UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 17-cr-163-JD-03 Opinion No. 2020 DNH 144 Stephen Marando
O R D E R
Stephan Marando moves for a reduction of his sentence
pursuant to 18 U.S.C. § 3582(c)(1)(A) and, in the alternative,
asks the court to recommend to the Bureau of Prisons (“BOP”)
that he be permitted to serve the maximum amount of his sentence
in home confinement under 18 U.S.C. § 3624. In support, he
contends that he has a heightened risk of severe illness or
death if he were to contract COVID-19. The government objects
to a reduction in Marando’s sentence and to a recommendation for
release to home confinement. A United States Probation Officer
filed a report on June 24, 2020, in response to Marando’s
previous motion under § 3582(c)(1)(A), and that report has also
been considered for purposes of the pending motion.
I. Background
Marando pleaded guilty on July 24, 2018, to charges of
conspiracy to possess with intent to distribute forty grams or
more of fentanyl and possession with intent to distribute forty grams or more fentanyl. On March 14, 2019, he was sentenced to
sixty-six months of incarceration to be followed by five years
of supervised release. His projected release date is August 5,
2022, and he has served not quite half of his sentence. He is
serving his sentence at the Federal Correctional Institute in
Allenwood, Pennsylvania (“FCI Allenwood”) in medium security.
Marando is fifty-nine years old. He has a variety of
medical conditions and issues, including hypertension, Hepatitis
C, degenerative disc disease, and anemia. Despite his medical
issues he has no medical restrictions except that he requires a
lower bunk.
FCI Allenwood was not reporting any active cases at the
time when Marando filed his motion. Counsel, on Marando’s
behalf, suggests that the lack of reported cases may be because
there is insufficient testing. The government also represented
that there were no inmates or staff at FCI Allenwood with COVID-
19 as of early August.
During his period of incarceration, Marando has not had any
disciplinary reports. On the other hand, he has not
participated in either the drug education program or the
residential drug abuse treatment program. He has been assessed
to have a high risk of recidivism. In addition, the probation
officer reported that Marando has a number of outstanding
warrants that could affect any planned release.
2 On April 30, 2020, Marando submitted a request to the
warden to serve the remainder of his sentence in home
confinement.1 That request was denied. He then filed a pro se
motion with the court, which was denied because he had not
exhausted administrative remedies. Marando filed a pro se
request under § 3582(c)(1)(A) with the warden on June 26, 2020.
That request was denied on July 8, 2020.
II. Request for Reduced Sentence
The Director of the BOP may bring a motion on behalf of a
defendant to reduce the term of his or her imprisonment.
§ 3582(c)(1)(A). If the Director does not file a motion, 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 request. 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
1His requests apparently combined requests for release to home confinement under § 3624 with requests for a reduction in sentence under § 3582(c)(1)(A).
3 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
§ 3582(c)(1)(A).2 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, 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
2 The Sentencing Commission has not been able to amend § 1B1.13 to conform to the statutory changes made by the First Step Act because the Commission lacks a quorum. United States v. Greene, 2020 WL 4475892, at *3, n.1 (D. Me. Aug. 4, 2020).
4 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.”
In summary, to be eligible for a reduction in sentence
under § 3582(c)(1)(A), a defendant must first exhaust
administrative remedies. If that is accomplished, a defendant
must show that he has an extraordinary and compelling reason
that justifies a reduction in his sentence, considering the
sentencing factors under § 3553(a) and the policy statement.
A. Initial Considerations
The government agrees that Marando has satisfied the
requirement of administrative exhaustion and that he has shown
an extraordinary and compelling reason for sentence reduction,
based on his health conditions in combination with the risks due
to COVID-19. The court will accept the agreement on those
issues.
B. Sentencing Factors under § 3553(a)
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
5 are particularly pertinent here.3 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:
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 17-cr-163-JD-03 Opinion No. 2020 DNH 144 Stephen Marando
O R D E R
Stephan Marando moves for a reduction of his sentence
pursuant to 18 U.S.C. § 3582(c)(1)(A) and, in the alternative,
asks the court to recommend to the Bureau of Prisons (“BOP”)
that he be permitted to serve the maximum amount of his sentence
in home confinement under 18 U.S.C. § 3624. In support, he
contends that he has a heightened risk of severe illness or
death if he were to contract COVID-19. The government objects
to a reduction in Marando’s sentence and to a recommendation for
release to home confinement. A United States Probation Officer
filed a report on June 24, 2020, in response to Marando’s
previous motion under § 3582(c)(1)(A), and that report has also
been considered for purposes of the pending motion.
I. Background
Marando pleaded guilty on July 24, 2018, to charges of
conspiracy to possess with intent to distribute forty grams or
more of fentanyl and possession with intent to distribute forty grams or more fentanyl. On March 14, 2019, he was sentenced to
sixty-six months of incarceration to be followed by five years
of supervised release. His projected release date is August 5,
2022, and he has served not quite half of his sentence. He is
serving his sentence at the Federal Correctional Institute in
Allenwood, Pennsylvania (“FCI Allenwood”) in medium security.
Marando is fifty-nine years old. He has a variety of
medical conditions and issues, including hypertension, Hepatitis
C, degenerative disc disease, and anemia. Despite his medical
issues he has no medical restrictions except that he requires a
lower bunk.
FCI Allenwood was not reporting any active cases at the
time when Marando filed his motion. Counsel, on Marando’s
behalf, suggests that the lack of reported cases may be because
there is insufficient testing. The government also represented
that there were no inmates or staff at FCI Allenwood with COVID-
19 as of early August.
During his period of incarceration, Marando has not had any
disciplinary reports. On the other hand, he has not
participated in either the drug education program or the
residential drug abuse treatment program. He has been assessed
to have a high risk of recidivism. In addition, the probation
officer reported that Marando has a number of outstanding
warrants that could affect any planned release.
2 On April 30, 2020, Marando submitted a request to the
warden to serve the remainder of his sentence in home
confinement.1 That request was denied. He then filed a pro se
motion with the court, which was denied because he had not
exhausted administrative remedies. Marando filed a pro se
request under § 3582(c)(1)(A) with the warden on June 26, 2020.
That request was denied on July 8, 2020.
II. Request for Reduced Sentence
The Director of the BOP may bring a motion on behalf of a
defendant to reduce the term of his or her imprisonment.
§ 3582(c)(1)(A). If the Director does not file a motion, 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 request. 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
1His requests apparently combined requests for release to home confinement under § 3624 with requests for a reduction in sentence under § 3582(c)(1)(A).
3 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
§ 3582(c)(1)(A).2 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, 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
2 The Sentencing Commission has not been able to amend § 1B1.13 to conform to the statutory changes made by the First Step Act because the Commission lacks a quorum. United States v. Greene, 2020 WL 4475892, at *3, n.1 (D. Me. Aug. 4, 2020).
4 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.”
In summary, to be eligible for a reduction in sentence
under § 3582(c)(1)(A), a defendant must first exhaust
administrative remedies. If that is accomplished, a defendant
must show that he has an extraordinary and compelling reason
that justifies a reduction in his sentence, considering the
sentencing factors under § 3553(a) and the policy statement.
A. Initial Considerations
The government agrees that Marando has satisfied the
requirement of administrative exhaustion and that he has shown
an extraordinary and compelling reason for sentence reduction,
based on his health conditions in combination with the risks due
to COVID-19. The court will accept the agreement on those
issues.
B. Sentencing Factors under § 3553(a)
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
5 are particularly pertinent here.3 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 (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). Subpart (C) overlaps with the guidance in § 1B.13
to consider whether the defendant is a danger to any person in
the community.
The court considered all of the § 3553(a) factors when
Marando was sentenced to sixty-six months in prison, which is an
appropriate sentence for his serious drug crimes. The only
intervening change is the COVID-19 pandemic. Although Marando
would be at increased risk if he were to contract COVID-19, the
risk is currently low at FCI Allenwood, where Marando is
3 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.
6 incarcerated. Therefore, the COVID-19 pandemic does not weigh
in favor of a reduced sentence for Marando.
Marando’s crime involved distribution of fentanyl, an
extremely dangerous drug. He committed the crime while he was
on parole for conspiracy to distribute heroin. Marando has an
extensive criminal history, extending over forty years, that
includes drug crimes, assaults, and violations of bail and
parole. His refusal to participate in drug treatment programs
in prison raises further concern about the risk he may pose if
released.
Marando is assessed to be at high risk for recidivism. His
risk of recidivism combined with his criminal history shows that
he is likely to be a danger to others in the community if his
sentence were reduced.
As presented by his counsel, Marando’s plan if he were
released is to live with his wife who has been on parole for her
own drug conviction. The probation officer noted in her report
that Marando’s living plan would have to be investigated. The
probation officer also reported that Marando has outstanding
warrants against him, which would have to be investigated before
a release from custody.
Marando did not address the § 3553(a) factors as they apply
to him. Those factors weigh heavily against a reduction in
7 Marando’s sentence. Therefore, Marando has not shown that he is
eligible for a reduction in his sentence under § 3582(c)(1)(A).
III. Release to Home Confinement under § 3624
Alternatively, Marando asks the court to recommend to the
BOP that he be allowed to serve the maximum amount of his
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, his conduct while in prison, and his
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. Marando would likely pose a danger to the
community if he were released. While he has not had
disciplinary infractions while in prison, he also has not taken
advantage of the drug treatment programs offered to him. In
addition, as stated above, FCI Allenwood currently presents a
low risk of contracting COVID-19.
8 The BOP is in a better position to decide whether 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). The BOP
previously denied Marando’s request for release to home
confinement. The court declines to make any recommendation with
respect to Marando’s release to home confinement.
Conclusion
For the foregoing reasons, the defendant’s motion for
reduction in sentence and the supplement to the motion
(documents nos. 159 and 160) are denied.
SO ORDERED.
______________________________ Joseph A. DiClerico, Jr. United States District Judge August 17, 2020
cc: Counsel of record.