Tag Archives: 1B1.13

Sentencing Commission Rolls Up Its Sleeves – Update for November 3, 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.

USSC SETS GUIDELINE AMENDMENT PRIORITIES

The U.S. Sentencing Commission held its first meeting in 46 months last Friday, voting in a 20-minute session to adopt priorities for the Guidelines amendment cycle that ends Nov 1, 2023.

USSC170511The USSC lost its quorum due to term expirations of multiple members in December 2018, just as the First Step Act was signed into law. That meant the commission was unable to revise the Guidelines just as First Step changes required modifications that would have prevented conflicting judicial interpretations, especially in the application of 18 USC § 3582(c)(1)(A) sentence reduction motions, commonly called “compassionate release” motions.

The compassionate release statute requires judges to consult USSG § 1B1.13, Guidelines policy on granting compassionate releases, but § 1B1.13 was written for a time when only the Bureau of Prisons could bring compassionate release motions. Most but not all Circuits have ruled that § 1B1.13 is not binding on district courts until it is amended, but the 11th has ruled that it is binding, the 8th has studiously avoided deciding the question, and others – such as the  3rd, 6th and 7th – have held that district judges cannot consider First Step Act changes in sentencing law that would result in much lower sentences when deciding compassionate release motions.

U.S. District Judge Carlton Reeves (S.D. Mississippi), chairman of the Commission, said implementing the First Step Act through revisions to the federal sentencing guidelines would be the USSC’s “top focus.”

Other changes in the Guidelines, such as to the drug tables, could result from First Step’s lowering of drug mandatory minimums.

responsibility221103Additional priorities for the coming year include resolving circuit conflicts over whether the government may withhold a motion for a third acceptance-of-responsibility point just because a defendant moved to suppress evidence before pleading guilty and whether an offense must involve a substance actually controlled by the Controlled Substances Act to qualify as a “controlled substance offense,”

The USSC will also consider amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.

First Step also made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties, by expanding eligibility to some defendants with more than one criminal history point. A USSC press release says the Commission “intends to issue amendments to § 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.”

marijuana220412The only addition to the Commission’s previously-published list of proposed priorities that came out of the meeting was consideration of possible amendments on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing.

The cannabis item was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation.

The Commission’s priorities only guide what it will be working on for the Nov 2023 amendment cycle. Expect amendment proposals by late January, followed by a public comment period, and final amendments by May 1. After that, the Senate has 6 months to reject any of the amendments (a very rare occurrence). Amendments not rejected will become effective Nov 1, 2023.

Reuters, Newly-reconstituted U.S. sentencing panel finalizes reform priorities (October 28, 2022)

US Sentencing Commission, Final Priorities for Amendment Cycle (October 5, 2022)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2022)

Marijuana Moment, Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes (October 28, 2022)

– Thomas L. Root

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

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

Sentencing Commission’s Back, And It Has Its Priorities – Update for October 4, 2022

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SENTENCING COMMISSION PRIORITIES TO FOCUS ON COMPASSIONATE RELEASE, ACQUITTED CONDUCT GUIDELINE CHANGES

USSC170511Last week, the newly-reconstituted U.S. Sentencing Commission issued tentative policy priorities for the 2022-2023 amendment year. Unsurprisingly, amending the compassionate release Guideline is at the top of the list.

Most circuits have held that USSG § 1B1.13, the policy statement that once controlled compassionate releases, does not apply to inmate-filed motions. Just as the First Step Act – which first permitted inmates to file their own compassionate release motions – was passed, the Sentencing Commission lost its quorum and could not amend anything.

The announcement last week only proposes that the USSC should examine 1B1.13 and the other priorities. It does not propose what changes, if any, will be made. The Commission will issue detailed tentative amendments for public comment early next year. Final amendments will issue by May 1. Any amendment that is not voted down by the Senate (and a down-vote hardly ever happens) becomes effecting November 1, 2013, about 13 months from now.

guns200304The USSC also proposed to focus on changing firearms penalties under USSG § 2K2.1 in light of a new gun control law that created higher penalties for straw purchasers, felon-in-possession and other gun crimes; changing criminal history guidelines in light of studies on recidivism and difficulties applying the career offender provision, considering prohibiting the use of acquitted conduct in sentencing, changing the guidelines to permit more non-prison sentences for non-violent first offenders, and studying simplifying the guidelines while promoting the statutory purposes of sentencing.

Sentencing Commission, Notice of Proposed 2022-2023 Priorities (September 29, 2022)

– Thomas L. Root

Sample-ing a First Circuit Compassionate Release Win – Update for February 21, 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.

LET’S GO, BRANDON…

jrhigh220221I’m no fan of the current political meme “Let’s go, Brandon.” I think we can be critical of the incumbent President (or the former President, for that matter) without sounding like a lot of 7th-grade boys sitting in the back of the school bus.

But today, I mean it literally. Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this blog other than the fact of his dedication to criminal defense and his skill in winning against sometimes-substantial opposition) swung for the fence on a First Circuit compassionate release appeal. Last week, he hit a walk-off homer.

Brandon’s client, Juan Ruvalcaba, was convicted of a sprawling drug-distribution conspiracy over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 count required at that time because of Juan’s prior drug convictions.

In 2020, Juan asked his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) because of COVID and his medical condition. He also argued that the fact that the mandatory minimum sentence for his drug conviction had been changed by the First Step Act – being dropped from life to 25 years – was an additional extraordinary and compelling reason for a sentence reduction.

henhouse180307A § 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party show that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing factors of 18 U.S.C. § 3553(a), a reduction is warranted. Time was only the Bureau of Prisons could bring such motions on behalf of inmates – sort of like letting the fox decide which chickens in the henhouse would be released to go “free-range” – but First Step changed that to let inmates file for compassionate release on their own.

The Sentencing Commission has defined what facts may constitute “extraordinary and compelling” reasons in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release statute in December 2018, the Policy Statement is still written as though only the BOP director is doing all of the filing.

Juan’s district court disagreed that the First Step change to his mandatory minimum could be an extraordinary and compelling reason for compassionate release. What’s more, the court held that it was obligated to follow the Sentencing Commission Policy Statement, which did not identify sentence length or a subsequent non-retroactive change in the sentencing statute as elements justifying a sentence reduction.

Brandon took Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in holding that § 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit ruled that a district court was free to consider that the prisoner is serving an over-long sentence that would not be mandatory had it been imposed after the First Step Act.

“The text of the current policy statement makes pellucid that it is ‘applicable’ only to motions for compassionate release commenced by the BOP,” the Circuit ruled. “To find the existing policy statement “applicable” to prisoner-initiated motions, we would need to excise the language referring to motions brought by the BOP. That would be major surgery and undertaking it would be well outside our proper interpretive province…. We may not ‘blue pencil’ unambiguous text to divorce it from its context.”

bluepencil220221The appeals court admitted that someday, the Sentencing Commission will be back in business and probably make § 1B1.13 relevant in a First Step world. Then, “district courts addressing such motions not only will be bound by the statutory criteria but also will be required to ensure that their determinations of extraordinary and compelling reasons are consistent with that guidance.” But until then, compassionate release will be interpreted “through the lens of the statutory criteria, subject to review on appeal.”

The 1st Circuit also held that an excessive sentence could be a reason for a sentence reduction, at least where a subsequent but non-retroactive change in the law had lowered a mandatory minimum. “Our view that a district court may consider the FSA’s prospective amendments to sentencing law as part of the ‘extraordinary and compelling’ calculus fits seamlessly with the history and purpose of the compassionate-release statute. In abolishing federal parole, Congress recognized 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.”

Such a safety valve should “encompass an individualized review of a defendant’s circumstances and permit a sentence reduction — in the district court’s sound discretion — based on any combination of factors (including unanticipated post-sentencing developments in the law),” the Circuit ruled. Thus, a district court, reviewing a prisoner-initiated motion for compassionate release in the absence of an applicable policy statement, may consider any “complex of circumstances raised by a defendant as forming an extraordinary and compelling reason warranting relief.”

Juan still has to sell his district court on the wisdom of granting any sentence reduction on remand, but – judging from his appellate win – he probably has the lawyer who can do it, if anyone can. Go, Brandon!

United States v. Ruvalcaba, Case No. 21-1064, 2022 U.S.App. LEXIS 4235 (1st Cir., February 15, 2022)

– Thomas L. Root

Compassionate Release Gets Uglier – Update for September 3, 2021

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THE UNSTRUCTURED AND ARBITRARY WORLD OF COMPASSIONATE RELEASE, IN WHICH DISCRETION ONLY WORKS ONE WAY…

Someday, legal scholars may look back on COVID-era compassionate releases granted under 18 USC § 3582(c)(1)(A)(i) as having introduced more disparity and inconsistency in sentencing than any event in federal criminal law.

chaos210903A Sentencing Commission study last month tallied compassionate releases by district, released last month, reported that 22.3% of the 12,885 compassionate release motions filed in 2020 were granted. But if you filed one, your chances were not one out of 4.5, Instead, if your case came from the District of Oregon, your chances of a grant were 69.8%. If, however, your case came from the Western District of North Carolina, your chances were a lousy 1.5%.

There is no federal court district in the country with a poorer track record for compassionate release than Western District of North Carolina. During 2020, Western District judges heard 337 compassionate release motions. The judges denied all but five. By comparison, the Eastern District of North Carolina approved release in 25% of its 224 compassionate-release requests. The Middle District of North Carolina had an approval rate of 6.2%, granting 10 of 162 requests.

(The U.S. Virgin Islands had a 0% approval rate, but that court heard just six requests, the report says. By contrast, the Western District of North Carolina handled the sixth-highest number of compassionate release cases in the country last year.)

“The numbers are jarring,” one defense attorney said. “Your geography remains one of the most relevant factors in determining the sentence you receive or the severity of the punishment. In a country that guarantees equal protection under the law, I think that should raise some constitutional questions.”

That’s because appellate courts afford district judges a lot of discretion in deciding compassionate release motions, and – from time to time – confound things by issuing questionable decisions that tie up their district courts in procedural knots.

Case in Point #1: Take Jessica Ward, for example. She is around a third of a way through a 200-month drug sentence, and sought compassionate release in the Northern District of Texas due to chronic kidney failure. The government’s opposition argued that she did not meet Section 1B1.13 of the Sentencing Guidelines, in that the BOP was adequately managing COVID, but neither mentioned her kidney disease nor argued that 18 USC § 3553(a) sentencing factors should be relied on to deny her compassionate release motion.

The district court denied her motion because she did not meet USSG 1B1.13 and because § 3553(a) factors did not support a reduction. Jenny appealed.

crystalball210903Last week, the 5th Circuit denied her appeal. It agreed that the district court was wrong to rely on USSG 1B1.13, because that Guideline does not apply when a prisoner files a compassionate release motion herself. But while the Government made no mention of the § 3553(a) factors, the Circuit “gives deference to the district court’s determination… We see no reason to hold that the Government’s failure to make arguments about the factors cancels the court’s statutory obligation to consider them.”

The 5th said the burden falls on the defendant to convince the court to grant compassionate release after considering the § 3553(a) factors. If the defendant fails to convince the district court to exercise its discretion, then the court may deny the motion, assuming it considers the § 3553(a) factors, for reasons the government may have never argued. 

Lesson: Not only does a compassionate release movant have to address the arguments raised by the government, but he or she should address arguments that the court might raise on its own in the ultimate denial. The prudent defense attorney should thus have both a LEXIS/Westlaw account and a crystal ball.

Case in Point #2: Consider Ron Hunter, a one-time drug trafficking organization hitman convicted 21 years ago of murdering a 23-year-old woman outside a nightclub. As we like to say, Ron has kind of a tough fact pattern to argue… So tough that his sentencing judge sentenced him to life in prison.

Twenty-one years later, a different judge granted Ron’s motion for compassionate release. Based upon the fact that Ron did not get the benefit of the non-retroactive United States v. Booker ruling that Guidelines are not mandatory, on certain facts that existed at sentencing, and Ron’s rehabilitation efforts (which were far from perfect), the district court held the factors amounted to the “extraordinary and compelling reasons” required by 18 USC § 3582(c)(1)(A)(i).

compassion210903Should be no problem. right? After all, don’t circuits “give[] deference to the district court’s determination,” like the 5th Circuit said in Jessica Ward’s case? Makes sense, doesn’t it? But it turns out that it’s not necessarily so.

Last Monday, the Sixth Circuit reversed Ron’s compassionate release, holding that his new district judge abused his discretion.

The Sixth Circuit had already ruled last June in United States v. Jarvis that a “non-retroactive changes in the law [can]not serve as the ‘extraordinary and compelling reason’ required for a sentence reduction,” a holding at odds with most other circuits that have considered the issue. That meant that going in to oral argument, Ron was in trouble, because one of the grounds relied on his district court was that Booker would permit a sentence imposed today to vary from the Guidelines.

Now, the Sixth has built on the Jarvis blunder, ruling that “facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.”

As Ohio State University law prof Doug Berman observed in his Sentencing Law and Policy blog, this holding “seems especially problematic and an especially misguided policy invention.” After all, the Sentencing Commission – which was given the duty by Congress to “describe what should be considered extraordinary and compelling reasons for sentence reduction” – held in Note 2 to Guideline 1B1.13, that

For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So while the Sentencing Commission has said facts known at sentencing can nevertheless be “extraordinary and compelling,” the Sixth Circuit says they cannot. It may well be that the Circuit was just put off at the idea of a hitman doing life going home after serving less time than a porn downloader. But there are ways to force the conclusion the judges wanted to see without pronouncing such a transparently wrong interpretation of the statute.

Lesson: Discretion is a rachet, in which the district court has free rein to deny but substantial restraint to grant, compassionate release.

Raleigh, North Carolina, News & Observer, Inmates seeking release from COVID-hit prisons have next to no chance in this NC district (August 27, 2021)

Ward v. United States, Case No 20-10836, 2021 U.S.App. LEXIS 25808 (5th Cir. Aug. 26, 2021)

United States v. Hunter, Case No. 21-1275, 2021 U.S. App. LEXIS 26115 (6th Cir. Aug. 30, 2021)

Sentencing Law and Policy, Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines (August 30, 2021)

– Thomas L. Root

Good, Bad… But Not Indifferent – Update for May 27, 2021

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EITHER GOOD OR BAD

Maybe you’ve noticed our good-and-bad theme this week. Here are some shorts:

thumbsup210526Good: The DC Circuit last week joined seven other circuits in holding that Guideline 1B1.13 does not limit compassionate release motions when those motions are brought by prisoners instead of the BOP.

The Circuit just joins seven other circuits since last September to so hold.  Only the 11th Circuit disagrees.

United States v. Long, Case No 20-3064, 2021 U.S. App. LEXIS 14682 (DC Cir., May 18, 2021)

thumbsdown210526Bad: The two Federal Bureau of Prisons Correctional Officerss who were supposed to be watching Jeffrey Epstein, later charged for lying to investigators and phonying up records to hide the fact they were cruising the Web instead, last week entered guilty pleas in the U.S. District Court for the Southern District of New York under deferred prosecution deals that will cost them 100 hours of community service but no prison time.

Forbes, Federal Prison Guards Admit To Filing False Records During Jeffrey Epstein’s Suicide (May 21, 2021)

thumbsup210526Good: Senators Amy Klobuchar (D-Minnesota and John Cornyn (R-Texas), and House Reps. Karen Bass (D-California) and Guy Reschenthaler (R-Pennsylvania) introduced the One Stop Shop Community Reentry Program Act last week, a bill that would set up reentry centers to help coordinate access to job training, medical and mental health services, and financial counseling. The centers would also help individuals land jobs, gain job-skill training, obtain driver’s licenses, fill out college and student loan applications and receive financial counseling.

The bill passed the House in the last session of Congress, but never came to a vote in the Senate.

NPR, Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison (May 20, 2021)

thumbsdown210526Bad:  Dr. Homer Venters, an epidemiologist tasked by a federal court with inspecting FCC Lompoc reported last week that the facility has “an alarmingly low vaccination acceptance rate among the inmate population,” due to prison staff neglecting to address inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions.

Rather than address inmate fears, Venters said, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.” He reported to the Court that “many of the people who reported refusing the vaccine told me they were willing to take it but simply had questions about their own health status.”

“The approach of BOP Lompoc not only fails to engage with patients; it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients,” he wrote. “In other detention settings I have worked in, a COVID-19 refusal by a high-risk patient would result in a prompt session with a physician or mid-level provider because the consequences of infection are so grave.”

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20)

– Thomas L. Root

11th Circuit Throws Wrench Into Compassionate Release Gears – Update for May 10, 2021

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11TH CIRCUIT SPOILS THE COMPASSIONATE RELEASE PARTY

downer210510You’d never invite the 11th Circuit to a party. Once again, the Debbie Downer of appellate courts has gone its own way, destroying most of the usefulness of compassionate release motions (aka sentence reduction motions under 18 USC § 3582(c)(1)(A)(i)) that all the other circuits take for granted.

Before last Friday, seven courts of appeal have held that USSG § 1B1.13 – the Guidelines policy statement on compassionate release – does not limit motions brought by prisoners. The Guideline – written well before the First Step Act allowed defendants themselves (instead of the BOP Director alone) to bring compassionate release motions – only allows compassionate release motions for a limited list of problems. Anything not on the list – such as the COVID risks for people with vulnerable medical conditions – must be approved by the BOP.

The BOP’s record of approving compassionate release motions is dismal. Between April and December 2020, the BOP approved 11 out of 10,940 inmate requests, which works out to one-tenth of 1%. The 2nd, 4th, 5th, 6th, 7th, 9th, and 10th Circuits have all agreed that § 1B1.13 – unamended since First Step passed – is not an “applicable policy statement” for compassionate release motions brought by prisoners, and will not be until the Sentencing Commission amends it to reflect current law.

hammer160509The consensus of those other circuits does not impress the 11th Circuit. Jim Bryant moved for compassionate release because First Step had cut the mandatory 25-year minimum for an 18 USC § 924(c) gun conviction because he received a higher sentence than some of his coconspirators, because he went to trial, and because he has a good prison rehabilitation record. Last week, the Circuit shot down his request because the BOP had not approved the basis for reduction.

The 11th said, “Application Note 1(D) does not conflict with § 3582(c)(1)(A). The First Step Act’s only change was to allow for defendant-filed reduction motions. Nothing in Application Note 1(D) stops a defendant from filing a § 3582(c)(1)(A) motion. The BOP may still file motions, and Application Note 1(D) can apply to those motions. The BOP can also take a position on a defendant-filed motion, so Application Note 1(D) has a field of application there as well… Because this Court can give effect to the amended § 3582(c)(1)(A) and the unamended Application Note 1(D) at the same time, the Court must do so.”

The effect this ruling will have on compassionate release motions in the 11th Circuit can hardly be overstated. The stark circuit split created by this 2-1 decision may result in Supreme Court review, but inasmuch as a reconstituted Sentencing Commission – which President Biden intends to do – is likely to have § 1B1.13 amended by November 2022, the likelihood the Supreme Court will take up what is likely to be moot a few months after the case is decided is slim.

United States v. Bryant, Case No 19-14267, 2021 U.S.App. LEXIS 13663 (11th Cir., May 7, 2021)

– Thomas L. Root

Groundswell for Judicial Discretion in Compassionate Release Cases – Update for April 13, 2021

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TWO MORE CIRCUITS REJECT GUIDELINES § 1B1.13 AS GOVERNING COMPASSIONATE RELEASE

stampede210413Since United States v. Brooker last fall, four other circuits had held that USSG § 1B1.13, the Guidelines policy statement that severely restricts qualification for 18 USC § 3582(c)(1)(A)(i) compassionate release, did not apply to motions brought by inmates.

Last week, the 5th and 9th Circuits joined the stampede, bringing the total to seven.

The Guideline, among other terms, requires movants to show that they will not be a danger to the community or others (applying the standards of 18 USC § 3142(g), the statute governing pretrial release), and limits compassionate release for inmate medical conditions, sick partners, unparented kids. Other reasons may be used as well, but only those approved by the BOP.

It is hard to overstate the importance of the tsunami of holdings invalidating the use of §1B1.13 in compassionate release cases. District courts have cited § 1B1.13 in over 7,200 decisions in the last year. The government continues to argue in pleading that courts should reject compassionate release motions as inconsistent with  § 1B1.13, even where the circuit has held otherwise. Just last week, I read a compassionate release response in which the government reluctantly acknowledged – almost as an afterthought – that the Circuit had held that nothing “in the now-outdated version of Guideline § 1B1.13 limits the court’s discretion,” but only after a full page of arguing the court should apply it anyway.

Francesk Shkambi’s compassionate release was thrown out by a district court for lack of jurisdiction, because Frank didn’t fit into any of the four grounds listed in § 1B1.13. But last week, the 5th Circuit reversed, finding § 1B1.13 inapplicable:

§ 1B1.13 says it only applies to ‘motion[s] of the Director of the Bureau of Prisons’. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the First Step Act in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates. So the policy statement continues to govern where it says it governs — on the ‘motion of the Director of the Bureau of Prisons.’ But it does not govern here — on the newly authorized motion of a prisoner… Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

compassion160208Meanwhile, in California, a district court denied Pat Aruda’s compassionate release motion because it was inconsistent with § 1B1.13. Last week, the 9th Circuit reversed.

We agree with the persuasive decisions of our sister circuits and also hold that the current version of USSG § 1B1.13 is not an ‘applicable policy statement’ for 18 USC § 3582(c)(1)(A) motions filed by a defendant,” the Circuit wrote. “In other words, the Sentencing Commission has not yet issued a policy statement “applicable” to § 3582(c)(1)(A) motions filed by a defendant. The Sentencing Commission’s statements in USSG § 1B1.13 may inform a district court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are not binding.

So far, the 2nd, 4th, 5th, 6th, 7th, 9th and 10th have ruled that § 1B1.13 does not control inmate-filed compassionate release motions. No circuit has held otherwise.

United States v. Shkambi, Case No 20-40543, 2021 US App. LEXIS 10053 (5th Cir. Apr 7, 2021)

United States v. Aruda, Case No 20-10245, 2021 US App. LEXIS 10119 (9th Cir. Apr 8, 2021)

– Thomas L. Root

Any Friend of Bill is a Friend of Mine… – Update for March 15, 2021

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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.

WHAT ARE THE ODDS?

By some accounts, as many as 10,000 motions for sentence reduction (compassionate release) under 18 USC § 3582(c)(1)(A)(i) because of the COVID-19 pandemic have been filed in the past year. Data regarding grants have been hard to come by, but estimates range from 500 to 1,000 compassionate release motions have been granted.

presjudgeCR210315A Georgetown University study made available last week studied over 4,000 compassionate release decisions issued since last April, comparing the rate of compassionate release grants to the ideology of the judge. The indicator used for the judge’s ideology – not a perfect correlation, probably, but a reasonable compromise – was the identity of the President who appointed the jurist. Obama, the reasoning goes, probably appointed relatively few John Birch Society members to the bench, just as Trump probably avoided card-carrying socialists.

Of the 4,077 decisions studied by the author, Victoria Finkle (an economist and financial journalist turned law student), 17.1% were granted. People with judges appointed by Bill Clinton – remember the FOBs? – did the best at 24.9%, while people with George W. Bush-appointed judges fared the worst at 8.8%. Obama judges granted 20.9%, Trump’s judges only 9.3%.

An unreported 6th Circuit decision last week garnered a lot of legal press attention, as judges took potshots at each other whether COVID-19 data from The Marshall Project, a criminal justice advocacy group that has been out front on reporting on COVID in prisons. But the judges’ spat is not what makes the opinion interesting.

Kwame Mathews, who has multiple sclerosis, filed for compassionate release. His district court turned him down, finding that the “possibility of contracting COVID-19” and multiple sclerosis do not fit into the four extraordinary and compelling circumstances set forth in USSG § 1B1.13, that Kwame “would be a danger to others and the community if released” per § 1B1.13(2). The district court depicted Kwame’s motion as arguing that “the spread of COVID-19 throughout the nation qualifies as a compelling and extraordinary circumstance” and did not address the situation at FCI Terre Haute. “Equally troubling,” the Circuit said, “is the district court’s treatment of Kwame’s multiple sclerosis. The court found without any substantiation that Kwame failed to assert that he has “a serious physical or medical condition or a serious functional or cognitive impairment that prevents him from providing self-care” and suggested that Kwame does not have “an actual medical condition.”

ms210315

Noting that there is no cure for multiple sclerosis and that Kwame’s condition is unlikely to improve, the 6th said multiple sclerosis certainly qualifies as an ‘obvious’ serious medical need. “Notified that someone was suffering from multiple sclerosis, an objective layman would deem the condition serious,” the Circuit said. “Among other things, the condition can cause serious and permanent nerve damage that can lead to permanent disabilities.”

Kwame did not get compassionate release because – as in the case discussed next – his criminal history and sentence length argued against it. But the Circuit clearly said that a medical condition does not have to be on the CDC’s list in order to be an extraordinary and compelling reason for a COVID release.

notefrommom210315Johnny Tomes filed for compassionate release, producing a note from his parents that he had asthma. The district court turned him down, holding that USSG § 1B1.13 limits the “extraordinary and compelling reasons” for compassionate release to just a few situations and that John’s poorly documented asthma wasn’t one of them. Johnny hadn’t gotten COVID-19, the district court observed, and the BOP was taking precautionary measures to prevent an outbreak. Thus the district judge reasoned (and I use that term advisedly), John couldn’t prove the BOP would not be able to take care of him if he got sick.

Last week, the 6th Circuit reluctantly affirmed the decision. Although it was wrong to hold § 1B1.13 was binding on John’s case, the district court had also found that John’s extensive criminal history and the fact he had only done a few years of his 20-year sentence were 18 USC § 3553(a) sentencing-factor reasons arguing against compassionate release. Noting that “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking,” the Circuit said it “can affirm a court’s denial of a defendant’s compassionate release motion based on the court’s consideration of the § 3553(a) factors alone.”

Finkle, Victoria, How Compassionate? Political Appointments and District Court Judge Responses to Compassionate Release during COVID-19 (January 22, 2021) 

United States v. Mathews, Case No 20-1635, 2021 U.S. App. LEXIS 6944 (6th Cir. March 8, 2021)

Law & Crime, ‘Absolutely Savage’ Clinton-Appointed Circuit Judge Calls Out Trump-Appointed Colleague in Nearly Full-Page Footnote (March 8, 2021)

United States v. Tomes, Case No 20-6056, 2021 U.S. App. LEXIS 6773 (6th Cir. March 9, 2021)

– Thomas L. Root

‘Danger, Danger!’ – Courts Grapple With Prisoners’ ‘Danger to the Community’ on Compassionate release – Update for February 11, 2021

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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.

GUESS THEY MEANT WHAT THEY SAID…

saymean161103Part 1: About 80 days ago, the 6th Circuit ruled in United States v. Jones that because the Sentencing Commission – due to having too few members to even hold a meeting – had not been able to amend compassionate release policy statement § 1B1.13, district judges had no obligation to follow the old version of that Sentencing Guideline.

A little background: At the same time Congress enacted the Sentencing Reform Act of 1984, it established the Sentencing Commission. Among the Commission’s duties was a directive in 28 USC § 994(t) that it define in detail what constituted an “extraordinary and compelling reason” for a sentence reduction (what we commonly call compassionate release).

The Commission’s response was policy statement § 1B1.13, which faithfully adhered to the statute by – among other things – directing that a compassionate release could only be requested by the Director of the Federal Bureau of Prisons. After all, that was what 18 USC § 3582(c)(1)(A) said at the time. But in 2018, Congress change the statute in the First Step Act to permit prisoners to bring their own motions for compassionate release if the BOP turned down their request for the agency to do so.. Of course, the BOP turned everyone down: Mother Teresa herself could not have wrangled a compassionate release motion out of the Director.

motherteresa210211Normally, the Sentencing Commission would have amended § 1B1.13 in due course, updating it to reflect that compassionate release motions may be coming from inmates as well as the rare filing by the Director of the BOP. However, the Sentencing Commission was having its own crisis at the time. Three members left the Commission at the end of 2018 when their terms expired, and President Trump had not nominated any replacements. When he finally came up with a few names months later, the Senate never got around to confirming them. As a result, the Commission has lacked a quorum for two years now, and has been able to do absolutely nothing.

Thus, we have a revised compassionate release statute on the books, but an enabling policy statement that is still rooted in the Dark Ages.

That old policy statement set restrictive definitions as to what constitutes “extraordinary and compelling” reasons for a reduction, and said that any reason other than those listed in § 1B1.13 had to be approved by the Director. As well, § 1B1.13 required the judge – among other things – to determine that the prisoner “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).”

That brings you up to date. Now, for today’s case:

Jones described a three-step process for deciding compassionate release motions: First, a prisoner must show extraordinary and compelling reasons for a sentence reduction. If that showing is made, the movant must then show that the motion is consistent with any applicable policy statement issued by the Sentencing Commission. If he or she crosses that hurdle, the prisoner must finally show after considering the sentencing factors of 18 USC § 3553(a), the court ought to grant the motion. Jones’s three-step came with one big asterisk: where prisoners were moving for compassionate release on their own – instead of the motion being brought by the BOP Director – the courts should skip Step Two.

Paul Sherwood filed for compassionate release under 18 USC § 3582(c)(1)(A)(i), claiming that COVID-19, coupled with his age and medical condition, constituted extraordinary and compelling reasons for release. He claimed that the 18 USC § 3553(a) factors also weighed in favor of grant. The government admitted Paul’s medical conditions satisfied the “extraordinary and compelling” threshold, but it argued that his possession of prohibited sex images (read that as “kiddie porn”) meant he “remained a danger to the community, and that the § 3553(a) factors counseled against release.” The district court agreed in a two-line order that Paul “has failed to demonstrate that he is not a danger to the community. Not only was he convicted of possession… but he was convicted of transportation as well.”

pornC160829Last week, the 6th Circuit reversed the district court, telling everyone it meant what it said in Jones: § 1B1.13 is to be ignored. “While a brief order may well be sufficient for purposes of denying compassionate release,” the Circuit wrote, “where the order relies exclusively on an impermissible consideration, we must vacate the order and remand the case for further consideration.” The 6th admitted that the district judge could consider whether Paul had a “propensity to be a danger to the community upon release, as well as the nature and circumstances of his offense,” and it even presumed that “the district court’s initial balancing of the § 3553(a) factors during Paul’s sentencing remains an accurate assessment as to whether those factors justify a sentence reduction…”

In other words, the Circuit telegraphed to the district court that it didn’t expect the outcome to be any different after remand, only the process used to get there.

Despite its expectations, “because the district court relied on § 1B1.13(2) as the sole basis for denying Sherwood compassionate release,” the 6th remanded the so that the district court could decide whether the § 3553(a) factors alone weighed in favor of Sherwood’s release, without considering “danger to the community.”

Part 2: In early December, the 4th Circuit ruled in United States v. McCoy that § 1B1.13 should be ignored, and – additionally – that district courts could even consider disproportionately long sentences as reasons for compassionate release.

danger210211Paul Kratsas has spent nearly three decades in prison for a non-violent drug offense committed in Maryland. He moved for a sentence reduction, arguing that he would not get a mandatory life sentence if convicted today, and that his record of achievement in prison showed rehabilitation. The government, predictably enough, argued that there was nothing extraordinary or compelling in Paul’s showing, and anyway, he had not shown he would not be a danger to the community (even after 30 years in prison).

The district court noted that even under current law, Paul would qualify as a career offender, but “with good time credits, he has already served more than the bottom of those guidelines.” District Judge Deborah K. Chasanow obviously concluded that United States v. McCoy meant what it said. She held:

It is time to recognize that both the law and Mr. Kratsas have changed over the last three decades. His youthful refusal to acknowledge his guilt – or to accept punishment – has given way to reflective maturity. His positive attitude while in prison is demonstrated by the myriad courses, programs, and activities he has completed successfully, earning him transfer to a low security facility and the support of his mentor and family. He has demonstrated that he is not likely to be a danger to society due to his insights into his personal responsibility and the release plan he has offered. He is to be commended for his refusal to lose hope.

Paul went home last Friday… for the first time since 1992.

United States v. Sherwood, Case 20-4085, 2021 U.S. App. LEXIS 2806 (6th Cir., February 2, 2021)

United States v. Kratsas, Case No. DKC 92-208, 2021 U.S. List. LEXIS 13313 (D.Md., January 25, 2021)

– Thomas L. Root