Opinion
13-CR-6101L
07-21-2020
UNITED STATES of America, Plaintiff, v. Brendon BOUVIER, Defendant.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for Plaintiff. David D. Spoto, Gallo & Iacovangelo LLP, Rochester, NY, for Defendant.
Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for Plaintiff.
David D. Spoto, Gallo & Iacovangelo LLP, Rochester, NY, for Defendant.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge
Defendant Brendon Bouvier ("Bouvier") was convicted of a firearms offense and sentenced in November 2013. After completing that sentence, he was arrested in Wayne County, New York and convicted there of a narcotics offense and received a state sentence of 2 ½ years imprisonment, plus 2 years of post-release supervision. Because of that state conviction, Bouvier violated the terms supervised release in this Court on his narcotics offense, and after pleading guilty to that violation, he was sentenced on September 5, 2018 to a 12-month term of imprisonment to run consecutively to the Wayne County Court sentence. Bouvier has now completed his state sentence and has been transferred to federal custody. He is currently housed at the Northeast Ohio Correctional Center ("NEOCC"), awaiting transfer to a Bureau of Prisons facility. He has served approximately 100 days of the 12-month sentence imposed by this Court.
By letter motion (Dkt. #59), Bouvier filed a pro se motion to reduce his 12-month sentence to home confinement because his offense of conviction was non-violent and he suffers from "chronic asthma." Later, the Federal Public Defender for the Western District of New York filed a motion (Dkt. #60) on Bouvier's behalf seeking modification of the sentence and judgment to a sentence of time served pursuant to 18 U.S.C. § 3582(c)(1)(A). The Government filed a detailed Response (Dkt. #64) opposing the request for modification of the sentence and the Probation Department for the Western District of New York filed a Report (Dkt. #63).
After considering the papers filed on the motion, as well as the applicable statute, 18 U.S.C. § 3582(c)(1)(A), and the general sentencing statute, 18 U.S.C. § 3553(a), and in light of the medical history of Bouvier, I believe that the motion for compassionate release must be denied. First of all, Bouvier is a young individual, approximately 32 years old and therefore is not vulnerable because of age. The Center for Disease Control ("CDC") has described several medical conditions which place individuals at a higher risk of contracting the COVID-19 virus and, once infected, facing more serious consequences than might otherwise be the case. The CDC does recognize that those with moderate to severe asthma are more vulnerable than others. But it does not appear that Bouvier's asthma is that severe. His asthma is treated at the facility with medication. The Probation Report (Dkt. #63) notes that in the original Presentence Report, Bouvier advised that he suffered from asthma and uses an inhaler only as needed. No other health concerns were noted. After reviewing the medical records, it appears that Bouvier's condition is managed appropriately. It is also worth noting, as does the Government, that Bouvier is apparently a heavy smoker.
Bouvier has the burden when making a motion for compassionate release to demonstrate that there are truly extraordinary and compelling reasons to change and modify the modest 12-month sentence imposed by this Court for the violation of supervised release. I do not believe Bouvier has carried that burden. It appears that his asthma condition is not so serious that he cannot be adequately treated at the facility.
The Government's Response indicates the significant steps taken at NEOCC to deal with the pandemic. Those steps seem adequate and thorough. Also, according to the Government's Response (Dkt. #64, p.8), only a few federal detainees have tested positive and those that have are recuperating. There are no reports of deaths and it is reported that Bouvier is not housed in a quarantine unit since no detainees from his particular housing unit have tested positive.
Therefore, after reviewing Bouvier's medical records, it does not appear that his asthma is deemed moderate or severe and therefore he does not appear to be especially vulnerable to the COVID-19 virus.
CONCLUSION
Defendant Brendon Bouvier's motions (Dkt. ##59, 60) for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A) are in all respects DENIED.
IT IS SO ORDERED.