USA v. Velez

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 18-cr-14-1-SM
Opinion No. 2020 DNH 214
Hector Velez
ORDER
Defendant’s motion for “compassionate release” from
incarceration under the First Step Act, 18 U.S.C. §
3582(a)(1)(A), given the COVID-19 pandemic, is properly before
the court as defendant has exhausted available administrative
remedies.
The burden is on defendant to show that he is entitled to
relief, that is: 1) that extraordinary and compelling reasons
warrant a reduction in his sentence, and 2) such a reduction
would be consistent with the sentencing factors set out in 18
U.S.C. § 3553(e), as well as Sentencing Commission Policies
(though that is not strictly required under the First Step Act).
Here, the government concedes that defendant’s medical
conditions (asthma and obesity) place him in a high-risk
category should he contract COVID-19, and that defendant has met
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his burden to show “extraordinary and compelling” reasons
warranting sentence reduction in that respect. 	But, says the
government, the sentencing factors weigh heavily against
defendant’s early release, particularly the danger defendant
poses to the community. 	See 18 U.S.C. § 3142(g); USSG §
1B1.13(2).
Defendant was convicted of unlawful possession of a
firearm, and has served about 12 months of a 60-month sentence.
He has a history of recidivism, including a prior conviction for
first degree assault and rioting, and he committed the current
offense while on probation. 	Defendant has plainly not met his
burden to show that he no longer poses a danger to the safety of
the community. 	In addition, defendant’s early release would,
under these circumstances, be inconsistent with the sentencing
goals of promoting respect for the law, imposing a just
punishment, protecting the public, and providing for both
general and specific deterrence. 	18 U.S.C. § 3553(a).
Conclusion
While FCI Berlin has experienced an increase in the
presence of the COVID-19 virus, consistent with an increase in
the surrounding community, the staff continues to take
appropriate mediation measures to limit its spread within the
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facility. 	The danger to public safety defendant would pose if
released, and the sentencing factors described in 18 U.S.C. §
3553(a) militate against defendant’s early release. 	Even if
defendant were granted early release, his record does not
suggest that he would likely abide by restrictive conditions or
follow CDC guidelines designed to limit spread of the virus.
The motion for compassionate release under the First Step Act
(document no. 36) is hereby denied.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
December 10, 2020
cc: 	Anna Z. Krasinski, AUSA
Eric Wolpin, Esq.
U.S. Probation
U.S. Marshal
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