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10TH CIRCUIT FLIPS UP ITS OWN 4-MONTH OLD COMPASSIONATE RELEASE PRECEDENT

It seems like only four months ago that the 10th Circuit ruled in United States v. Maumau and United States v. McGee that the plain language of the compassionate release statute (18 USC 3582(c)(1)(A)(i)) creates a three-step test: ”At step one . . . a district court must find whether extraordinary and compelling reasons warrant a sentence reduction… At step two . . . a district court must find whether such reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case…”

Pretty straightforward, isn’t it? Maybe not. Last week, the 10th ruled in a case deciding three compassionate release cases that despite what Maumau and McGee said, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others.”

The Circuit now thinks that Maumau’s and McGee’s detailed discussion of a three-step test – “although we have no doubt that the statements in those opinions were carefully considered by the panels (and are therefore entitled to our respect)” – are nothing more than dicta. Some respect “The language of § 3582(c)(1)(A) certainly requires that relief be granted only if all three prerequisites are satisfied,” the 10th now thinks, “but it does not mandate a particular ordering of the three steps (much less the ordering Hald and Sands urge). Since it mentions step three first, the natural meaning could well be that the court is to first determine whether relief would be authorized by that step and then consider whether the other two steps are satisfied. We think it persuasive, if not binding, that our well-considered reading of the statutory language in McGee declared that the three steps could be considered in any order.”

To make matters more chaotic? The decision drops a footnote noting that “as of oral argument in May 2021, all three men had either been vaccinated or been offered the opportunity to be vaccinated against COVID-19. Although we do not consider this development in resolving their appeals, there is certainly room for doubt that Defendants’ present circumstances would support a finding of ‘extraordinary and compelling reasons’.”

United States v. Hald, Case No 20-3195, 2021 U.S.App. LEXIS 23451 (10th Cir. August 6, 2021)

– Thomas L. Root