USA v. Perkins et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal No. 14-cr-104-LM-1
Opinion No. 2020 DNH 146
Roger Perkins
O R D E R
In this case, the court issued an opinion yesterday
detailing the reasons that the Bureau of Prisons (”BOP”) should
exercise its discretion to furlough defendant to a term of home
confinement to last only for the duration of the pandemic.
United States v. Perkins, Crim. No. 14-cr-104, 2020 WL 4783558,
at *9 (D.N.H. Aug. 18, 2020). The court incorporates herein the
findings and conclusions in that opinion. The court explained
in that opinion why BOP was better suited to release defendant
than the court. In short, only BOP has the power to issue a
temporary release or furlough; the court does not have such
power.
BOP communicated to defense counsel on today’s date that it
would not revisit its previous decision to deny defendant’s
release.1 As the court explained in its opinion, all of the
1 In light of the health risks, the court appreciates the
haste with which BOP communicated its position. The court is
troubled, however that BOP continues to characterize defendant
as having a “history of sex offenses.” As the court spelled out
in its opinion, this characterization is inaccurate.
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 1 of 8

2
goals of sentencing are best served for the BOP, rather than the
court, to release this defendant on a temporary furlough. Since
BOP declines to exercise its discretion to release this
defendant on such a furlough, defendant has filed a renewed
request for release (doc. no. 89). The court indicated in its
opinion that it would revisit defendant’s request in the event
BOP denied him release. The court now grants defendant’s
renewed request for release.
First, there is no dispute here that defendant is a high
risk of death or serious illness should he contract COVID-19.
The court detailed in its opinion the reasons defendant’s risks
are particularly severe.
Second, as explained in its detailed opinion, the court is
persuaded that, despite his criminal record, defendant is a low
risk for dangerousness if released under strict supervision.
BOP concurs with this low risk assessment, as it has rated
defendant as a “low risk” for violence and has housed him in a
low security prison facility.
Third, the court reconsiders the other goals of sentencing
in light of BOP’s decision to deny release. Under the unique
circumstances here, the court finds that a reduction in
defendant’s sentence would sufficiently reflect the seriousness
of the offense, afford adequate deterrence, promote respect for
the law, and provide just punishment. See 18 U.S.C. §
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 2 of 8

3
3553(a)(2). Although the court sentenced defendant to a lengthy
term of incarceration, it did not intend that defendant suffer
the very real risk of death while serving that sentence. And
while a furlough would best serve the goals of sentencing, a
death sentence would not serve the goal of promoting respect for
the law and would not be a just punishment.
Defendant has served more than half of his sentence—he has
been detained since August 28, 2014 (nearly 6 years) and his
projected release date is approximately 4 years away in August
2024. The date on which defendant becomes eligible for release
from BOP custody to home detention or a residential reentry
program is February 29, 2024. The six-year term defendant has
served is more than twice the amount of time he has ever
previously been incarcerated. The court finds that a six-year
term of imprisonment followed by a more than three-year term of
special supervised release on home confinement until February
29, 2024, followed by a five-year term of supervised release is
a just punishment for defendant and is likely to deter defendant
from relapsing into unlawful conduct.
Finally, the court weighs the sentencing factors against
the strength of defendant’s extraordinary and compelling reasons
for release. See United States v. Tidwell, ___ F. Supp. 3d ___,
2020 WL 4504448, at *6 (E.D. Pa. Aug. 5, 2020); United States v.
Daugerdas, ___ F. Supp. 3d ___, 2020 WL 2097653, at *4 (S.D.N.Y.
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 3 of 8

4
May 1, 2020). Weighing most heavily in favor of a reduction in
defendant’s sentence are defendant’s extraordinary and
compelling reasons for release. The court is concerned that
requiring defendant to stay in BOP custody during the pandemic
may well amount to a death sentence. Thus, although defendant’s
release poses a risk that he will reoffend, the court finds that
that risk is outweighed by a low likelihood of dangerousness
and, most importantly, by the extreme danger posed to his health
if he remains incarcerated.
For these reasons, and in light of BOP’s decision not to
release defendant on a furlough, the court concludes that
defendant has met his burden of showing that he is entitled to a
sentence reduction under § 3582(c)(1)(A). A reduction in
defendant’s sentence to time served followed by a term of
special supervised release on home confinement until February
29, 2024, will best serve the goals of sentencing.
CONCLUSION
For the foregoing reasons, the court grants defendant’s
motion for compassionate release (doc. no. 80) and renewed
motion (doc. no. 89) as follows:
1) The defendant’s sentence will be reduced to time served.
2) The defendant will be placed on a special term of
supervised release until February 29, 2024, which is equivalent
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 4 of 8

5
to his BOP eligibility date for home detention, during which
time he will remain on home confinement under the terms of
release outlined in Appendix A.
3) Following the term of special supervised release, the
defendant will be placed on supervised release for a term of
five years.
4) During the terms of special supervised release and
supervised release, the defendant shall be subject to the
Supervision Conditions as set forth in Appendix A.
5) The BOP shall release the defendant immediately
following processing.
6) The court recommends that the BOP screen the defendant
for COVID-19 within twelve hours prior to his release, and if he
is displaying symptoms consistent with COVID-19, test the
defendant and share the results with the United States Probation
Office in the District of New Hampshire.
7) The court will issue an amended criminal judgment.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
August 19, 2020
cc: Counsel of Record
U.S. Probation
U.S. Marshal
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 5 of 8

1
APPENDIX A
SUPERVISION CONDITIONS:
Within seventy-two hours of release from custody of the
Bureau of Prisons, the defendant shall report in person to the
district to which the defendant is released.
While under supervision, the defendant must comply with the
following mandatory conditions:
The defendant shall not commit another federal, state, or
local crime.
The defendant shall not unlawfully possess a controlled
substance.
The defendant shall refrain from any unlawful use of a
controlled substance. The defendant shall submit to one drug
test within 15 days of release from imprisonment and at least
two periodic drug tests thereafter, not to exceed 72 drug tests
per year.
The defendant shall not possess a firearm, ammunition,
destructive device, or any other dangerous weapon.
The defendant shall cooperate in the collection of DNA as
directed by the probation officer.
While under supervision, the defendant must also comply
with the following standard conditions of supervision that have
been adopted by this court:
1)The defendant shall not leave the judicial district
without the permission of the court or probation officer.
2) The defendant shall report to the probation officer in a
manner and frequency directed by the court or probation officer.
3) The defendant shall answer truthfully all inquiries by
the probation officer and follow the instructions of the
probation officer.
4) The defendant shall support his or her dependents and
meet other family responsibilities.
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 6 of 8

2
5) The defendant shall work regularly at a lawful
occupation, unless excused by the probation officer for
schooling, training, or other acceptable reasons.
6) The defendant shall notify the probation officer at
least ten days prior to any change in residence or employment.
7) The defendant shall refrain from excessive use of
alcohol and shall not purchase, possess, use, distribute, or
administer any controlled substance or any paraphernalia related
to any controlled substances, except as prescribed by a
physician.
8) The defendant shall not frequent places where controlled
substances are illegally sold, used, distributed, or
administered.
9) The defendant shall not associate with any persons
engaged in criminal activity and shall not associate with any
person convicted of a felony, unless granted permission to do so
by the probation officer.
10) The defendant shall permit a probation officer to visit
him or her at any time at home or elsewhere and shall permit
confiscation of any contraband observed in plain view of the
probation officer.
11) The defendant shall notify the probation officer within
seventy-two hours of being arrested or questioned by a law
enforcement officer.
12) The defendant shall not enter into any agreement to act
as an informer or a special agent of a law enforcement agency
without the permission of the court.
13) As directed by the probation officer, the defendant
shall notify third parties of risks that may be occasioned by
the defendant’s criminal record or personal history or
characteristics and shall permit the probation officer to make
such notifications and to confirm the defendant’s compliance
with such notification requirement.
In addition, the defendant must comply with the following
special conditions:
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 7 of 8

3
1. Upon release, the defendant must obtain transportation
directly from the prison to his approved residence. The
defendant must eliminate or minimize any stops during that
transport.
2. The defendant must self-quarantine in an approved
residence during the first fourteen days of his supervised
release.
3. The defendant is restricted to his residence at all
times during his term of special supervised release except for
employment; education; religious services; medical, substance
abuse, or mental health treatment; attorney visits; court
appearances; court-ordered obligations; or other activities as
pre-approved by the officer. During this time period, the
defendant’s location will be monitored at the discretion of the
probation officer. The probation officer will determine what
type of technology to use to monitor the defendant. The
defendant must follow the rules and regulations of any
monitoring program. The defendant must pay for the cost of the
program to the extent he is able, as determined by the probation
officer. If, after six months, defendant has not violated this
condition or any other condition of his special supervised
release, the court will favorably consider his request to lift
this condition.
4. As directed by the probation officer, the defendant
shall participate in a program approved by the United States
Probation Office for treatment of narcotic addiction or drug or
alcohol dependency which will include testing for the
detection of substance use or abuse. The defendant shall also
abstain from the use of alcoholic beverages and/or all other
intoxicants during and after the course of treatment. The
defendant shall pay for the cost of treatment to the extent he
is able as determined by the probation officer.
5. The defendant shall submit his person, residence,
office, or vehicle to a search conducted by a U.S. probation
officer at a reasonable time and in a reasonable manner, based
upon reasonable suspicion that contraband or evidence of a
violation of a condition of release may exist; failure to submit
to a search may be grounds for revocation; the defendant shall
warn any other residents that the premises may be subject to
searches pursuant to this condition.
Case 1:14-cr-00104-LM Document 90 Filed 08/19/20 Page 8 of 8