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11th Circuit Defines “Available Caregiver” for Compassionate Release – Update for February 23, 2026

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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.

I’M AVAILABLE

One extraordinary and compelling reason for grant of compassionate release under 18 USC 3582(c)(1) is that the prisoner has a loved one – child, spouse, sibling, parent – who is incapacitated by illness or injury and needs a caregiver.  The catch is that (except in case of a spouse) the prisoner must be the “only available caregiver” for the family member under Guidelines 1B1.13(b)(3)(C).

No one has been quite sure what constitutes the “only available caregiver.” Last week, the 11th Circuit became the first appellate court to weigh in on the question.

Rufino Robelo-Galo petitioned his sentencing court for compassionate release, arguing that he was the “only available caregiver” for his incapacitated father. The district court found that Rufino’s son, Elmer, was available to help the incapacitated dad, and, as a result, Rufe was not the only available caregiver. The court denied the compassionate release motion, and Rufino appealed.

Last week, the 11th Circuit upheld denial of the compassionate release motion. To prove extraordinary and compelling reasons for grant of compassionate release under USSG 1B1.13(b)(3)(C) – the incapacitated family member provision – the Circuit ruled that an inmate must demonstrate that no other person is both qualified and free to provide the needed care.

“Whether an alternative caregiver is both qualified and free, the 11th said, “will turn on the unique facts of a particular case, but we identify several factors that district courts should consider in making that assessment.” Those may include

    • whether legal barriers (such as immigration status or active duty military) prevent the potential caregiver from providing care;
    • whether physical or logistical barriers exist to caregiving, such as geographic distance (which“may render caregiving impracticable depending on the circumstances. A potential caregiver who lives across the country is less free to care for an incapacitated relative than a potential caregiver who lives in a neighboring town;”
    • whether knowledge or capability-based barriers (such as language or specialized skills) might affect the caregiver’s qualifications;
    • whether “familial dynamics or relationship history” – such estrangement or history of abuse – may bear on an alternative caregiver’s availability. The Circuit noted that “evidence that a family member or friend has previously cared for the incapacitated person supports a finding that the family member or friend is available;” and
    • whether economic, financial, or employment-related barriers would impact a caregiver’s availability.

In this case, Rufus argued that none of his five children was available to serve as the grandfather’s caregiver. One child was deceased; one’s whereabouts were unknown; two lived in the United States and could not relocate to Honduras; and the remaining child – Elmer – lived in Honduras but was four hours away. Elmer could not travel back and forth to care for his grandfather because he did not have a car, Elmer could not accommodate his grandfather in his own home because of space constraints, and that Elmer could not relocate to his grandfather’s home because he would not be able to find work and provide for his own children.

The district court, however, reasoned that because Elmer was “within hours of the incapacitated family member,” Rufus was not “the only available caregiver for his incapacitated father… [and] that “a finding of compassionate release cannot rest solely on avoiding such inconvenience for a convicted inmate’s family.”

Being the first Circuit case to address the meaning of “available caregiver” in detail, the 11th’s decision will undoubtedly become the “go-to” ruling on the question across other circuits.  Anyone filing a compassionate release motion arguing an incapacitated family member should address the factors identified by Rufus’s court.

United States v. Robelo-Galo, Case No. 24-12128, 2026 U.S.App. LEXIS 4650 (11th Cir. February 17, 2026)

~ Thomas L. Root

SCOTUS Oral Argument Lacks Compassion for Compassionate Release Cases – Update for November 17, 2025

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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.

ARE YOU DISRESPECTING ME?

An uncomfortable number of Supreme Court justices last Wednesday questioned whether the United States Sentencing Commission overstepped its authority when it amended USSG § 1B1.13(b)(6) to hold that changes in mandatory minimum laws – even when not retroactive – and concerns about actual innocence could be part of a court’s consideration when weighing an 18 USC § 3582(c)(1)(A) compassionate release motion.

I learned as a young lawyer (many years ago) that trying to predict the outcome of an appellate case based on the oral argument was a fool’s errand. Still, the nearly three hours of argument last Wednesday on what should be or should not be extraordinary and compelling reasons judges must consider in granting § 3582(c) sentence reductions provided little reason for optimism.

The issue was whether extraordinary and compelling reasons include factors like trial errors or nonretroactive changes in the law.  Lawyers for Daniel Rutherford and John Carter, two inmates seeking such sentence reductions, argued that the Commission was within its legal authority to say that courts could consider whether the First Step Act’s nonretroactive changes to gun and drug mandatory minimums would have resulted in lesser sentences in their cases.

In a third case, Fernandez v. United States, a district court had granted Joe Fernandez compassionate release in part because the judge felt “disquiet” about the conviction due to questions about whether the witness who had fingered Joe had lied to save his own skin. The 2nd Circuit Court of Appeals rejected the compassionate release, arguing that Joe’s innocence claim should have been brought up in a 28 USC § 2255 habeas challenge instead.

A § 3582(c)(1) sentence reduction, known a little inaccurately as “compassionate release,” permits courts to reduce criminal sentences in certain cases. Before 2018, the Bureau of Prisons was the only entity that could file a motion for such consideration, but the First Step Act eliminated that requirement. The Sentencing Commission is charged by 28 USC § 994(t) with the responsibility for defining what constitutes an extraordinary and compelling reason, and has expanded such to include medical conditions, family circumstances and age. The compassionate release guideline amendment in November 2023 adopted a broader view of compassionate release factors that included changes in the law that would have made a prisoner’s sentence much shorter if those changes had been in force when he got sentenced.

During Wednesday’s arguments, the only Justice of the nine expressing sympathy for Rutherford, Carter, and Fernandez was Ketanji Brown Jackson. All of the others seemed concerned that the changes in USSG § 1B1.13(b)(6) thwarted Congress’s will, would result in a flood of compassionate release motions, and would permit an end-run on § 2255.

Jackson maintained that the § 2255 and compassionate release considerations were not mutually exclusive. Instead, Jackson said compassionate release was intended to work as a safety valve.

“The question is, ‘safety valve for what?” Justice Elana Kagan countered. “Not every safety valve is a safety valve for everything.”

Justice Sonia Sotomayor said a district judge’s doubts about a jury verdict shouldn’t be used as a factor in compassionate release claims. “It happens to every district court judge,” she said. “There’s a case where you really struggle, but can we, in the facts of this case, denote that that is an extraordinary circumstance?”

Justice Neil Gorsuch contended that the judge’s own feelings, even if reasonable, should have nothing to do with the defendant’s circumstances for compassionate release. “I thought, in our legal system, the jury’s verdict on the facts is not something a court can impeach unless it’s clearly erroneous,” Gorsuch said. He suggested that the Commission had been “disrespectful” by substituting its own position on retroactivity for Congress’s.

In the Fernandez case, the Court appeared uneasy with allowing judges to consider factors that also fall under the federal habeas statute. Kagan said that habeas claims face harsh limitations and questioned whether inmates might use compassionate release as an end-run around those prohibitions.

Justice Samuel Alito observed, “The First Step Act was obviously heavily negotiated… and retroactivity is, of course, always a key element in the negotiations. Congress specifically says this is not going to be retroactive to those cases where sentences have already been imposed. And then the [Sentencing] Commission, though, then comes in and says we’re now going to give a second look for district judges to revisit those sentences…”

Justice Amy Coney Barrett asked whether a judge’s disagreement with the mandatory minimums could be enough justification for a compassionate release grant. David Frederick of Kellogg Hansen Todd Figel & Frederick PLLC, representing Rutherford, replied that even if a judge thinks a sentence is too harsh or if it would have been lower after the sentencing reforms, the Sentencing Commission’s guidelines require other factors, like a prisoner’s age, health and family situation, to be part of the overall picture.

Chief Justice John Roberts worried that the Sentencing Commission was opening the floodgates to applications for compassionate release. Currently, the 3rd, 5th, 6th, 7th, 8th and D.C. circuits have ruled that the Commission’s interpretation exceeds its authority and is wrong, while the 1st, 4th, 9th and 10th circuits have allowed courts to consider the disparity between pre- and post-First Step Act sentences.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman – who filed an amicus brief supporting Rutherford, Carter and Fernandez – was pessimistic about the outcome of the cases:

But the Justices seem poised to concoct some new legal limits on equitable sentence reduction motions, though it remains unclear exactly how they will decide to legislate from the bench in this context. There was some interesting discussion during the Fernandez case about which of various possible restrictions relating to § 2255 that the government wanted the Justices to enact. And in Rutherford/Carter, the Justices expressed in various ways which sentencing statutes they thought might create implicit limits on the bases for sentencing reductions. Just how the Justices decide to act as lawmakers and policymakers in this setting will be interesting to see.

Bloomberg Law observed, “The court’s decisions in the cases could have a chilling or stimulating effect on compassionate release petitions. The Sentencing Commission reports they have increased dramatically since passage of the First Step Act and the pandemic, with more than 3,000 filed across the country last year.”

A decision is not expected until next spring.

Fernandez v. United States, Case No. 24-556 (Supreme Court oral argument November 12, 2025)

Rutherford v. United States, Case No. 24-820 (Supreme Court oral argument November 12, 2025)

Carter v. United States, Case No. 24-860 (Supreme Court oral argument November 12, 2025)

Law360, Justices Hint Early Release Factors ‘Countermand’ Congress (November 12, 2025)

WITN-TV, Supreme Court to weigh limits on compassionate release (November 12, 2025)

Courthouse News Service, Supreme Court disquieted by increased judicial discretion over compassionate release (November 12, 2025)

Sentencing Law and Policy, Justices seem eager to concoct limits on grounds for sentence reductions, but what new policy will they devise?  (November 12, 2025)

Bloomberg Law, Justices Eye Scope of Compassionate Release ‘Safety Valve’  (November 12, 2025)

~ Thomas L. Root

Innocence, Disparity, and Judge-Made Law on Tap at SCOTUS – Update for November 11, 2025

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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.

COMPASSIONATE RELEASE WEEK

Tomorrow, federal compassionate release takes center stage as the Supreme Court hears oral argument in Fernandez v. United States and Rutherford v. United States.

What Does Compassion Have to Do With Innocence?      Fernandez asks whether a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that might also be a basis for a 28 USC § 2255 motion to vacate a conviction or sentence (such as a complaint that defense counsel failed to raise an obvious Guidelines mistake at sentencing).

I wrote about the Fernandez case when the 2nd Circuit sent the guy back to prison in 2024, and the lengthy fact pattern is worth revisiting. Suffice it to say here that Joe’s district court acknowledged the validity of the jury’s verdict and Joe’s sentence, while nevertheless holding that “jury verdicts, despite being legal, also may be unjust” and concluding that questions about Joe’s innocence, together with the stark disparity between Joe’s sentence and those of his co-defendants, constituted extraordinary and compelling circumstances under § 3582(c)(1)(A) warranting as sentence reduction to time served.

The 2nd Circuit reversed, holding that Joe’s sentencing disparity was not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute,” and that concerns that Joe might be innocent had to bow to the fact that the post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.”

The 5th and 10th Circuits agree with the 2nd  Circuit. The 1st and 9th do not.

That Was Then, This is Now:         Rutherford asks an even more basic question: whether the Sentencing Commission – which was delegated the authority by Congress to define what circumstances are “extraordinary and compelling” reasons for compassionate release under 18 USC § 3582(c)(1) – can hold that a nonretroactive change in the law (such the First Step Act’s change in 18 USC § 924(c) to eliminate stacking can be a reason for a compassionate release.

Section 403 of the First Step Act of 2018 reduced penalties for some mandatory minimum sentences for using guns in some crimes. The change, however, was not retroactive. Because of the changes, someone sentenced on December 20, 2018, for two counts of carrying a gun while selling marijuana on two different days got a minimum sentence of 30 years. The same sentence imposed two days later would have resulted in a minimum sentence of 10 years.

Under 28 USC § 994(t), the Sentencing Commission is charged by Congress with defining what constitutes an “extraordinary and compelling reason” for compassionate release. Congress placed only one limit on the Commission’s authority: “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”

In its 2023 revamping of the compassionate release guideline, the Commission adopted subsection 1B1.13(b)(6), stating that if a defendant had received an unusually long sentence and had served at least 10 years, a change in the law may be considered in determining whether he or she has an extraordinary and compelling reason for a § 3582(c)(1)(A) sentence reduction.

The Rutherford issue, simply enough, is whether the Commission exceeded its authority in making a nonretroactive change in the law a factor to be considered (along with others) in a § 3582(c)(1)(A) sentence reduction.

A RICO Claim?:   Ohio State University law professor Doug Berman noted in his Sentencing Law and Policy blog that an argument in last week’s Supreme Court argument on supervised release (Rico v. United States) goes to the heart of the issues at stake in Rutherford and Fernandez. During the argument, Justice Gorsuch observed that Congress appears to be better situated to resolve the conflict by amending the law, because “the alternative is for us to create a fugitive tolling doctrine pretty whole cloth… And so we’re going to have to come up with a whole common law doctrine here to supplement what the [law] already says.”

   xxxxxxxxxxxxxxNot that RICO…

Berman observed that the Fernandez and Rutherford circuit courts “have been inventing limits on compassionate release motions pretty much out of ‘whole cloth’ and are in the (messy) process of coming up ‘with a whole common law doctrine here to supplement what the [applicable statute] already says.’” Berman argues, “I understand why circuit courts are inclined to invent judge-made limits on compassionate release motions, but that’s not their role in this statutory sentencing context. Congress makes sentencing law based on its policy judgments, and it has also expressly tasked the expert U.S. Sentencing Commission with ‘promulgating general policy statements… [describing] reasons for sentence reduction.’ 28 USC § 994(t). If the government does not like how this law is written or gets applied, it should be making its case for legal change to Congress and/or the Sentencing Commission, not to the Supreme Court.”

Berman noted that in Koon v. United States, the Supreme Court 30 years ago said that “it is inappropriate for circuit judges to be developing a “common law” of sentencing restrictions when that’s a job only for Congress and the Sentencing Commission. That Justice Gorsuch is focused on similar concerns in another statutory sentencing context seems significant.”

Fernandez v. United States, Case No. 24-556 (oral argument Nov 12, 2025)

Rutherford v. United States, Case No. 24-820 (oral argument Nov 12, 2025)

Sentencing Law and Policy, Do Justice Gorsuch’s concerns about judge-made law foreshadow big issue in compassionate release cases? (November 5, 2025)

Koon v. United States, 518 US 81 (1996)

~ Thomas L. Root

Sometimes You Can Speak For Yourself, 6th Circuit Says – Update for October 16, 2025

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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.

CATCH-22

When Derek Riley pled guilty in 2016 to conspiracy to distribute controlled substances, his Guidelines Criminal History Category was III yielded an advisory sentencing range of 135 to 168 months. The district court sentenced him to 160 months.

In 2023, Amendment 821 to the Sentencing Guidelines retroactively lowered some criminal history points, including Derek’s. His new Guideline sentencing range was 121 to 151 months. A public defender representing him in the resentencing stipulated with the government to a 144-month sentence, which the court imposed.

Derek was not happy with the new sentence and filed a document he wrote himself called a “Motion for Reconsideration.” In it, he stated that his attorney had agreed to the stipulation as to his sentence without his knowledge or consent and that, therefore, the district court should reconsider and entertain the arguments he wanted to make in favor of a “time-served” sentence. The district court denied the motion on the grounds that Derek had a lawyer and thus was not allowed to file pro se motions under the policy prohibiting “hybrid” representation. The court told Derek that if he wanted to file a motion for reconsideration claiming that his lawyer had gone off the reservation, he should have his lawyer file it for him.

Joseph Heller’s “Catch-22” was this: If a World War II bomber airman wanted to avoid flying combat missions over Europe by claiming he was insane, he had to apply for the exemption. But the combat missions were so dangerous – only 25 pct of aircrews survived the 25 missions they were to fly before being relieved – that claim madness to get out of combat was interpreted as proof of sanity, so the application would be denied. “Catch-22” now describes a paradoxical situation from which there is no escape.

Thinking that the court’s instruction that only his lawyer could file a motion claiming his lawyer had agreed to something without his client’s approval veered very close to being a “Catch-22,” Derek filed a pro se notice of appeal.

Last week, the 6th Circuit agreed with Derek. The Circuit acknowledged that the rule against hybrid representation was a good one, because usually, whether to file certain motions and what to say in those motions are decisions for counsel, not the defendant.

“But cases like this one,” the 6th held, “present a materially different landscape. Here, the court was not simply presented with a disagreement over strategic choices made by the attorney nor an instance of nonspecific dissatisfaction. Instead, the court was faced with the defendant’s specific allegation that his counsel made a decision affecting the overarching aims of the representation without his knowledge or assent. A defendant must be permitted to make important decisions as to the direction of his case regardless of whether he is represented. A lawyer may not override a defendant’s decision to accept or reject a plea offer or disposition offered by the government because ‘decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate…’ Where a defendant alleges conduct that amounts to such a violation, his allegations, if true, point to a breakdown in proper representation. His dissatisfaction and disagreement with his counsel should, therefore, be an apparent and pressing concern, triggering the district court’s obligation to investigate.”

The Circuit observed that the “clear thrust of the motion was that Riley wanted to proceed pro se because his counsel had agreed to a specific disposition of his § 3582 motion (a revised sentence of 144 months) without his consent. The district court then had an obligation to address that allegation directly in deciding Riley’s pro se motion.”

United States v. Riley, Case No. 24-1287, 2025 U.S.App. LEXIS 26350 (6th Cir. October 9, 2025)

~ Thomas L. Root

Former BOP Officials Support Supreme Court Compassionate Release Petition – Update for May 29, 2025

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FORMER BOP OFFICIALS SUPPORT COMPASSIONATE RELEASE CERTIORARI

scotus161130A month ago, I reported that the 6th Circuit ruled that USSG § 1B1.13(b)(6), the compassionate release guideline subsection that lets courts consider overly long sentences that could not be imposed under current law, exceeded the Sentencing Commission’s authority. Several other circuits have held the same, notably the 3rd Circuit in United States v. Rutherford.

Rutherford is now before the Supreme Court on a petition for certiorari. The Justices have already relisted the case for more consideration (usually an indication that it is getting a serious look) at tomorrow’s conference.

Evidence of the Court’s interest came in Tuesday’s announcement that the Court would review a related issue, Fernandez v. United States. The issue in that case is whether whether a combination of “extraordinary and compelling reasons” supporting a sentence reduction under 18 USC § 3582(c)(1)(A) can include reasons that may also grounds for setting aside a sentence under 28 USC § 2255, the federal habeas corpus statute that can be used to attack the constitutionality of a conviction or sentence.

We'll see about that...
We’ll see about that…

In Fernandez, a district court granted the prisoner a “compassionate release” for reasons that included the court’s belief that there was substantial evidence that he was actually innocent of the murder and that his sentence was disparately long compared to those of his co-defendants (who became informants). The 2nd Circuit reversed (and ordered Joe back to prison), holding that factors that would work for a § 2255 motion could not be relied on for § 3582(c)(1)(A) compassionate release.

The Circuit’s holding was contrary to decisions of the First and Ninth Circuits, which have each held that district courts are not restricted from considering matters under 18 USC § 3582(c)(1)(A) other than the sole restriction – rehabilitation alone cannot support compasionate release – set forth in the law by Congress. The Supreme Court will decide what limits, if any, cabin a judge on what he or she may consider as extraordinary and compassionate reasons for compassionate release.

Fernandez is Rutherford’s spiritual cousin. I would not be surprised to see certiorari granted to Rutherford, and the two cases being combined for argument and decision.

Rutherford is notable for something else: Supporting petitioner Rutherford are amicus briefs, including ones filed by FAMM, six clinical law school professors, and 12 former federal judges. Most interesting may be an amicus brief by former Bureau of Prisons officials (now corrections consultants) represented by civil rights attorney Scott Lewis at Boston firm Anderson & Krieger.

prisonhealth200313Spotlighting the BOP healthcare crisis, the brief argues that expanding access to compassionate release for inmates serving unusually long sentences would benefit the BOP because “aging, unhealthy inmates consume a disproportionate share of BOP’s scarce resources, which has cascading effects on federal prison operations and the safety and security of BOP staff, as well as inmates… [a]nd the thousands of prisoners potentially eligible for compassionate release who are serving ‘unusually long sentence[s]’ with ‘gross disparity…’ are especially likely to become elderly and unhealthy or disabled in prison.”

United States v. Bricker, Case No. 24-3286, 2025 U.S.App. LEXIS 9538 (6th Cir. April 22, 2025)

Fernandez v. United States, Case No. 24-556 (certiorari granted May 23, 2025)

Rutherford v. United States, Case No. 24-820 (petition for certiorari pending)

Brief of Amici Curiae Former Bureau of Prisons Officials In Support of Petitioner, Rutherford v. United States (filed March 5, 2025)

– Thomas L. Root

Thanksgiving Week: What to Have for Dessert? – Update for November 29, 2024

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DESSERT

pumpkinpie241129It can be hard to pick which traditional Thanksgiving pie – pumpkin or apple – to eat as a finish to the feast. But a tough choice like this one usually ends with eating both, not a decision to just forget dessert altogether and go home.

The 7th Circuit had a problem last week deciding whether a prisoner appealing the denial of his 18 USC § 3582(c)(1)(A) compassionate release motion should be given a court-appointed attorney. Ultimately, the Circuit decided not to decide.

The 7th took only three pages to deny the appeal but needed another 43 pages to express the differing views of the three-judge panel.

The inmate had an appointed attorney in district court, but when the lawyer withdrew, the Circuit provisionally appointed a replacement to argue whether the appeals court had the authority under 18 USC § 3006A “to appoint counsel at public expense—whether in an individual case or through a general order—for defendants… seeking a reduction of their sentences under 18 USC 3582.”

The 7th has previously held that district courts are not required to appoint counsel in compassionate release proceedings, “but it does not prohibit them from doing so.”

The panel found that the district judge did not abuse his discretion in denying the compassionate release motion, so it did not reach the issue of whether it had the power to appoint counsel: “In Judge Lee’s view… the principle of judicial restraint counsels that we not reach the issue, because we can affirm the district court’s denial… on narrower grounds… Judge Hamilton has doubts about whether the panel should address the merits, but explains why he believes the language of the Criminal Justice Act gives federal courts discretion to make such appointments… Judge Scudder believes it appropriate to resolve the merits question, and he would hold that the plain language of § 3006A does not authorize appointments of counsel in § 3582(c) proceedings.”

applepie241129One judge wanted pumpkin pie, one wanted apple pie, and one wanted both. So the panel decided on no dessert at all. However, with inmates frequently asking courts to appoint counsel, it is worthwhile noting that serious legal questions may make appointment impossible.

United States v. Bonds, Case No. 24-1576, 2024 U.S.App. LEXIS 29690 (7th Cir., November 21, 2024)

– Thomas L. Root

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

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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

2255s Motions Aren’t Compassionate (and Vice Versa) – Update for June 14, 2024

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INNOCENCE ≠ COMPASSION

paid240615Everyone knows that paying your bills on time helps you build a strong credit history. That is probably the least of a host of good reasons for not doing what New York City drug lord Jeffrey Minaya did in 2000 instead of paying a Mexican cartel the $6.5 million he owed for 274 kilos of cocaine. He decided instead to whack the two cartel members who had been sent to the Big Apple to collect.

The drug lord hired Patrick Darge to shoot the bill collectors, and Pat, in turn, subcontracted backup duties to his cousin Joe Fernandez. The two guys sent from Mexico to pick up the loot were murdered in a rather ham-handed hit, but somehow the authorities were stymied as to the identity of the perps for over a decade.

However, in 2011, after Joe had accumulated a wife and kids, a regular job, and a clean record ever since the murder he was allegedly part of, he got picked up and charged.

pantsonfire160805Joe went to trial, where the government deployed his cousin, star witness Patrick Darge, to testify against him. This was significant because no one else could put Joe at the murder scene. On cross-examination, Pat admitted that as a cooperating witness in a different case, he lied to government agents and the judge about his involvement in two prior murders, his history of credit card fraud, the extent to which he dealt drugs, his brother’s involvement in his drug dealing business, and his brother’s habit of “shooting people.” Despite Pat’s admitted prevarications, the jury believed him and convicted Joe both of an 18 USC § 1958 murder-for-hire conspiracy resulting in two deaths and use of a firearm to commit two murders in violation of 18 USC §§ 924(j)(1). Joe was sentenced to two life sentences.

Joe appealed, arguing that Pat’s history of lies meant the jury should not have believed him. Joe lost. He then filed a 28 USC § 2255 post-conviction motion, arguing he was actually innocent and that the § 924(j) conviction was erroneous in light of United States v. Davis. The court vacated the § 924(j) conviction, leaving Joe with only one life sentence to serve.

innocent161024In 2020, after about nine years in prison, Joe filed a motion for sentence reduction under 18 USC § 3582(c)(1)(A), a so-called compassionate release motion. Joe argued that his potential innocence in light of Pat’s non-credible testimony and the disparity between his life sentence and the considerably lower sentences imposed on his co-defendants were “extraordinary and compelling reasons” for a sentence reduction.

The district court was persuaded by Joe’s potential innocence and sentencing disparity grounds:

Although there is factual support for the jury’s verdict and the verdict has been affirmed, a certain disquiet remains. Did Patrick Darge sacrifice his cousin, Petitioner Fernandez, to save his brother, Alain Darge? Patrick and Alain ran to the Dominican Republic directly after the murders of Cuellar and Flores. Joe Fernandez did not. Fernandez was arrested 11 years after the murder, in his home, with his family. He was earning a living and had no record of violence. Patrick Darge had considerable motive to lie and had lied before to the Government in order to obtain more favorable treatment for himself and his brother. Additionally, the physical evidence indicated that all but one bullet fired at the scene of the crime came from a .380 caliber gun, which was the gun Darge used, despite the fact that Darge claimed Fernandez fired nearly all the shots.

The district court granted Joe’s motion, and Joe went free. Until this week, when the 2nd Circuit reversed the district court.

The 2nd held that Joe’s sentencing disparity is not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute.” It is not extraordinary, the 2nd held, “(indeed, it should be expected) that a defendant who proceeds to trial and is convicted receives a longer sentence than his co-defendants who plead guilty to different crimes, accept responsibility, and assist the government by cooperating.” Nor is the disparity between Joe’s sentence and his co-defendants’ sentences “compelling”. Disparities between the sentences of coconspirators can exist for valid reasons, the Circuit ruled, “such as… the offenses of conviction, or one coconspirator’s decision to plead guilty and cooperate with the government.”

As for Joe’s potential innocence claim, the appellate court held that “a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment, unless there is a “clear intention otherwise.” The post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.” The Circuit observed:

If Congress had intended to permit defendants to circumvent the strictures of 28 USC § 2255 by making challenges to the validity of a conviction cognizable on a compassionate release motion, it would surely have said so. Absent such a clear declaration of intent, we conclude that since challenges to the validity of a conviction must be made under § 2255, they cannot qualify as “extraordinary and compelling reasons” under § 3582(c)(1)(A). Compassionate release is not a channel to habeas relief or an end run around the limitations of § 2255.

guiltyproveninnocent230807Joe may have a pretty strong argument that he is innocent, a sacrificial lamb for the sins of his cousins. But if there’s a procedural means of getting him to a point that a court can actually entertain that claim, compassionate release is not it.

United States v. Fernandez, Case No. 22-3122-cr, 2024 U.S. App. LEXIS 14133 (2d Cir. June 11, 2024)

United States v. Davis, 588 U.S. 445 (2019)

– Thomas L. Root

District Court’s Detailed Compassionate Release Decision Is a Treat – Update for December 8, 2023

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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.

THE HOPEFUL FUTURE OF COMPASSIONATE RELEASE

From the 11th Circuit last week – traditionally, the place where motions for compassionate release went to die – comes a detailed, thoughtful order granting release to a prisoner serving a life sentence for drug distribution.

cocaine170511Bill Vanholten was about 12 years into a life sentence for trafficking cocaine, a sentence he got because he had two prior convictions for selling two dime bags of marijuana, about $20.00 worth, to two undercover cops when he was 19 years old in 1994. In January 2012, Bill was charged with possessing 10 kilograms of cocaine. At the time, a defendant charged with that quantity of cocaine who had two prior drug felonies would get a mandatory life sentence if the government filed what is known as a 21 USC § 851 enhancement with the court.

The government has traditionally used 851 enhancements as a bludgeon to force defendants to cooperate. If the defendant won’t snitch, the government files the 851 and rachets up the minimum sentence dramatically. Bill wouldn’t budge, refusing to identify his source for the coke, so the government filed the 851 notice of two prior drug felonies, a 2006 federal coke charge and one of the “dime bag” offenses. Those two priors mandated a life-without-parole sentence, which, the court said unhappily, it was required to impose.

Six years later, the First Step Act modified the list of prior offenses qualifying for 851 enhancements and lowered the mandatory minimums. After First Step, the “dime bag” offense would not count as a serious drug offense for a 21 USC § 851 enhancement. On top of that, the mandatory minimum sentence for a single 851 enhancement prior dropped to 15 years. If Bill had been sentenced after First Step passed, his court would have only been required to sentence him to 15 years.

compassion160124The First Step Act also permitted defendants to file sentence reduction motions – so-called compassionate release requests – under 18 USC § 3582(c)(1)(A). Before the Act, only the Federal Bureau of Prisons could bring such a request on an inmate’s behalf, an event as rare as a snow flurry on July 4th. All that stood in the way was the Sentencing Commission’s guideline on compassionate release, USSG § 1B1.13. That guideline, written prior to First Step, narrowly circumscribed what “extraordinary and compelling” reason could justify sentencing reduction and required that any reduction be “consistent” with applicable Sentencing Commission policy.

Section 1B1.13 could have been updated by the Sentencing Commission in 2019, but the Commission lost its quorum through the expiration of commissioner terms only a few days after the First Step Act passed.

Most federal circuits recognized the obvious, that the creaking 1B1.13 relic – written long before First Step was even dreamed of – was Commission policy but not “applicable” Commission policy. Only two of the 12 federal circuits remained mired in the past, not permitting any reason for compassionate release not specifically written into the guideline. Bill’s Circuit was one of them.

Four years later, the Sentencing Commission regained a quorum and immediately set to amending 1B1.13. The amendment became effective on November 1, 2023.

sarcodiosis23128In 2022, Bill moved for compassionate release, citing his sarcodiosis, a chronic condition characterized by inflammation in the lungs and other organs, as justification. His court-appointed an attorney to help Bill, who added an argument that the change in the law provided an independent reason for compassionate release. Bill’s lawyer asked the court to sit on the motion until the new 1B1.13 became effective. When it did, the government agreed that Bill’s medical condition established “extraordinary and compelling” reasons warranting release both alone and combined with other factors.

Last week, the court reduced Bill’s life sentence to time served (which, considering Bill’s accumulated good time, now equals 15 years.

The district court’s decision is a model of careful scholarship and proper application of the new 1B1.13. The court relies on Sentencing Commission studies to hold that Bill’s sentence

is an outlier among drug trafficking offenders… Federal prosecutors do not uniformly seek § 851 enhancements, so sentences for offenders like him vary considerably… Some judicial districts see § 851 notices filed for as many as 75% of eligible drug trafficking defendants whereas other districts do not see them filed at all. Since most offenders confronted with an enhanced sentence cooperate, a little less than 4% of eligible defendants ultimately face an enhanced penalty at sentencing… Those in the 4% receive prison terms roughly ten years longer than the average sentence for similar offenders who evaded the enhanced penalty, and twelve years longer than the average for eligible offenders against whom the notice was never filed.

The court candidly admitted that Bill “received one of these unusually long sentences as a de facto punishment for not cooperating.” While the court acknowledged that Bill’s sentence could not be completely compared with a 13-year sentence a cooperator with a similar record had received (because Bill did not cooperate and thus did not receive credit for doing so), it noted nonetheless that the differences between the defendants “do not wholly account for the more than twenty-year disparity between a thirteen-year prison term and life behind bars.”

lock200601The court observed that Bill “received a sentence at least twenty years longer than the fifteen-year minimum Congress now deems warranted for offenders like him. He had a criminal history category of II, comprised entirely of nonviolent offenses, which would warrant nothing close to a life sentence under the guidelines. Whatever ‘significant period of incarceration’ this Court may have settled on at the original sentencing, had it any discretion back then, would not have come within twenty years of Mr. Vanholten’s remaining life expectancy. A difference of a generation between the actual sentence and the sentence Mr. Vanholten would likely receive today no doubt makes for a gross disparity.”

Similarly, the court cited medical studies establishing that sarcodiosis fit the new 1B1.13(b)(1)(B) “extraordinary and compelling” reason that a defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. “Though he is not at death’s door,” the court ruled, Bill’s “medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function. He is unlikely to recover from it. According to the opinion of medical experts, Mr. Vanholten’s morbidity puts him at a heightened risk of a sudden and serious cardiac event, and a decreased life expectancy,” citing medical journals. At the same time, the court relied on Bill’s records showing infrequent consultation with specialists and noted that the Dept. of Justice “makes no secret that the BOP’s chronic medical staffing shortage has made its ability to deliver healthcare a challenge.”

MerryChristmasBill231208The court released Bill, effective a week from today. Beyond the happy ending for a badly over-sentenced defendant, the court has given prisoners an early Christmas gift, a roadmap for effectively negotiating compassionate release under the new 1B1.13.

United States v. Vanholten, Case No. 3:12-cr-96 (M.D. Fla. Dec. 1, 2023), 2023 U.S. Dist. LEXIS 213764

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (2018)

– Thomas L. Root

Mr. Explainer Here: All About Guidelines Retroactivity – Update for July 20, 2023

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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.

MR. EXPLAINER TACKLES RETROACTIVE GUIDELINES

USSC160729The good news is that the U.S. Sentencing Commission is likely to approve a proposal that two Guidelines changes it adopted in April should be retroactive for people already sentenced.

The better news is that Congress seems too busy to try to gin up a veto of any of the provisions approved by the USSC and submitted to the legislators for review.

Today’s guest is Mr. Explainer, who is here to guide us through the fine print of getting retroactive application of the two changes:

• First, no one can file a motion for retroactive application of the two Guidelines changes until six months pass from the time the USSC sends the proposed retroactivity order to Congress. That means that all of the inmates doing a happy dance in anticipation of November 1, 2023, will have to wait at least until Punxatawny Phil sees his shadow.

• Second, the two changes have conditions attached:

(a) The zero-point change in the Guidelines (new USSG § 4C1.1) says that defendants are eligible for a 2-level reduction in their Total Offense Level (usually good for a two-sentencing range reduction) if they had zero criminal history points and meet all of the following conditions:

(1) had no adjustment under § 3A1.4 (Terrorism);

(2) did not use violence or credible threats of violence in connection with the offense;

(3) the offense did not result in death or serious bodily injury;

(4) the offense is not a sex offense;

(5) the defendant did not personally cause substantial financial hardship;

(6)  no gun was involved in connection with the offense;

(7) the offense did not involve individual rights under § 2H1.1;

(8) had no adjustment under § 3A1.1 for a hate crime or vulnerable victim or  § 3A1.5 for a serious human rights offense; and

(9) had no adjustment under § 3B1.1 for role in the offense and was not engaged in a 21 USC § 848 continuing criminal enterprise.

(b) The change in § 4A1.1(e) – the so-called status point enhancement – says only that one point is added if the defendant already has 7 or more criminal history points and “committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

fineprint180308• The USSC staff has figured that about 11,500 BOP prisoners with status points would have a lower guideline range under a retroactive § 4A1.1(e). The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

• About 7,300 eligible prisoners with zero criminal history points would be eligible for a lower guideline range if the zero-point amendment becomes retroactive. The current average sentence of 85 months could fall to an average of 70 months.

• The reduction – done under 18 USC § 3582(c)(2) – is a two-step process described in USSC § 1B1.10.

(a) First, the court determines whether the prisoner is eligible. For a zero-point reduction, the court would have to find that the prisoner (1) had no criminal history points; (2) had none of the other enhancements in his case or guns or sex charges, or threats of violence or leader/organizer enhancements or any of the other factors listed in § 4C1.1. Then, the court would have to find that granting the two-level reduction would result in a sentencing range with a bottom number lower than his or her current sentence.

If your guidelines were 97-121 months, but the court varied downward to 78 months for any reason other than cooperation, you would not be eligible because reducing your points by two levels would put you in a 78-97 month range, and you are already at the bottom of that range. Special rules apply if you got a § 5K1.1 reduction for cooperation, but people sentenced under their sentencing ranges for reasons other than cooperation may not be eligible.

(b) To benefit from the status point reduction, the decrease in criminal history points is more problematic. If you have 4, 5, or 6 criminal history points, you are in Criminal History Category III. If two of those points are status points, they would disappear. Going from 5 points to 3 or 4 points to 2 would drop you into Criminal History Category II. If your prior sentencing range had been 70-87 months, your new range would be 68-78 months, and you would be eligible.

But if you had 6 criminal history points, you would only drop to 4 points, and you would still be in Criminal History Category III. No reduction in criminal history, no decrease in sentencing range, and thus no eligibility.

• Once you’re found to be eligible, your judge has just about total discretion whether to give you all of the reduction you’re entitled to, some of it, or none of it. You cannot get more than the bottom of your amended sentencing range, and the court cannot consider any other issues in your sentence than the retroactive adjustment.

usscretro230406Convincing the court that you should get the full benefit of your reduction is best done with letters of support from the community, a good discipline record and a history of successful programming. Showing the court that you have been rehabilitated to the point that the reduction has been earned is a good idea.

There’s a good reason that the retroactivity – if it is adopted – will end up benefitting no more than 12% of the BOP population. It is not easy to show eligibility and even tougher to prove that the court should use its discretion to give you the credit.

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

USSC, Sentencing Guidelines for United States Courts (May 3, 2023)

USSC § 1B1.10, Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)

– Thomas L. Root