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A COMPASSIONATE RELEASE MOTION CANNOT BE A 2255, 10TH CIRCUIT SAYS
More than one federal prisoner has sought a compassionate release under 18 USC § 3582(c)(1)(A) on the grounds that he or she should never have been convicted in the first place. While perceived unfairness has its uses in acompassionate release motion, a 10th Circuit decision last week reminds everyone that a movant must tread carefully in raising it.
Monterial Wesley, convicted of drug trafficking, filed and lost a motion to set aside his conviction brought under 28 USC § 2255. Over 10 years later, he filed a compassionate release motion arguing that the “extraordinary and compelling reasons” justifying the time cut he sought included sentence disparity and the alleged fact that his prosecutor suborned perjury about the drug quantities attributable to him.
The district court concluded that the claim of prosecutorial misconduct must be interpreted as a challenge to the constitutionality of his conviction and sentence, which can only be brought under 28 USC § 2255. Recall that under 28 USC § 2255(h) and 28 USC § 2244, a § 2255 motion is pretty much a one-and-done deal: getting permission to file a second or successive § 2255 is pretty tough to do. Because Monterial had previously brought a § 2255 motion attacking the same judgment and because the 10th Circuit had not authorized him to file another one under 28 USC § 2244, the district court dismissed that portion of the compassionate release motion for lack of jurisdiction.
Last week, the 10th Circuit agreed that Monterial’s motion included a successive § 2255 claim because it attacked the validity of his sentence. After all, the Circuit said, if Monterial was right about the prosecutor, his conviction was unconstitutional. Nothing in the compassionate release statute – which tells a district court to focus on 18 USC § 3553(a) sentencing factors – or in the existing Guidelines policy statement (which is being changed in the next few months) suggests that Congress or the Commission ever anticipated rolling an attack on the conviction into a compassionate release motion.
Finally, the 10th said, the district court can only shorten a sentence, not invalidate a conviction, in response to a compassionate release motion. Even if Monterial was right that his conviction was unconstitutional, there was nothing at this point that the district court can do about it.
The Circuit ruled that Monterial’s prosecutorial misconduct claim was a successive § 2255 and had to be cut out of his compassionate release motion.
Ironically, one of the proposed § 1B1.13 Guidelines amendments options now being considered would hold that an extraordinary and compelling reason could include that “[a]s a result of changes in the defendant’s circumstances [or intervening events that occurred after the defendant’s sentence was imposed], it would be inequitable to continue the defendant’s imprisonment or require the defendant to serve the full length of the sentence.”
While this might not have saved Monterial’s claim, it would help people whose sentences were imposed based on Guidelines factors – such as “career offender” – that could not be imposed now.
United States v. Wesley, Case No. 22-3066, 2023 U.S. App. LEXIS 4894 (10th Cir, February 28, 2023)
US Sentencing Commission, Sentencing Guidelines for United States Courts, 88 FR 7180 (February 2, 2023)
– Thomas L. Root