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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

United States of America 

 Case No. 07-cr-44-1-PB 

 v. Opinion No. 2020 DNH 222 

 

Arthur Durham 

MEMORANDUM AND ORDER 

 Defendant Arthur Durham 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. For the following reasons, I deny Durham’s motion. 

I. STANDARD OF REVIEW 

 Following its amendment by the First Step Act, the 

compassionate release statute, codified as Section 

3582(c)(1)(A), 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 . . . [18 U.S.C. §] 3553(a) 

[(“Section 3553(a)”)] to the extent that they are 

applicable . . . . 

§ 3582(c)(1)(A). The court may reduce a defendant’s prison 

sentence if it finds that “extraordinary and compelling reasons 

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warrant such a reduction,” id. § 3582(c)(1)(A)(i), and that 

“such a reduction is consistent with applicable policy 

statements issued by the Sentencing Commission,” id. 

§ 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, 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 

further explains what is meant by “extraordinary and compelling 

reasons.” It states, in relevant part, that “[p]rovided the 

defendant meets the requirements of subdivision (2), 

extraordinary and compelling reasons exist,” USSG § 1B1.13 cmt. 

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n.1, when “[t]he defendant is . . . suffering from a serious 

physical or medical condition,” id. § 1B1.13 cmt. n.1(A)(ii)(I).

District courts are divided on whether the 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 not aware 

of any court that has chosen to disregard the policy statement 

entirely. I conclude, instead, 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. 

II. BACKGROUND 

In 2007, Durham pleaded guilty to four counts of Hobbs Act 

robbery and two counts of conspiracy to commit Hobbs Act 

robbery, in violation of 18 U.S.C. § 1951, and one count of use 

of a firearm in furtherance of a crime of violence, in violation 

of 18 U.S.C. § 924(c). See Gov’t’s Objection to Def.’s Mot. for 

Release, Doc. No. 48 at 1. Between March and November of 2006, 

Durham and an accomplice forcibly robbed a restaurant, two gas 

stations, and a motel. Id. at 6. During the course of those 

four robberies, the defendant at various times threatened that 

he had a weapon, forcibly grabbed a cashier, and pulled a 9mm 

handgun on a lobby attendant. Id. 

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Durham’s previous criminal activity was also serious and 

extensive. It included a state conviction for criminal 

threatening, for which he was still on parole at the time of his 

arrest on these federal charges. See Doc. No. 48 at 6. He 

pleaded guilty to ten counts of burglary committed in 1984 and 

eleven counts of burglary committed in 1985. See id. He told 

law enforcement that he committed these burglaries to support 

his crack cocaine addiction. See id. at 6-7. Due to Durham’s 

extensive criminal history, I sentenced Durham to a term of 

imprisonment of 192 months, a term significantly below the 

federal sentencing guideline recommendations at the time of his 

sentencing. See Mot. for Compassionate Release, Doc. No. 46 at 

1; Doc. No. 48 at 7. He has served approximately 156 months of 

his sentence. See Doc. No. 48 at 1-2. 

Durham is currently incarcerated at United States 

Penitentiary (“USP”) Terre Haute, Indiana. See Doc. No. 46 at 

2. The BOP, which manages USP Terre Haute, has developed and 

implemented a multi-point plan to address the COVID-19 pandemic. 

See Doc. No. 48 at 2. Under the plan, the BOP has implemented 

quarantine and isolation protocols, restricted inmate transfers, 

reduced overcrowding, limited group gatherings, introduced face 

mask distribution to intimates, and suspended visitation and 

tours, among other measures. See id. Despite these protocols, 

according to the BOP’s website, as of December 29, there were 

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458 active cases of COVID-19 in the inmate population and 21 

active cases among staff at this facility.1 

Durham is fifty-five years old and suffers from asthma, 

cirrhosis of the liver, Hepatitis B, Hepatitis C, hypertension, 

chronic obstructive pulmonary disease (“COPD”), folate 

deficiency anemia, gastritis, and hyperlipidemia. See Doc. No. 

46 at 3; Ex. A to Def.’s Mot. for Compassionate Release, Doc. 

No. 46-1 at 21. Citing his age and medical conditions, Durham 

submitted a request for compassionate release to the BOP on 

August 31, 2020. See Ex. C to Mot. for Compassionate Release, 

Doc. No. 46-3. After the BOP failed to respond in the required 

30-day period, Durham then filed this motion for compassionate 

release on November 7, 2020, requesting a reduction in his 

sentence to allow for his immediate release. See Doc. No. 46 at 

1. I held a hearing on the motion on December 15, 2020. 

III. DISCUSSION 

Durham argues that I should order his release because his 

medical ailments, including COPD, asthma, hypertension, and 

liver disease, place him at a high risk of severe illness for 

COVID-19, and a reduction of his sentence would not undermine 

Section 3553(a)’s sentencing factors. See Doc. No. 46 at 3-8. 

The government opposes Durham’s motion. See Doc. No. 48. 

1 COVID-19 Cases, BOP, https://www.bop.gov/coronavirus/index.jsp

(last visited Dec. 29, 2020). 

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Because the BOP failed to respond to his administrative appeal 

within thirty days, Durham has exhausted his administrative 

rights, and so his motion is properly before me under Section 

3582(c)(1)(A). 

Durham has met his burden of demonstrating that 

“extraordinary and compelling reasons” exist that would render 

him eligible for compassionate release, as conceded by the 

government. See § 3582(c)(1)(A); Doc. No. 48 at 4-5. According 

to the Centers for Disease Control and Prevention (“CDC”), COPD 

places individuals at an increased risk for severe illness if 

they contract COVID-19.2 Further, the CDC also warns that 

asthma, hypertension, and liver disease might place individuals 

at an increased risk for severe illness if they contract COVID19.3 At fifty-five years old, Durham is not in the highest risk 

category due to his age, but his age does create additional risk 

for severe illness.4 On similar facts, this court and other 

district courts have found that COPD, in combination with other 

risk factors, including asthma, hypertension, and older age, 

justifies a finding of an “extraordinary and compelling reason.” 

2 People with Certain Medical Conditions, CDC, 

https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last visited 

Dec. 29, 2020). 

3 Id.

4 Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/needextra-precautions/older-adults.html (last visited Dec. 29, 

2020). 

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See United States v. Dufresne, 2020 DNH 169, 2020 WL 5803224, at 

*2 (D.N.H. Sept. 29, 2020) (collecting cases finding 

“extraordinary and compelling circumstances” during COVID-19 

pandemic for defendants with COPD and additional chronic 

conditions); United States v. Eisenberg, 471 F. Supp. 3d 436, 

440 (D.N.H. 2020) (citing United States v. Griggs, 462 F. Supp. 

3d 610, 619 (D.S.C. 2020) (collecting cases granting 

compassionate release to older individuals with multiple 

preexisting health conditions)). I therefore accept, as the 

government concedes, that Durham’s medical conditions increase 

his relative risk of COVID-19-related complications. Further, 

given the high number of cases in his facility among both 

inmates and staff, and the fact that this number has rapidly 

increased in the last 30 days, I conclude that there is a high 

risk of Durham contracting COVID-19 at USP Terre Haute.5

However, I must also consider the sentencing factors under 

Section 3553(a). See § 3582(c)(1)(A). The factors include the 

nature and circumstances of the offense; the history and 

5 As I have previously stated, I also acknowledge that confirmed 

cases are different from the number of actual cases. See United 

States v. Amarrah, 458 F. Supp. 3d 611, 618 (E.D. Mich. 2020)

(“Zero confirmed COVID-19 cases is not the same thing as zero 

COVID-19 cases. The Bureau of Prisons recently discovered this 

when it found that 70 percent of the inmates it tested were 

positive for the disease.”). However, Durham does not challenge 

this statistic and has presented no evidence that the reported 

number of cases substantially under-reports the actual number of 

cases in the facility. 

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characteristics of the defendant; the need for the sentence to 

reflect the seriousness of the offense, promote respect for the 

law, provide just punishment, afford adequate deterrence, and 

protect the public from future crimes by the defendant; and the 

need to avoid unwarranted sentencing disparities. See § 

3553(a). These factors do not support Durham’s early release. 

There is no doubt that Durham committed serious crimes. He 

was involved in four separate robberies. In two of the 

robberies, Durham and his accomplice threated that they had a 

gun. In a third robbery, Durham physically grabbed a cashier by 

his waist to forcibly push him towards the cash register. In 

the last robbery, Durham pulled a handgun on a lobby attendant, 

physically threatening the attendant with the weapon. These 

crimes occurred mere months after Durham was released following 

his incarceration on a state conviction for criminal threatening 

of a former girlfriend. The sentence I originally imposed 

reflected the serious nature of Durham’s offenses and was well 

below the federal sentencing guidelines at the time. Reducing 

that sentence would not be consistent with the goals of 

sentencing, including promoting respect for the law, providing 

just punishment, deterring further criminal conduct, and 

protecting the public. Accordingly, I conclude that the 

interests of justice would not be served if his sentence were 

reduced. 

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I recognize that Durham has made efforts to rehabilitate 

himself during the last few years of his incarceration and, for 

the past two years, has avoided citations for misconduct. There 

are certainly signs that Durham has invested in his own 

rehabilitation and education. He has completed a 40-hour drug 

program, as well as several ACE, recreational, and pre-release 

programs. See Doc. No. 46 at 7. Although he struggled with 

disciplinary infractions in the first several years of his 

incarceration, since 2014 his disciplinary citations have been 

relatively minor, aside from a citation in 2017 for introducing 

drugs into the facility. See Doc. No. 48 at 8-9. His conduct 

in prison in the past two years has been commendable. At 

present, however, his efforts do not alter the fact that his 

sentence remains no greater than necessary to achieve the 

purposes of the sentencing statute. Consideration of Section 

3553(a)’s factors, therefore, weighs against granting any 

reduction in Durham’s sentence. 

Although I am denying Durham’s motion for compassionate 

release, I do recommend his placement in a medium security 

facility as soon as it is safe to do so. 

IV. CONCLUSION 

 For the foregoing reasons, Durham’s motion for 

compassionate release (Doc. No. 46) is denied. 

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 SO ORDERED. 

 /s/ Paul J. Barbadoro 

 Paul J. Barbadoro 

 United States District Judge 

December 29, 2020 

cc: Aaron Gingrande, Esq. 

 Jeffrey S. Levin, Esq. 

 U.S. Marshal 

 U.S. Probation 

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