Tag Archives: compassionate release

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

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

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

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

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

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

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

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

compassion240416

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

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

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

– Thomas L. Root

‘Here’s How to Dance on This Prisoner’s Head Even More,’ 11th Circuit Helpfully Tells District Court – Update for April 9, 2024

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

‘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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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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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

Government Seeks to Bushwhack Disparate-Sentence Compassionate Release Guideline – Update for December 11, 2023

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

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

CERT PETITION TAKES AIM AT COMPASSIONATE RELEASE CIRCUIT SPLIT

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

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

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

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

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

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

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

– Thomas L. Root