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SENTENCING COMMISSION TO PUBLISH FIRST DRAFT PROPOSED GUIDELINES AMENDMENTS TODAY
The U.S. Sentencing Commission will adopt its first set of draft proposed amendments to the Federal Sentencing Guidelines in five years when it meets today.
The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), requires judges to only grant compassionate releases that are “consistent with applicable policy statements issued by the Sentencing Commission.” However, § 1B1.13 was written when only the BOP could bring compassionate release motions. The compassionate release statute was changed by the First Step Act, passed four years ago at the same time the Sentencing Commission lost its quorum,
Most (but not all) Circuits have since ruled that § 1B1.13 was written for a compassionate release regime that no longer exists and thus is not binding on district courts until it is amended.
Other changes that may be issued in draft form include changes in the drug Guideline (USSG § 2D1.1) due to First Step’s lowering of mandatory drug minimums, resolving circuit conflicts over whether the government may withhold a motion for a third acceptance of responsibility point because a defendant had moved to suppress evidence before entering a guilty plea, and amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.”
The draft the Commission will issue Thursday will be open for public comment for a period of time, and then a slate of proposed amendments will be adopted by May 1. Under 28 U.S.C. § 994(p), the proposed amendments become effective November 1st unless Congress blocks them.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
4TH CIRCUIT SLAMS DISTRICT COURT ‘ROTE’ DENIAL OF COMPASSIONATE RELEASE
Some 15 years ago, Lonnie Malone was sentenced to 330 months for a drug conspiracy and 18 USC § 924(c). After serving 11 years, Lonnie sought compassionate release based on his poor health and advanced age. The district court denied his motion, relying solely upon USSG § 1B1.13.
The following year, the Bureau of Prisons deemed Lonnie to have a severe COVID-19 risk, and sent him to CARES Act home confinement. Lonnie then filed a second compassionate release motion, again arguing his advanced age and severe health conditions. As well, Lonnie focused on the COVID pandemic, relevant 18 USC § 3553(a) sentencing factors, the “extreme” nature of his sentence, and his inability to receive social security on home confinement.
The district court was not impressed, and again denied Lonnie compassionate release, tersely noting that “considering these facts and the § 3553(a) factors… no further relief is warranted.”
Last week, the 4th Circuit reversed the compassionate release denial, finding the “district court’s reasoning both inadequate and at odds with the record.” The Circuit panel explained that while Lonnie
was sentenced within the applicable guidelines range and the court then believed his sentence necessary for community protection” back in 2008, his “severely degenerated health and advanced age provide strong grounds for reweighing the relevant sentencing factors. Because motions for relief under § 3582(c)(1)(A)(i) ask courts to balance the severity of the inmate’s personal circumstances, on the one hand, against the needs for incarceration, on the other, a district court’s task is to determine whether these relevant § 3553(a) factors weigh against sentence reduction in light of new extraordinary and compelling reasons.”
Here, the Circuit said, Lonnie’s “new extraordinary and compelling circumstances inhibit him from being a danger to the community. For one, Malone was moved to minimal security while in prison, demonstrating that he posed no threat while incarcerated. Even more, since the BOP transferred Malone from his prison facility to home confinement during the pandemic’s emergency period, this indicates the BOP’s assessment that Malone is not a danger to the community… Thus, if the district court was determined to keep Malone on home confinement for the five years remaining on his sentence, it would “not meaningfully advance the purposes of sentencing.”
Citing Lonnie’s lack of a criminal history and his having served 14 years, taken multiple classes and being put in a camp – along with “extraordinary and compelling health-related circumstances [that] have condemned him to a life filled with limitations,” the 4th held, “to affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight. There is a reason this is called compassionate release, after all.”
The Circuit said, “In sum, the district court’s § 3553(a) reasoning was a ‘rote’ statement lacking the necessary rebalancing regarding Malone’s conditions at the time his motion was filed.’
United States v. Malone, Case No. 21-6242, 2023 U.S.App. LEXIS 207 (4th Cir., January 5, 2023)
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6TH CIRCUIT SAYS NOTHING IS ‘EXTRAORDINARY’ ABOUT CHANGES IN THE LAW
The 6th Circuit last week delivered a lengthy en banc decision that seems to fly in the face of last summer’s Supreme Court Concepcion v. United States opinion.
Concepcionheld by a 5-4 majority that “Federal courts historically have exercised… broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence.”
Because Congress did nothing in the First Step Act to “contravene this well-established sentencing practice,” Justice Sotomayor wrote for the Concepcion majority, “Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.”
But last week, the 6th Circuit overcame that tradition right handily, ruling that in weighing a compassionate release motion, a district court may not consider non-retroactive changes in sentencing statutes or Guidelines, even when those changes mean that if the defendant were sentenced for the same offense today, the sentence would be much shorter.
David McCall, who has prior drug convictions aplenty, was convicted of serving as a middleman in a sprawling Cleveland, Ohio, drug-trafficking conspiracy. The government, emphasizing Dave’s extensive criminal history, urged the district court to sentence him to 235 months as a Guidelines career offender. Five years into the sentence, Dave moved for an 18 USC § 3582(c)(1)(A)(i) compassionate release, based on his risk of COVID, his rehabilitation and the fact that under the 6th Circuit’s United States v. Havis decision, attempted drug-trafficking offenses like Dave’s priors are not controlled substance offenses under the Guidelines career offender provision.
Dave’s district court denied the compassionate release, holding that a nonretroactive change in the law like Havis was not an “extraordinary and compelling” reason for a sentence reduction under the statute. A year ago, a 6th Circuit panel agreed. Last week, the 6th Circuit sitting en banc upheld the panel decision:
The 1st, 9th, and 10th Circuits have held that nonretroactive legal developments can contribute to a finding of extraordinary and compelling reasons when viewed in combination with a defendant’s unique circumstances. The 4th Circuit’s position goes a step further… Different around the edges, all three of these decisions seem to rest on the common goals of ‘alleviating unfair and unnecessary sentences as judged by today’s sentencing laws… and of promoting ‘individualized, case-by-case’ sentencing decisions… We cannot reconcile this approach with the plain text of the compassionate-release statute. Congress prospectively amends or updates its criminal-penalty scheme. The nonretroactivity of judicial precedent like Havis is the rule, not the exception. That a defendant might receive a different sentence today than he received years ago represents the routine business of our legal system. These ordinary happenings cannot supply an extraordinary and compelling reason to reduce a lawful sentence whose term Congress enacted, and the President signed, into law.
The only good news is that within a month, the U.S. Sentencing Commission should issue a proposed USSG 1B1.13 – a new compassionate release policy statement – for public comment. The proposal should harmonize the rules followed by the different Circuits, and do so in a way favorable to prisoners.
United States v. McCall, Case No 21-3400, 2022 U.S. App. LEXIS 35473 (6th Cir, Dec 22, 2022)
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WORDS MATTER IN COMPASSIONATE RELEASE DECISIONS
Too Few Words Matter: Legally, there’s no limit to how many times a federal prisoner can file a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i)).
Practically, however, endless and repetitive motions have the remarkable capacity to really infuriate the judge. Colloquially (and crudely), the correct formula for the number of such filings is
JR = POJ -1
where “JR” = Just the right number of filings and “POJ” = Pissed-off Judge
Some prisoners refile compassionate release motions endlessly, often making the same arguments but expecting a different outcome. Judges often just tune them out.
Bob Handlon filed a compassionate release motion that the court rejected because he had not exhausted administrative remedies by asking the BOP to file on his behalf first. Bob fixed that error and refiled his motion.
The district court denied his second compassionate release motion with a brief order saying only, “After considering the applicable factors provided in 18 USC § 3553(a) and the applicable policy statements issued by the Sentencing Commission, the Court [denies] the Defendant’s motion on its merits.”
A year later, Bob filed a third compassionate release motion, mostly rebutting government claims that he was dangerous but also raising new facts, that he had caught coronavirus again and was now suffering lasting medical problems from “long COVID.”
The district judge, who became impatient with Bob pretty early in the game, it seems, merely made a docket entry denying the third motion “for the same reasons stated in the court’s [previous] Order.”
Last week, the 5th Circuit reversed, holding that the district court had abused its discretion. The fact that Bob raised new facts in his third compassionate release motion made the district court’s terse order a little too little.
“A court cannot deny a second or subsequent motion for compassionate release ‘for the reasons stated’ in a prior denial where the subsequent motion presents changed factual circumstances and it is not possible to discern from the earlier order what the district court thought about the relevant facts,” the Circuit ruled. “Judges have an obligation to say enough that the public can be confident that cases are decided in a reasoned way.”
A Lot of Words Matter, Too: Terry Rollins was left a paraplegic after a gunshot wound that cost him his right leg. When he was arrested for drug distribution in 2018, police found him septic and malnourished, lying in his bodily wastes. “But for his arrest,” the court said, Terry “likely would have died of his severe wounds and infections.” His condition was so bad that doctors recommend an operation called a “hemicorporectomy, which would ‘essentially cut him in half to remove the infected part of his body,’” the court said.
Terry moved for compassionate release while still in Marshal custody, arguing that he needed extensive surgery and the Marshal Service had already spent more than $1 million without providing him complete medical care.
The district court said Terry’s condition was “dire” but denied compassionate release. The court found Terry’s possession of seven guns and ammunition inside his home along with heroin, cocaine powder and crack were “very serious.” Terry argued that he could hardly be dangerous confined to a wheelchair, but the court noted that Terry’s paraplegia hadn’t kept him from armed drug dealing. Because Terry had not shown “he will no longer pose a threat to the public,” the district court denied his compassionate release motion.
Last week, the 5th Circuit upheld the denial. The Circuit agreed that Terry had made “a colorable argument. The hemicorporectomy “surgery is rare, often fatal, and comes with various complications, even if the procedure is successful… Mr. Rollins will need around-the-clock care for the foreseeable future… Without this grave surgery, Rollins ‘cannot perform basic functions without assistance.’ Rollins is not wrong to suggest that it seems highly unlikely that he will revert to criminal behavior… [and] contrary to the district court’s reasoning, all this indicates that the prison system is not the place that can provide medical care most effectively.”
“Yet,” the 5th admitted, “the abuse-of-discretion standard is a demanding one. It is not this court’s place to question the reasonable judgment of the district court in assessing the § 3353(a) factors.”
The district court used a lot of words, and adequately explained its reasons for denying compassionate release, the Circuit said.
Under the “abuse-of-discretion” standard, that was enough.
United States v. Handlon, Case No. 22-50075, 2022 U.S.App. LEXIS 31669 (5th Cir., Nov. 16, 2022)
United States v. Rollins, Case No. 22-30359, 2022 U.S.App. LEXIS 31870 (5th Cir., Nov. 17, 2022)
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USSC SETS GUIDELINE AMENDMENT PRIORITIES
The U.S. Sentencing Commission held its first meeting in 46 months last Friday, voting in a 20-minute session to adopt priorities for the Guidelines amendment cycle that ends Nov 1, 2023.
The USSC lost its quorum due to term expirations of multiple members in December 2018, just as the First Step Act was signed into law. That meant the commission was unable to revise the Guidelines just as First Step changes required modifications that would have prevented conflicting judicial interpretations, especially in the application of 18 USC § 3582(c)(1)(A) sentence reduction motions, commonly called “compassionate release” motions.
The compassionate release statute requires judges to consult USSG § 1B1.13, Guidelines policy on granting compassionate releases, but § 1B1.13 was written for a time when only the Bureau of Prisons could bring compassionate release motions. Most but not all Circuits have ruled that § 1B1.13 is not binding on district courts until it is amended, but the 11th has ruled that it is binding, the 8th has studiously avoided deciding the question, and others – such as the 3rd, 6th and 7th – have held that district judges cannot consider First Step Act changes in sentencing law that would result in much lower sentences when deciding compassionate release motions.
U.S. District Judge Carlton Reeves (S.D. Mississippi), chairman of the Commission, said implementing the First Step Act through revisions to the federal sentencing guidelines would be the USSC’s “top focus.”
Other changes in the Guidelines, such as to the drug tables, could result from First Step’s lowering of drug mandatory minimums.
Additional priorities for the coming year include resolving circuit conflicts over whether the government may withhold a motion for a third acceptance-of-responsibility point just because a defendant moved to suppress evidence before pleading guilty and whether an offense must involve a substance actually controlled by the Controlled Substances Act to qualify as a “controlled substance offense,”
The USSC will also consider amendments to the Guidelines career offender chapter that would provide an alternative to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense.
First Step also made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties, by expanding eligibility to some defendants with more than one criminal history point. A USSC press release says the Commission “intends to issue amendments to § 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.”
The only addition to the Commission’spreviously-published list of proposed priorities that came out of the meeting was consideration of possible amendments on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing.
The Commission’s priorities only guide what it will be working on for the Nov 2023 amendment cycle. Expect amendment proposals by late January, followed by a public comment period, and final amendments by May 1. After that, the Senate has 6 months to reject any of the amendments (a very rare occurrence). Amendments not rejected will become effective Nov 1, 2023.
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DC CIRCUIT HOLDS THAT CHANGES IN THE LAW CANNOT SUPPORT COMPASSIONATE RELEASE
The US Court of Appeals for the District of Columbia Circuit has deepened the circuit split on compassionate release, joining three other circuits in holding that a prisoner cannot use the fact he or she is serving a sentence that could not be imposed today as “extraordinary and compelling” reason for an 18 USC § 3582(c)(1)(A)(i) compassionate release.
In 2016, Curtis Jenkins was caught by D.C. police with drugs and a gun. He got bonded out of jail, but a short time later he was caught by D.C. police again with drugs and a gun. Curtis thus faced two 18 USC § 924(c) counts (for carrying a gun during drug trafficking) and a 15-year Armed Career Criminal Act count (18 USC § 924(e)), not to mention qualifying as a “career offender” under the Sentencing Guidelines (which dramatically jacks up the sentencing range).
Factor all of that into the mix, Curtis was looking at a minimum 45-year sentence. He did the wise thing, agreeing to a plea deal that carried a Guidelines range of 23-27 years. Despite that range – still a substantial chunk of time – The parties agreed to recommend only 12 years to the sentencing judge.
From there, things got even better. Curtis walked out of sentencing with eight years. For the math-challenged among us, good lawyering had cut Curtis’s sentence exposure by about 82%.
It looked like a great deal at the time, but after a few years, Curtis thought it had all turned to dust later.
First, in 2018, the First Step Act changed § 924(c) so that the 25-year add-on sentence required by law for the second § 924(c) violation would only apply if the second offense came after a first conviction. If that had been the law when Curtis was convicted, his 45-year mandatory minimum sentence would have been only 30 years.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.
Second, things changed for Curtis’s ACCA conviction. If a felon was caught with a gun back when Curtis was nabbed, he or she faced a zero-to-ten-year sentence. But if the defendant had three prior convictions for violent crimes or drug offenses, the sentence was a minimum 15 years. Two of Curtis’s predicate offenses qualifying him for the ACCA were for assault with a weapon. D.C. law at the time permitted conviction for that offense even when the assault was committed “recklessly.” But in 2021, the Supreme Court ruled in Borden v. United States that any crime that could be committed recklessly was not a “crime of violence” for ACCA purposes. If that had been the law when Curtis was convicted, his 30-year mandatory minimum sentence exposure would have dropped to only 10 years.
Third, the Court of Appeals held in United States v. Winstead that drug offenses relied on to qualify someone as a Guidelines career offender could not count when they were mere attempts. Curtis’s drug priors were for attempted drug distribution, meaning that the high sentencing range that applied because he was a Guidelines “career offender” would have been out, too.
Like that, all of the very good reasons Curtis once had for taking a 12-year deal disappeared like Halloween candy on trick-or-treat night. He moved for a sentence reduction, arguing that if he had made a deal based on the sentence exposure he would have faced if he were sentenced today, it would have been a lot lower.
The district court denied Curtis’s
motion, holding that changes in the law were not the kind of “extraordinary and compelling” reasons for sentence reduction listed in USSG § 1B1.13, the Guidelines policy statement covering compassionate release motions. That statement does not bind the court, the judge ruled, but he nonetheless referred to it for “guidance.”
The district court said the First Step Act, Winstead, and Borden were irrelevant, because the compassionate-release statute does not permit courts to reexamine the lawfulness or fairness of a sentence as originally imposed.
Two weeks ago, the DC Circuit upheld the district court’s denial. “We agree with the 3rd, 7th, and 8th Circuits,” the appellate panel wrote. “To begin, there is nothing remotely extraordinary about statutes applying only prospectively. In fact, there is a strong presumption against statutory retroactivity, which is ‘deeply rooted in our jurisprudence’ and ‘embodies a legal doctrine older than our Republic’… [The Supreme Court has held that] in federal sentencing the ordinary practice is to apply new lower penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. And what “the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary … reason’ to deviate from that practice.”
But other Circuits – including the 2nd, 4th, 5th, 9th and 10th – do consider such changes to be among the “extraordinary and compelling reasons” for sentence reduction that will drive a compassionate release motion. The Circuit split just exacerbated by Curtis’s D.C. Circuit decision will most likely be fixed not by the Supreme Court but rather by the newly-reconstituted Sentencing Commission.
The Commission, which just announced having received over 8,000 public comments on its announcement of proposed priorities – has its first public meeting set for this coming Friday. The Commission is expected to adopt its priorities for the coming year, the first of which is likely to be to amend § 1B1.13 to bring some predictability to compassionate release cases.
When that happens, § 1B1.13 will again be binding on the courts, and we can expect a little uniformity to be injected into what is now a chaotic compassionate release system.
United States v. Jenkins, Case No. 21-3089, 2022 U.S.App. LEXIS 28198 (D.C. Cir., Oct. 11, 2022)
U.S. Sentencing Commission, Public Meeting, October 28, 2022
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COVID’S IS NOT GOING AWAY
COVID is such old news. President Biden says the pandemic’s over. The Bureau of Prisons’ notoriously unreliable numbers say that as of last Friday, only 160 inmates and 367 staff have the virus (although it’s present in 73% of BOP facilities). Nationally, confirmed cases are down 25% in the last two weeks.
Except… In the UK, infections from highly mutated subvariant BQ.1.1 are doubling every week — a rate of growth that far exceeds other leading subvariants. In the U.S., BQ.1.1 is spreading twice as fast as its cousin subvariant BA.2.75.2. In fact, BQ.1.1 seems to be the first form of COVID against which antibody therapies don’t work at all.
What’s more, last week a new subvariant called XBB began spreading in Singapore. New COVID-19 cases there more than doubled in a day, from 4,700 on Monday to 11,700 last Tuesday. The same subvariant just appeared in Hong Kong, too.
XBB is a highly mutated descendant of the Omicron variant that drove a record wave of infections last winter (including almost 10,000 BOP cases at one time). XBB is more contagious than any previous variant and, like BQ.1.1, evades the antibodies from monoclonal therapies. It is unclear whether the newest batch of bivalent booster shots will work against the XBB variant.
The Washington Post reports, “This time, it’s unlikely we will be barraged with a new collection of Greek alphabet variants. Instead, one or more of the multiple versions of the omicron variant that keep popping up could drive the next wave. They are different flavors of omicron, but eerily alike — adorned with a similar combination of mutations. Each new subvariant seems to outdo the last in its ability to dodge immune defenses.”
A report published Wednesday in the New England Journal of Medicine suggests that the subvariant, called BA.4.6, could drive reinfections. “It’s astonishing to see how the virus keeps mutating at such a rapid rate,” said study author Dr. Dan Barouch, director of the Center for Virology and Vaccine Research at the Beth Israel Deaconess Medical Center in Boston. “This is essentially viral evolution on steroids.”
“This suggests that omicron continues to evolve and continues to evolve in a way that becomes more transmissible and more effective at escaping vaccines and immune responses,” he said. “The results are actually a harbinger to new variants that might be even more worrisome.”
Two new COVID-19 variants that quietly emerged on the scene over the last few weeks — ones that Dr. Anthony Fauci has described as “pretty troublesome” — are becoming increasingly prevalent in the New York area and stoking fresh concerns as the nation braces for yet another potential winter surge, the latest CDC data show.
The CDC estimates that variants B.Q.1 and B.Q.1.1 now could account for up to 36.6% of New York area cases, which is nearly double the highest-range estimate at the national level.
These reasons may be why the Dept of Health and Human Services renewed the COVID-19 public health emergency last Thursday for another 90 days at least. This is not the emergency under the National Emergencies Act that authorizes CARES Act home confinement, which currently ends on February 28, 2023 (although experts believe that the NEA emergency will be extended, like it has been twice before). According to Government Executive, “[F]ederal public health officials are bracing for a possible winter surge in COVID-19 cases and a few weeks after President Biden said in a “60 Minutes interview “the pandemic is over.”
This suggests that CARES Act home confinement, compassionate release grants, and – unfortunately – lockdowns due to COVID may not be over yet.
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COMPASSIONATE RELEASE AND SEC 404 DENIALS CANNOT BE ROTE
Since prisoners have been permitted to file motions for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i) – generally known as “compassionate release” – and motions for application of the Fair Sentencing Act of 2010 under § 404 of the First Step Act, we have seen district court denials that seemed pretty summary and “cookie cutter.”
To be sure, courts have had to deal with thousands of such motions, and undoubtedly the judges detail review and preparation to their junior-most clerks. But I am reminded of a surgical procedure I had a few years ago. The surgeon dismissed my concerns with a breezy “don’t worry – yours will be my 1,500th one of these.” I responded, “Maybe so, but will be my first.”
Compassionate release and § 404 motions are like that. Joe Prisoner’s motion may be the hundredth one the court has decided, but for Joe, it’s his first.
Decisions from the 4th and 7th Circuit a week ago delivered a stark reminder to district judges that denials of such motions should give due consideration to the movant’s arguments and evidence – not necessarily to accept them –but at least to note what the prisoner said and to explain why that argument is insufficient to carry the day.
Jon Singleton, having done 14 years already for a meth conspiracy, sought compassionate release because of COVID. Jon’s district court found that he had not shown an extraordinary and compelling reason for release because he had twice refused the vaccine. The thinking is that anyone who refuses the vaccine can hardly be sincerely worried about the effects of COVID-19. If that weren’t enough, the district court said, the seriousness of Jon’s offense one and a half decades ago made the original sentence correct.
On appeal Jon complained said the district court had it wrong. He had refused the vaccine only once, and that time he did so only because he had a history of allergic reactions to vaccines and “was denied the ability to consult with a medical professional prior to vaccination.”
This was hardly a novel complaint: Dr. Homer Venters, a court-appointed epidemiologist who inspected FCI Lompoc for an ACLU class-action lawsuit against the BOP over COVID, lambasted the BOP over a year ago for the agency’s “take it or take a hike” approach to administering the COVID vax. Venters told the Central District of California District Court that he was “extremely concerned” about low inmate vaccinating rates, which he attributed to prison staff not addressing inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions. Rather than address inmate questions, Venters testified, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.”
Two weeks ago, the 4th Circuit sided with Jon. “Initially,” the Court said, “the district court erroneously stated that Singleton refused the vaccine twice; the record reveals that he refused the vaccine only once. Moreover, the district court failed to consider Singleton’s argument that he refused the vaccine because he had a history of a severe allergic reaction to the influenza vaccine and other medications and was denied the ability to consult with a medical professional prior to vaccination. Because the district court made a factual error and failed to consider Singleton’s individual circumstances, we conclude that the court abused its discretion…”
Jon also complained the district court failed to consider (1) his rehabilitation evidence; (2) his argument that a “time served” would constitute just punishment; (3) his low recidivism score; and (4) that due to a change in state law, one of his prior drug felonies was reduced to a misdemeanor, which would have reduced his criminal history category. The Circuit agreed: “Given the amount of time Singleton spent in prison before filing his motion and the fact that the district court did not acknowledge any of his many arguments that relied on post-sentencing conduct and circumstances, we conclude that the district court abused its discretion in considering the § 3553 factors.”
Jamell Newbern was convicted of crack distribution in 2005. Because he had two qualifying prior convictions, he was sentenced as a Guidelines career offender. At the time, the district judge said he would have sentenced Jamell to the same term even if he had not been a career offender.
The District Judge had long since retired. Since 2005, one of Jamell’s two prior convictions (reckless discharge of a firearm) was held to not be a crime of violence. But the new judge on Jamell’s case reimposed the original 300-month sentence, adopting the retired judge’s position that 300 months was warranted whether or not Jamellwas a career offender or not. The new judge did not even address Jamell’s post-sentencing record.
Last week, the 7th Circuit agreed that the new judge’s adoption of the prior judge’s determination that Jamell’s conduct warranted a 300-month sentence regardless of his status as a career offender.
“But,” the 7th said, “we see things differently when it comes to the district court’s failure to respond to Newburn’s argument for relief based on his good behavior in prison. Concepcion expressly established that conduct in prison—good or bad—can be properly considered in a First Step Act motion. Newburn meaningfully emphasized his positive record in his motion. By no means was Newman making a throwaway point. To the contrary, he devoted about a full page of his motion to highlighting his clean disciplinary record, employment in prison, completion of a drug-education course, and earning a GED. Concepcion v. United States does not require a detailed explanation in response to these considerations, but we cannot be sure that the district court considered Newburn’s arguments when it provided no explanation at all.”
The Circuit said that in light of Concepcion, “it is clear that the district court’s failure to address Newburn’s good-conduct argument rises to the level of procedural error.”
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SENTENCING COMMISSION PRIORITIES TO FOCUS ON COMPASSIONATE RELEASE, ACQUITTED CONDUCT GUIDELINE CHANGES
Most circuits have held that USSG § 1B1.13, the policy statement that once controlled compassionate releases, does not apply to inmate-filed motions. Just as the First Step Act – which first permitted inmates to file their own compassionate release motions – was passed, the Sentencing Commission lost its quorum and could not amend anything.
The announcement last week only proposes that the USSC should examine 1B1.13 and the other priorities. It does not propose what changes, if any, will be made. The Commission will issue detailed tentative amendments for public comment early next year. Final amendments will issue by May 1. Any amendment that is not voted down by the Senate (and a down-vote hardly ever happens) becomes effecting November 1, 2013, about 13 months from now.
The USSC also proposed to focus on changing firearms penalties under USSG § 2K2.1 in light of a new gun control law that created higher penalties for straw purchasers, felon-in-possession and other gun crimes; changing criminal history guidelines in light of studies on recidivism and difficulties applying the career offender provision, considering prohibiting the use of acquitted conduct in sentencing, changing the guidelines to permit more non-prison sentences for non-violent first offenders, and studying simplifying the guidelines while promoting the statutory purposes of sentencing.
We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
NUMBED BY NUMBERS
The U.S. Sentencing Commission recently issued an updated report on compassionate release, covering all of the filings since October 1, 2019 (six months before the pandemic began) through last March.
In 30 months, we learn, 25,416 motions were filed, with 16.7% (4,234) granted. Good to know for this weekend’s cocktail-party chatter, but functionally useless.
Most people currently filing 18 USC § 3582(c)(1)(A)(i) sentence reduction motions – inaccurately but generally known as “compassionate release” motions – don’t care about the 30-month average. What courts were doing in the few months prior to the pandemic – or, for that matter, in the early pandemic when COVID raged and everyone was scared – has hardly any relevance to what they are doing today. People want to know what has been happening in the last few months (last March, for example, 13.4% of 479 motions were granted).
We do learn that over the 30 months studied, Eastern District of Texas (2.6%), Southern District of Georgia (2.2%) and Middle District of Georgia (1.7%) were the worst places to get relief. The best places to be remain locations such as California (except the Eastern District) at 35.8%, Kansas at 41.9%, Connecticut at 37.2%, Massachusetts at 44.8% and Oregon at 59%.
Some districts have even better numbers, but the number of motions filed in those jurisdictions is so small as to make the grant/denial percentage in those districts meaningless.
My problem with the data is this: Given the waning pandemic, the position taken by some circuits that inmate vaccination disqualifies the risk of COVID as a basis for compassionate release, and the decision by almost all circuits that USSG § 1B1.13 does not limit the groups that may be raised in an inmate-filed compassionate release motion, how district courts may be acting on compassionate release motions today may bear scant resemblance to what was being done, say, in April 2020. That being the case, it is tough to take away much from a comparison of a judicial district’s grant rate over a 30-month period. A period of six to 12 months would make a lot more sense.
I am surprised by some commentators bemoaning the fact that there are wide disparities among the districts. That’s what happens when federal judges are permitted to exercise almost unbridled discretion. Ohio State law professor Doug Berman, writing in his Sentencing Law and Policy blog, complained that
perhaps most striking data points are the dramatic variations in grant rates from various districts. As but one of many remarkable examples, I must note again the stark disparities in the three districts of Georgia: the Southern District of Georgia granted only 6 out of 272 sentence reduction motions for a 2.2% grant rate; the Middle District of Georgia granted only 4 out of 238 sentence reduction motions for a 1.7% grant rate; but the Northern District of Georgia granted 80 out of 174 sentence reduction motions for a 46% grant rate.
One commenter to Berman’s post responded, “When you tell judges they can do whatever they care to, without any standards that are going to get enforced, this is what you’re going to get. Any resemblance between this and ‘Equal Justice Under Law’ is strictly coincidental.”
Maybe so, but “standards that are going to get enforced” sounds a lot like the bad old days of mandatory guidelines. You can’t have it both ways. Judges exercising a lot of discretion can take individual factors into account the way that uniform standards applying across all 94 federal districts cannot. On the other hand, standards can limit the baser instincts of the Judge Roy Beans of the federal judiciary.
Perhaps our newly-reconstituted Sentencing Commission can find a happy (pro-defendant) medium.
The U.S. Sentencing Commission will adopt its first set of draft proposed amendments to the Federal Sentencing Guidelines in five years when it meets today.
