USA v. Fysh

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 18-cr-131-1-SM
Opinion No. 2020 DNH 161
Katie Fysh
ORDER
Defendant’s motion for “compassionate release” from
incarceration under the First Step Act, 18 U.S.C. §
3582(a)(1)(A), given the COVID-19 pandemic, is properly before
the court as defendant has exhausted available administrative
remedies. 	Doc. No. 40.
The burden is on defendant to show that she is entitled to
relief, that is 1) that extraordinary and compelling reasons
warrant a reduction in her sentence, and 2) such a reduction
would be consistent with the sentencing factors set out in 18
U.S.C. § 3553(e) as well as Sentencing Commission Policies
(though that is not strictly required under the First Step Act).
Here, the government concedes that defendant’s medical
conditions place her in a high-risk category should she contract
COVID-19, and that defendant has met her burden to show
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“extraordinary and compelling” reasons warranting sentence
reduction. 	But, says the government, the sentencing factors
weigh heavily against defendant’s early release, particularly
the danger defendant poses to the community. 	See 18 U.S.C. §
3142(g); USSG § 1B1.13(2).
As of August 25, 2020, two staff member, and no inmates
tested positive for the virus, and risk management procedures at
FCF Hazelton, where defendant is incarcerated, have been both
extensive and largely successful in controlling the spread of
the virus. 	The two staff members who tested positive do not
interact with inmates. 	The current risk of contracting the
virus is low. 	And, defendant’s history strongly militates
against release.
Defendant was convicted of conspiracy to distribute and
possess with the intent to distribute the controlled substance
Fentanyl, in violation of 28 U.S.C. § 846 and 841(a). 	She has
served less than half of her 87-month sentence, has a history of
recidivism (CHC III), and she has not met her burden to show
that she no longer poses a danger to the safety of the
community. 	In addition, defendant’s early release would, under
these circumstances, be inconsistent with the sentencing goals
of promoting respect for the law, imposing a just punishment,
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protecting the public, and providing for both general and
specific deterrence. 	18 U.S.C. § 3553(a).
Conclusion
Given the current low risk of community spread of the virus
in the facility, the danger to public safety defendant would
pose if released, and the sentencing factors militating against
defendant’s early release, the motion for compassionate release
under the First Step Act is hereby denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
September 16, 2020
cc: 	Georgiana MacDonald, AUSA
Keren E. Goldenberg, Esq.
U.S. Probation
U.S. Marshal
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