United States of America v. Katie Fysh

2020 DNH 161

• Court: District Court, D. New Hampshire
• Decided: September 16, 2020
• Docket: 18-cr-131-1-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 18-cr-131-1-SM Opinion No. 2020 DNH 161 Katie Fysh

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. Doc. No. 40.

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

relief, that is 1) that extraordinary and compelling reasons

warrant a reduction in her 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 place her in a high-risk category should she contract

COVID-19, and that defendant has met her burden to show

1 “extraordinary and compelling” reasons warranting sentence

reduction. 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).

As of August 25, 2020, two staff member, and no inmates

tested positive for the virus, and risk management procedures at

FCF Hazelton, where defendant is incarcerated, have been both

extensive and largely successful in controlling the spread of

the virus. The two staff members who tested positive do not

interact with inmates. The current risk of contracting the

virus is low. And, defendant’s history strongly militates

against release.

Defendant was convicted of conspiracy to distribute and

possess with the intent to distribute the controlled substance

Fentanyl, in violation of 28 U.S.C. § 846 and 841(a). She has

served less than half of her 87-month sentence, has a history of

recidivism (CHC III), and she has not met her burden to show

that she 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,

2 protecting the public, and providing for both general and

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

Conclusion

Given the current low risk of community spread of the virus

in the facility, the danger to public safety defendant would

pose if released, and the sentencing factors militating against

defendant’s early release, the motion for compassionate release

under the First Step Act is hereby denied.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 16, 2020

cc: Georgiana MacDonald, AUSA Keren E. Goldenberg, Esq. U.S. Probation U.S. Marshal