UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 06-cr-047-JD

Opinion No. 2021 DNH 055

Stephen M. Butler

O R D E R

Stephen Butler moves for reduction of his sentence pursuant 

to 18 U.S.C. § 3582(c)(1)(A), arguing that he has an increased 

risk of serious illness if he were to contract COVID-19.1 The 

government objects to a reduction of Butler’s sentence on the 

grounds that he is not at increased risk, as he contends, and 

the sentencing factors weigh against reducing his sentence. An 

officer of the United States Probation and Pretrial Services has 

filed a report.

Standard of Review

After an inmate exhausts available administrative remedies, 

a court may reduce his sentence if the inmate establishes an 

extraordinary and compelling reason for the reduction and if the 

reduction is consistent with the sentencing factors in 18 U.S.C. 

1 Butler filed a pro se motion for reduction of his sentence 

under § 3582(c)(1)(A). Counsel was appointed to represent him 

for purposes of that motion, and counsel filed a supplement on 

Butler’s behalf. 

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§ 3553(a) and applicable policy statements issued by the 

Sentencing Commission. § 3582(c)(1)(A). Because the Sentencing 

Commission has not released an updated policy statement since 

enactment of the First Step Act, courts continue to use its most 

recent statement from November of 2018, U.S.S.G. § 1B1.13, 

without the limitation to the Director of the Bureau of Prisons. 

See, e.g., United States v. Newton, 2021 WL 966862, at *6 (D. 

Me. Mar. 15, 2021); United States v. Gonzalez, 2021 WL 135772, 

at *1 (D. Mass. Jan. 14, 2021); United States v. Vigneau, 473 F. 

Supp. 3d 31, 35 (D.R.I. 2020). That policy statement is 

clarified in the commentary, which states that an extraordinary 

and compelling reason may exist based on a serious physical or 

medical condition, age of the defendant, family circumstances, 

or another reason, as determined by the court. § 1B.13, cmt. 

n.1 (A-D). Newton, 2021 WL 966862, at *6; United States v. 

Manning, 2021 DNH 006, 2021 WL 77149, at *1 (D.N.H. Jan. 8, 

2021); Vigneau, 473 F. Supp. 3d at 36.

Background

In March of 2008, Butler pleaded guilty to nine counts of 

robbery in violation of 18 U.S.C. § 1951 and two counts of bank 

robbery in violation of 18 U.S.C. § 2113(a). Butler’s eleven 

crimes of conviction occurred between December of 2004 and 

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September of 2005. During that crime spree, he robbed grocery 

stores, restaurants, video stores, a hotel, and two banks. In 

each case, he brandished what appeared to be a gun or said that 

he had a gun and threatened to shoot employees while demanding 

money.2 Although not charged, Butler stole vehicles from 

dealerships that he used to commit the robberies. In addition,

when officers were attempting to arrest him, Butler tried to 

flee, ramming his car into police vehicles and driving toward 

the officers. He was shot multiple times before the arrest 

because of his failure to obey the officers’ commands.

Prior to the crimes of conviction and the related 

robberies, Butler had amassed a significant criminal history. 

Beginning more than twenty years before the crime spree that 

resulted in his convictions, Butler was arrested and charged 

with armed robbery, larceny of a motor vehicle, possession of 

tools for burglary, breaking and entering, assaults with 

dangerous weapons, and assaults and batteries on police 

officers. His criminal history resulted in a determination that 

Butler was a career offender with a criminal history category of 

VI. Based on the aggravating circumstances of his crimes of 

2 Butler used pellet guns that resembled a sawed off shotgun 

and a hand gun during the robberies.

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conviction, the court granted an upward departure from the 

Guideline range.

Butler was sentenced to 240 months on each count to be 

served concurrently. He has served about 15 1/2 years of his 

sentence, which he contends is 91% of his sentence and the 

government contends is 77% of his sentence. He is currently 

incarcerated at FCI Ray Brook in New York and is scheduled to be 

released in September of 2022. He is assessed to have a medium 

risk of recidivism and is designated at the medium security 

level in the prison. Butler filed a request for reduction of 

his sentence with the warden at FCI Bay Brook, which was denied. 

The government agrees that Butler has exhausted administrative 

remedies.

Butler is fifty-seven years old. As is noted above, during 

his arrest in 2005, he was shot multiple times. Those injuries 

required a series of surgical procedures, including removal of 

his spleen and part of his pancreas. He was hospitalized and 

then was incarcerated at FMC Devens at the beginning of his 

sentence for purposes of medical treatment. Butler submitted 

guidance from the CDC website that the risk of hospitalization 

and death from COVID-19 increases with age.

For purposes of addressing Butler’s motion for reduction in 

his sentence, the government had his medical records reviewed by 

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Dr. J. Gavin Muir, Chief Medical Officer of Amoskeag Health in 

Manchester, New Hampshire. Dr. Muir noted Butler’s serious 

medical history, which required extensive treatment. On review 

of Butler’s current medical records, however, Dr. Muir concluded 

that Butler does not have a medical condition that would put him 

at increased risk if he were to contract COVID-19.

Butler submitted a newspaper article dated February 18, 

2021, about inadequate efforts to deal with COVID-19 at FCI Ray 

Brook and argues that the prison is not doing enough to protect 

inmates from the disease. The government responds with 

information about the efforts made by the BOP to avoid COVID-19 

spread. Currently, the BOP website reports that at FCI Ray 

Brook no inmates are infected with COVID-19 and one staff member 

has the disease. 

Butler represents that if he were released from prison, he 

would live with his sister and her family in Taunton, 

Massachusetts. He plans to quarantine there and to follow the 

social distancing guidelines. He intends to get a commercial 

driver’s license and to work as a truck driver.

Discussion

Butler asks to have his sentence reduced to time served

with the remainder of the sentence to be served as a special 

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term of supervised release in home confinement. In support, he 

contends that his age and medical conditions put him at 

increased risk of serious illness if he were to contract COVID19. The government agrees that Butler has exhausted 

administrative remedies but contends that he lacks an 

extraordinary and compelling reason to reduce his sentence and

contends that the sentencing factors preclude relief. The 

probation officer’s report was also considered for purposes of 

this order.

A. Exhaustion and Extraordinary and Compelling Reason

There is no dispute that Butler has exhausted 

administrative remedies as required under § 3582(c)(1)(A). 

Butler argues that his age and medical conditions put him at 

increased risk if he were to contract COVID-19, which provides 

an extraordinary and compelling reason to reduce his sentence. 

The government disagrees, arguing that Butler lacks a medical 

condition that puts him at increased risk and has not shown that 

his risk of contracting COVID-19 at FCI Ray Brook satisfies that 

requirement.

The CDC has reported, as Butler contends, that advancing 

age is a risk factor for COVID-19. Butler, however, has not 

shown that his circumstances present a sufficient risk to create 

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an extraordinary and compelling reason to reduce his sentence. 

Although he claims that he has medical conditions that put him 

at risk, Dr. Muir found otherwise. 

Further, the current risk at FCI Ray Brook, where Butler is 

incarcerated, is not great, with only staff member is diagnosed 

with COVID-19 and no inmates are reported to be ill. Butler was 

tested for the virus twice in January with negative results each 

time. The information provided in the newspaper article filed 

by Butler appears to be based on data during a spike in cases in 

January of 2021, which has now abated. 

Therefore, Butler has not shown an extraordinary and 

compelling reason to reduce his sentence. Even if he could make 

that showing, however, reduction would not be appropriate in 

light of the factors under § 3553(a).

B. Sentencing Factors under § 3552(a)

Section 3553(a) states that the “court shall impose a 

sentence sufficient, but not greater than necessary, to comply 

with the purposes” provided in § 3553(a)(2), and lists factors 

for determining an appropriate sentence. The first two factors 

are particularly pertinent for purposes of this motion.3 The 

3 The third factor directs consideration of “the kinds of 

sentences available;” the fourth and fifth factors focus on the 

Sentencing Guidelines; the sixth factor addresses “the need to 

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first factor directs the sentencing court to consider “the 

nature and circumstances of the offense and the history and 

characteristics of the defendant.” § 3553(a)(1). The second 

factor focuses on the purposes of sentencing, including: 

the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to 

promote respect for the law, and to provide just 

punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the 

defendant; and

(D) to provide the defendant with needed educational 

or vocational training, medical care, or other 

correctional treatment in the most effective manner.

§ 3553(a)(2).

 The court considered the § 3553(a) factors when Butler was 

sentenced, and he received an appropriate sentence for his 

serious crimes and in light of his extensive criminal history. 

Butler notes that he has served more than three quarters of his 

sentence, has made commendable efforts toward rehabilitation,

and has not had disciplinary issues while in prison. 

Nevertheless, he remains classified at medium security and as a 

medium risk of recidivism. 

The court considers Butler’s classification at medium 

security and medium risk of recidivism to be significant factors 

avoid unwarranted sentence disparities;” and the seventh factor 

directs courts to consider the defendant’s restitution 

obligations.

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weighing against reduction of his sentence. Further, the number 

and violence of his crimes, along with the circumstances during 

his arrest, demonstrate that he presents a significant risk of

danger to the public. For these reasons, even if Butler could 

show an extraordinary and compelling reason to reduce his 

sentence, the court would not grant that request based on the 

sentencing factors. 

Conclusion

For the foregoing reasons, the defendant’s motion for 

reduction of his sentence (documents no. 70) is denied.

SO ORDERED.

______________________________

Joseph A. DiClerico, Jr.

United States District Judge

March 22, 2021

cc: Counsel of record.

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