USA v. GORDON

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
)
v. 	) 	No. 1:19-cr-00007-JAW
)
DOUGLAS GORDON 	)
)
Defendant. 	)
ORDER ON MOTION FOR COMPASSIONATE RELEASE
An inmate serving a five-year term of imprisonment moves for compassionate
release pursuant to 18 U.S.C. § 3582(c)(1)(A). 	The Court dismisses the motion
without prejudice because the inmate’s health does not present extraordinary and
compelling reasons for compassionate release. In reaching this conclusion, the Court
weighs the section 3553(a) factors against release in light of the pervasiveness and
longevity of the crimes, the inmate’s insistence that he did not commit the crimes of
which he was convicted and instead was the subject of a vindictive federal prosecution
and an odd insinuation about the investigation and prosecution of an unrelated theft
ring, and finally the fact that the inmate has yet to serve a substantial portion of his
sentence.
I. 	BACKGROUND
A. 	Factual 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. 	§
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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 one 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 October 29, 2019, the jury issued a guilty verdict on all three counts. Jury Verdict
(ECF No. 162).
At the December 22, 2020, Zoom sentencing hearing the Court made the
following guideline calculations, grouping Counts 1, 2, and 3: Mr. Gordon’s guideline
sentencing range was from 108 to 135 months, the guideline term of supervised
release was one year as to Counts 1 and 2 and one to three years as to Count 3, a fine
range 	of 	$30,000 	to 	$250,000, 	a 	mandatory 	special 	assessment 	of 	$300, 	and
mandatory restitution. 	Notice of Filing of Official Tr. of Proceedings at 45:21-46:8
(ECF No. 222) (Sentencing Tr.); Statement of Reasons, Attach. 1, Findings Affecting
Sentencing (ECF No. 217). The Court sentenced Mr. Gordon to five years (60 months)
imprisonment (36 months on Counts 1 and 2 and 60 months on Count 3 to be served
concurrently), three years of supervised release, no fine, restitution in the amount of
$554.90, and a $300 special assessment. 	J. at 2-3, 6 (ECF No. 216); Sentencing Tr.
at 74:5-18. The Court recommended that Mr. Gordon be placed in a BOP facility that
can assist his medical needs. Sentencing Tr. at 74:20-22. Mr. Gordon is now 55 years
1 	A detailed account of the factual history can be found at United States v. Gordon, 37 F.4th 767,
769-70 (1st Cir. 2022).
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old and is incarcerated at FMC Devens. 	Fed. Bureau of Prisons, Find An Inmate,
https://www.bop.gov/inmateloc/ (last visited Sept. 26, 2022).
B. 	Procedural History
On January 6, 2021, Mr. Gordon appealed his conviction and sentence to the
Court of Appeals for the First Circuit, Notice of Appeal (ECF No. 218), arguing the
sentencing calculation was faulty and there was insufficient evidence for counts one
and two. 	United States v. Gordon, 37 F.4th 767, 769 (1st Cir. 2022) (ECF No. 227).
On June 26, 2022, the First Circuit affirmed the judgment of the district court and
upheld the verdicts and sentence. Id. at 775.
On August 1, 2022, Mr. Gordon filed a pro se motion for compassionate
release.2 	Mot. for Compassionate Release re: First Step Act (ECF No. 230) (Def.’s
Mot.). On August 4, 2022, the Court appointed counsel for Mr. Gordon. Appointment
of Counsel and Scheduling Order (ECF No. 233). 	On August 15, 2022, Mr. Gordon
filed his intent to proceed on the initial petition. 	Notice of Intent to Proceed on the
Initial Petition (ECF No. 234). 	On August 22, 2022, the Government responded in
opposition to Mr. Gordon’s motion for compassionate release. Gov’t’s Resp. to Mot. for
Compassionate Release (ECF No. 235) (Gov’t’s Opp’n). 	Mr. Gordon replied on
September 20, 2022. Reply to Response (ECF No. 239) (Def.’s Reply).
II. 	THE PARTIES’ POSITIONS
A. 	Douglas Gordon’s Motion for Compassionate Release
2 	Mr. Gordon satisfies the exhaustion requirement because he submitted a request to the
warden of FMC Devens for compassionate release on August 31, 2021, which was denied. Def.’s Mot.,
Attach. 2, Inmate Request for Compassionate Release Consideration (ECF No. 230).
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Mr. Douglas submits that “[t]he growing COVID-19 pandemic, which public
experts and policy makers recognize is especially dangerous in the confines of
correctional 	institutions, 	in 	tandem 	with 	Mr. 	Gordon’s 	medical 	conditions,
harsher/punitive conditions and incarceration at FMC Devens is an extraordinary
and compelling circumstance.” Def.’s Mot. at 1. He further submits that “combined
with the totality of the circumstances in this case, [his circumstances] warrant an
immediate reduction to time served.” Id.
He contends that his risk factors include “(1) High Blood Pressure[,] (2)
Cardiovascular[,] (3) Immune Suppressed[, and] (4) History of Kidney Disease” and
lists his “additional medical and psychological challenges” as “[d]ifficulty adjusting to
prison life with prosthetic leg [and d]ifficulty managing both high blood pressure and
depression medications.” Id. He explains to the Court that he has “limited self-care
as [he] need[s] assistance with day to day activities . . . [and is] in a bed or chair for
more than 50% of waking hours,” due in part to the fact that he cannot “control when
[he] 	use[s 	his] 	prosthetic 	leg” 	while 	imprisoned. 	Id., 	Attach. 	3,
Extraordinary/Compelling Circumstances for Compassionate Release.
He presents concerns regarding FMC Devens’ management of the COVID-19
pandemic, alleging specifically that in response to “a severe outbreak at the Camp in
January 2022 . . . [e]ven though Mr. Gordon and approx. 10 or 12 other inmates tested
negative, they were placed in the same isolation units as those who tested positive.”
Id. at 2.
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Mr. Gordon asks the Court to consider the “unique” nature and circumstances
of the offense. Id. He contends that “[f]rom the very beginning . . . many things didn’t
add up . . . first and foremost: [w]hat was the motivation of the US Government’s
interest in prosecuting a case involving . . . ‘out of print’ motion pictures with no
mainstream ready market and unlikely to ever to have one?” 	Id. 	He explains how
“he decided to file ‘Freedom of Information/Access Act(s)’ Requests with the Maine
State Police, the Brewer Police Department, and the Maine offices of the Department
of Homeland Security and the Department of Justice,” id. at 3, but that “after nearly
a year of letter exchanges and ignored requests, no real information has been
recovered . . . [p]lenty of smoke [screen], but no real answers to the requests for
information.” Id.
He argues that “even the hint of circumstantial evidence of a pretextual
investigation and a vindictive prosecution should be considered as part of the nature
and circumstances of a case that is the first of its kind in the United States.” Id. at
4. He further argues that the alleged evidence “as circumstantial as it is, could be as
extraordinary 	and 	compelling 	as 	the 	new 	medical 	issues 	the 	defendant 	is
experiencing at FMC Devens.” Id.
In support of his request for compassionate release, Mr. Gordon further
emphasizes that he “has been a model prisoner who has found ways to be productive
in the challenging environment of modern incarceration.” Id. at 5. He highlights that
“[b]efore reporting to FMC Devens in 2021, [he] was volunteering at his hometown
library to help the librarians digitize their one-of-a-kind historical photographs and
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rare documents.” Id. at 4. He also notes that during his incarceration, he “has been
a dog handler for the NEADS program, which trains service dogs, he has volunteered
for the Community Outreach Program . . . [and h]e has actively programmed with
classes like the Non-Residential Drug Abuse Program.” 	Id. 	Mr. Gordon indicates
that he works in the kitchen and “has no disciplinary actions and also maintained a
minimum recidivism score (the lowest score possible).” Id.
He concludes by citing Concepcion v. United States, 142 S. Ct. 2389 (2022),
arguing that “[l]ooking at all of the above evidence in the light of the Concepcion
decision puts a potential new spin on re-sentencing the Defendant through the form
of a Compassionate Release.” Id. at 5.
B. 	The Government’s Opposition
The Government first addresses Mr. Gordon’s COVID-19 argument, positing
that Mr. Gordon’s complaints “about the [COVID] measures themselves” at FMC
Devens “in addition to being misplaced, provide nothing unique or compelling as to
the defendant’s case.” 	Gov’t’s Opp’n at 9. 	The Government notes that “there are
currently no COVID-19 cases at FMC Devens [and i]nmates who want the vaccination
receive it. 	Id. 	The Government argues that “‘the mere existence of COVID-19 in
society and the possibility that it may spread to a particular prison alone cannot
independently justify compassionate release.’” 	Id. (quoting United States v. Curtis,
No. 	1:14-cr-00140-JAW, 	2020 	WL 	3104043, 	at 	*5 	(D. 	Me. 	June 	11, 	2020)).
Acknowledging that “[s]ome of [Mr. Gordon’s] conditions are CDC risk factors for
adverse outcomes from COVID infection,” id. at 9, the Government cites a panoply of
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cases and contends that the “risk associated with [Mr. Gordon’s] underlying medical
conditions do[es] not give rise to an extraordinary and compelling circumstance
supporting compassionate release. Id. at 9-10.
The Government next addresses Mr. Gordon’s assertion that he is having
“[d]ifficulty adjusting and balancing medication.” 	Id. at 10. 	The Government
contends that these “general complaints about being in BOP custody . . . are not
properly addressed in a compassionate release proceeding . . . [but that t]o the extent
they are cognizable as Eighth Amendment violations, such claims must be brought
in the district of confinement under appropriate civil procedure. Id. at 10-11.
The Government then turns to the section 3553(a) factors, arguing that these
factors weigh “strongly against early termination of [Mr. Gordon’s] sentence.” Id. at
1. 	The Government first addresses the ongoing danger that Mr. Gordon if released
would pose to the public. The Government argues that the “primary danger posed by
[Mr. Gordon] is his willingness to commit largescale consumer-level fraud . . . [and
his] refusal to even acknowledge this conduct as the primary factor in his current
sentence indicates this danger is unabated.” Id. at 11. The Government reminds the
Court that “Mr. Gordon acknowledged getting hundreds of complaints, so many he
had to hire back one of his employees to manage them all . . ., referred to these
dissatisfied 	customers 	as 	‘PKs’ 	for 	‘problem 	kids,’ 	and 	blamed 	the 	numerous
complaints on the normal course of business.” Id. at 12. The Government concludes
that “there was very little customers, copyright holders, or law enforcement could do
to dissuade Mr. Gordon from defrauding the public [and j]ail appears, under the
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circumstances, to be the only sure way to protect the public from Mr. Gordon’s fraud.”
Id.
As for deterrence, the Government posits that “Mr. Gordon chose to continue
his criminal activity in open defiance of the law for years after he was notified of the
investigation, and . . . [s]ince Mr. Gordon continues to ignore his own wrongful
actions, it is very unlikely that he has been personally deterred from further similar
conduct.” 	Id. at 14. 	The Government concludes that “[t]erminating Mr. Gordon’s
sentence at this time would also undermine respect for the law and would repudiate
the seriousness of the years-long, extensive, mass-marketed, and brazen fraud
scheme.” Id.
C. 	Douglas Gordon’s Reply
Mr. Gordon first reminds the court that he has “requested Compassionate
Release 	Consideration 	based on 	Medical Circumstances: 	Medically Debilitated,
asserting that he was only capable of limited self-care and confined to a bed or chair
more than 50% of his waking hours, which substantially negatively impacts his
activities of daily living.” Def.’s Reply at 1. He submits that as an amputee, he suffers
from “sores on his stump” and “with the ongoing standing demands [in prison], his
sores never have the opportunity to heal. Id. at 6.
Mr. Gordon then turns to his health condition regarding his amputated leg and
submits that “COVID-19 disproportionately affects amputees: ‘people living with limb
loss and limb difference are at higher risk for COVID-19.’” 	Id. at 7 (quoting Id.,
Attach 5, Amputees and COVID). 	He further submits that he “is not receiving
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adequate medical treatment, despite frequent requests for the same,” and contends
that it is “gravely inappropriate to fail to provide an individual with proper medical
treatment, especially treatment of his stump sores [as t]his lack of treatment may
prove to be fatal.” Id. at 8. He argues that “the overriding factor under § 3553(a) that
was not present at the time of sentencing is Mr. Gordon’s chronic right leg stump
sores.” 	Id. at 9. 	He contends that “Mr. Gordon’s health at the time of sentencing
provided no indication that the sentence would be, in effect, a sentence to live with
potentially life-threatening medical complications due to the necessity of having to
stand at least four hours straight while at work in the kitchen at the correctional
facility.” Id.
Mr. Gordon reiterates his strong community involvement at FMC Devens, id.
at 	5-6, 	noting 	that 	he 	“has 	signed 	up 	for 	any 	and 	all 	programming 	that 	is
recommended to him or places his name on the waiting list if the program is already
full,” id. at 6, and submits that he “provided the Medical Social Worker with
information regarding his proposed Release Plans, including . . . his family support
in the community . . ..” Id. at 2. He concludes that his “physical and mental conditions
following 	his 	health 	decline 	realistically 	forecloses 	a 	probability 	of 	dangerous
recidivism.” Id. at 10.
III. 	LEGAL STANDARD
“Section 3582(c)(1)(A) authorizes a court to reduce a term of imprisonment
when ‘extraordinary and compelling reasons warrant such a reduction.’” 	United
States v. Ruvalcaba, 26 F.4th 14, 18 (1st Cir. 2022). “To grant the motion, the district
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court must find both that the defendant has presented an ‘extraordinary and
compelling’ reason warranting a sentence reduction, . . . and that ‘such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.’”
Id. at 18-19 (quoting § 3582(c)(1)(A)).
The United States Sentencing Commission’s current policy guidance3 for
addressing compassionate release motions brought by the Director of the BOP, issued
pursuant to Guideline § 1B1.13, “was last modified in November of 2018—before the
F[irst] S[tep] A[ct] (FSA) amended the compassionate-release statute to allow for
prisoner-initiated motions.” 	Id. at 20. 	In United States v. Ruvalcaba, the First
Circuit 	resolved 	that 	district 	courts 	are 	not 	constrained 	by 	the 	Sentencing
Commission’s 2018 policy statement in adjudicating prisoner-initiated motions for
compassionate release. Id. at 22-23 (emphasizing that § 603(b) of the FSA “effected
a paradigm shift in how compassionate release would function” and that “[g]iven the
profound nature of this paradigm shift, it is fair to say that the ‘purposes’ and
‘appropriate use’ of the compassionate-release statute have swelled beyond those that
inhered in the statute when the Sentencing Commission issued its original policy
statement”).
The First Circuit clarified that the absence of an applicable policy statement
does 	not 	leave 	the 	district 	court’s 	discretion 	“unbounded,” 	rather 	it 	remains
3 	The Sentencing Commission’s list of “four categories of extraordinary and compelling reasons:
medical conditions; age; family circumstances; and a catch-all for other reasons deemed appropriate
by the BOP. . . remains unchanged today.” Ruvalcaba, 26 F.4th at 20 (citing U.S.S.G. § 1B1.13 cmt.
n.1 (A) – (D)). “[S]ection 1B1.13 also requires a finding that the defendant is not dangerous in order
to grant compassionate release based on extraordinary and compelling reasons.” Id. at 19-20 n.5.
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“circumscribed by statutory standards, which obligate the district court to find a
reason that is both ‘extraordinary and compelling.’” Id. at 23 (citing United States v.
Canales-Ramos, 	19 	F.4th 	561, 	566 	(1st 	Cir. 	2021) 	(“[T]he 	‘extraordinary 	and
compelling’ standard is logically guided by the plain meaning of those terms”)).
“[M]oreover, the current policy statement—though not ‘applicable’—nonetheless may
serve as a non-binding reference.” Id.
Thus, until the Sentencing Commission updates its guidance applicable to
prisoner-initiated motions, “the district courts will have to assess prisoner-initiated
motions for compassionate release primarily through the lens of the statutory
criteria.” Id. “Ultimately, . . . it is within the district court’s discretion—constrained
only by the statutory criteria4 and any applicable policy statement—to make that
[individualized assessment of a myriad of factors], case by case.” Id. at 27-28. A court
“may consider any complex of circumstances raised by a defendant as forming an
extraordinary and compelling reason warranting relief.” Id. at 28.
If 	the 	prisoner 	meets 	the 	extraordinary 	and 	compelling 	circumstances
standard necessary to justify compassionate release, “the district court must [also]
consider any applicable section 3553(a) factors,” id. at 19, to “determine whether, in
its discretion, the reduction . . . is warranted in whole or in part under the particular
circumstances of the case.” 	United States v. Saccoccia, 10 F.4th 1, 4 (1st Cir. 2021)
4 	The only “explicit limitation on what may comprise an extraordinary and compelling reason”
is “that ‘[r]ehabilitation . . . alone shall not be considered an extraordinary and compelling reason.’”
Id. at 25 (alterations in Ruvalcaba) (quoting 28 U.S.C. § 994(t)).
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(omission in Saccoccia). 	In particular, before granting the petition, a court must
assess,
[t]he nature and circumstances of the offense and the history and
characteristics of the defendant, the need . . . 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 criminal
conduct; to protect the public from further crimes of the defendant; [and]
to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective
manner.
18 U.S.C. § 3553(a). 	“Though the [§] 3553(a) factors may serve as an independent
basis for a district court’s decision to deny a compassionate-release motion,” they
“need only be addressed if the court finds an extraordinary and compelling reason
favoring release.” Saccoccia, 10 F.4th at 8.
The movant bears the burden of proving that he is entitled to a sentence
reduction, and the Court has discretion to determine whether “the reduction . . . is
warranted in whole or in part under the particular circumstances of the case.” United
States v. Texeira-Nieves, 23 F.4th 48, 52 (1st Cir. 2022) (quoting Saccoccia, 10 F.4th
at 4); see Saccoccia, 10 F.4th at 4 (stating that the First Circuit’s standard of review
“[r]ecogniz[es] that the compassionate-release statute provides that a district court’s
decision to grant or deny a compassionate-release motion is discretionary”).
IV. 	DISCUSSION
A. 	Extraordinary and Compelling Reasons
To grant Mr. Gordon’s motion under 18 U.S.C. § 3582(c)(1)(A)(i), the Court
must find “extraordinary and compelling reasons warrant[ing]” a reduction in
sentence. Mr. Gordon submits that his underlying health conditions combined with
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the risk of contracting COVID-19 create such a circumstance warranting a sentence
reduction. Def.’s Mot. at 1.
The Court first considers Mr. Gordon’s current health status and risk profile.
Mr. Gordon contends that his risk factors include “(1) High Blood Pressure[,] (2)
Cardiovascular[,] (3) Immune Suppressed[, and] (4) History of Kidney Disease.” Id.
The record before the Court partially supports his claims, confirming that as of
September 26, 2019, his “ongoing medical issues” were: “essential hypertension;
mixed hyperlipidemia; history of cerebrovascular incident; insomnia; knee pain; left
inguinal pain; and osteoarthritis of the left knee.” U.S. Probation Filing as to Douglas
Gordon, (ECF No. 232) Attach. 3, Presentence Report ¶ 53B (PSR). 	His PSR cited
medical records state that his “historical issues” are: “amputation above the knee;
cholecystectomy; impaired glucose tolerance; kidney stones; lateral epicondylitis of
the left humerus; morbid obesity; scoliosis; seizure disorder; and transient ischemic
attack.” 	PSR ¶ 53B. 	Mr. Gordon was born without a right knee and with other
defects in his brain, toes, and fingers. PSR ¶ 53. As of June 2020, Mr. Gordon was
prescribed seven blood thinning medications for his brain defect. Id. He suffers from
chronic kidney problems and was “in a coma with kidney failure for seven weeks in
2014 before physicians discovered he had a birth defect in his brain that caused [his]
seizures.” 	PSR ¶ 50. 	In 2014, he was diagnosed with “acute kidney injury most
probably secondary to acute tubular necrosis.” PSR ¶ 53B.
In his motion, Mr. Gordon lists four medical conditions as CDC risk factors.
Def.’s 	Mot. 	at 	1; 	Attach. 	3, 	Extraordinary/Compelling 	Circumstances 	for 	a
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Compassionate Release at 1 (“These medical problems make me vulnerable to CDC
Risk Factors High Blood Pressure, cardiovascular, immune sup[p]ressed[,] and
history of kidney disease”). 	However, Mr. Gordon has not provided the Court with
either his BOP or outside medical records, and therefore, other than confirming the
past existence of some of these conditions as set forth in the PSR, the Court is unable
to accurately assess his current state of health. 	The Court has done its best with
limited information.
Regarding high blood pressure or hypertension, CDC guidance is somewhat
equivocal. The CDC says that “possibly high blood pressure (hypertension) can make
you more likely to get very sick from COVID-19.” CDC COVID Med. Conditions. This
advice is distinct from other heart conditions such as heart failure, coronary artery
disease, and cardiomyopathies, which the CDC says are more likely to cause someone
to get very sick from COVID-19. Id. Mr. Gordon’s 2019 medical records as conveyed
through his PSR confirm his “essential hypertension,” although there is no indication
of its severity. 	PSR ¶ 53B. 	The PSR also lists a history of hyperlipidemia, or high
cholesterol, but the CDC does not mention hyperlipidemia as a COVID risk factor.
Id. 	The Court has considered Mr. Gordon’s hypertension as a possible risk factor if
he were to contract COVID.
Although Mr. Gordon lists “cardiovascular” as a risk factor in addition to
hypertension, the records before the Court do not mention his cardiovascular
condition as a separate diagnosis for Mr. Gordon. 	Because it is unclear to what
disease—other than high blood pressure—Mr. Gordon 	refers to when he lists
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“cardiovascular” as a risk factor, the Court treats Mr. Gordon’s risk of hypertension
and cardiovascular disease together.
Similarly, even though Mr. Gordon says that he is immunocompromised, the
Court finds no support in the record for Mr. Gordon’s claim or, beyond the general
category of being immunocompromised, no specific diagnosis to this effect or an
indication as to it severity. The Court has not considered this unsupported diagnosis
in considering his motion.
Turning 	to 	his kidney disease, 	the 	CDC 	initially 	classified 	only 	those
individuals with chronic kidney disease who required dialysis as being at heightened
risk for severe illness from COVID-19. However, in the newest CDC iteration, having
chronic kidney disease “of any stage increases” a person’s risk for severe illness
from COVID-19. 	People 	with 	Certain 	Medical 	Conditions, 	CDC,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-
medical-conditions.html (last visited October 3, 2022). The Court assumes that Mr.
Gordon falls in a heightened risk category from his chronic kidney disease.
Despite his increased risk, however, Mr. Gordon’s medical conditions do not
present an “extraordinary and compelling” reason for early release. The First Circuit
explained that “not every complex of health concerns is sufficient to warrant
compassionate release[, and] this remains true even in the midst of the COVID-19
pandemic.” 	Saccoccia, 10 F.4th at 5. 	“It is only if ‘the defendant’s situation
constitutes the type of ‘extreme hardship’ that the compassionate-release statute is
designed to ameliorate’ that a sentence reduction is warranted.” 	United States v.
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Sealy, No. 2:16-cr-00036-NT, 2022 U.S. Dist. LEXIS 22449, at *6 (D. Me. Feb. 8, 2022)
(quoting Saccoccia, 10 F.4th at 4).
The enhanced danger of COVID-19, especially for individuals with certain
health 	conditions, 	is 	clear; 	however, 	Mr. 	Gordon’s 	risk, 	based 	on 	his 	alleged
conditions, does not warrant release. 	See United States v. Cooke, No. 20-cr-10126-
ADB, 2022 U.S. Dist. LEXIS 103911, at *7 (D. Mass. June 10, 2022) (collecting cases
in which district courts across the country have found that even with the presence of
medical conditions that increase an inmate’s risk of serious illness from COVID-19,
the risk of contracting COVID-19 alone is not sufficient to warrant early release).
The Court also considers Mr. Gordon’s risk based on the current prevalence of
COVID-19 at FMC Devens. As of October 27, 2022, there are six positive cases among
the 971 total inmates and eight positive cases among staff at the facility. COVID-19
Cases, Fed. Bureau of Prisons, https://www.bop.gov/coronavirus/ (last visited Oct. 27,
2022); 	FMC 	Devens, 	Fed. 	Bureau 	of 	Prisons,
https://www.bop.gov/locations/institutions/dev/ (last visited Oct. 27, 2022). 	FMC
Devens is currently following Level 2 Operations procedures to combat the spread of
COVID. 	Level 	Specific 	Modifications, 	Fed. 	Bureau 	of 	Prisons,
https://www.bop.gov/coronavirus/covid19 modified operations guide.jsp (last visited
Oct. 3, 2022).
The Court’s conclusion is further supported by Mr. Gordon’s vaccination
status. 	Medical records from the BOP indicate that as of July 2021, Mr. Gordon
received both doses of the Pfizer vaccine. Gov’t’s Opp’n, Attach. 4, Bureau of Prisons
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Health Services Immunizations at 1. 	He refused a booster shot in February 2022.
Id., Attach. 5, Bureau of Prisons Health Services Immunizations at 1. The CDC states
that “COVID-19 vaccines available in the United States are effective at preventing
people from getting seriously ill, being hospitalized, and dying” from COVID. 	Stay
Up 	to 	Date 	with 	Vaccines 	Including 	Boosters, 	CDC,
https://www.cdc.gov/coronavirus/2019-ncov/vaccines/stay-up-to-date.html. 	Mr.
Gordon’s refusal of a booster shot does not render his circumstance extraordinary and
compelling. 	See United States v. Pelletier, No. 2:12-cr-00119-GZS, 2021 U.S. Dist.
LEXIS 76078 (D. Me. Apr. 21, 2021) (holding a defendant’s own refusal of the COVID-
19 vaccine “significantly weigh[s] against a finding that [the defendant] presents
extraordinary and compelling circumstances based on his risk of serious illness from
COVID-19”).
Mr. Gordon alleges more specifically he has “[d]ifficulty adjusting to prison life
with a prosthetic leg,” Def.’s Mot. at 1, because he has “limited self-care as [he] need[s]
assistance with day to day activities . . . [and is] in a bed or chair for more than 50%
of waking hours,” due in part to the fact that he cannot “control when [he] use[s his]
prosthetic 	leg” 	while 	imprisoned. 	Id., 	Attach. 	3, 	Extraordinary/ 	Compelling
Circumstances for Compassionate Release. 	Mr. Gordon also explains that he has
“[d]ifficulty managing both high blood pressure and depression medications.” Id. at
1.
Although the Court acknowledges these complaints, the Court finds they do
not make Mr. Gordon an appropriate candidate for compassionate release in part
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because these factors were already present at sentencing and they do not constitute
“extraordinary and compelling” reasons for his release. In fact, the Court specifically
considered Mr. Gordon’s physical condition regarding his right leg when imposing his
substantially reduced sentence of 60 months from the guideline range of 108 to 132
months. Sentencing Tr. at 62:4-5; 72:13-17. In imposing a sentence markedly below
the guideline range, the Court mentioned that “his array of medical problems makes
him more susceptible to [COVID]-19.” Id. at 72:14-17. Indeed, the Court considered
the COVID-19 pandemic and Mr. Gordon’s health risks in granting Mr. Gordon a
delayed self-report to the BOP of six months after sentencing. Id. at 81:9-24.
The Court recognizes that COVID-19 has impacted Mr. Gordon’s prison
experience, including increased time in isolation to prevent the spread of the virus.
Def.’s Mot. at 2. However, “the pandemic, and its subsequent natural impacts in and
of themselves do not present an ‘extraordinary and compelling’ justification for [an
inmate’s] release.” 	United States v. Stone, No. 1:08-cr-00006-JAW, 2021 U.S. Dist.
LEXIS 213599, at *20 (D. Me. Nov. 4, 2021); see also United States v. Davis, No. 2:15-
cr-00186-GZS, 2021 U.S. Dist. LEXIS 171136 at *3 (D. Me. Sept. 9, 2021) (“The Court
acknowledges that the ongoing pandemic is an extraordinary event for our entire
country and has been especially challenging for the Bureau of Prisons. However, it
is against this backdrop that a defendant must show individualized extraordinary
and compelling reasons why he should not be required to serve the remainder of his
sentence”).
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Finally, of course, as time goes by and the pandemic becomes endemic, less
virulent, especially for the vaccinated, and less lethal due to the development of
medicines such as antiviral and monoclonal antibody treatments, the impact of
COVID-19 on BOP operations (and Mr. Gordon’s prison experience) may become less
dramatic. 	See 	COVID-19 	Treatments 	and 	Medications, 	CDC,
https://www.cdc.gov/coronavirus/2019-ncov/your-health/treatments-for-severe-
illness.html (last visited Oct. 26, 2022).
B. 	The Section 3553(a) Factors
Pursuant to 18 U.S.C. § 3582(c)(1)(A)(i), the Court considered whether the §
3553(a) factors justify Mr. Gordon’s release at this time. They do not. Although the
Court considered each factor, the Court discusses only the most pertinent factors: the
nature and circumstances of Mr. Gordon’s offenses, the need to protect the public
from future crimes of the defendant, and adequate deterrence to criminal conduct. 18
U.S.C. § 3553(a)(1).
First, the Court notes the long-term and pervasive nature of Mr. Gordon’s
crime. 	Mr. Gordon’s scheme to defraud ran for nearly five years.5 	Mr. Gordon did
not cease his criminal behavior even when repeatedly warned that his actions were
illegal. 	As 	the 	First 	Circuit 	summarized, 	“[d]espite 	the 	complaints, 	the
investigations, and the letters from state and federal authorities, Mr. Gordon was
undeterred.” Gordon, 37 F.4th at 770. After the Motion Picture Association sent Mr.
5 	Count 3, the mail fraud count, alleged a scheme to defraud “[from] about April, 2014 to about
January, 2019.” Superseding Indictment at 3.
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Gordon a cease-and-desist letter, he “doubled down by employing an out-of-state
vendor to conceal his operations.” Id.
Second and most surprising is Mr. Gordon’s continued lack of acceptance of
responsibility and remorse. 	Mr. Gordon elected not to allocute at his sentencing
hearing. Sentencing Tr. at 60:5-14. But he testified at his trial. Tr. of Proceedings,
VII at 1365:15-1553:2. 	Mr. Gordon justified his actions based on his understanding
of concepts of fair use, id. at 1377:24-1383:4, and orphan work, id. at 1383:13-19,
1386:14-1389:18, and he testified that he had not violated the law. Id. at 1377:11-19.
Despite 	his 	testimony, 	the 	jury 	found 	him 	guilty 	of 	two 	counts 	of 	copyright
infringement and one count of mail fraud, this Court sentenced Mr. Gordon, and the
First Circuit affirmed his convictions and his sentence.
In 	his 	motion 	for 	compassionate 	release, 	Mr. 	Gordon 	declaims 	the
Government’s decision to prosecute him. 	He asserts that “many things didn’t add
up.” Def.’s Mot. at 2. He questions “the motivation of the US Government’s interest
in prosecuting a case involving, if not ‘Orphan Works,’ th[e]n at least ‘out of print’
motion pictures with no mainstream ready market and unlikely to ever have one.”
Id.
Mr. Gordon informs the Court that while at FMC Devens, he has had “plenty
of time” to think about a conversation he had with Special Agent Loren Thresher of
Homeland Security Investigations about a burglary ring in the Bangor, Maine area.
Id. at 3-4. 	Mr. Gordon extensively quotes this conversation. 	Id. at 3. 	Mr. Gordon
begins his conversation with Agent Thresher by saying that he would like to ask the
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agent questions “that are not related to my case.” Id. Agent Thresher replies that it
“depends” and Mr. Gordon tells the agent that he will go ahead and ask and it will be
up to Agent Thresher whether to respond. Id. Mr. Gordon then asks Agent Thresher
whether he knows a man named Jonathan Tardiff and goes on to describe a
shoplifting ring in which a couple of guys “paid a bunch of drug users and homeless
people to steal stuff from Walmart.” Id. Mr. Gordon mentions another man named
Anthony Berry as one of the leaders of the shoplifting ring. 	Id. 	Mr. Gordon notes
that there is a police officer at the Brewer Police Department named Thom Tardiff
and he wondered whether Officer Tardiff was related to Jonathan Tardiff. Id. Agent
Thresher replied that he did not know. Id.
Mr. Gordon writes that he filed Freedom of Information Act (FOIA) requests
“with the Maine State Police, the Brewer Police Department, and the Maine offices
of the Department of Homeland Security and the Department of Justice.” 	Id. at 4.
Indeed, he attached copies of his nineteen FOIA requests to his motion. 	See Def.’s
Mot. Attachs. 15-34. In his FOIA requests, Mr. Gordon asks various public agencies
for information about himself, his former business (Edge Video), and about Anthony
G. Berry, a person involved in the Bangor, Maine burglary ring. Id.
Mr. Gordon explains his “hope to obtain more pieces of the now obvious and
intriguing puzzle: What was the US Government’s REAL motivation for investigating
and prosecuting Mr. Gordon for ‘criminal copyright infringement’?” Id. Although Mr.
Gordon disavows attempting “to challenge the conviction or re-try the case,” he says
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that there is a “hint of circumstantial evidence of a pretextual investigation and a
vindictive prosecution.” Id. at 4.
The Court is nonplussed. Whatever he may think, Mr. Gordon is not the victim
of his own crime. 	First, Mr. Gordon seems to insinuate some improper relationship
between his federal prosecution and the federal prosecution of a member of the
Bangor burglary ring. As the judge who presided over the federal prosecution of one
of the defendants in the burglary ring,6 the Court is aware of no relationship and, if
there 	is 	some 	connection, 	Mr. 	Gordon 	does 	not 	explain 	what 	it 	would 	be.
Furthermore, the Court does not know how any of this would have affected the
Government’s decision to prosecute him for copyright infringement and mail fraud or
how all of this relates to his pending petition for compassionate release.
As noted earlier, during trial, Mr. Gordon testified he had the right to copy so-
called orphan works and that his use of the copyrighted movies was fair use. Tr. of
Proceedings, VII at 1365:15-1553:2. At the close of trial, the Court instructed the jury
on the law on fair use, orphan works, public domain, and similar concepts of copyright
law. Id. at 1542:1-1545:24. For example, the Court instructed the jury that “United
States copyright law does not recognize the concept of orphan work.” Id. 1545:19-20.
These instructions were, to the Court’s knowledge, correct as a matter of law. In his
motion, Mr. Gordon writes, “What was the motivation of the US Government’s
interest in prosecuting a case involving, if not ‘Orphan Works’, [then] at least ‘out of
print’ motion pictures with no mainstream ready market and unlikely to ever have
6 	See United States v. Anthony G. Berry, 1:17-cr-33-JAW-1.
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one?” 	Def.’s Mot. at 2. 	But the Government’s contention that Mr. Gordon was
violating copyright law and Mr. Gordon’s defense that he was legally entitled to copy
and distribute the movies had been the focus of the seven-day-long trial in October
2019. 	Mr. Gordon was given a free hand to defend himself and contradict the
Government’s case and the jury found him guilty as charged. 	Mr. Gordon appealed
his convictions and sentence and the Court of Appeals affirmed both.
Given Mr. Gordon’s own statements in his motion, his self-justification for his
criminal activity, his oblique contention that he was the subject of a pretextual and
vindictive prosecution, the Court is concerned that even now, Mr. Gordon has not yet
gotten the message that his conduct was indeed criminal. 	Having read his motion,
the Court is more concerned now than it was when it sentenced him that Mr. Gordon
will recidivate upon release, because he does not believe that the law applies to him.
Mr. Gordon is of course entitled to his own opinions, and the Court understands
that he went to trial and was convicted of these crimes. He did not plead guilty and,
to the Court’s knowledge, he has never accepted his own culpability. The Court is not
requiring Mr. Gordon to believe something he does not believe, or even to pretend
that he does, in order to be released. But it is one thing for Mr. Gordon to maintain
his innocence. 	It is another to suggest that the federal prosecutor engaged in a
vindictive 	prosecution 	and 	to 	darkly 	imply 	some 	nefarious 	conspiracy 	in 	the
investigation and prosecution of a seemingly wholly unrelated criminal matter.
Notwithstanding the fact that Mr. Gordon is an active participant in the FMC
Devens community and “has no disciplinary actions and also maintained a minimum
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recidivism score (the lowest score possible),” the Court also considered the need to
protect the public and the need for deterrence. Def.’s Mot. at 4. In instances such as
this where the defendant is involved in a lengthy and extensive crime, the completion
of a substantial sentence is necessary to reflect its seriousness, to deter the defendant
from committing similar conduct upon release, and to prevent others from engaging
in comparable criminal behavior.
Mr. Gordon argues that his “chronic right leg stump sores” are the “overriding
factor under § 3553(a) that was not present at the time of sentencing.” 	Def.’s Reply
at 9. 	The Court, however, expressly considered Mr. Gordon’s health conditions,
including his stump leg, when sentencing him to a substantially reduced sentence of
60 months from the guideline range of 108 to 132 months and providing him a delayed
self-report to the BOP six months after sentencing. Sentencing Tr. at 62:4-5; 81:9-24.
Moreover, Mr. Gordon has presently served only approximately one quarter of his
sentence. 	The fact that Mr. Gordon has not yet served a significant portion of his
already reduced sentence as compared to the guidelines weighs against release. See
United States v. Patten, 560 F. Supp. 3d 613, 618 (D.N.H. 2021) (specifying that
because the defendant “has served a significant portion of his original sentence and
is nearing his release date from BOP, a reduction in his sentence would not be
inconsistent with the goals of promoting . . . deterrence”). 	The Court finds that
serving only a quarter of this sentence does not reflect the extent of the crime and
would not be sufficient to achieve general and specific deterrence. Thus, on balance,
the 18 U.S.C. § 3553(a) factors do not weigh in favor of Mr. Gordon’s release.
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Finally, Mr. Gordon cites Concepcion, arguing that “[l]ooking at all of the above
evidence in the light of the Concepcion decision puts a potential new spin on re-
sentencing the Defendant through the form of a Compassionate Release.” Def.’s Mot.
at 5 (citing 142 S. Ct. at 2389). However, Concepcion is inapplicable here because its
holding applies only to resentencing under § 404(b) of the First Step Act. Mr. Gordon
is seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A). Even if Concepcion
applied, however, the Court sees no intervening changes in law or fact that render
Mr. Gordon’s circumstance “extraordinary and compelling.”
C. 	Summary
The Court concludes that Mr. Gordon has not met his burden to show
extraordinary and compelling reasons for compassionate release, nor do the section
3553(a) factors support release. 	The Court finds that while his medical conditions
heighten 	his 	risk 	from 	COVID-19, 	they 	do 	not 	present 	a 	“compelling 	and
extraordinary” circumstance, and the Court finds that releasing Mr. Gordon early
would contravene the § 3553(a) factors. On the record before the Court, Mr. Gordon
is not an appropriate candidate for compassionate release at this time. Nevertheless,
the Court is dismissing his motion without prejudice so that if Mr. Gordon wishes to
return to the Court for compassionate release at some point in the future, having
served more of his sentence and perhaps having reconsidered or better explained
some of the positions he has taken in this motion, he is free to do so.
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V. 	CONCLUSION
The 	Court 	DISMISSES 	without 	prejudice 	Douglas 	Gordon’s 	Motion 	for
Compassionate Release (ECF No. 230).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 31st day of October, 2022.
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