Tag Archives: compassionate release

Another Circuit Rules Against Sentencing Commission – Update for March 17, 2025

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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.

THINGS WE DIDN’T SEE COMING JUST GOT WORSE

After the First Step Act passed and prisoners could file their own 18 USC § 3582(c)(1)(A) compassionate release motions, the 2nd and 4th Circuits led the nation in agreeing that people with overly long sentences due to stacked § 924(c) convictions (for using or carrying a gun during a drug or violent crime) could get relief.

guns200304Before First Step, someone with three § 924(c) counts would get a minimum of five years added on for the first count and stacked 25-year sentences added for each of the next two counts. If Danny Doper carried a gun while selling meth three times over a three-day period, the law required that he get a mandatory 55 years added on to whatever his drug sentence might be.

First Step corrected § 924(c) to make clear that for a second § 924(c) count to carry 25 years minimum time, the second gun offense had to be committed after a conviction on the first gun offense. If convicted after the Act’s passage, Danny would still face three § 924(c) sentences of 5 years each, but 15 years was still way less than the 55 years he faced before.

Three circuits disagreed that courts could on their own find First Step’s change in § 924(c) – which Congress did not make retroactive – as an extraordinary and compelling reason for a compassionate release. But when the Sentencing Commission amended its compassionate release policy statement to add Guideline § 1B1.13(b)(6) – in November 2023, we thought it had solved the debate by specifically providing that a non-retroactive change in the law – along with some other factors (like having served 10 years and having a grossly disparate sentence) – could be a basis for a compassionate release.

We didn’t see the government’s onslaught coming. The Dept of Justice immediately argued that the new Guideline policy statement exceeded the USSC’s authority. Only the 3rd Circuit had agreed with this position until last week, when in a 2-1 opinion, the 7th held that USSG § 1B1.13(b)(6) exceeded USSC authority by effectively making First Step’s nonretroactive change in § 924(c) retroactive.

interpretation210729“When Congress explicitly delegates to an agency the authority to interpret a statute, the agency’s interpretation supersedes the court’s unless the agency’s interpretation exceeds the scope of authority that Congress explicitly delegated,” the Circuit said. “Here, Congress explicitly delegated to the Commission authority to interpret extraordinary and compelling under § 3582(c)(1)(A)… But because the Commission exceeded the scope of its authority, we do not defer to its policy statement and instead follow our own interpretation.”

The margin of the Commission’s defeat was razor-thin. One of the three judges dissented, and another only reluctantly became part of the 2-1 majority, saying that “the doctrines of stare decisis and precedent require that I concur in the judgment and opinion of the court.”

The 7th Circuit admitted that courts of appeal were divided on the issue, saying that “[p]erhaps the Supreme Court will eventually resolve the split, but for now we will follow our precedent and join the only other court of appeals [the 3d Circuit] to so far resolve the battle of competing interpretations.”

You can bet on it.

United States v. Black, Case No. 24-1191, 2025 U.S.App. LEXIS 5634 (7th Cir. March 11, 2025)

– Thomas L. Root

US District Court Rules Guideline 1B1.13(b)(6) Exceeds Commission Authority – Update for February 7, 2025

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

WHAT CONGRESS HAS ORDAINED, LET NO SENTENCING COMMISSION PUT ASUNDER

exceedsauthority250207Compassionate release took it on the chin again in the 11th Circuit this week, as a Southern District of Florida district court ruled yesterday in a lengthy opinion that the United States Sentencing Commission lacked the authority to rule that a nonretroactive change in the law could provide a basis to reduce the length of a grossly over-length sentence that was proper when imposed but would be improper under current law.

A little background: Under 18 USC § 3582(c)(1), a federal prisoner is entitled to ask the sentencing court to reduce his or her sentence. An inmate seeking such a reduction (commonly if imprecisely known as “compassionate release”) must show that “extraordinary and compelling” reasons exist for grant of the reduction. What constitutes an “extraordinary and compelling” reason is defined in the first instance by United States Sentencing Commission.

(The prisoner also must show that the reduction being sought takes into consideration (whatever that means) the sentencing factors of 18 USC § 3553(a), but we can discuss that issue another day).

When the Sentencing Commission adopted a new policy statement on sentence reduction motions 15 months ago, it provided a laundry list of circumstances that qualify in Guideline § 1B1.13(b). The most contentious item on the list is Item (b)(6), a provision that a “change in the law” can sometimes provide a basis for a reduction.

stash171031Gilberto Chineag was sentenced to life in prison after being ensnared in a “stash house sting” some 25 years ago. Two prior state drug convictions – which Gil possessed – were all that were required under 21 USC § 841(b)(1)(A) to require the court to lock Gil away for the rest of his natural life.

A quarter century later or so, Gil asked his court to reduce his sentence to time served, arguing that the First Step Act’s (FSA’s) change in § 841(b)(1)(A) left his sentence at 21 to 27 years instead of life and thus qualified under Guideline 1B1.13(b)(6) as an extraordinary and compelling reason for a sentence reduction. In a 40-page opinion issued yesterday, Judge Rodolfo Ruiz II disagreed, holding that the Sentencing Commission lacked the power to declare that a change in the law that Congress did not make retroactive could ever be an “extraordinary and compelling” reason under § 3582(c)(1)(A) for a sentence reduction.

While Congress never exactly denied the Sentencing Commission the right to rely on a change in the law as an “extraordinary and compelling” reason, it did say in the FSA that the amendments to § 841(b)(1)(A) “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Judge Ruiz reasonably read this provision as excluding application to offenses like Gil’s that had been sentenced years before the FSA was adopted.

Judge Ruiz held adoption of 1B1.13(b)(6)

exceeds the scope of the Commission’s delegated authority in allowing courts to consider expressly nonretroactive changes in law, like section 401(a) of the FSA, as ‘extraordinary and compelling reasons’ for a sentence reduction… The Court does not doubt the well-intentioned policy rationale that led the Commission to promulgate this Policy Statement. And the Court recognizes the hard work undertaken by the Commission to cabin the terms of section 1B1.13(b)(6)… A court may consider a change in law only if (1) the defendant has served at least ten years of their sentence; (2) there would be a “gross disparity” between the sentence being served and the sentence likely to be imposed after the change in law came into effect; and (3) individualized circumstances demand it. This clearly evinces a good-faith effort on the Commission’s part to narrowly tailor the class of defendants who would be eligible for a sentence reduction. But a textual good policy cannot overcome clear text. If a statute, like section 401(a) of the First Step Act, is clearly nonretroactive, it cannot be rendered retroactive by simply adding the label “extraordinary and compelling.

finalityisexplained250207The court observed that “Congress did not vitiate prior law or cast doubt on the thousands of lawful, final sentences that had been previously established pursuant to § 841(b)(1)(A),” but rather only concluded that the policy underlying high mandatory minimum sentences in to § 841(b)(1)(A) should be reduced. “The Court presumes that Congress says what it means and means what it says,” Judge Ruiz wrote, “And if Congress explicitly chooses to make a statute nonretroactive, it would be truly abnormal and extraordinary—in every sense of the word—for a court to poke around that statute to find imaginary exceptions.”

This decision is only a district court opinion, not binding on any other court. But its detail and scholarship – as well as other court’s opinions as to the efficacy of Guideline 1B1.13(b)(6) – suggest that this issue will not be settled short of the Supreme Court.

Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, questioned Judge Ruiz’s conclusion that Congress did not intend that the Commission let nonretroactive sentencing law changes sometimes trigger review of a harsh sentence. He wrote that “[i]t makes perfect sentence to me that Congress would conclude, when passing major sentencing reductions in the First Step Act, that it ought not give thousands of defendants an unlimited, complete, broad legal right to retroactive sentence reductions (which in many cases might require plenary resentencings), but still would want the expert sentencing agency to set the terms of possible case-by-case sentence reductions attentive to the significant statutory changes it had just enacted.”

United States v. Chineag, Case No. 1:01-cr-607 (S.D. Fla. February 6, 2025)

Sentencing Law and Policy, Notable lengthy new district court opinion rules US Sentencing Commission lacked authority to authorize sentence reduction based in part on “changes in law” (February 6, 2025)

– Thomas L. Root

Thanksgiving Week: What to Have for Dessert? – Update for November 29, 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.

DESSERT

pumpkinpie241129It can be hard to pick which traditional Thanksgiving pie – pumpkin or apple – to eat as a finish to the feast. But a tough choice like this one usually ends with eating both, not a decision to just forget dessert altogether and go home.

The 7th Circuit had a problem last week deciding whether a prisoner appealing the denial of his 18 USC § 3582(c)(1)(A) compassionate release motion should be given a court-appointed attorney. Ultimately, the Circuit decided not to decide.

The 7th took only three pages to deny the appeal but needed another 43 pages to express the differing views of the three-judge panel.

The inmate had an appointed attorney in district court, but when the lawyer withdrew, the Circuit provisionally appointed a replacement to argue whether the appeals court had the authority under 18 USC § 3006A “to appoint counsel at public expense—whether in an individual case or through a general order—for defendants… seeking a reduction of their sentences under 18 USC 3582.”

The 7th has previously held that district courts are not required to appoint counsel in compassionate release proceedings, “but it does not prohibit them from doing so.”

The panel found that the district judge did not abuse his discretion in denying the compassionate release motion, so it did not reach the issue of whether it had the power to appoint counsel: “In Judge Lee’s view… the principle of judicial restraint counsels that we not reach the issue, because we can affirm the district court’s denial… on narrower grounds… Judge Hamilton has doubts about whether the panel should address the merits, but explains why he believes the language of the Criminal Justice Act gives federal courts discretion to make such appointments… Judge Scudder believes it appropriate to resolve the merits question, and he would hold that the plain language of § 3006A does not authorize appointments of counsel in § 3582(c) proceedings.”

applepie241129One judge wanted pumpkin pie, one wanted apple pie, and one wanted both. So the panel decided on no dessert at all. However, with inmates frequently asking courts to appoint counsel, it is worthwhile noting that serious legal questions may make appointment impossible.

United States v. Bonds, Case No. 24-1576, 2024 U.S.App. LEXIS 29690 (7th Cir., November 21, 2024)

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

A Little Something for Halloween – Update for October 31, 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.

TRICK OR TREAT

Trick – Tomorrow is November 1st, and you know what happens then…

Nothing.

nothinghere190906I get emails all the time asking me about new laws supposedly becoming effective on November 1. One hopeful prisoner wrote last week, asking me to send him all the changes in 18 USC § 924(c) taking effect tomorrow.

I was tempted to send a blank email back to him, but I have written so often about the myth of November 1st. If he hadn’t gotten it by now, a blank email would just have him blaming the Bureau of Prisons’ clunky email system for stripping the message of hope out of my response.

So, one more time: Nothing happens tomorrow, except that last May’s announced Guideline amendments become effective. None of those changes are retroactive, so nothing in the changes will benefit people who have already been sentenced.
jackolanternpumpkin241031

Treat – The Dept of Justice and other law enforcement agencies on Monday morning raided (“conducted a sweep,” The New York Times said) of MDC Brooklyn.

IG230518The DOJ Office of the Inspector General led the operation, which included DEA and FBI agents.  Donald Murphy, a spokesman for the Bureau of Prisons, said in a statement that “the operation was preplanned and there is no active threat” at the prison, where around 1,200 people are held, including Sean Combs, known as Diddy, and Sam Bankman-Fried.

Murphy said the BOP had been involved in the planning. He said the action was “designed to achieve our shared goal of maintaining a safe environment for both our employees and the incarcerated individuals housed at MDC Brooklyn.”

MDC Brooklyn has the dubious distinction of being so bad that judges have conditioned prison terms on defendants not being designated to the facility.

The New York Times, U.S. Officials Sweep Troubled Brooklyn Prison Where 2 Were Killed  (October 28. 2024)

Associated Press, Authorities launch ‘interagency operation’ at federal jail in New York housing Sean ‘Diddy’ Combs (October 28, 2024)

jackolanternpumpkin241031

Trick – In 2022, 18 USC § 2243(c) passed, making it illegal for someone acting as a federal law enforcement officer to knowingly engage in a sexual act with someone in federal custody. A Government Accountability Office report last week told Congress that no one has been charged or convicted since the law passed.

The Report somewhat hopefully chalked up the nonuse of the new statute to several anodyne factors:

First, individuals cannot be charged for prohibited conduct that occurred prior to the provision’s effective date of October 1, 2022. Second, it can take several years from the time of an alleged incident to the filing of a criminal case to a disposition of the criminal case. Finally, according to an official from DOJ’s Office on Violence Against Women, many victims do not report sexual abuse immediately due to a variety of factors, including fear of retaliation.

What a relief! I thought for a minute there might be a deliberate failure to root out violations.

GAO 25-107684, Federal Law Enforcement: Criminal Sexual Acts while Serving in Official Capacity (October 21, 2024)
jackolanternpumpkin241031

Treat – In August 2019, Tamir Abdullah, a defendant serving a federal crack cocaine sentence, moved for a sentence reduction under Section 404 of the First Step Act (the retroactive Fair Sentencing Act). The district court denied the motion a swift 4-1/2 years later.

delayed200115Last week, the 6th Circuit upheld the denial but spared no words in its condemnation of U.S. District Court Judge John Adams (N.D. Ohio), a judge who is so bad that the 6th Circuit once ordered him to undergo a mental health examination:

Although we grant district courts broad discretion in managing their own dockets, we look unfavorably upon lengthy, unjustified, and inexplicable delays on the part of district courts in deciding cases… We see no reason in the record to justifiably explain why the district court took 1,625 days to resolve a straightforward sentence-reduction motion… Nor was the order finally issued by the district court adequate. That gravely flawed order failed to analyze Abdullah’s sentence-reduction motion under the multi-step test… and instead ruled on an argument—entitlement to compassionate release due to the COVID-19 pandemic—that Abdullah’s motion plainly did not advance.

The criticism is reminiscent of similar complaints about U.S. District Judge Timothy Black (S.D. Ohio) last winter.  It cannot be said too often that a sentence reduction motion that sits undecided is sometimes worse than no remedy at all.

United States v. Abdullah, Case No 24-3093, 2024 U.S. App. LEXIS 26639 (6th Cir. Oct 22, 2024)
jackolanternpumpkin241031

– Thomas L. Root

Neither More Nor Less Compassion, Sentencing Commission Reports – Update for October 24, 2024

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COMPASSIONATE RELEASE GRANT RATES HOLD STEADY

The U.S. Sentencing Commission’s Fiscal Year 2024 preliminary data on compassionate release motions filed pursuant to 18 USC § 3582(c)(1)(A), released last week, show that for the fiscal year ending September 30, 2024, the national rate for grants of such motions (out of a total of 2,901 ruled on) was 16.1%.

compassion160208This number represents an improvement over FY 2023 (13.8% of 3,140) and a very slight improvement over the cumulative average of the 15.9% grant rate since the First Step Act – which gave prisoners the right to file their own motions instead of limiting such filings to the whims of the Federal Bureau of Prisons – became law in December 2018.

Significant numbers of compassionate release motions only began to be filed when COVID-19 struck in late March 2020. Grant rates started out at 35% in April 2020, but fell to a 16.9% average by the end of that year.

The latest data show that in FY 2024, drug offenders got 55% of the compassionate release grants, followed by robbery offenders (14 %). People with Criminal History VI  – the most serious criminal history category – received 37% of the grants, followed by those with the best criminal histories, Criminal History I, with 23%.

funwithnumbers170511The Commission also reported that of 12,366 USSG Amendment 821 Part A movants – seeking a lower sentence because they previously had a higher Criminal History Category for being on probation, parole or supervised release when they committed their current offense (“status-point” offenders) – 35.9% have been granted. Of the 9,649 USSG Amendment 821 Part B movants seeking a lower sentence because they had absolutely no prior criminal offenses (zero criminal history points), 30.9 pct have been granted.

For status-point offenders, 44.9% had drug charges and 24.7% had firearms offenses. For zero-point movants, 78.6% are doing time for drugs, with fraud offenses in second place at 10.2%.

USSC, Compassionate Release Data Report (Preliminary FY 2024 Cumulative Data) (October 17, 2024)

USSC, Part A of the 2023 Criminal History Amendment Retroactivity Data Report (October 17, 2024)

USSC, Part B of the 2023 Criminal History Amendment Retroactivity Data Report (October 17, 2024)

– Thomas L. Root

Some Pro Tips for Compassionate Release D-I-Y’ers from the 1st Circuit – Update for August 8, 2024

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1ST CIRCUIT HANDS OUT A FEW PRO TIPS FOR COMPASSIONATE RELEASE MOTIONS

The 1st Circuit reminded us last week that 18 USC § 3582(c)(1)(A) compassionate release decisions are granted largely in the district court’s discretion, and if the district court thinks you’re still a danger to the community, don’t expect love from the court of appeals.

walkedwomantalkedman240808Michel D’Angelo robbed a bank in 2012 dressed like a woman and carrying a purse he told tellers contained a bomb. His lengthy criminal history of burglary, theft, disorderly conduct, criminal threatening, multiple assaults, and trafficking in prison contraband, qualified him under the law at the time as a Guidelines career offender (sentencing range of 210-240 months. The judge varied downward because of Mike’s mental health challenges and gave him 180 months.

In 2022, 11 years after the bank robbery, Mike sought compassionate release. He argued that changes in Guidelines interpretation meant that he would not be a career offender if he were sentenced today, that he had been rehabilitated, and that the BOP had not adequately treated his mental conditions.

The district court denied the compassionate release motion. Last week, the 1st affirmed, finding that the district court’s holding that Mike was still a danger to the public — despite his showing on other 3553(a) factors — was well within the judge’s discretion.

The case arose when USSG § 1B1.13 was still advisory, making some of its holding inapplicable to current compassionate release motions. However, there are two takeaways worth considering for those seeking compassionate release now.

nickdanger220426First, the district court found Mike to still be a danger because he had a long criminal history even before robbing the bank; the robbery was “a frightening and life-endangering offense;” and he had “accumulated a tumultuous disciplinary record while incarcerated.” Also, Mike’s recidivism score was “high,” a fact more important to the Circuit than Mike’s argument that his age – 42 years old – made him statistically less likely to commit new crimes.

The lesson here is that if you have a significant criminal history (Mike’s was a “V”), if you committed a crime of violence, or if you have a checkered institutional disciplinary record, you may have a steep hill to climb getting a compassionate release. If your PATTERN score is a “low” or “minimum,” you should soundly thump that fact.

Second, the 1st agreed that Mike wouldn’t be a career offender if sentenced today, but it held that that fact alone was not extraordinary and compelling. Look to § 1B1.13(b)(6) (change in sentencing law that produces a gross disparity and the prisoner has served 10 years and his or her “individualized circumstances” justify a reduction. Mike had gotten a downward variance sentence to 180 months because of his mental health problems, within what his Guidelines would have been without career criminal status. No gross disparity here, and Mike’s “individualized circumstances,” mainly his institutional conduct and progress, were not good.

The tip is that a change in the law alone is not enough to establish extraordinary and compelling reasons for grant of a compassionate release motion. Read and follow § 1B1.13(b)(6).

nothingcoming210420The final pro tip in this decision arose from Mike’s complaint that the district court was obligated to correctly calculate his lower Guidelines range (without career offender) before performing the 18 USC § 3553(a) “sentencing factors” analysis. The 1st disagreed, finding that the district judge “correctly calculated this lower Guidelines range before explaining why § 3553(a) did not favor reducing Mike’s sentence. Because the district court performed its § 3553(a) analysis after assuming that the career-offender enhancement would not apply, we gather from context that it implicitly considered that Guidelines range as part of its analysis.”

This holding suggests that any compassionate release motion raising the argument that the movant would not have been sentenced as harshly today should include a reasonably detailed analysis of the correct Guideline range and point out that any § 3553(a) analysis should start from the adjusted lower range.

United States v. D’Angelo, Case No. 22-1875, 2024 U.S. App. LEXIS 18794 (1st Cir. July 30, 2024)

– Thomas L. Root

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

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5TH CIRCUIT DERAILS DOJ EFFORT TO DELEGITIMIZE GUIDELINES

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

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

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

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

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

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

[i]f a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

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

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

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

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

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

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

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

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

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

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

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

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

discretion220629

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

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

Concepcion v United States, 597 US 481 (2022)

– Thomas L. Root

No Free Drinks While You Lose to the House – Update for July 16, 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.

LONG ODDS

compeddrink2400716There’s a difference between Las Vegas and asking the Bureau of Prisons to bring a compassionate release motion under 18 USC § 3582(c)(1)(A) on your behalf. In Vegas, they comp you drinks while you’re trying to beat impossible odds.

Under § 3582(c)(1)(A), a prisoner seeking grant of a compassionate release sentence reduction from his or her court must first ask the BOP to file the motion on the inmate’s behalf. This provision was a bone thrown to the BOP when Congress – disgusted after years of the BOP being the exclusive gatekeeper for compassionate release motions without using the authority as Congress intended (or even competently, for that matter) – changed the statute as part of the First Step Act to empower inmates to file directly for compassionate release. Just so the Director wouldn’t pout that power had been stripped from the BOP to lord it over prisoners even beyond control needed for legitimate penological purposes, Congress wrote in a requirement that the prisoner ask the BOP to file the motion on the inmate’s behalf before the inmate was able to bring the motion on his or her own motion.

Of course, in the real world, this creates no incentive for a warden, who has three choices when confronted with such a request:

• If the warden grants the prisoner’s compassionate release request, a package justifying the recommendation that the BOP involve a U.S. Attorney to bring the motion has to be prepared and forwarded to the BOP Regional Office. If the Regional Office approves, the request goes to the BOP Office of General Counsel. If the GC OKs it, it goes to the Director. If the Director approves it, the motion must be prepared by the appropriate US Attorney and filed with the prisoner’s sentencing judge.

•  If the warden denies the request, a document must be prepared and delivered to the prisoner explaining the denial, after which the prisoner may file a motion with his or her sentencing judge.

• If the warden ignores the request, after 30 days the prisoner may file a motion with his or her sentencing judge.

Knowing that a bureaucracy, like water and electricity, seeks the path of least resistance, which of these options is the easiest for the warden? Or which is least likely to reflect badly on the prison administration if a compassionate release turns into a Willie Horton?

denied190109The Dept of Justice knows. In its First Step Act Annual Report – June 2024, the DOJ disclosed that from January 2019 — the first time prisoners could file for compassionate release on their own — through January 2024, prisoners filed 32,991 motions for compassionate release in federal courts. Of that number, the BOP approved 172 such requests. Of that number, 127 approvals were based on the prisoner’s terminal illness, 39 approvals were based on the inmates’s debilitated medical condition, two approvals were for “elderly inmates with medical conditions,” and four requests were based on sexual abuse the prisoner experienced while in custody.

In other words, BOP compassionate release approval stands at 0.5214%, about one out of 200.

And what of those requests for compassionate release that prisoners filed after being turned down? The Sentencing Commission reports that through March 2024, 32.412 such motions had been filed in court, and 5,190 of those (16%) had been granted. Every one of those 5,190 grants was first rejected as unworthy by the BOP.

The rule in the BOP? Deny, deny, deny. Or maybe ignore, ignore, ignore.

So why should the prisoner not just take the commutation route, asking President Joe Biden – who promised to fix the exercise of presidential clemency – for early release?

clemency231222Axios reported last weekend that President Biden has continued a trend of increasingly stingy grants of commutation or pardon. In four years, Jimmy Carter granted 21.6% of clemency petitions. Ronald Reagan granted 11.9% over eight years. Bill Clinton granted 6.1%, Barack Obama 5.3%. Even Donald Trump granted 2.0%.

So far, excluding Biden’s meaningless mass pardon of marijuana possession offenses that promised 13,000 pardons but has so far only delivered for about 205 people, Biden has granted 1.3% of clemency requests, the lowest percentage of any president in at least the last 50 years.

A clemency petition passes through seven layers of review, a cumbersome process Biden has worsened by requiring input from the Domestic Policy Council. Mark Osler, a law professor and expert on clemency, said, “Biden seems to be stuck with is a system of analysis that doesn’t work and hasn’t worked for his predecessors either.” 

Frank Bowman, a law professor who has written extensively on the pardon power, cited the “nasty politics of our era” as a significant factor in making the use of clemency power problematic.

horton230317No president wants to needlessly create a Willie Horton moment, to grant clemency to someone in prison who then commits a new offense that becomes grist in the campaign mill.

Thus, denial (or just inaction) becomes as appealing to a president as it is to a warden.

US Sentencing Commission, Compassionate Release Data Report – Fiscal Year 2024, 2nd Quarter

Dept of Justice. First Step Act Annual Report – June 2024

Axios, Why presidents are wielding their pardon powers less and less (July 13)

– Thomas L. Root

‘We Only Believe You When It’s Convenient,’ DOJ Tells BOP inmate Sexual Abuse Victims – Update for June 20, 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.

KUMBAYA MOMENT PAST FOR COMPASSION FOR SEXUAL ASSAULT VICTIMS

kumbaya221003Last November, prosecutors asked female inmate Ilene Wahpeta to provide a victim impact statement at the sentencing of Andrew Jones, a former BOP employee convicted of sexually assaulting three inmates at FCI Dublin and sentenced to eight years..

Reason reported last week that six months later, the same Dept of Justice that presented her victim testimony as a compelling basis to sentence the former CO to 96 months is arguing against Ilene’s compassionate release motion on the basis that Ilene wasn’t a named victim in Jones’s criminal case and that her claims aren’t credible.

In September 2022, Deputy Attorney General Lisa Monaco wrote a letter to FAMM saying that she had ordered BOP Director Peters to “review whether BOP’s policy regarding compassionate release should be modified” to accommodate female prisoners who had been assaulted by federal employees. Peters responded that “she has begun to consider requests from inmates who have been abused and are not deemed to be threats to the community if they are granted their release,” according to the New York Times.

forcedsex161202Then, Sentencing Commission Guideline § 1B1.13(b)(4) was modified effective last November to include as an extraordinary and compelling reason justifying sentence reduction cases where “the defendant, while in custody… was a victim of sexual abuse involving a “sexual act,” as defined in 18 USC § 2246(2) (including the conduct described in 18 USC § 2246(2)(D) regardless of the age of the victim…”

Last week, Reason said that DOJ is actively undercutting its own policy as well as § 1B1.13(b)(4). Ilene’s case is such an example. “Lawyers representing incarcerated women filing for early release based on their status as sexual assault survivors say federal prosecutors are now routinely fighting to disqualify their clients because of an unreasonably narrow definition,” Reason reported.

DOJ has been arguing that the cases against the BOP employees accused of sexual abuse have to be completed prior to granting compassionate release under § 1B1.13(b)(4). In other cases (like Ilene’s), DOJ is saying that the victims’ claims are not credible.

“Before November 1, 2023, when this policy statement went into effect, in almost every single case the government was agreeing or not opposing the compassionate release motion,” FAMM attorney Shanna Rifkin, who has been working with BOP inmate abuse victims, says. “Since then, there has been a lot more resistance to compassionate release motions based on sexual abuse.”

When the Sentencing Commission was considering adopting what became § 1B1.13(b)(4), DOJ argued in written comments that “permitting compassionate release hearings only after the completion of other administrative or legal proceedings will help ensure that allegations are more fairly adjudicated, prevent mini-trials on allegations, and reduce interference with pending investigations and prosecutions.”

“It effectively puts the DOJ back in the driver’s seat,” Rifkin told Reason, “because who drives a criminal case? The Department of Justice. Victims of abuse have no say over when a case against their abuser will be brought, if it will be brought, and who will be charged as the victims in the case.”

womenprison240620And while a finding of guilt may sound like a reasonable standard, Reason said, it is a surprisingly difficult one to meet in cases of sexual assault perpetrated by government employees… So women who are survivors of his abuse ostensibly have to wait until the government has concluded their case in order to have a cognizable claim under this policy statement.”

According to the Bureau of Justice Statistics, from 2016 to 2018 perpetrators of staff sexual misconduct were only convicted, sentenced, fined, or pleaded guilty in 6 percent of substantiated incidents in federal and state prisons.

Reason, Advocates Say the Justice Department Is Failing To Provide Relief to Women Who Were Abused in Prison (June 10, 2024)

New York Times, Justice Dept. Considers Early Release for Female Inmates Sexually Abused Behind Bars (Dec 13, 2022)
– Thomas L. Root