USA v. Fysh

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 18-cr-131-1-SM
Opinion No. 2022 DNH 034
Katie Fysh
ORDER
Defendant’s motion for “compassionate release” (doc. no.
48) from incarceration under the First Step Act, 18 U.S.C. §
3582(a)(1)(A), and supplemental motion (doc. no. 54), are
properly before the court as defendant has exhausted available
administrative remedies.
The burden is on defendant to show that she is entitled to
relief, that is 1) that extraordinary and compelling reasons
warrant a reduction in her 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 conceded that defendant’s medical
conditions place her in a high-risk category should she contract
COVID-19, and that defendant has met her burden to show
“extraordinary and compelling” reasons warranting sentence
reduction. 	But, says the government, the sentencing factors
still weigh heavily against defendant’s early release,
particularly the danger defendant poses to the community. 	See
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18 U.S.C. § 3142(g); USSG § 1B1.13(2). 	And, the government
adds, defendant will soon be transitioned from incarceration to
a residential facility.
Defendant was convicted of conspiracy to distribute and
possess with the intent to distribute the controlled substance
Fentanyl, in violation of 28 U.S.C. § 846 and 841(a). 	She has a
history of recidivism (CHC III), and she has not met her burden
to show that she 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). 	Releasing defendant
and thereby avoiding transitioning programming would also be
inconsistent with the sentencing goals of promoting
rehabilitation.
Conclusion
Given the current low risk of community spread of the virus
in the facility, the danger to public safety defendant would
pose if released to her home early, and the sentencing factors
militating against defendant’s early release, the motion for
compassionate release under the First Step Act, and supplemental
motion, (doc. nos. 48 and 54) are hereby denied.
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SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
March 15, 2022
cc: 	Georgiana MacDonald, AUSA
Donald A. Kennedy, Esq.
U.S. Probation
U.S. Marshal
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