison. He has completed a drug treatment program. He has also
participated in classes in prison.
Lord represents that because of the COVID-19 pandemic, he
is experiencing changed conditions of confinement that were not
anticipated by the court when he was sentenced. He states that
he has a heighted fear of infection, has been unable to exercise
or eat a healthy diet, has been unable to have contact with his
family, has limited interactions with other inmates, and cannot
participate in work programs or rehabilitation.
4 The probation officer also reviewed Lord’s proposed plan if
he were released. He proposes to live with his father, David
Lord, in Greenville, New Hampshire. The probation officer
reports that in the presentence investigation interview Lord
said that his father abused him during his childhood and that he
was hospitalized on multiple occasions because of physical
injuries due to abuse. The probation officer talked with David
Lord and confirmed that he agreed to have his son live at his
house. Counsel on Lord’s behalf states that Lord has had
communication with a possible employer, who is a former inmate,
if he were released.
Discussion
In support of his motion for a reduction in his sentence,
Lord contends that his health conditions in combination with the
COVID-19 pandemic provide an extraordinary and compelling reason
to reduce his sentence. He also argues that the sentencing
factors under § 3553(a) support a reduction of his sentence.
The government does not dispute that Lord has raised an
extraordinary and compelling reason for sentence reduction but
contends that the sentencing factors preclude that result.
5 A. Administrative Exhaustion; Extraordinary and Compelling Reason
The government does not dispute that Lord’s medical
conditions could cause an increased risk of serious illness or
death if he were to contract COVID-19, which provides an
extraordinary and compelling reason in support of his motion.2
The government also does not dispute that Lord has exhausted
administrative remedies. Therefore, those matters need not be
addressed further.
B. Sentencing Factors under § 3553(a)
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 this motion.3 The
first factor directs the sentencing court to consider “the
2The government acknowledges Lord’s positive COVID-19 test in September and states that the test result and his diabetes put him at high risk for serious illness. Doc. no. 26, at 1, n.3.
3The 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.
6 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 Lord was
sentenced to 120 months in prison, which was an appropriate
sentence for his serious crimes and in light of his extensive
criminal history. While Lord has shown risks associated with
the COVID-19 pandemic, which is an intervening change in the
circumstances related to sentencing, he has not shown that the
sentencing factors support a reduction in his sentence. Lord’s
crime of conviction, committed one day after he was released
from prison, combined with his criminal record, including his
repeated parole violations, weigh heavily against a reduction in
his sentence. The risk of recidivism is considered by the court
to be a significant aggravating factor.
7 Lord also argues that changes in the conditions of his
confinement in response to the pandemic support a reduction in
his sentence. 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), the inmate was elderly and had only eight months left
to serve on his sentence.
The conditions of confinement that Lord describes are not
unique to him and instead have been imposed generally for the
safety of inmates and staff because of the pandemic. In
contrast to the cited cases, Lord has a lengthy sentence and has
served only slightly more than half of his time. Therefore,
Lord’s conditions of confinement do not support a reduction in
his 120-month sentence.
8 Conclusion
For the foregoing reasons, the defendant’s motion for
reduction of his sentence (document no. 23) and the supplemental
motion (document no. 25) are denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge November 23, 2020
cc: Counsel of record.