Tag Archives: 1B1.13

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

February 11, 2021 lisa-legalinfo Leave a comment

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…

Part 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.

Normally, 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.”

Last 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.

Paul 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

Two More Circuits Ease Compassionate Release Requirements – Update for November 23, 2020

November 23, 2020 lisa-legalinfo Leave a comment

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

6TH AND 7TH CIRCUITS FOLLOW BROOKER; CLARIFY COMPASSIONATE RELEASE

If there has been any silver lining to the COVID-19 pandemic at all – and reasonable people can easily argue that there has not been – it might be the explosion in compassionate release motions brought by federal prisoners.

As I have said before, 18 USC § 3582(c)(1)(A)(i) – which permits federal judges to reduce otherwise-final sentences when “extraordinary and compelling” reasons for doing so exist – has been a “sleeper” for three decades. Until 2018, the “catch” in this sentence reduction subsection that made it such a snoozer was the requirement that only the director of the Bureau of Prisons could bring a motion under the subsection. The Director, of course, is a bureaucrat who would not have petitioned to have his or her own mother released from federal stir.

By the way, nowhere in the statute is the motion called a “compassionate release” motion. Nevertheless, the sentence release motion has been dubbed as such by the BOP, to the point that the terms “compassionate release” and “sentence reduction” are freely interchangeable.

Prior to 2018, the number of occasions on which the BOP asked a court to release an inmate early made blue moons seem like a nightly event by comparison. Congress, tired of the BOP’s nonfeasance in using the sentence-reduction subsection, modified § 3582(c)(1)(A)(i) in the First Step Act, so that now – after paying lip service to the BOP’s former role by asking the Director to bring a sentence reduction motion no one seriously believes the BOP will bring – an inmate may file the motion directly.

Sentence reduction business picked up after First Step’s passage 23 months ago, but it took the pandemic to start the land rush. Somewhere around 4,000 sentence reduction motions claiming that COVID-19’s risk to medically-vulnerable inmates have been filed in the last eight months.

But with no history of sentence reduction adjudication, there has been blessed little judicial guidance as to how a court is to analyze such a motion, the application of the Sentencing Guidelines to sentence reduction motions, and how much detail is demanded in a decision denying such a motion. These are matters of more than academic interest.

According to 18 USC § 3582(c)(1)(A)(i), a sentence reduction motion must show the existence of extraordinary and compelling reasons for the reduction and that the reduction “is consistent with applicable policy statements issued by the Sentencing Commission.” In deciding the motion, the statute directs, the court must “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”

As is usually the case, the devil’s in the details. Lack of definitive appeals court decisions on what the subsection requires a district court to do has led to dreadfully inconsistent results, with conditions that were extraordinary and compelling to one judge are ho-hum to another. Some judges hold that the outdated Sentencing Commission guidance (it has not been changed to account for the First Step Act, because the Sentencing Commission has lacked a quorum since December 2018) must be followed, regardless of the nonsensical result such guidance dictates. And while many judges provide detail in opinions denying sentence reduction motion, others reject them with one-sentence orders that rob appeal courts of the ability to figure out the basis for the denial.

Finally, we are beginning to get appellate guidance on how district courts should decide 18 USC § 3582(c)(1)(A) petitions. In late September, the 2nd Circuit handed down United States v. Brooker, holding that the limitations of Sentencing Guideline 1B1.13 simply do not apply to sentence reduction motions brought by prisoners rather than the BOP. Last Friday, the 6th and 7th Circuits added materially to the body of law guiding decision-making on sentence reduction motions.

The 7th Circuit decision was a simple one. Tequila Gunn moved for compassionate release, arguing that because her medical condition made her more susceptible to the coronavirus, her sentence should be reduced to time served. The district court denied the motion, because the BOP Director had not determined her condition to be an “extraordinary and compelling” reason for sentence reduction, as required by USSG § 1B1.13.

This was the conundrum: 18 USC § 3582(c)(1)(A) only permits sentence reductions “consistent with applicable policy statements issued by the Sentencing Commission,” and that statement requires that the “extraordinary and compelling” reasons have to be determined by the BOP and no one else. That requirement is still in the Guidelines, the Circuit said, “because the Sentencing Commission has not updated its policy statements to implement the First Step Act. (It can’t, because it lacks a quorum.)”

The 2nd Circuit solved that problem two months ago in Brooker, ruling that § 1B1.13 simply does not and cannot apply to a sentence reduction motion filed by someone other than the BOP Director. The statute says a sentence reduction must be “consistent with” all “applicable” policy statements. The 7th notes that any decision is “‘consistent with’ a nonexistent policy statement. ‘Consistent with’ differs from ‘authorized by’.” Therefore, judges are free to define for themselves what constitutes an “extraordinary and compelling” reason for reduction.

Meanwhile, the 6th Circuit issued a decision last Friday that is comprehensive in its instruction. Not only does the decision follow Brooker – holding that “the passage of the First Step Act rendered 1B1.13 ‘inapplicable’ to cases where an imprisoned person files a motion for compassionate release” – it provides a template for deciding such cases and outlines the detail expected of judges in sentence reduction decisions.

The 6th held that “compassionate release hearings are sentence-modification proceedings that must follow a Dillon-style test. At step one, a court must find whether “extraordinary and compelling reasons warrant” a sentence reduction… At step two, a court must find whether “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)[(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case.”

Finally, the 6th made clear that judges ruling on sentence reduction motions must “write more extensively in § 3582(c)(1)(A) decisions where the record bears little indication that the district judge considered all the defendant’s evidence and arguments before granting or denying compassionate release,” the Circuit said. “Absent thorough record evidence of the judge’s factual decisions, district courts should not issue single-sentence or otherwise exceedingly slim compassionate release decisions or cite § 1B1.13 or the § 3553(a) factors without any analysis of their requirements,” the appellate court said. “But as long as the record as a whole demonstrates that the pertinent factors were taken into account by the district court… a district judge need not specifically articulate” its analysis of every single 3553(a) factor. Again, we look at what the judge stated about the 3553(a) factors in both the initial sentencing and the sentencing-modification proceedings when determining whether the judge satisfied her obligation to explain.”

The 7th Circuit Gunn decision is welcome for its concurrence with Brooker. The 6th Circuit Jones decision is even better, the most comprehensive opinion on application of the sentence reduction statute to date,

United States v. Jones, Case No 20-3701, 2020 US App. LEXIS 36620 (6th Cir. November 20, 2020)

United States v. Gunn, Case No 20-1959, 2020 US App. LEXIS 36612 (7th Cir. November 20, 2020)