Tag Archives: compassionate release

‘Words’ of Compassion – Update for November 22, 2022

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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.

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)).

judge160425Practically, 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.

afewwords221122“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.

manyguns190423The 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)

– Thomas L. Root

Sentencing Commission Rolls Up Its Sleeves – Update for November 3, 2022

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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.

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.

USSC170511The 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.

responsibility221103Additional 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.”

marijuana220412The only addition to the Commission’s previously-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 cannabis item was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation.

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.

Reuters, Newly-reconstituted U.S. sentencing panel finalizes reform priorities (October 28, 2022)

US Sentencing Commission, Final Priorities for Amendment Cycle (October 5, 2022)

US Sentencing Commission, Commission Sets Policy Priorities (October 28, 2022)

Marijuana Moment, Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes (October 28, 2022)

– Thomas L. Root

D.C. Circuit Creates More “Compassionate Release” Circuit Confusion – Update for October 26, 2022

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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.

DC CIRCUIT HOLDS THAT CHANGES IN THE LAW CANNOT SUPPORT COMPASSIONATE RELEASE

circuitsplit220516The 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.
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.

emptybowl221027The 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.”

extraordinary221027But 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

U.S. Sentencing Commission, Public Comments on Priorities (October 23, 2022)

– Thomas L. Root

COVID Winter Surge: Will It Happen? – Update for October 21, 2022

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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.

COVID’S IS NOT GOING AWAY

covidneverend220627COVID 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.”

inmateCOVIDrights220124A 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.

prisoners221021These 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.

Today, Omicron subvariants reflect a ‘viral evolution on steroids’ (October 19, 2022)

Washington Post, XBB, BQ.1.1, BA.2.75.2 — a variant swarm could fuel a winter surge (October 18, 2022)

National Geographic, Coronavirus in the U.S.: Where cases are growing and declining (October 15, 2022)

Daily Beast, This Deadly COVID Twist Is Like Nothing We’ve Seen Before (October 11, 2022)

Bloomberg, World Faces New Threats From Fast-Mutating Omicron Variants (October 12, 2022)

NJ.com, XBB variant: What is known so far about the newest COVID variant (October 13, 2022)

Government Executive, Coronavirus Roundup: The Biden Administration Renews the Public Health Emergency for COVID-19 (October 14, 2022)

– Thomas L. Root

Sentence Reduction Decisions Can’t ‘Phone It In’ – Update for October 20, 2022

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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.

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.”

cookiecutter221020To 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.”

mywayor221020This 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.

denied190109The 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.”

United States v. Singleton, Case No 21-6798, 2022 U.S.App. LEXIS 27943 (4th Cir., Oct. 6, 2022)

Santa Barbara Independent, Doctor ‘Extremely Concerned’ About Low Vaccination Rate Among Lompoc Prisoners (May 20, 2021)

United States v. Newbern, Case No. 22-1244, 2022 U.S.App. LEXIS 28348 (7th Cir., Oct. 12, 2022)

– Thomas L. Root

Sentencing Commission’s Back, And It Has Its Priorities – Update for October 4, 2022

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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.

SENTENCING COMMISSION PRIORITIES TO FOCUS ON COMPASSIONATE RELEASE, ACQUITTED CONDUCT GUIDELINE CHANGES

USSC170511Last week, the newly-reconstituted U.S. Sentencing Commission issued tentative policy priorities for the 2022-2023 amendment year. Unsurprisingly, amending the compassionate release Guideline is at the top of the list.

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.

guns200304The 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.

Sentencing Commission, Notice of Proposed 2022-2023 Priorities (September 29, 2022)

– Thomas L. Root

Compassionate Release Numbers: Data Without Benefits – Update for September 23, 2022

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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.

NUMBED BY NUMBERS

numbersThe 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.”

Roybean220923CMaybe 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.

U.S. Sentencing Commission, Compassionate Release Data Report (Fiscal Years 2020 to 2022)

Sentencing Law and Policy, US Sentencing Commission releases latest “Compassionate Release Data Report” with detailed data through March 2022 (September 12, 2022)

– Thomas L. Root

Circuit Split Deepens on Using Sentence Law Changes in Compassionate Release Motions – Update for September 19, 2022

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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.

9TH CIRCUIT ALLOWS FIRST STEP CHANGE IN § 924(c) STACKING TO SUPPORT COMPASSIONATE RELEASE

In 2007, Howard Chen was busted with a distribution-sized amount of MDMA in his car. Later, the DEA found more MDMA, two guns and cash at his house.

mdma220919A jury convicted Howie of six drug-related counts and two 18 USC § 924(c) counts for possessing a gun during and in furtherance of a drug crime. He got 48 months for the drug counts, 60 more months for the first gun offense and 300 months for the second one: a total of 34 years for a fairly garden-variety non-violent drug case.

In late 2020, Howard filed a motion for sentence reduction, seeking compassionate release for – among other reasons – that the First Step Act changed 18 USC § 924(c) so that he would not have to get a minimum of 300 months for the second gun charge. Although the change was not retroactive, Howie contended that the unfairness of how the 2007 version of the statute mandated 300 months but the current statute did not was an extraordinary and compelling reason for granting him a sentence reduction.

The district court denied the compassionate release motion, holding that because Congress did not make the 18 USC § 924(c) change retroactive, it could not be an extraordinary and compelling reason for grant of compassionate release under 18 USC § 3582(c)(1)(A).

Last week, the 9th Circuit reversed, holding that a district court may consider the First Step Act’s non-retroactive changes to sentencing law – in combination with other factors particular to the individual – when finding extraordinary and compelling reasons for a sentence reduction.

circuitsplit220919Bloomberg said, “The opinion deepens a circuit split on the bipartisan 2018 reform law that has generated much litigation since then-President Donald Trump signed it.”

The 3rd, 7th, and 8th Circuits have ruled that district courts may not consider non-retroactive sentence changes made by First Step, whether offered alone or in combination with other factors, in deciding compassionate release motions. Those circuits reasoned that Congress explicitly made the sentencing changes non-retroactive and that § 3582(c)(1)(A) “should not provide a loophole to get around explicit non-retroactivity.”

For instance, the 3rd Circuit ruled, “We will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” The 7th held that “the discretionary authority conferred by § 3582(c)(1)(A)… cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in… the First Step Act that the amendment to § 924(c)’s sentencing structure appl[ies] only prospectively.” The 8th said, “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”

The 3rd and 7th Circuits still allow district courts hearing compassionate release motions to consider First Step’s changes to stacked § 924(c) sentencing when analyzing § 3553(a) sentencing factors.

dontthink220919The 1st, 4rth, and 10th Circuits, on the other hand, have all held that district courts may consider First Step’s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. The Circuits have held that the statutes directly addressing “extraordinary and compelling reasons” don’t prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A)’s “extraordinary and compelling reasons” is “entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.”

The 6th Circuit swings both ways. In United States v. Jarvis, the Circuit held that the “district court, moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentence based on a nonretroactive change in the law.” But in United States v. Owens, the panel said that the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied can be considered, along with other factors, to be an extraordinary and compelling reason for a reduction.

In Howard’s case, the 9th said,

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling. Neither of these rules prohibits district courts from considering rehabilitation in combination with other factors. Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand… To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.

United States v. Chen, Case No 20-50333 (9th Cir., September 14, 2022)

Bloomberg, Compassionate Release Gets Another Look Under First Step Act (September 14, 2022)

– Thomas L. Root

Sentence Reduction Decisions – Two Outta Three Ain’t Bad – Update for September 8, 2022

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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.

Three Circuits Hand Down Late August Sentence Reduction Decisions

endofsummer220908Traditionally, not much gets done in August, and that rule applies even more to the week before Labor Day. People are returning from vacation or grabbing some extra days to tack on the long weekend, while those stuck in the office are afflicted with end-of-summer ennui.

Last week, that rule didn’t apply to three courts of appeal, all of which handed down rulings on the limits of compassionate release under 18 USC § 3582(c)(1)(A) and First Step Act Section 404 sentence reductions. Two were good for prisoners; one was not.

First Circuit Punts: Al Trenkler was convicted of a car bombing 30 years ago. The jury found Al had harbored only an intent to destroy property, but the trial judge inferred from the evidence an intent to kill and imposed a life sentence. But the law required life sentences to be assigned by the jury. The error – which everyone acknowledges – has never been fixed because of procedural roadblocks too complex to be explained here.

Al filed for compassionate release 18 months ago, based on his health and COVID-19 pandemic as well as his claim that questions surrounded his guilt; the fundamental unfairness of his conviction; sentence disparity and the unlawfully-imposed life sentence.

While Al did not sufficiently persuade the district court that questions surrounding his guilt, fundamental unfairness, and co-defendant sentence disparity constituted “extraordinary and compelling” reasons for compassionate release, the court decided the sentencing error did. Noting that Al had no other avenue for relief from the sentencing error, the district court reduced his sentence from life to 41 years.

The government appealed. Last week, the 1st Circuit sent the case back to the district court.

While the appeal was pending, the 1st ruled in United States v. Ruvalcaba that while district courts may generally consider “any complex of circumstances” in deciding that a prisoner should be granted compassionate release, that doesn’t mean that “certain reasons, standing alone, may be insufficient as a matter of law when measured against the ‘extraordinary and compelling’ standard… After all, it is possible that the whole may be greater than the sum of its parts, and reasons that might not do the trick on their own may combine to constitute circumstances that warrant a finding that the reasons proposed are, in the aggregate, extraordinary and compelling.”

howdidhedothat220908In Al’s case, the Circuit said, “it is clear the district court found the sentencing error constituted an extraordinary and compelling reason warranting a sentence reduction. But its analytical path is susceptible to multiple interpretations when it comes to how it navigated the list of reasons Trenkler offered. On one hand, we can appreciate the possibility that the district court discarded Trenkler’s other proposed reasons one by one but… deemed the circumstances surrounding the sentencing error alone to meet the “extraordinary and compelling” criteria. But we can also see how discarding all proposed reasons except one could represent a singular reason-by-reason analysis, not a review of the individual circumstances overall. In the end, our careful review of the district court’s thorough (but pre-Ruvalcaba) decision leaves us uncertain as to whether it took a holistic approach when reviewing Trenkler’s proposed reasons and ultimately concluding that the sentencing error constituted a sufficiently extraordinary and compelling reason to grant relief.”

The 1st decided that “given the importance of the issues and the gravitas of abuse-of-discretion review, we conclude that the prudent approach is to remand to afford the district court the opportunity to reassess the motion with the benefit of Ruvalcaba’s any-complex-of-circumstances guidance.”
3rd Circuit Reverses Sec 404 Resentencing: Clifton Shields was eligible for a Fair Sentencing Act sentence reduction under Section 404 of the First Step Act. He argued that his rehabilitation and the fact that he couldn’t be found to be a career offender if he were sentenced today (because courts now looked at some predicate offenses differently than they did when he was sentenced) meant his sentence should be reduced from 360 months to time served.

The district court cut his sentence to 262 months, but refused to consider “whether under current law Shields would be considered a career offender” because it believed that “[t]he First Step Act does not permit the court to consider other statutory or sentencing guideline amendments enacted since the date the defendant committed his or her offense.” The district court held that the reduced sentence it was imposing, at the bottom of Cliff’s amended Guidelines range, reflected its consideration of those factors as well as the documents Cliff had submitted as evidence of rehabilitation.

Last week, the 3rd Circuit reversed the district court, holding that district courts are authorized to take into account, at the time of resentencing, any changed circumstances, including post-sentencing developments. Noting that the Supreme Court’s Concepcion decision last June acknowledged “the broad discretion that judges have historically exercised when imposing and modifying sentences, and acknowledged that district courts deciding Sec 404(b) motions regularly consider evidence of… unrelated, nonretroactive Guidelines amendments when raised by the parties,” the Circuit said that while a district court is not required to accept arguments about intervening changes in the law, it should “start with the benchmark Guidelines range recalculated only to the extent it adjusts for the Fair Sentencing Act and should consider Shield’s arguments that he no longer qualifies as a career offender and his renewed objections to the firearm enhancement and the drug weight… used to calculate his Guidelines range.”

2nd Circuit Outlier: Victor Orena filed for compassionate release, arguing in part that he had new evidence that called into question the validity of his conviction. The district court denied the § 3582(c)(1)(A)(i) motion, refusing to consider the new evidence.

outlier220908In a June decision that the 2nd Circuit affirmed again last week, the appellate court upheld the denial. The Circuit ruled that when considering a motion for a § 3582(C)(1)(A)(i) sentence reduction, “a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 USC § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 USC § 2255 or 2241.”

The problem with this approach is that a district court must consider the sentencing factors of 18 USC § 3553(a), including whether the sentence reduction will still represent fair and just punishment for the offense. What the defendant ought to have been sentenced to (or what he or she would be sentenced to if sentenced today) seems like the logical starting point for determining whether the reduction being sought remains consistent with the sentencing factors.

When the Circuit is confronted with whether a district court must assume that a sentence that could not lawfully be imposed today is the starting point for measuring consistency with the sentencing factors, we might get a decision that is more like Trenkler and Shields.

United States v. Trenkler, No. 21-1441, 2022 U.S. App. LEXIS 24290 (1st Cir. Aug. 29, 2022)

United States v. Shields, No. 19-2717, 2022 U.S. App. LEXIS 24719 (3d Cir. Sep. 1, 2022)

United States v. Amato, 37 F.4th 58 (2d Cir. 2022)

– Thomas L. Root

“Supreme Court – Meh,” 7th Circuit Says – Update for July 19, 2022

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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.

‘CONCEPCION’? WHAT ‘CONCEPCION?’ 7TH CIRCUIT ASKS

When the Supreme Court handed down the Concepcion v. United States decision a few weeks ago, I thought that the holding – that district courts’ discretion to consider any relevant information in resentencing is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence – would resolve a circuit split surrounding what factors can serve as the basis for compassionate release.

Sentencestack170404I was especially focused on cases in which courts were asked to rely on non-retroactive changes in sentencing law – such as the First Step Act’s ban on § 924(c) “stacking” – as a basis for compassionate release. After all, nothing in the text of 18 USC § 3582(c)(1)(a) supports the notion that non-retroactive changes are excluded from being “extraordinary and compelling.”

Who could possibly disagree?

The 7th Circuit, maybe. Last week, that Circuit rejected reliance on non-retroactive changes in statute as a basis for compassionate release. Christopher King was serving a mandatory minimum sentence for drug distribution that had been lowered by the First Step Act. He argued the statutory change – while not retroactive – was an extraordinary and compelling reason for a sentence reduction.

extraordinary220719The 7th disagreed, holding that when deciding whether “extraordinary and compelling reasons” justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.” The Circuit ruled that “there’s nothing ‘extraordinary’ about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.”

The 7th observed that

Concepcion… held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing. We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But… the threshold question [is] whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)… The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

7thConcepcion220719Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman quite rightly complained, “[T]his new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering ‘non-retroactive statutory changes or new judicial decisions’ even though Concepcion stressed that the ‘only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution.”

Concepcion v. United States, Case No 20-1650 (Supreme Court, June 27, 2022)

United States v. King, Case No 21-3196, 2022 U.S.App. LEXIS 18987 (7th Cir., July 11, 2022) 

Sentencing Law and Policy, Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court’s Concepcion decision (July 11, 2022)

– Thomas L. Root