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COURTS STARTING TO REJECT DOJ’S ATTACK ON NEW COMPASSIONATE RELEASE GUIDELINE

You may remember the old Dept of Justice bait-and-switch a year ago. DOJ told the Supreme Court that it shouldn’t grant review of acquitted conduct petitions because the Sentencing Commission was going to address the issue. Then, less than a month later, DOJ filed comments telling the Sentencing Commission that it lacked the authority to address acquitted conduct at all.

The DOJ’s at it again. Before the Sentencing Commission adopted a new USSG § 1B1.13 – the compassionate release guideline that became effective last November – there was a circuit split on whether a long sentence that was mandatory before the First Step Act passed but could no longer be imposed after First Step passed could constitute an extraordinary and compelling reason for a sentence reduction.

(This difference in sentence length depending on when the sentence was imposed is called “temporal disparity”).

Six circuits said temporal disparity could never be extraordinary and compelling. Five circuits said it could. The government opposed certiorari petitions in a number of cases that asked the Supreme Court to resolve the issue. The government told SCOTUS that the issue should be addressed by the Sentencing Commission, not the Court.

Now the Sentencing Commission has addressed it, directing in § 1B1.13(b)(6) that temporal disparity can be extraordinary and compelling if the inmate has done 10 years, if there’s a great sentence disparity, and if the inmate has a good prison record.

What is the DOJ’s response to that? It has filed oppositions all around the country, arguing that the Sentencing Commission’s (b)(6) guideline exceeded its statutory authority and is invalid. As Ronald Reagan used to say to Jimmy Carter, “There you go again…”

The government’s cookie-cutter oppositions are now being decided. A late November Southern District of Indiana decision in United States v. Jackson held that 7th Circuit precedent holds that the statutory definition of ‘extraordinary’ does not extend to temporal disparity, “which means there is a question about whether the Sentencing Commission exceeded its authority when it added this item to the list of potentially extraordinary and compelling reasons warranting a sentence reduction…” But because the defendant didn’t meet the 10-year minimum sentence required for a compassionate release under (b)(6), the court did not rule on its “question.”

In United States v. Carter, an Eastern District of Pennsylvania decision from three weeks ago, the district court ruled that the 3rd Circuit’s 2021 United States v. Andrews decision, which held a change in the law could never be an extraordinary and compelling reason for compassionate release “forecloses Carter’s argument that he is eligible… 1B1.13(b)(6) states that an ‘unusually long sentence’ may be deemed an extraordinary and compelling reason’ warranting compassionate release… That provision… is incompatible with Andrews…”

Two thoughtful decisions issued last week clash with Carter’s holding and Jackson’s implication.

In United States v. Capps, an Eastern District of Missouri court rejected the government’s argument that because First Step did not make changes in 18 USC § 924(c) and 21 USC § 841(b) retroactive, the Sentencing Commission cannot do so, either. “Congress is not shy about placing sentencing modification limits where it deems them appropriate,” the Capps court said. “Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. The absence of any such limitation is telling.”

The best repudiation of the government’s attempt to strip § 1B1.13(b)(6) of legitimacy came last Thursday. In United States v. Padgett, a Northern District of Florida district court ruled that making temporal disparity an “extraordinary and compelling” reason for compassionate release was exactly the kind of decision Congress intended the Commission to make.

“The government acknowledges that Congress directed the Commission to address the meaning of extraordinary and compelling,” the district court said. “But the government asserts the Commission went too far, because, the government says, a temporal disparity, no matter how great or how unusual, can never provide an extraordinary and compelling reason for a sentence reduction.”

The Court ruled:

The very fact that the circuits split on this issue suggests the meaning of ‘extraordinary and compelling’ is not as clear as the government now asserts. Instead, this is precisely the kind of issue Congress called on the Commission to resolve. Indeed, in United States v. Bryant… the 11th Circuit held binding the Sentencing Commission’s prior policy statement on this very issue, emphatically explaining that Congress left it to the Sentencing Commission to define ‘extraordinary and compelling,’ subject only to the requirement that rehabilitation alone is not enough. The Bryant court said relying on the Commission promotes uniformity, thus minimizes unwarranted sentence disparity, and that defining these terms is ‘not a task that the statute allocates to courts… A district court’s job is ‘simply’ to apply the Commission’s policy statements and, as required by the statute, consider the 3553(a) sentencing factors in deciding whether to reduce an eligible defendant’s sentence.

There is little doubt that the government or a defendant will fight this to the Supreme Court. For now, the proper application of the temporal disparity compassionate release guideline will be as random as it ever was before the new § 1B1.13.

United States v. Jackson, 2023 U.S.Dist. LEXIS 208272 (S.D. Ind, November 21, 2023)

United States v. Carter, 2024 U.S.Dist. LEXIS 6504 (E.D. Pa., January 12, 2024)

United States v. Capps, Case No 1:11cr108 (E.D. Mo., January 31, 2024)

United States v. Padgett, Case No 5:06cr13 (N.D. Fla., January 30, 2024)

– Thomas L. Root