UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 19-cr-09-JD Opinion No. 2020 DNH 182 Kristina Blake
O R D E R
Kristina Blake moves pursuant to 18 U.S.C. § 3582(c)(1)(A)
to have her sentence reduced to time served based on the
combined effect of her history of hepatitis C and the risks
presented by the COVID-19 pandemic.1 In the alternative, she
asks the court to recommend to the Bureau of Prisons (“BOP”)
that she be allowed to spend the maximum amount of her sentence
in home confinement under 18 U.S.C. § 3624. The government
objects to the requested relief. United States Probation and
Pretrial Services has filed a report and recommendation on the
motions.
Standard of Review
The Director of the BOP may bring a motion on behalf of a
defendant to reduce the term of the defendant’s imprisonment.
1 Blake filed a motion pro se, and then her counsel was reappointed to represent her for purposes of seeking relief under § 3582(c)(1)(A) and filed a second motion. § 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 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.
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 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, United States Sentencing
Guidelines § 1B1.13, was issued before § 3582(c)(1)(A) was
amended under the First Step Act of 2018 to allow defendants to
seek a reduction of their sentences in court. See United States
v. Tardif, 2020 WL 3960394, at *1 (D. Me. July 13, 2020). As a
result, courts have concluded that U.S.S.G. § 1B1.13 may guide
but does not limit the court’s authority to grant relief under
2 § 3582(c)(1)(A). 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.
In addition, 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. Those
reasons include medical conditions, age, family circumstances,
and extraordinary and compelling reasons “other than, or in
combination with, the reasons described.”2
Background
Blake pleaded guilty to conspiracy to distribute and
possess with intent to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(l)(A)(viii), and conspiracy to knowingly possess firearms
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(o). She was sentenced on November 21, 2019, to 120
2 The government also cites a BOP regulation from BOP Program Statement 5050.50 as providing additional guidance for sentence reduction under § 3582(c)(1)(A). The cited parts of the regulation, however, do not appear to be material to Blake’s motion.
3 months in prison. Her current release date, with good conduct
time, is October 31, 2027. She has served only 14% of her full
term. Blake is serving her sentence in a low security facility
at the Federal Correctional Institute in Danbury, Connecticut
(“FCI Danbury”).
Blake is thirty years old and has had hepatitis C since
2015 as a result of intravenous drug use. The government
consulted with Dr. J. Gavin Muir, Chief Medical Officer of
Amoskeag Health in Manchester, New Hampshire, about Blake’s
medical condition. Dr. Muir reviewed Blake’s records and
confirmed that she has had hepatitis C since 2015. Although the
records do not definitively establish that she has liver
disease, Dr. Muir concluded that it is likely that Blake does
have liver disease because of inflammation in her liver.
The CDC states that currently it has “no information about
whether people with hepatitis B or hepatitis C are at increased
risk for getting COVID-19 or having severe COVID-19.”
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/liver-disease.html (last visited September 30,
2020). The CDC also states, however, that people serious
medical conditions, might be at higher risk for severe illness
from COVID-19, particularly if the underlying medical conditions
are not well controlled.” Id.
4 As is noted above, Blake is housed at FCI Danbury. At the
time of the motions and response, there were two active cases of
COVID-19 among inmates and none among the staff at FCI Danbury.3
Blake has made requests to the warden for a motion under
§ 3582(c)(1)(A), which have been denied.
In his report, the probation officer states that Blake has
a significant criminal history, primarily involving drug
offenses. Her crime of conviction involved significant amounts
of drugs and firearms. After her arrest, Blake attempted to
coerce her codefendant to provide false information on her
behalf. She also has close ties to gangs through family members
and friends, Gangster Disciple and BOWW, which is a white
supremacist gang. She committed the crime of conviction while
she was on parole for another drug crime.
In support of her motion, Blake states that if her sentence
were reduced and she were released to home confinement, she
would live with her mother in Franklin, New Hampshire. Blake’s
thirteen-year-old child also lives with her mother. Blake
represents that she would continue to participate in programs
for her medical and mental health and for drug addiction
treatment.
3 The same numbers are reported by the BOP at www.bop.gov/coronavirus, as of October 15, 2020.
5 The probation officer reports that Blake’s mother’s home
has not been approved. The probation office called Blake’s
mother, but she did not return their calls. The probation
officer also notes that Blake’s mother threatened Blake’s
codefendant, after Blake’s arrest, that he would have problems
with Gang Disciples if he went to prison.
Discussion
Blake seeks to have her sentence changed to home
confinement for the remaining term of imprisonment, or,
alternatively, seeks a recommendation that the BOP allow the
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 19-cr-09-JD Opinion No. 2020 DNH 182 Kristina Blake
O R D E R
Kristina Blake moves pursuant to 18 U.S.C. § 3582(c)(1)(A)
to have her sentence reduced to time served based on the
combined effect of her history of hepatitis C and the risks
presented by the COVID-19 pandemic.1 In the alternative, she
asks the court to recommend to the Bureau of Prisons (“BOP”)
that she be allowed to spend the maximum amount of her sentence
in home confinement under 18 U.S.C. § 3624. The government
objects to the requested relief. United States Probation and
Pretrial Services has filed a report and recommendation on the
motions.
Standard of Review
The Director of the BOP may bring a motion on behalf of a
defendant to reduce the term of the defendant’s imprisonment.
1 Blake filed a motion pro se, and then her counsel was reappointed to represent her for purposes of seeking relief under § 3582(c)(1)(A) and filed a second motion. § 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 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.
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 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, United States Sentencing
Guidelines § 1B1.13, was issued before § 3582(c)(1)(A) was
amended under the First Step Act of 2018 to allow defendants to
seek a reduction of their sentences in court. See United States
v. Tardif, 2020 WL 3960394, at *1 (D. Me. July 13, 2020). As a
result, courts have concluded that U.S.S.G. § 1B1.13 may guide
but does not limit the court’s authority to grant relief under
2 § 3582(c)(1)(A). 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.
In addition, 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. Those
reasons include medical conditions, age, family circumstances,
and extraordinary and compelling reasons “other than, or in
combination with, the reasons described.”2
Background
Blake pleaded guilty to conspiracy to distribute and
possess with intent to distribute fifty grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 846 and
841(b)(l)(A)(viii), and conspiracy to knowingly possess firearms
in furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(o). She was sentenced on November 21, 2019, to 120
2 The government also cites a BOP regulation from BOP Program Statement 5050.50 as providing additional guidance for sentence reduction under § 3582(c)(1)(A). The cited parts of the regulation, however, do not appear to be material to Blake’s motion.
3 months in prison. Her current release date, with good conduct
time, is October 31, 2027. She has served only 14% of her full
term. Blake is serving her sentence in a low security facility
at the Federal Correctional Institute in Danbury, Connecticut
(“FCI Danbury”).
Blake is thirty years old and has had hepatitis C since
2015 as a result of intravenous drug use. The government
consulted with Dr. J. Gavin Muir, Chief Medical Officer of
Amoskeag Health in Manchester, New Hampshire, about Blake’s
medical condition. Dr. Muir reviewed Blake’s records and
confirmed that she has had hepatitis C since 2015. Although the
records do not definitively establish that she has liver
disease, Dr. Muir concluded that it is likely that Blake does
have liver disease because of inflammation in her liver.
The CDC states that currently it has “no information about
whether people with hepatitis B or hepatitis C are at increased
risk for getting COVID-19 or having severe COVID-19.”
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/liver-disease.html (last visited September 30,
2020). The CDC also states, however, that people serious
medical conditions, might be at higher risk for severe illness
from COVID-19, particularly if the underlying medical conditions
are not well controlled.” Id.
4 As is noted above, Blake is housed at FCI Danbury. At the
time of the motions and response, there were two active cases of
COVID-19 among inmates and none among the staff at FCI Danbury.3
Blake has made requests to the warden for a motion under
§ 3582(c)(1)(A), which have been denied.
In his report, the probation officer states that Blake has
a significant criminal history, primarily involving drug
offenses. Her crime of conviction involved significant amounts
of drugs and firearms. After her arrest, Blake attempted to
coerce her codefendant to provide false information on her
behalf. She also has close ties to gangs through family members
and friends, Gangster Disciple and BOWW, which is a white
supremacist gang. She committed the crime of conviction while
she was on parole for another drug crime.
In support of her motion, Blake states that if her sentence
were reduced and she were released to home confinement, she
would live with her mother in Franklin, New Hampshire. Blake’s
thirteen-year-old child also lives with her mother. Blake
represents that she would continue to participate in programs
for her medical and mental health and for drug addiction
treatment.
3 The same numbers are reported by the BOP at www.bop.gov/coronavirus, as of October 15, 2020.
5 The probation officer reports that Blake’s mother’s home
has not been approved. The probation office called Blake’s
mother, but she did not return their calls. The probation
officer also notes that Blake’s mother threatened Blake’s
codefendant, after Blake’s arrest, that he would have problems
with Gang Disciples if he went to prison.
Discussion
Blake seeks to have her sentence changed to home
confinement for the remaining term of imprisonment, or,
alternatively, seeks a recommendation that the BOP allow the
maximum amount of time in home confinement at the end of her
sentence. The government opposes both requests. There is no
dispute in this case that Blake has exhausted administrative
remedies.
As a preliminary issue, however, Blake asks the court both
to reduce her sentence to time served and to convert her
remaining prison sentence to home confinement. She cites no
authority to support the request to convert her sentence to home
confinement. Contrary to Blake’s request, the BOP has the
exclusive authority to decide whether to release a defendant to
home confinement § 3624(c); United States v. Perkins, --- F.
Supp.3d ---, 2020 WL 4783558, at *8 (D.N.H. Aug. 18, 2020);
6 United States v. Duford, 2020 WL 3542266, at *4 (D.N.H. June 30,
2020). Therefore, to the extent Blake asks the court to convert
her sentence to home confinement, that request is denied.
A. Extraordinary and Compelling Reason
Blake contends that she has a heightened risk of severe
illness and death due to the combination of hepatitis C and the
risk of contracting COVID-19 in prison. The government argues
that Blake has not shown an extraordinary and compelling reason
to support her motion because her medical condition is
asymptomatic and does not meet the criteria listed in U.S.S.G.
1B1.13, Application Note 1(A).
Although Application Note 1(A) does not apply to Blake,
Application Note 1(D) provides discretion in deciding when
extraordinary and compelling circumstances exist.4 Dr. Muir
found that it was likely that Blake has liver disease because of
hepatitis C, and the CDC states that liver disease may cause an
increased risk of severe illness from COVID 19. In addition,
the government stated in is objection: “Dr. Muir has advised
4 Application Note 1(D) on its face is limited to the Director of the BOP. Courts have relied on that note, however, because the Sentencing Commission has been unable to amend the Guidelines to conform to the changes in § 3582(C) under the First Step Act. United States v. Murphy, 2020 WL 4606416, at *3, n.1 (D. Me. Aug. 11, 2020).
7 that he would not contest Blake’s motion based on her Hepatitis
C medical condition.” Doc. 73, at *3.
Therefore, the court will assume, without deciding, that
Blake has met her burden of showing an extraordinary and
compelling reason to support a reduction in her sentence.
B. Sentencing Factors
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.5 The
first factor directs the sentencing court to consider “the
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
5 The 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.
8 (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 all of the § 3553(a) factors when
Blake was sentenced, less than a year ago, to 120 months in
prison, which is an appropriate sentence for her serious crimes.
The only intervening change is the COVID-19 pandemic. Although
Blake may be at increased risk if she were to contract COVID-19,
the risk is currently low at FCI Danbury, where Blake is
incarcerated. Therefore, the COVID-19 pandemic does not weigh
in favor of a reduced sentence for Blake.
Further, as determined at sentencing, Blake’s crimes were
serious, and her criminal history is significant. She was
convicted of distributing large amounts of drugs and conspiracy
to possess firearms for purposes of the drug crimes. She
committed those offenses while on probation for another drug
crime. She attempted to coerce her codefendant to provide false
information on her behalf, and her mother threatened her
codefendant. Given her crimes of conviction and her history,
Blake is likely to pose a danger to others and to the community
if she were released from prison.
If more were needed, which it is not, her release plan to
live at her mother’s house is unacceptable. Her mother’s home
9 has not been approved by probation. Blake’s mother did not
return calls from probation, which suggests that her home likely
would not be approved.6 Therefore, Blake does not have an
acceptable place to live if she were released.
III. Release to Home Confinement under § 3624
Alternatively, Blake asks the court to recommend to the BOP
that she be allowed to serve the maximum amount of her sentence
in home confinement. While the BOP has exclusive authority to
decide whether to release a defendant to home confinement, the
court may recommend home confinement in an appropriate case.
§ 3624(c); United States v. Duford, 2020 WL 3542266, at *4
(D.N.H. June 30, 2020). In determining whether to recommend
home confinement, the court considers factors provided by
Attorney General Barr in a memorandum issued on March 26, 2020,
which include the risk of danger if the defendant were released,
her conduct while in prison, and her risk associated with COVID-
19. Id.
Those factors have been considered in the context of
§ 3582(c)(1)(A) and do not support a recommendation for home
confinement. The BOP is in a better position to decide whether
In addition, Blake’s mother threatened her codefendant 6
with harm from gang members, which suggests that her home would not be an appropriate place for Blake to live.
10 to release an inmate to home confinement in light of the
circumstances of the inmate population and the spread of the
COVID-19 virus. See, e.g., United States v. Richard, 2020 WL
4500670, at *8 (C.D. Ill. Aug. 5, 2020); United States v. Beahm,
2020 WL 4514590, at *3 (E.D. Va. Aug. 5, 2020).
Conclusion
For the foregoing reasons, Kristina Blake’s motions for
reduction of her sentence or alternatively for a recommendation
of home confinement (document no. 68 and 70) are denied.
Blake’s motion to seal BOP medical records (document no.
72) is granted.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge
October 19, 2020 cc: Counsel of record.