United States of America v. Hansel German

2020 DNH 172

• Court: District Court, D. New Hampshire
• Decided: October 1, 2020
• Docket: 15-cr-3-02-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America Case No. 15-cr-3-02-PB v. Opinion No. 2020 DNH 172

Hansel German

MEMORANDUM AND ORDER

Defendant Hansel German moves for compassionate release

pursuant to 18 U.S.C. § 3582(c)(1)(A) (“Section 3582(c)(1)(A)”),

as amended by Section 603(b)(1) of the First Step Act of 2018

(“First Step Act”), Pub. L. No. 115-391, § 603(b)(1), 132 Stat.

5194, 5239. For the following reasons, I deny German’s motion.

I. STANDARD OF REVIEW

Following its amendment by the First Step Act, the

compassionate release statute, codified as Section

3582(c)(1)(A), provides that

the court, upon motion of the Director of the Bureau of Prisons [(“BOP”)], or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the [BOP] to bring a motion on the defendant’s behalf or the lapse of [thirty] days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment . . . after considering the factors set forth in . . . [18 U.S.C. §] 3553(a) [(“Section 3553(a)”)] to the extent that they are applicable . . . .

§ 3582(c)(1)(A). The court may reduce a defendant’s prison

sentence if it finds that “extraordinary and compelling reasons warrant such a reduction,” id. § 3582(c)(1)(A)(i), and that

“such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission,” id.

§ 3582(c)(1)(A).

The Sentencing Commission’s policy statement (“the policy

statement”), which was promulgated prior to the passage of the

First Step Act, provides as follows:

Upon motion of the Director of the [BOP] under [Section 3582(c)(1)(A)], the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in [Section 3553(a)], to the extent that they are applicable, the court determines that —

(1) (A) Extraordinary and compelling reasons warrant the reduction; . . .

(2) The defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and

(3) The reduction is consistent with this policy statement.

U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S.

Sentencing Comm’n 2018). The commentary to the policy statement

further explains what is meant by “extraordinary and compelling

reasons.” It states, in relevant part, that “[p]rovided the

defendant meets the requirements of subdivision (2),

extraordinary and compelling reasons exist,” USSG § 1B1.13 cmt.

2 n.1, when “[t]he defendant is . . . suffering from a serious

physical or medical condition,” id. § 1B1.13 cmt. n.1(A)(ii)(I).

District courts are divided on whether the policy statement

remains binding following the enactment of the First Step Act.

Cf. United States v. Fox, No. 2:14-cr-03-DBH, 2019 WL 3046086,

at *2 (D. Me. July 11, 2019) (collecting cases). I am not aware

of any court that has chosen to disregard the policy statement

entirely. I conclude, instead, that it “provides helpful

guidance on the factors that support compassionate release,

although it is not ultimately conclusive given the statutory

change.” Id. at *3.

II. BACKGROUND

In 2016, German pleaded guilty to one count of aiding and

abetting the transportation of an individual in interstate

commerce with the intent that the individual engage in

prostitution, in violation of 18 U.S.C. §§ 2 and 2421, and one

count of possessing heroin with the intent to distribute, in

violation of 18 U.S.C. § 841(a)(1). See J. in a Crim. Case,

Doc. No. 113 at 1. According to a stipulated version of the

facts, in 2014, German and three co-defendants prostituted a

vulnerable fifteen-year-old girl. The offense conduct included

transporting the minor from Massachusetts to New Hampshire to

engage in pre-arranged commercial sex acts. See Plea Agreement,

Doc. No. 67 at 3-4. German described himself as an “investor”

3 in this business; he booked hotels and arranged transportation

of the minor in exchange for half of the profits. See PSR, Doc.

No. 118 at 6 ¶ 23.

About a year after this offense, federal officers went to

German’s residence to arrest him. While approaching the

residence, they observed a small baggie containing heroin being

thrown from a window of his residence. A subsequent search of

his residence pursuant to a search warrant revealed an

additional bag of heroin and cocaine, a scale, a package of

empty plastic baggies, a press, and a ledger. See Doc. No. 67

at 4; Doc. No. 118 at 7 ¶ 24.

In accordance with the parties’ stipulation, I sentenced

German to a term of imprisonment of 96 months on each count, to

be served concurrently, with three years of supervised release

to follow. See Doc. No. 113 at 2-3. He has served

approximately 78 months of his sentence. See Mot. for

Compassionate Release, Doc. No. 135 at 5.

German is currently incarcerated at Federal Correctional

Institution (“FCI”) Danbury, a BOP facility located in

Connecticut. See Doc. No. 135 at 2. The BOP has developed and

implemented a multi-point plan to address the COVID-19 pandemic.

Under the plan, the BOP has implemented quarantine and isolation

protocols, restricted inmate transfers, reduced overcrowding,

limited group gatherings, employed screening procedures, and

4 suspended visitation and tours, among other measures. See

Gov’t’s Objection to Def.’s Mot. for Release, Doc. No. 138 at 3-

4. When I held a hearing on German’s motion on September 3,

2020, there was, at most, one active case of COVID-19 at FCI

Danbury. According to the BOP’s website, as of September 30,

there were two active cases of COVID-19 in the inmate population

and zero active cases among staff at this facility.1

German is thirty years old and has a Body Mass Index

(“BMI”) of thirty-six. Sealed Ex. C to Def.’s Mot. for

Compassionate Release, Doc. No. 136 at 2. He has no other

reported medical conditions. See id. Citing his obesity,

German submitted a request for compassionate release to the BOP,

which was denied on July 16, 2020. See Ex. A to Mot. for

Compassionate Release, Doc. No. 135-1. German administratively

appealed. See Ex. B to Mot. for Compassionate Release, Doc. No.

135-2. He then filed this motion for compassionate release on

August 18, requesting a reduction in his sentence to convert his

remaining prison term to home confinement. See Doc. No. 135 at

6.

III. DISCUSSION

German argues that I should order his release because his

obesity places him at a high risk of severe illness for COVID-

1 COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/index.jsp (last visited Oct. 1, 2020).

5 19, and a reduction of his sentence would not undermine

Section 3553(a)’s sentencing factors. See Doc. No. 135. The

government opposes German’s motion. See Doc. No. 138. Because

the BOP denied German’s request for a reduction in sentence and

failed to respond to his administrative appeal within thirty

days, German has exhausted his administrative rights.

Accordingly, his motion is properly before me under Section

3582(c)(1)(A).

German has not met his burden of demonstrating that

“extraordinary and compelling reasons” exist that would render

him eligible for compassionate release. See § 3582(c)(1)(A).

His BMI of thirty-six qualifies as obesity according to the

Centers for Disease and Control (“CDC”) criteria, but it is not

“severe obesity,” defined as a BMI of forty or higher.2 At

thirty years old, he is relatively young and does not claim that

he has any other serious or debilitating preexisting health

conditions. As German notes, the CDC advises that obesity is a

factor that increases the risk of severe illness from Covid-19.3

A recent study, however, has shown that severe obesity

2 Defining Adult Overweight and Obesity, CDC, https://www.cdc.gov/obesity/adult/defining.html (last visited Oct. 1, 2020). 3 People with Certain Medical Conditions, CDC,

https://www.cdc.gov/coronavirus/2019-ncov/need-extra- precautions/people-with-medical-conditions.html (last visited Oct. 1, 2020).

6 significantly increases the relative risk of death or serious

illness from COVID-19.4 Although I accept that German’s obesity

somewhat increases his relative risk of COVID-19-related

complications, there is no evidence that it puts him at so

elevated a risk of harm as to justify his release. On similar

facts, other district courts have declined to order the release

of otherwise healthy and relatively young inmates whose obesity

is their only risk factor for developing COVID-19 complications.

See, e.g., United States v. Price, No. 15-20472, 2020 WL

5440164, at *4-5 (E.D. Mich. Sept. 10, 2020) (finding no

extraordinary and compelling reasons for compassionate release

of 31-year-old defendant with BMI of 32 whose only condition was

obesity); United States v. Gordon, No. 15-20609, 2020 WL 3971013

at *3 (E.D. Mich. July 14, 2020) (same for 34-year-old defendant

with BMI of 31.8); see also United States v. Abalos, No. CR 16-

00745 JMS (01), 2020 WL 5167537, at *2 & n.4, *3 (D. Haw. Aug.

31, 2020) (same for 41-year-old defendant with BMI of 31 and

hypertension); United States v. Tratner, No. 1:17-CR-22-HAB,

2020 WL 3841268, at *2 n.2, *3-4 (N.D. Ind. July 8, 2020) (same

for 36-year-old defendant with BMI of 33.1 who was also longtime

smoker).

4 See Mary Caffrey, Kaiser Study: Severe Obesity Boosts Risk of COVID-19 Death, Especially for the Young, Am. J. of Managed Care (Aug. 12, 2020), https://www.ajmc.com/view/kaiser-severe- obesity-boosts-risk-of-covid-19-death-especially-for-the-young.

7 Further, the current risk of contracting the virus at the

institution where German is incarcerated is low. The BOP has a

mitigation plan in place that appears largely successful in

controlling the spread of the virus at FCI Danbury, given that

there are currently only two confirmed cases of active COVID-19

at the facility.

In any event, even if German had demonstrated extraordinary

and compelling reasons for compassionate release, I would still

have to consider the sentencing factors under Section 3553(a).

See § 3582(c)(1)(A). The factors include the nature and

circumstances of the offense; the history and characteristics of

the defendant; the need for the sentence to reflect the

seriousness of the offense, promote respect for the law, provide

just punishment, afford adequate deterrence, and protect the

public from future crimes by the defendant; and the need to

avoid unwarranted sentencing disparities. See § 3553(a). These

factors do not support an early release in this case.

German undoubtedly committed serious crimes. He was

involved in transporting a minor child to New Hampshire to

engage in prostitution. He described himself as an “investor”

in the business of selling a minor for sex. After his arrest,

the officers seized from his residence drugs and paraphernalia

consistent with drug distribution. The sentence I imposed

reflected the serious nature of German’s offenses and the

8 resultant human harm, which was significant. Reducing that

sentence would not be consistent with the goals of sentencing,

including promoting respect for the law, providing just

punishment, deterring further criminal conduct, and protecting

the public. Accordingly, I conclude that the interests of

justice would not be served if his sentence were reduced.

I recognize that German has made efforts to rehabilitate

himself during his incarceration and at least for the past year

has avoided citations for misconduct. Although his conduct in

prison has been commendable, it does not alter the fact that his

sentence remains no greater than necessary to achieve the

purposes of the sentencing statute. Consideration of Section

3553(a)’s factors, therefore, weighs against granting any

reduction in German’s sentence.

IV. CONCLUSION

For the foregoing reasons, German’s motion for

compassionate release (Doc. No. 135) is denied.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

October 1, 2020

cc: Donna Brown, Esq. Georgiana MacDonald, Esq.