Tag Archives: 3582(c)(1)

Mountains of Evidence Trumps Molehills Every Time – Update for January 18, 2024

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.

MORE IS BETTER

By now, everyone knows that for a federal prisoner to win a sentence reduction motion under 18 USC § 3582(c)(1)(A) – known to all by the misleading but convenient shorthand “compassionate release” – he or she must show that extraordinary and compelling reasons exist for the motion (a list of what situations fit this bill may be found in the U.S. Sentencing Commission’s new § 1B1.13(b)) and that grant of the requested reduction is consistent – whatever that means – with the sentencing factors of 18 USC § 3553(a). Such factors include the history of the offense and the offender, the need for just punishment, protection of the public, deterrence, and other considerations.

founderingship240118Unsurprisingly, most federal prisoners seeking compassionate release focus on the “extraordinary and compelling reasons” standard, because it’s easier to quantify, and people generally like to focus more on the bad things currently happening to them than bad things they might have done in the past. Yet as many compassionate release motions founder on the shoals of § 3553(a) as ever die on the “extraordinary and compelling” hill.

While you sit back to drink in the beautiful symmetry of the prior paragraph’s mixed metaphor, consider the strange position that  “post-sentencing rehabilitative efforts” occupy in the compassionate release firmament. Post-sentencing rehabilitative efforts may not be the sole extraordinary and compelling reason for a sentence reduction, but they may be one of several. At the same time, post-sentencing rehabilitative efforts are relevant to the § 3553(a) sentencing factors: good behavior and completion of in-prison programming suggest that the prisoner will not pose a danger to the public and perhaps has already been justly punished so as to correct his or her errant ways.

So what kind of consideration must a district court give evidence of good conduct and programming? The 4th Circuit ruled almost five years ago in United States v. Martin that “where a movant presents substantial evidence of post-sentencing rehabilitative efforts, a district court must provide a more robust and detailed explanation in ruling on a motion for compassionate release.” Last week, the appellate court reminded everyone that for the Martin rule to apply, a movant should remember that more is better.

violent160620Historically, Angel Centeno-Morales had been anything but an angel. Before his current felon-in-possession conviction, he had been convicted of aggravated assault with a deadly weapon, burglary, battery, and several gun and drug offenses. In his current case, he sold meth and threatened people with his gun to discourage cooperation with law enforcement.

While he was locked up, Angel’s wife died of COVID, leaving their young son without a caregiver. He filed for compassionate release, arguing that the death of the primary caregiver for the minor child was an extraordinary and compelling reason for a compassionate release grant.

The district court agreed but denied the compassionate release motion nonetheless based on the § 3553(a) factors. The judge cited that Angel had distributed a lot of meth while on probation, used guns for intimidation and coercion, and had gotten two disciplinary infractions in his six years in prison. The district court held that Angel’s continued incarceration was “necessary to reflect the seriousness of his offenses, protect the public from further crimes, provide for just punishment, promote respect for the law, and provide deterrence.”

angels240118On appeal, Angel complained that the district court violated Martin by not providing enough detail supporting its denial, but the 4th Circuit disagreed. The Martin defendant presented “a mountain of new mitigating evidence that the sentencing court never evaluated,” the Circuit said. “What’s more, the movant in Martin was incarcerated for nearly two decades, became a respected tutor for other inmates, and exhibited such exemplary behavior that correctional staff moved her into a low-security facility.” But district courts must only “set forth enough to satisfy our court that it has considered the parties’ arguments and has a reasoned basis” for its decision. “The district court does not owe every movant for compassionate release a ‘robust and detailed’ explanation on every argument about post-sentencing rehabilitative efforts,” the 4th said.

Angel presented no “mountain” of mitigating evidence that he had become an angel. “He completed just a few vocational courses and received two disciplinary infractions while incarcerated. Importantly, he remains classified as a ‘medium’ security inmate. This is not the kind of exceptional post-sentencing evidence for which Martin would require a ‘robust and detailed’ explanation,” the Circuit held.

United States v. Centeno-Morales, Case No. 22-6607, 2024 U.S. App. LEXIS 310 (4th Cir. January 5, 2024)

United States v. Martin, 916 F.3d 389 (4th Cir. 2019)

– Thomas L. Root

Von Vader’s Back Raising Compassionate Release Issue at SCOTUS – Update for October 21, 2023

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.

CERT PETITION TAKES AIM AT COMPASSIONATE RELEASE CIRCUIT SPLIT

vader231020Last winter, I wrote about Wolfgang Von Vader, who had both a 2000 conviction in the Western District of Wisconsin for distributing meth (a “career offender” 270-month sentence) and a 2012 federal conviction in Kansas for possessing heroin in prison (a 120-month consecutive sentence).

Wolfgang applied for 18 USC § 3582(c)(1)(A) compassionate release in both Kansas and Wisconsin. The Wisconsin case, dismissed for lack of jurisdiction, was reversed by the 7th Circuit and remanded last winter. In the Kansas case, however, his compassionate release motion was denied outright.

Wolfgang’s case should have been resentenced because of Johnson v. United States and Mathis v. United States, but when a multi-agency task force reviewed cases of prisoners qualifying for a 28 USC § 2255 motion to get him the lower sentence, Wolfgang got skipped. It was an accident. As his petition for cert put it, “extraordinary and compelling” describes his circumstances.

oops170417The 10th Circuit, however, held that the district court could not consider the change in the law brought about by Johnson and Mathis in determining whether “extraordinary and compelling reasons” warranted a sentence reduction. Such reasons, the Circuit reasoned, are limited only to “new facts about an inmate’s health or family status, or an equivalent post-conviction development” and that any “legal contention” is categorically outside of § 3582(c)(1)(A)’s scope.

Wolfgang has filed for Supreme Court review, with his petition filed by a partner in the Supreme Court/appellate practice group at McDermott Will and Emery, a 1,400-lawyer global firm. In his petition, Wolfgang noted that the 10th’s holding is at odds with other circuits on an issue on which the 7th Circuit has specifically asked the Supremes to hear.

scotus161130The effectiveness of the amended Guideline 1B1.13 in a little less than two weeks will help a lot of people, but it will not resolve whether a judge can consider a change in the law that makes a prisoner innocent of the offense or, at least, the sentence. With the Supreme Court slamming the door on using 28 USC § 2241 petitions to address changes in statutory interpretation (Jones v. Hendrix last June), the Von Vader cert question is an important one to a lot of people.

Von Vader v. United States, Case No 23-354 (petition for certiorari filed September 29, 2023)

– Thomas L. Root

“Supreme Court – Meh,” 7th Circuit Says – Update for July 19, 2022

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.

‘CONCEPCION’? WHAT ‘CONCEPCION?’ 7TH CIRCUIT ASKS

When the Supreme Court handed down the Concepcion v. United States decision a few weeks ago, I thought that the holding – that district courts’ discretion to consider any relevant information in resentencing is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence – would resolve a circuit split surrounding what factors can serve as the basis for compassionate release.

Sentencestack170404I was especially focused on cases in which courts were asked to rely on non-retroactive changes in sentencing law – such as the First Step Act’s ban on § 924(c) “stacking” – as a basis for compassionate release. After all, nothing in the text of 18 USC § 3582(c)(1)(a) supports the notion that non-retroactive changes are excluded from being “extraordinary and compelling.”

Who could possibly disagree?

The 7th Circuit, maybe. Last week, that Circuit rejected reliance on non-retroactive changes in statute as a basis for compassionate release. Christopher King was serving a mandatory minimum sentence for drug distribution that had been lowered by the First Step Act. He argued the statutory change – while not retroactive – was an extraordinary and compelling reason for a sentence reduction.

extraordinary220719The 7th disagreed, holding that when deciding whether “extraordinary and compelling reasons” justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.” The Circuit ruled that “there’s nothing ‘extraordinary’ about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.”

The 7th observed that

Concepcion… held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing. We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But… the threshold question [is] whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)… The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

7thConcepcion220719Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman quite rightly complained, “[T]his new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering ‘non-retroactive statutory changes or new judicial decisions’ even though Concepcion stressed that the ‘only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution.”

Concepcion v. United States, Case No 20-1650 (Supreme Court, June 27, 2022)

United States v. King, Case No 21-3196, 2022 U.S.App. LEXIS 18987 (7th Cir., July 11, 2022) 

Sentencing Law and Policy, Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court’s Concepcion decision (July 11, 2022)

– Thomas L. Root

Disparity Makes ‘Extraordinary and Compelling” Finding Unnecessary – Update for December 31, 2021

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.

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

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.

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

‘What Might Have Been’ Part of § 3553(a) Analysis, 9th Circuit Says – Update for September 28, 2021

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.

A HOLDING OF CONSEQUENCE

A 9th Circuit decision handed down last Thursday appears arcane, but it is very consequential for current and future compassionate release and retroactive Guidelines reductions that will certainly be adopted in the future.

A decade ago, Jose Lizarraras-Chacon was convicted of heroin distribution. He entered into a Rule 11(c)(1)(C) plea agreement for 210 months. After the First Step Act passed, he filed for the 2014 Guidelines Amendment 782 two-level reduction under 18 USC § 3582(c)(2). Jose pointed out to the court that after First Step, his prior state drug conviction the government had used to enhance his sentence with a 21 USC § 851 notice no longer counted as a felony drug case.

criminalrecord2100928A § 3582(c)(2) motion requires a court to first consider whether a defendant’s sentencing range has gone down because of a retroactive Guidelines change. If it has, the court has to consider whether to reduce the sentence in light of the 18 USC § 3553(a) sentencing factors. Jose argued that the court should consider that fact he could no longer get enhanced under 21 USC § 851 if he were sentenced after First Step. The district court refused, saying it was not allowed to consider subsequent changes in the law when reaching a § 3582(c)(2) decision.

The 9th Circuit reversed, holding that a court’s discretionary decision under the § 3553(a) factors at step two of the § 3582(c)(2) inquiry “exceeds the limited scope of a resentencing adjustment applicable to step one.” While at step one, a district court may substitute only the new Guidelines amendments for the guideline provisions applied when the defendant was sentenced, “at step two, there are no similar limitations on what a district court may consider.”

“An underlying principle in federal judicial tradition is that the punishment should fit the offender and not merely the crime,” the Circuit held. “In seeking to ensure that the punishment fit the offender, the Supreme Court has explained that judges should use the fullest information possible concerning the defendant’s life and characteristics… It follows that in a § 3553(a) factor analysis, a district court must similarly use the fullest information possible concerning subsequent developments in the law, such as changes in sentencing guidelines, legislative changes to a mandatory minimum, and changes to a triggering predicate offense to ensure the punishment will fit the crime and critically, to ensure that the sentence imposed is also sufficient, but not greater than necessary to reflect the seriousness of the offense, promote respect for the law, and provide just punishment; to afford adequate deterrence; and to protect the public.”

The Court’s analysis should apply equally to § 3553(a) factors being considered for compassionate releases. The decision means that when arguing whether a sentence is “just punishment” or provides deterrence, the fact that the sentence originally opposed would be unlawful if handed down today should have a major impact on a district court’s reasoning.

United States v. Lizarraras-Chacon, Case No. 20-30001, 2021 U.S.App. LEXIS 28823 (9th Cir., September 23, 2021)

– Thomas L. Root

10th CIRCUIT DISRESPECTS ITS PRECEDENT ON COMPAssionate release – Update for August 12, 2021

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.

10TH CIRCUIT FLIPS UP ITS OWN 4-MONTH OLD COMPASSIONATE RELEASE PRECEDENT

flipflop170920It seems like only four months ago that the 10th Circuit ruled in United States v. Maumau and United States v. McGee that the plain language of the compassionate release statute (18 USC 3582(c)(1)(A)(i)) creates a three-step test: ”At step one . . . a district court must find whether extraordinary and compelling reasons warrant a sentence reduction… At step two . . . a district court must find whether such 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…”

Pretty straightforward, isn’t it? Maybe not. Last week, the 10th ruled in a case deciding three compassionate release cases that despite what Maumau and McGee said, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others.”

respect210812The Circuit now thinks that Maumau’s and McGee’s detailed discussion of a three-step test – “although we have no doubt that the statements in those opinions were carefully considered by the panels (and are therefore entitled to our respect)” – are nothing more than dicta. Some respect “The language of § 3582(c)(1)(A) certainly requires that relief be granted only if all three prerequisites are satisfied,” the 10th now thinks, “but it does not mandate a particular ordering of the three steps (much less the ordering Hald and Sands urge). Since it mentions step three first, the natural meaning could well be that the court is to first determine whether relief would be authorized by that step and then consider whether the other two steps are satisfied. We think it persuasive, if not binding, that our well-considered reading of the statutory language in McGee declared that the three steps could be considered in any order.”

To make matters more chaotic? The decision drops a footnote noting that “as of oral argument in May 2021, all three men had either been vaccinated or been offered the opportunity to be vaccinated against COVID-19. Although we do not consider this development in resolving their appeals, there is certainly room for doubt that Defendants’ present circumstances would support a finding of ‘extraordinary and compelling reasons’.”

United States v. Hald, Case No 20-3195, 2021 U.S.App. LEXIS 23451 (10th Cir. August 6, 2021)

– Thomas L. Root

Flip-Flops in Cincinnati – Update for June 10, 2021

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.

IF THIS IS MONDAY, ‘YES, YOU CAN…’ IF IT’S TUESDAY, ‘NO, YOU CAN’T’

Confusion reigns in the Queen City, nestled on the banks of the Ohio River (and home of the United States Court of Appeals for the Sixth Circuit, a few professional sports teams, and some pretty good brewskis).

Four weeks ago, I reported that the 6th Circuit had decided in United States v. Owens that despite two contrary Circuit decisions – United States v. Tomes and United States v. Wills – a prisoner with stacked 18 USC § 924 sentences could rely on First Step Act changes in 18 USC § 924 as one of several extraordinary and compelling reasons for a compassionate release sentence reduction.

flipflop170920But a week ago, a different 6th Circuit panel said despite Owens, the deal is off. In a 2-1 decision, the Court ruled that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” However, if movants have some other fact that is an extraordinary and compelling reason for a sentence reduction, “they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.”

Ohio State University law professor Doug Berman, writing in his Sentencing Policy and Law blog, called “the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.”

United States v. Jarvis, Case No. 20-3912, 2021 U.S. App. LEXIS 16596 (6th Cir. June 3, 2021)

Sentencing Law and Policy, Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) (June 3, 2021)

– Thomas L. Root

Chance and Death at the BOP – Update for August 14, 2020

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.

COMPASSIONATE CRAPSHOOT

dice161221A BuzzFeed News review of more than 50 cases seeking an 18 USC § 3582(c)(1)(A) “compassionate release” sentence reduction by federal inmates shows that with little legal precedent to guide courts in deciding the flood of release motions during a pandemic, decisions about who gets out of prison and who does not can appear arbitrary. That’s probably because they are.

Prisoner advocates and defense lawyers say these cases can come down to the luck of the draw, with some judges proving to be more sympathetic than others. Judges are making medical assessments about how much of a threat COVID-19 poses to an individual inmate and then deciding how to balance that against the public safety risk of sending that person back into the community. And judges are reaching different conclusions about how to measure an inmate’s risk of exposure in state and federal prisons, which have seen some of the worst clusters of COVID-19 cases nationwide.

In some denials, judges relied on the fact that there weren’t any COVID-19 cases at a particular prison, but sometimes that wasn’t a barrier. Some judges insisted inmates have served at least half of their sentence. Nearly all judges required proof of a specific medical condition.

compassion160208

Not only are the standards being applied by district courts grossly inconsistent across the 673 active federal district judges. The BOP has added to the chaos as well. Twenty-five inmates have died in its custody this year while their requests for sentence reduction were under consideration, including 18 since March 1, around the time the coronavirus began spreading in U.S. communities. In the 50 July cases examined by Buzzfeed, the BOP opposed or failed to respond to 38 compassionate release requests that the courts denied. The Bureau also opposed 10 releases that courts eventually granted. Only in two cases did the agency agree to a release before a court intervened.

More than one inmate has died of COVID-19 after being denied compassionate release by the BOP. Perhaps the latest was Saferia Johnson, coldly described as “inmate” – along with her crime of conviction – by the BOP media machine (more interested in making the agency look good in a bad situation than in compassionately reporting the death of a mother of two young boys). Saferia died of the virus after the BOP denied her compassionate release (not that the BOP press release would note that). She was serving 46 months for a fairly plain-vanilla white-collar embezzlement offense at Coleman.

“Now I have to bury my daughter and figure out how to raise these kids,” Ms. Johnson’s mother, Tressa Clements, told the Miami Herald. Clements said she and other family members told Johnson’s boys — Kyrei, 7, and Josiah, 4 — Monday that their mother isn’t coming home.

“We told them that God wanted her as an angel with him,” she said. “But she will always be in their lives and be their guardian angel.”

fault200814Incidentally, the BOP death count inched up to 117 yesterday (112 in BOP custody, five federal inmates in private prisons) with virtually all of the deceased “memorialized” by BOP press releases.

Forget that de mortuis nil nisi bonum nonsense. The BOP is much more into speaking ill of the deceased, who after all was an inmate more than a person, and interring any good with his or her bones. The BOP press release obituary (written formulaically by some BOP press office minion), is intended to let the world know that (1) it really wasn’t the BOP’s fault, because the agency did everything it could to save the victim, (2) it really wasn’t the BOP’s fault, because the victim had all of these unidentified “long-term, pre-existing medical conditions,” and, of course, (3) the dead inmate was a scumbag who was serving a sentence for doing truly horrible things, so – in the scheme of things – the death is not that lamentable, except for the fact it may make the BOP look bad unfairly.

compassionaterelease190517It’s worthwhile that we are reminded, once in awhile, that the “inmate” described as “a 36-year-old female who was sentenced in the Middle District of Georgia to a 46-month sentence for Conspiracy to Steal and Embezzle Public Money and Aggravated Identity Theft” was a mom leaving behind a second-grader and a preschooler.

The None of us is as good as our finest moment, nor as bad as our worst. And few of us have a heart as cold as a BOP obituary.

Buzzfeed News, “I Had Hit The Lottery”: Inmates Desperate To Get Out Of Prisons Hit Hard By The Coronavirus Are Racing To Court (August 8, 2020)

Washington Post, Frail inmates could be sent home to prevent the spread of covid-19. Instead, some are dying in federal prisons. (August 3, 2020)

Miami Herald, Woman asked for compassionate release. The prison refused. She just died of COVID-19 (August 6, 2020)

– Thomas L. Root

3rd Circuit Frolics, Compassionate Release Suffers – Update for April 7, 2020

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.

3RD CIRCUIT GOES OFF THE RAILS ON ADMINISTRATIVE EXHAUSTION

Francis Raia, a small-time Hoboken politician who tried to buy a city council seat for $50 a vote, ended up with a conviction for fraud and a very short 90-day sentence (which the government has appealed). Even a few months seemed like a lifetime to Frank, and – given the coronavirus – it might just be. So he asked his district court for compassionate release.

corona200313The district court said it would grant the motion, except that the case had been appealed by the government so it had no jurisdiction. Raia’s lawyers, rather than appealing the District Court’s decision, instead refiled the § 3582 motion with the 3rd Circuit to grant compassionate release, a truly foolish approach. (Appeals courts are for appeals, but that is an issue for another day).

Last week, the 3rd refused to grant Frank’s motion for several reasons, any of which would have been good enough by itself. But just to show it could be as foolish as the lawyers appearing before it, the Circuit then laid down some dictum on an issue that had not been briefed. The three-judge panel essentially gutted well-established exceptions to the administrative exhaustion doctrine in the process.

Exhaustion means that an inmate has to complete the administrative review process before he or she goes to court. The compassionate-release statute, 18 USC § 3582(c)(1)(A), requires that an inmate first ask the warden to recommend compassionate release, and exhaust remedies if denied. If the warden does nothing, the inmate can file directly with the court after 30 days.

Exhaustion170327There are some well-established exceptions to exhaustion. If exhaustion would be futile, if there are exigent circumstances, if the agency has already made clear that it will deny the request: all of these have excused exhaustion requirements in cases. Frank apparently did not ask the BOP for its recommendation first, but the district court never addressed that lapse, and on appeal, neither party discussed the exhaustion requirement (or Frank’s failure to meet it) in the briefs.

But the 3rd weighed in nonetheless. After paying lip service to the risks of COVID-19 to federal prison inmates like Raia, the three-judge panel said

But the mere existence of COVID-19 in society and the possibility that it may spread to a particular prison alone cannot independently justify compassionate release, especially considering BOP’s statutory role, and its extensive and professional efforts to curtail the virus’s spread. See generally Federal Bureau of Prisons, COVID19 Action Plan (Mar. 13, 2020, 3:09 PM). Given BOP’s shared desire for a safe and healthy prison environment, we conclude that strict compliance with § 3582(c)(1)(A)’s exhaustion requirement takes on added — and critical — importance. And given the Attorney General’s directive that BOP “prioritize the use of [its] various statutory authorities to grant home confinement for inmates seeking transfer in connection with the ongoing COVID-19 pandemic,” we anticipate that the exhaustion requirement will be speedily dispatched in cases like this one.

BOP’s action plan? How’s that working out? The BOP sends COs back to work after being exposed to an inmate with COVID-19 who later died, The BOP fudges the numbers. The BOP denies any problems with halfway houses. Strong arguments exist that the BOP’s approach to COVID-19 has been ham-handed.

coronadog200323That is hardly the only problem with the slapdash decision. The Circuit held that before defendants file a motion in court for compassionate release under § 3582(c)(1)(A), they “must ask the Bureau of Prisons (BOP) to do so on their behalf, give BOP thirty days to respond, and exhaust any available administrative appeals. See § 3582(c)(1)(A).”

Yesterday, Raia’s attorneys filed a motion for clarification with the 3rd Circuit, asking that the court at least correct that holding to require defendants to exhaust remedies or wait 30 days, but not both. The government does not oppose the motion, which argues that

It is critically important that the Court’s opinion be clear on § 3582(c)(1)(A)’s requirements. As the Court recognized, COVID-19 poses serious risks within the federal prison system, particularly to high-risk inmates such as Mr. Raia. Now more than ever, individualized determinations of compassionate release must be made as expeditiously as the law permits. Any suggestion that defendants must both wait thirty days and exhaust administrative appeals will inevitably lead to confusion among the district courts and delays in adjudicating properly filed compassionate-release motions, potentially with life-or-death consequences.

Ohio State University law professor Doug Berman argued last Saturday in his Sentencing Law and Policy blog that the Circuit’s ruling “creates the problematic impression that “30-day lapsing/exhaustion” language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion. But the language and structure of this requirement makes it appear much more like what the Supreme Court calls ‘nonjurisdictional claim-processing rules’… With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions. In other words, if and when the ‘30-day lapsing/exhaustion’ language is properly understood by courts as a claim-processing rules, then courts can… decide that the requirement need not be meet given the equities of a particular case.”

timewaits200325Berman rightly notes that “sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing. As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) ‘releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19’.”

This is an awful decision, and what’s worse, an unnecessary one. The Court has already denied the appeal when it adds its “oh, by the way,” that the defendant had not exhausted administrative remedies (and does so in a misstatement of the statute that would earn a first-year law student a failing grade).

My belief that the Raia decision is an intellectual “drive-by shooting” of established administrative exhaustion waiver law is shared by others. In the New Jersey Law Journal, Christopher Adams, chairman of the criminal defense and regulatory practice group at Greenbaum, Rowe, Smith & Davis in Woodbridge, New Jersey, observed that prisoners may be able to sidestep § 3582(c)(1)’s 30-day requirement based on vulnerability to the coronavirus, because Raia fails to address a 1992 U.S. Supreme Court case, McCarthy v. Madigan, allowing prisoners to bypass administrative procedure based on equitable considerations. The 1992 case found exceptions to the 30-day requirement where such a waiting period would prejudice the subsequent court action, where the administrative process lacks authority to grant adequate relief, and where pursuing the administrative remedy would expose the petitioner to undue prejudice.

“I will continue to make these applications to district court. I would encourage people to try,” the NJLJ quoted Adams as saying. “Raia doesn’t close the door to compassionate relief applications, even when the administrative remedy is not observed. I admit, the circuit, in Raia, makes it much harder, but it doesn’t close the door completely.”

screwpooch200407I am glad Raia’s counsel – who screwed this pooch to begin with – at least sought clarification of the ruling. It would be far better to seek a rehearing pointing out to the court that it should withdraw the exhaustion portion of the opinion altogether.

United States v. Raia, 2020 U.S. App. LEXIS 10582 (3rd Cir. Apr 2, 2020)

Unopposed Motion to Amend Opinion, United States v. Raia (filed Apr 6, 2020)

Sentencing Law and Policy, Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A) (Apr 4)

New Jersey Law Journal, After 3rd Circuit Setback, Defense Lawyers Look for New Path for COVID-19 Compassionate Release (Apr. 6)

– Thomas L. Root