Tag Archives: 3553 sentencing factors

‘Everything Depends on Your Reasons’ For Compassionate Release, 10th Circuit Says – Update for April 17, 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.

10TH CIRCUIT SAYS ‘EXTRAORDINARY AND COMPELLING REASONS’ APPLY TO SENTENCING FACTORS, TOO

compassion160124As a procedure, compassionate release is still fairly new. Courts have only had to develop the standards for judging what constitutes an extraordinary and compelling reason for a sentence reduction and what 18 USC § 3582(c)(1)(A)’s squishy directive that a court “consider[]the factors set forth in section 3553(a) to the extent that they are applicable” means in the last five years.

A compassionate release motion must begin with the concession that the sentence was “sufficient but not greater than necessary” and thus complied with 18 USC § 3553(a) when it was imposed. But as 4th Circuit Chief Judge Roger Gregory persuasively argued in United States v. Kibble three years ago, if “a district court’s original 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 USC 3582(c)(1) would, in effect, be a nullity.”

In other words, a prisoner’s reasons for a sentence reduction are relevant to the 3553(a) factor analysis as well as to the “extraordinary and compelling” standard.

The 10th Circuit reminded us of that last week. Jason Bradley filed for compassionate release, arguing that his kids needed a caregiver. The district court turned him down on § 3553(a) factors because Jason’s lengthy record didn’t convince the judge that Eddie would not commit new crimes.

On appeal, Jason complained the district court “analyz[ed] the § 3553(a) factors as frozen at the time of the 2015 sentencing” and “did not consider the significant mitigation” since the original sentencing, such as age, more than eight years of sobriety and exemplary conduct in prison. He acknowledged that the court did not need to make a finding on extraordinary and compelling reasons in order to deny a compassionate release, but by “failing to consider the facts supporting extraordinary and compelling reasons for release’ within its 3553(a) analysis… the district court committed legal error.

compassion240416

The 10th agreed with Jason: a district court may dispose of a motion for compassionate release at any of the three statutory steps – lack of extraordinary and compelling reason, noncompliance with applicable Sentencing Commission policy, or inconsistency with § 3553(a) sentencing factors. However, the Circuit held that “the facts allegedly establishing extraordinary and compelling reasons for release are relevant to the § 3553(a) analysis” and thus, a district court cannot “deny compassionate-release relief on the ground that release is not appropriate under 3553(a) if the court has not considered the… extraordinary and compelling reasons for release.”

Jason still lost because he had not properly preserved his argument. But the 10th’s analysis is important guidance for anyone writing a compassionate release motion. Be sure to explain why the extraordinary and compelling reasons for release impact the § 3553(a) analysis, or, basically, “Why does a sentence that made sense then not make sense now?”

United States v. Bradley, Case No 23-1223, 2024 U.S.App. LEXIS 8367 (10th Cir, April 8, 2024)

– 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

Sentencing Commission To Take Measure of BOP – Update for August 29, 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.

“HOW ARE WE DOING? PLEASE TAKE THE FOLLOWING SURVEY…

It’s unlikely that the Federal Bureau of Prisons will be asking prisoners that question anytime soon. But someone might.

howwedoing230829At last week’s meeting, the U.S. Sentencing Commission said that in the coming year, it plans to assess how effective the BOP is in meeting the purposes of sentencing listed in 18 USC § 3553(a)(2). Those purposes include the need for the sentence to reflect the seriousness of the offense, to promote respect for the law, to provide just punishment and adequate deterrence, to protect the public and to effectively provide the defendant with needed training, medical care, or other treatment.

The Commission also plans to continue review of how the guidelines treat acquitted conduct for sentencing purposes. The Supreme Court recently denied review in a baker’s-dozen cases asking it to declare the use of acquitted conduct at sentencing to be unconstitutional. Three Justices cited the ongoing USSC study of the issue as a reason to hold off.

Other Commission priorities in the coming year include studying the career offender guidelines, methamphetamine offenses, sentencing differences for cases disposed of through trial versus plea, and sentences involving youthful individuals.

badfood230829Speaking of prisoner satisfaction, inmates should not expect any help if they are unhappy with the chow. Two weeks ago, the 10th Circuit ruled that an inmate claim that the BOP was tampering with the food it served him – in violation of the 8th Amendment’s ban on cruel and unusual punishment – presented a new application of Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The Circuit said that the existence of alternative remedies (the BOP’s administrative remedy route, no doubt) made a Bivens claim unavailable to the prisoner under last year’s Supreme Court decision in Egbert v. Boule.

Egbert drove a metaphorical legal stake into Bivens‘ heart, as the 10th’s decision in the prisoner food case makes clear. It’s easy enough to cluck one’s tongue over Prisoner Adams’ tainted food claim (like any prison food is edible), but a lot of serious Bivens claims died on Egbert’s hill.

US Sentencing Commission, Final Priorities for Amendment Cycle (August 24, 2023)

Adams v. Martinez, Case No 22-1425, 2023 U.S. App. LEXIS 21369 (10th Cir, August 16, 2023)

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971)

Egbert v Boule, 142 S.Ct. 1793, 213 L.Ed.2d 54 (2022)

– Thomas L. Root

Sentence Reduction Decisions Can’t ‘Phone It In’ – Update for October 20, 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.

COMPASSIONATE RELEASE AND SEC 404 DENIALS CANNOT BE ROTE

Since prisoners have been permitted to file motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – generally known as “compassionate release” – and motions for application of the Fair Sentencing Act of 2010 under § 404 of the First Step Act, we have seen district court denials that seemed pretty summary and “cookie cutter.”

cookiecutter221020To be sure, courts have had to deal with thousands of such motions, and undoubtedly the judges detail review and preparation to their junior-most clerks. But I am reminded of a surgical procedure I had a few years ago. The surgeon dismissed my concerns with a breezy “don’t worry – yours will be my 1,500th one of these.” I responded, “Maybe so, but will be my first.”

Compassionate release and § 404 motions are like that. Joe Prisoner’s motion may be the hundredth one the court has decided, but for Joe, it’s his first.

Decisions from the 4th and 7th Circuit a week ago delivered a stark reminder to district judges that denials of such motions should give due consideration to the movant’s arguments and evidence – not necessarily to accept them –but at least to note what the prisoner said and to explain why that argument is insufficient to carry the day.

Jon Singleton, having done 14 years already for a meth conspiracy, sought compassionate release because of COVID. Jon’s district court found that he had not shown an extraordinary and compelling reason for release because he had twice refused the vaccine. The thinking is that anyone who refuses the vaccine can hardly be sincerely worried about the effects of COVID-19.  If that weren’t enough, the district court said, the seriousness of Jon’s offense one and a half decades ago made the original sentence correct.

On appeal Jon complained said the district court had it wrong. He had refused the vaccine only once, and that time he did so only because he had a history of allergic reactions to vaccines and “was denied the ability to consult with a medical professional prior to vaccination.”

mywayor221020This was hardly a novel complaint: Dr. Homer Venters, a court-appointed epidemiologist who inspected FCI Lompoc for an ACLU class-action lawsuit against the BOP over COVID, lambasted the BOP over a year ago for the agency’s “take it or take a hike” approach to administering the COVID vax. Venters told the Central District of California District Court that he was “extremely concerned” about low inmate vaccinating rates, which he attributed to prison staff not addressing inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions. Rather than address inmate questions, Venters testified, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.”

Two weeks ago, the 4th Circuit sided with Jon. “Initially,” the Court said, “the district court erroneously stated that Singleton refused the vaccine twice; the record reveals that he refused the vaccine only once. Moreover, the district court failed to consider Singleton’s argument that he refused the vaccine because he had a history of a severe allergic reaction to the influenza vaccine and other medications and was denied the ability to consult with a medical professional prior to vaccination. Because the district court made a factual error and failed to consider Singleton’s individual circumstances, we conclude that the court abused its discretion…”

Jon also complained the district court failed to consider (1) his rehabilitation evidence; (2) his argument that a “time served” would constitute just punishment; (3) his low recidivism score; and (4) that due to a change in state law, one of his prior drug felonies was reduced to a misdemeanor, which would have reduced his criminal history category. The Circuit agreed: “Given the amount of time Singleton spent in prison before filing his motion and the fact that the district court did not acknowledge any of his many arguments that relied on post-sentencing conduct and circumstances, we conclude that the district court abused its discretion in considering the § 3553 factors.”

Jamell Newbern was convicted of crack distribution in 2005. Because he had two qualifying prior convictions, he was sentenced as a Guidelines career offender. At the time, the district judge said he would have sentenced Jamell to the same term even if he had not been a career offender.

denied190109The District Judge had long since retired. Since 2005, one of Jamell’s two prior convictions (reckless discharge of a firearm) was held to not be a crime of violence. But the new judge on Jamell’s case reimposed the original 300-month sentence, adopting the retired judge’s position that 300 months was warranted whether or not Jamellwas a career offender or not. The new judge did not even address Jamell’s post-sentencing record.

Last week, the 7th Circuit agreed that the new judge’s adoption of the prior judge’s determination that Jamell’s conduct warranted a 300-month sentence regardless of his status as a career offender.

“But,” the 7th said, “we see things differently when it comes to the district court’s failure to respond to Newburn’s argument for relief based on his good behavior in prison. Concepcion expressly established that conduct in prison—good or bad—can be properly considered in a First Step Act motion. Newburn meaningfully emphasized his positive record in his motion. By no means was Newman making a throwaway point. To the contrary, he devoted about a full page of his motion to highlighting his clean disciplinary record, employment in prison, completion of a drug-education course, and earning a GED. Concepcion v. United States does not require a detailed explanation in response to these considerations, but we cannot be sure that the district court considered Newburn’s arguments when it provided no explanation at all.”

The Circuit said that in light of Concepcion, “it is clear that the district court’s failure to address Newburn’s good-conduct argument rises to the level of procedural error.”

United States v. Singleton, Case No 21-6798, 2022 U.S.App. LEXIS 27943 (4th Cir., Oct. 6, 2022)

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20, 2021)

United States v. Newbern, Case No. 22-1244, 2022 U.S.App. LEXIS 28348 (7th Cir., Oct. 12, 2022)

– Thomas L. Root

Disparity Makes ‘Extraordinary and Compelling” Finding Unnecessary – Update for December 31, 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.

LEAVING SO SOON?

release161117Jayvon Keitt was charged with a drug conspiracy involving 280 grams of crack, but took a deal letting him plead to 28 grams instead. As a result his mandatory minimum fell to five years, although his Guidelines sentencing range remained 70-87 months. At sentencing, the judge varied downward to give Jayvon 60 months.

Naturally, Jayvon didn’t appeal, because the sentence couldn’t go any lower than it did. Instead, less than four months after the sentence was imposed, Jayvon filed a compassionate release motion under 18 USC § 3582(c)(1)(A)(1). Jayvon said his asthma raised his risks if he caught COVID, and thus was an extraordinary and compelling reason for sentence reduction. He argued that the “BOP’s restrictions to curb the spread of the coronavirus have led to harsh lockdowns, restrictions on movement between jails, and have all but eliminated educational and other program[m]ing opportunities,” making his ability to participate in drug treatment programs uncertain. For those reasons, Jayvon said, letting him out four months into a 60-month sentence would not offend the sentencing factors set out in 18 USC § 3553(a).

The district court denied Jayvon’s motion after considering those sentencing factors. The court held that Jayvon had sold a lot of drugs and had already gotten a real sentence break. First, the government agreed to cut the amount of drug involved in the case from 280 grams to 28 grams, dropping the mandatory minimum sentence in half (to five years). Then, the court sentenced him below his minimum Guideline range of 70 months. The district court concluded that letting him go after only four months would lead to a real sentencing disparity. The district court made no finding as to whether Brian’s health risks constituted “extraordinary and compelling circumstances.

releaseme211231Last week, the 2nd Circuit agreed that the district court had not abused its discretion in weighing the sentencing factors. As for Jayvon’s claim that the district court was obligated to make a finding on whether extraordinary and compelling circumstances justified his release, the Circuit said that “when a district court denies a defendant’s motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a) sentencing factors, it need not determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.”

United States v. Keitt, Case No 21-13-cr, 2021 U.S. App LEXIS 37888 (2d Cir., December 22, 2021)

– Thomas L. Root

Jayvon, We Hardly Knew Ye… – Update for December 28, 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.

LEAVING SO SOON?

justgothere211228Jayvon Keitt was charged with a drug conspiracy involving 280 grams of crack, but he took a deal letting him plead to 28 grams instead. As a result, his mandatory minimum fell from 10 to five years, although his Guidelines sentencing range remained 70-87 months. At sentencing, the judge varied downward to give Jayvon 60 months.

So far, a pretty good deal…

Naturally, Jayvon didn’t appeal, because the sentence couldn’t go any lower than it did, given the mandatory minimum.  However, less than four months into his sentence, Jayvon filed a compassionate release motion under 18 USC § 3582(c)(1)(A)(1), seeking immediate release. Jayvon said his asthma raised the risks he faced if he caught COVID in prison, and thus was an extraordinary and compelling reason for sentence reduction. He argued that the “BOP’s restrictions to curb the spread of the coronavirus have led to harsh lockdowns, restrictions on movement between jails, and have all but eliminated educational and other program[m]ing opportunities,” making his ability to participate in drug treatment programs uncertain.

The district court denied Jayvon’s motion after considering the 18 USC § 3553(a) sentencing factors, holding that he had sold a lot of drugs and had already gotten a real sentence break. The judge ruled that a sentence reduction would lead to a sentencing disparity (given the mandatory minimum Jayvon would be dodging). The district court made no finding as to whether Jayvon’s health risks constituted “extraordinary and compelling circumstances.”

break211228

Last week, the 2nd Circuit agreed that the district court had not abused its discretion in weighing the sentencing factors. As for Jayvon’s claim that the district court was obligated to make a finding on whether extraordinary and compelling circumstances justified his release, the Circuit said that “when a district court denies a defendant’s motion under § 3582(c)(1)(A) in sole reliance on the applicable § 3553(a) sentencing factors, it need not determine whether the defendant has shown extraordinary and compelling reasons that might (in other circumstances) justify a sentence reduction.”

United States v. Keitt, Case No 21-13-cr, 2021 U.S. App. LEXIS 37888 (2d Cir., December 22, 2021)

– Thomas L. Root

6th and 7th Circuits Pound Compassionate Release – Update for November 8, 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.

ROUGH WEEK FOR COMPASSIONATE RELEASE

A trio of cases last week suggest that at least two other federal circuits are joining the 11th in taking a dismissive view of compassionate release for COVID reasons.

ratchet211108Rachel Effect: About 22 years ago, John Bass – who ran a substantial drug-trafficking organization in Michigan for about a decade – began serving two concurrent life-without-parole sentences for murdering a hitman whom John had hired to kill his half-brother.

Yes, there is a certain amount of irony in murdering a hitman, even one you hired to hit someone else, but we’ll save that for another time.

In 2020, John filed a motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – commonly called a motion for compassionate release – due to his frail medical condition and susceptibility to COVID. The district court granted his motion in January 2021, but John only enjoyed a few weeks of freedom before the government convinced the 6th Circuit to stay John’s release, sending John back to prison.

Last week, the Circuit held the district court abused its discretion is letting John out, and reversed the release permanently.

In its 2-1 decision, the 6th Circuit focused almost exclusively on the seriousness of John’s crime, disagreeing with the district court that 22 years in prison was “sufficient, but not greater than necessary to fulfill the purposes of his punishment.” The Circuit held that the crimes “were so severe that the Government sought the death penalty, and Bass’s own defense counsel assured the jury that Bass would never leave prison in an effort to avoid imposition of the death penalty.”

violent160620The district court justified its decision to release John by repeatedly emphasizing his rehabilitation and education. But, the 6th wrote, the district court “failed to square this lengthy rehabilitation analysis with the fact that Bass’s original sentence was life imprisonment without the possibility of release… In deciding Bass’s original sentence, the jury and the district court had already considered and rejected the possibility that he could be rehabilitated, or that his capacity for rehabilitation warranted the potential for an early release. This is not to say that compassionate release is never available for a defendant sentenced to life imprisonment without the possibility of release. We assume that there are circumstances that would warrant compassionate release for a defendant so sentenced. But the nature of Bass’s life sentence calls into question the district court’s decision to afford substantial weight to his efforts at rehabilitation after only 22 years in prison.”

The decision includes an interesting discussion of sentence disparity. The district court had ruled John’s sentence was too long compared to a co-conspirator who was sentenced in a state court for his crimes. The Circuit disagreed, holding that although “district courts may consider disparities among codefendants, the only disparities relevant are those among federal defendants on a national scale… By considering state court sentences, a district court actually is re-injecting the locality disparity that the Sentencing Reform Act of 1984 was designed to guard against.”

[Editor’s note]: The whole “disparity” argument comes down to (1) fairness to the defendant, and (2) perception of the public. A defendant figures 10 years is 10 years, or life is life, whether it’s served in a federal prison or a state joint. Likewise for the public, there’s no difference in where the sentence is served: if one guy gets five years in state while another gets 20 in a federal prison, the public sees a disparity that tends to cause disrespect and lack of confidence in the judicial system. But implicit in the 6th Circuit holding is that the public understands and appreciates the nuances in the system, the “separate sovereigns” and all that claptrap.]

double211108I don’t usually mention dissents, but Judge Helene White wrote a notable one in this 2-1 case. She quite rightly suggested the majority was applying a different standard because it was the government appealing a compassionate release decision favorable to the defendant, instead of the usual disappointed prisoner appealing the district court’s siding with the government. Judge White admits that if she had been the district judge, she would not have granted John’s motion. “However,” she said, “the district court adequately explained its decision and did not abuse its discretion in concluding otherwise. We must apply the same rules on review without regard to whether the government or the inmate is aggrieved by the district court’s decision… We require district courts to provide only the most minimal explanation, and we must defer to their judgment in weighing the § 3553(a) factors and not substitute our own…”

It looks like a ratchet: if the district court denies a compassionate release motion, it has almost untrammeled discretion. If, however, it grants one, the circuit court will examine its decision with a magnifying glass and gimlet eye.

COVID Isn’t the Only Thing the Vaccine Prevents: In two other cases last week, the 6th and 7th Circuits held that a vaccinated inmate is disqualified from receiving a COVID-19 compassionate release. The 6th flatly held that “a defendant’s incarceration during the COVID-19 pandemic – when the defendant has access to the COVID-19 vaccine – does not present an extraordinary and compelling reason warranting a sentence reduction… The COVID-19 vaccine is available to inmates at Traylor’s facility, and Traylor has received both doses of the Pfizer vaccine.”

Vaccinesticker211005The 7th Circuit also slammed the door on COVID-19 compassionate release, holding that “unless a prisoner can show they [sic] are unable to receive or benefit from a vaccine… the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release… Because the prisoner is vaccinated, he is ineligible for relief on remand.”

The fly in the ointment – as the death of General Colin Powell illustrates and the data all support – is that vaccine efficacy fades over time. No one knows for how long that time is, but the CDC has already recommended boosters, which could be. At the same time, vaccine effectiveness varies according to a person’s condition, with studies showing that it is less effective in obese people. With a new COVID delta subvariant just identified in the UK, not to mention the increasing occurrence of “breakthrough” infections among the vaccinated, the appellate courts may discover that the effects of the coronavirus is quite resistant to the “one-size-fits-all” vaccine approach.

United States v. Bass, Case No. 21-1094, 2021 U.S. App. LEXIS 32738 (6th Cir., Nov 3, 2021)

United States v. Traylor, Case No. 21-1565, 2021 U.S. App. LEXIS 32493 (6th Cir., Nov 1, 2021)

United States v. Kurzynowski, Case No. 20-3491, 2021 U.S. App. LEXIS 32966 (7th Cir., Nov 5, 2021)

National Geographic, An Offshoot of the Delta Variant is Rising in the UK (November 2, 2021)

The Wall Street Journal, Rising Covid-19 Breakthrough Cases Hinder Efforts to Control Virus (November 6, 2021)

– Thomas L. Root

10th Circuit Greenlights Compassionate Release for Over-Long Sentences – Update for April 5, 2021

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PEELING THE COMPASSIONATE RELEASE ONION

peelingOnion210405A trio of appellate decisions last week – two from the 10th and one from the 4th – continue to peel away the uncertainty from the scope of 18 USC § 3582(c)(1)(A)(i) sentence reduction and the factors relevant to whether a reduction will be granted or denied.

You recall that 18 USC § 3582(c)(1)(A)(i) permits the district court that sentenced a defendant to reduce the sentence at any time if the defendant can show “extraordinary and compelling” reasons for doing so, if the reduction is consistent with Sentencing Commission policy statements, and if the reduction is not too much of an affront to the factors listed in 18 USC § 3553(a) that a court is to consider at sentencing.

First, the 10th Circuit joined the 4th in holding that district courts are entitled to broadly interpret “extraordinary and compelling” reasons for granting compassionate release. In two decisions, the 10th reversed district court holdings that the fact Congress had not made First Step Act drug and § 924(c) sentencing changes retroactive does not mean that those changes cannot figure in a compassionate release motion.

Malcom McGee was sentenced to mandatory life back in 2000 for a drug trafficking offense, the stratospheric minimum sentence because he had prior state convictions for drug use and sale. Section 401 of the First Step Act cut the mandatory life minimum in 21 USC § 841(b)(1)(A) to 25 years, but Congress decided against making the change retroactive (a sop Senate Majority Mitch McConnell (R-Kentucky) threw Sens Ted Cruz (R-Texas), Tom Cotton (R-Klingon Empire) and their fellow troglodytes who thought there was nothing wrong with forcing someone sentenced on December 20, 2018, to get life while someone being sentenced two days later to get 25 years).

klingons210405Because First Step did not make the mandatory minimum change retroactive, Malcom found himself in the middle: Congress didn’t cut him a break, and the district court said it could not use compassionate release to grant him a sentence reduction because of Congress’s refusal to apply retroactivity.

The 10th Circuit disagreed:

“The plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) or any other part of the First Step Act indicates that Congress intended to prohibit district courts, on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants…The possibility of a district court finding the existence of “extraordinary and compelling reasons” based, in part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”

Two days later, the 10th Circuit shut down government arguments in another compassionate release case. Kepa Maumau was convicted of three stacked § 924(c) convictions, receiving a 55-year sentence. The district court granted him compassionate release based on the First Step Act’s change of § 924(c) which was to not impose the 25-year sentence for a subsequent § 924(c) conviction unless the defendant had already been convicted of a prior one. The court also considered Kepa’s youth at the time he committed the crimes and his rehabilitation in prison.

But Kepa stayed in prison because the government appealed, arguing that the U.S. Sentencing Commission alone, not the courts, has power to determine what constitutes an extraordinary and compelling reason for compassionate release. What’s more, the government complained, a district court has no authority to grant compassionate release based on its disagreement with the length of a mandatory sentence.

Sentencestack170404The Circuit bluntly rejected these arguments, holding that the government’s “underlying premise is incorrect. Nothing in the district court’s decision indicates that the district court granted relief to Maumau based upon its general disagreement with the mandatory sentences that are required to be imposed in connection with § 924(c) convictions. Nor was the district court’s decision based solely upon its disagreement with the length of Maumau’s sentence in particular. Rather, the district court’s decision indicates that its finding of “extraordinary and compelling reasons” was based on its individualized review of all the circumstances of Maumau’s case and its conclusion “that a combination of factors” warranted relief, including: “Maumau’s young age at the time of” sentencing; the “incredible” length of his stacked mandatory sentences under § 924(c); the First Step Act’s elimination of sentence-stacking under § 924(c); and the fact that Maumau, “if sentenced today… would not be subject to such a long term of imprisonment.”

Kepa went home last Friday.

Finally, the 4th Circuit handed Ryan Kibble a loss, but in an opinion interesting for its concurring opinion discussing § 3553 factors. Ryan was locked up at FCI Elkton, a notorious BOP COVID-19 hotbed, for 87 months after a conviction for soliciting sex from a female cop (whom Ryan thought was a 14-year old girl).

One of the sentencing factors set out in § 3553(a) is that the sentence be “just punishment” for the offense. District courts have grappled with § 3582(c)(1)(A)’s directive that they “consider[]” the § 3553(a) factors, and more than one has said it already applied the factors at sentencing, and it would stand on its previous position.

lockdowncovid210405But “[s]ection 3582(c)(1) necessarily envisions that the § 3553(a) factors may balance differently upon a motion for compassionate release than they did at the initial sentencing,” Chief Judge Roger Gregory wrote in his concurrence. “An individual requesting compassionate release will, in all cases, be serving a sentence that a district court once held was ‘sufficient but not greater than necessary’. If a district court’s original § 3553(a) analysis could always prove that a sentence reduction would intolerably undermine the 3553(a) factors, then 18 U.S.C. § 3582(c)(1) would, in effect, be a nullity. There is good reason to believe that, in some cases, a sentence that was “sufficient but not greater than necessary” before the coronavirus pandemic may no longer meet that criteria. A day in prison under the current conditions is a qualitatively different type of punishment than one day in prison used to be. In these times, drastically different. Some facilities house inmates who now serve their sentences knowing that they are not equipped to guard against a virus that may result in serious illness or death. Other facilities keep COVID-19 at bay by placing inmates in solitary confinement, ending prison programs, restricting visitation, and limiting access to nonessential medical care… These conditions, not contemplated by the original sentencing court, undoubtedly increase a prison sentence’s punitive effect.”

United States v. McGee, Case No. 20-5047, 2021 U.S. App. LEXIS 9074 (10th Cir. March 29, 2021)

United States v. Maumau, Case No 20-4056, 2021 U.S. App. LEXIS 9510 (10th Cir.  April 1, 2021)

United States v. Kibble, Case No 20-7009, 2021 U.S. App. LEXIS 9530 (4th Cir.  April 1, 2021)

– Thomas L. Root

When It Comes to Compassionate Release, § 3553 Matters – Update for July 27, 2020

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3RD CIRCUIT SAYS § 3553 MATTERS IN COMPASSIONATE RELEASE

compassionlimit200727Before The First Step Act passed in December 2018, only the Federal Bureau of Prisons could file a motion on behalf of an inmate seeking a “compassionate release” sentence reduction under 18 USC § 3582(c)(1)(A). Disgusted with the BOP’s chariness on seeking releases for sick or dying inmates, Congress included a provision in First Step authorizing prisoners to seek compassionate release directly, after asking the BOP to do so and then waiting 30 days while the BOP either refused or dithered.

Even after First Step passed, compassionate release was not widely used, with something like only about 150 decisions between First Step’s passage and the COVID-19 pandemic. But since the virus, compassionate release has been a fast-growing area of the law. LEXIS records over 2,750 decisions involving COVID-19 and compassionate release. And as of last week, the BOP says that 916 compassionate release sentence reductions have been granted.

Because compassionate release filed by movants other than the government is fairly new, there is very little appellate court interpretation of the statute. The 3rd Circuit, which gave us a terrible decision on exhaustion of remedies under 18 USC § 3582(c)(1)(A) 16 weeks ago in United States v. Raia, last week handed down a more reasoned decision on application of 18 USC § 3553(a) sentencing factors in compassionate release cases.

To earn a compassionate release sentence reduction, a defendant has to make three showings: First, that the reasons for the reduction are “extraordinary and compelling;” second, that the defendant is not a danger to the community; and third, that grant of a sentence reduction is consistent with the sentencing factors in 18 USC § 3553(a). That statute, of course, addresses the considerations a district court should include in making sentencing decisions.

corruption200727Edwin Pawlowski had been mayor of Allentown, Pennsylvania, before the feds convicted him for bribery and other political crimes resulting from his shaking down city contractors (a Pennsylvania political sport, if reports from Philadelphia over the past half a century are any guide). He got 180 months, and has served 19 months so far.

Ed filed a motion with his sentencing court for compassionate release, arguing that he suffers from hypertension, heart disease, COPD, dyspnea, and sleep apnea. All of this is exacerbated by his only having one lung. Ed argued these conditions place him at a higher risk of serious illness from COVID-19 if he catches it, and noted that he is locked up in an FCI that has been badly affected by COVID-19.

The court agreed that all that was true, and that these reasons were extraordinary and compelling bases for compassionate release. However, the district court ruled that the § 3553(a) sentencing factors did not weigh in favor of release, as Ed had served just 10% or so of his 15-year sentence.

In late June, the 3rd Circuit upheld the district court in a non-precedential opinion. Last week, it amended that opinion and made it binding precedent.

The Circuit held that the district court “reasonably concluded that several of the § 3553(a) factors – including the need to reflect the seriousness of the offense, promote respect for the law, and afford adequate deterrence – counsel against compassionate release, as that relief would effectively reduce Pawlowski’s sentence from 15 years to less than two years’ imprisonment. We have not previously considered whether a district court abuses its discretion by denying a motion for compassionate release based on the amount of time remaining to be served in the inmate’s sentence. But numerous district courts have taken this into account in considering whether to grant compassionate release… And at least one of our sister circuits has approved that consideration…”

allentown200727The Circuit reasoned that “because a defendant’s sentence reflects the sentencing judge’s view of the § 3553(a) factors at the time of sentencing, the time remaining in that sentence may — along with the circumstances underlying the motion for compassionate release and the need to avoid unwarranted disparities among similarly situated inmates — inform whether immediate release would be consistent with those factors. Hence we cannot conclude that the district court acted unreasonably in determining that the substantial sentencing reduction required for granting compassionate release here… would be inconsistent with the § 3553(a) factors.”

Here, Ed’s original sentence was within the Guidelines. The district court found that Ed’s crimes “were extraordinarily serious, involving abuse of a position of public trust,” and that these crimes required “a significant period of incarceration.” The district court also found that cutting Ed’s “sentence to time served would result in his serving less time than… his former campaign manager and coconspirator, who pleaded guilty and was sentenced to 60 months.”

Sentencing Law and Policy, Back by popular demand, another VERY long list of federal sentence reductions using § 3582(c)(1)(A) (July 19, 2020)

United States v. Pawlowski, 2020 U.S. App. LEXIS 23431 (3rd Cir., July 24, 2020)

– Thomas L. Root

A Double Shot: Supreme Court Giveth and Taketh Away – Update for June 5, 2018

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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. 

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SUPREMES TACKLE FEDERAL SENTENCING ISSUES, THEN BAKE A CAKE

supremecake180605The big news from the Supreme Court yesterday was its masterful dodge-and-weave on whether a Christian baker had to bake a wedding cake for a gay couple in violation of his religious beliefs that gay marriage was morally wrong. The long-awaited opinion, in which the 7-2 Court did not decide the issue but rather concluded that the Colorado state commission that had dinged the baker did so in the wrong way, is covered elsewhere in much more detail than here.

Of interest to us were a pair of decisions, Hughes v. United States and Koons v. United States, with very different issues springing from a common core. We’ll start with Hughes:

CLEARING UP FREEMAN

A number of federal defendants enter into Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreements, in which the parties agree to a specific sentence. The district court may accept the deal, in which case the defendant gets the specific sentence he or she bargained for, or it can reject it. If the court rejects the sentence, the whole plea agreement is rejected, and the parties go forward as if there is no deal at all.

These “Type-C” agreements were good for defendants, who did not want to sign a plea agreement that would let the court run wild with whatever sentence it wanted to impose. But then, in 2007, the United States Sentencing Commission started adjusting the drug table downward, and making the changes retroactive. Suddenly, the people with Type-C agreements were shut out of sentence reductions, because their sentences were set pursuant to an agreement, not the Guidelines.

dividedcourt180605The issue came to the Supreme Court in the 2011 case of Freeman v. United States. The Supreme Court split so badly, with four in the majority, four in the minority and one – Justice Sotomayor – writing a concurring opinion, that no single interpretation or rationale was clear. Some courts of adopted Justice Sotomayor’s reasoning, while others adopted the plurality’s reasoning.

Yesterday, the Supreme Court cleared up the confusion, and in so doing, opened the door to Type-C agreements getting the benefits of 2-level reductions in 2007, 2011 and 2014. A sentence reduction under 18 USC 3582(c)(2) is permissible if the original sentence was “based on” the Guidelines. The Supreme Court held that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.

A district court imposes a sentence that is “based on” a Guidelines range for purposes of Sec. 3582(c)(2) if the range was a basis for the court’s exercise of discretion in imposing a sentence. “Given the standard legal definition of ‘base’,” the Court said today, “there will be no question in the typical case that the defendant’s Guidelines range was a basis for his sentence. A district court is required to calculate and consider a defendant’s Guidelines range in every case under 18 USC 3553(a). Indeed, the Guidelines are “the starting point for every sentencing calculation in the federal system.” Thus, the Court ruled, “in general, Sec. 3582(c)(2) allows district courts to reconsider a prisoner’s sentence based on a new starting point — that is, a lower Guidelines range — and determine whether a reduction is appropriate.

sentence170511The Government and the defendant may agree to a specific sentence in a Type-C agreement, but the Sentencing Guidelines prohibit district courts from accepting Type-C agreements without first evaluating the recommended sentence in light of the defendant’s Guidelines range. So in the usual case the court’s acceptance of a Type-C agreement and the sentence to be imposed pursuant to that agreement are “based on” the defendant’s Guidelines range.

The Court said its interpretation furthers the purposes of the Sentencing Reform Act, and confirms prior holdings in Molina-Martinez v. United States and Peugh v. United States that the Guidelines remain a basis for almost all federal sentences.

Thus, the Court said, petitioner Erik Hughes is eligible for relief under Sec. 3582(c)(2). The District Court accepted his Type-C agreement after concluding that a 180-month sentence was consistent with the Guidelines, and then calculated Hughes’ sentencing range and imposed a sentence it deemed “compatible” with the Guidelines. The sentencing range was thus a basis for the sentence imposed. And because that range has since been lowered by the Commission, the district court has the discretion to decide whether to reduce Hughes’ sentence after considering the 18 USC 3553(a) sentencing factors and the Sentencing Commission’s relevant policy statements.

WYSIWYG

The Court was unanimous and brief in Koons v. United States.

wysiwyg180605There is an interplay between statutory mandatory minimum sentences and Guidelines. We see it often. A defendant has an advisory Guideline range of 33-41 months for a drug offense, but because she was charged with trafficking in 30 grams of cocaine base, a mandatory minimum sentence of 60 months is prescribed by 21 USC 841(b)(1)(B)(iii). The Guidelines specify that when a statutory minimum sentence is higher than the top end of the advisory Guidelines range, the advisory Guidelines range is considered to be a minimum and maximum of 60 months.

When a defendant is saddled with a mandatory minimum sentence, there is nothing that will trump the minimum other than cooperation with the government (or in rare cases, a “safety valve” sentence under 18 USC 3553(f)). That’s a principal reason that everyone cooperates: it’s one thing to declare oneself a “stand up” guy who won’t rant out co-conspirators over a couple of beers with buddies, but it’s another thing entirely to serve 20 years in a beerless federal prison while those same friends are at home quaffing brews.

nobeer180605Under 18 USC 3582(c)(2), a defendant is eligible for a sentence reduction if she was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission. The five defendants in Koons claimed to be eligible for a reduced sentence in the wake of the Sentencing Commission’s 2014 reduction of the drug quantity tables. The defendants were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, because they “substantially assisted” the Government in prosecuting other drug offenders within the meaning of 18 USC 3553(e).

The Supreme Court held that the defendants’ sentences were “based on” the statutory mandatory minimum and on their substantial assistance to the Government, not on sentencing ranges that the Sentencing Commission later lowered. In other words, what you see is what you get – no pretending that the beneficial sentence for helping out ol’ Uncle Sugar was based on the Sentencing Guidelines rather than on you saving your own skin.  

Therefore, the Koons defendants were ineligible for Sec. 3582(c)(2) sentence reductions. 

Hughes v. United States, Case No. 17-155 (Supreme Court, June 4, 2018)

Koons v. United States, Case No. 17-5716 (Supreme Court, June 4, 2018)

– Thomas L. Root

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