United States of America v. Hector Velez

2020 DNH 214

• Court: District Court, D. New Hampshire
• Decided: December 10, 2020
• Docket: 18-cr-14-1-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 18-cr-14-1-SM Opinion No. 2020 DNH 214 Hector Velez

ORDER

Defendant’s motion for “compassionate release” from

incarceration under the First Step Act, 18 U.S.C. §

3582(a)(1)(A), given the COVID-19 pandemic, is properly before

the court as defendant has exhausted available administrative

remedies.

The burden is on defendant to show that he is entitled to

relief, that is: 1) that extraordinary and compelling reasons

warrant a reduction in his sentence, and 2) such a reduction

would be consistent with the sentencing factors set out in 18

U.S.C. § 3553(e), as well as Sentencing Commission Policies

(though that is not strictly required under the First Step Act).

Here, the government concedes that defendant’s medical

conditions (asthma and obesity) place him in a high-risk

category should he contract COVID-19, and that defendant has met

1 his burden to show “extraordinary and compelling” reasons

warranting sentence reduction in that respect. But, says the

government, the sentencing factors weigh heavily against

defendant’s early release, particularly the danger defendant

poses to the community. See 18 U.S.C. § 3142(g); USSG §

1B1.13(2).

Defendant was convicted of unlawful possession of a

firearm, and has served about 12 months of a 60-month sentence.

He has a history of recidivism, including a prior conviction for

first degree assault and rioting, and he committed the current

offense while on probation. Defendant has plainly not met his

burden to show that he no longer poses a danger to the safety of

the community. In addition, defendant’s early release would,

under these circumstances, be inconsistent with the sentencing

goals of promoting respect for the law, imposing a just

punishment, protecting the public, and providing for both

general and specific deterrence. 18 U.S.C. § 3553(a).

Conclusion

While FCI Berlin has experienced an increase in the

presence of the COVID-19 virus, consistent with an increase in

the surrounding community, the staff continues to take

appropriate mediation measures to limit its spread within the

2 facility. The danger to public safety defendant would pose if

released, and the sentencing factors described in 18 U.S.C. §

3553(a) militate against defendant’s early release. Even if

defendant were granted early release, his record does not

suggest that he would likely abide by restrictive conditions or

follow CDC guidelines designed to limit spread of the virus.

The motion for compassionate release under the First Step Act

(document no. 36) is hereby denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 10, 2020

cc: Anna Z. Krasinski, AUSA Eric Wolpin, Esq. U.S. Probation U.S. Marshal