BOP Delegates CARES Act Home Confinement Decision to Prosecutor? – Update for January 26, 2023

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BOP ISSUES STEALTH CARES ACT MEMO GIVING THE US ATTORNEY A HECKLER’S VETO

Even if the CARES Act does not expire in two months, the BOP very quietly issued a memo last month that essentially gives the Assistant U.S. Attorney (AUSA) who prosecuted a prisoner being considered for CARES Act a heckler’s veto.

heckler230126A “heckler’s veto” is a situation in which a party who disagrees with a speaker’s message can unilaterally trigger events that result in the speaker being silenced. Three weeks ago, an inmate who met all of the BOP’s standards for CARES Act home confinement (BOP, April 22, 2020, and April 13, 2021, memos) was rejected for home confinement by his local BOP Residential Reentry Management office.

In a response to his administrative remedy, the BOP told the inmate that “the memorandum for Cares Act Home Confinement was recently updated… on December 19, 2022.” Under the new memo, if the CARES Act candidate has 60 months or more remaining on his sentence, “the Residential Re-entry Management office will contact the AUSA office in the respective court of jurisdiction to solicit input regarding the request for Home Confinement. The input from the AUSA is to be considered among factors used by the RRM office in making a Home Confinement decision.”

henhouse180307The BOP has not suggested it has designated any standards for the AUSA “input.” Like a heckler’s veto, apparently the AUSA can shout down the CARES Act application without a reason, or at least without a reason that relates to the standards the BOP has already set out to qualify for CARES Act home confinement. And thus, the fox has been delegated authority to guard the henhouse.

This does pose a conundrum for the government, however.  Recall that in August, I reported on Tompkins v. Pullen, a case in which an inmate who was yanked back to prison from CARES Act home confinement argued her due process rights were violated. The government opposed the argument, of course, contending that home confinement was just another designation of an inmate to a facility under 18 USC § 3621, sort of an “FCI Home.” Home confinement was nothing special, the government argued, certainly nothing that came with due process rights.

If that’s so (and the court didn’t buy it), one has to wonder why the AUSA has been given a voice in the CARES Act decision, and why it would consider home confinement anything different than transfer from a medium to a low, hardly anything of interest to the prosecutor.

The BOP Public Affairs office declined to provide me with a copy of the memorandum. I have since requested it through a Freedom of Information Act request, for all the good that will do. Back in October 2017, I filed a BOP FOIA request for a report the BOP provided a congressional committee on pre-First Step Act compassionate release. The BOP filled the FOIA request in October 2022, just a week shy of five years after I filed it.

BOP, Home Confinement (April 13, 2021)

BOP, Home Confinement (April 22, 2020)

– Thomas L. Root

Are CARES Act’s Days Numbered? – Update for January 24, 2023

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IS CARES ACT HOME CONFINEMENT ON ITS LAST LEGS?

When Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) nearly three years ago, it included an unprecedented home confinement program for federal prisoners that let the Bureau of Prisons designate prisoners to home confinement during the COVID national emergency.

caresbear230124President Trump declared a one-year national emergency because of COVID on March 13, 2020, under authority of the 46-year-old National Emergencies Act (“NEA”). Since then, President Biden has extended it twice, the last time being Feb 18, 2022, each time for one year. Unless Biden extends it again, the COVID national emergency will expire after Feb 28, 2023.

The CARES Act lets the BOP designate inmates to home confinement without regard for the 10%/6 month limitation set out in 18 USC 3624(c)(2) during the “covered emergency period,” which CARES defines as beginning on March 13, 2020, “and ending on the date that is 30 days after the date on which the national emergency declaration terminates.” If Biden does extend the COVID emergency for another year, the CARES Act placement will end on March 30, 2023.

On Jan 11, 2023, the Dept of Health and Human Services extended the COVID-19 public health emergency through at least April 11, 2023. The public health emergency is not the same as the NEA emergency. Politico reported two weeks ago that “senior Biden officials are targeting an end to the emergency designation for Covid as soon as the spring, after debating doing so last summer and taking a pass… The decision, which has not yet been finalized amid more immediate efforts to manage a recent spike in Covid cases, would trigger a complex restructuring of major elements of the federal response…”

Walter Pavlo wrote in Forbes, “While there are other factors involved with the consideration of ending the National Emergency Declaration, prisoner’s health continues to be an issue even today. Prisoners represent a population with substantial added risk for developing COVID-19 due to multiple factors stated by the CDC, including the inability to social distance.

home210218Pavlo notes that while the federal prison population had been decreasing prior to the start of the pandemic in April 2020, despite the CARES Act, the BOP population has increased 2.5% and is now 158,844. “Many in prison are hoping that President Biden extends the Covid-19 National Emergency Declaration until at least Summer 2023 to get a better picture on the trajectory of the virus,” Pavlo wrote. “Continuing the program can only protect lives of prisoners, many of whom will be returning to society in a few years anyway.”

Writing in USA Today last Thursday, Ingrid Jacques said, “Next month, Biden will again consider whether to extend the COVID national emergency declaration that has existed since early 2020. Congress has signaled it’s ready for it to end. In November, the Senate – including 12 Democrats – passed a resolution calling for a termination of the [NEA] emergency. Now that Republicans hold the House, expect that chamber to join in.”

But the death of the NEA emergency may not be at hand. Biden has found the NEA emergency very convenient for mandating change without the need for Congress. Relying on the NEA emergency, Biden “forgave” hundreds of billions of dollars of federal student loan debt. The courts have blocked that plan, and the Supreme Court will hear the argument in early March. If the NEA emergency is not renewed, it could weaken the Administration’s case.

Plus, the Biden administration was in court last week defending its right to order masks on airplanes, buses and trains. The Dept of Justice is arguing that the administration has the authority to require masks in the name of public health.

dontcare170123Axios reported last month that lawmakers who voted to end the NEA emergency “probably aren’t focused on the programs [that would be lost] as much as making a statement that the country has returned to normal… “[The pandemic] is over. I’m going to keep voting until we get it over,” said Sen. Joe Manchin [D-WV]. “We should get back to normal lives.” Sen. Tim Kaine [D-VA] said the Biden administration didn’t provide senators with a good reason to keep it in place – only sending a memo to offices urging a “no” vote 10 minutes after the vote.

Coronavirus Aid, Relief, and Economic Security Act, Pub.L 116-136, 134 Stat 281 (March 27, 2020)

National Emergencies Act, Pub.L 94-412, 90 Stat 1255 (September 14, 1976)

Politico, Biden team eyes end of Covid emergency declaration and shift in Covid team (January 10, 2023)

Forbes, Federal Prisoners Concerned Over End Of CARES Act National Emergency Declaration (January 20, 2023)

Senate, Joint resolution relating to a national emergency (S.J.Res. 63) (November 15, 2023)

Axios, What happens when the COVID national emergency ends (December 9, 2022)

– Thomas L. Root

Will SCOTUS Grant Review to Acquitted Conduct Today? – Update for January 23, 2023

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ACQUITTED CONDUCT STILL HANGING FIRE

Three weeks ago, I wrote that the Supreme Court would be deciding whether to finally take the question of whether a district court should be able to factor conduct for which a defendant was acquitted into a sentence, sort of “the jury didn’t think you did it, but I know better” approach to sentencing.

relist230123It turns out that SCOTUS now has five petitions for review before it raising the acquitted conduct issue. The principal case, McClinton v. United States, was “relisted” at the Justices’ Friday, January 6, 2023, conference for the following week’s Friday conference. On January 13, the Justices relisted the issue again for the January 20, 2023, conference. The Court will announce actions taken at the January 20th conference this morning at 9:30 Eastern time.

A “relist” occurs when the justices neither accept nor deny a petition for certiorari, but instead defer it for the next conference.

SCOTUSBlog explains that

it is almost impossible to know exactly what is happening when a particular case is relisted… One justice could be trying to pick up a fourth vote to grant review, one or more justices may want to look more closely at the case, a justice could be writing an opinion about the court’s decision to deny review, or the court could be writing an opinion to summarily reverse… the decision below.

Generally, the Supreme Court does not accept a case for review until it has been “relisted” one or more times.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said last week, “More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court’s decision not to grant review. But relisting is also sometimes a precursor to a later granting of cert. So, as I have said before, I am hopeful, though still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.”

SCOTUSBlog, Acquitted-conduct sentencing and “offended observer” standing (January 19, 2023)

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

Sentencing Law and Policy, US Supreme Court relists latest cases seeking review of acquitted conduct sentencing (January 17, 2023)

– Thomas L. Root

The Sentence That Was Right Then Might Not be Right Now, 4th Circuit Says – Update for January 20, 2023

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CONSIDER 3553(a) IN LIGHT OF REASONS FOR COMPASSIONATE RELEASE, 4TH CIRCUIT SAYS

Back in 2008, Mike Mangarella was convicted of a massive sweepstakes fraud and was sentenced to 600 months. Twelve years later, Mike – old and sick and in the middle of a COVID pandemic – moved for compassionate release.

compassion160208The district court agreed that Mike’s COVID concerns were extraordinary and compelling reasons for a sentence reduction. But the judge was miffed that the Assistant U.S. Attorney agreed with Mike that the 18 U.S.C. § 3553(a) sentencing factors favored his compassionate release, complaining that the “government had failed to explain why – disregarding COVID-19 – the same § 3553(a) factors that originally supported a 30-year sentence now pointed to a sentence of only 14 years.” The judge told the government to “focus on the § 3553(a) factors without reference to COVID-19.”

(For those just joining us, under 18 U.S.C. § 3582(c)(1)(A), a district court considering a compassionate release sentence reduction motion must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.” Those factors are the standards a court must consider in imposing a criminal sentence, such as the history of the offender and nature of the crime, need for deterrence, what punishment is “just,” protection of the public, and so on.  It is what constitutes “considering” that is at issue here.)

tea160404After the district court’s scolding, the government read the tea leaves and quickly changed its position. The district judge then held that – even assuming that Mike’s reasons were “extraordinary and compelling” – his compassionate release motion should be denied based on the § 3553(a) sentencing factors.

Last week, the 4th Circuit vacated the decision and sent it back to the district court. The Circuit said it was not satisfied that the district court, in weighing the § 3553(a) factors, considered Mike’s “principal argument — originally joined by the government — for why those factors no longer warranted a 30-year sentence: that given his particular risk profile with respect to COVID-19, his prison sentence now carried with it a significant chance of a life-threatening illness.”

The record from Mike’s district court suggested that the judge decided that if 50 years was the right sentence in 2008, it must automatically continue to be the right sentence 14 years later. But the § 3553(a) factors in a compassionate release motion “must account not only for the circumstances at the time of the original offense but also for significant post-sentencing developments.” The Circuit specifically cited Chief Judge Gregory’s concurrence in United States v. Kibble that “there is good reason to believe that, in some cases, a sentence that was ‘sufficient but not greater than necessary’ before the coronavirus pandemic may no longer meet that criteria.”

The holding underscores that § 3553(a) sentencing factors must be considered in light of the “extraordinary and compelling” reasons for compassionate release, not in a vacuum (as many district courts have done up to now).

United States v. Mangarella, Case No 20-7912, 2023 U.S. App. LEXIS 518 (4th Cir., January 10, 2023)

– Thomas L. Root

BOP Earned Time Credits Still a Mess – Update for January 19, 2023

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FSA CREDIT AUTO-CALC CREATES HAVOC (AGAIN)

After a year of fits and starts, the Federal Bureau of Prisons last week rolled out its latest iteration of the automatic calculation of inmates’ First Step Act credits. Some prisoners were released (or at least saw their time cut) due to the new calculations. But it seems a larger number still was left confused and unhappy, according to Forbes.

release161117On the Early Release from Federal Prison/Cares Act/First Step Act Facebook page, one commenter reported that his halfway house reported “a glitch in the system and that to give them until the 18th to have it corrected, but they are aiming for the end of this week.” On January 12, Bruce Cameron of Federal Prison Authority reported on the Facebook site that the BOP was “aware of a couple of issues that probably caused all the problems most are having… people being marked as ineligible who are eligible and have been eligible the whole time” and “a glitch that is causing people to be earning 10 days a month instead of 15 days a month. This would be the reason why you wouldn’t see all your time you are supposed to have.”

Yesterday, Cameron told his Facebook followers, “For those impacted by the ‘glitch’ put your patience hat on for February 6!”

Writing in Forbes, Walter Pavlo reported that “while many prisoners were released this week because of the new calculation, many of them would have gone home earlier if the BOP had correctly implemented the FSA calculator much earlier… The issue that is causing much of this problem is two-fold; a correct interpretation of the FSA that most everyone forgot about and yet another error in the FSA calculator.”

Pavlo said that because FSA credits can only be applied when the credits earned equals or exceeds the amount of time remaining on the sentence, “Those prisoners who had credits that suddenly disappeared really still have them, they just cannot be applied yet because they have more days remaining on their sentence than they do FSA credits.”

computerglitch230120Pavlo said the second problem is whether a prisoner earns 10 days or 15 days of FSA credit a month. Subsection (d)(4)(A)(ii) of 18 USC 3632 says that prisoners with a minimum or low PATTERN score “who, over 2 consecutive assessments, has not increased their risk of recidivism, shall earn an additional 5 days of time credits for every 30 days of successful participation” in programming. The BOP interprets this to mean that prisoners must score low or minimum for two assessments before they can earn 15 days rather than 10.

Even if this interpretation is right, something that is less than clear, the new auto-calc program did not detect the second PATTERN risk assessment score, according to Pavlo, “so prisoners received only 10 credits for each month of programming rather than 15 after the second PATTERN score. It is a problem that the BOP is going to correct but there is no timeline for that fix.”

Forbes, Working Out The Bugs On The Bureau Of Prisons’ First Step Act Calculator (January 12, 2023)

Facebook, Early Release from Federal Prison/Cares Act /First Step Act public group (January 12, 2023, and January 19, 2023)

– Thomas L. Root

New Day Dawning for Compassionate Release? – Update for January 17, 2023

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SENTENCING COMMISSION ISSUES DRAFT COMPASSIONATE RELEASE AMENDMENTS

USSCvanwinkle230117For the first time in five years, the U.S. Sentencing Commission last week issued draft Guidelines amendments that – after public comment and a 6-month Congressional review period – will become effective in November.

The USSC’s draft amendments cover everything from the drug safety valve to extra points off for defendants with a zero criminal history score to tougher guideline numbers for gun straw purchasers. But these draft changes are of lesser interest to prisoners because nothing the Commission changes in the guidelines is retroactive unless the USSC goes through a separate amendment process to make it so.

The last time that happened was the “drug-minus-two” change in 2014. Whether any of the sentencing changes the USSC issued in draft form last week will ever make the retroactivity cut is not yet clear.

The compassionate release policy statement that the USSC rolled out, however, will have applicability for people already serving a sentence. The Guidelines applied at sentencing have been advisory for the past 18 years, but the Commission’s compassionate release policy, USSG § 1B1.13, is not: under 18 USC § 3582(c)(1)(A) – the  “compassionate release” provision of the sentencing statute – a district court must ensure any sentence reduction decision “is consistent with applicable policy statements issued by the Sentencing Commission.”
compassionlimit230117The existing compassionate release policy was written before the First Step Act passed, for an era in which only the Bureau of Prisons could bring a compassionate release motion on behalf of an inmate. Since First Step passed, most (but not all) circuit courts have ruled that § 1B1.13 is not binding because it had not been amended to include First Step changes. While that freed district courts to grant compassionate release in circumstances other than the few listed in the old § 1B1.13, it wasn’t all good.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates,” US District Court Judge Carlton W. Reeves, Commission chairman, said at last week’s USSC meeting. “It is my sincere hope that our work… brings greater clarity to the federal courts and more uniform application of compassionate release across the country.”

According to the USSC, people in Oregon had a 62% chance of getting a compassionate release grant. People in the Middle District of Georgia had a 1.5% chance. Giving federal judges the freedom to define for themselves what justifies a sentence reduction is a great thing when it frees the jurists from unreasonably strict limitations. It’s not so great when defendants with similar histories and offenses are treated dramatically differently due to an accident of geography.

The draft § 1B1.13 amendments propose additions to circumstances justifying compassionate release that include “medical conditions that require long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that are not being provided in a timely or adequate manner; risk of being affected by a disease outbreak in prison for which the defendant is at increased risk of suffering severe medical complications or death; the incapacitation of the defendant’s parent when the defendant would be the only available caregiver; the defendant has been the victim of sexual assault or physical committed by a BOP employee or contractor; or “the defendant is serving a sentence that is inequitable in light of changes in the law.”

compassion160208The proposal also suggests a “catch-all” provision that “the defendant presents an extraordinary and compelling reason other than, or in combination with” the other circumstances the Commission has proposed for the beefed-up  § 1B1.13. 

The USSC draft proposals also include a provision to amend § 1B1.3 the “relevant conduct’ provision that tends to run up sentencing ranges, “to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction.” As noted, no one at this point knows whether this might become retroactive in the future.

Reuters, U.S. panel proposes limiting sentencing of defendants for acquitted conduct (January 12, 2023)

USSC, US Sentencing Commission Seeks Comment on Proposed Revisions to Compassionate Release, Increase in Firearms Penalties (January 12, 2023)

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 12, 2023)

Sentencing Law and Policy, US Sentencing Commissions publishes proposed guideline amendments and issues for comment (January 12, 2023)

– Thomas L. Root

That’s Amaury! – 6th Says Court Can’t Choose to Believe One Side’s § 2255 Facts Without Hearing – Update for January 13, 2023

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6TH SAYS CLASHING § 2255 AFFIDAVITS REQUIRE A HEARING

When a prisoner files a 28 USC § 2255 post-conviction motion claiming his conviction or sentence was marred by poor lawyering, district courts often manage to find all manner of ways to believe the government’s version over the inmate’s.  Last week, the 6th Circuit offered a rare reminder that this isn’t how it is supposed to work.

facts161228The Assistant U.S. Attorney prosecuting Amaury Villa’s case emailed Amaury’s counsel in January 2016 with an offer to enter into a cooperation agreement. Amaury’s lawyer says he told Amaury about the offer the day it was made. Amaury says that he learned about that offer only years later – after his conviction was final – when he obtained the relevant portion of his lawyer’s case file.

As soon as he got the file, Amaury amended his pending 28 USC § 2255 habeas corpus motion with his own affidavit, claiming his lawyer was ineffective for not disclosing the offer at the time. Not to be outdone, the government filed an affidavit from Amaury’s former lawyer, claiming he had told his client right away about the proposed deal.

justthefacts220810The district court summarily adopted the government’s view of the facts and denied Amaury’s motion to amend as untimely. Last week, the 6th Circuit reversed and ordered an evidentiary hearing.

“When a defendant presents an affidavit concerning a factual narrative of the events that is neither contradicted by the record nor inherently incredible and the government offers nothing more than contrary representations to contradict it,” the Circuit said, “the defendant is entitled to an evidentiary hearing.”

In this case, the 6th observed, the record contained conflicting affidavits regarding whether Amaury knew of the government’s offer. Thus, the record before the district court did not “conclusively show” that Amaury was not entitled to relief.

The government met with Amaury in 2016, a meeting his lawyer did not attend because the attorney’s father had passed away the night before. “Although an interpreter was not present at the meeting and (according to Villa) his English was ‘not very good,’” the Circuit said, the AUSA told Amaury that the government wanted him to testify against another defendant (for which Amaury presumably would have gotten credit in the form of a better sentence). The AUSA did not mention a cooperation agreement as such, and the meeting was a short one. Amaury later pled guilty without a plea agreement.

confused230113On appeal, the government argued that based on the AUSA’s comments in the short meeting, Amaury should have been aware there was a cooperation agreement on the table. The Circuit rejected that argument: “During that meeting… the AUSA mentioned neither the cooperation agreement nor anything else about what Villa might receive in return for his testimony. Thus, to discover the AUSA’s earlier offer to Villa’s attorney, Villa himself, in effect, would have needed to commence bargaining with the AUSA — by asking what he might have received in exchange for his testimony… That is too much to ask of an uncounseled defendant conversing in his second language with a federal prosecutor.”

Villa v. United States, Case No. 22-5437, 2023 U.S.App. LEXIS 12 (6th Cir., January 3, 2023)

– Thomas L. Root

Four Years After First Step Passes, USSC to Roll Out Draft Compassionate Release Policy – Update for January 12, 2023

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SENTENCING COMMISSION TO PUBLISH FIRST DRAFT PROPOSED GUIDELINES AMENDMENTS TODAY

USSC170511The U.S. Sentencing Commission will adopt its first set of draft proposed amendments to the Federal Sentencing Guidelines in five years when it meets today.

The Commission’s meeting, which starts at 1 p.m. Eastern time,  will be live-streamed.

Last October, the Commission announced that its top priority is amending USSG § 1B1.13, the policy statement on compassionate release.

The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), requires judges to only grant compassionate releases that are “consistent with applicable policy statements issued by the Sentencing Commission.” However, § 1B1.13 was written when only the BOP could bring compassionate release motions. The compassionate release statute was changed by the First Step Act, passed four years ago at the same time the Sentencing Commission lost its quorum,

Most (but not all) Circuits have since ruled that § 1B1.13 was written for a compassionate release regime that no longer exists and thus is not binding on district courts until it is amended.

Other changes that may be issued in draft form include changes in the drug Guideline (USSG § 2D1.1) due to First Step’s lowering of mandatory drug minimums, resolving circuit conflicts over whether the government may withhold a motion for a third acceptance of responsibility point because a defendant had moved to suppress evidence before entering a guilty plea, and amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.”

The draft the Commission will issue Thursday will be open for public comment for a period of time, and then a slate of proposed amendments will be adopted by May 1.  Under 28 U.S.C. § 994(p), the proposed amendments become effective November 1st unless Congress blocks them.

U.S. Sentencing Commission, Public Meeting – January 12, 2023 (January 3, 2023)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2023)

– Thomas L. Root

“THERE IS A REASON THIS IS CALLED COMPASSIONATE RELEASE” – Update for January 11, 2023

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4TH CIRCUIT SLAMS DISTRICT COURT ‘ROTE’ DENIAL OF COMPASSIONATE RELEASE 

compassion160124Some 15 years ago, Lonnie Malone was sentenced to 330 months for a drug conspiracy and 18 USC § 924(c). After serving 11 years, Lonnie sought compassionate release based on his poor health and advanced age. The district court denied his motion, relying solely upon USSG § 1B1.13.

The following year, the Bureau of Prisons deemed Lonnie to have a severe COVID-19 risk, and sent him to CARES Act home confinement. Lonnie then filed a second compassionate release motion, again arguing his advanced age and severe health conditions. As well, Lonnie focused on the COVID pandemic, relevant 18 USC § 3553(a) sentencing factors, the “extreme” nature of his sentence, and his inability to receive social security on home confinement.

The district court was not impressed, and again denied Lonnie compassionate release, tersely noting that “considering these facts and the § 3553(a) factors… no further relief is warranted.”

Last week, the 4th Circuit reversed the compassionate release denial, finding the “district court’s reasoning both inadequate and at odds with the record.” The Circuit panel explained that while Lonnie

was sentenced within the applicable guidelines range and the court then believed his sentence necessary for community protection” back in 2008, his “severely degenerated health and advanced age provide strong grounds for reweighing the relevant sentencing factors. Because motions for relief under § 3582(c)(1)(A)(i) ask courts to balance the severity of the inmate’s personal circumstances, on the one hand, against the needs for incarceration, on the other, a district court’s task is to determine whether these relevant § 3553(a) factors weigh against sentence reduction in light of new extraordinary and compelling reasons.”

Here, the Circuit said, Lonnie’s “new extraordinary and compelling circumstances inhibit him from being a danger to the community. For one, Malone was moved to minimal security while in prison, demonstrating that he posed no threat while incarcerated. Even more, since the BOP transferred Malone from his prison facility to home confinement during the pandemic’s emergency period, this indicates the BOP’s assessment that Malone is not a danger to the community… Thus, if the district court was determined to keep Malone on home confinement for the five years remaining on his sentence, it would “not meaningfully advance the purposes of sentencing.”

compassion160208Citing Lonnie’s lack of a criminal history and his having served 14 years, taken multiple classes and being put in a camp – along with “extraordinary and compelling health-related circumstances [that] have condemned him to a life filled with limitations,” the 4th held, “to affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight. There is a reason this is called compassionate release, after all.”

The Circuit said, “In sum, the district court’s § 3553(a) reasoning was a ‘rote’ statement lacking the necessary rebalancing regarding Malone’s conditions at the time his motion was filed.’

United States v. Malone, Case No. 21-6242, 2023 U.S.App. LEXIS 207 (4th Cir., January 5, 2023)

– Thomas L. Root