UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

 v.

Anthony Burnett

Case No. 06-cr-00034-PB-2

Opinion No. 2020 DNH 110

MEMORANDUM AND ORDER

Defendant Anthony Burnett (“Burnett”) moves for 

compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)

(“Section 3582(c)(1)(A)”), as amended by Section 603(b)(1) of 

the First Step Act of 2018 (“First Step Act”), Pub. L. No. 115-

391, § 603(b)(1), 132 Stat. 5194, 5239. 

I. STANDARD OF REVIEW

Following its amendment by the First Step Act, the 

compassionate release statute provides that 

the court, upon motion of the Director of the Bureau of 

Prisons [(“BOP”)], or upon motion of the defendant after 

the defendant has fully exhausted all administrative 

rights to appeal a failure of the [BOP] to bring a motion 

on the defendant’s behalf or the lapse of [thirty] days 

from the receipt of such a request by the warden of the 

defendant’s facility, whichever is earlier, may reduce 

the term of imprisonment . . . after considering the 

factors set forth in [S]ection 3553(a) to the extent 

that they are applicable . . . .

18 U.S.C. § 3582(c)(1)(A). The court may do so if it finds that 

“extraordinary and compelling reasons warrant such a reduction,”

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§ 3582(c)(1)(A)(i), and that “such a reduction is consistent 

with applicable policy statements issued by the Sentencing 

Commission,” § 3582(c)(1)(A). The Sentencing Commission’s policy 

statement (“the policy statement”), which was promulgated prior 

to the passage of the First Step Act,1 provides as follows:

Upon motion of the Director of the [BOP] under [Section

3582(c)(1)(A)], the court may reduce a term of 

imprisonment (and may impose a term of supervised 

release with or without conditions that does not exceed 

the unserved portion of the original term of 

imprisonment) if, after considering the factors set 

forth in [Section 3553(a)], to the extent that they are 

applicable, the court determines that —

(1) (A) Extraordinary and compelling reasons warrant 

the reduction; . . .

(2) 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); and

(3) The reduction is consistent with this policy 

statement.

U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13 (U.S. 

Sentencing Comm’n 2018). The commentary to the policy statement

1 District courts are divided on whether this policy statement 

remains binding following the enactment of the First Step Act. 

Cf. United States v. Fox, No. 2:14-cr-03-DBH, 2019 WL 3046086,

at *2 (D. Me. July 11, 2019) (collecting cases). I am aware of 

no court that has chosen to disregard the policy statement 

entirely. I, instead, conclude that it “provides helpful 

guidance on the factors that support compassionate release, 

although it is not ultimately conclusive given the statutory 

change.” Id. at *3.

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further explains what is meant by “extraordinary and compelling 

reasons.” This commentary states, in relevant part:

Provided the defendant meets the requirements of 

subdivision (2), extraordinary and compelling reasons 

exist . . . [when t]he defendant is suffering from a 

terminal illness (i.e., a serious and advanced illness 

with an end of life trajectory). A specific prognosis of 

life expectancy (i.e., a probability of death within a 

specific time period) is not required. Examples include 

metastatic solid-tumor cancer, amyotrophic lateral 

sclerosis (ALS), end-stage organ disease, and advanced 

dementia.

USSG § 1B1.13 cmt. n.1—(A)(i).

II. BACKGROUND

In 2006, a jury of Burnett’s peers found him guilty of five 

drug trafficking and firearms-related offenses. Jury Verdict, 

Doc. No. 59 at 1–2.2 Under mandatory minimum requirements in 

place at the time, I sentenced him to a term of imprisonment of 

life plus sixty months. J. in a Crim. Case, Doc. No. 111 at 3. 

In 2019, Burnett moved to have his sentence reduced. Def.’s Mot. 

to Reduce Sentence Pursuant to the First Step Act, Doc. No. 162 

at 1. Burnett argued that Section 404 the First Step Act 

permitted me to resentence him under the modified statutory 

penalties of the Fair Sentencing Act of 2010 (“Fair Sentencing 

2 Burnett was found guilty of (1) Conspiracy to distribute 

cocaine base “crack,” (2) Possession with intent to distribute, 

(3) Possession of a firearm in furtherance of a trafficking 

crime, (4) Use of a firearm during a drug trafficking crime, and 

(5) Felon in possession of firearms. Doc. No. 59 at 1–2.

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Act”), Pub. L. 111-220, §§ 2, 3, 124 Stat 2372, 2372 (codified 

as amended at 21 U.S.C. §§ 841(b)(1), 844(a)). Doc. No. 162 at 

4–5. I agreed and reduced his sentence to 240 months. Order Re: 

Mot. for Sent’g Reduction Pursuant to 18 U.S.C. § 3582(c)(2), 

Doc. No. 177 at 1.

Burnett currently suffers from “severe cardiomyopathy 

associated with rheumatic heart disease.” Reduction in Sentence 

(RIS) Review Comm. Comprehensive Med. Summ., Doc. No. 186-3 at 

1. He has been diagnosed with congestive heart failure with a 

“poor” prognosis. Doc. No. 186-3 at 2. Although his condition 

has improved thanks to transcatheter aortic valve replacement

(“TAVR”) surgery, his heart remains extremely weak, with an 

ejection fraction (“EF”) between eighteen and twenty-five 

percent.3 Doc. No. 186-3 at 2. He requires a wheelchair or walker 

to ambulate. Doc. No. 186-3 at 3. Burnett’s cardiologist “has 

mentioned a [five-]year trajectory as a rough estimate” of his 

life expectancy. Doc. No. 186-3 at 3.

In light of his medical condition, Burnett submitted a 

request for sentence reduction to the BOP, which was denied on 

3 At the June 15, 2020 hearing held on Burnett’s motion, Dr. 

Patricia Ruze, who authored Burnett’s comprehensive medical 

summary, stated that Burnett’s heart condition leaves him more 

susceptible to complications from COVID-19, should he contract 

the virus. Although Dr. Ruze did not testify under oath, I have 

no reason to doubt this assessment.

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February 11, 2020. Mem. for Radm S. Spaulding, Warden, Fed. Med. 

Ctr. Devens, Doc. No. 186-4 at 1. He filed this motion for 

compassionate release on May 26, requesting a sentence reduction 

to time served. Doc. No. 186 at 1. I held a hearing on Burnett’s 

motion on June 15. At my request, the U.S. Probation Office 

supplemented its release plan for Burnett, addressing concerns I 

expressed at the hearing regarding Burnett’s proposed placement.

III. DISCUSSION

The BOP denied Burnett’s request for a reduction in 

sentence, Doc. No. 186-4 at 1, so his motion is properly before 

me under Section 3582(c)(1)(A). At the hearing on Burnett’s 

motion, the government agreed that Burnett’s medical condition 

meets the policy statement’s commentary definition of 

“extraordinary and compelling circumstances.” I concur with the 

government’s assessment. Accordingly, I must return to the 

familiar Section 3553(a) factors and also determine whether 

Burnett is “a danger to the safety of any other person or to the 

community” under Section 1B1.13(1)(B) of the USSG.

The bulk of the Section 3553(a) factors weigh in favor of 

compassionate release. Most importantly, Burnett has already 

served over fifteen years in prison, a term sufficient “to 

reflect the seriousness of the offense, to promote respect for 

the law, and to provide just punishment for the offense,” §

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3553(a)(2)(A), and “to afford adequate deterrence to criminal 

conduct,” § 3553(a)(2)(B). The only Section 3553(a) factor 

potentially weighing against release is the need “to protect the 

public from further crimes of the defendant.” § 3553(a)(2)(C). 

This factor is substantially similar to the policy statement’s 

instruction to evaluate whether the defendant is “a danger to 

the safety of any other person or to the community.” USSG § 

1B1.13(2). 

The danger that Burnett poses to the public is real. He is 

currently serving a sentence based, in part, on the use of a 

firearm in furtherance of a drug crime. Doc. No. 59 at 1–2. He 

also has an extensive criminal history, including numerous 

convictions for state drug and firearms offenses, as well as 

assault and battery. Presentence Investigation Report, Doc. No. 

171-3 at 16–22. Since his incarceration with the BOP, Burnett

has amassed a lengthy record of disciplinary infractions, 

including assault with serious injury, assault without serious 

injury, and possessing a dangerous weapon. Suppl. Presentence 

Investigation Report, Doc. No. 171 at 2.

The danger that Burnett poses, however, is substantially 

mitigated by his medical condition. He is currently able to move

only short distances using a walker and is otherwise wheelchairbound. His heart function is extremely weak. His condition is 

unlikely to improve substantially. Under these conditions, I am 

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satisfied that the danger Burnett poses to the community can be

adequately addressed through the imposition of a one year term 

of special supervised release during which Burnett will be 

confined to his home and will be subject to electronic 

monitoring.

Because the only Section 3553(a) factor weighing against 

Burnett’s release is adequately mitigated by his current 

physical limitations and by a one-year period of home detention 

with electronic monitoring, I conclude that the balance of the 

factors weighs in favor of his release.

IV. CONCLUSION

For the foregoing reasons, Burnett’s amended motion for 

compassionate release (Doc. No. 186) is granted as follows:

1) Burnett’s sentence will be reduced to time served.

2) Burnett will be placed on special supervised release for 

one year, during which time he is to remain on home confinement

and be subject to electronic monitoring.

3) Following the term of special supervised release, 

Burnett will be placed on supervised release for a term of five 

years. 

4) The clerk shall set a telephone conference with counsel 

to discuss proposed terms of supervised release and the content 

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of the amended judgment that the court will issue prior to the 

defendant’s release.

SO ORDERED. 

/s/ Paul J. Barbadoro

Paul J. Barbadoro

United States District Judge

June 30, 2020

cc: Seth R. Aframe, Esq.

Behzad Mirhashem, Esq.

U.S. Marshal

U.S. Probation

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