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 failed to comply with the administrative
exhaustion requirements of § 3582 before filing his motion.
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. 	§
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
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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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
old and may be incarcerated at FMC Devens. 	Fed. Bureau of Prisons, Find An
Inmate, https://www.bop.gov/inmateloc/ (last visited March 27, 2023).2
2 	The Court uses “may be” because the BOP inmate locator states that Mr. Gordon is being held
in UPS Lewisburg. 	Fed. Bureau of Prisons, Find An Inmate, https://www.bop.gov/inmateloc/ (last
visited March 28, 2023). All other indications, including Mr. Gordon’s return address on his filing
envelope (which the Court received on December 12, 2022), are that he is still at FMC Devens-Camp
in Ayer, Massachusetts. As late as December 8, 2022, Mr. Gordon was seen for a clinical encounter at
Health Services at Devens. Gov’t’s Resp. to Mot. for Compassionate Release. Attach. 6 at 1, Med. Rs.
(ECF No. 244) (Gov’t’s Opp’n). Mr. Gordon has not filed a change of address from FMC Devens with
the Court. The Court does not know why there is a difference between Mr. Gordon’s location between
the docket and the inmate locator. It may be that he was moved to UPS Lewisburg after the filings in
this case and has not let the Court know or the information in the inmate locator may be wrong. In
any event, Mr. Gordon’s location does not affect the Court’s ruling.
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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.3 Mot. for Compassionate Release re: First Step Act (ECF No. 230). 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). Mr. Gordon replied on September 20, 2022. Reply to Response
(ECF No. 239). 	On October 31, 2022, the Court issued a twenty-six-page order
dismissing without prejudice Mr. Gordon’s motion for compassionate release. Order
on Mot. for Compassionate Release (ECF No. 242).
On December 12, 2022, Mr. Gordon filed a second motion for compassionate
release. 	Emergency 	Mot. for Compassionate Release Pursuant to 18 U.S.C. §
3 	Mr. Gordon satisfied the exhaustion requirement as to his August 1, 2022 motion because he
submitted a request to the warden of FMC Devens for compassionate release on August 31, 2021,
which was denied. Mot. for Compassionate Release re: First Step Act, Attach. 2, Inmate Request for
Compassionate Release Consideration (ECF No. 230).
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3582(c)(1)(a) (ECF No, 243) (Def.’s Mot.). 	On December 27, 2022, the Government
responded in opposition to Mr. Gordon’s motion for compassionate release. 	Gov’t’s
Opp’n at 1-17. Mr. Gordon replied on January 6, 2023. Reply to Response (ECF No.
245) (Def.’s Reply).
II. 	THE PARTIES’ POSITIONS
A. 	Douglas Gordon’s Motion for Compassionate Release
Mr. Gordon asserts that he has “several CDC risk factors that were known at
the time of sentencing but what was not known was an additional potentially serious
medical condition, recent changes in the sentencing laws that would directly affect
his case, BOP’s inability to provide health care and the additional threats and
unknown factors of the ongoing COVID-19 variants.” Def.’s Mot. at 1. 	He contends
that his risk factors include “(1) High Blood Pressure[,] (2) Cardiovascular[,] (3)
Immune Suppressed[, and] (4) History of Kidney Disease” and lists an additional
concern 	that 	arose 	“after 	filing 	his 	first 	compassionate 	release” 	regarding 	“a
persistent lump in his throat that had developed into a larger rigidness in the entire
throat.” 	Id. at 1-2. 	He further contends that “[w]hile he was eventually given a x-
ray, it is now over six months later and no meaningful diagnosis or plan of treatment
has been put forth” and “[t]hat lack of medical attention in combination with the
widespread challenge the BOP is experiencing providing basic medical care to the
inmate population should be considered in this new motion for a compassionate
release.” Id. at 2.
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Mr. Gordon submits that “recent changes in the sentencing laws, in the form
of the appellate decision, United States v. Banks, No. 19-3812, 20-2235 3d Cir. 2022 .
. . removes any enhancement under 2B1.1 for ‘intended’ loss, instead of actual loss,”
which “means if Mr. Gordon was sentenced today, there would be no 14-point
enhancement and therefore, the top of the guidelines would only be 30 months.” Id.
Mr. Gordon further submits that “with [g]ood [c]onduct [t]ime and First Step Earned
Time Credits and time served, Mr. Gordon should have gone to [s]upervised [r]elease
in October of this year,” but “the BOP has failed to come up with accurate credits for
the entire inmate population and continues to be a controversy 4 years after the First
Step Act was passed.” Id. Mr. Gordon insists that “[a]s of December 23, [2022,] Mr.
Gordon will have been incarcerated for 18 months, therefore he has earned 9 months
of Earned Time Credits.” Id.
Addressing the § 3553(a) factors, Mr. Gordon contends that the nature and
circumstances weigh in his favor because “[t]his case is the FIRST criminal copyright
case regarding the Fair Use of Orphan Works in US History.” Id. at 3-4. He further
contends that “‘[t]he victims need to be paid’ factor is long fulfilled” and “([u]nder the
new sentencing law) [t]he sentencing disparities between the defendants that have
committed similar offense is even more unjust for Mr. Gordon since the only other
defendant . . . only received probation, which, from information and belief, her
sentence has already been modified.” Id. at 4. He urges the Court “to conclude that
the total equivalent of a 32-month (if properly calculated by the BOP) sentence of a
30-month (if properly calculated by the DOJ) sentence has sufficiently met the
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purposes of sentencing after considering Mr. Gordon’s extraordinary and compelling
circumstances.” Id. at 3.
B. 	The Government’s Opposition
The Government asserts that Mr. Gordon “presents circumstances that are
neither extraordinary nor compelling, and that any application of the 3553(a) factors
to the defendant’s case argues strongly against early termination of his sentence.”
Gov’t’s Resp. at 1. 	It contends that Mr. Gordon’s “claims about BOP actions and
guideline calculations are neither factually supported nor the proper basis for relief
under compassionate release.” Id.
The Government argues that Mr. Gordon’s motion is improper because he
“failed to satisfy his burden of showing that he properly exhausted his administrative
remedies within BOP in accordance with 18 U.S.C. § 3582(c)(1)(A).” 	Id. at 10. 	The
Government explains that Mr. Gordon “does not indicate, reference, or attach any
documentation or RIS indicating he asked for relief on the grounds now brought to
the Court.” Id. at 11. According to the Government, “[u]ndersigned counsel has asked
BOP for such documentation and none was identified . . . [and it is] improper for him
to bring these new claims before the sentencing court without first presenting them
to the Bureau of prisons for administrative action.” Id.
In response to Mr. Gordon’s COVID-19-related argument, the Government
submits that “[a]s the pandemic has progressed, BOP has modified its plan to account
for 	the 	conditions 	then 	affecting 	each 	institution, 	thus 	allowing 	for 	maximal
continuity in programming, recreation, and visitation, BOP now has a tiered system
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based on the COVID rate in the facility and the transmission rate in the community.”
Id. at 5. 	The Government further submits that “there are currently no COVID-19
cases at FMC Devens . . . [i]nmates who want the vaccination receive it . . . [and t]he
fact that the COVID-19 pandemic exists is not an extraordinary and compelling
reason warranting release.” Id. at 11-12.
Regarding Mr. Gordon’s medical conditions, the Government contends that Mr.
Gordon has “the same conditions he had when sentenced less than two years ago,
conditions the Court considered when crafting the sentence in this case.” 	Id. at 12.
The Government further contends that Mr. Gordon’s medical conditions “are not
claims that come within the scope of the compassionate release statute” and “[t]o the
extent [his complaints regard the conditions of his confinement,] they are cognizable
as Eighth Amendment violations . . . [and] must be brought in the district of
confinement under appropriate civil procedure.” Id. at 14.
In response to Mr. Gordon’s argument that “there has been a recent change in
sentencing law applicable to his case,” the Government insists that “[t]his claim is
flawed for several reasons . . . [including that] the guideline analysis cited is not
applicable to [Mr. Gordon’s] case.” 	Id. 	According to the Government, “[t]he PSR
makes clear that Gordon’s loss calculation was based on actual loss, that is the
amount 	actually 	paid 	by 	the 	mail-fraud 	victims 	who 	bought 	his 	fraudulently
purveyed DVDs . . . and the defendant’s cited case law is therefor[e] inapposite.” Id.
The Government contends that Mr. Gordon “makes similarly misconstrued claims
about his sentence calculation under the First Step Act . . . [and his] complaint about
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the calculation of his release date does not [refer] to the relevant portions of the
statute. Id. at 15. Finally, “[t]he government reasserts that the defendant’s sentence
was already on the low end in light of his course of conduct, and that a further
reduction in sentence would not satisfy the aims of general or specific deterrence.”
Id. at 16.
C. 	Douglas Gordon’s Reply
Mr. Gordon submits that “[t]he cumulative effect of [his] existing medical
conditions, a new medical issue and; the Bureau of Prisons (“BOP”) inability to
provide basic medical care and; the still uncertain COVID pandemic and; the new
loss analysis in Fraud cases required under 2B1.1 guidelines are the reasons for this
new [c]ompassionate release request.” 	Def.’s Reply at 1. 	“Focusing instead on the
new fact in this case, the persistent lump, rigidness of his throat and difficulty
swallowing,” Mr. Gordon asserts that this “new fact was bought up as an example of
the BOP’s inability to provide medical care” because he “brought the situation to the
attention of the BOP medical department on 8-23-22, [and] the barium swallow x-ray
was not done until 11/11/22.” 	Id. at 2. 	He insists that “the issues with his throat
started shortly after the 1st COVID vaccine shot, then chronically got worse with the
2nd vaccine shot” and “because Mr. Gordon had a medical reason for refusing the
COVID booster, that refusal should not carry any weight in a determination for
compassionate release.” Id.
Regarding administrative exhaustion, Mr. Gordon contends that “[f]or existing
medical conditions, the Administrative remedies were exhausted with the BOP as
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documented in [his] 1st Compassion Release,” and “[i]t would be futile to attempt to
bring this up to the BOP management as the bulk of the argument is concerning the
recent changes in the sentencing laws brought on by ‘United States v. Banks’ and the
Supreme Court.” 	Id. at 4. 	Regarding sentencing, Mr. Gordon contends that
“[a]llowing the Government to ‘cherry-pick’ the commentary notes and thus, create
an illusion of an astronomical number for purposes of sentencing goes against the
intention of the Supreme Court.” Id. at 3.
According 	to 	Mr. 	Gordon, 	he 	“accepted 	responsibility 	for 	copying 	and
distributing with the explanation of his operation being the Fair Use . . . [which
a]pparently the Government never considered this legal possibility during their 4
year crusade to convict [him].” Id. at 4. He insists that “[n]ow that there is finally a
precedent that was decided in the fall of 2019 in Bangor, Maine, there is zero chance
of Mr. Gordon repeating his offense. 	He witnessed the precedent setting show live
with a front row seat,” and he is “very repentant . . . [and] feels empathy for the 21
victims that felt defrauded by his actions.” Id. at 4-5.
III. 	LEGAL STANDARD
As Judge Hornby of this District cogently summarized:
A federal judge can reduce a sentence under 18 U.S.C. § 3582(c)(1)(A)
under certain circumstances. First, the prisoner must make the request
to the Warden of the prison where he is housed, and thirty days must
pass. 	18 U.S.C. § 3582(c)(1)(A). 	Second, the prisoner must show
“extraordinary and compelling reasons.” 	Id. § 3582(c)(1)(A)(i). 	Third,
the judge must consider the factors set forth in 18 U.S.C. § 3553(a) to
the 	extent 	they 	are 	applicable 	as 	well 	as 	applicable 	Sentencing
Commission policy statements. Id. § 3582(c)(1)(A).
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United States v. Garcia, No. 2:17-cr-100-DBH-01, 2020 U.S. Dist. LEXIS 225910, at
*1-2 (D. Me. Dec. 2, 2020). Regarding the first requirement, a prisoner may only file
a motion for compassionate release after the prisoner “has fully exhausted all
administrative rights to appeal a failure of the Bureau of Prisons to bring a motion
on the defendant’s behalf or 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).
IV. 	DISCUSSION
“When 	inmates 	have 	filed 	a 	motion 	for 	compassionate 	release 	without
previously complying with the exhaustion requirement, the Court’s practice has been
to dismiss the motions without prejudice.” United States v. Cain, No. 1:16-cr-00103-
JAW-1, 2021 U.S. Dist. LEXIS 20672, at *10 (D. Me. Feb. 3, 2021). The Court permits
these inmates to refile their motions after they have complied with the exhaustion
requirement. 	See United States v. Ayotte, No. 1:11-cr-00156-JAW, 2020 U.S. Dist.
LEXIS 122626, at *3 (D. Me. July 13, 2020) (“The Court therefore DISMISSES
without prejudice [the defendant’s] Motion for Compassionate release . . . to allow
him 	to 	refile, 	if 	he 	chooses 	to 	do 	so, 	once 	he 	has 	satisfied 	the 	exhaustion
requirement”).
Successive compassionate release motions must independently satisfy the
exhaustion requirement. 	See United States v. Franco, 973 F.3d 465, 468 (5th Cir.
2020) (concluding that an initial compassionate release motion was untimely for
failure 	to 	exhaust 	because 	“Congress 	used 	clear 	language: 	all 	requests 	for
compassionate release must be presented to the Bureau of Prisons before they are
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litigated in the federal courts”); United States v. Benoit, No. 2:16-cr-00070-JDL, 2020
U.S. Dist. LEXIS 189746, at *4 (D. Me. Oct. 14, 2020) (applying the exhaustion
requirement to an inmate’s second motion for compassionate release); United States
v. Amparo, No. 19-cr-10004-ADB, 2020 U.S. Dist. LEXIS 227640, at *3-5 (D. Mass.
Dec. 4, 2020) (denying a second compassionate release motion with leave to renew
because the prisoner had not shown that he had filed a second petition for release
with the warden); United States v. Robinson, No. 19-00193-KD-B-11, 2020 U.S. Dist.
LEXIS 218917, at *3-4 (S.D. Ala. Nov. 23, 2020) (denying a successive motion for
compassionate release because the defendant failed to exhaust); United States v.
Iwai, No. 15-cr-00723-DKW, 2020 U.S. Dist. LEXIS 204932, at *6 (D. Haw. Nov. 3,
2020) (denying a compassionate release motion for failure to exhaust remedies
because “[e]xhausting administrative remedies on one occasion does not forever
obviate the need to do so”).
Construing the exhaustion requirement as motion-specific is consistent with §
3582(c)(1)(A)’s plain language and the broader statutory framework. 	As the Third
Circuit noted, “[g]iven BOP’s shared desire for a safe and healthy prison environment,
. . . strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added—
and critical—importance.” United States v. Raia, 954 F.3d 594, 597 (3d Cir. 2020).
Judge Sutton of the Sixth Circuit wrote:
Preventing prisoners from charging straight to federal court serves
important purposes. It ensures that the prison administrators can
prioritize 	the 	most 	urgent 	claims. 	And 	it 	ensures 	that 	they 	can
investigate the gravity of the conditions supporting compassionate
release and the likelihood that the conditions will persist. These are not
interests we should lightly dismiss or re-prioritize.
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United States v. Alam, 960 F.3d 831, 835 (6th Cir. 2020); see also id. at 835-36 (“The
seriousness of COVID-19 and its spread in many prisons make it all the more
imperative that the prisons have authority to process these applications fairly and
with due regard for the seriousness of each inmate’s risk”).
In the Court’s view, the compassionate release statute reserves to the warden
at USP Lewisburg or FMC Devens (wherever Mr. Gordon is currently being housed)
the initial duty to assess Mr. Gordon’s request for release, his health, and the
conditions inside the prison. 	Even though Mr. Gordon made a similar request for
release in August 2022, these factors may well have changed in the ensuing months
and “the statute contemplates that the warden be given an opportunity to make an
internal assessment based on then current conditions.” Cain, 2021 U.S. Dist. LEXIS
20672 at *13.
“As a new motion for compassionate release,” Mr. Gordon “must once again
demonstrate 	compliance 	with 	the 	exhaustion 	requirement.” 	Id. 	at 	*14. 	The
Government maintains that the BOP has no record of Mr. Gordon filing a request for
release under the First Step Act, Gov’t’s Opp’n at 11, and Mr. Gordon neither claims
that he filed a request with the BOP nor indicates, references, or attaches any
relevant documentation. 	In fact, Mr. Gordon contends that “the [a]dministrative
remedies were exhausted with the BOP as documented in [his] 1st Compassionate
Release” 	and 	“[i]t 	would 	be 	futile 	to 	attempt 	to 	bring 	this 	up 	to 	the 	BOP
management.” Def.’s Reply at 4. The Court concludes that Mr. Gordon has failed to
exhaust his rights to appeal any denial by the BOP. 	Mr. Gordon’s “one-time
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compliance with the exhaustion requirement in August 2022 does not carry forward
in perpetuity to all his subsequent compassionate release motions.” Cain, 2021 U.S.
Dist. LEXIS 20672 at *15.
V. 	CONCLUSION
The 	Court 	concludes 	that 	Mr. 	Gordon 	has 	not 	fully 	exhausted 	his
administrative 	remedies 	and 	DISMISSES 	without 	prejudice 	Douglas 	Gordon’s
Motion for Compassionate Release (ECF No. 243).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 28th day of March, 2023.
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