USA v. Durham

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
Case No. 07-cr-44-1-PB
v. 	Opinion No. 2020 DNH 222
Arthur Durham
MEMORANDUM AND ORDER
Defendant Arthur Durham moves for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(A) (“Section 3582(c)(1)(A)”),
as amended by Section 603(b)(1) of the First Step Act of 2018
(“First Step Act”), Pub. L. No. 115-391, § 603(b)(1), 132 Stat.
5194, 5239. 	For the following reasons, I deny Durham’s motion.
I. 	STANDARD OF REVIEW
Following its amendment by the First Step Act, the
compassionate release statute, codified as Section
3582(c)(1)(A), provides that
the court, upon motion of the Director of the Bureau of
Prisons [(“BOP”)], or upon motion of the defendant after
the 	defendant 	has 	fully 	exhausted 	all 	administrative
rights to appeal a failure of the [BOP] to bring a motion
on the defendant’s behalf or the lapse of [thirty] days
from the receipt of such a request by the warden of the
defendant’s 	facility, 	whichever 	is 	earlier, 	may 	reduce
the 	term 	of 	imprisonment 	. . . after 	considering 	the
factors 	set 	forth 	in 	. 	. 	. 	[18 	U.S.C. 	§] 	3553(a)
[(“Section 	3553(a)”)] 	to 	the 	extent 	that 	they 	are
applicable . . . .
§ 3582(c)(1)(A). 	The court may reduce a defendant’s prison
sentence if it finds that “extraordinary and compelling reasons
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warrant such a reduction,” id. § 3582(c)(1)(A)(i), and that
“such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission,” id.
§ 3582(c)(1)(A).
The Sentencing Commission’s policy statement (“the policy
statement”), which was promulgated prior to the passage of the
First Step Act, provides as follows:
Upon motion of the Director of the [BOP] under [Section
3582(c)(1)(A)], 	the 	court 	may 	reduce 	a 	term 	of
imprisonment 	(and 	may 	impose 	a 	term 	of 	supervised
release with or without conditions that does not exceed
the 	unserved 	portion 	of 	the 	original 	term 	of
imprisonment) 	if, 	after 	considering 	the 	factors 	set
forth in [Section 3553(a)], to the extent that they are
applicable, the court determines that —
(1) 	(A) 	Extraordinary 	and 	compelling 	reasons 	warrant
the reduction; . . .
(2) 	The 	defendant 	is 	not 	a 	danger 	to 	the 	safety 	of 	any
other 	person 	or 	to 	the 	community, 	as 	provided 	in 	18
U.S.C. § 3142(g); and
(3) 	The 	reduction 	is 	consistent 	with 	this 	policy
statement.
U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S.
Sentencing Comm’n 2018). 	The commentary to the policy statement
further explains what is meant by “extraordinary and compelling
reasons.” 	It states, in relevant part, that “[p]rovided the
defendant meets the requirements of subdivision (2),
extraordinary and compelling reasons exist,” USSG § 1B1.13 cmt.
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n.1, when “[t]he defendant is . . . suffering from a serious
physical or medical condition,” id. § 1B1.13 cmt. n.1(A)(ii)(I).
District courts are divided on whether the policy statement
remains binding following the enactment of the First Step Act.
Cf. United States v. Fox, No. 2:14-cr-03-DBH, 2019 WL 3046086,
at *2 (D. Me. July 11, 2019) (collecting cases). 	I am not aware
of any court that has chosen to disregard the policy statement
entirely. 	I conclude, instead, that it “provides helpful
guidance on the factors that support compassionate release,
although it is not ultimately conclusive given the statutory
change.” 	Id. at *3.
II. 	BACKGROUND
In 2007, Durham pleaded guilty to four counts of Hobbs Act
robbery and two counts of conspiracy to commit Hobbs Act
robbery, in violation of 18 U.S.C. § 1951, and one count of use
of a firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c). 	See Gov’t’s Objection to Def.’s Mot. for
Release, Doc. No. 48 at 1. 	Between March and November of 2006,
Durham and an accomplice forcibly robbed a restaurant, two gas
stations, and a motel. 	Id. at 6. 	During the course of those
four robberies, the defendant at various times threatened that
he had a weapon, forcibly grabbed a cashier, and pulled a 9mm
handgun on a lobby attendant. 	Id.
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Durham’s previous criminal activity was also serious and
extensive. 	It included a state conviction for criminal
threatening, for which he was still on parole at the time of his
arrest on these federal charges. 	See Doc. No. 48 at 6. 	He
pleaded guilty to ten counts of burglary committed in 1984 and
eleven counts of burglary committed in 1985. 	See id. 	He told
law enforcement that he committed these burglaries to support
his crack cocaine addiction. 	See id. at 6-7. 	Due to Durham’s
extensive criminal history, I sentenced Durham to a term of
imprisonment of 192 months, a term significantly below the
federal sentencing guideline recommendations at the time of his
sentencing. 	See Mot. for Compassionate Release, Doc. No. 46 at
1; Doc. No. 48 at 7. 	He has served approximately 156 months of
his sentence. 	See Doc. No. 48 at 1-2.
Durham is currently incarcerated at United States
Penitentiary (“USP”) Terre Haute, Indiana. 	See Doc. No. 46 at
2. 	The BOP, which manages USP Terre Haute, has developed and
implemented a multi-point plan to address the COVID-19 pandemic.
See Doc. No. 48 at 2. 	Under the plan, the BOP has implemented
quarantine and isolation protocols, restricted inmate transfers,
reduced overcrowding, limited group gatherings, introduced face
mask distribution to intimates, and suspended visitation and
tours, among other measures. 	See id. 	Despite these protocols,
according to the BOP’s website, as of December 29, there were
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458 active cases of COVID-19 in the inmate population and 21
active cases among staff at this facility. 1
Durham is fifty-five years old and suffers from asthma,
cirrhosis of the liver, Hepatitis B, Hepatitis C, hypertension,
chronic obstructive pulmonary disease (“COPD”), folate
deficiency anemia, gastritis, and hyperlipidemia. 	See Doc. No.
46 at 3; Ex. A to Def.’s Mot. for Compassionate Release, Doc.
No. 46-1 at 21. 	Citing his age and medical conditions, Durham
submitted a request for compassionate release to the BOP on
August 31, 2020. 	See Ex. C to Mot. for Compassionate Release,
Doc. No. 46-3. 	After the BOP failed to respond in the required
30-day period, Durham then filed this motion for compassionate
release on November 7, 2020, requesting a reduction in his
sentence to allow for his immediate release. 	See Doc. No. 46 at
1. 	I held a hearing on the motion on December 15, 2020.
III. DISCUSSION
Durham argues that I should order his release because his
medical ailments, including COPD, asthma, hypertension, and
liver disease, place him at a high risk of severe illness for
COVID-19, and a reduction of his sentence would not undermine
Section 3553(a)’s sentencing factors. 	See Doc. No. 46 at 3-8.
The government opposes Durham’s motion. 	See Doc. No. 48.
1 COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/index.jsp
(last visited Dec. 29, 2020).
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Because the BOP failed to respond to his administrative appeal
within thirty days, Durham has exhausted his administrative
rights, and so his motion is properly before me under Section
3582(c)(1)(A).
Durham has met his burden of demonstrating that
“extraordinary and compelling reasons” exist that would render
him eligible for compassionate release, as conceded by the
government. 	See § 3582(c)(1)(A); Doc. No. 48 at 4-5. 	According
to the Centers for Disease Control and Prevention (“CDC”), COPD
places individuals at an increased risk for severe illness if
they contract COVID-19. 2 	Further, the CDC also warns that
asthma, hypertension, and liver disease might place individuals
at an increased risk for severe illness if they contract COVID-
19. 3 	At fifty-five years old, Durham is not in the highest risk
category due to his age, but his age does create additional risk
for severe illness. 4 	On similar facts, this court and other
district courts have found that COPD, in combination with other
risk factors, including asthma, hypertension, and older age,
justifies a finding of an “extraordinary and compelling reason.”
2 People with Certain Medical Conditions, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last visited
Dec. 29, 2020).
3 Id.
4 Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-
extra-precautions/older-adults.html (last visited Dec. 29,
2020).
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See United States v. Dufresne, 2020 DNH 169, 2020 WL 5803224, at
*2 (D.N.H. Sept. 29, 2020) (collecting cases finding
“extraordinary and compelling circumstances” during COVID-19
pandemic for defendants with COPD and additional chronic
conditions); United States v. Eisenberg, 471 F. Supp. 3d 436,
440 (D.N.H. 2020) (citing United States v. Griggs, 462 F. Supp.
3d 610, 619 (D.S.C. 2020) (collecting cases granting
compassionate release to older individuals with multiple
preexisting health conditions)). 	I therefore accept, as the
government concedes, that Durham’s medical conditions increase
his relative risk of COVID-19-related complications. 	Further,
given the high number of cases in his facility among both
inmates and staff, and the fact that this number has rapidly
increased in the last 30 days, I conclude that there is a high
risk of Durham contracting COVID-19 at USP Terre Haute. 5
However, I must also consider the sentencing factors under
Section 3553(a). 	See § 3582(c)(1)(A). 	The factors include the
nature and circumstances of the offense; the history and
5 As I have previously stated, I also acknowledge that confirmed
cases are different from the number of actual cases. 	See United
States v. Amarrah, 458 F. Supp. 3d 611, 618 (E.D. Mich. 2020)
(“Zero confirmed COVID-19 cases is not the same thing as zero
COVID-19 cases. The Bureau of Prisons recently discovered this
when it found that 70 percent of the inmates it tested were
positive for the disease.”). 	However, Durham does not challenge
this statistic and has presented no evidence that the reported
number of cases substantially under-reports the actual number of
cases in the facility.
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characteristics of the defendant; the need for the sentence to
reflect the seriousness of the offense, promote respect for the
law, provide just punishment, afford adequate deterrence, and
protect the public from future crimes by the defendant; and the
need to avoid unwarranted sentencing disparities. 	See §
3553(a). 	These factors do not support Durham’s early release.
There is no doubt that Durham committed serious crimes. 	He
was involved in four separate robberies. 	In two of the
robberies, Durham and his accomplice threated that they had a
gun. 	In a third robbery, Durham physically grabbed a cashier by
his waist to forcibly push him towards the cash register. 	In
the last robbery, Durham pulled a handgun on a lobby attendant,
physically threatening the attendant with the weapon. 	These
crimes occurred mere months after Durham was released following
his incarceration on a state conviction for criminal threatening
of a former girlfriend. 	The sentence I originally imposed
reflected the serious nature of Durham’s offenses and was well
below the federal sentencing guidelines at the time. 	Reducing
that sentence would not be consistent with the goals of
sentencing, including promoting respect for the law, providing
just punishment, deterring further criminal conduct, and
protecting the public. 	Accordingly, I conclude that the
interests of justice would not be served if his sentence were
reduced.
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I recognize that Durham has made efforts to rehabilitate
himself during the last few years of his incarceration and, for
the past two years, has avoided citations for misconduct. 	There
are certainly signs that Durham has invested in his own
rehabilitation and education. 	He has completed a 40-hour drug
program, as well as several ACE, recreational, and pre-release
programs. 	See Doc. No. 46 at 7. 	Although he struggled with
disciplinary infractions in the first several years of his
incarceration, since 2014 his disciplinary citations have been
relatively minor, aside from a citation in 2017 for introducing
drugs into the facility. 	See Doc. No. 48 at 8-9. 	His conduct
in prison in the past two years has been commendable. 	At
present, however, his efforts do not alter the fact that his
sentence remains no greater than necessary to achieve the
purposes of the sentencing statute. 	Consideration of Section
3553(a)’s factors, therefore, weighs against granting any
reduction in Durham’s sentence.
Although I am denying Durham’s motion for compassionate
release, I do recommend his placement in a medium security
facility as soon as it is safe to do so.
IV. 	CONCLUSION
For the foregoing reasons, Durham’s motion for
compassionate release (Doc. No. 46) is denied.
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SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
December 29, 2020
cc: 	Aaron Gingrande, Esq.
Jeffrey S. Levin, Esq.
U.S. Marshal
U.S. Probation
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