UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-208-JD Opinion No. 2020 DNH 104 Jonathan Platte
O R D E R
Jonathan Platte moves pursuant to 18 U.S.C. § 3582(c)(1)(A)
to have his sentence reduced to time served based on his chronic
medical conditions and the risks presented by the COVID-19
pandemic. The government has filed a response, and United
States Probation and Pretrial Services has filed a report. The
court held telephone conferences with counsel and the probation
officer on the matter.
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 Bureau of
Prisons 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. U.S.S.G. 1B1.13.
Background
On March 23, 2007, Jonathan Platte was convicted on charges
of conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 848, possession with intent to distribute heroin in violation
of 21 U.S.C. § 841(a)(1), possession with intent to distribute
cocaine in violation of § 841(a)(1), possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A), and possession of a firearm by a
2 convicted felon in violation of 18 U.S.C. § 922(g)(1). He was
sentenced to a total of 300 months in prison.
On December 18, 2019, as a result of Congress having passed
the First Step Act, Platte was resentenced to 216 months in
prison. His current good time release date is January 10, 2021.
He is scheduled to be released to a halfway house on July 14,
2020, having served approximately 85% of his sentence.
Platte is currently incarcerated at FMC Rochester. On
April 7, 2020, Platte submitted a request for compassionate
release because of his own health issues and his concerns for
his elderly parents. As of June 8, 2020, he had received no
response to his request.1
Counsel obtained Platte’s medical records through mid-2019
during his representation of Platte for purposes of sentence
reduction under the First Step Act. Platte is morbidly obese
and has obstructive sleep apnea, hypertension, and asthma.
Platte also has a history of pulmonary embolism and has had a
chronic problem with cyclic vomiting. Counsel also requested
recent medical records from the BOP, which he recently received
and has supplemented the motion with those records. The new
records confirm Platte’s chronic health issues and conditions
1 Counsel explains that because the BOP has instituted a lockdown in response to the current national protests, his contact with Platte has been severely limited.
3 and indicate that he had surgery for an anal fistula on May 7,
2020, and that as of May 22, 2020, was continuing to take pain
medication after surgery.
United States Probation Officer Sean Buckley prepared a
report in which he confirms Platte’s medical conditions. He
also states that Platte has served 84.2% of his prison term.
With respect to Platte’s plan upon release, Officer Buckley
states that he intends to be released to his parents’ home in
North Port, Florida, which has been approved by the United
States Probation Office for the Middle District of Florida.
Platte’s mother sent a letter to support the release plan in
which she said that she wanted Platte to live with them to help
her take care of her husband who has multiple health issues. In
addition, Officer Buckley reports that Platte is considered to
have a low to moderate risk of recidivism.
Discussion
Platte asks to have his sentence reduced to time served and
to serve his term of supervised release at his parents’ house in
Florida. In support, he cites the likelihood of contracting
COVID-19 in prison and in the halfway house and his health
conditions that put him at particular risk if he were to
contract COVID-19. The government objects to the motion.
4 A. Exhaustion of Administrative Remedies
Because more than thirty days have passed from the time
Platte requested the BOP grant him compassionate release without
a response, Platte has satisfied the exhaustion requirement.
B. Extraordinary and Compelling Reason
As the court has previously stated, “[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. Hilow, 2020 WL 2851086, at *3
(D.N.H. June 2, 2020); United States v. Bischoff, --- F. Supp. -
--, 2020 WL 2561423, at *2 (D.N.H. May 19, 2020). A combination
of documented health factors that put the inmate at higher risk
if infected with COVID-19, however, can meet the § 3582(c)
standard. See, e.g., United States v. Kess, 2020 WL 3268093, at
*6 (D. Md. June 17, 2020). An inmate seeking relief under
§ 3582(c) bears the burden of showing that he meets the
statutory requirements. 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).
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
5 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. App. Note 1(A)(ii)(I). In addition, a
reduction in sentence may be granted when “there exists in the
defendant’s case an extraordinary and compelling reason other
than, or in combination with, the reasons described in
subdivisions (A) through (C).” App. Note 1(D).
Platte has shown that he has serious medical conditions
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 05-cr-208-JD Opinion No. 2020 DNH 104 Jonathan Platte
O R D E R
Jonathan Platte moves pursuant to 18 U.S.C. § 3582(c)(1)(A)
to have his sentence reduced to time served based on his chronic
medical conditions and the risks presented by the COVID-19
pandemic. The government has filed a response, and United
States Probation and Pretrial Services has filed a report. The
court held telephone conferences with counsel and the probation
officer on the matter.
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 Bureau of
Prisons 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. U.S.S.G. 1B1.13.
Background
On March 23, 2007, Jonathan Platte was convicted on charges
of conspiracy to distribute cocaine in violation of 21 U.S.C.
§ 848, possession with intent to distribute heroin in violation
of 21 U.S.C. § 841(a)(1), possession with intent to distribute
cocaine in violation of § 841(a)(1), possession of a firearm in
furtherance of a drug trafficking crime in violation of 18
U.S.C. § 924(c)(1)(A), and possession of a firearm by a
2 convicted felon in violation of 18 U.S.C. § 922(g)(1). He was
sentenced to a total of 300 months in prison.
On December 18, 2019, as a result of Congress having passed
the First Step Act, Platte was resentenced to 216 months in
prison. His current good time release date is January 10, 2021.
He is scheduled to be released to a halfway house on July 14,
2020, having served approximately 85% of his sentence.
Platte is currently incarcerated at FMC Rochester. On
April 7, 2020, Platte submitted a request for compassionate
release because of his own health issues and his concerns for
his elderly parents. As of June 8, 2020, he had received no
response to his request.1
Counsel obtained Platte’s medical records through mid-2019
during his representation of Platte for purposes of sentence
reduction under the First Step Act. Platte is morbidly obese
and has obstructive sleep apnea, hypertension, and asthma.
Platte also has a history of pulmonary embolism and has had a
chronic problem with cyclic vomiting. Counsel also requested
recent medical records from the BOP, which he recently received
and has supplemented the motion with those records. The new
records confirm Platte’s chronic health issues and conditions
1 Counsel explains that because the BOP has instituted a lockdown in response to the current national protests, his contact with Platte has been severely limited.
3 and indicate that he had surgery for an anal fistula on May 7,
2020, and that as of May 22, 2020, was continuing to take pain
medication after surgery.
United States Probation Officer Sean Buckley prepared a
report in which he confirms Platte’s medical conditions. He
also states that Platte has served 84.2% of his prison term.
With respect to Platte’s plan upon release, Officer Buckley
states that he intends to be released to his parents’ home in
North Port, Florida, which has been approved by the United
States Probation Office for the Middle District of Florida.
Platte’s mother sent a letter to support the release plan in
which she said that she wanted Platte to live with them to help
her take care of her husband who has multiple health issues. In
addition, Officer Buckley reports that Platte is considered to
have a low to moderate risk of recidivism.
Discussion
Platte asks to have his sentence reduced to time served and
to serve his term of supervised release at his parents’ house in
Florida. In support, he cites the likelihood of contracting
COVID-19 in prison and in the halfway house and his health
conditions that put him at particular risk if he were to
contract COVID-19. The government objects to the motion.
4 A. Exhaustion of Administrative Remedies
Because more than thirty days have passed from the time
Platte requested the BOP grant him compassionate release without
a response, Platte has satisfied the exhaustion requirement.
B. Extraordinary and Compelling Reason
As the court has previously stated, “[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. Hilow, 2020 WL 2851086, at *3
(D.N.H. June 2, 2020); United States v. Bischoff, --- F. Supp. -
--, 2020 WL 2561423, at *2 (D.N.H. May 19, 2020). A combination
of documented health factors that put the inmate at higher risk
if infected with COVID-19, however, can meet the § 3582(c)
standard. See, e.g., United States v. Kess, 2020 WL 3268093, at
*6 (D. Md. June 17, 2020). An inmate seeking relief under
§ 3582(c) bears the burden of showing that he meets the
statutory requirements. 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).
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
5 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. App. Note 1(A)(ii)(I). In addition, a
reduction in sentence may be granted when “there exists in the
defendant’s case an extraordinary and compelling reason other
than, or in combination with, the reasons described in
subdivisions (A) through (C).” App. Note 1(D).
Platte has shown that he has serious medical conditions
that are recognized risk factors for COVID-19, including morbid
obesity, hypertension, obstructive sleep apnea, asthma, and a
history of pulmonary embolism. See, e.g., Delacruz v. United
States, 2020 WL 3270503, at *3 (D.N.H. June 17, 2020); United
States v. Patel, 2020 WL 3187980, at *1 (D. Conn. June 15,
2020); United States v. Acevedo, 2020 WL 3182770, at *2
(S.D.N.Y. June 15, 2020); United States v. Madrigal, 2020 WL
3188268, at *2 (N.D. Cal. June 15, 2020). He has multiple
comorbities. See, e.g., United States v. DeBartolo, 2020 WL
3105032, at *2 (D.R.I. June 11, 2020) (discussing comorbidity of
hypertension and COVID-19). He has also shown that his parents
are willing to have him live with them and need his assistance
for their care. Taken in light of his risk of contracting
6 COVID-19 in the confined environment at prison or in a halfway
house, his serious health conditions, and multiple
comorbidities, Platte has shown an extraordinary and compelling
reason to reduce his sentence to time served.
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). Platte’s drug crimes
were serious, and he received a very long sentence. Platte has
now nearly completed his sentence and is scheduled to be
released to a halfway house in July. His approaching release to
a halfway house weighs heavily in favor of Platte’s request to
reduce his sentence. However, rather than outright release, the
court is requiring Platte to be placed on special supervised
release and to remain in home confinement for the same amount of
time remaining on his sentence (until January 10, 2021) subject
to conditions.
Officer Buckley reports that Platte is considered to have a
low to moderate risk of recidivism. The conditions of special
supervised release provided in Appendix A address the risks of
recidivism and the need for a transition from prison to
7 supervised release with a period of home confinement. In this
case, the sentencing factors support reducing Platte’s sentence
to time served, with special supervised release followed by
supervised release under the conditions provided in Appendix A.
D. Result
Taking into consideration Platte’s combination of health
conditions and multiple comorbidities that cause an increased
risk to him if he contracts COVID-19, along with the risk of
contracting COVID-19 in prison or in a halfway house, Platte has
shown an extraordinary and compelling reason to reduce his
sentence. The sentencing factors under § 3553(a) support that
relief. Therefore, Platte has demonstrated sufficient grounds
to grant his request for a reduction of his sentence under
§ 3582(c)(1).
Conclusion
For the foregoing reasons, the defendant’s motion for
compassionate release (document no. 135) is granted as follows:
1) The defendant’s sentence will be reduced to time
served.
8 2) The defendant will be placed on special supervised
release until his original release date of January 10, 2021, and
will remain on home confinement during that time.
3) Following the term of special supervised release, the
defendant will be placed on supervised release for a term of
five years.
4) During these terms of special supervised release and
supervised release, the defendant shall be subject to the
Supervision Conditions as set forth in Appendix A.
5) The BOP shall release the defendant immediately
following processing, subject to the provisions of paragraph 6.
6) The court recommends that the BOP screen the defendant
for COVID-19 within twelve hours prior to his release, and if he
is displaying symptoms consistent with COVID-19, test the
defendant and share the results with the United States Probation
Office in the District of New Hampshire.
7) The court will issue an amended sentence and criminal
judgment.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge June 22, 2020
cc: Counsel of record. Sean Buckley, U.S. Probation Officer
9 APPENDIX A SUPERVISION CONDITIONS
While on supervision, the defendant shall comply with the following mandatory conditions: The defendant shall not commit another federal, state, or local crime. The defendant shall not unlawfully possess a controlled substance.
The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within fifteen days of placement on supervision and at least two periodic drug tests thereafter, as determined by the court.
The defendant shall cooperate in the collection of DNA as directed by the probation officer.
In addition, the defendant shall comply with the standard conditions that have been adopted by this court as well as the following special conditions:
1. The defendant shall participate in an outpatient substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise his participation in the program (provider, location, modality, duration, intensity, etc.). The defendant shall pay for the cost of treatment to the extent that he is able, as determined by the probation officer.
2. The defendant shall not use or possess any controlled substances without a valid prescription. If the defendant does have a valid prescription, he shall disclose the prescription information to the probation officer and follow the instructions on the prescription.
3. The defendant shall submit to substance abuse testing to determine if he has used a prohibited substance. The defendant shall pay for the cost of testing to the extent that he is able, as determined by the probation officer.
1 4. The defendant shall not knowingly purchase, possess, distribute, administer, otherwise use any psychoactive substances (e.g. synthetic marijuana, bath salts, etc.) that impair a person’s physical or mental functioning, whether or not intended for human consumption, except with the prior approval of the probation officer.
5. The defendant shall participate in a mental health treatment program and follow the rules and regulations of that program. The probation officer, in consultation with the treatment provider, will supervise the defendant’s participation in the program (provider, location, modality, duration, intensity, etc.). The defendant shall pay for the cost of treatment to the extent that he is able, as determined by the probation officer.
6. The defendant shall not go to, or remain at, any place where he knows controlled substances are illegally sold, used, distributed, or administered without first obtaining the permission of the probation officer.
7. The defendant shall submit his person, residence, office, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)), other electronic communications or data storage devises or media, or office, to a search conducted by a probation officer. Failure to submit to a search may be grounds for revocation of release. The defendant shall warn any other occupants that the premises may be subject to searches pursuant to this condition. The probation officer may conduct a search under this condition only when reasonable suspicion exists that the defendant has violated of supervision and that the areas to be searched contain evidence of this violation. Any search shall be conducted at a reasonable time and in a reasonable manner.
8. The defendant is restricted to his residence at all times, except for employment; education; religious services; medical, substance abuse, or mental health treatment; attorney visits; court appearances; court-ordered obligations; or other activities as pre-approved by the officer until January 10, 2021. During this time, the defendant will be monitored by the location monitoring technology at the discretion of the probation officer, and the defendant shall follow the rules and
2 regulations of the location monitoring program. The defendant shall pay for the cost of the program to the extent that he is able, as determined by the probation officer.
9. The defendant shall self-quarantine in an approved residence during the first fourteen days of his home confinement.