USA v. Powell

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. 	Case No. 16-cr-59-PB-1
Opinion No. 2024 DNH 091
Brian Powell
ORDER
Brian Powell is serving a 300-month sentence for production of child
pornography. Although he has served less than half his sentence, Powell
seeks a sentence reduction pursuant to 18 U.S.C. § 3582(c)(1). His
principal argument is that he needs to be released now to care for his
ailing mother. He also claims that he should be granted a sentence
reduction because he received a disproportionately harsh sentence when
compared to other similar offenders, his participation in programming
while incarcerated and his spotless disciplinary record demonstrate that
he is at low risk of reoffending, and because his sentence was unusually
harsh because he was incarcerated during the height of the COVID-19
pandemic. Doc. 74.
The First Circuit Court of Appeals has explained that a court may
grant a request for a sentence reduction brought by a defendant who has
exhausted administrative remedies if “(1) there are extraordinary and
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compelling reasons that warrant a sentence reduction; (2) such a reduction
is consistent with applicable policy statements issued by the Sentencing
Commission; and (3) after considering the factors set forth in [18 U.S.C.] §
3553(a) to the extent they are applicable, the court finds, in its discretion,
that the particular circumstances of the case justify reducing the
defendant’s sentence.” United States v. D’Angelo, 110 F.4th 42, 48 (1st Cir.
2024) (cleaned up); United States v. Ayala-Vázquez, 96 F.4th 1, 12-13 (1st
Cir. 2024); United States v. Ruvalcaba, 26 F.4th 14, 18-19 (1st Cir. 2022). I
determine whether these requirements have been met by bearing in mind
“the holistic context” of the defendant’s case. D’Angelo, 110 F.4th at 48.
As a preliminary matter, I am not persuaded by the defendant’s
claim that he needs to be released now to care for his elderly mother.
Neither the defendant acting pro se nor his former appointed counsel have
presented a persuasive case that his mother, although seriously ill, is
either unable to obtain home health care where she currently resides or
cannot sell her home and move closer to her other son who currently
resides in the lakes region. Thus, the defendant cannot establish that his
mother’s need for care qualifies as an extraordinary and compelling
circumstance warranting his release.
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Nor am I persuaded by the defendant’s additional claims that his
spotless disciplinary record, his rehabilitative efforts, the length of his
sentence when compared with the sentences given to other defendants, or
the harsh realities of incarceration during the COVID-19 pandemic, alone
or in combination, amount to extraordinary and compelling circumstances.
Even if the defendant could establish extraordinary and compelling
circumstances, I would not grant his request because the § 3553(a) factors
continue to require the sentence I originally imposed. When I sentenced
the defendant, I varied substantially downward at the government’s
request and imposed a sentence that was five years below the bottom of
the applicable sentencing guideline range of 360 months to life. In doing
so, I imposed the minimum sentence that I deemed to be necessary to
satisfy the requirements of the sentencing statute. In my view, that
sentence remains the appropriate sentence. When I sentenced the
defendant, I explained that one of the most troubling aspects of the case
was the defendant’s use of extortionate methods to control children for his
own sexual gratification. Doc. 67 at 28. Given the nature of the defendant’s
criminal conduct, I believed then, and I continue to believe now, that a
300-month sentence is the minimum sentence necessary to produce a just
sentence and to protect the public from future crimes by the defendant and
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deter others from committing similar crimes. For these reasons, I deny the
defendant’s motion for a sentence reduction. Doc. 74.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
October 23, 2024
cc: 	Brian Powell, pro se
Counsel of Record
U.S. Probation
U.S. Marshal
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