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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

Explainer: When Federal Prisoners Can Get Relief Under Range, Dubin – Update for June 12, 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.

ASK THE PROFESSOR

explainer230612Last week, I reported on the 3rd Circuit’s en banc ruling that someone convicted of a nonviolent “crime punishable by imprisonment for a term exceeding one year” (18 USC § 922(g)(1)) could not constitutionally be prohibited from possessing a gun or ammo. That report was followed by a dispatch on the Supreme Court’s decision last Thursday that dramatically limited the reach of the aggravated identity theft statute (18 USC § 1028A).

This was followed by the predictable questions from prisoners: “When can I use the Range decision to get my § 922(g) conviction vacated? And how about getting rid of my aggravated identity theft conviction under § 1028A?”

Very good questions, and inquiries for which the hopemongers who will write any motion for a federal prisoner in exchange for a modest fee – let’s call them what they are, hopemongers – have a ready answer. That answer usually starts with, “Pay me…”

Now let’s ask the professor.  Or, because he’s nowhere around, ask me…

professor230612To be sure, a lot of people could be affected by the decisions, provided there’s a procedural route to raise them. About 21% of federal prisoners have a § 922(g) conviction, while about 2% are doing time for aggravated ID theft. That’s a potential of about 35,000 felon-in-possession and 3,500 § 1028A defendants.

Range: Remember first that the Range decision is only binding in the 3rd Circuit. If your case isn’t from there, Range doesn’t help you. In fact, as I reported a week ago, the 8th Circuit just went the other way in its United States v. Jackson decision.

However, if your 1-year deadline for filing a § 2255 motion hasn’t expired, by all means challenge § 922(g) constitutionality in your motion. But if your time has expired, your options are limited. Under 28 USC § 2255(f)(3), you can file within a year of a new SCOTUS ruling on the constitutionality of a statute, but Range is not a Supreme Court case. If you have already lost your § 2255 motion, you have to get Court of Appeals permission to file another § 2255 and that standard likewise requires that the motivating decision be from the Supreme Court.

So how about a 28 USC § 2241 petition? We’ll know a lot more about § 2241s in a few weeks when SCOTUS decides Jones v Hendrix. For now, fitting a Range-type claim into the standards for bringing a § 2241 (under the § 2255(e) saving clause) will be tough.

dice161221For § 922(g) defendants, it may be worth a shot if your conviction came from a 3rd Circuit district court. For everyone else, it’s a waiting game…

ID Theft: For those beyond the § 2255 filing deadline, the traditional 28 USC § 2241 petition for habeas corpus will likely be available under the saving clause.

Because Dubin is a statutory interpretation and not a constitutional holding (despite Justice Gorsuch’s argument that it could easily have been), the route of filing a second or successive § 2255 (under the rules set up by § 2255(h)) is probably unavailable.

General Pro Tip: If you’re proceeding on § 2255 or § 2241, find competent help. Procedural questions are boring but vitally important to winning.

Ohio State University law prof Doug Berman observed last week that “offenders now looking to pursue what might be called “Dubin claims” could, of course, face procedural barriers of all sorts. But the still-open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief…”

USSC, Quick Facts – Felon in Possession (June 2022)

USSC, Quick Facts – Sec 1028A Aggravated Identity Theft Offenses (July 2022)

Sentencing Law and Policy, How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims? (June 8, 2023)

– Thomas L. Root

Rely on USSC Guidance… Or Not, 7th Circuit Says – Update for April 18, 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.

THAT WAS THEN, THIS IS NOW

Remember when the 7th Circuit ruled that old Guideline 1B1.13 – that rather rigidly defined what constituted an “extraordinary and compelling” reason for sentence reduction under 18 USC § 3582(c)(1)(A) – did not apply to inmate-filed compassionate release  motions?

The Circuit ruled in the 2020 United States v. Gunn decision that while 1B1.13 did not apply, the result was not a “sort of Wild West in court, with every district judge having an idiosyncratic release policy.” This was because “the substantive aspects of the Sentencing Commission’s analysis in 1B1.13 and its Application Notes provide a working definition of ‘extraordinary and compelling reasons’… the Commission’s analysis can guide discretion without being conclusive.”

wildwest230418Well, apparently, it guides until it doesn’t guide. And “doesn’t” happened last week, when the 7th ruled that a prisoner’s “unconstitutionally-imposed mandatory life sentence” from a 2001 case cannot be a part of the “extraordinary and compelling” reasons for a compassionate release despite the fact that a week before the opinion was issued, the Commission formally proposed amending 1B1.13 to include harsh sentences that no longer could be imposed due to a change in the law.

Suddenly, the Commission’s analysis provides no meaningful guidance to the Circuit at all:

The USSC is in the process of studying the issue, and recently it has proposed defining ‘extraordinary and compelling reasons’ to include circumstances in which ‘[t]he defendant is serving a sentence that is inequitable in light of changes in the law.’ But this effort is still at an early stage—so early that we see no value in speculating on what such a change would mean. Until the Commission definitively says otherwise, we will not deviate from our current understanding. We therefore affirm the judgment of the district court.

The opinion cited the draft USSC proposal from January and not the Commission’s April 5th action released eight days before the Circuit’s opinion was handed down. A reasonable observer could conclude that “the Commission [has] definitively [said] otherwise” at this point:

[T]he proposed amendment would add a new category (“Unusually Long Sentences”) providing that if a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

One can only hope that the prisoner’s attorney seeks rehearing of a decision that reflects much more sloppiness than one should expect from an appellate court.

United States v. Williams, Case No. 22-1212, 2023 U.S. App. LEXIS 8826 (7th Cir., April 13, 2023)

United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020)

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (April 5, 2023)

– Thomas L. Root

7th Circuit Finds the Jurisdictional ‘Force’ Is With This One – Update for February 3, 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.

COURT DOESN’T LACK JURISDICTION JUST BECAUSE YOU MIGHT LOSE

Wolfgang Von Vader had some run-ins that resulted in a 2000 conviction in the Western District of Wisconsin for distributing methamphetamine (a Guidelines “career offender” 270-month sentence) and a 2012 federal conviction in Kansas for possessing heroin in prison (a 120-month consecutive sentence).

jurisdiction180410Wolf applied for 18 USC § 3582(c)(1)(A) compassionate release in both Kansas and Wisconsin. Both courts shot him down. The Kansas decision is currently on appeal in the 10th Circuit. In the Wisconsin case, the government argued that the court lacked jurisdiction to consider Wolf‘s compassionate release motion because he had already served all of his 2000 Wisconsin sentence, and is now on his consecutive 2012 Kansas sentence. Section 3582(c) does not authorize release from an expired sentence, the government contended, which makes Wolf’s Wisconsin compassionate release motion moot.

The district court agreed, and dismissed Wolf’s motion for lack of jurisdiction.

Last week, the 7th Circuit disagreed, reversing Wolf’s dismissal. Maybe a retroactive reduction is unauthorized by statute, the Circuit said, “but we do not see how this moots [Von Vader’s] request. If § 3582(c) does not supply authority for the relief Von Vader wants, then he loses on the merits, not for lack of jurisdiction.”

vader230203“The judge in Wisconsin could order the Bureau of Prisons to treat the Wisconsin sentence as if it had expired earlier and to reduce the time remaining on the Kansas sentence accordingly,” the 7th ruled. “Or the court in Wisconsin could make an adjustment in the length of supervised release, on the Wisconsin sentence, tht will follow the conclusion of the Kansas sentence. As long as relief is possible in principle, the fact that a given request may fail on statutory grounds does not defeat the existence of an Article III case or controversy.”

United States v. Von Vader, Case No 22-1798, 2023 U.S.App. LEXIS 1750 (7th Cir., January 24, 2023)

– Thomas L. Root

The Short Rocket – Update for January 27, 2023

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rocket190620We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

Today, the short rocket – decisions from around the federal circuits…

SOME CASE SHORTS

Timing is Everything: In 2015, Benny Hall pled guilty to conspiracy to commit Hobbs Act robbery and using a gun in a crime of violence, (an 18 U.S.C. § 924(c) offense). After the Supreme Court decided in United States v. Davis that conspiracy to commit a crime of violence was not itself a crime of violence that supported a § 924(c) conviction for using a gun in a crime of violence, Benny filed a 28 U.S.C. §2255 post-conviction motion asking that the § 924(c) be thrown out.

corso170112The government convinced the district court that Benny’s § 924(c) conviction didn’t depend only on the conspiracy, but also on his admissions in open court that established that he had actually attempted to commit the robbery.

‘Gotcha!’ the government cried.

‘Not so fast!’ the 2nd Circuit replied last week. Last summer, the  Supreme Court ruled in United States v. Taylor that an attempted Hobbs Act robbery is not a crime of violence. The Circuit threw out § 924(c) conviction and the mandatory 10-year add-on sentence it represented.

Hall v. United States, Case No 17-1513, 2023 U.S.App. LEXIS 1256 (2d Cir., January 19, 2023)
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11th Holds Drug Conspiracy Can’t Lead to Guidelines ‘Career Offender’: Brandon Dupree was convicted of a 21 U.S.C. § 846 drug conspiracy, and was hammered at sentencing as a Guidelines “career offender” (which dramatically increased the advisory sentencing range). An 11th Circuit panel rejected Brandon’s argument that an inchoate offense (that is, a mere plan to commit a crime) does not qualify as a “controlled substance offense” for purposes of the Guidelines ‘career offender’ enhancement.

brandon230127Last week, the full Circuit sitting en banc said, ‘Let’s go, Brandon,’ and reversed his ‘career offender’ sentence. The 11th ruled that “application of the enhancement turns on whether the ‘instant offense of conviction’ is ‘a controlled substance offense’ [under USSG] 4B1.1(a)… The plain text of 4B1.2(b) unambiguously excludes inchoate crimes. Dupree must be resentenced without application of the career offender enhancement.”

United States v. Dupree, Case No 19-13776, 2023 U.S.App. LEXIS 1183 (11th Cir., January 18, 2023)
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Channeling Your Inner Habeas: People are always asking why they can’t point out in their 18 U.S.C. § 3582(c)(1)(A) compassionate release motions that their sentences were wrongly calculated, that their lawyers were ineffective imbeciles, that something was very wrong with how they were convicted.

reallawyer170216Mike Escajeda was convicted of selling drugs and carrying a gun. After losing his direct appeal, Mike filed a compassionate release motion, arguing that the “extraordinary and compelling reasons” required by an 18 U.S.C. § 3582(c)(1)(A) compassionate release motion were that (1) his sentence exceeded the statutory maximum and (2) he received ineffective assistance of counsel. He even admitted in his motion that he had filed for compassionate release because he figured that he could not win relief under § 2255.

Last week, the 5th Circuit ruled that the habeas-channeling rule prevented Mike from raising 2255-type issues in a compassionate release motion. The Circuit said, “Congress provided specific avenues for post-conviction relief that permit prisoners to challenge the legality of their confinement in federal court… The Supreme Court has repeatedly held that by codifying these specific provisions, Congress required prisoners to bring their legality-of-custody challenges under [28 USC 2241, 2244, 2254, and 2255], and prohibited prisoners from bringing such claims under other, more-general statutes like 42 U.S.C. § 1983.

[A] prisoner cannot use § 3582(c) to challenge the legality or the duration of his sentence,” the 5th held. “Such arguments can, and hence must, be raised under [the habeas statutes]… Because Escajeda’s claims would have been cognizable under § 2255, they are not cognizable under § 3582(c).”

United States v. Escajeda, Case No 21-50870, 2023 U.S.App. LEXIS 1041 (5th Cir., January 17, 2023)
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DOJ SORNA Rule Blocked: The U.S. District Court for Central District of California last week issued a preliminary injunction blocking the Dept of Justice’s new Sex Offender Registration and Notification Act rule because it violated due process and the 1st Amendment.

injunction230127The rule requires people who had been convicted of a sex crime to register as sex offenders in their state, even if the sex crime convictions have been expunged and the people are not allowed by the state to register. Because plaintiff John Doe could not register, the DOJ’s rule said that he could be prosecuted at any time, and he would have been forced to prove that registration was impossible — “an affirmative defense,” Doe’s lawyer said, “that turns the presumption of innocence on its head.

The court ruled that it was likely an unconstitutional violation of due process to require anyone to affirmatively prove his innocence when he had never been convicted.

Preliminary injunction, ECF 55, Doe v. DOJ, Case No 5:22-cv-855 (CD Cal., Jan 13, 2023)

Reason, A Federal Judge Says the DOJ’s Sex Offender Registration Rules Violate Due Process by Requiring the Impossible (January 19, 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

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

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

‘Words’ of Compassion – Update for November 22, 2022

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WORDS MATTER IN COMPASSIONATE RELEASE DECISIONS

Too Few Words Matter: Legally, there’s no limit to how many times a federal prisoner can file a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i)).

judge160425Practically, however, endless and repetitive motions have the remarkable capacity to really infuriate the judge.  Colloquially (and crudely), the correct formula for the number of such filings is

JR = POJ -1

where “JR” = Just the right number of filings and “POJ” = Pissed-off Judge

Some prisoners refile compassionate release motions endlessly, often making the same arguments but expecting a different outcome. Judges often just tune them out.

Bob Handlon filed a compassionate release motion that the court rejected because he had not exhausted administrative remedies by asking the BOP to file on his behalf first. Bob fixed that error and refiled his motion.

The district court denied his second compassionate release motion with a brief order saying only, “After considering the applicable factors provided in 18 USC § 3553(a) and the applicable policy statements issued by the Sentencing Commission, the Court [denies] the Defendant’s motion on its merits.”

A year later, Bob filed a third compassionate release motion, mostly rebutting government claims that he was dangerous but also raising new facts, that he had caught coronavirus again and was now suffering lasting medical problems from “long COVID.”

The district judge, who became impatient with Bob pretty early in the game, it seems, merely made a docket entry denying the third motion “for the same reasons stated in the court’s [previous] Order.”

Last week, the 5th Circuit reversed, holding that the district court had abused its discretion. The fact that Bob raised new facts in his third compassionate release motion made the district court’s terse order a little too little.

afewwords221122“A court cannot deny a second or subsequent motion for compassionate release ‘for the reasons stated’ in a prior denial where the subsequent motion presents changed factual circumstances and it is not possible to discern from the earlier order what the district court thought about the relevant facts,” the Circuit ruled. “Judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.”

A Lot of Words Matter, Too: Terry Rollins was left a paraplegic after a gunshot wound that cost him his right leg. When he was arrested for drug distribution in 2018, police found him septic and malnourished, lying in his bodily wastes. “But for his arrest,” the court said, Terry “likely would have died of his severe wounds and infections.” His condition was so bad that doctors recommend an operation called a “hemicorporectomy, which would ‘essentially cut him in half to remove the infected part of his body,’” the court said.

Terry moved for compassionate release while still in Marshal custody, arguing that he needed extensive surgery and the Marshal Service had already spent more than $1 million without providing him complete medical care.

manyguns190423The district court said Terry’s condition was “dire” but denied compassionate release. The court found Terry’s possession of seven guns and ammunition inside his home along with heroin, cocaine powder and crack were “very serious.” Terry argued that he could hardly be dangerous confined to a wheelchair, but the court noted that Terry’s paraplegia hadn’t kept him from armed drug dealing. Because Terry had not shown “he will no longer pose a threat to the public,” the district court denied his compassionate release motion.

Last week, the 5th Circuit upheld the denial. The Circuit agreed that Terry had made “a colorable argument. The hemicorporectomy “surgery is rare, often fatal, and comes with various complications, even if the procedure is successful… Mr. Rollins will need around-the-clock care for the foreseeable future… Without this grave surgery, Rollins ‘cannot perform basic functions without assistance.’ Rollins is not wrong to suggest that it seems highly unlikely that he will revert to criminal behavior… [and] contrary to the district court’s reasoning, all this indicates that the prison system is not the place that can provide medical care most effectively.”

“Yet,” the 5th admitted, “the abuse-of-discretion standard is a demanding one. It is not this court’s place to question the reasonable judgment of the district court in assessing the § 3353(a) factors.”

The district court used a lot of words, and adequately explained its reasons for denying compassionate release, the Circuit said.

Under the “abuse-of-discretion” standard, that was enough.

United States v. Handlon, Case No. 22-50075, 2022 U.S.App. LEXIS 31669 (5th Cir., Nov. 16, 2022)

United States v. Rollins, Case No. 22-30359, 2022 U.S.App. LEXIS 31870 (5th Cir., Nov. 17, 2022)

– Thomas L. Root

D.C. Circuit Creates More “Compassionate Release” Circuit Confusion – Update for October 26, 2022

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DC CIRCUIT HOLDS THAT CHANGES IN THE LAW CANNOT SUPPORT COMPASSIONATE RELEASE

circuitsplit220516The US Court of Appeals for the District of Columbia Circuit has deepened the circuit split on compassionate release, joining three other circuits in holding that a prisoner cannot use the fact he or she is serving a sentence that could not be imposed today as “extraordinary and compelling” reason for an 18 USC § 3582(c)(1)(A)(i) compassionate release.

In 2016, Curtis Jenkins was caught by D.C. police with drugs and a gun. He got bonded out of jail, but a short time later he was caught by D.C. police again with drugs and a gun. Curtis thus faced two 18 USC § 924(c) counts (for carrying a gun during drug trafficking) and a 15-year Armed Career Criminal Act count (18 USC § 924(e)), not to mention qualifying as a “career offender” under the Sentencing Guidelines (which dramatically jacks up the sentencing range).

Factor all of that into the mix, Curtis was looking at a minimum 45-year sentence. He did the wise thing, agreeing to a plea deal that carried a Guidelines range of 23-27 years. Despite that range – still a substantial chunk of time – The parties agreed to recommend only 12 years to the sentencing judge.

From there, things got even better. Curtis walked out of sentencing with eight years. For the math-challenged among us, good lawyering had cut Curtis’s sentence exposure by about 82%.

It looked like a great deal at the time, but after a few years, Curtis thought it had all turned to dust later.

First, in 2018, the First Step Act changed § 924(c) so that the 25-year add-on sentence required by law for the second § 924(c) violation would only apply if the second offense came after a first conviction. If that had been the law when Curtis was convicted, his 45-year mandatory minimum sentence would have been only 30 years.

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

Second, things changed for Curtis’s ACCA conviction. If a felon was caught with a gun back when Curtis was nabbed, he or she faced a zero-to-ten-year sentence. But if the defendant had three prior convictions for violent crimes or drug offenses, the sentence was a minimum 15 years. Two of Curtis’s predicate offenses qualifying him for the ACCA were for assault with a weapon. D.C. law at the time permitted conviction for that offense even when the assault was committed “recklessly.” But in 2021, the Supreme Court ruled in Borden v. United States that any crime that could be committed recklessly was not a “crime of violence” for ACCA purposes. If that had been the law when Curtis was convicted, his 30-year mandatory minimum sentence exposure would have dropped to only 10 years.

Third, the Court of Appeals held in United States v. Winstead that drug offenses relied on to qualify someone as a Guidelines career offender could not count when they were mere attempts. Curtis’s drug priors were for attempted drug distribution, meaning that the high sentencing range that applied because he was a Guidelines “career offender” would have been out, too.

Like that, all of the very good reasons Curtis once had for taking a 12-year deal disappeared like Halloween candy on trick-or-treat night. He moved for a sentence reduction, arguing that if he had made a deal based on the sentence exposure he would have faced if he were sentenced today, it would have been a lot lower.

emptybowl221027The district court denied Curtis’s
motion, holding that changes in the law were not the kind of “extraordinary and compelling” reasons for sentence reduction listed in USSG § 1B1.13, the Guidelines policy statement covering compassionate release motions. That statement does not bind the court, the judge ruled, but he nonetheless referred to it for “guidance.”

The district court said the First Step Act, Winstead, and Borden were irrelevant, because the compassionate-release statute does not permit courts to reexamine the lawfulness or fairness of a sentence as originally imposed.

Two weeks ago, the DC Circuit upheld the district court’s denial. “We agree with the 3rd, 7th, and 8th Circuits,” the appellate panel wrote. “To begin, there is nothing remotely extraordinary about statutes applying only prospectively. In fact, there is a strong presumption against statutory retroactivity, which is ‘deeply rooted in our jurisprudence’ and ‘embodies a legal doctrine older than our Republic’… [The Supreme Court has held that] in federal sentencing the ordinary practice is to apply new lower penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. And what “the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary … reason’ to deviate from that practice.”

extraordinary221027But other Circuits – including the 2nd, 4th, 5th, 9th and 10th – do consider such changes to be among the “extraordinary and compelling reasons” for sentence reduction that will drive a compassionate release motion. The Circuit split just exacerbated by Curtis’s D.C. Circuit decision will most likely be fixed not by the Supreme Court but rather by the newly-reconstituted Sentencing Commission.

The Commission, which just announced having received over 8,000 public comments on its announcement of proposed priorities – has its first public meeting set for this coming Friday. The Commission is expected to adopt its priorities for the coming year, the first of which is likely to be to amend § 1B1.13 to bring some predictability to compassionate release cases.

When that happens, § 1B1.13 will again be binding on the courts, and we can expect a little uniformity to be injected into what is now a chaotic compassionate release system.

United States v. Jenkins, Case No. 21-3089, 2022 U.S.App. LEXIS 28198 (D.C. Cir., Oct. 11, 2022)

U.S. Sentencing Commission, Public Meeting, October 28, 2022

U.S. Sentencing Commission, Public Comments on Priorities (October 23, 2022)

– Thomas L. Root

Compassionate Release Numbers: Data Without Benefits – Update for September 23, 2022

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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.

NUMBED BY NUMBERS

numbersThe U.S. Sentencing Commission recently issued an updated report on compassionate release, covering all of the filings since October 1, 2019 (six months before the pandemic began) through last March.

In 30 months, we learn, 25,416 motions were filed, with 16.7% (4,234) granted. Good to know for this weekend’s cocktail-party chatter, but functionally useless.

Most people currently filing 18 USC § 3582(c)(1)(A)(i) sentence reduction motions – inaccurately but generally known as “compassionate release” motions – don’t care about the 30-month average. What courts were doing in the few months prior to the pandemic – or, for that matter, in the early pandemic when COVID raged and everyone was scared – has hardly any relevance to what they are doing today. People want to know what has been happening in the last few months (last March, for example, 13.4% of 479 motions were granted).

We do learn that over the 30 months studied, Eastern District of Texas (2.6%), Southern District of Georgia (2.2%) and Middle District of Georgia (1.7%) were the worst places to get relief. The best places to be remain locations such as California (except the Eastern District) at 35.8%, Kansas at 41.9%, Connecticut at 37.2%, Massachusetts at 44.8% and Oregon at 59%.

Some districts have even better numbers, but the number of motions filed in those jurisdictions is so small as to make the grant/denial percentage in those districts meaningless.

My problem with the data is this: Given the waning pandemic, the position taken by some circuits that inmate vaccination disqualifies the risk of COVID as a basis for compassionate release, and the decision by almost all circuits that USSG § 1B1.13 does not limit the groups that may be raised in an inmate-filed compassionate release motion, how district courts may be acting on compassionate release motions today may bear scant resemblance to what was being done, say, in April 2020. That being the case, it is tough to take away much from a comparison of a judicial district’s grant rate over a 30-month period. A period of six to 12 months would make a lot more sense.

I am surprised by some commentators bemoaning the fact that there are wide disparities among the districts. That’s what happens when federal judges are permitted to exercise almost unbridled discretion. Ohio State law professor Doug Berman, writing in his Sentencing Law and Policy blog, complained that

perhaps most striking data points are the dramatic variations in grant rates from various districts. As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.

One commenter to Berman’s post responded, “When you tell judges they can do whatever they care to, without any standards that are going to get enforced, this is what you’re going to get. Any resemblance between this and ‘Equal Justice Under Law’ is strictly coincidental.”

Roybean220923CMaybe so, but “standards that are going to get enforced” sounds a lot like the bad old days of mandatory guidelines. You can’t have it both ways. Judges exercising a lot of discretion can take individual factors into account the way that uniform standards applying across all 94 federal districts cannot. On the other hand, standards can limit the baser instincts of the Judge Roy Beans of the federal judiciary.

Perhaps our newly-reconstituted Sentencing Commission can find a happy (pro-defendant) medium.

U.S. Sentencing Commission, Compassionate Release Data Report (Fiscal Years 2020 to 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest “Compassionate Release Data Report” with detailed data through March 2022 (September 12, 2022)

– Thomas L. Root