United States of America v. Stephen G. Burke

2024 DNH 025

• Court: District Court, D. New Hampshire
• Decided: March 26, 2024
• Docket: 96-cr-50-SM-1
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 96-cr-50-SM-1 Opinion No. 2024 DNH 025 Stephen G. Burke

O R D E R

Stephen G. Burke moves for compassionate release, under 18

U.S.C. § 3582(c)(1), from life sentences imposed in 1998 for his

part in crimes committed during robberies of banks and armored

cars. He argues that the risks from COVID 19, the change in the

law applicable to career offender status under the Armed Career

Criminal Act, and his rehabilitative efforts provide

extraordinary and compelling reasons to grant him relief, and

that the sentencing factors support relief. The government

objects to Burke’s motion.

Standard of Review

Unless an exception applies, a court may not modify or

reduce a sentence after it is imposed. § 3582(c); United States

v. Quirós-Morales, 83 F.4th 79, 84 (1st Cir. 2023). The

exception to the rule raised here allows the court to reduce a

sentence if the prisoner exhausts administrative remedies and

the court finds “extraordinary and compelling reasons warrant

such a reduction” and “a reduction is consistent with applicable policy statements.” § 3582(c)(1)(A). In addition, the court

must consider the sentencing factors provided in 18 U.S.C.

§ 3553(a), to the extent they are applicable to the

circumstances presented. Id.

Background

Burke, along with five other men, were charged with a

series of bank and armored car robberies during the 1990s. “One

of the charges--carjacking--arose out of an armored car robbery

that took place in Hudson, New Hampshire, during which two

security guards were murdered.” Burke v. United States, 2014

DNH 210, 2014 WL 4922992, at *1 (D.N.H. Sept. 30, 2014). Burke

was convicted of the charges brought against him.

The court found that Burke qualified for enhanced

sentencing under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e) (“ACCA”). Burke was sentenced to life in prison, along

with certain additional sentences. Burke, 96-cr-50-SM, doc. no.

984 (D.N.H. May 11, 1998). Burke’s convictions and sentences

were affirmed on appeal. United States v. Shea, 211 F.3d 658,

676 (1st Cir. 2000). Burke has filed petitions seeking relief

under 28 U.S.C. § 2255. See Burke v. United States, 02-cv-90-

SM, Burke v. United States, 14-cv-252-SM; Burke v. United

States, 21-cv-863-SM.

2 As of February 2023, Burke was incarcerated at the United

States Penitentiary in Atwater, California. While there, Burke

moved for appointment of counsel to represent him in filing a

motion for relief under § 3582(c), which the court granted, and

counsel was appointed. End. Or. Mar. 8, 2023. Counsel filed a

motion for relief under § 3582(c)(1)(A) on Burke’s behalf.

Discussion

In support of his motion, Burke contends that he is

eligible for early release under § 3582(c) because of the risks

presented by COVID 19, including its long-term effects on

inmates in the Bureau of Prisons system; because he would not

now qualify as a career offender under the ACCA; and because of

the changes he has made in his life. He also argues that the

sentencing factors under § 3553(a) support his release.

The government objects to Burke’s motion based on the

amended policy statement issued by the United States Sentencing

Commission, U.S.S.G. § 1B1.13 (effective on November 1, 2023).

Burke filed his motion on October 31, 2023, one day before the

effective date, but the government assumes that the amended

policy statement applies retroactively, relying on . The

government argues that Burke has not shown an extraordinary and

compelling reason to grant relief.

3 A. Amended Policy Statement - U.S.S.G. § 1B1.13

Prior to its amendment, the Sentencing Commission’s policy

statement in § 1B1.13 was not applicable to motions under

§ 3582(c) that were filed by prisoners. United States v.

Ruvalcaba, 26 F.4th 14, 23 (1st Cir. 2022); see also Quirós-

Morales, 83 F.4th at 84. After passage of the First Step Act,

the Sentencing Commission promulgated new guidelines applicable

to motions under § 3582(c), issued on April 27, 2023, to be

effective on November 1, 2023. United States v. Rivera-

Rodriguez, 75 F.4th 1, 18 n.22 (1st Cir. 2023) (citing

Amendments to the Sentencing Guidelines, U.S. Sentencing

Commission (Apr. 27, 2023),

https://www.ussc.gov/guidelines/amendments/adopted-amendments-

effective-november-1-2023). As planned, the amendments became

effective on November 1, 2023.

In the interim, for motions filed before the effective

date, the First Circuit Court of Appeals directed “district

courts to take heed of [the amended policy] when determining

whether an individual meets the statute's requirements for such

relief.” Rivera-Rodríguez, 75 F.4th at 18, n.2. That is, the

court is to consider the scope of the new policy statement in

§ 1B1.13 for that purpose. Quirós-Morales, 83 F.4th at 84.

Here, however, the government argues that the amended

version of § 1B1.13 applies to Burke’s motion filed before the

4 effective date and bars the relief that Burke seeks. The

government relies on United States v. Feliz, 2023 WL 8275897, at

*2 (S.D.N.Y. Nov. 30, 2023), and United States v. Ringold, 2023

WL 7410895 (D. Md. Nov. 8, 2023), where the courts applied

§ 1B1.13 retroactively. See also United States v. Lopez, 2024

WL 964593, at *2 (S.D.N.Y. Mar. 5, 2024) (“The amended guidance

from the Commission [in § 1B1.13] as to what constitutes

extraordinary and compelling reasons now controls the analysis

of a compassionate release petition, however initiated.”)

Other courts that have considered the issue, however, have

concluded that the amended version of § 1B1.3 does not apply

retroactively. See, e.g., United States v. Lazo, 2024 WL

748665, at *2 n.4 (11th Cir. Feb. 23, 2024); United States v.

Kramer, 2024 WL 313389 at *1, n.3 (3d. Cir. January 26, 2024);

United States v. Immel, 2024 WL 965614, at *4 (S.D. Miss. Mar.

6, 2024) (“Courts may use the policy statement as guidance in a

motion for compassionate release, but it is not binding on the

courts.”). Rather than apply the amended version of § 1B1.13

retroactively, as some district courts have done, this court

will follow the direction of the First Circuit and will heed the

guidance provided in the new policy statement, § 1B1.13, for the

purpose of deciding whether Burke has alleged an extraordinary

and compelling reason to grant relief under § 3582(c)(1)(A).

5 See United States v. Soto-Mendez, 2024 WL 980050, at *2–3

(D.P.R. Mar. 7, 2024).

B. Extraordinary and Compelling Reasons for Relief

Burke contends that he has extraordinary and compelling

reasons for relief under § 3582(c)(1)(A) because of the risks

associated with COVID 19 in prison, because he would not qualify

as a career offender under the current state of the law, and

because of his efforts to rehabilitate. The government disputes

those grounds for relief.

1. COVID 19

Burke argues that, because of his various health issues and

the conditions in prison, he is at higher risk of contracting

COVID 19. Then, he argues, if he were to contract COVID 19, he

would be at higher risk of experiencing long-term symptoms. He

relies on cases decided during the COVID 19 pandemic to support

an extraordinary and compelling reason for relief on that basis.

See United States v. Ngyuen, 2022 WL 3595090, at *8 (D. Haw.

Aug. 23, 2022); United States v. Book, 08-cr-51-GF (D. Mont. May

11, 2022); United States v. Eccleston, 543 F. Supp. 3d 1092,

1119 (D.N.M. 2021).

The serious risk that COVID-19 posed to inmates has abated

with the availability of vaccines and boosters and the end of

6 the pandemic. United States v. Rondón, 2024 WL 964261, at *2

(D.P.R. Mar. 6, 2024) (citing cases); United States v. De Leon-

Lozada, 2024 WL 967662, at *2 (D.P.R. Mar. 6, 2024). Burke does

not allege that he has had COVID 19 and is currently suffering

from its long-term effects. Cf. United States v. Miranda, 2021

WL 4592528, at *6 (D.P.R. Aug. 30, 2021). Instead, he argues

that he might get COVID 19 and that, if he did, he would have an

increased risk of long-term symptoms.

Given the availability of vaccinations in prison, absent

evidence to the contrary, the court assumes that Burke is

vaccinated against COVID 19 and has received the periodic

boosters. 1 Even during the COVID-19 pandemic, a prisoner could

not establish an extraordinary and compelling reason for relief

under § 3592(c)(1)(A), arising from the risk posed by COVID 19,

when he had been vaccinated. United States v. French, 2022 WL

17690089, at *4-*5 (D. Me. Dec. 15, 2022).

1 Burke has not informed the court of his vaccination status. Burke also provides no information about his current location or the current number of COVID 19 cases in the facility where he is incarcerated. Based on the most recent information in the record, Burke is or recently was incarcerated at the Bureau of Prisons penitentiary in Atwater, California. As of March 13, 2024, there were no cases of COVID 19 at that facility. www.bop.gov/about/statistics_inmate_covid19.jsp. Of the 1294 inmates at Atwater, 787 have been vaccinated. Those statistics demonstrate a very low risk that Burke might contract COVID 19.

7 Paying heed to the policy statement in the amended version

of § 1B1.13, as is pertinent to Burke’s argument, a prisoner may

show an extraordinary and compelling reason for relief based on

certain medical circumstances. § 1B1.13(b)(1). More

specifically, an extraordinary and compelling reason exists if

the prisoner shows the following:

(i) [he] is housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority; (ii) due to personal health risk factors and custodial status, [he] is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency described in clause (i); and (iii) such risk cannot be adequately mitigated in a timely manner.

U.S.S.G. 1B1.13(b)(1)(B). Burke has made none of the showings

that are required under § 1B1.13(b)(1)(B) to establish an

extraordinary and compelling reason for relief. The guidance of

the policy stated in § 1B1.13(b)(1)(B) further supports the

court’s conclusion that Burke’s possible risk of long-term

effects from COVID 19 is not an extraordinary and compelling

reason for relief under § 3582(c)(1)(A).

2. Career Offender Status under the ACCA

Burke was sentenced to life imprisonment as an ACCA career

offender under 18 U.S.C. § 924(e). Relying on Concepcion v.

8 United States, 597 U.S. 481 (2022), Burke argues that the court

may consider intervening changes in the law for the purpose of

finding an extraordinary and compelling reason to reduce his

sentence under § 3582(c)(1)(A).

In Concepcion, the Court held that “the First Step Act

allows district courts to consider intervening changes of law or

fact in exercising their discretion to reduce a sentence

pursuant to the First Step Act.” Id. at 500. Courts that have

considered the issue, however, have held that Concepcion did not

introduce a new extraordinary and compelling reason for sentence

reduction, based on an intervening change in the law. See,

e.g., United States v. Williams, 2023 WL 8868502, at *1 (7th

Cir. Dec. 22, 2023) (holding that Concepcion did not concern

“the ‘threshold question’ whether prisoner has established an

extraordinary and compelling reason warranting a sentence

reduction”); United States v. Stewart, 86 F.4th 532, 535 (3d

Cir. 2023) (same); United States v. Rodriguez-Mendez, 65 F.4th

1000, 1003-04 (8th Cir. 2023) (same).

As the government points out, a prisoner’s sentence based

on career offender status may be challenged based on the

intervening changes in the law in Johnson v. United States, 576

U.S. 591 (2015), in a petition under 28 U.S.C. § 2255. See Shea

v. United States, 976 F.3d 63 (1st Cir 2020). The government

contends that even if the issue of Burke’s career offender

9 status could provide an extraordinary and compelling reason for

relief under § 3582(c)(1)(A), Burke cannot show that his career

offender status is undermined by Johnson. 2

Burke previously filed a § 2255 petition that challenged

his career offender status in light of Johnson. Burke v. United

States, 17-cv-328-SM, doc. no. 17. Burke argued that one of the

predicate offenses used for career offender status was not a

violent crime and that he did not qualify as a career offender

under the residual clause that had been held to be

unconstitutionally vague in Johnson. Id. The court, however,

concluded that Burke’s argument was precluded by the First

Circuit’s opinion in United States v. Edwards, 857 F.3d 420, 427

(1st Cir. 2017), and denied Burke’s petition. Doc. no. 19 at 5-

6. Therefore, the court has previously determined that Burke is

not entitled to relief under Johnson, and he makes no new

argument here that would support a different outcome.

2 As amended, § 1B1.13 precludes consideration of changes in the law “for purposes of determining whether an extraordinary and compelling reason exists” for relief under § 3582 (c)(1)(A), with one exception. § 1B1.13(c). That exception provides that changes in the law may be considered if the “defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment,” “such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed,” and consideration of “the defendants’ individualized circumstances” supported that determination. § 1B1.13(b)(6). Burke, however, has not argued that the amended provision would apply here.

10 Therefore, Burke has not shown an extraordinary and

compelling reason for relief based on an intervening change in

the law with respect to his ACCA career offender status.

3. Rehabilitative Efforts

Burke also recites the efforts he has made to change and

become a better person. He states that he has changed from a

life of crime to a “man of peace and civility.” Doc. no. 1282

at 4. While Burke’s efforts and actions are laudable, they do

not provide an extraordinary and compelling reason to grant

relief under § 3582(c)(1)(A).

Prior to the amendment of § 1B1.13, rehabilitative efforts

and results could not be considered for purposes of an

extraordinary and compelling reason to grant relief. United

States v. Trenkler, 47 F.4th 42, 48 (1st Cir. 2022). That rule

is softened somewhat in the amended version of § 1B1.13, as

follows:

Pursuant to 28 U.S.C. 994(t), rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason for purposes of this policy statement. However, rehabilitation of the defendant while serving the sentence may be considered in combination with other circumstances in determining whether and to what extent a reduction in the defendant's term of imprisonment is warranted.

U.S.S.G. 1B1.13(d). Because Burke does not cite other

circumstances to support an extraordinary and compelling reason

11 for relief under § 3582(c)(1)(A), his rehabilitative efforts

alone do not qualify him for the relief he seeks.

C. Result

Burke has not made the required threshold showing of an

extraordinary and compelling reason to support relief under

§ 3582(c)(1)(A).

Conclusion

For the foregoing reasons, Burke’s motion for relief under

§ 3582(c)(1)(A) (doc. no. 1282) is denied.

SO ORDERED

______________________________ Steven J. McAuliffe United States District Judge

March 26, 2024

cc: Lawrence Vogelman, Esq. Seth R. Aframe, AUSA U.S. Probation U.S. Marshal