USA v. GORDON

1
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
v. 	) 	1:19-cr-00007-JAW
)
DOUGLAS GORDON 	)
ORDER ON SECOND MOTION FOR COMPASSIONATE RELEASE
The Court rejects a defendant’s second motion for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(A) because the 18 U.S.C. § 3553(a) factors counsel
against his early release and he failed to present any “extraordinary and compelling
reasons” for his early release.
I. 	BACKGROUND
On January 17, 2019, a federal grand jury indicted Douglas Gordon for two
counts 	of 	criminal 	copyright 	infringement, 	alleged 	violations 	of 	17 	U.S.C. 	§
506(a)(1)(B) and 18 U.S.C. § 2319(a).1 	Indictment (ECF No. 2). 	On April 17, 2019,
the grand jury issued a superseding indictment including the initial two counts of
criminal copyright infringement and adding a count for a mail fraud scheme and
artifice, an alleged violation of 18 U.S.C. § 1341. 	Superseding Indictment (ECF No.
44). A seven-day jury trial was held from October 21, 2019 to October 29, 2019, and
on the last day the jury issued a guilty verdict on all three counts. Jury Verdict (ECF
No. 162).
1 	A detailed account of the factual history may be found at United States v. Gordon, 37 F.4th
767, 769-70 (1st Cir. 2022).
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On December 22, 2020, the Court sentenced Douglas Gordon to thirty-six
months of concurrent incarceration on Counts I and II and sixty months of concurrent
incarceration on Count III, one year of concurrent supervised release on criminal
copyright infringement Counts I and II and two years of concurrent supervised
release on mail fraud Count III, no fine, $554.90 in restitution, and $300 in special
assessments. 	J. 	(ECF No. 216). 	According to the Bureau of Prisons’ website, Mr.
Gordon is due to be released on February 20, 2024. See Inmate Locator, BUREAU OF
P RISONS , https://www.bop.gov/inmateloc/ (last visited 12/10/2023).
On August 1, 2022, Mr. Gordon filed a motion for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(a). Def.’s Mot. for Compassionate Release Pursuant
to 18 U.S.C. § 3582(c)(1)(a) (ECF No. 230). On October 31, 2022, the Court issued a
twenty-six-page order, dismissing without prejudice Mr. Gordon’s motion. Order on
Mot. for Compassionate Release (ECF No. 242).
On December 12, 2022, less than six weeks after the Court’s rejection of his
motion for compassionate release, Mr. Gordon filed another order for compassionate
release. Emer. Mot. for Compassionate Release Pursuant to 18 U.S.C. § 3582(c)(1)(a)
(ECF No. 243). 	The Government filed its opposition on December 27, 2022. 	Gov’t’s
Resp. in Opp’n to Mot. for Compassionate Release (ECF No. 244). Mr. Gordon replied
on January 6, 2023. Def.’s Reply to Gov’t’s Resp. in Opp’n to Mot. for Compassionate
Release (ECF No. 245). On March 28, 2023, the Court dismissed Mr. Gordon’s motion
for compassionate release because he failed to exhaust administrative remedies.
Order on Mot. for Compassionate Release (ECF No. 246).
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On May 15, 2023, Mr. Gordon filed yet another motion for compassionate
release. Mot. for Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(1)([A]) (ECF No.
247) (Def.’s Mot.). On June 5, 2023, Mr. Gordon filed an additional attachment to his
May 15, 2023 motion for compassionate release. 	Mot. for Sentence Reduction
Pursuant to 18 U.S.C. § 3582(c)(1)(a), Attach. 1 (ECF No. 254) (Def.’s Attach.). 	On
June 27, 2023, the Government filed its opposition. Gov’t’s Resp. in Opp’n to Mot. for
Compassionate Release (ECF No. 256) (Gov’t’s Opp’n). Mr. Gordon did not file a reply.
II. 	THE PARTIES’ POSITIONS
A. 	Douglas Gordon’s Motion
In his motion, Mr. Gordon acknowledges that his medical conditions are “well
documented” and have not changed since his earlier requests for compassionate
release. Def.’s Mot. at 2. But he says that his conditions of confinement have changed
in that “Lewisburg RDAP Camp is laid out differently than Devens.” 	Id. at 3. 	He
writes that he is “required to WALK from the living quarters to the administration
building which is over 300 yards (estimated) away several times a day and because
everyone in prison is required to have a job, Mr. Gordon walks an additional 200
yards (again estimated) to the Power House five days per week.” Id. (capitalization
in original). Mr. Gordon says that “[t]his in conjunction with an artificial limb, which
after nearly two years of incarceration, still has not been properly calibrated and
creates extensive sores on his stump daily.” Id. Mr. Gordon expressed concern about
“a very serious chance of infection as the hot summer months approach.” Id.
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Next, Mr. Gordon cites Kisor v. Wilkie, 134 S. Ct. 2400 (2019) and United States
v. Banks, 55 F.4th 246 (3d Cir. 2022) to support his argument that “if he was
sentenced today, in the 3 rd circuit, he would not have been given 60 months with
guidance from ‘Kisor’ and “Banks.’” Def.’s Mot. at 3.
Finally, he argues that the Court should consider his fair use of orphaned
works and the “first of its kind” federal prosecution. 	Id. at 3. 	Mr. Gordon worries
that federal courts will give “librarians and archivists long prison sentences because
prosecutors can ‘prove’ criminal copyright infringement overrides 17 U.S.C. sections
107 & 108 with the help of the controversial ‘Willfully Blind’ doctrine.” Id. at 3-4.2
B. 	The Government’s Response
The Government notes that Mr. Gordon’s administrative request for home
detention does not mention the issues he is now raising in his pending motion for
compassionate release. Gov’t’s Opp’n at 10-11. Citing United States v. Williams, 987
F.3d 700, 703 (7th Cir. 2021), the Government says that Mr. Gordon failed to mention
the issues he is now raising before this Court before the Bureau of Prisons (BOP) and
therefore is barred from proceeding for failure to fully exhaust his administrative
remedies. Gov’t’s Opp’n at 10-11.
Next, the Government disputes Mr. Gordon’s contention that there has been a
change in the sentencing law applicable to his case. 	Id. at 11-12. 	Turning to Mr.
2 	In his June 5, 2023 filing, Mr. Douglas explained his inability to copy the Warden’s denial of
his request for home confinement by saying that the prison copier is broken and that he would send a
copy of the Warden’s denial once he is able to make a copy. Def.’s Attach. at 1. In its response, the
Government filed a copy of Mr. Douglas’ request for home confinement and the Warden’s response.
Gov’t’s Opp’n, Attach. 1, Admin. Remedy Resp. (BOP Resp.) & Reduction in Sentence Eligibility Review.
(Def.’s BOP Req.)
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Gordon’s arguments about his amputated leg, the Government notes that in fixing
his original sentence, the Court considered the burden that his amputation would
pose and therefore his current issues cannot be deemed extraordinary. 	Id. at 12.
Finally, turning to the factors in 18 U.S.C. § 3553(a), the Government maintains that
Mr. Gordon presents a danger to society because he has continued to argue that his
conviction was unjust and illegal. Id. at 13-14.
III. 	DISCUSSION
A. 	Administrative Exhaustion
Mr. Gordon’s request to the Bureau of Prisons (BOP) for compassionate release
reads:
I request to be considered for home detention3 under the CARES ACT.
I have many qualifying medical conditions, such as:
1) High Blood Pressure
2) History of Strokes
3) History of Kidney Disease
4) Right-leg AK Amputation.
Def.’s BOP Req. at 1. In its denial, the BOP concluded that “[a]ccording to your most
recent medical review, you do not have a debilitated medical condition,” explaining
that his medical condition “is not a debilitating medical condition, your condition is
not an incurable, progressive illness, and you do not suffer from a debilitating injury
from which you will not recover.” BOP Resp. at 1. The BOP wrote that Mr. Gordon
3 	In Mr. Gordon’s administrative request, he asks the BOP to release him to home confinement.
Def.’s BOP Req. at 1. In his motion before this Court, he asks for a time served sentence. Def.’s Mot.
at 4. In United States v. Texeira-Nieves, 23 F.4th 48 (1st Cir. 2022), the First Circuit held that “‘the
absence of’ any reference to modifying a defendant’s location of confinement denotes that section
3582(c)(1)A) does not afford a district court the authority to order a defendant to serve his unmodified
sentence at home.” Id. at 59. Thus, at least as far as the relief Mr. Gordon requested of the BOP, the
Court does not have the authority to grant it.
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is “not completely disabled, and [is] able to perform activities of daily living and not
totally confined to a bed or chair.” 	Id. 	The BOP concluded that it “can provide
conventional treatment to [his] medical concerns.” Id.
A court may consider a defendant’s motion for compassionate release “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 after “the lapse of 30 days from
the receipt of such a request by the warden of the defendant’s facility, whichever is
earlier.” 18 U.S.C. § 3582(c)(1)(A); United States v. Hassan, No. 2:16-cr-00084-JDL,
2020 U.S. Dist. LEXIS 195468, at *3 (D. Me. Oct. 21, 2020)). Under First Circuit law,
§ 3582(c)(1)(A)’s exhaustion requirement is “a non-jurisdictional claim-processing
rule.” United States v. Texeira-Nieves, 23 F.4th 48, 53 (1st Cir. 2022). Administrative
exhaustion is “mandatory unless waived or conceded by the Government.” 	United
States v. Perez-Crisostomo, 2023 U.S. Dist. LEXIS 96877, at *6 (D. Me. June 5, 2023)
(citing Hassan, 2020 U.S. Dist. LEXIS 195468, at *3).
Here, Mr. Gordon’s motion for compassionate release raises issues he failed to
present to the BOP. 	In his motion, Mr. Gordon discusses Kisor and Banks and the
allegedly “first of its kind” prosecution. He did not raise those issues with the BOP.
In his request for BOP review, Mr. Gordon mentions his right leg amputation, but he
similarly did not inform the BOP that he was having difficulty walking to and from
his job or that his artificial limb was not properly calibrated and therefore was
causing sores on his stump. Thus, although the BOP discussed his medical condition
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generally, it did not respond to the specific issues Mr. Gordon now presses, nor could
the BOP respond to these issues because Mr. Gordon did not raise them.
The First Circuit has not resolved whether a defendant may be barred from
proceeding with a request for compassionate release if he failed to raise with the BOP
the issues he is presenting to the district court. United States v. Waite, No. 2:18-cr-
00113-GZS, 2022 U.S. Dist. LEXIS 133073, at *5 (D. Me. Jul. 27, 2022) (“The question
of whether ‘issue exhaustion’ applies in the context of compassionate release remains
an open question in the First Circuit”); accord Texeira-Nieves, 23 F.4th at 53 (“The
question of whether and to what extent issue exhaustion applies to judicial review of
compassionate-release motions is freighted with uncertainty. . . . we need not resolve
that question today”).
Other Circuit courts of appeal have resolved this issue. In 2021, the Seventh
Circuit ruled that to proceed with a motion for compassionate release in a district
court, 	a 	defendant 	“is 	required 	to 	present 	the 	same 	or 	similar 	ground 	for
compassionate release in a request to the [BOP] as in a motion to the court.” United
States v. Williams, 987 F.3d 700, 703 (7th Cir. 2021); accord United States v.
Gieswein, 832 Fed. Appx. 576, 578 (10th Cir. 2021).
If issue exhaustion applied to motions for compassionate release in the First
Circuit, this Court would conclude that Mr. Gordon’s motion for compassionate
release is barred for failure to “fully exhaust[]” his administrative remedies. 	18
U.S.C. § 3582(c)(1)(A). The essence of Mr. Gordon’s medical claim for compassionate
release involves issues uniquely within BOP’s knowledge, such as the walking
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distances between buildings at USP Lewisburg Camp – RDAP, the current condition
of Mr. Gordon’s stump, what the medical records reflect regarding these complaints,
and whether the BOP could better accommodate Mr. Gordon’s medical condition. But
Mr. Gordon failed to mention these issues before the BOP. 	As the Seventh Circuit
wrote in Williams, the purpose of the exhaustion requirement is “to afford prisons an
opportunity to address issues before they are brought to the federal court.” 987 F.3d
at 703. Here, Mr. Gordon never presented the BOP with the issues he is now raising
before this Court, did not afford them the opportunity to address them, and as such,
he failed to “fully exhaust[] all administrative rights.” See 18 U.S.C. § 3582(c)(1)(A).
However, as issue exhaustion remains an open question in the First Circuit, the
Court turns to the merits of Mr. Gordon’s motion.
B. 	Applicable 18 U.S.C. § 3553(a) Factors
Before reducing a sentence, the Court must find that “extraordinary and
compelling reasons warrant” the movant’s sentence reduction after considering the
factors set forth in 18 U.S.C. § 3553(a)—to the extent they are applicable. 18 U.S.C.
§ 3582(c)(1)(A)(i); 	accord Texeira-Nieves, 23 F.4th at 52 (“Next, the district court
must 	consider 	any 	applicable 	3553(a) 	factors 	and 	‘determine 	whether, 	in 	its
discretion, the reduction … is warranted in whole or in part under the particular
circumstances of the case’”) (quoting United States v. Saccocia, 10 F.4th 1, 4 (1st Cir.
2021)). 	18 U.S.C. § 3582(c)(1)(A) also 	requires any sentence reduction to be
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“consistent with applicable policy statements issued by the Sentencing Commission.”
18 U.S.C. § 3582(c)(1)(A)(ii).4
The Court, then, must begin by considering the factors set forth in 18 U.S.C. §
3553(a) to the extent they are applicable. 	These factors are: “(1) the nature and
circumstances of the offense and the history and characteristics of the defendant”; (2)
“the need for the sentence imposed to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense,” “to afford
adequate deterrence,” “to protect the public from further crimes,” and “to provide the
defendant with needed educational or vocational training, medical care, or other
correctional treatment”; (3) “the kinds of sentences available”; 	(4) “the kinds of
sentencing and sentencing range established for the applicable category of offense
committed by the applicable category of defendant as set forth in the guidelines”; (5)
“any pertinent policy statement”; (6) “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
4 	In United States v. Rivera-Rodríguez, 75 F.4th 1 (1st Cir. 2023), the First Circuit noted that
its caselaw had “clarified that, because (up until recently) the Commission had not issued any policy
statements applicable to the prisoner-initiated motions for compassionate release, district courts ‘ha[d]
discretion, unconstrained by any policy statement currently in effect, to consider whether a prisoner’s
particular reasons are sufficiently extraordinary and compelling to warrant compassionate release.’”
Id. at 18 n. 22.
In the time since, however, “the Sentencing Commission has promulgated new guidelines
relevant for compassionate release motions, which we expect district courts to take heed of when
determining whether an individual meets the statute's requirements for such relief.” 	Id. (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).
The Court takes heed of this change. The Court notes the most recent amendment revises
U.S. SENTENCING GUIDELINES MANUAL § 1B1.13(a) to reflect that a defendant is now authorized to file
a motion under 18 U.S.C. § 3582(c)(1)(A). 	Given this amendment, the policy statement is now
applicable to both defendant- and BOP-filed motions and consequently must be considered in this
defendant-initiated motion.
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similar conduct”; and (7) “the need to provide restitution to any victims in the
offense.” 18 U.S.C. § 3553(a)(1)-(7).
Both the nature and circumstances of the offense and the history and the
characteristics of the defendant counsel against a reduction in sentence. 	For an
extended period, Mr. Gordon flouted federal law, causing hundreds of thousands of
dollars of losses for others through a copyright infringement scheme that included
several people and three websites. 	Before and during trial and years later, even as
his incarcerative sentence reaches its end, Mr. Gordon refuses to take responsibility
for his actions. This reality gives the Court considerable pause.
The second § 3553(a) factor also counsels against reducing Mr. Gordon’s
sentence. 	As Mr. Gordon continues to deny his responsibility, the Court finds it
highly improbable that reducing his sentence would “promote respect for the law,”
“afford adequate deterrence,” or “protect the public from further crimes.” This is all
considered along with being able to provide Mr. Gordon with needed medical care.
However, the BOP has indicated they can support his medical care for the short
period of time before his release, limiting the need to reduce his sentence. Altogether,
this factor also counsels against granting Mr. Gordon’s motion.
The Court considers the third and fourth § 3553(a) factors, kinds of sentences
available and the sentencing range applicable, while it discusses Mr. Gordon’s
medical needs below so it does not repeat that analysis here. See infra at 11-12.
The fifth § 3553(a) factor advises Courts to consider any relevant policy
statements. 	The relevant policy statement here is U.S. SENTENCING G UIDELINES
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MANUAL § 1B1.13 (U.S. SENTENCING C OMM ’N 2023) 	(U.S.S.G). 	It 	provides 	six
categories of reasons courts should consider in determining whether extraordinary
and compelling circumstances exist in a motion for a sentence reduction. The Court
addresses the policy statement below. See infra at 11-12.
The sixth and seventh § 3553(a) factors are not applicable as there are no
claims related to sentence disparities or restitution, so the Court does not consider
them here.
Taken together, any relevant § 3553(a) factors counsel against reducing Mr.
Gordon’s sentence.
C. 	The Merits of Douglas Gordon’s Motion
1. 	Medical Issues5
Regarding Mr. Gordon’s amputation, the Court was aware of and considered
Mr. Gordon’s amputation in fixing his below-guideline sentence.6 Tr. of Proceedings,
Sentencing 62:4-21, 72:13-22 (ECF No. 222). Mr. Gordon faced a guideline sentence
5 	The third and fourth § 3553(a) factors require courts to consider the relevant sentencing
options and sentencing ranges applicable. 	The Court does so in this section as far as they are
applicable.
The fifth § 3553(a) factor requires that courts consider any relevant policy statements. The
relevant United States Sentencing Commission policy statement provides six categories of reasons to
consider when determining whether extraordinary and compelling reasons exist to reduce a sentence.
These 	categories 	are 	the 	defendant’s 	1) 	“medical 	circumstances”, 	2) 	“age”, 	and 	3) 	“family
circumstances”; 4) whether the defendant was the “victim of abuse” while in custody; 5) “other reasons”
similar in gravity as those articulated in (1)-(4); and 6) whether the defendant received an “unusually
long sentence.” Id. at § 1B1.13(b). The Court addresses the relevant category, Mr. Gordon’s medical
circumstances, in this section in compliance with the fifth § 3553(a) factor.
6 	Although Mr. Gordon does not raise his hypertension, history of strokes, and current kidney
disease in his motion, he mentioned these other medical conditions in his administrative request.
Def.’s BOP Req. at 1. 	The Court considered these conditions when it imposed his below-guideline
sentence as all these conditions are mentioned in the PSR. See PSR ¶ 53. The Court referred to his
artificial right leg, strokes, and kidney failure during its recitation of his history and characteristics.
Tr. of Proceedings, Sentencing 62:4-21 (ECF No. 222).
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of 108 to 135 months, Statement of Reasons at 1 (ECF No. 217), and the Court,
considering his amputation, imposed a sentence of only 60 months of incarceration.
J. (ECF No. 216). Although the Court’s sentencing consideration of these factors does
not preclude compassionate release on the same basis, the Court is not convinced that
Mr. Gordon presents “extraordinary and compelling reasons” that “warrant such a
reduction.” 	18 U.S.C. § 3553(c)(1)(A). 	To buttress this conclusion, Mr. Gordon
presented no corroboration of his current medical complaints, and certainly no
medical records that correlate whatever issues he is having with his stump to the
conditions at Lewisburg.
2. 	Intended or Actual Loss
Regarding Mr. Gordon’s arguments about Kisor and Banks, the Court reviewed
both cases and the First Circuit’s response. 	In Kisor, the United States Supreme
Court 	addressed 	judicial 	deference 	to 	an 	agency’s 	interpretations 	of 	its 	own
regulations. 	139 S. Ct. at 2415. 	Following Kisor, in Banks, the Third Circuit
concluded 	that 	“the 	loss 	enhancement 	in 	the 	Guideline’s 	application 	notes
impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”
55 F.4th at 250. In Mr. Gordon’s case, the Probation Office (PO) found that the loss
was $638,659.60, and he received a fourteen-level enhancement under U.S.S.G. §
2B1.1(b)(1)(H). 	See PSR ¶ 31; Statement of Reasons, Attach. 1, Findings Affecting
Sentence (ECF No. 217). 	The PO concluded that Mr. Gordon made $638,659.60 in
sales from all three of his websites, which reflected the lost sales sustained by the
victims in this case. PSR ¶ 19.
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On August 9, 2023, the First Circuit addressed this issue in the context of a
direct appeal. 	United States v. Gadson, 77 F.4th 16 (1st Cir. 2023). 	Faced with a
sentencing in which the “intended loss was greater than the actual loss,” id. at 20,
the First Circuit affirmed a sentence based on intended loss. 	Id. at 23. 	In other
words, after Kisor and Banks, the First Circuit concluded that the district court did
not commit clear error by using intended loss. Id. at 22. The Court is bound by this
precedent.
In addition, Mr. Gordon has not demonstrated why under Banks, his actual
sales of copyrighted movies would not be an accurate reflection of the actual loss to
his victims in lost sales. 	This is particularly true since the First Circuit addressed
Mr. Gordon’s objections to the loss calculations, rejected his contentions, and affirmed
the fourteen-level increase loss calculation under U.S.S.G. § 2B1.1(b)(1)(H). 	United
States v. Gordon, 37 F.4th 767, 772-73 (1st Cir. 2022).
3. 	Wrongful Conviction
Finally, the Court firmly rejects Mr. Gordon’s insistence, even at this late
stage, that his willful copyright infringements were somehow perfectly legal because
they made fair use of so-called orphaned works or that Mr. Gordon was the innocent
victim 	of 	prosecutorial 	vindictiveness. 	Mr. 	Gordon’s 	decision 	to 	press 	these
unfounded and judicially rejected allegations gives the Court considerable pause as
to whether the sentence the Court imposed has sufficiently deterred him from future
criminal conduct. 	See 18 U.S.C. § 3553(a)(2)(B) (“The court, in determining the
particular sentence to be imposed, shall consider . . . (2) the need for the sentence
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imposed — (B) to afford adequate deterrence to criminal conduct”). His frivolous and
repetitious arguments run hard against his early release.
IV. 	CONCLUSION
The Court DENIES Douglas Gordon’s Mot. for Sentence Reduction Pursuant
to 18 U.S.C. § 3582(c)(1)(A) (ECF No. 247).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 15th day of December, 2023
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