USA v. Eisenberg

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 16-cr-157-LM
Opinion No. 2020 DNH 094
Leeland Eisenberg
O R D E R
Defendant is serving a 60-month sentence for bank robbery
at the United States Penitentiary in Terre Haute, Indiana. He
moves this court to grant him compassionate release under 18
U.S.C. § 3582(c)(1)(A) based on the threat posed to his health
by the combination of his underlying medical conditions and the
spread of COVID-19 in USP Terre Haute. The government concedes
that defendant has exhausted his administrative remedies but
objects to his release. The court held a telephonic hearing on
defendant’s motion on May 11, 2020, at which defendant
testified.
STANDARD OF REVIEW
A court may grant so-called “compassionate release” to a
defendant under 18 U.S.C. § 3582(c)(1)(A). The statute
provides, in relevant part, that:
[T]he court, upon motion of the Director of the Bureau
of Prisons or upon motion of the defendant after the
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defendant 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, may reduce the term of imprisonment (and may
impose a term of probation or supervised release with
or without conditions that does not exceed the
unserved portion of the original term of
imprisonment), after considering the factors set forth
in section 3553(a) to the extent that they are
applicable, if it finds that—
(i) extraordinary and compelling reasons warrant
such a reduction
. . .
and that such a reduction is consistent with
applicable policy statements issued by the
Sentencing Commission.
18 U.S.C. § 3582(c)(1)(A); see also U.S.S.G. § 1B1.13
(sentencing guidelines policy statement on compassionate
release).
Where, as here, a motion for compassionate release is
properly before the court, the court must determine if defendant
is eligible for release. A court may reduce a term of
imprisonment under the compassionate release provision if it:
(1) finds that extraordinary and compelling reasons warrant the
reduction; (2) finds that the defendant is not likely to be a
danger to the safety of any other person or the community; and
(3) considers the sentencing factors outlined in 18 U.S.C.
§ 3553(a). See 18 U.S.C. § 3582(c)(1)(A); U.S.S.G. § 1B1.13;
United States v. Britton, Crim. No. 18-cr-108-LM, 2020 WL
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2404969, at *1-2 (D.N.H. May 12, 2020); see also United States
v. Sapp, No. 14-CR-20520, 2020 WL 515935, at *2 (E.D. Mich. Jan.
31, 2020); United States v. Willis, 382 F. Supp. 3d 1185, 1187
(D.N.M. 2019). The defendant has the burden of showing that he
is entitled to a sentence reduction. United States v. Ebbers,
No. S402CR11443VEC, 2020 WL 91399, at *4 (S.D.N.Y. Jan. 8,
2020). And the court has “broad discretion in deciding whether
to grant or deny a motion for sentence reduction.” United
States v. Paul Gileno, No. 3:19-CR-161-(VAB)-1, 2020 WL 1307108,
at *2 (D. Conn. Mar. 19, 2020) (internal quotation marks
omitted).
BACKGROUND
Defendant pleaded guilty to one count of bank robbery in
violation of 18 U.S.C. § 2113(a) in February 2017. This court
sentenced defendant to 60 months of imprisonment, three years of
supervised released, and restitution in the amount of $1,160.00.
Defendant is currently serving that sentence at USP Terre Haute.
In March 2020, defendant requested that this court grant him
compassionate release due to his worsening medical condition.
The court denied that request without prejudice because
defendant had not exhausted his administrative remedies as
required by the compassionate release statute. Doc. no. 34.
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Defendant has now filed a supplemental motion for
compassionate release based on the threat posed to his health by
the combination of his underlying medical conditions and the
spread of COVID-19 in USP Terre Haute. Doc. no. 35.1 After the
telephonic hearing in this case, the court issued an endorsed
order explaining that while it considered some aspects of
defendant’s motion favorably, it was “concerned that there is no
release plan.” Endorsed Order, May 11, 2020. The court took
defendant’s supplemental motion for compassionate release under
advisement, stating “The court will favorably entertain a
placement proposal that adequately addresses and accounts for
Mr. Eisenberg’s health and safety, as well as the safety of the
community.” Id. On May 20, 2020, defendant, with the
assistance of counsel, filed a proposed release plan (doc. no.
44) to which the government objects.2
1 Defendant filed this motion pro se, as well as several
other motions seeking the same or similar relief: a renewed
motion for compassionate release (doc. no. 37); and two motions
to reconsider the court’s prior order denying without prejudice
his former motion for compassionate release (doc. nos. 40 & 41).
Because all four pending motions rely on essentially the same
grounds and request the same relief, the court will refer to
these motions collectively as defendant’s supplemental motion
for compassionate relief. To be clear, the court has reviewed
and relied on all defendant’s filings in making this ruling.
2 Defendant’s proposed release plan requests that the court
hold an expedited hearing. Doc. no. 44. Based on the pleadings
and given that the court has already held a hearing on this
matter, the court is not convinced that further oral argument
would “provide assistance to the court.” LR 7.1(d).
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DISCUSSION
The court has considered whether defendant has established
an extraordinary and compelling reason warranting his release,
whether he is likely to be a danger to the community if
released, and whether the sentencing factors support his
release. Before the court received defendant’s proposed release
plan, the court indicated that it was “favorably inclined to
grant” defendant’s release. Endorsed Order, May 11, 2020. But
the court’s impression of defendant’s request has changed.
After considering defendant’s criminal history in light of the
facts on the ground at the halfway house where he proposes to be
released, the court is not confident that defendant can be
trusted to comply with the rules in that less-restrictive
environment. The court begins its analysis with defendant’s
dangerousness because it drives the court’s decision in this
case.
I. Dangerousness
Defendant represents a danger to the community.
Defendant’s criminal history spans his entire adult life. It
includes both minor offenses (shoplifting, drug possession) and
violent and disturbing crimes (rape, kidnapping, stalking, false
reports of explosives). See doc. no. 14 at 8-19 (presentence
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investigation report). For example, in 2007, defendant used the
threat of detonating a bomb strapped to himself to hold hostage
individuals present at Hillary Clinton’s campaign office in
Rochester, New Hampshire. Id. at 15-16. Defendant also used a
threat of violence to perpetrate the bank robbery for which he
is currently incarcerated. Id. at 4.
Defendant also has a history of violating conditions of his
release. He has been found to have violated his parole on
multiple occasions. See doc. no. 14 at 10, 15. Most relevant
and most concerning, he pleaded guilty to escaping from a
halfway house in 2013. Id. at 17-18. In light of defendant’s
dangerous criminal history and inability to abide by conditions
of release, the court finds that if released defendant is likely
to pose a danger to another person or the community. See United
States v. Mackenzie, No. CR 13-10149-FDS, 2020 WL 2104786, at *2
(D. Mass. May 1, 2020) (denying motion for compassionate release
because defendant still posed a danger to the community in light
of his criminal history and the nature of the offense); United
States v. Van Dyke, No. 2:15-CR-0025-JLQ-1, 2020 WL 1811346, at
*3 (E.D. Wash. Apr. 8, 2020), adhered to on reconsideration,
2020 WL 1845553 (E.D. Wash. Apr. 10, 2020) (denying motion for
compassionate release in part due to defendant’s history of
repeated supervised release violations). This finding weighs
heavily against defendant’s release.
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II. Extraordinary and Compelling Reason
It cannot be disputed that defendant meets this eligibility
requirement for compassionate release. He has multiple
underlying health conditions—including heart failure,
hypertension, chronic obstructive pulmonary disease (COPD), and
emphysema—that put him at a substantially higher risk for severe
illness or death from COVID-19. See CDC, Groups at Higher Risk
for Severe Illness, https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/groups-at-higher-risk.html (last
visited May 28, 2020) (listing heart failure, hypertension, COPD
and emphysema as medical conditions placing the individual at
higher risk); see also United States v. Griggs, No. 4:18-CR-
00216-DCC, 2020 WL 2614867, at *6 (D.S.C. May 22, 2020)
(collecting cases granting compassionate release to older
individuals with multiple preexisting health conditions). The
government concedes that defendant’s medical conditions put him
in the high-risk category. And there is no dispute that some
inmates at USP Terre Haute have tested positive for the virus.
Nevertheless, and in light of defendant’s dangerousness, the
court is concerned about defendant’s proposed release plan.
Defendant’s proposed release plan is that the court place
him on supervised release to live at Coolidge House, a halfway
house, in Boston, Massachusetts, where he will be supervised by
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a local probation officer. The government objects to this
proposed release plan because, as the government sees it, the
plan would not provide better protection from contracting COVID-
19 than his current placement at USP Terre Haute.
The court would consider defendant’s placement at Coolidge
House a suitable placement if defendant could be trusted to
abide by the rules and regulations at Coolidge House. However,
defendant’s history of committing dangerous crimes and violating
conditions of release spells disaster for those currently
residing in Coolidge House, the staff of Coolidge House, and the
probation officer assigned to supervise defendant’s release.
The court has no confidence that defendant would abide by rules
regarding social distancing, the wearing of masks, and any other
rules designed to keep him, the residents, and the staff safe.
Currently at Coolidge House the infection rate for COVID-19 is
higher than at USP Terre Haute. Coolidge House currently has
seven positive cases out of roughly 60 residents, while USP
Terre Haute currently has three positive cases out of
approximately 1,319 inmates and one prior case resulting in
death.3
3 See BOP, COVID-19 Cases, https://www.bop.gov/coronavirus/
(last visited June 2, 2020); BOP, USP Terre Haute,
https://www.bop.gov/locations/institutions/thp/ (last visited
June 2, 2020).
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Given that both placements represent a risk of infection,
the court is not persuaded to release defendant to a less-
restrictive environment. In a carceral setting, inmates,
including defendant, can be forced to comply with certain
precautionary measures in a way that residents at a halfway
house cannot. For instance, the prison can impose a lock-down
that restricts inmates to their cells for certain hours of the
day; the same cannot be said of a halfway house.
Even with the deterrent effect of the risk of infection,
the court is not confident that defendant will voluntarily abide
by CDC guidelines and recommendations, which will not only put
him at risk of infection, but the other residents at Coolidge
House, probation officers, and the community at large. In light
of all these considerations, the court is not persuaded that
defendant’s placement in the less-restrictive environment of
Coolidge House makes any sense.
III. Sentencing Factors
Finally, the court must consider whether a reduction in
defendant’s sentence is consistent with the sentencing factors
outlined in 18 U.S.C. § 3553(a) to the extent they are
applicable. See 18 U.S.C. § 3582(c)(1)(A). Specifically, the
court will consider whether the § 3553(a) sentencing factors
support a reduction in defendant’s sentence, or, alternatively,
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whether they outweigh any “extraordinary and compelling reasons”
supporting release and compel denial of the motion. See, e.g.,
United States v. Webster, No. 3:91CR138 (DJN), 2020 WL 618828,
at *6 (E.D. Va. Feb. 10, 2020); Ebbers, 2020 WL 91399, at *7.
Because defendant has medical issues that place him at high
risk should he contract COVID-19, he appears to have established
an extraordinary and compelling reason supporting his release.
The court finds, however, that consideration of the sentencing
factors outweighs that reason in this case. As explained in
detail above, defendant poses a danger to the community if
released—due to both his criminal history and his demonstrated
inability to voluntarily comply with conditions of release in
less-restrictive environments. While it is true that defendant
is approaching his release date, the court finds it necessary
that he remain incarcerated for his own safety and that of the
community. See Mackenzie, 2020 WL 2104786, at *2-3 (even if
court were to find extraordinary and compelling reason for
release, court found that defendant’s dangerousness and
consideration of the § 3553(a) factors weighed heavily against
release).
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CONCLUSION
For the foregoing reasons, the court denies without
prejudice defendant’s supplemental motion for compassionate
release (doc. nos. 35, 37, 40, 41).
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
June 3, 2020
cc: Counsel of Record
U.S. Probation
U.S. Marshal
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