UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-70-JD Opinion No. 2021 DNH 185 William Looney
O R D E R
William Looney, proceeding pro se, has filed a second
motion to have his sentence reduced to time served, pursuant to
18 U.S.C. § 3582(c)(1)(A). He again argues that the combined
effect of his medical conditions and the risks presented by the
COVID-19 pandemic support his release. He also raises a new
argument that the facility where he is incarcerated, FCI
Hazelton, is unable to treat his hernia condition.
Counsel was appointed for Looney, and counsel has filed two
addenda to Looney’s motion. The government objects to the
relief Looney is seeking. A United States Probation Officer has
filed a report with updated information.
Standard of Review
When a defendant moves for relief under § 3582 and has
satisfied the administrative exhaustion requirement, the court
may reduce the defendant’s 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 United States Sentencing Commission issued a policy
statement for the Director of Prisons when addressing motions
under § 3582(c)(1)(A), United States Sentencing Guidelines
§ 1B1.13. The Commission, however, has not considered that
policy in light of the COVID-19 pandemic, changes wrought by the
First Step Act, or motions filed with the court by prisoners.
United States v. Saccoccia, 10 F.4th 1, 7-8 (1st Cir. 2021).
For those reasons, “the overwhelming majority of courts of
appeals” that have considered the issue have held that § 1B1.13
is not applicable policy for purposes of a prisoner-initiated
motion under § 3582(c)(1)(A). Id. at 8. In such cases, courts
“may go beyond the confines of the Sentencing Commission’s
current policy guidance . . . in determining whether a
particular circumstance or set of circumstances constitutes an
extraordinary and compelling reason to grant the motion.” Id.;
United States v. Feliz, --- F. Supp. 3d ---, 2021 DNH 152, 2021
WL 4521967, at *1 (D.N.H. Oct. 4, 2021).
2 Background
Looney pleaded guilty to a charge of possession with intent
to distribute a controlled substance in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). He was sentenced on August 31,
2018, to a term of imprisonment for 120 months to be followed by
four years of supervised release. He has served about 43% of
his sentence with a projected release date of February 3, 2026.
He is now fifty-eight years old and is incarcerated at the
Federal Correctional Institution Hazelton in Bruceton Mills,
West Virginia (“FCI Hazelton”). Looney has had a clear
disciplinary record while incarcerated. His security level is
classified as medium, which has precluded review by the BOP for
home confinement under the CARES Act.1 He has been assessed as a
medium risk for recidivism.
Looney has a history of substance abuse. On July 26, 2017,
a confidential informant bought one gram of fentanyl from Looney
and an arrest warrant was issued the next day. At the time of
his arrest on July 28, 2017, Looney had several bundles on the
center console of his rental vehicle that later were identified
as 285.3 grams of a substance containing fentanyl. He was on
parole for assault and drug offenses when he committed the
1 Looney contends that he now qualifies for minimum security classification. He states that he cannot be reclassified due to pending medical treatment.
3 offense that led to his arrest and conviction. Looney has a
long criminal history with drug, theft, and assault offenses.
He will be on parole from the New Hampshire State Prison until
2035 because of a first degree assault in 2000.
As documented in the presentence report and confirmed in
the subsequent reports submitted by probation officers, Looney
has the following health conditions: “obesity, migraines,
hypermetropia, presbyopia, essential hypertension, varicose
veins of lower extremities with complications, gastro-esophageal
reflux disease without esophagitis, unspecified abdominal
hernia, constipation, sciatica, edema, and prediabetes.” Doc.
no. 31, at *3. He has been prescribed medications for his
health conditions. Nevertheless, the BOP has determined that
Looney has no medical restrictions.
Looney’s first motion for relief under § 3582(c) was denied
on November 2, 2020. The court noted that the government did
not dispute that Looney had exhausted administrative remedies
and had stated an extraordinary and compelling reason for relief
based on the increased risk he would face if he were to contract
COVID-19. The motion was denied based on the § 3553(a) factors.
In his new motion, with respect to COVID-19, Looney states
that he has received both doses of the Pfizer vaccine. He
represents that the vaccination rate at FCI Hazelton is just
4 over half of the population.2 Currently, FCI Hazelton is
reporting seven active cases of COVID-19 among inmates and one
case among the staff. www.bop.gov/coronavirus/ (last visited
Nov. 29, 2021). He asserts a comorbidity of obesity. In his
second addendum, Looney informs the court that he was refused a
booster vaccine because medical services did not have sufficient
doses.
Looney’s medical records show that he has been diagnosed
with an inguinal hernia. The government had Looney’s medical
records reviewed by Dr. J. Gavin Muir. The government
represents that Dr. Muir advised that hernias are generally
treated with elective surgery, although some patients choose to
be monitored rather than undergo surgery. An acute situation
occurs when the hernia causes strangulation. The medical
records show that Looney’s care providers have ordered
medication, imaging, testing, and referrals. On one occasion,
Looney declined abdominal imaging that had been ordered.3 Looney
asserts that he has not received treatment because medical
services at FCI Hazelton have been delayed or cancelled due to
the demands of the pandemic. On the other hand, however, he
2 The government represents that 72.5% of the inmates at FCI Hazelton are vaccinated.
3 Looney states that he did not attend that appointment because he was experiencing pain and illness from the hernia.
5 also asserts that treatment for his hernia is scheduled, and
that a change in his security classification would cause that
treatment to be cancelled.
After Looney filed his motion and after his counsel filed
two addenda, counsel filed a third addenda to address the
current changed conditions at FCI Hazelton. Looney received a
memorandum on November 29, 2021, that out of cell time and
inmate programs would remain suspended until further notice
because of increased levels of positive COVID-19 cases. He
states that he missed his doctor’s appointment that was
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 18-cr-70-JD Opinion No. 2021 DNH 185 William Looney
O R D E R
William Looney, proceeding pro se, has filed a second
motion to have his sentence reduced to time served, pursuant to
18 U.S.C. § 3582(c)(1)(A). He again argues that the combined
effect of his medical conditions and the risks presented by the
COVID-19 pandemic support his release. He also raises a new
argument that the facility where he is incarcerated, FCI
Hazelton, is unable to treat his hernia condition.
Counsel was appointed for Looney, and counsel has filed two
addenda to Looney’s motion. The government objects to the
relief Looney is seeking. A United States Probation Officer has
filed a report with updated information.
Standard of Review
When a defendant moves for relief under § 3582 and has
satisfied the administrative exhaustion requirement, the court
may reduce the defendant’s 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 United States Sentencing Commission issued a policy
statement for the Director of Prisons when addressing motions
under § 3582(c)(1)(A), United States Sentencing Guidelines
§ 1B1.13. The Commission, however, has not considered that
policy in light of the COVID-19 pandemic, changes wrought by the
First Step Act, or motions filed with the court by prisoners.
United States v. Saccoccia, 10 F.4th 1, 7-8 (1st Cir. 2021).
For those reasons, “the overwhelming majority of courts of
appeals” that have considered the issue have held that § 1B1.13
is not applicable policy for purposes of a prisoner-initiated
motion under § 3582(c)(1)(A). Id. at 8. In such cases, courts
“may go beyond the confines of the Sentencing Commission’s
current policy guidance . . . in determining whether a
particular circumstance or set of circumstances constitutes an
extraordinary and compelling reason to grant the motion.” Id.;
United States v. Feliz, --- F. Supp. 3d ---, 2021 DNH 152, 2021
WL 4521967, at *1 (D.N.H. Oct. 4, 2021).
2 Background
Looney pleaded guilty to a charge of possession with intent
to distribute a controlled substance in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B). He was sentenced on August 31,
2018, to a term of imprisonment for 120 months to be followed by
four years of supervised release. He has served about 43% of
his sentence with a projected release date of February 3, 2026.
He is now fifty-eight years old and is incarcerated at the
Federal Correctional Institution Hazelton in Bruceton Mills,
West Virginia (“FCI Hazelton”). Looney has had a clear
disciplinary record while incarcerated. His security level is
classified as medium, which has precluded review by the BOP for
home confinement under the CARES Act.1 He has been assessed as a
medium risk for recidivism.
Looney has a history of substance abuse. On July 26, 2017,
a confidential informant bought one gram of fentanyl from Looney
and an arrest warrant was issued the next day. At the time of
his arrest on July 28, 2017, Looney had several bundles on the
center console of his rental vehicle that later were identified
as 285.3 grams of a substance containing fentanyl. He was on
parole for assault and drug offenses when he committed the
1 Looney contends that he now qualifies for minimum security classification. He states that he cannot be reclassified due to pending medical treatment.
3 offense that led to his arrest and conviction. Looney has a
long criminal history with drug, theft, and assault offenses.
He will be on parole from the New Hampshire State Prison until
2035 because of a first degree assault in 2000.
As documented in the presentence report and confirmed in
the subsequent reports submitted by probation officers, Looney
has the following health conditions: “obesity, migraines,
hypermetropia, presbyopia, essential hypertension, varicose
veins of lower extremities with complications, gastro-esophageal
reflux disease without esophagitis, unspecified abdominal
hernia, constipation, sciatica, edema, and prediabetes.” Doc.
no. 31, at *3. He has been prescribed medications for his
health conditions. Nevertheless, the BOP has determined that
Looney has no medical restrictions.
Looney’s first motion for relief under § 3582(c) was denied
on November 2, 2020. The court noted that the government did
not dispute that Looney had exhausted administrative remedies
and had stated an extraordinary and compelling reason for relief
based on the increased risk he would face if he were to contract
COVID-19. The motion was denied based on the § 3553(a) factors.
In his new motion, with respect to COVID-19, Looney states
that he has received both doses of the Pfizer vaccine. He
represents that the vaccination rate at FCI Hazelton is just
4 over half of the population.2 Currently, FCI Hazelton is
reporting seven active cases of COVID-19 among inmates and one
case among the staff. www.bop.gov/coronavirus/ (last visited
Nov. 29, 2021). He asserts a comorbidity of obesity. In his
second addendum, Looney informs the court that he was refused a
booster vaccine because medical services did not have sufficient
doses.
Looney’s medical records show that he has been diagnosed
with an inguinal hernia. The government had Looney’s medical
records reviewed by Dr. J. Gavin Muir. The government
represents that Dr. Muir advised that hernias are generally
treated with elective surgery, although some patients choose to
be monitored rather than undergo surgery. An acute situation
occurs when the hernia causes strangulation. The medical
records show that Looney’s care providers have ordered
medication, imaging, testing, and referrals. On one occasion,
Looney declined abdominal imaging that had been ordered.3 Looney
asserts that he has not received treatment because medical
services at FCI Hazelton have been delayed or cancelled due to
the demands of the pandemic. On the other hand, however, he
2 The government represents that 72.5% of the inmates at FCI Hazelton are vaccinated.
3 Looney states that he did not attend that appointment because he was experiencing pain and illness from the hernia.
5 also asserts that treatment for his hernia is scheduled, and
that a change in his security classification would cause that
treatment to be cancelled.
After Looney filed his motion and after his counsel filed
two addenda, counsel filed a third addenda to address the
current changed conditions at FCI Hazelton. Looney received a
memorandum on November 29, 2021, that out of cell time and
inmate programs would remain suspended until further notice
because of increased levels of positive COVID-19 cases. He
states that he missed his doctor’s appointment that was
scheduled for 9:30 that morning, apparently because of the new
restrictions. He also states that he has not been able to get a
booster shot for COVID.
If he were released, Looney intends to seek residential
treatment for substance abuse at the Antrim House in Antrim, New
Hampshire, and has contacted Melissa Weston there. He intends
to rent his home in Manchester to pay for treatment. He further
states that if his hernia is repaired, he intends to return to
HVAC work. Because the plan is tentative, the probation officer
did not contact the Antrim House.
Discussion
In support of his current motion, Looney again asserts that
he has an extraordinary and compelling reason to support relief
6 under § 3582(c) because he faces increased risk from COVID-19.
He also states, however, that his primary reason is that FCI
Hazelton has been unable to treat his inguinal hernia condition.
The government objects, arguing that COVID-19 no longer poses
the risk that existed before Looney was vaccinated and that
Looney has been provided and offered appropriate treatment for
his hernia condition. In addition, the government contends that
the § 3553(a) factors do not support release.
A. Extraordinary and Compelling Reason Based on Risk Due to COVID-19
Looney contends that he has demonstrated an extraordinary
and compelling reason for release because his health conditions
put him at increased risk of a poor outcome if he were to
contract COVID-19. He argues that although he is vaccinated and
the majority of other inmates at FCI Hazelton are vaccinated, a
risk still exists, particularly because he has not received the
booster. The government provides evidence that the risk of
contracting COVID-19 and of having serious consequences is
greatly reduced by vaccination.
Courts that have considered whether the COVID-19 pandemic
presents an extraordinary and compelling reason for release of a
vaccinated inmate who has other comorbidities for COVID-19, have
determined that it does not. See United States v. Traylor, 16
7 F.4th 485, 487 (6th Cir. 2021); United States v. Broadfield, 5
F.4th 801, 802 (7th Cir. 2021); United States v. Ibarra-Loera,
2021 WL 5531196, at *8 (E.D. Tex. Nov. 24, 2021) (citing cases);
but see United States v. Johnson, 2021 WL 5494527, at *12-*13
(D. Md. Nov. 23, 2021) (concluding that particular inmate showed
eligibility for release despite vaccination). “Vaccinated
prisoners are not at greater risk of COVID-19 than other
vaccinated persons.” Id.; see also United States v. Jefferson,
2021 WL 4279626, at *2 (3d Cir. Sept. 21, 2021).
In this case, Looney is vaccinated and is housed in a
facility where more than half of the inmates are vaccinated.
Looney represents that he has not yet received a booster, FCI
Hazelton is administering boosters, and the BOP guidance on
COVID-19 vaccines provides that inmates such as Looney should be
offered the booster. See COVID-19 Vaccine Guidance, Federal
Bureau of Prisons, Clinical Guidance, Oct. 13, 2021. The new
conditions at FCI Hazelton with more positive COVID-19 cases in
Looney’s unit may increase his risk of exposure but also show
the measures the prison is taking to prevent exposure. Despite
the possibility of a breakthrough infection, Looney is
vaccinated and has not shown that his medical condition is an
extraordinary and compelling reason for release under § 3582(c).
8 B. Extraordinary and Compelling Reason Based on Hernia Condition
Looney contends that the health services at FCI Hazelton
have not and cannot provided treatment for his hernia condition
because of the burden of dealing with COVID cases. He asserts
that his hernia condition is serious, even life threatening.
For that reason, Looney argues that his need for treatment is an
extraordinary and compelling reason to release him so that he
can find medical treatment outside of prison. The government
disagrees.
Contrary to Looney’s theory, the record shows that he has
received medical services for his hernia condition, including
medication and testing. He missed the appointment scheduled by
his doctor in July for abdominal imaging, which was rescheduled.
He made no requests for medical care between August and October
of 2021. When he complained in October about stomach cramps and
chest pain, his unit was directed to send him to health
services, but he did not go.
Based on the third addenda, Looney had a doctor’s
appointment scheduled for 9:30 a.m. on November 29. He
apparently was not able to get to that appointment because of
the restrictions imposed on his unit. That appointment will be
rescheduled when the restrictions are lifted. Looney has not
shown that the prison would be unable to respond to an emergency
9 if that should arise during the COVID-19 restrictions.
Looney has not established that he has a life-threatening
hernia condition, as he alleges, that is not being treated at
FCI Hazelton. Instead, the record and Looney’s filings show
that he is receiving treatment for his hernia condition and
further treatment is pending. Although restrictions because of
COVID-19 apparently have delayed his doctor’s appointment, the
prison is providing treatment within the necessary parameters.
Therefore, Looney has not shown an extraordinary and compelling
reason for release based on his hernia condition.
C. Section 3553(a) Factors
Even if Looney were able to demonstrate an extraordinary
and compelling reason to support a reduction of his sentence
under § 3582(c), the applicable factors under § 3553(a) weigh
against that result. 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.4 The first factor directs the sentencing court to
4 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
10 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).
The court considered the § 3553(a) factors when Looney was
sentenced to 120 months in prison, which was an appropriate
sentence for his serious drug crime, involving fentanyl. The
court considered the factors again for purposes of his first
motion pursuant to § 3582(c)(1)(A) and concluded that a
reduction of his sentence was not appropriate. To avoid that
outcome here, Looney notes that he has now served more of his
sentence, still has not had any disciplinary reports, has
completed a variety of classes and programs, and may qualify for
a reduced security classification.
directs courts to consider the defendant’s restitution obligations.
11 Looney was arrested on state drug charges in July of 2017,
involving 285 grams of fentanyl. He was later arrested on
federal charge of possession of a controlled substance with
intent to distribute and pleaded guilty in May of 2018.
Looney’s criminal history goes back to 1983 and includes many
drug offenses along with a conviction for assault on a police
officer and others in 2000. He continued his criminal conduct,
including the drug offense in this case, while on parole for the
assault conviction.
Despite his good disciplinary record and his participation
in classes and programs while incarcerated, which are
commendable, Looney’s criminal history weighs against release.
In addition, he has not yet completed even half of his sentence,
which was an appropriate sentence for his crime. As such, the §
3553(a) factors continue to weigh against relief under §
3582(c)(1)(A).
Conclusion
For the foregoing reasons, Looney’s motion for relief under
§ 3284(c)(1)(A) (document no. 27) is denied.
SO ORDERED.
______________________________ Joseph A DiClerico, Jr. United States District Judge December 6, 2021 cc: Counsel of record.