USA v. Parker et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v.
Anthony Burnett
Case No. 06-cr-00034-PB-2
Opinion No. 2020 DNH 110
MEMORANDUM AND ORDER
Defendant Anthony Burnett (“Burnett”) moves for
compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)
(“Section 3582(c)(1)(A)”), as amended by Section 603(b)(1) of
the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-
391, § 603(b)(1), 132 Stat. 5194, 5239.
I. 	STANDARD OF REVIEW
Following its amendment by the First Step Act, the
compassionate release statute provides that
the court, upon motion of the Director of the Bureau of
Prisons [(“BOP”)], or upon motion of the defendant after
the 	defendant 	has 	fully 	exhausted 	all 	administrative
rights to appeal a failure of the [BOP] to bring a motion
on the defendant’s behalf or the lapse of [thirty] 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 	. 	. 	. 	after 	considering 	the
factors 	set 	forth 	in 	[S]ection 	3553(a) 	to 	the 	extent
that they are applicable . . . .
18 U.S.C. § 3582(c)(1)(A). The court may do so if it finds that
“extraordinary and compelling reasons warrant such a reduction,”
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§ 3582(c)(1)(A)(i), and that “such a reduction is consistent
with applicable policy statements issued by the Sentencing
Commission,” § 3582(c)(1)(A). The Sentencing Commission’s policy
statement (“the policy statement”), which was promulgated prior
to the passage of the First Step Act,1 provides as follows:
Upon motion of the Director of the [BOP] under [Section
3582(c)(1)(A)], 	the 	court 	may 	reduce 	a 	term 	of
imprisonment 	(and 	may 	impose 	a 	term 	of 	supervised
release with or without conditions that does not exceed
the 	unserved 	portion 	of 	the 	original 	term 	of
imprisonment) 	if, 	after 	considering 	the 	factors 	set
forth in [Section 3553(a)], to the extent that they are
applicable, the court determines that —
(1) 	(A) 	Extraordinary 	and 	compelling 	reasons 	warrant
the reduction; . . .
(2) 	The 	defendant 	is 	not 	a 	danger 	to 	the 	safety 	of 	any
other 	person 	or 	to 	the 	community, 	as 	provided 	in 	18
U.S.C. § 3142(g); and
(3) 	The 	reduction 	is 	consistent 	with 	this 	policy
statement.
U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S.
Sentencing Comm’n 2018). The commentary to the policy statement
1 District courts are divided on whether this policy statement
remains binding following the enactment of the First Step Act.
Cf. United States v. Fox, No. 2:14-cr-03-DBH, 2019 WL 3046086,
at *2 (D. Me. July 11, 2019) (collecting cases). I am aware of
no court that has chosen to disregard the policy statement
entirely. I, instead, conclude that it “provides helpful
guidance on the factors that support compassionate release,
although it is not ultimately conclusive given the statutory
change.” Id. at *3.
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further explains what is meant by “extraordinary and compelling
reasons.” This commentary states, in relevant part:
Provided 	the 	defendant 	meets 	the 	requirements 	of
subdivision 	(2), 	extraordinary 	and 	compelling 	reasons
exist 	. 	. 	. 	[when 	t]he 	defendant 	is 	suffering 	from 	a
terminal 	illness 	(i.e., 	a 	serious 	and 	advanced 	illness
with an end of life trajectory). A specific prognosis of
life 	expectancy 	(i.e., 	a 	probability 	of 	death 	within 	a
specific time period) is not required. Examples include
metastatic 	solid-tumor 	cancer, 	amyotrophic 	lateral
sclerosis 	(ALS), 	end-stage 	organ 	disease, 	and 	advanced
dementia.
USSG § 1B1.13 cmt. n.1—(A)(i).
II. 	BACKGROUND
In 2006, a jury of Burnett’s peers found him guilty of five
drug trafficking and firearms-related offenses. Jury Verdict,
Doc. No. 59 at 1–2.2 Under mandatory minimum requirements in
place at the time, I sentenced him to a term of imprisonment of
life plus sixty months. J. in a Crim. Case, Doc. No. 111 at 3.
In 2019, Burnett moved to have his sentence reduced. Def.’s Mot.
to Reduce Sentence Pursuant to the First Step Act, Doc. No. 162
at 1. Burnett argued that Section 404 the First Step Act
permitted me to resentence him under the modified statutory
penalties of the Fair Sentencing Act of 2010 (“Fair Sentencing
2 Burnett was found guilty of (1) Conspiracy to distribute
cocaine base “crack,” (2) Possession with intent to distribute,
(3) Possession of a firearm in furtherance of a trafficking
crime, (4) Use of a firearm during a drug trafficking crime, and
(5) Felon in possession of firearms. Doc. No. 59 at 1–2.
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Act”), Pub. L. 111-220, §§ 2, 3, 124 Stat 2372, 2372 (codified
as amended at 21 U.S.C. §§ 841(b)(1), 844(a)). Doc. No. 162 at
4–5. I agreed and reduced his sentence to 240 months. Order Re:
Mot. for Sent’g Reduction Pursuant to 18 U.S.C. § 3582(c)(2),
Doc. No. 177 at 1.
Burnett currently suffers from “severe cardiomyopathy
associated with rheumatic heart disease.” Reduction in Sentence
(RIS) Review Comm. Comprehensive Med. Summ., Doc. No. 186-3 at
1. He has been diagnosed with congestive heart failure with a
“poor” prognosis. Doc. No. 186-3 at 2. Although his condition
has improved thanks to transcatheter aortic valve replacement
(“TAVR”) surgery, his heart remains extremely weak, with an
ejection fraction (“EF”) between eighteen and twenty-five
percent.3 Doc. No. 186-3 at 2. He requires a wheelchair or walker
to ambulate. Doc. No. 186-3 at 3. Burnett’s cardiologist “has
mentioned a [five-]year trajectory as a rough estimate” of his
life expectancy. Doc. No. 186-3 at 3.
In light of his medical condition, Burnett submitted a
request for sentence reduction to the BOP, which was denied on
3 At the June 15, 2020 hearing held on Burnett’s motion, Dr.
Patricia Ruze, who authored Burnett’s comprehensive medical
summary, stated that Burnett’s heart condition leaves him more
susceptible to complications from COVID-19, should he contract
the virus. Although Dr. Ruze did not testify under oath, I have
no reason to doubt this assessment.
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February 11, 2020. Mem. for Radm S. Spaulding, Warden, Fed. Med.
Ctr. Devens, Doc. No. 186-4 at 1. He filed this motion for
compassionate release on May 26, requesting a sentence reduction
to time served. Doc. No. 186 at 1. I held a hearing on Burnett’s
motion on June 15. At my request, the U.S. Probation Office
supplemented its release plan for Burnett, addressing concerns I
expressed at the hearing regarding Burnett’s proposed placement.
III. DISCUSSION
The BOP denied Burnett’s request for a reduction in
sentence, Doc. No. 186-4 at 1, so his motion is properly before
me under Section 3582(c)(1)(A). At the hearing on Burnett’s
motion, the government agreed that Burnett’s medical condition
meets the policy statement’s commentary definition of
“extraordinary and compelling circumstances.” I concur with the
government’s assessment. Accordingly, I must return to the
familiar Section 3553(a) factors and also determine whether
Burnett is “a danger to the safety of any other person or to the
community” under Section 1B1.13(1)(B) of the USSG.
The bulk of the Section 3553(a) factors weigh in favor of
compassionate release. Most importantly, Burnett has already
served over fifteen years in prison, a term sufficient “to
reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense,” §
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3553(a)(2)(A), and “to afford adequate deterrence to criminal
conduct,” § 3553(a)(2)(B). The only Section 3553(a) factor
potentially weighing against release is the need “to protect the
public from further crimes of the defendant.” § 3553(a)(2)(C).
This factor is substantially similar to the policy statement’s
instruction to evaluate whether the defendant is “a danger to
the safety of any other person or to the community.” USSG §
1B1.13(2).
The danger that Burnett poses to the public is real. He is
currently serving a sentence based, in part, on the use of a
firearm in furtherance of a drug crime. Doc. No. 59 at 1–2. He
also has an extensive criminal history, including numerous
convictions for state drug and firearms offenses, as well as
assault and battery. Presentence Investigation Report, Doc. No.
171-3 at 16–22. Since his incarceration with the BOP, Burnett
has amassed a lengthy record of disciplinary infractions,
including assault with serious injury, assault without serious
injury, and possessing a dangerous weapon. Suppl. Presentence
Investigation Report, Doc. No. 171 at 2.
The danger that Burnett poses, however, is substantially
mitigated by his medical condition. He is currently able to move
only short distances using a walker and is otherwise wheelchair-
bound. His heart function is extremely weak. His condition is
unlikely to improve substantially. Under these conditions, I am
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satisfied that the danger Burnett poses to the community can be
adequately addressed through the imposition of a one year term
of special supervised release during which Burnett will be
confined to his home and will be subject to electronic
monitoring.
Because the only Section 3553(a) factor weighing against
Burnett’s release is adequately mitigated by his current
physical limitations and by a one-year period of home detention
with electronic monitoring, I conclude that the balance of the
factors weighs in favor of his release.
IV. 	CONCLUSION
For the foregoing reasons, Burnett’s amended motion for
compassionate release (Doc. No. 186) is granted as follows:
1) Burnett’s sentence will be reduced to time served.
2) Burnett will be placed on special supervised release for
one year, during which time he is to remain on home confinement
and be subject to electronic monitoring.
3) Following the term of special supervised release,
Burnett will be placed on supervised release for a term of five
years.
4) The clerk shall set a telephone conference with counsel
to discuss proposed terms of supervised release and the content
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of the amended judgment that the court will issue prior to the
defendant’s release.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
June 30, 2020
cc: 	Seth R. Aframe, Esq.
Behzad Mirhashem, Esq.
U.S. Marshal
U.S. Probation
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