Tag Archives: 18 usc 3553

Some Pro Tips for Compassionate Release D-I-Y’ers from the 1st Circuit – Update for August 8, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

1ST CIRCUIT HANDS OUT A FEW PRO TIPS FOR COMPASSIONATE RELEASE MOTIONS

The 1st Circuit reminded us last week that 18 USC § 3582(c)(1)(A) compassionate release decisions are granted largely in the district court’s discretion, and if the district court thinks you’re still a danger to the community, don’t expect love from the court of appeals.

walkedwomantalkedman240808Michel D’Angelo robbed a bank in 2012 dressed like a woman and carrying a purse he told tellers contained a bomb. His lengthy criminal history of burglary, theft, disorderly conduct, criminal threatening, multiple assaults, and trafficking in prison contraband, qualified him under the law at the time as a Guidelines career offender (sentencing range of 210-240 months. The judge varied downward because of Mike’s mental health challenges and gave him 180 months.

In 2022, 11 years after the bank robbery, Mike sought compassionate release. He argued that changes in Guidelines interpretation meant that he would not be a career offender if he were sentenced today, that he had been rehabilitated, and that the BOP had not adequately treated his mental conditions.

The district court denied the compassionate release motion. Last week, the 1st affirmed, finding that the district court’s holding that Mike was still a danger to the public — despite his showing on other 3553(a) factors — was well within the judge’s discretion.

The case arose when USSG § 1B1.13 was still advisory, making some of its holding inapplicable to current compassionate release motions. However, there are two takeaways worth considering for those seeking compassionate release now.

nickdanger220426First, the district court found Mike to still be a danger because he had a long criminal history even before robbing the bank; the robbery was “a frightening and life-endangering offense;” and he had “accumulated a tumultuous disciplinary record while incarcerated.” Also, Mike’s recidivism score was “high,” a fact more important to the Circuit than Mike’s argument that his age – 42 years old – made him statistically less likely to commit new crimes.

The lesson here is that if you have a significant criminal history (Mike’s was a “V”), if you committed a crime of violence, or if you have a checkered institutional disciplinary record, you may have a steep hill to climb getting a compassionate release. If your PATTERN score is a “low” or “minimum,” you should soundly thump that fact.

Second, the 1st agreed that Mike wouldn’t be a career offender if sentenced today, but it held that that fact alone was not extraordinary and compelling. Look to § 1B1.13(b)(6) (change in sentencing law that produces a gross disparity and the prisoner has served 10 years and his or her “individualized circumstances” justify a reduction. Mike had gotten a downward variance sentence to 180 months because of his mental health problems, within what his Guidelines would have been without career criminal status. No gross disparity here, and Mike’s “individualized circumstances,” mainly his institutional conduct and progress, were not good.

The tip is that a change in the law alone is not enough to establish extraordinary and compelling reasons for grant of a compassionate release motion. Read and follow § 1B1.13(b)(6).

nothingcoming210420The final pro tip in this decision arose from Mike’s complaint that the district court was obligated to correctly calculate his lower Guidelines range (without career offender) before performing the 18 USC § 3553(a) “sentencing factors” analysis. The 1st disagreed, finding that the district judge “correctly calculated this lower Guidelines range before explaining why § 3553(a) did not favor reducing Mike’s sentence. Because the district court performed its § 3553(a) analysis after assuming that the career-offender enhancement would not apply, we gather from context that it implicitly considered that Guidelines range as part of its analysis.”

This holding suggests that any compassionate release motion raising the argument that the movant would not have been sentenced as harshly today should include a reasonably detailed analysis of the correct Guideline range and point out that any § 3553(a) analysis should start from the adjusted lower range.

United States v. D’Angelo, Case No. 22-1875, 2024 U.S. App. LEXIS 18794 (1st Cir. July 30, 2024)

– 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

‘You May Be Sick, But You’re Still a Bad Guy’ – Update for November 5, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A COUPLE OF NOTES ABOUT COMPASSIONATE RELEASE…

Two decisions last week delivered some handy reminders to people seeking “compassionate release” sentence reductions under 18 USC § 3582(c)(1)(A)(i) that (1) a defendant’s being sick or prone to get sick is not the only concern of the judge; and (2) there are procedural pitfalls for the unwary.

death200330By now, everyone knows that you have to show “extraordinary and compelling” reasons warranting a sentence reduction. These days, such reasons are usually (but not always) that you have medical conditions that puts you at risk for catching COVID (although a variety of reasons from medical to questions of fairness have supported compassionate release in the two years since defendants first got the right to bring the motions themselves in the First Step Act).

But “extraordinary and compelling” is just part of the showing you have to make. The statute also requires that the court consider the “sentencing factors” of 18 USC § 3553(a). And whether the factors favor grant of your motion is almost solely the judge’s call.

The factors are framed in such terms as consideration of “the nature and circumstances of the offense and the history and characteristics of the defendant” and “the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to provide adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with education, training, medical care, or other treatment.” But what it all comes down to whether the judge thinks the defendant has been locked up long enough.

Keith Ruffin filed a motion with his sentencing court for compassionate release, arguing that his heart problems, high blood pressure, high cholesterol, and blood clots, put him more at risk for COVID. These are all pretty good reasons, according to the Centers for Disease Control and Prevention. But his sentencing judge disagreed that his health concerns were “extraordinary and compelling reasons” for relief, and held that even if they were,  the § 3553(a) sentencing factors argued against a sentence reduction.

lockedup201105Last week, the 6th Circuit upheld denial of Keith’s compassionate release motion. It ignored Keith’s solid argument that the district court had erred in holding that because Keith could currently manage his health conditions, his risk factors were not extraordinary and compelling reasons for compassionate release. Instead, the court said, the district court is pretty much all there is in deciding that cutting Keith loose was inconsistent with the 3553(a) factors.

“These ubiquitous factors,” the Circuit said, “consider such things as the characteristics of the defendant, the nature of the offense, and various penological goals, such as the need to promote respect for law and to protect the public. This last requirement confirms an overarching point: The district court has substantial discretion. The statute says that the district court “may” reduce a sentence if it finds the first two requirements met; it does not say that the district court must do so. Even if those conditions are met, therefore, a district court may still deny relief if it finds that the “applicable” 3553(a) factors do not justify it. And in a reduction-of-sentence proceeding, as at sentencing, the district court is best situated to balance the § 3553(a) factors.”

A district court might abuse its discretion, the 6th said, if its denial was based on a purely legal mistake (such as a misreading the extraordinary-and-compelling-reasons requirement) or if it engaged in a substantively unreasonable balancing of the § 3553(a) factors. Here, the district court considered the amount of time served, his somewhat uneven prison record as evidence of the extent of rehabilitation, and the fact Keith had committed his crimes while suffering from the same health concerns he now relied on to justify compassionate release.

In another case, Art Payton’s compassionate release motion was denied by his sentencing court last July 24th. He filed a notice of appeal on August 10th, 17 days later. Last week, the 6th Circuit dismissed his appeal.

timewaits200325The deadline for an appeal in a civil case is at least 30 days after the final order is issued (and can be more in some cases). But a motion under 18 USC § 3582(c)(1)(A)(i) is a continuation of a criminal case, and thus is subject to the 14-day deadline set out in Fed.R.App.P. 4(b)(1).

Rule 4(b)(4) authorizes the district court to extend the time in which a party may appeal for up to 30 days from the end of the fourteen-day appeal period provided in F.R.App.P 4(b)(1)(A). However, the court must find “good cause” or “excusable neglect” for the failure to timely file a notice of appeal.

The Court sent the case back to the district court to determine whether Art’s excuse – that the prison has been “on an institution-wide lockdown and getting copies in this environment is problematic” – should allow him to file a belated appeal.

United States v. Ruffin, Case No. 20-5748, 2020 U.S. App. LEXIS 33689 (6th Cir Oct 26, 2020)

United States v. Payton, Case No 20-1811, 2020 U.S. App. LEXIS 33965 (6th Cir Oct 28, 2020)

– Thomas L. Root