Tag Archives: compassionate release

‘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

2255s Motions Aren’t Compassionate (and Vice Versa) – Update for June 14, 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.

INNOCENCE ≠ COMPASSION

paid240615Everyone knows that paying your bills on time helps you build a strong credit history. That is probably the least of a host of good reasons for not doing what New York City drug lord Jeffrey Minaya did in 2000 instead of paying a Mexican cartel the $6.5 million he owed for 274 kilos of cocaine. He decided instead to whack the two cartel members who had been sent to the Big Apple to collect.

The drug lord hired Patrick Darge to shoot the bill collectors, and Pat, in turn, subcontracted backup duties to his cousin Joe Fernandez. The two guys sent from Mexico to pick up the loot were murdered in a rather ham-handed hit, but somehow the authorities were stymied as to the identity of the perps for over a decade.

However, in 2011, after Joe had accumulated a wife and kids, a regular job, and a clean record ever since the murder he was allegedly part of, he got picked up and charged.

pantsonfire160805Joe went to trial, where the government deployed his cousin, star witness Patrick Darge, to testify against him. This was significant because no one else could put Joe at the murder scene. On cross-examination, Pat admitted that as a cooperating witness in a different case, he lied to government agents and the judge about his involvement in two prior murders, his history of credit card fraud, the extent to which he dealt drugs, his brother’s involvement in his drug dealing business, and his brother’s habit of “shooting people.” Despite Pat’s admitted prevarications, the jury believed him and convicted Joe both of an 18 USC § 1958 murder-for-hire conspiracy resulting in two deaths and use of a firearm to commit two murders in violation of 18 USC §§ 924(j)(1). Joe was sentenced to two life sentences.

Joe appealed, arguing that Pat’s history of lies meant the jury should not have believed him. Joe lost. He then filed a 28 USC § 2255 post-conviction motion, arguing he was actually innocent and that the § 924(j) conviction in light of United States v. Davis. The court vacated the § 924(j) conviction, leaving Joe with only one life sentence to serve.

innocent161024In 2020, after about nine years in prison, Joe filed a motion for sentence reduction under 18 USC § 3582(c)(1)(A), a so-called compassionate release motion. Joe argued that his potential innocence in light of Pat’s non-credible testimony and the disparity between his life sentence and the considerably lower sentences imposed on his co-defendants were “extraordinary and compelling reasons” for a sentence reduction.

The district court was persuaded by Joe’s potential innocence and sentencing disparity grounds:

Although there is factual support for the jury’s verdict and the verdict has been affirmed, a certain disquiet remains. Did Patrick Darge sacrifice his cousin, Petitioner Fernandez, to save his brother, Alain Darge? Patrick and Alain ran to the Dominican Republic directly after the murders of Cuellar and Flores. Joe Fernandez did not. Fernandez was arrested 11 years after the murder, in his home, with his family. He was earning a living and had no record of violence. Patrick Darge had considerable motive to lie and had lied before to the Government in order to obtain more favorable treatment for himself and his brother. Additionally, the physical evidence indicated that all but one bullet fired at the scene of the crime came from a .380 caliber gun, which was the gun Darge used, despite the fact that Darge claimed Fernandez fired nearly all the shots.

The district court granted Joe’s motion, and Joe went free. Until this week, when the 2nd Circuit reversed the district court.

The 2nd held that Joe’s sentencing disparity is not an extraordinary and compelling reason to reduce his sentence “under the plain meaning of the statute.” It is not extraordinary, the 2nd held, “(indeed, it should be expected) that a defendant who proceeds to trial and is convicted receives a longer sentence than his co-defendants who plead guilty to different crimes, accept responsibility, and assist the government by cooperating.” Nor is the disparity between Joe’s sentence and his co-defendants’ sentences “compelling”. Disparities between the sentences of coconspirators can exist for valid reasons, the Circuit ruled, “such as… the offenses of conviction, or one coconspirator’s decision to plead guilty and cooperate with the government.”

As for Joe’s potential innocence claim, the appellate court held that “a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment, unless there is a “clear intention otherwise.” The post-conviction remedy afforded by 28 USC § 2255 “places explicit restrictions on the timing of a habeas petition and the permissibility of serial petitions… Neither of these restrictions appl[ies] to a § 3582 motion.” The Circuit observed:

If Congress had intended to permit defendants to circumvent the strictures of 28 USC § 2255 by making challenges to the validity of a conviction cognizable on a compassionate release motion, it would surely have said so. Absent such a clear declaration of intent, we conclude that since challenges to the validity of a conviction must be made under § 2255, they cannot qualify as “extraordinary and compelling reasons” under § 3582(c)(1)(A). Compassionate release is not a channel to habeas relief or an end run around the limitations of § 2255.

guiltyproveninnocent230807Joe may have a pretty strong argument that he is innocent, a sacrificial lamb for the sins of his cousins. But if there’s a procedural means of getting him to a point that a court can actually entertain that claim, compassionate release is not it.

United States v. Fernandez, Case No. 22-3122-cr, 2024 U.S. App. LEXIS 14133 (2d Cir. June 11, 2024)

United States v. Davis, 588 U.S. 445 (2019)

– Thomas L. Root

District Court Sends Prisoner Home From Home Confinement – Update for May 7, 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.

DISTRICT COURT GRANTS COMPASSIONATE RELEASE FROM HOME CONFINEMENT

It can be challenging to explain to prisoners that what one district judge may decide on a compassionate release motion has almost no relevance to (and provides no precedential authority for) what another judge may decide in identical circumstances. What’s more, there are 677 district judge positions in the country (not including all of the district judges on senior status, who still carry a 25% caseload or better). That means there are well over 700 different opinions on how discretion should be exercised in considering a compassionate release motion.

odouls240507Still, it has almost been an article of faith that a prisoner already on home confinement is not going to get a district court to grant her compassionate release motion. Home confinement, after all, is to freedom what O’Douls is to beer. Not the real thing, but it sure beats having nothing to drink at all. Compassionate release (actually “sentence reduction” under 18 USC § 3582(c)(1)(A)(i)) requires that you show “extraordinary and compelling reasons” why your sentence should be reduced. When you’re already at home, your circumstances have to be truly extraordinary and compelling in order to get your sentence terminated early.

However, a Montana district court last week handed down what Ohio State University law professor Doug Berman called “an interesting new federal court order granting a § 3582(c)(1)(A)(i) sentence reduction motion based in part on the difficulties associated with extended home confinement.” In so doing, the judge turned the article of faith on its head.

Linda Reynolds, a 75-year-old career offender, had been doing her 262-month sentence for methamphetamine distribution since 2012 (and had served 53% of it). She was sent home on CARES Act home confinement two years ago after serving 114 months of her sentence. A few months ago, she filed a compassionate release motion arguing that her rehabilitation, age, medical conditions, unusually long sentence, and difficulties of extended home confinement together warrant termination of her sentence.

Last week, the district court granted her motion. The court found that Linda had completed several courses and certificates while in prison, maintained employment “throughout most of her time on home confinement,” and has stayed sober (no mean feat for someone who has battled addiction her whole adult life).

JSIN240507Two of the court’s analyses stood out. First, the district court resorted to the Sentencing Commission’s JSIN (Judiciary Sentencing Information) platform that compares sentences nationwide for people with the same guideline, offense level, and criminal history category. JSIN (available for free on the Sentencing Commission website) reported that courts imposed an average term of 188 months and median of 180 months, “nearly seven years shorter than Reynolds’s term.” In fact, the government had recommended a sentence of 188 – 235 months back in 2012. The district court found that Linda’s sentence – despite being what Guidelines Chapter 4B called for – “appears to be unusually long compared to her co-defendants, similarly situated defendants, and the sentence recommended by the government.”

Second, the court found that the terms and conditions of Linda’s home confinement had prevented her “from receiving needed medical care and have increased [her] out-of-pocket medical expenses.” Her status of still being in BOP custody although on home confinement prevented her from enrolling in Medicare and obtaining low-income housing, which would have put her in town and cut her transportation costs for getting to her work training program, meeting her counselor twice a week, and mak[ing] her four monthly UAs [urinalyses for drug use]. Reynolds’s status on home confinement also has prevented Reynolds from obtaining a checking account, from engaging in work that would produce supplemental income, and from being able to fully interact with her family members and support system.”

home190109While Linda’s “age, medical conditions, home confinement status, and long sentence would not rise to the level of extraordinary and compelling when viewed individually,” the Court held, “[t]hese factors appear, however, to rise to that level when viewed together… The Court finds that these factors interact with each other to create extraordinary and compelling reasons to reduce Linda’s sentence.”

Sentencing Policy and the Law, Notable new compassionate release ruling finding home confinement difficulties justified sentence reduction (April 30, 2024)

United States v. Reynolds, Case No 4:12-cr-0084 (D.Mont, April 30, 2024)

U.S. Sentencing Commission, Judiciary Sentencing Information (JSIN)

– Thomas L. Root

4th Says District Court Must Consider All Grounds for Sentence Reduction – Update for April 26, 2024

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4TH ISSUES EXPANSIVE COMPASSIONATE RELEASE DECISION

compassion240426Antonio Davis was in the 8th year of a 210-month sentence drug conspiracy sentence when COVID hit. He filed for an 18 USC § 3582(c)(1)(A) sentence reduction (compassionate release) for medical reasons and because he should no longer be a career offender inasmuch as one of his predicate offenses was no longer considered a crime of violence.

The district court denied Antonio’s motion because his medical condition wasn’t that bad and he had gotten vaccinated. The district court rejected Antonio’s career offender argument, finding that the issue should be raised in a 28 USC § 2255 motion. And even if Antonio had shown extraordinary and compelling reasons for relief, the court held that his release would not be justified under the 18 USC § 3553(a) sentencing factors because he had only done half of his sentence and 210 months was needed to address the seriousness of his crimes and the risk of recidivism.

Last week, the 4th Circuit reversed, holding that the district court wrongly failed to consider whether Antonio’s career-offender status claim was an extraordinary and compelling reason for release. “Years after Davis was sentenced,” the 4th said, “this Court held that a 21 USC § 846 [drug] conspiracy conviction… is not categorically a “controlled substance offense” for purposes of the career offender guidelines… If Davis were sentenced after that decision, he would no longer be designated a career offender…”

compassion160124In addition, the Circuit said, Antonio presented a second intervening change in law that would further reduce his sentence. Guidelines Amendment 782, added in 2014, retroactively lowered the base offense level for Antonio’s § 846 conviction by two points, but because he was a career offender, he was not eligible for the reduction. “Today,” the 4th said, “Davis would not be sentenced as a career offender [and he would be] eligible for the retroactive two-point reduction…”

If Antonio “were sentenced today,” the Circuit said, “his guidelines range would be 92 to 115 months—about half of his 210-month sentence.” Citing the Supreme Court’s 2022 Concepcion v. United States decision, the 4th said, “Concepcion’s broad reasoning permits federal judges to think expansively about what constitute ‘extraordinary and compelling reasons’ for release, absent specific congressional limitations. And the Sentencing Commission’s latest guidance goes a long way to resolve any remaining questions of congressional intent not answered by the Supreme Court’s decision.”

The 4th concluded that “the district court abused its discretion by declining to address Davis’s change-in-law and rehabilitation arguments in its “extraordinary and compelling reasons” analysis. We also find that, given the mitigation evidence Davis supplied, the substantial changes in law between the original sentencing and today, and the potentially gross sentencing disparity created by those changes, the district court’s explanation of the § 3553(a) factors is insufficient.”

United States v. Davis, Case No. 21-7325, 2024 U.S. App. LEXIS 9399 (4th Cir, Apr 18, 2024)

‘Everything Depends on Your Reasons’ For Compassionate Release, 10th Circuit Says – Update for April 17, 2024

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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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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

The “Hollowayers” Work To Produce Another Hit – Update for April 5, 2024

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‘HOLLOWAY PROJECT’ BATTLES DOJ ON COMPASSIONATE RELEASE

honeymooner240405Longer ago than I care to recall (I was not yet in kindergarten), Jackie Gleason rocketed to fame as one of the creators and star of “The Honeymooners.” Now, about seven decades later, John Gleeson is the star of his own production – no comedy here – leading what may soon bear a dramatic fight to peel away what he calls the injustice of “stacked” mandatory federal prison sentences.

I was saddened to see Judge Gleeson give up his lifetime appointment on the federal bench eight years ago for white-shoe Wall Street law firm Debevoise & Plimpton. I could hardly blame him: D&P reportedly started him at well above minimum wage (even California minimum wage). But I selfishly wanted him to stay on as an Eastern District of New York judge for no other reason than his cerebral and compassionate approach to federal sentencing. I figured that Debevoise probably didn’t do a lot of court-appointed federal defense work, and we thus had probably seen the last of Judge Gleeson’s fresh and intelligent approach to sentencing.

What did I know? Eight years later, Judge Gleeson not only sits on the U.S. Sentencing Commission, he’s leading a D&P Initiative that could soon face off with the Department of Justice at the Supreme Court.

gleesonB160314Bloomberg Law reports that Judge Gleeson is the driving force behind “The Holloway Project,” a pro bono program that represents prisoners convicted of multiple 18 USC § 924(c) offenses prior to the passage of the First Step Act. The Project’s goal is to reduce the sentences for clients they believe have been rehabilitated after decades in prison.

The project is named for Francois Holloway, who Gleeson himself sentenced to 57 years in a robbery/gun case but later reduced by convincing the U.S. Attorney for EDNY at the time, Loretta Lynch, not to get in the way.

(Parenthetically, the Holloway resentencing spawned a cottage industry of low-brow post-conviction consultants who were hawking “Holloway motions” to prisoners. I heard from a lot of people asking how to file Holloway motions, only to be disappointed when I told them that all they had to do was get the U.S. Attorney and their judge to agree that they should be let out. The universal response: “The prosecutor will never agree to that!”   No kidding. It was hardly Judge Gleeson’s fault that bottom-feeders tried to bilk inmate families on the basis of the Judge’s extraordinary effort on Francois’s behalf, but the Holloway case  was a true Black Swan.)

blackswan170206Back to today: As a Sentencing Commission member, Judge Gleeson championed the adoption of USSG § 1B1.13(b)(6), a subsection of the new Guidelines policy statement on sentence reduction motions (commonly if inaccurately called “compassionate release” motions). which defines overly long sentences where the law has changed as an extraordinary and compelling basis for an 18 USC § 3582(c)(1) sentence reduction. Subsection (b)(6) defines when a nonretroactive change in the law that would reduce a current sentence dramatically if it were retroactive could constitute an “extraordinary and compelling” reason for a sentence reduction under 18 USC § 3582(c)(1)(A).

Subsection (b)(6) is important to compassionate release for the same reason all of USSG § 1B1.13(b)(6) is important. Section 3582(c)(1)(A) authorizes a judge to grant a sentence reduction when three conditions are met:

•  the reduction must be for “extraordinary and compelling reasons.”

•  the reduction must be consistent with applicable Sentencing Commission policy statements.

•  the reduction must be “consistent” (whatever that means) with the sentencing factors of 18 USC § 3553(a).

When Congress enacted § 3582 as part of the Sentence Reform Act of 1984, it stipulated that rehabilitation alone was not an extraordinary and compelling reason for a sentence reduction. As for what might be, Congress did not say. Instead, it delegated to the Sentencing Commission the authority and duty to define exactly what situations constitute “extraordinary and compelling reasons” under the statute.

Guideline 1B1.13 is the Commission’s response, listing by my count 17 situations that are extraordinary and compelling. Of focus to Judge Gleeson’s team is USSG § 1B1.13(b)(6), which says

Unusually Long Sentence.—If 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.

Before the new 1B1.13 was adopted last year, some Circuits ruled that judges – who remain free to consider other factors as being “extraordinary and compelling” – could consider changes in the law as a basis for compassionate release. Others flatly refused to approve such bases for compassionate release. When the Circuit split reached the Supreme Court a year ago, the DOJ urged SCOTUS to wait to consider the issue until the USSC adopted its new policy statement as Congress required.

Now that the Commission has adopted new rules, DOJ is arguing in multiple cases that the Commission exceeded its authority by making the change.

“What [DOJ] said very early on is that their nationwide litigation position was that they are objecting to this provision as an overstep from the Sentencing Commission,” said University of Chicago law professor Erica Zunkel.

A February Northern District of Georgia court decision complained the DOJ had “contradicted itself” by arguing that the Commission doesn’t have the power to answer questions it once urged the Commission to answer:

The DOJ has previously argued that courts should refrain from addressing the retroactivity question because “it should be addressed first by the Commission.” The Commission has now addressed the issue. How can the Commission have the authority to address the question but exceed that authority by addressing the question? This argument lacks merit.

The issue is currently before other district and appeals courts. Gleeson and others expect it will reach the Supreme Court.

moonalice240405When it does, expect Debevoise to be there. Unfortunately, Judge Gleeson himself will not be: as a member of the Sentencing Commission, he will recuse himself from participating in a case arguing the Commission’s authority.

To the moon, DOJ! To the moon!

Bloomberg Law, Debevoise, DOJ Sentencing Reform Clash Could Hit Supreme Court (March 21, 2024)

United States v. Allen, Case No. 1:09-cr-320, 2024 U.S.Dist. LEXIS 28049 (NDGa, February 12, 2024)

– Thomas L. Root

“A Reason It’s Called Compassionate Release,” Judge Black – Updated for February 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.

MAN BITES DOG

manbitesdog190318Other than Judge Aileen Cannon (who just yesterday decided that the MAGAverse could know all about government witnesses who are already getting death threats in the Mar-A-Lago documents case), federal judges hardly ever draw media criticism. Judges rage at people, but people hardly ever rage back.

A Cincinnati TV station, however, has done just that. WCPO-TV blasted Southern District of Ohio Judge Timothy Black for “neglecting his criminal cases, keeping a dead person on his docket, and ignoring inmates who filed emergency motions for release during the COVID-19 pandemic for several years.”

denied190109The station has reported that Judge Black “ignored motions filed by many inmates with health problems who urgently asked for release from prison during the peak of the pandemic, for as long as three years.” When the TV station pressed the judge for answers about the delay, Judge Black “finally took action in the days before and after Christmas 2023, denying motions from 15 defendants. Some motions were so old, that they had become moot because the Bureau of Prisons had already released inmates months or years prior.”

delayed200115“The reason it’s called compassionate release is because there’s an immediacy to it. Addressing the immediate need three years later, is just wrong,” said attorney Jay Clark. “There is no timetable, no time limit, no deadline that the judges have to meet, but there has to be some measure of reason.”

WCPO-TV, ‘I simply cannot wait any longer. I am dying’: Inmate waits 3+ years for judge to rule on COVID early release (January 26, 2024)

– Thomas L. Root

DOJ Speaks With Forked Tongue… Again – LISA Update for February 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.

COURTS STARTING TO REJECT DOJ’S ATTACK ON NEW COMPASSIONATE RELEASE GUIDELINE

You may remember the old Dept of Justice bait-and-switch a year ago. DOJ told the Supreme Court that it shouldn’t grant review of acquitted conduct petitions because the Sentencing Commission was going to address the issue. Then, less than a month later, DOJ filed comments telling the Sentencing Commission that it lacked the authority to address acquitted conduct at all.

The DOJ’s at it again. Before the Sentencing Commission adopted a new USSG § 1B1.13 – the compassionate release guideline that became effective last November – there was a circuit split on whether a long sentence that was mandatory before the First Step Act passed but could no longer be imposed after First Step passed could constitute an extraordinary and compelling reason for a sentence reduction.

(This difference in sentence length depending on when the sentence was imposed is called “temporal disparity”).

Six circuits said temporal disparity could never be extraordinary and compelling. Five circuits said it could. The government opposed certiorari petitions in a number of cases that asked the Supreme Court to resolve the issue. The government told SCOTUS that the issue should be addressed by the Sentencing Commission, not the Court.

Now the Sentencing Commission has addressed it, directing in § 1B1.13(b)(6) that temporal disparity can be extraordinary and compelling if the inmate has done 10 years, if there’s a great sentence disparity, and if the inmate has a good prison record.

thereyougo240205What is the DOJ’s response to that? It has filed oppositions all around the country, arguing that the Sentencing Commission’s (b)(6) guideline exceeded its statutory authority and is invalid. As Ronald Reagan used to say to Jimmy Carter, “There you go again…”

The government’s cookie-cutter oppositions are now being decided. A late November Southern District of Indiana decision in United States v. Jackson held that 7th Circuit precedent holds that the statutory definition of ‘extraordinary’ does not extend to temporal disparity, “which means there is a question about whether the Sentencing Commission exceeded its authority when it added this item to the list of potentially extraordinary and compelling reasons warranting a sentence reduction…” But because the defendant didn’t meet the 10-year minimum sentence required for a compassionate release under (b)(6), the court did not rule on its “question.”

In United States v. Carter, an Eastern District of Pennsylvania decision from three weeks ago, the district court ruled that the 3rd Circuit’s 2021 United States v. Andrews decision, which held a change in the law could never be an extraordinary and compelling reason for compassionate release “forecloses Carter’s argument that he is eligible… 1B1.13(b)(6) states that an ‘unusually long sentence’ may be deemed an extraordinary and compelling reason’ warranting compassionate release… That provision… is incompatible with Andrews…”

Two thoughtful decisions issued last week clash with Carter’s holding and Jackson’s implication.

In United States v. Capps, an Eastern District of Missouri court rejected the government’s argument that because First Step did not make changes in 18 USC § 924(c) and 21 USC § 841(b) retroactive, the Sentencing Commission cannot do so, either. “Congress is not shy about placing sentencing modification limits where it deems them appropriate,” the Capps court said. “Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction. The absence of any such limitation is telling.”

The best repudiation of the government’s attempt to strip § 1B1.13(b)(6) of legitimacy came last Thursday. In United States v. Padgett, a Northern District of Florida district court ruled that making temporal disparity an “extraordinary and compelling” reason for compassionate release was exactly the kind of decision Congress intended the Commission to make.

toofar240205“The government acknowledges that Congress directed the Commission to address the meaning of extraordinary and compelling,” the district court said. “But the government asserts the Commission went too far, because, the government says, a temporal disparity, no matter how great or how unusual, can never provide an extraordinary and compelling reason for a sentence reduction.”

The Court ruled:

The very fact that the circuits split on this issue suggests the meaning of ‘extraordinary and compelling’ is not as clear as the government now asserts. Instead, this is precisely the kind of issue Congress called on the Commission to resolve. Indeed, in United States v. Bryant… the 11th Circuit held binding the Sentencing Commission’s prior policy statement on this very issue, emphatically explaining that Congress left it to the Sentencing Commission to define ‘extraordinary and compelling,’ subject only to the requirement that rehabilitation alone is not enough. The Bryant court said relying on the Commission promotes uniformity, thus minimizes unwarranted sentence disparity, and that defining these terms is ‘not a task that the statute allocates to courts… A district court’s job is ‘simply’ to apply the Commission’s policy statements and, as required by the statute, consider the 3553(a) sentencing factors in deciding whether to reduce an eligible defendant’s sentence.

There is little doubt that the government or a defendant will fight this to the Supreme Court. For now, the proper application of the temporal disparity compassionate release guideline will be as random as it ever was before the new § 1B1.13.

United States v. Jackson, 2023 U.S.Dist. LEXIS 208272 (S.D. Ind, November 21, 2023)

United States v. Carter, 2024 U.S.Dist. LEXIS 6504 (E.D. Pa., January 12, 2024)

United States v. Capps, Case No 1:11cr108 (E.D. Mo., January 31, 2024)

United States v. Padgett, Case No 5:06cr13 (N.D. Fla., January 30, 2024)

– Thomas L. Root

Whose Motion Did You Just Deny, Judge? – Update for December 15, 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.

I NEVER SAID THAT

Neversaidthat231215Ever feel like the court was reading something other than your motion when it denied you relief?

Robin Sims filed for compassionate release under 18 USC § 3582(c)(1)(A), arguing that COVID had wrecked his health and the Federal Bureau of Prisons was not giving him adequate care. The government agreed that at least one of Robin’s chronic medical conditions was an “extraordinary and compelling” reason for a compassionate release, but it opposed Robin’s motion because the 18 USC § 3553(a) sentencing factors failed to support letting Robin out at this time.

The district court, however, released an opinion smacking of alternate reality. It first held that Robin’s argument for release “due to the increased risk of contracting COVID and changes in the law arguments [did] not amount to an extraordinary and compelling reason warranting a sentence reduction.” The court also noted the government’s opposition claim that there were no extraordinary and compelling reasons for granting compassionate release. Finally, the district court concluded, the § 3553(a) factors weighed against grant. The court denied the compassionate release on those bases.

twooutofthree231214Last week the 9th Circuit reversed the district court denial, holding that “the government and the district court misread Sims’s pro se motion.”

The district court and government were unforgivably sloppy. First, the government summarized Robin’s argument as being that “extraordinary and compelling reasons exist because the coronavirus (COVID-19) places him at risk if he remains in the custody of BOP.”

Robin never said that. Rather, he argued that he was experiencing ongoing medical complications because of the COVID he had had. He challenged the adequacy of the BOP medical care. Robin relied on these reasons, in addition to intervening changes in the law, to show extraordinary and compelling reasons in support of a reduced sentence.

The 9th also ruled that the district court’s order misstated the government’s position by mistakenly saying that the government opposed Robin’s motion because he had failed to show extraordinary and compelling reasons.  The government had said just the opposite.

mistake170417Doesn’t matter, the government told the 9th Circuit. The district court errors were harmless, the government contended, because the judge had also found that the § 3553(a) factors disfavored Robin’s motion. The Circuit disagreed. “[M]otions for compassionate release require an individualized inquiry,” the Circuit held, and “here, we see no indication that the district court considered Sims’s argument that his health and medical care needs were ‘extraordinary and compelling,’ or that it reviewed the medical records [he] submitted in support of his motion.

The case now goes back to the district court to consider the 18 USC § 3553 factors in light of the extraordinary and compelling reasons Robin had shown.

United States v. Sims, Case No 22-3430, 2023 U.S.App. LEXIS 32310 (8th Cir., December 7, 2023)

– Thomas L. Root