USA v. Potter

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JOSEPH STEPHAN POTTER,
Defendant.
Case No. 3:19-cr-00064-SLG
ORDER REGARDING MOTION REQUESTING JUDICIAL
RECOMMENDATION
Before the Court at Docket 44 is defendant Joseph Stephan Potter’s Motion
for Judicial Recommendation for Transfer to Residential Reentry Center or Home
Confinement. Mr. Potter seeks a recommendation from this Court that the Bureau
of Prisons (BOP) place him in a residential reentry center or home confinement for
the remainder of his sentence, which is approximately eight months.1 The
government responded in opposition at Docket 45. The U.S. Probation Office filed
a sealed investigation report at Docket 46.
On March 6, 2020, this Court sentenced Mr. Potter to 24 months
imprisonment after he pleaded guilty to Possession of a Controlled Substance
(Marijuana) with Intent to Distribute.2 Mr. Potter is housed at the Nevada Southern
1 Docket 44 at 1–2.
2 Docket 41.
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Detention Center (NSDC), a private facility that contracts with the U.S. Marshals
Service and is not operated by the BOP.3 Mr. Potter’s release date is estimated
as March 6, 2021.4 Mr. Potter asserts that placement in a reentry center or release
to home confinement to reside with his former attorney and family friend is
warranted so that he can minimize his risk of contracting COVID-19 while
incarcerated and because there are no programming or treatment options
available to him at the NSDC.5 The government responds that Mr. Potter has not
submitted any medical records to confirm his claimed asthma or stomach
conditions and that Mr. Potter should serve the full 24-month sentence that the
parties agreed to in their plea agreement and as imposed by the Court.6 The U.S.
Probation Office recommends that Mr. Potter’s request be denied because there
is no verified medical information indicating that Mr. Potter is particularly
susceptible to COVID-19 and because Mr. Potter poses a threat to the community.7
Mr. Potter seeks a judicial recommendation pursuant to “the Second Chance
Act (SCA), the First Step Act (FSA), the Coronavirus Aid, Relief, and Economic
Security Act (‘CARES Act’) and Attorney General Barr’s Memoranda regarding
3 Docket 44 at 2.
4 www.bop.gov/inmateloc/ (last accessed July 30, 2020).
5 Docket 44 at 2, 8–11.
6 Docket 45 at 2–3; see also Docket 44 at 8 (describing asthma and “some kind of painful
stomach growth”).
7 Docket 46 at 3–4.
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Prioritization of Home Confinement.”8 Of those, only the Second Chance Act
authorizes or contemplates the recommendation of the sentencing court as a factor
to be considered by the BOP.
Congress has made BOP responsible for determining where to place federal
inmates after entry of judgment.9 The Second Chance Act of 2007 increased
inmates’ eligibility for placement in a residential reentry center from 6 to 12 months
“under conditions that will afford that prisoner a reasonable opportunity to adjust
to and prepare for the reentry of that prisoner into the community.”10 Prior to the
CARES Act, BOP could place an inmate in home confinement “for the shorter of
10 percent of the term of imprisonment . . . or 6 months.”11 The CARES Act now
authorizes the Director of the Bureau of Prisons to lengthen the maximum amount
of time that a prisoner may be placed in home confinement as the Director finds
appropriate.12 However, the Second Chance Act does not require that the BOP
place a particular inmate in a residential reentry center or home confinement, and
while the Court may make a recommendation for placement, “a district court’s
recommendation to the [BOP] is just that—a recommendation.”13
8 Docket 44 at 1.
9 18 U.S.C. § 3621(b).
10 Pub. L. 110-199, § 251, 122 Stat. 657 (2008), codified at 18 U.S.C. § 3624(c)(1).
11 Pub. L. 110-199, § 251, 122 Stat. 657 (2008), codified at 18 U.S.C. 3624(c)(2).
12 Pub. L. 116-136, § 12003, 134 Stat. 281, 516 (2020).
13 United States v. Cebellos, 671 F.3d 852, 855 (9th Cir. 2011).
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In considering Mr. Potter’s request pursuant to the Second Chance Act, the
Court has reviewed each party’s sentencing memoranda and the Presentence
Report, all of which were submitted earlier this year for sentencing.14 While the
federal crime of conviction was a non-violent marijuana offense, Mr. Potter’s
criminal history at the time of sentencing included marijuana crimes and multiple
charges of driving while impaired.15 It also included a 2013 conviction for domestic
violence assault in which Mr. Potter caused the victim to lose consciousness and
a 2017 conviction for unlawful contact in which Mr. Potter used a gun and
threatened to kill his infant son and himself during an argument with his son’s
mother.16 The U.S. Probation Office reports that Mr. Potter has six state cases
pending, all of which include allegations that Mr. Potter violated domestic violence
protective orders in 2018.17 The Probation Office concluded that “the defendant
has shown a willingness to employ force against his domestic partners.”18 Based
on this criminal history, the Court finds that Mr. Potter will present a risk to the
community when he is released, particularly to his domestic partners.
14 See Docket 32; Docket 34; Docket 36.
15 Docket 32 at 10–12.
16 Docket 32 at 11–12.
17 Docket 46 at 2–3.
18 Docket 46 at 4.
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The Court has also considered BOP’s internal criteria for assessing inmates
for release to home confinement in light of the COVID-19 pandemic.19 The BOP’s
non-exhaustive list of factors includes the age and vulnerability of the inmate to
COVID-19, the security level of the facility currently holding the inmate, the
inmate’s conduct in prison, the inmate’s PATTERN score,20 the inmate’s re-entry
plan, and the inmate’s crime of conviction. Here, Mr. Potter is 39 years old and
has not substantiated his claimed medical issues that could make him particularly
vulnerable to COVID-19.21 And Mr. Potter does not provide any information in his
motion with respect to his security level, conduct in prison, or PATTERN score.22
Mr. Potter’s proposed re-entry plan would have him reside in the Anchorage area
in an RRC or with a family friend,23 which could be of concern if the alleged victim
in the six pending court cases pending in Anchorage Superior Court currently
resides in the Anchorage area as well. And the Court finds that generalized risks
19 Memorandum from Attorney Gen. William P. Barr to Dir. of Bureau of Prisons (Mar. 26, 2020),
available at www.bop.gov/resources/news/pdfs/20200405_covid-19_home_confinement.pdf
(last accessed July 30, 2020).
20 PATTERN is the Department of Justice’s Prisoner Assessment Tool Targeting Estimated Risk
and Needs.
21 Mr. Potter asserts in his motion that he has asthma and “stomach issues.” Docket 44 at 8.
The Final Presentence Report, dated January 21, 2020, identified only Tourette’s Syndrome as
a health issue. Docket 32 at 18.
22 The probation officer indicates that he requested Mr. Potter’s performance records from
NSDC but had not received them by the date of his report. Docket 46 at 1. The Final
Presentence Report noted that Mr. Potter “complied with Department of Corrections officials
while detained on pretrial supervision.” Docket 32 at 7.
23 Docket 44 at 7.
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of COVID-19 to those in a correctional institution do not independently justify
making such a recommendation.24
In light of the foregoing, IT IS ORDERED that Mr. Potter’s request for a Court
recommendation set forth in the motion at Docket 44 is DENIED.
DATED this 31st day of July, 2020, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
24 Cf. United States v. Fuller, No. CR17-0324JLR, 2020 WL 2557337, at *5 (W.D. Wash. May
20, 2020) (finding that vague claims that conditions of confinement are “ripe” for COVID-19
infections and generalized concerns about the COVID-19 pandemic are not sufficient to
establish the extraordinary and compelling reasons necessary to justify compassionate release);
United States v. Boatwright, No. 219CR00301GMNDJA, 2020 WL 1639855, at *5 (D. Nev. Apr.
2, 2020) (“The Court is mindful of the unprecedented magnitude of the COVID-19 pandemic and
the extremely serious health risks it presents, particularly within the jail and prison setting.
However, in that context, a [pretrial detainee] should not be entitled to temporary release under
§ 3142(i) based solely on generalized COVID-19 fears and speculation.”).
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