Tag Archives: 1B1.13

3rd Circuit ‘Lopers’ the Sentencing Commission – Update for November 4, 2024

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

WHERE THERE’S A ‘WILL’ THERE’S A ‘WON’T’

chevron230508One of our favorite Supreme Court decisions last June was Loper Bright Enterprises v. Raimondo, a case that punched Chevron deference’s ticket by holding that courts don’t have to defer to agencies’ interpretations of federal law as long as those interpretations are reasonable. Instead, Loper Bright held, courts are in the business of figuring out what statutes say, and they should not defer to a bunch of unelected bureaucrats who often have a vested interest in the interpretations they put on the laws the agencies are supposed to administer.

We saw the dark side of Loper Bright last Friday. The day after the 6th Circuit heard oral argument in a case over whether the Sentencing Commission’s guideline, USSG § 1B1.13(b)(6) – that says an extraordinary and compelling reason for a compassionate release may include an overly-long sentence that could not be imposed today because of a change in the law – exceeds the Commission’s authority.

In the First Step Act, Congress reduced the mandatory minimums for some drug offenses and refined 18 USC § 924(c) to provide that the 25-year minimum for a second § 924(c) offense could only be imposed after a prior § 924(c) conviction. Before First Step, if you carried a gun when you sold pot on Monday and then carried it again when you sold pot on Wednesday, you would get maybe 60 months for selling drugs AND a mandatory consecutive 60 months for carrying a gun on Monday AND a mandatory consecutive 300 months for Wednesday’s gun. Your two-day drug selling binge would have netted you 420 months (35 years) in prison.

retro240506For reasons more political than legal, Congress did not make the changes in drug and § 924(c) mandatory minimum sentences retroactive. But in the years since, some judges found that the fact that some people were serving impossibly long sentences that they could not have had imposed on them after First Step passed could constitute an extraordinary and compelling reason for grant of a compassionate release motion. Other Circuits, notably the 3rd, 7th and 11th, ruled that overly long sentences could not serve as extraordinary and compelling reasons for compassionate release because Congress had not made the changes to the laws that dictated those sentences retroactive.

When the Sentencing Commission finally adopted a new Guideline – § 1B1.13 – a year ago, it included as one of the defined extraordinary and compelling reasons for a compassionate release grant a case where a defendant had a disparately long sentence because of a nonretroactive change in the law. The Dept of Justice began a full-throated attack on subsection (b)(6), arguing that because First Step does not make the changes in § 924(c) retroactive, the Commission was exceeding its authority by letting people do an end run around Congress.

A 6th Circuit panel heard oral argument last week in United States v. Bricker, three consolidated cases in which the government is arguing that subsection (b)(6) exceeds the Sentencing Commission’s congressionally delegated authority. The next day, in United States v. Rutherford, a 3rd Circuit panel held that subsection (b)(6) is invalid.

The Rutherford defendant won a compassionate release after 20 years of being locked up on a 42-year sentence for two armed robberies of a doctor’s office. Citing its right under Loper Bright to ignore the Sentencing Commission’s interpretation of the extent of its authority, the Rutherford panel ruled against Mr. Rutherford based on its belief as to “the will of Congress”:

Subsection (b)(6)… as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release. Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive… [I]t would be inconsistent with [the] pertinent provisions of the First Step Act… to allow the amended version of § 924(c) to be considered in the compassionate release context because Congress specifically decided that the changes to the § 924(c) mandatory minimum sentences would not apply to people who had already been sentenced.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, criticized the 3rd’s decision. “Besides the non-textual nature of divining the “will” of Congress to rule against a defendant, this holding conflates Congress’s nonretroactivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release. There is nothing at all “inconsistent” with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.”

forceofwill241104A cardinal canon of statutory construction holds that where the text of a statute is clear, that’s all that matters. But Rutherford holds in essence that what the court thinks Congress “willed” is more important than what the law Congress passed actually says.

A Fifth Circuit panel has already held that subsection (b)(6) is a legitimate exercise of Commission authority. Prof Berman believes it is “inevitable” that the issue will have to be settled by the Supreme Court.

United States v. Rutherford, Case No. 23-1904, 2024 U.S. App. LEXIS 27740 (3d Cir., November 1, 2024)

United States v. Bricker, Case No. 24-3286 (6th Cir., argument held October 31, 2024)

Sentencing Law and Policy, Based on “the will of Congress,” Third Circuit panel adheres to prior ruling limiting ground for compassionate release (November 1, 2024)

United States v. Jean, 108 F.4th 275 (5th Cir., 2024)

– Thomas L. Root

5th Circuit Endorses District Court Discretion on Compassionate Release Motions – Update for July 18, 2024

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

5TH CIRCUIT DERAILS DOJ EFFORT TO DELEGITIMIZE GUIDELINES

ratchet211108I suppose it is unsurprising that the Dept of Justice sees appropriate judicial discretion as a ratchet. It’s fine if a judge employs his or her flexibility to tighten the screws on a defendant, but any attempt to fashion a remedy that seeks to ameliorate harsh sentences that could not be imposed today is seen by the denizens of the US Attorney’s offices as a threat to the republic.

After the First Step Act permitted prisoners to bring so-called compassionate release motions – petitioning courts under 18 USC § 3582(c)(1)(A) to reduce sentences for extraordinary and compelling reasons – courts labored for almost five years to pound square-peg Sentencing Guideline 1B1.13 into the new round hole of defendant-initiated compassionate release motions. The old version of 1B1.13, written back in the day when only the Federal Bureau of Prisons could initiate a compassionate release request, was minimally relevant to the new regime. However, the Sentencing Commission lost its quorum a mere 11 days after First Step was signed into law, and could not promulgate a new § 1B1.13 for prisoner-brought motions.

Nearly all courts of appeal rejected DOJ demands that the old § 1B1.13 be slavishly applied to compassionate release motions, holding that commentary for motions brought by the BOP was inapplicable to motions brought by defendants and that what constituted extraordinary and compelling reasons for compassionate release motions was left to the broad discretion of district courts, limited only by the statute’s directive that rehabilitation alone was an insufficient basis for a sentence reduction.

In the absence of a guiding Sentencing Commission policy statement, appellate courts split on whether district courts could consider non-retroactive changes in the law in deciding whether extraordinary and compelling reasons existed for compassionate release. Such was a major concern. First Step changed mandatory minimum sentences for a number of drug offenses and clarified a drafting blunder in 18 USC § 924(c) – which imposes mandatory consecutive sentences for using or carrying a gun in a drug offense or crime of violence – but did not make those changes retroactive.

In some circuits, prisoners with draconian 50-year-plus sentences for 924(c) offenses that today would carry 15 years could get relief. In other places, appellate courts ruled that such reductions were impermissible because old § 1B1.13 did not permit it.

draconian170725That was the state of things until last November, when the reconstituted Sentencing Commission’s rewritten 1B1.13 became effective. The new 1B1.13 provided ample guidance as to what a district court must consider to be “extraordinary and compelling” reasons for grant of a 3582(c)(1)(A) motion, including

[i]f 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.

The USSC also added a “catch-all,” authorizing district courts to consider as extraordinary and compelling reasons “any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons [listed in 1B1.13] are similar in gravity…”

The DOJ immediately mounted a nationwide attack on the new 1B1.13, arguing (among other things) that allowing the consideration of changes in the law that made the old sentences disparately long exceeded the Commission’s legal authority and supplanted Congress’s legislative role by permitting the revision of sentences that Congress did not wish to make retroactive.

This full-throated attack on the new 1B1.13, which Congress had six months to reject but chose not to, finally got to an appellate court.

careeroffender22062Joel Jean was locked up in 2009 for a cocaine distribution crime and a § 924(c) offense. He had three prior state drug convictions, and as a result, he was classified as a Guidelines “career offender,” which came with a recommended sentencing range of 352-425 months. The district court gave him a break, sentencing him to 292 months’ imprisonment.

In the years following Joel’s conviction, a series of Supreme Court and 5th Circuit cases redefined what could be considered a qualifying offense for the “career offender” enhancement. Those held that some of Joel’s Texas convictions no longer qualified to make him a “career offender.” As a result, “it is undisputed that if he were to be sentenced today, Joel would not be classified as a career offender under § 4B1.1.”

Joel filed a compassionate release motion, arguing that non-retroactive changes in the law would result in a substantially shorter sentence today if he were sentenced today and that his post-sentencing conduct and rehabilitation weighed in favor of compassionate release.

To be sure, Joel’s rehabilitation efforts – good conduct, successful programming, and comportment that resulted in laudatory letters from BOP staff – were exceptional. The district court was impressed, granting Joel’s motion and resentencing him to time served. The government, however, was dissatisfied with the decade-length pound of flesh it had gotten from Joel. It appealed, arguing that the district court could not consider non-retroactive changes in the law and that Joel should return to prison.

Last week, the 5th Circuit rejected the government’s position, holding that a sentencing court has the “discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release.”

The Circuit ruled that “there is no textual basis [in statute] for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor” nor did appellate precedent or 1B1.13 prohibit including such factors in a compassionate release calculus.

In Concepcion v. United States, the 5th observed, the Supreme Court held that

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence… [T]he Concepcion Court concluded that nothing limits a district court’s discretion except when expressly set forth by Congress in a statute or by the Constitution. And in the case of the FSA, though the Court noted that “Congress is not shy about placing such limits where it deems them appropriate,” Congress had not expressly limited district courts to considering only certain factors there.

The Circuit noted that Congress “has never wholly excluded the consideration of any factors. Instead, it appropriately affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand, limited only by the proscription that “rehabilitation alone was insufficient… [but] did not prohibit district courts from considering rehabilitation in conjunction with other factors.”

discretion220629

Congress adopted § 3582(c)(1)(A) due to the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable,” the Court ruled: “It is within a district court’s sound discretion to hold that non-retroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation.”

United States v. Jean, Case No. 23-40463, 2024 U.S. App. LEXIS 17274 (5th Cir. July 15, 2024)

Concepcion v United States, 597 US 481 (2022)

– Thomas L. Root

‘Here’s How to Dance on This Prisoner’s Head Even More,’ 11th Circuit Helpfully Tells District Court – Update for April 9, 2024

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

11TH CIRCUIT’S NOT GOING TO MAKE COMPASSIONATE RELEASE EASY

Quinton Handlon got a life sentence 11 years ago for coercing minors to produce child pornography. In 2021, he filed for compassionate release on the grounds that his father suffered poor health and needed 24/7 care.

angryjudge190822The district court turned him down because caring for a parent was not defined in the old USSG § 1B1.13 as a basis for compassionate release at the time Quinton applied as an extraordinary and compelling reason for an 18 USC § 3582(c)(1) sentence reduction. The § 1B1.13 that became effective on Nov 1, 2023, however, does recognize parent care as an extraordinary and compelling reason.

Nevertheless, last week, the 11th Circuit turned him down.

In legal gyrations that only the 11th Circuit could love, the Court ruled that it could retroactively apply § 1B1.13 “amendment in this appeal only if it is a ‘clarifying’ amendment, not if it is a ‘substantive’ amendment.” The Circuit ruled that the § 1B1.13 change “altered the text of the guideline itself to allow for compassionate release in a new circumstance,” making it a substantive amendment. The 11th ruled that although Quinton can file a new compassionate release motion, “we cannot give it retroactive effect in this appeal.”

remand240409Of course, the Circuit could just as easily have remanded Quinton’s case to the district court for application of the new § 1B1.13 standard to the factual record. But that would have saved time and paperwork.

The decision is flawed for another more troubling reason. The district court turned Quinton down for lack of an “extraordinary and compelling reason” for compassionate release, not reaching the question of whether grant would be consistent with the 18 USC § 3553(a) sentencing factors and with applicable Sentencing Commission policy. Because all three conditions are necessary for grant of a compassionate release motion, “the absence of even one would foreclose a sentence reduction,” the 11th noted.

Such a decision is hardly uncommon. Only three months ago, the 11th agreed with a district court that a defendant’s “mother’s cancer diagnosis does not fall within the list of family circumstances that justify compassionate release,” footnoting that “[w]e need not reach the issue of whether the court abused its discretion by failing to consider the § 3553(a) factors because the district court’s order was not in error.”

But Quinton’s court was not detained by notions of judicial efficiency and restraint. While conceding that the district court was entitled to focus solely on the lack of an extraordinary and compelling reason, the Circuit was sufficiently offended by Quinton’s offense of conviction that it found it appropriate to lecture the district court on how it ought to decide Quinton’s § 3553 sentencing factors” if his case ever arose again.

pervert160728The Circuit complained that the district court “did not have the opportunity to consider that sex offenders who have sexually abused children are a threat to continue doing so” because of the alleged high recidivism of sex offenders (a myth from 20 years ago that even the DOJ has renounced). Of course the district court did not: Circuit precedent dictated that it need not do so. Nevertheless, the 11th clearly gave the district court marching orders on how to decide this issue if Quinton came back with a new motion.

Whether Quinton is a danger to the community or not is a decision for the district court to make first. The 11th Circuit has in the past been happy to remind litigants that “we are a court of review, and we ordinarily do not decide in the first instance issues not decided below.” Apparently, when the defendant’s past is sufficiently offensive to the appellate panel, no such limitations apply.

United States v. Handlon, Case No. 22-13699, 2024 USAppLEXIS 7915 (11th Cir., April 3, 2024)

Dept of Justice, Recidivism of Sex Offenders Released from State Prison: A 9-Year Follow-Up (2005-14) (May 2019)

United States v. Ivanov-Tolpintsev, Case No. 23-10648, 2024 U.S. App. LEXIS 117  (11th Cir., Jan. 3, 2024)

Griggs v. Kenworth of Montgomery, Inc., 775 F.Appx 608, 613 (11th Cir. 2019)

– Thomas L. Root

DOJ Speaks With Forked Tongue… Again – LISA Update for February 4, 2024

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

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

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

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

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

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

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

thereyougo240205What is the DOJ’s response to that? It has filed oppositions all around the country, arguing that the Sentencing Commission’s (b)(6) guideline exceeded its statutory authority and is invalid. As Ronald Reagan used to say to Jimmy Carter, “There you go again…”

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

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

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

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

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

toofar240205“The government acknowledges that Congress directed the Commission to address the meaning of extraordinary and compelling,” the district court said. “But the government asserts the Commission went too far, because, the government says, a temporal disparity, no matter how great or how unusual, can never provide an extraordinary and compelling reason for a sentence reduction.”

The Court ruled:

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

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

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

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

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

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

– Thomas L. Root

Government Seeks to Bushwhack Disparate-Sentence Compassionate Release Guideline – Update for December 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.

TIGER TRIES TO EAT ITS YOUNG

Traditionally, the Department of Justice defends federal statutes and regulations from constitutional attack. In fact, DOJ’s role as watchdog over the sanctity of its statutes and rules is so established that the Federal Rules of Civil Procedure require a private litigant to serve the Attorney General in a lawsuit against another private party if the litigant is claiming that any federal statute is unconstitutional.

tigers231211I have seen cases in the past where the government conceded that the application of a statute was unconstitutional – but usually after the Supreme Court has found the statute itself to violate the Constitution. Good examples abound, such as United States v. Brown, a 2nd Circuit summary order noting that where “the underlying crime of violence was a racketeering conspiracy… [t]he Government concedes that the Supreme Court’s recent decision in United States v. Davis… requires vacatur of those counts of conviction [under 18 USC 924(c)]”).

But I don’t recall a case where the government has mounted a defense based on the argument that the federal agency rule applicable to the private party’s claim was void as contrary to federal statute. Until now.

To channel Rodney Dangerfield, this is a case of a tiger eating its young.

The new USSG § 1B1.13(b)(6) – the Guideline that sets out binding Sentencing Commission policy on 18 USC § 3582(c)(1)(A) “compassionate release” sentencing reductions – holds that where a prisoner has

an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law… 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…

You may recall that when this provision was adopted by the Commission last April, it generated vigorous debate and passed on a whisker-thin 4-3 vote.

retro160110Now, in United States v. Brand, a compassionate release case in the Northern District of Florida, the government has opposed a prisoner’s request for relief from a sentence of stacked 18 USC § 924(c) convictions by arguing that USSG § 1B1.13(b)(6) is an unconstitutional expansion of Sentencing Commission authority because it effectively makes nonretroactive changes in the law retroactive. The thrust of the government’s defense is that Congress did not make changes in 18 USC § 924(c) retroactive when it passed the First Step Act five years ago, that this was a deliberate choice made by Congress, and that the Sentencing Commission’s decision to define the sentence disparity resulting from people sentenced before First Step have dramatically higher stacked 924(c) sentences than people sentenced after First Step as “extraordinary and compelling” is unlawful: “Although Congress has delegated broad authority to the Sentencing Commission, subsection (b)(6) is contrary to the text, structure, and purpose of 18 U.S.C. § 3582(c)(1)(A) and 28 U.S.C. § 994(a), and is therefore invalid.”

I think the argument is strained. Besides trying essentially to engraft Administrative Procedure Act standards (see 5 USC § 706, for instance) onto a judicial agency that is not subject to the APA, I think that the biggest hole in the government’s argument is that – unlike other agency rules – under 28 USC § 994(p), Guideline amendments (and an explanation of why they are being proposed) must be submitted to Congress 180 days before effectiveness to give Congress a chance to modify or disapprove the amendments. Congress’s right to modify or disapprove makes it tough to argue, as the government does, that the Commission’s reading of the compassionate release statute “exceeds the gap left by Congress.” If Congress had thought the new § 1B1.13(b)(6) was overreaching, outside the Commission’s authority, or contrary to the non-retroactivity of First Step, it had six months to say so.

The government relies on Mayo Foundation for Med. Educ. & Research v. United States, but in that case, the court notes that “the ultimate question is whether Congress would have intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ authority.” Here, I think, the existence of the six-month review period and Congress’s election not to modify or veto during that period is more than ample evidence of Congress’s intent.

lincolnfool161125But the real danger in Brand is this: The court denied the prisoner appointment of counsel right about the time the government lodged its novel constitutional claim that Federal Rule of Civil Procedure 5.1 requires a party contesting the constitutionality of a federal statute to serve the Attorney General of the United States with notice of the action. Under 28 USC § 2403(a), a court ruling on such a challenge is required to do the same. Upon receiving notice, the Attorney General has a right to intervene as a party in the case and present evidence. Both of these requirements suggest that the government has a compelling interest in defending the sanctity of its rules and statutes.

So what happens when the Attorney General himself contests the lawfulness of a federal regulation, especially where it is a quasi-statute as is a sentencing guideline? Expecting a pro se prisoner to competently defend the lawfulness of a federal rule against the government puts a lot of weight on the shoulders of the inmate. What is more, it is almost certain to result in steamrolling the government’s position into the final order, resulting in the making of a bad ruling out of an unbalanced contest.

Sentencing Commission guideline 1B1.13(b)(6) has the tacit approval of Congress. If any compassionate release defense calls for the appointment of counsel, defending the lawfulness of a properly adopted guideline does.

United States v. Brown, 797 Fed.Appx 52, 54 (2d Cir. 2019)

United States v. Davis, 588 U.S. —, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019)

Gvt Response to Motion for Compassionate Release (ECF 108), United States v. Brand, Case 8:11-cr-380 (N.D.Fl., filed November 17, 2023)

Mayo Foundation for Med. Educ. & Research v. United States, 562 US 44 (2011)

– 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

8th Circuit Gets It Wrong – Update for May 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.

8th CIRCUIT STILL DOESN’T GET COMPASSIONATE RELEASE

fail200526By now, everyone knows that last month a divided Sentencing Commission adopted a revised USSG § 1B1.13 that, as of November 1, will govern 18 USC § 3582(c)(1)(A) sentence reduction (compassionate release) motions. The USSC was unanimous on everything except the new § 1B1.13(b)(6), which directs that – in certain circumstances – “changes in the law… 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…”

It’s not that hard to understand, even if it is controversial. But last week, the 8th Circuit misread the amendment like a first-year law student on his way to an ‘F’. (I employ the male gender here, because as I recall law school – admittedly a long time ago – the women law students never got ‘F’s).

Rodolfo Ramirez-Menendez is doing mandatory life for an § 851-enhanced drug conviction. He filed for compassionate release, arguing that although the 8th has previously held that “a non-retroactive change in law regarding sentencing… cannot contribute to a finding of ‘extraordinary and compelling reasons’ for grant of a compassionate release motion,” that holding had been overruled by Supreme Court in last year’s Concepcion v. United States decision.

The Circuit rejected Rodolfo’s argument but then notes the pending amendment to § 1B1.13. But after quoting key provisions of § 1B1.13(b)(6), the 8th mangles it badly, saying that “[i]t thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction… but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion.”

Not quite. Proposed § 1B1.13(b)(6) plainly states that, in certain circumstances, “changes in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason.”

ownfacts230503Sorry, 8th Circuit. To paraphrase the late Daniel Patrick Moynihan, you’re entitled to your own opinion, but not your own facts. As Ohio State University law professor Douglas Berman wrote last week, “[T[he Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circumstances.”

United States v. Rodriguez-Mendez, Case No. 22-2399, 2023 U.S.App. LEXIS 9909 (8th Cir., April 25, 2023)

Concepcion v. United States, 142 S. Ct. 2389 (Supreme Court, 2022)

Sentencing Policy and the Law, Eighth Circuit panel seemingly misreads the US Sentencing Commission’s sentence reduction guideline amendment (April 26, 2023)

Sentencing Guidelines for United States Courts, 88 FR 28254 (May 3, 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

Guideline Amendments Adopted in Contentious USSG Love-fest – Update for April 6, 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.

SENTENCING COMMISSION ADOPTS AMENDMENTS

USSC170511The U.S. Sentencing Commission yesterday adopted proposed amendments to the Federal Sentencing Guidelines for the first time in five years, with the new “compassionate release” guidelines consuming much of the meeting and generating sharp (but collegial) disagreement.

The “compassionate release” Guideline, USSG § 1B1.13, was approved on a 4-3 vote. It updates and expands the criteria for what can qualify as “extraordinary and compelling reasons” to grant compassionate release – the language in 18 USC § 3582(c)(1)(A) – and it will give judges both more discretion and more guidance to determine when a sentence reduction is warranted.

The new categories that could make an inmate eligible for compassionate release include

• if the prisoner is suffering from a medical condition that requires long-term or specialized medical care not being provided by the BOP and without which he or she is at risk of serious deterioration in health or death.

• if the prisoner is housed at a prison affected or at imminent risk of being affected by (an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate federal, state, or local authority, and due to personal health risk factors and custodial status, he or she is at increased risk of suffering “severe medical complications or death as a result of exposure” to the outbreak.

• if the prisoner’s parent is incapacitated and the prisoner would be the only available caregiver.

• if the prisoner establishes that similar family circumstances exist involving any other immediate family member or someone whose relationship with the prisoner is similar in kind to that of an immediate family member when the prisoner would be the only available caregiver.

• if the prisoner becomes the victim of sexual assault by a corrections officer.

• if a prisoner received an unusually long sentence and has served at least 10 years of the term of imprisonment, changes in the law (other than to the Guidelines) may be considered in determining whether an extraordinary and compelling reason exists, 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.

The amendments also provide that while rehabilitation is not, by itself, an extraordinary and compelling reason, it may be considered in combination with other circumstances.

compassion160208Three of the seven-member Commission disagreed sharply with the “unusually long sentence” amendment. Commissioner Candice C. Wong said, “Today’s amendment allows compassionate release to be the vehicle for applying retroactively the very reductions that Congress has said by statute should not apply retroactively.”

Commissioner Claira Boom Horn, who is a sitting US District Court Judge in Kentucky, observed that “nothing in the First Step Act – literally nothing, not text, not legislative history – indicates any intention on Congress’s part to expand the substantive criteria for granting compassionate release, much less to fundamentally change the nature of compassionate release to encompass for the first time factors other than the defendant’s personal or family circumstances. The Supreme Court tells us that Congress does not hide elephants in mouseholes and it did not do so here.”

Commissioner Claire McCusker Murray said, “The seismic expansion of compassionate release promulgated today not only saddles judges with the task of interpreting a free will catch-all but also ensures a flood of motions, a flood that will then repeat anytime there is a nonretroactive change in the law. For the past several years, while the Commission lacked a quorum to implement the First Step Act, the country has experienced a natural experiment in what happens when judges have no operative guidance as to the criteria they should apply in deciding release motions. The result has been widespread disparities. In Fiscal Year 2022, for example, the most generous circuit granted 35% of compassionate release motions, the most cautious granted only 2.5%. The disparities within circuits and even within courthouses were often just as stark. We fear that with today’s dramatic vague and ultimately unlawful expansion of compassionate release that we… will expect far more of the same.”

Commissioner John Gleeson, a retired US District Court judge and Wall Street law firm partner, disagreed: “[The amendment’s] common sense guidance is fully consistent with separation of powers principles, our authority as the Sentencing Commission, and with the First Step Act. Most importantly, it will ensure that § 3582(c)(1)(A) of Title 18 of the United States Code serves one of the purposes Congress explicitly intended it to serve when that law is enacted almost 40 years ago: to provide a needed transparent judicial second look at unusually long sentences that in fairness should be reduced.”

noteasycongress221212Congress may veto one or more of the Guidelines proposals between now and November 1, 2023. That has only once before, when Congress voted down a guideline lessening the crack/cocaine disparity in 2005. Congress is pretty busy, and both the Senate and House are pretty evenly split politically, but the extent of the disagreement at the Commission gives cause for concern. If Congress does veto, it is unclear whether would focus solely on the “unusually long sentence” subsection of new § 1B1.13, or whether the entire amended Guideline would be jettisoned.

In other action, the Commission had been considering an amendment that prohibited courts from imposing longer sentences based on alleged crimes of which a defendant had been acquitted. Commission Chairman Carleton Reeves, a federal district judge from the Southern District of Mississippi, said the Commission needs more time before making a final determination on the issue.

Reuters reported that Michael P. Heiskell, President-Elect of the National Association of Criminal Defense Lawyers, said he was disappointed by the delay. “Permitting people to be sentenced based on conduct for which a jury has acquitted them is fundamentally unfair because it eviscerates the constitutional right to trial and disrespects the jury’s role,” he said in a statement.

However, the Commission’s delay may rejuvenate the McClinton v. United States petition for certiorari, which the Supreme Court has been sitting on at the suggestion of the Dept of Justice, awaiting Sentencing Commission action on acquitted conduct. A Supreme Court decision that use of acquitted conduct in sentencing is unconstitutional would benefit many more people than would a prospective Guidelines change.

The USSC also adopted a criminal history amendment that eliminates “status points” (sometimes called “recency points”) – additional criminal history points assessed if the defendant committed the current crime within two years of release for a prior crime – and grants a 2-level downward adjustment to a defendant’s offense level if he or she had zero criminal history points and met other criteria.

The Commission also approved an amendment to criminal history commentary advising judges to treat prior marijuana possession offenses more leniently in the criminal history calculus, making downward adjustments for offenses now seen as lawful by many states.

The proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted,” according to a synopsis.

usscretro230406None of the Guidelines changes is retroactive without specific Commission determination that they should be. The USSC yesterday issued a notice that it will consider, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), whether Guidelines changes on “status points” and the “zero criminal history points” adjustment should be retroactive, and ask for public comment on the matter.

Although the Guidelines amendments do not become effective until November, most federal circuits have declared that – while the current § 1B1.13 is not binding on district courts because it is pre-First Step – courts should consider it to express the opinion of an agency expert in sentencing. The amended § 1B1.13 has every bit of the authority that the current non-binding § 1B1.13 has, and it has the additional benefit of being evidence of current Sentencing Commission thought.

USSC, Adopted Amendments (Effective November 1, 2023) (April 5, 2023)

USSC, Issue For Comment On Retroactivity Of Criminal History Amendment (April 5, 2023)

Reuters, U.S. panel votes to expand compassionate release for prisoners (April 5, 2023)

Marijuana Moment, Federal Sentencing Commission Approves New Marijuana Guidelines For Judges To Treat Past Convictions More Leniently (April 5, 2023)

– Thomas L. Root

U.S. Sentencing Commission’s In A Hurry to Get Things Done – Update for March 27, 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.

SENTENCING COMMISSION ROCKET DOCKET

rocket190620Showing that a federal prisoner has an ‘extraordinary and compelling’ reason for grant of compassionate release is critical to getting a sentence reduction grant under 18 USC § 3582(c)(1)(A). That statute also requires that any grant be consistent with “applicable policy statements” of the U.S. Sentencing Commission.

This is where it’s been sticky. The USSC has one policy statement (USSG § 1B1.13) addressing compassionate release, adopted well before the compassionate release statute was changed by the First Step Act. The same month Congress passed First Step (December 2018), the USSC lost its quorum as multiple members’ terms expired. President Trump nominated some new members a few months later, but the Senate did not approve them. That condition lasted until last spring, when President Biden nominated a complete slate of new members.

USSC2300327Without a quorum, the USSC could not modify § 1B1.13 to account for the changes that First Step made in the § 3582(c)(1)(A). Almost all courts responded by holding that the old § 1B1.13 was no longer an “applicable policy statement” and thus didn’t bind the courts. In a way, that was liberating to the people filing compassionate release motions, because courts were freed from § 1B1.13’s restrictive definition of what constituted “extraordinary and compelling” reasons.

But without a USSC policy statement moderating district court responses, compassionate release grants since 2019 have been characterized by wide disparity. In Oregon, for instance, about 62% of compassionate release filings have been granted. In the Middle District of Georgia, on the other hand, only about 1.5% have been granted.

The new USSC said last its top priority was to amend § 1B1.13, and in January, the Commission issued a draft § 1B1.13 for public comment that contained some very prisoner-friendly proposals and options. The proposed change was part of an extensive set of draft Guidelines amendments that spanned more than a hundred pages of text. The public comment period ended two weeks ago, with over 1,600 pages of comments filed on the compassionate release proposal alone.

The USSC usually rolls out its proposal Guidelines amendments by May 1st. Under 28 USC § 994(p), the amendments go to Congress, which then has 180 days to reject them. If Congress does nothing (which is almost always the case), the changes become effective.

Iminahurry230327But this new USSC is in a hurry to get things done. Last week, the Commission announced an April 5 meeting at which the final § 1B1.13 (and all of the other draft proposed amendments) will be adopted.

If the amendment package goes to Congress that same day, they could become effective as early as Monday, Oct 2nd.

USSC, Public Meeting – April 5, 2023 (March 24, 2023)

– Thomas L. Root