Tag Archives: compassionate release

Government Seeks to Bushwhack Disparate-Sentence Compassionate Release Guideline – Update for December 11, 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.

TIGER TRIES TO EAT ITS YOUNG

Traditionally, the Department of Justice defends federal statutes and regulations from constitutional attack. In fact, DOJ’s role as watchdog over the sanctity of its statutes and rules is so established that the Federal Rules of Civil Procedure require a private litigant to serve the Attorney General in a lawsuit against another private party if the litigant is claiming that any federal statute is unconstitutional.

tigers231211I have seen cases in the past where the government conceded that the application of a statute was unconstitutional – but usually after the Supreme Court has found the statute itself to violate the Constitution. Good examples abound, such as United States v. Brown, a 2nd Circuit summary order noting that where “the underlying crime of violence was a racketeering conspiracy… [t]he Government concedes that the Supreme Court’s recent decision in United States v. Davis… requires vacatur of those counts of conviction [under 18 USC 924(c)]”).

But I don’t recall a case where the government has mounted a defense based on the argument that the federal agency rule applicable to the private party’s claim was void as contrary to federal statute. Until now.

To channel Rodney Dangerfield, this is a case of a tiger eating its young.

The new USSG § 1B1.13(b)(6) – the Guideline that sets out binding Sentencing Commission policy on 18 USC § 3582(c)(1)(A) “compassionate release” sentencing reductions – holds that where a prisoner has

an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law… 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…

You may recall that when this provision was adopted by the Commission last April, it generated vigorous debate and passed on a whisker-thin 4-3 vote.

retro160110Now, in United States v. Brand, a compassionate release case in the Northern District of Florida, the government has opposed a prisoner’s request for relief from a sentence of stacked 18 USC § 924(c) convictions by arguing that USSG § 1B1.13(b)(6) is an unconstitutional expansion of Sentencing Commission authority because it effectively makes nonretroactive changes in the law retroactive. The thrust of the government’s defense is that Congress did not make changes in 18 USC § 924(c) retroactive when it passed the First Step Act five years ago, that this was a deliberate choice made by Congress, and that the Sentencing Commission’s decision to define the sentence disparity resulting from people sentenced before First Step have dramatically higher stacked 924(c) sentences than people sentenced after First Step as “extraordinary and compelling” is unlawful: “Although Congress has delegated broad authority to the Sentencing Commission, subsection (b)(6) is contrary to the text, structure, and purpose of 18 U.S.C. § 3582(c)(1)(A) and 28 U.S.C. § 994(a), and is therefore invalid.”

I think the argument is strained. Besides trying essentially to engraft Administrative Procedure Act standards (see 5 USC § 706, for instance) onto a judicial agency that is not subject to the APA, I think that the biggest hole in the government’s argument is that – unlike other agency rules – under 28 USC § 994(p), Guideline amendments (and an explanation of why they are being proposed) must be submitted to Congress 180 days before effectiveness to give Congress a chance to modify or disapprove the amendments. Congress’s right to modify or disapprove makes it tough to argue, as the government does, that the Commission’s reading of the compassionate release statute “exceeds the gap left by Congress.” If Congress had thought the new § 1B1.13(b)(6) was overreaching, outside the Commission’s authority, or contrary to the non-retroactivity of First Step, it had six months to say so.

The government relies on Mayo Foundation for Med. Educ. & Research v. United States, but in that case, the court notes that “the ultimate question is whether Congress would have intended, and expected, courts to treat [the regulation] as within, or outside, its delegation to the agency of ‘gap-filling’ authority.” Here, I think, the existence of the six-month review period and Congress’s election not to modify or veto during that period is more than ample evidence of Congress’s intent.

lincolnfool161125But the real danger in Brand is this: The court denied the prisoner appointment of counsel right about the time the government lodged its novel constitutional claim that Federal Rule of Civil Procedure 5.1 requires a party contesting the constitutionality of a federal statute to serve the Attorney General of the United States with notice of the action. Under 28 USC § 2403(a), a court ruling on such a challenge is required to do the same. Upon receiving notice, the Attorney General has a right to intervene as a party in the case and present evidence. Both of these requirements suggest that the government has a compelling interest in defending the sanctity of its rules and statutes.

So what happens when the Attorney General himself contests the lawfulness of a federal regulation, especially where it is a quasi-statute as is a sentencing guideline? Expecting a pro se prisoner to competently defend the lawfulness of a federal rule against the government puts a lot of weight on the shoulders of the inmate. What is more, it is almost certain to result in steamrolling the government’s position into the final order, resulting in the making of a bad ruling out of an unbalanced contest.

Sentencing Commission guideline 1B1.13(b)(6) has the tacit approval of Congress. If any compassionate release defense calls for the appointment of counsel, defending the lawfulness of a properly adopted guideline does.

United States v. Brown, 797 Fed.Appx 52, 54 (2d Cir. 2019)

United States v. Davis, 588 U.S. —, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019)

Gvt Response to Motion for Compassionate Release (ECF 108), United States v. Brand, Case 8:11-cr-380 (N.D.Fl., filed November 17, 2023)

Mayo Foundation for Med. Educ. & Research v. United States, 562 US 44 (2011)

– Thomas L. Root

District Court’s Detailed Compassionate Release Decision Is a Treat – Update for December 8, 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.

THE HOPEFUL FUTURE OF COMPASSIONATE RELEASE

From the 11th Circuit last week – traditionally, the place where motions for compassionate release went to die – comes a detailed, thoughtful order granting release to a prisoner serving a life sentence for drug distribution.

cocaine170511Bill Vanholten was about 12 years into a life sentence for trafficking cocaine, a sentence he got because he had two prior convictions for selling two dime bags of marijuana, about $20.00 worth, to two undercover cops when he was 19 years old in 1994. In January 2012, Bill was charged with possessing 10 kilograms of cocaine. At the time, a defendant charged with that quantity of cocaine who had two prior drug felonies would get a mandatory life sentence if the government filed what is known as a 21 USC § 851 enhancement with the court.

The government has traditionally used 851 enhancements as a bludgeon to force defendants to cooperate. If the defendant won’t snitch, the government files the 851 and rachets up the minimum sentence dramatically. Bill wouldn’t budge, refusing to identify his source for the coke, so the government filed the 851 notice of two prior drug felonies, a 2006 federal coke charge and one of the “dime bag” offenses. Those two priors mandated a life-without-parole sentence, which, the court said unhappily, it was required to impose.

Six years later, the First Step Act modified the list of prior offenses qualifying for 851 enhancements and lowered the mandatory minimums. After First Step, the “dime bag” offense would not count as a serious drug offense for a 21 USC § 851 enhancement. On top of that, the mandatory minimum sentence for a single 851 enhancement prior dropped to 15 years. If Bill had been sentenced after First Step passed, his court would have only been required to sentence him to 15 years.

compassion160124The First Step Act also permitted defendants to file sentence reduction motions – so-called compassionate release requests – under 18 USC § 3582(c)(1)(A). Before the Act, only the Federal Bureau of Prisons could bring such a request on an inmate’s behalf, an event as rare as a snow flurry on July 4th. All that stood in the way was the Sentencing Commission’s guideline on compassionate release, USSG § 1B1.13. That guideline, written prior to First Step, narrowly circumscribed what “extraordinary and compelling” reason could justify sentencing reduction and required that any reduction be “consistent” with applicable Sentencing Commission policy.

Section 1B1.13 could have been updated by the Sentencing Commission in 2019, but the Commission lost its quorum through the expiration of commissioner terms only a few days after the First Step Act passed.

Most federal circuits recognized the obvious, that the creaking 1B1.13 relic – written long before First Step was even dreamed of – was Commission policy but not “applicable” Commission policy. Only two of the 12 federal circuits remained mired in the past, not permitting any reason for compassionate release not specifically written into the guideline. Bill’s Circuit was one of them.

Four years later, the Sentencing Commission regained a quorum and immediately set to amending 1B1.13. The amendment became effective on November 1, 2023.

sarcodiosis23128In 2022, Bill moved for compassionate release, citing his sarcodiosis, a chronic condition characterized by inflammation in the lungs and other organs, as justification. His court-appointed an attorney to help Bill, who added an argument that the change in the law provided an independent reason for compassionate release. Bill’s lawyer asked the court to sit on the motion until the new 1B1.13 became effective. When it did, the government agreed that Bill’s medical condition established “extraordinary and compelling” reasons warranting release both alone and combined with other factors.

Last week, the court reduced Bill’s life sentence to time served (which, considering Bill’s accumulated good time, now equals 15 years.

The district court’s decision is a model of careful scholarship and proper application of the new 1B1.13. The court relies on Sentencing Commission studies to hold that Bill’s sentence

is an outlier among drug trafficking offenders… Federal prosecutors do not uniformly seek § 851 enhancements, so sentences for offenders like him vary considerably… Some judicial districts see § 851 notices filed for as many as 75% of eligible drug trafficking defendants whereas other districts do not see them filed at all. Since most offenders confronted with an enhanced sentence cooperate, a little less than 4% of eligible defendants ultimately face an enhanced penalty at sentencing… Those in the 4% receive prison terms roughly ten years longer than the average sentence for similar offenders who evaded the enhanced penalty, and twelve years longer than the average for eligible offenders against whom the notice was never filed.

The court candidly admitted that Bill “received one of these unusually long sentences as a de facto punishment for not cooperating.” While the court acknowledged that Bill’s sentence could not be completely compared with a 13-year sentence a cooperator with a similar record had received (because Bill did not cooperate and thus did not receive credit for doing so), it noted nonetheless that the differences between the defendants “do not wholly account for the more than twenty-year disparity between a thirteen-year prison term and life behind bars.”

lock200601The court observed that Bill “received a sentence at least twenty years longer than the fifteen-year minimum Congress now deems warranted for offenders like him. He had a criminal history category of II, comprised entirely of nonviolent offenses, which would warrant nothing close to a life sentence under the guidelines. Whatever ‘significant period of incarceration’ this Court may have settled on at the original sentencing, had it any discretion back then, would not have come within twenty years of Mr. Vanholten’s remaining life expectancy. A difference of a generation between the actual sentence and the sentence Mr. Vanholten would likely receive today no doubt makes for a gross disparity.”

Similarly, the court cited medical studies establishing that sarcodiosis fit the new 1B1.13(b)(1)(B) “extraordinary and compelling” reason that a defendant (1) is suffering from a serious physical or medical condition that (2) substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and (3) from which he is not expected to recover. “Though he is not at death’s door,” the court ruled, Bill’s “medical records show that his sarcoidosis is both chronic and persistent, hurting his lungs and pulmonary function. He is unlikely to recover from it. According to the opinion of medical experts, Mr. Vanholten’s morbidity puts him at a heightened risk of a sudden and serious cardiac event, and a decreased life expectancy,” citing medical journals. At the same time, the court relied on Bill’s records showing infrequent consultation with specialists and noted that the Dept. of Justice “makes no secret that the BOP’s chronic medical staffing shortage has made its ability to deliver healthcare a challenge.”

MerryChristmasBill231208The court released Bill, effective a week from today. Beyond the happy ending for a badly over-sentenced defendant, the court has given prisoners an early Christmas gift, a roadmap for effectively negotiating compassionate release under the new 1B1.13.

United States v. Vanholten, Case No. 3:12-cr-96 (M.D. Fla. Dec. 1, 2023), 2023 U.S. Dist. LEXIS 213764

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (2018)

– Thomas L. Root

Is DOJ Gunning for New Compassionate Release Guideline? Some Suspect So – Update for October 23, 2023

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RUMORS: WILL DEPT OF JUSTICE GO AFTER NEW COMPASSIONATE RELEASE GUIDELINE?

Ohio State University law professor Doug Berman wrote last week in his Sentencing Law and Policy blog that he has “heard talk that, notwithstanding the text of § 994(t), the Justice Department is planning to contest the new [compassionate release] guideline once it becomes effective on November 1.”

rumor231023Prof Berman does not cite his sources, but his credentials as among the premier federal sentencing law experts in the nation suggest that his report should be taken seriously. The Dept of Justice was adamantly opposed to the new USSG § 1B1.13(b)(6) – which directs that if a defendant has served at least 10 years of an unusually long sentence, a change in the law (other than a non-retroactive Guideline amendment) “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.” In fact, subsection (b)(6) was the cause of the Sentencing Commission’s extended debate and 4-3 vote split on approving 1B1.13.

Any DOJ litigation attack on 1B1.13 makes little sense. Congress has decreed in 28 USC 994(t) that the Sentencing Commission “shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” What’s more, Congress has built a veto mechanism into the Guidelines, giving legislators 180 days to reject what the USSC does before it becomes effective. It would be tough to argue that § 994(t) and the fact that Congress let the new 1B1.13 go into effect didn’t mean that any DOJ effort to convince a court to invalidate the new Guideline is doomed to failure.

The rumor may be stoked by a USA Today article last week that warned that “new Sentencing Commission guidelines will give [prisoners] a chance for compassionate release. But DOJ threatens to stand in the way.” The authors wrote that

mercy161107[t]he Sentencing Commission’s commonsense expansion of compassionate release makes us hopeful that our federal criminal system can carve out a little space for redemption, mercy and a recognition that we don’t always get it right the first time around. Unfortunately, even with the promise of and need for the commission’s new guidance, the future of compassionate release is uncertain. The Department of Justice has objected to the commission’s recognition that legal changes resulting in an unjust sentence can qualify as an extraordinary and compelling reason justifying relief.

The article cites the DOJ’s spirited opposition to what became 1B1.13(b)(6) – the “change in the law” provision” – of the compassionate release Guideline. But nothing in the DOJ’s opposition comments, which it was perfectly entitled to file, suggests that the government will try to get the amendment set aside judicially.

The USA Today article argued that

the commission’s ‘unusually long sentences’ provision is good policy. Far from a get-out-of-jail-free card, as some have suggested, it is instead a narrow recognition that a sentence imposed decades ago may, upon review today, be longer than necessary. The provision applies in limited instances where, among other things, the person has served at least 10 years in prison and there is a ‘gross disparity’ between their sentence and the one likely to be imposed today. Even then, an individual still must demonstrate that they will not pose a danger to the community and that their individualized circumstances weigh in favor of a sentence reduction….

Bottom line: I doubt that DOJ plans any omnibus attack on 1B1.13(b)(6). Rather, I suspect that the USA Today authors are extrapolating from the Department’s negative comments during the Guidelines amendment process.  Nevertheless, no one’s gone broke yet betting that the DOJ will not be both creative and vigorous in fighting to keep people locked up in order to honor a draconian but lawful sentence.

If Professor Berman seems a little alarmist to you, recall Sen. Barry Goldwater’s famous observation that “extremism in the defense of liberty is no vice. Moderation in the pursuit of justice is no virtue.” For now, I stand with the Professor.

gleesonB160314In other Sentencing Commission news, President Joe Biden last week nominated current federal judge Claria Boom Horn (who sits in both the Eastern and Western Districts of Kentucky) and retired federal judge John Gleeson to full 6-year terms on the Commission. Both of them – who were filling one-year interim terms on the USSC – are intelligent and thoughtful commissioners. I see Judge Gleeson – author of what came to be known as the “Holloway motion” when he used his legal and persuasive authority to correct a grossly unjust sentence – to be a little better rounded on sentencing policy.

That being said, one only has to remember former Commissioner Judge Danny Reeves, Bill Otis and Judge Henry Hudson to realize that the weakest commissioner on the USSC now (and I do not mean to imply that the weakest commission is either Judge Horn or Judge Gleeson) stands far above the ones President Trump favored but was unsuccessful in placing on the Commission.

Sentencing Law and Policy, Urging the Justice Department to respect the US Sentencing Commission’s new guidelines for compassionate release (October 18, 2023)

USA Today, First Step Act advanced prison reform, but hundreds are still serving unjust sentences (October 18, 2023)

White House, President Biden Names Fortieth Round of Judicial Nominees and Announces Nominees for U.S. Attorney, U.S. Marshal, and the U.S. Sentencing Commission (October 18, 2023)

– Thomas L. Root

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

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CERT PETITION TAKES AIM AT COMPASSIONATE RELEASE CIRCUIT SPLIT

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

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

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

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

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

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

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

– Thomas L. Root

First Step’s Coming Birthday Reason for Hagiography – Update for October 19, 2023

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FIRST STEP ACT TURNS FIVE YEARS OLD

Cake201130The anniversary is still 63 days away, but a couple of early hagiographic articles on the First Step Act’s 5th birthday are already being posted.

The Crime Report said last week that First Step “now allows federal inmates to significantly reduce their actual penal custody time. That fits into the primary goal of The Act, which is to reduce recidivism among nonviolent offenders through greater emphasis on rehabilitation in the Bureau of Prisons.”

The philanthropy Arnold Ventures interviewed Colleen P. Eren, Ph.D., author of a new book, Reform Nation: The First Step Act and the Movement to End Mass Incarceration. She noted that “33,000 people have been released from federal prison so far under the First Step Act, according to FAMM. The recidivism rate for those people is 12.4% compared to a rate of around 43% for others exiting federal prison. The First Step Act made President Obama’s Fair Sentencing Act of 2010 retroactive, resulting in the release of around 4,000 people who were sitting in prison under the 1987 crack cocaine sentencing disparity. It also made it easier to get compassionate release, and a total of 4,500 people have been released under that change.”

compromise180614First Step was far from perfect, but Dr. Eren says that’s more of a feature than a bug. “The First Step Act is an example of people not letting the perfect be the enemy of the good. There were differences to negotiate between conservative reformists and progressive reformists. Conservatives think that the incarceration system went too far but that it’s not fundamentally flawed… Left-leaning organizations refused to give their support until sentencing reform was included, which was significant… The left had to accept the PATTERN risk assessment – They said it was racist, reinforced existing disparities, and didn’t go far enough toward ending mass incarceration. It was a classic reform-versus-revolution tension.”

Five years into the Act, the BOP has yet to work out properly accounting for FSA credits and placing prisoners with credits in halfway house and home confinement appropriately. But as frustrating as the implementation of First Step has been, life before the Act passed was much bleaker.

The Crime Report, The First Step Act: A Five-Year Review and the Path Forward (October 10, 2023)

Arnold Ventures, Historic Bipartisan Justice Reform Turns Five (October 6, 2023)

Colleen Eren, Reform Nation: The First Step Act and the Movement to End Mass Incarceration (Stanford Univ Press, Sep 2023)

– Thomas L. Root

Compassionate Release Denial Too Short on Detail, 5th Circuit Says – Update for September 6, 2023

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5th CIRCUIT SAYS ‘HELP US OUT A LITTLE HERE’ ON COMPASSIONATE RELEASE DENIAL

stanford230904When Allen Stanford, one of America’s leading fraudsters, applied for compassionate release under 18 USC § 3582(c)(1)(A) for a third time, his district court was tiring of him just a bit. The judge denied Allen’s latest attempt at a legal jailbreak  with a terse denial: “[H]aving considered the motion and the applicable law, the Court determines that the foregoing motion should be denied.”

In an August 17 order, the 5th Circuit wanted to give the judge the benefit of the doubt. “[T]he same district judge has ably presided over every chapter of the Stanford saga, and has previously found that Stanford ‘perpetrated one of the most egregious criminal frauds ever presented to a trial jury in federal court’,” the Circuit said, suggesting the district judge probably made a bulletproof decision in denying Allen’s motion and telling him to work toward his release date on March 31, 2103, a mere 79-1/2 years from now.

Nevertheless, the process matters, the 5th seemed to say:

puzzled201223[T]he district court’s order does not tell us that the court based its decision on the § 3553(a) factors. It states only that the court ‘considered [Stanford’s] motion and the applicable law’ and determined that the motion should be denied. We therefore have no reliable indication of the reason for the court’s decision to deny relief. We do not know whether the court denied Stanford’s motion because it concluded—despite new arguments and allegedly new facts—that the § 3553(a) factors still do not warrant early release, or because it concluded that Stanford’s situation is insufficiently ‘extraordinary and compelling,’ or both… Stanford’s third compassionate-release motion may have little chance of success. But judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.

The Circuit remanded the case “for the district court to explain its reasons for denial.”

United States v. Stanford, Case No. 22-20388, 2023 U.S. App. LEXIS 21624 (5th Cir. August 17, 2023)

– Thomas L. Root

“Hold My Beer,” 4th Circuit Says in Compassionate Release Case – Update for August 18, 2023

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APPEALS COURT TAKES GRANT OF COMPASSIONATE RELEASE MOTION INTO ITS OWN HANDS

Appellate courts are usually much more circumspect in reversing trial courts, vacating a decision but not explicitly directing the district judge how to decide things on remand.

holdmybeer230818Not that the savvy district judge doesn’t read between the lines. An appellate court vacatur with a suggestion – often implicit – that the district court needs to think about the case differently usually leads to a different ruling the second time around.

Not always. When Kelvin Brown was convicted of drug trafficking nine years ago, the jury also found him guilty of two 18 USC § 924(c) counts as well. Back then, the first § 924(c) carried a mandatory minimum sentence starting at five years. The second conviction – even if it resulted from events the next day – required an additional mandatory minimum of 25 years. The district court thus sentenced Kelvin to 30 years in prison for his two § 924(c) convictions and stacked another 27 years on him for the various drug offenses.

Six years later, during the height of the COVID crisis, Kelvin moved for compassionate release under 18 USC § 3582(c)(1)(A). The judge turned him down flat without even asking the government to respond. Kelvin appealed, and the 4th Circuit remanded, directing the district court to consider the fact that Kelvin got 20 more years for the gun than he would have had to get after the First Step Act passed in 2018 in light of the Circuit’s decision in United States v. McCoy.

extraordinary220719The district court denied Kelvin a second time in December 2021, again neglecting to address the whopping § 924(c) sentences despite (as the 4th Circuit put it) “our express recognition in our previous remand order that McCoy – and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release – is relevant to this case.”

Two days ago, the 4th Circuit threw up its hands and told the district judge to watch how it’s done. The 4th cut Kelvin’s sentence by 20 years (which still leaves him with 37 years to do), both expressing its frustration and apologizing for its interference:

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction. We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions… So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance. Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration. Each time, the district court neglected to address Brown’s disparate sentence.

The Circuit also found that Kelvin’s disparate sentence strongly affects the 18 USC § 3553(a) sentencing factors: “The First Step Act‘s amendment to § 924(c) reflects Congress’s judgment that sentences like Brown’s are dramatically longer than necessary or fair,” the appeals court said, “and, in turn, are not necessary to serve the ends of § 3553(a)(2).”

dungeon180627Notable in the 4th’s analysis is its holding that the need for Kelvin’s longer sentence has been called into question because COVID-19 created hardship in prison life “not contemplated by the original sentencing court” and that those hardships have “undoubtedly increased his prison sentence’s punitive effect.” The Circuit observed that Kelvin’s facility was placed on lockdown in response to the pandemic, during which he was “confined to his cell for 22.5 hours a day,” and the recreation areas were closed.” The majority opinion said, “Even if those factors have been mitigated by the evolving circumstances of the pandemic, that they plagued Brown at any point has made his incarceration harsher and more punitive than would otherwise have been the case… Therefore, Brown’s drastic sentence, which might have been ‘sufficient but not greater than necessary’ before the coronavirus pandemic, may no longer be justified.”

The opinion also emphasizes that Kelvin’s “one disciplinary infraction throughout his incarceration—a fact the district court also failed to mention—casts further doubt on the court’s concern for the safety of the community. And while the court did briefly consider Brown’s rehabilitative efforts” – which included a stack of programming and mentoring work to his credit – “it failed to weigh how those efforts ameliorate any risk posed to Brown’s community upon his release.” Citing Pepper v. United States, the Circuit ruled that such “postsentencing rehabilitation minimizes the need for the sentence imposed to protect the public from further crimes of the defendant, and provides the most up-to-date picture of Brown’s history and characteristics, which also favors a sentence reduction.”

illdoitmyself230818The 2-1 opinion is remarkable not only for the fact that an appellate court took the unusual step of granting a compassionate release motion itself but because of the reliance on the harshness of Bureau of Prisons conditions during the pandemic and the elevation of post-sentencing conduct as a factor in § 3553(a) analysis in reaching its decision.

United States v. Brown, Case No. 21-7752, 2023 U.S. App. LEXIS 21403, at *24-25 (4th Cir. Aug. 16, 2023)

United States v. McCoy, 981 F.3d 271 (4th Cir. 2020)

Pepper v. United States, 562 U.S. 476 (2011)

– Thomas L. Root

‘Patience, Patience’ on Guidelines Changes, DC Circuit Says – Update for August 4, 2023

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DC CIRCUIT IS NOT AN EARLY ADOPTER OF NEW COMPASSIONATE RELEASE STANDARDS

Louis Wilson – convicted 26 years ago of several counts, including killing a federal witness – filed for compassionate release under 18 USC § 3582(c)(1)(A)(i), seeking to cut his life sentence to time served.

Louie argued that the extraordinary and compelling reasons supporting his compassionate release motion included (1) if United States v. Booker and Apprendi v. New Jersey had been decided prior to his sentence, he would have gotten 25 years instead of life because the district court considered additional facts during sentencing not proven to a jury; (2) the national murder sentencing statistics have “trended downward;” and (3) his medical conditions plus his exemplary prison citizenship supported compassionate release.

patience230804Louie argued that the purported intervening changes in law went to his length of time served and should constitute extraordinary and compelling reasons. The district court concluded, however, that time served in prison “does not in and of itself constitute an extraordinary and compelling circumstance.” After considering the 18 U.S.C. § 3553(a) factors, the district court denied Louie’s motion.

Last week, the D.C. Circuit denied Louie’s appeal.

Under D.C. Circuit precedent in United States v. Jenkins, change in law arguments cannot be extraordinary and compelling reasons supporting compassionate release. But, Louie argued, since the D.C. Circuit decided Jenkins, the Sentencing Commission amended the Guidelines (to be effective November 1st absent Congressional veto) regarding what constitutes an extraordinary and compelling reason for release. The proposed guidelines state that district courts may consider a “change in the law” to ‘determine whether the defendant presents an extraordinary and compelling reason’ for release if he has “served at least 10 years [of] an unusually long sentence.”

Without explanation, the Circuit refused to “decide whether Wilson’s contentions would constitute extraordinary and compelling reasons under the not-yet-effective guidelines.”

The lesson is that no one should expect a Circuit to do now what its precedent says it cannot do. Wait until November.

United States v. Wilson, Case No. 21-3074, 2023 U.S. App. LEXIS 18608 (D.C. Cir. July 21, 2023)

– Thomas L. Root

A Compassionate Release Math Lesson – Update for June 15, 2023

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3582 ≠ 2255, 6TH CIRCUIT SAYS

Most of the time, unsavory houseguests nick a towel from the bathroom or a spoon from the silver. Not Lennie Day. While staying at Roy West’s Akron, Ohio, house (the decision says he was “hiding out”), Lennie stole $300,000 in cash and jewelry, a .40-caliber gun, and car keys.

houseguest230615If this had been an Airbnb rental, Lennie would have gotten a flaming’ bad review.

Roy, appalled at Lennie’s poor manners, felt that he should confront his erstwhile guest and upbraid him for his rudeness. So Roy organized a posse of friends, led them to Detroit, and asked them to locate Lennie
so that he could express his unhappiness directly to Lennie. He didn’t find him, but later, Lennie passed away after being perforated by several bullets. Sadly, Roy never got to tell Lennie what a faux pas his guest had committed…

In 2014, Roy was convicted for his participation in what the government labeled a murder-for-hire conspiracy targeting Lennie. He was sentenced to life in prison. His direct appeal and a post-conviction motion under 28 USC § 2255 failed.

Eight years later, Roy sought compassionate release under 18 USC § 3582(c)(1)(A). He argued that extraordinary and compelling reasons for the reduction included his risk of catching COVID, his rehabilitation, and – raising it for the first time – that his sentence violated Apprendi v New Jersey, a 2000 Supreme Court decision holding that any statutory sentencing enhancement had to be supported by a jury finding the facts supporting the enhancement beyond a reasonable doubt.

Roy claimed that the jury instructions given at his trial did not require the jury to find that death resulted from the conspiracy – a necessary finding for the court to impose a life sentence for the crime.

The district court didn’t bite on the medical risk for COVID, but it did find that the Apprendi error and Roy’s rehabilitation constituted “extraordinary and compelling reasons” to reduce his sentence. It reduced Roy’s sentence to 17 years and cut him loose.

Last week, the 6th Circuit reversed, agreeing with the government that Roy’s § 3582 motion was really a second or successive § 2255 motion in mufti.

mufti230615The Circuit assumed the district court was right that “a harmful Apprendi violation occurred.” That doesn’t matter, the Circuit said, because “compassionate release cannot ‘provide an end run around habeas.’ The § 2255 procedure “provides a specific, comprehensive statutory scheme for post-conviction relief” and therefore, the 6th ruled, “any attempt to attack a prisoner’s sentence or conviction must abide by its procedural strictures.”

Once a prisoner has already filed and appealed the denial of a § 2255 motion (as Roy had already done), “relief cannot be obtained in a successive § 2255 motion unless new evidence or a new rule of constitutional law is announced,” the Circuit held. Roy “cannot avoid these restrictions on post-conviction relief by resorting to a request for compassionate release instead.”

Of course, because Apprendi predated Roy’s conviction and – for whatever reason – the error was not raised in his self-written § 2255, there is no way he will be allowed a second § 2255. Roy will just have to do his sentence. For the rest of his natural life.

United States v. West, Case No. 22-2037, 2023 U.S. App. LEXIS 14424 (6th Cir. June 9, 2023)

– Thomas L. Root

‘Hey, Abuse Victims, We Didn’t Really Mean It’ – Update for May 11, 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.

SERIOUS STEPS TAKEN TO ADDRESS FEMALE PRISONER ABUSE

justkidding230511Just kidding. Last week, a BOP contractor employee monitoring home confinement inmates who sexually abused a Miami woman on house arrest got a prison sentence one month shorter than his victim’s time on house arrest.

Miami-Dade resident Benito Montes de Oca Cruz, 60, got a 4-month prison sentence for one count of abusive sexual contact, followed by a year of supervised release, four months of which will be on home confinement. His victim was on five months of house arrest at the end of her 51-month sentence when he committed “abusive sexual contact” on her.

Remember when DOJ official Lisa Monaco said that women prisoners who suffered sexual abuse at the hands of BOP employees would be recommended for compassionate release due to their treatment? She was kidding, too. One FCI Dublin victim was denied a compassionate release recommendation last fall, the BOP telling her “that the officers’ cases have not yet been ‘adjudicated…’ [Her attorney] said that prison officials told her to refile her motion, most likely once all the officers are charged or sentenced.”

The inmate has under a third of her sentence to serve – under three years – so the BOP’s “come back next week” directive should run out the clock on her request right smartly.

Sadly, this would be true even if she were doing a life term. One of the abusive COs, aptly if disgustedly known as ‘Dirty Dick,” committed suicide after he learned that he was under investigation for abusing women, according to the woman’s lawyer. “So unless they are planning to do a final adjudication… there will never she will never be able to meet the Bureau of Prisons’ standard.”

Maybe Satan can convene a grand jury somewhere in the fires of hell… 

beatings230511Of course, this begs the question of why the BOP and DOJ themselves cannot turn their considerable investigative powers to determine whether the abuse happened.  The BOP has its own investigative office, the SIS (which stands for “Special Investigative Supervisor”). The DOJ has an inspector general office. To be sure, the BOP doesn’t need to get a criminal conviction against a BOP employee to recommend compassionate release for an inmate victim, either.  But showing any initiative might hurt BOP employee morale by suggesting that abusing inmates was not a perk of working at the BOP.

And after all, how many other sordid tales about ‘Dirty Dick’ would be enough to corroborate that he was a s abuser? E. Jean Carroll only required two…

Last week, the female prisoner filed for compassionate release with her sentencing judge, seeking a sentencing reduction of about 34 and a half months of her 120-month sentence.

Miami Herald, A Bureau of Prisons monitor gets his sentence. He raped a Miami woman on house arrest (April 30, 2023)

KTVU, Dublin prison sex assault survivor seeks compassionate release after BOP denies (May 5, 2023)

– Thomas L. Root