USA v. BELANGER, et al

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA 	)
)
)
v. 	) 1:15-cr-00072-JDL
)
ROGER BELANGER, 	)
)
Defendant. 	)
ORDER ON MOTION FOR COMPASSIONATE RELEASE
On August 19, 2016, Roger Belanger was convicted after a jury trial of one
count of conspiracy to distribute and possess with intent to distribute five kilograms
or more of cocaine and an unspecified amount of oxycodone in violation of 21 U.S.C.A.
§§ 	841(a)(1), 841(b)(1)(A), 	846 (West 	2020), as 	well as one count 	of 	using or
maintaining a drug-involved premises in violation of 21 U.S.C.A. § 856(a)(1), (b), and
18 U.S.C.A. § 2 (West 2020). 	On April 28, 2017, I sentenced Belanger to a term of
imprisonment of 132 months on each count, to be served concurrently and followed
by a term of supervised release of five years. 	Belanger appealed his conviction and
his sentence, both of which were affirmed by the First Circuit on May 9, 2018. 	See
United States v. Belanger, 890 F.3d 13, 17 (1st Cir. 2018). 	Belanger now moves for
compassionate release under 18 U.S.C.A. § 3582(c)(1)(A)(i) (West 2020), based on the
alleged health risks that he faces in federal custody due to the COVID-19 pandemic
(ECF No. 650). The Government opposes Belanger’s release (ECF No. 651). For the
reasons that follow, I grant his motion.
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I. LEGAL STANDARD
The compassionate release statute, as amended by the First Step Act of 2018,
Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239-41 (codified at 18 U.S.C.A. §
3582(c)-(d) (West 2020)), permits a court to consider a motion for compassionate
release 	brought 	by 	a 	defendant 	“after 	the 	defendant 	has 	fully 	exhausted 	all
administrative rights to appeal a failure of the Bureau of Prisons to bring a motion
on the defendant’s behalf” or after “the lapse of 30 days from the receipt of such a
request by the warden of the defendant’s facility, whichever is earlier.” 18 U.S.C.A.
§ 3582(c)(1)(A). Once a court determines that it may consider a defendant’s motion,
the court may reduce the defendant’s sentence if, after considering the factors set
forth in 18 U.S.C.A. § 3553(a) (West 2020), it finds that “extraordinary and compelling
reasons warrant such a reduction” and “that such a reduction is consistent with
applicable 	policy 	statements 	issued 	by 	the 	Sentencing 	Commission.” 	Id. 	§
3582(c)(1)(A).
Because the policy statement issued by the Sentencing Commission under the
compassionate release statute, U.S. Sentencing Guidelines Manual § 1B1.13(2) (U.S.
Sentencing Comm’n 2013), has not been updated since the enactment of the First
Step Act, I have previously determined that although I should consider the policy
statement, I need not strictly apply it when deciding whether to grant compassionate
release.1 	See United States v. Calhoun, No. 2:15-cr-00056-JDL-1, 2020 U.S. Dist.
1 The policy statement provides that compassionate release should only be granted upon a finding
that 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).” U.S. Sentencing Guidelines Manual § 1B1.13(2). Additionally, an application
note to the policy statement delineates four categories of “extraordinary and compelling reasons”
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LEXIS 117527, at *3 (D. Me. July 1, 2020) (citing United States v. Acoff, Nos.
3:15cr157 (MPS), 3:11cr179 (MPS), 3:09cr073 (MPS), 2020 WL 2781798, at *2 (D.
Conn. May 29, 2020) and United States v. Brooks, No. 07-cr-20047-JES-DGB, 2020
WL 2509107, at *5 (C.D. Ill. May 15, 2020) (collecting authorities)).
II. ANALYSIS
Belanger 	argues 	that 	compassionate 	release 	is 	warranted 	because 	the
conditions at the Devens Federal Medical Center (“FMC Devens”) and his medical
history place him at a high risk of severe illness or death from COVID-19. 	Before
evaluating the merits of Belanger’s motion for compassionate release, I address the
threshold question of whether Belanger has exhausted his administrative remedies,
which is a prerequisite to judicial action. 	See Calhoun, 2020 U.S. Dist. LEXIS
117527, at *4.
A. 	Administrative Remedies
As 	noted 	above, 	a 	court 	may 	only 	consider 	a 	defendant’s 	motion 	for
compassionate release “after the defendant has fully exhausted all administrative
rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s
behalf” or after “the lapse of 30 days from the receipt of such a request by the warden
of the defendant’s facility, whichever is earlier.” 18 U.S.C.A. § 3582(c)(1)(A). Courts
have referred to this provision as a “hybrid requirement” that defendants “either
exhaust or wait thirty days.” See, e.g., United States v. Haney, No. 19-cr-541 (JSR),
warranting compassionate release. Id. cmt. n.1. The first three categories concern the defendant’s
medical condition, age, and family circumstances respectively. See id. The fourth is a catchall category
encompassing reasons “other than, or in combination with” those outlined in the first three categories,
“[a]s determined by the Director of the Bureau of Prisons.” Id.
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2020 WL 1821988, at *3 (S.D.N.Y. Apr. 13, 2020). I have previously determined that
the hybrid requirement is a non-jurisdictional claim-processing rule. 	See Calhoun,
2020 U.S. Dist. LEXIS 117527, at *5 (citing United States v. Ramirez, Criminal Action
No. 17-10328-WGY, 2020 WL 2404858, at *7 (D. Mass. May 12, 2020)). 	Although
courts generally must enforce the hybrid requirement if the Government properly
raises an objection based on a defendant’s failure to comply with it, such objections
can be waived or forfeited.2 	Id. at *5-6 (citing Fort Bend Cty. v. Davis, 139 S. Ct.
1843, 1849 (2019) and United States v. Reyes-Santiago, 804 F.3d 453, 458, 478 (1st
Cir. 2015)).
Belanger filed a compassionate release request with the warden at FMC
Devens on June 9, 2020. 	The warden denied his request on June 10. 	There is no
evidence in the record suggesting that Belanger has exhausted all administrative
rights to appeal the warden's decision, and he did not wait thirty days before filing a
motion for compassionate release on his own behalf on June 30. However, Belanger
filed an amended petition on July 14, after the Court appointed counsel to represent
him. 	Thirty days had elapsed between the date Belanger filed his request to the
warden and the date he filed his amended motion to the Court. Based on these facts,
the Government waived any objection it may have had that Belanger has not satisfied
2 I do not address whether any equitable exceptions may excuse a defendant’s failure to comply with
the claim-processing rule at issue. 	See Fort Bend Cty., 139 S. Ct. at 1849 n.5; Ramirez, 2020 WL
2404858, at *7 (describing the split of authorities on this issue).
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§ 3582(c)(1)(A)’s hybrid requirement.3 	See ECF No. 651 at 14. 	Pursuant to the
Government's waiver, I proceed to the merits of Belanger’s motion.
B. 	The Merits
1. 	Extraordinary and Compelling Reasons
As explained above, a court may only grant compassionate release if it finds
that “extraordinary and compelling reasons” warrant a reduction in the defendant’s
sentence. 	18 U.S.C.A. § 3582(c)(1)(A)(i). 	Belanger asserts that extraordinary and
compelling reasons exist in part because he is likely to contract COVID-19 at FMC
Devens. 	Belanger is assigned to a dormitory at FMC Devens that is shared by
approximately 110 prisoners. 	Since the pandemic began, two inmates at FMC
Devens have died from the disease, and forty-seven inmates and six staff members
have been sick but recovered. 	COVID-19 Coronavirus, Fed. Bureau of Prisons,
https://www.bop.gov/coronavirus/ (“COVID-19 Cases” section, “Full breakdown and
additional details” hyperlink) (last visited Sept. 2, 2020). 	Currently, FMC Devens is
reporting that one inmate and two staff members are testing positive. Id. Although
FMC Devens is not currently experiencing a widespread outbreak of the virus,
Belanger is residing in a dormitory environment at an institution that has been
significantly affected by COVID-19 and that—as the Government observes (ECF No.
3 Accordingly, I need not decide three unsettled questions of law presented by Belanger’s motion for
compassionate release: (1) whether defendants who receive a denial from the Bureau of Prisons may
choose to satisfy the hybrid requirement by waiting thirty days or must instead exhaust their
administrative rights to appeal the warden’s decision, (2) whether the thirty-day lapse contemplated
by § 3582(c)(1)(A) must be calculated according to the date of the defendant’s initial motion or whether
it may be calculated according to the date of an amended motion, or (3) relatedly, whether the thirty-
day lapse must occur before the defendant may bring a motion for compassionate release or merely
before the Court may decide the motion.
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651 at 7)—will, in all likelihood, continue to confirm new cases. See United States v.
Rivera, No. 3:13-cr-71-1 (VLB), U.S. Dist. LEXIS 104343, at *13 (D. Conn. June 15,
2020) (noting that “federal medical centers like FMC Devens, which house the BOP’s
sickest inmates, have not been spared the pandemic”).
Also in support of a finding of extraordinary and compelling reasons, Belanger
argues that he is at a heightened risk of severe illness or death from COVID-19 based
on his age and medical conditions. Belanger is sixty-two years old. Medical records
maintained by the Bureau of Prisons establish that Belanger has been diagnosed with
Type 2 diabetes mellitus and hypertension. They also indicate that Belanger is 1.78
meters, or 70 inches, tall and weighs 240.0 pounds, which corresponds to a body mass
index of 34.4 and therefore establishes that Belanger is obese. 	See Coronavirus
Disease 2019 (COVID-19): People with Certain Medical Conditions, Ctrs. for Disease
Control 	and 	Prevention, 	https://www.cdc.gov/coronavirus/2019-ncov/need-extra-
precautions/people-with-medical-conditions.html (last visited Sept. 2, 2020) (defining
“obesity” as a “body mass index [BMI] of 30 or above”); Adult BMI Calculator, Ctrs.
for 	Disease 	Control 	and 	Prevention,
https://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculator
/bmi_calculator.html (last visited Sept. 3, 2020).
The COVID-19 guidance issued by the CDC provides that people with Type 2
diabetes mellitus and obesity are at an increased risk of severe illness from COVID-
19, and that people with hypertension might be at an increased risk. 	Id. It further
states that the risk of severe illness increases with age and that adults over the age
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of sixty are at a higher risk than adults under the age of sixty. Coronavirus Disease
2019 	(COVID-19): 	Older 	Adults, 	Ctrs. 	for 	Disease 	Control 	and 	Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-
adults.html (last visited Sept. 2, 2020). 	Because Belanger’s age and medical
conditions are COVID-19 risk factors according to the CDC, I find that Belanger is at
an increased risk of severe illness from COVID-19 while incarcerated at FMC
Devens.4 Accordingly, I conclude that extraordinary and compelling reasons support
granting his motion for compassionate release.
2. 	18 U.S.C.A. § 3553(a) Sentencing Factors
Having determined that extraordinary and compelling reasons exist, I turn to
whether compassionate release would be consistent with the sentencing factors set
forth in 18 U.S.C.A. § 3553(a). Belanger was convicted of one count of conspiracy to
distribute and possess with intent to distribute five kilograms or more of cocaine and
an 	unspecified 	amount 	of 	oxycodone 	in 	violation 	of 	21 	U.S.C.A. 	§§ 	841(a)(1),
841(b)(1)(A), 846, as well as one count of using or maintaining a drug-involved
premises in violation of 21 U.S.C.A. § 856(a)(1), (b), and 18 U.S.C.A. § 2. Specifically,
Belanger began a drug operation that brought drugs from Rhode Island to Maine over
a twelve-year period, from 2002 to 2014. 	Although Belanger moved to California in
2004 and did not participate in the drug operation for several years, the organization
4 Belanger’s medical records also refer to coronary artery disease and mention a previous diagnosis
of atherosclerotic cardiovascular disease and a history of smoking. These conditions further increase
Belanger’s risk of severe illness from COVID-19. See Coronavirus Disease 2019 (COVID-19): People
with 	Certain 	Medical 	Conditions, 	Ctrs. 	for 	Disease 	Control 	and 	Prevention,
https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html (identifying “serious heart conditions” and “smoking” as COVID-19 risk factors).
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he had started continued to operate in Maine. He rejoined the conspiracy—which at
that point was headed by his daughter—at some point after he returned to Maine in
2008, although the evidence did not establish when he resumed his criminal
activities. He remained involved for a period of years until he and his co-conspirators
were charged by law enforcement. 	During the years that he was involved in the
conspiracy, Belanger played a leadership role, but, after his return from California,
his role was secondary to that of his daughter.
In imposing the original sentence in this case, I applied the factors set forth in
18 U.S.C.A. § 3553(a). 	Those factors include the nature and circumstances of the
offense, the personal history and characteristics of the defendant, the kinds of
sentences available, the Sentencing Guidelines, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution. 	Further, § 3553(a)
requires that the sentence reflect the seriousness of the offense that was committed,
promote respect for the law, provide just punishment, afford adequate deterrence,
protect the public from further crimes, and provide the defendant with needed
training, medical care, and other treatment in the most effective way.
At sentencing, I focused particularly on the need for the sentence to reflect the
seriousness of the offense and to provide adequate deterrence. I found that Belanger’s
crime was “terrible” and “outrageous” because it had the indirect effect of harming an
entire community and countless individuals’ lives over an extended period of time. I
further found that although Belanger was fifty-nine years old and had not been
convicted of any other crimes in the preceding thirty years, a “long period” of
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incarceration was necessary to promote general deterrence of large-scale drug
conspiracies in Maine. Based on these findings, I imposed a term of imprisonment of
132 months, to be followed by five years of supervised release. Additionally, because
I found that Belanger had significant medical problems and a history of drug
addiction, I recommended that he be considered for placement at FMC Devens and
for enrollment in the 500-Hour Comprehensive Drug Treatment Program during his
term of imprisonment.
I 	now 	revisit 	the 	§ 	3553(a) 	factors 	to 	determine 	whether 	granting
compassionate release is appropriate. 	One factor on which I relied in setting
Belanger’s sentence—the severity of his crime—weighs against granting his request
for release. 	Belanger’s crime was egregious, which is reflected not the least in the
fact that Congress has made it subject to a ten-year mandatory minimum sentence.
See 21 U.S.C.A. § 841(b)(1)(A). 	Granting compassionate release will have the effect
of shortening the sentence to a term that does not reflect the seriousness of Belanger’s
conduct, particularly given that he has served less than half of his sentence to date.5
The Government points to Belanger’s disciplinary record in prison as an
indication that he would pose a danger to the public if released. 	See 18 U.S.C.A. §
3553(a)(2)(C); U.S. Sentencing Guidelines Manual § 1B1.13(2). 	In October of 2019,
Belanger was found to have violated the prison’s phone monitoring regulations by
participating in an impermissible three-way phone call. 	According to Belanger, he
was on the phone with his brother, who added another family member into the call
5 	As of September 2, 2020, Belanger has served approximately 43% of his total sentence, after
accounting for anticipated good time.
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so that the three of them could discuss Belanger’s wife’s housing situation. Whatever
the credibility of Belanger’s assertion that he did not know that the three-way call
violated prison regulations, Belanger’s account of the incident’s underlying facts is
not disputed, and there is no reason to doubt that the nature of the conversation was
essentially innocent. 	I therefore find that the infraction has minimal, if any,
relevance to determining whether Belanger’s release is appropriate.
Turning to the factors that weigh in favor of granting Belanger’s motion, I find
that the other factor on which I primarily relied in sentencing Belanger—the need to
provide adequate deterrence—will not be compromised by releasing Belanger under
these extraordinary circumstances. The purpose of deterrence has been achieved by
Belanger’s conviction and the four years he has served in federal prison, as well as
the five-year period of supervision he will continue to serve if I grant his release.
When I sentenced Belanger, I noted that a lengthy sentence was necessary to provide
general deterrence because the public needs to understand that even a fifty-nine-
year-old 	man 	operating 	a 	drug 	conspiracy 	in 	rural 	Maine 	can 	be 	subject 	to
incarceration for a long period of time. Granting Belanger’s motion for compassionate
release because of the severe and unforeseen risks that the virus poses to him in
prison does not compromise that message. Additionally, considering the need to avoid
unwarranted sentencing disparities, see 18 U.S.C. § 3553(a)(6), the pandemic has
created 	a 	disparity 	where 	none 	previously 	existed: 	a 	132-month 	sentence 	for
Belanger—given his age and medical conditions—is now considerably more severe
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than a similar sentence for a younger, healthier person facing a lower risk of serious
illness or death from the virus.
Section 3553(a)(2)(D) also requires that I consider the need to provide Belanger
with “educational or vocational training, medical care, or other correctional treatment
in the most effective manner.” 	During his imprisonment, Belanger has completed
two education courses as well as a drug treatment program, and he presents himself
as 	committed 	to 	no 	longer 	using 	drugs 	and 	to 	actively 	pursuing 	drug 	abuse
treatment. 6 	I find that Belanger’s ongoing need for treatment and education
regarding his drug use and dependency can be adequately addressed as a condition
of supervised release, so long as appropriate requirements are imposed.
Other factors, many of which I addressed at Belanger’s original sentencing,
support a determination that Belanger presents a low public safety risk if granted
compassionate release. See 18 U.S.C.A. § 3553(a)(2)(C). First, neither this crime nor
anything in Belanger’s criminal history has involved violence or firearms. 	Second,
although this is not Belanger’s first criminal offense, his prior crimes were committed
more than three decades ago, and he had no criminal history points under the
sentencing guidelines. 	Third, and relatedly, Belanger’s age and health problems
make him less likely to reoffend. See United States Sentencing Comm’n, The Effects
of 	Aging 	on 	Recidivism 	Among 	Federal 	Offenders 	3 	(December 	2017),
https://ussc.gov/research/research-reports/effects-aging-recidivism-among-federal-
offenders. 	Finally, the fact that Belanger will remain under federal supervision
6 Belanger is currently on the waiting list for a drug education class, and he has not yet enrolled in
a residential drug abuse treatment program because of the time remaining on his sentence.
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subject to stringent conditions provides further assurance that Belanger’s release
would not present an unreasonable risk of danger to the community, especially in
light of his success on pretrial release for more than a year prior to his trial. Together,
these considerations support the conclusion that Belanger presents a low public
safety risk if granted compassionate release while being subject to a five-year period
of supervised release with stringent conditions.7
After considering all the § 3553(a) factors, I conclude that compassionate
release is warranted under § 3582(c)(1)(A)(i).
3. 	Plan for Release
Although I find that Belanger has met the requirements for compassionate
release, an appropriate supervision plan must be developed and approved. 	The
parties are directed to expeditiously determine, in consultation with the United
States Probation Office, whether an agreed-to release plan can be achieved. 	The
United States Probation Office is directed to file a report to the Court regarding the
status of these efforts within twenty days.
7 For this reason, Belanger’s case is unlike that in Calhoun, 2020 U.S. Dist. LEXIS 117527. Although
I found that Calhoun, like Belanger, had demonstrated “extraordinary and compelling circumstances,”
I denied her motion for compassionate release because her offense involved “callous indifference” to
the well-being of a child and I determined that she would remain a danger to the community if
released. Id. at *11-16. 	That finding was supported by Calhoun’s substantial and recent criminal
history prior to her current offense, as well as her several disciplinary infractions while in prison,
including one for assault. 	Id. 	Belanger, by contrast, had zero criminal history points under the
sentencing guidelines, and his sole disciplinary infraction in prison was both nonviolent and, as I have
described above, minimally relevant to determining whether he can conform his conduct to societal
expectations upon release.
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III. CONCLUSION
For 	the 	reasons 	explained 	above, 	Belanger’s 	Amended 	Motion 	for
Compassionate Release (ECF No. 650) is GRANTED, subject to the development of
a release plan approved by the Court.
SO ORDERED.
Dated: September 4, 2020
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE
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