Tag Archives: compassionate release

Compassionate Release Gets Uglier – Update for September 3, 2021

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

THE UNSTRUCTURED AND ARBITRARY WORLD OF COMPASSIONATE RELEASE, IN WHICH DISCRETION ONLY WORKS ONE WAY…

Someday, legal scholars may look back on COVID-era compassionate releases granted under 18 USC § 3582(c)(1)(A)(i) as having introduced more disparity and inconsistency in sentencing than any event in federal criminal law.

chaos210903A Sentencing Commission study last month tallied compassionate releases by district, released last month, reported that 22.3% of the 12,885 compassionate release motions filed in 2020 were granted. But if you filed one, your chances were not one out of 4.5, Instead, if your case came from the District of Oregon, your chances of a grant were 69.8%. If, however, your case came from the Western District of North Carolina, your chances were a lousy 1.5%.

There is no federal court district in the country with a poorer track record for compassionate release than Western District of North Carolina. During 2020, Western District judges heard 337 compassionate release motions. The judges denied all but five. By comparison, the Eastern District of North Carolina approved release in 25% of its 224 compassionate-release requests. The Middle District of North Carolina had an approval rate of 6.2%, granting 10 of 162 requests.

(The U.S. Virgin Islands had a 0% approval rate, but that court heard just six requests, the report says. By contrast, the Western District of North Carolina handled the sixth-highest number of compassionate release cases in the country last year.)

“The numbers are jarring,” one defense attorney said. “Your geography remains one of the most relevant factors in determining the sentence you receive or the severity of the punishment. In a country that guarantees equal protection under the law, I think that should raise some constitutional questions.”

That’s because appellate courts afford district judges a lot of discretion in deciding compassionate release motions, and – from time to time – confound things by issuing questionable decisions that tie up their district courts in procedural knots.

Case in Point #1: Take Jessica Ward, for example. She is around a third of a way through a 200-month drug sentence, and sought compassionate release in the Northern District of Texas due to chronic kidney failure. The government’s opposition argued that she did not meet Section 1B1.13 of the Sentencing Guidelines, in that the BOP was adequately managing COVID, but neither mentioned her kidney disease nor argued that 18 USC § 3553(a) sentencing factors should be relied on to deny her compassionate release motion.

The district court denied her motion because she did not meet USSG 1B1.13 and because § 3553(a) factors did not support a reduction. Jenny appealed.

crystalball210903Last week, the 5th Circuit denied her appeal. It agreed that the district court was wrong to rely on USSG 1B1.13, because that Guideline does not apply when a prisoner files a compassionate release motion herself. But while the Government made no mention of the § 3553(a) factors, the Circuit “gives deference to the district court’s determination… We see no reason to hold that the Government’s failure to make arguments about the factors cancels the court’s statutory obligation to consider them.”

The 5th said the burden falls on the defendant to convince the court to grant compassionate release after considering the § 3553(a) factors. If the defendant fails to convince the district court to exercise its discretion, then the court may deny the motion, assuming it considers the § 3553(a) factors, for reasons the government may have never argued. 

Lesson: Not only does a compassionate release movant have to address the arguments raised by the government, but he or she should address arguments that the court might raise on its own in the ultimate denial. The prudent defense attorney should thus have both a LEXIS/Westlaw account and a crystal ball.

Case in Point #2: Consider Ron Hunter, a one-time drug trafficking organization hitman convicted 21 years ago of murdering a 23-year-old woman outside a nightclub. As we like to say, Ron has kind of a tough fact pattern to argue… So tough that his sentencing judge sentenced him to life in prison.

Twenty-one years later, a different judge granted Ron’s motion for compassionate release. Based upon the fact that Ron did not get the benefit of the non-retroactive United States v. Booker ruling that Guidelines are not mandatory, on certain facts that existed at sentencing, and Ron’s rehabilitation efforts (which were far from perfect), the district court held the factors amounted to the “extraordinary and compelling reasons” required by 18 USC § 3582(c)(1)(A)(i).

compassion210903Should be no problem. right? After all, don’t circuits “give[] deference to the district court’s determination,” like the 5th Circuit said in Jessica Ward’s case? Makes sense, doesn’t it? But it turns out that it’s not necessarily so.

Last Monday, the Sixth Circuit reversed Ron’s compassionate release, holding that his new district judge abused his discretion.

The Sixth Circuit had already ruled last June in United States v. Jarvis that a “non-retroactive changes in the law [can]not serve as the ‘extraordinary and compelling reason’ required for a sentence reduction,” a holding at odds with most other circuits that have considered the issue. That meant that going in to oral argument, Ron was in trouble, because one of the grounds relied on his district court was that Booker would permit a sentence imposed today to vary from the Guidelines.

Now, the Sixth has built on the Jarvis blunder, ruling that “facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.”

As Ohio State University law prof Doug Berman observed in his Sentencing Law and Policy blog, this holding “seems especially problematic and an especially misguided policy invention.” After all, the Sentencing Commission – which was given the duty by Congress to “describe what should be considered extraordinary and compelling reasons for sentence reduction” – held in Note 2 to Guideline 1B1.13, that

For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

So while the Sentencing Commission has said facts known at sentencing can nevertheless be “extraordinary and compelling,” the Sixth Circuit says they cannot. It may well be that the Circuit was just put off at the idea of a hitman doing life going home after serving less time than a porn downloader. But there are ways to force the conclusion the judges wanted to see without pronouncing such a transparently wrong interpretation of the statute.

Lesson: Discretion is a rachet, in which the district court has free rein to deny but substantial restraint to grant, compassionate release.

Raleigh, North Carolina, News & Observer, Inmates seeking release from COVID-hit prisons have next to no chance in this NC district (August 27, 2021)

Ward v. United States, Case No 20-10836, 2021 U.S.App. LEXIS 25808 (5th Cir. Aug. 26, 2021)

United States v. Hunter, Case No. 21-1275, 2021 U.S. App. LEXIS 26115 (6th Cir. Aug. 30, 2021)

Sentencing Law and Policy, Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines (August 30, 2021)

– Thomas L. Root

10th CIRCUIT DISRESPECTS ITS PRECEDENT ON COMPAssionate release – Update for August 12, 2021

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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 FLIPS UP ITS OWN 4-MONTH OLD COMPASSIONATE RELEASE PRECEDENT

flipflop170920It seems like only four months ago that the 10th Circuit ruled in United States v. Maumau and United States v. McGee that the plain language of the compassionate release statute (18 USC 3582(c)(1)(A)(i)) creates a three-step test: ”At step one . . . a district court must find whether extraordinary and compelling reasons warrant a sentence reduction… At step two . . . a district court must find whether such reduction is consistent with applicable policy statements issued by the Sentencing Commission… At step three, § 3582(c)(1)(A) instructs a court to consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by steps one and two is warranted in whole or in part under the particular circumstances of the case…”

Pretty straightforward, isn’t it? Maybe not. Last week, the 10th ruled in a case deciding three compassionate release cases that despite what Maumau and McGee said, “district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others.”

respect210812The Circuit now thinks that Maumau’s and McGee’s detailed discussion of a three-step test – “although we have no doubt that the statements in those opinions were carefully considered by the panels (and are therefore entitled to our respect)” – are nothing more than dicta. Some respect “The language of § 3582(c)(1)(A) certainly requires that relief be granted only if all three prerequisites are satisfied,” the 10th now thinks, “but it does not mandate a particular ordering of the three steps (much less the ordering Hald and Sands urge). Since it mentions step three first, the natural meaning could well be that the court is to first determine whether relief would be authorized by that step and then consider whether the other two steps are satisfied. We think it persuasive, if not binding, that our well-considered reading of the statutory language in McGee declared that the three steps could be considered in any order.”

To make matters more chaotic? The decision drops a footnote noting that “as of oral argument in May 2021, all three men had either been vaccinated or been offered the opportunity to be vaccinated against COVID-19. Although we do not consider this development in resolving their appeals, there is certainly room for doubt that Defendants’ present circumstances would support a finding of ‘extraordinary and compelling reasons’.”

United States v. Hald, Case No 20-3195, 2021 U.S.App. LEXIS 23451 (10th Cir. August 6, 2021)

– Thomas L. Root

No Vax, No Love, 7th Circuit Says – Update for July 27, 2021

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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.

ANTI-VAXXERS GET NO COMPASSION, 7TH CIRCUIT SAYS

District Courts have been struggling with what to do with prisoners seeking compassionate release under 18 USC § 3582(c)(1)(A)(i) because of COVID-19, now that vaccines are generally available. You might think all of this is akin to perfecting buggy whips, what with the COVID pandemic over with, but the virus has a way of sticking around like that dinner-party guest who just won’t leave.

antivax210727The BOP numbers of sick inmates are climbing again, with 214 sick as of last night. More ominous: three weeks ago, the number of BOP institutions with COVID present had fallen to a 13-month low of 64. As of last night, it had shot up to 84. Something tells me COVID behind the fence is soon to become an issue again.

Other numbers you should know: 53.9% of federal prisoners had been vaccinated. A good number of those who have not taken the vaccine still have § 3582(c)(1)(A)(i) compassionate release motions pending. Last week, the 7th Circuit warned them that they may have nothing coming.

Brian Broadfield filed a compassionate release motion, claiming his medical conditions made him susceptible to COVID-19. His district court denied him, finding that a prior weapons conviction made him a danger to the community. That was error: Brian had no prior weapons conviction. But when he appealed, and asked the 7th Circuit to remand the case, the appeals court declined.

“A remand would be appropriate only if reconsideration could produce a decision in Broadfield’s favor,” the 7th said, “and it could not. When Broadfield filed his application for compassionate release, and when the district judge denied it, COVID-19 was a grave problem in America’s prisons, where people cannot engage in social distancing. Today, however, effective vaccines are available.”

Brian said he had refused to get vaccinated because he feared an allergic reaction, but he did not show he had ever had such a reaction before. Even if he had, the Circuit said, “the policy statement provides that prisoners with a history of allergic reactions to vaccines will receive extra evaluation before vaccination and additional observation afterward.”

coffee210521(An aside: That policy and $3.75 will get you a Starbucks frappe menu. Dr. Homer Venters – an epidemiologist who, among other positions, has been designated by the U.S. District Court for the Central District of California to inspect FCI Lompoc – reported to that Court that

[i]t is apparent that BOP has performed well in their efforts to secure, distribute and offer COVID-19 vaccine, a significant accomplishment… there appears little effort focused on engaging staff and incarcerated people about their questions or concerns regarding the vaccine. In speaking with the leadership, it was clear that they view the periodic, mass offering of the vaccine as more than adequate. They reported no efforts to identify and follow up with high-risk patients who refused vaccination, and stated several times that because those people would be re-offered again at a later time, in the same manner as before, that the process was adequate. This is consistent with the reports of patients themselves, many of whom reported that despite having questions about the vaccine and their own health issues, these questions were not addressed during the vaccine offer or afterwards. The CDC has entire toolkits and guidance documents designed to increase vaccine update, but the basic foundation of these efforts is engaging with patients; ‘By taking time to listen to their concerns and answer their questions, we can help people become confident in their decision to be vaccinated.’ The approach of BOP Lompoc not only fails to engage with patients, it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients. Many of these high-risk patients were initially offered the vaccine 3 or 4 months ago, and the insistence by BOP leadership that their very valid and predictable questions and concerns go unaddressed during this time significantly increases the risk of preventable death from COVID-19.

[Note: Hyperlink to CDC guidance not in Dr. Venters’ statement – I added it]. In other words, any prisoner with questions about the vaccine had better not hope for any wise counsel from the quackery that is BOP Health Services. End of aside.)

sthup210727The 7th concerned itself only with the policy statement, not with its execution. It ruled that “for the many prisoners who seek release based on the special risks created by COVID-19 for people living in close quarters, vaccines offer relief far more effective than a judicial order. A prisoner who can show that he is unable to receive or benefit from a vaccine still may turn to this statute, but, for the vast majority of prisoners, the availability of a vaccine makes it impossible to conclude that the risk of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release.”

Ohio State law professor Doug Berman said in his Sentencing Law and Policy blog, “Critically, by using the phrase “the vast majority of prisoners,” this final sentence still suggests that, at least for a few prisoners, the risk of COVID-19 can still provide an “extraordinary and compelling” reason for compassionate release. Even more important may be whether lower courts might read this paragraph to mean that COVID risks cannot be combined with other factors to make out extraordinary and compelling reasons. Even if COVID risks are low for the vaccinated, they are not zero and so should be, as I see it, still a potential contributor to assessing what qualifies as an extraordinary and compelling reason when combined with other factors.”

United States v, Broadfield, Case No 20-2906, 2021 US App LEXIS 21580 (7th Cir. July 21, 2021)

Second Report of Dr. Homer Venters, ECF 239, filed May 12, 2021, in Torres v. Milusnic, Case No. 20-cv-4450 (C.D.Cal.)

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

Bureau of Prisons, COVID-19 Vaccine Guidance: Federal Bureau of Prisons Clinical Guidance (Jan. 22, 2021)

Sentencing Law and Policy,  Seventh Circuit panel states (in dicta?) that vaccine availability “makes it impossible” for COVID risks to create eligibility for compassionate release (July 22, 2021)

– Thomas L. Root

Flip-Flops in Cincinnati – Update for June 10, 2021

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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.

IF THIS IS MONDAY, ‘YES, YOU CAN…’ IF IT’S TUESDAY, ‘NO, YOU CAN’T’

Confusion reigns in the Queen City, nestled on the banks of the Ohio River (and home of the United States Court of Appeals for the Sixth Circuit, a few professional sports teams, and some pretty good brewskis).

Four weeks ago, I reported that the 6th Circuit had decided in United States v. Owens that despite two contrary Circuit decisions – United States v. Tomes and United States v. Wills – a prisoner with stacked 18 USC § 924 sentences could rely on First Step Act changes in 18 USC § 924 as one of several extraordinary and compelling reasons for a compassionate release sentence reduction.

flipflop170920But a week ago, a different 6th Circuit panel said despite Owens, the deal is off. In a 2-1 decision, the Court ruled that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” However, if movants have some other fact that is an extraordinary and compelling reason for a sentence reduction, “they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.”

Ohio State University law professor Doug Berman, writing in his Sentencing Policy and Law blog, called “the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.”

United States v. Jarvis, Case No. 20-3912, 2021 U.S. App. LEXIS 16596 (6th Cir. June 3, 2021)

Sentencing Law and Policy, Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) (June 3, 2021)

– Thomas L. Root

Good, Bad… But Not Indifferent – Update for May 27, 2021

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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.

EITHER GOOD OR BAD

Maybe you’ve noticed our good-and-bad theme this week. Here are some shorts:

thumbsup210526Good: The DC Circuit last week joined seven other circuits in holding that Guideline 1B1.13 does not limit compassionate release motions when those motions are brought by prisoners instead of the BOP.

The Circuit just joins seven other circuits since last September to so hold.  Only the 11th Circuit disagrees.

United States v. Long, Case No 20-3064, 2021 U.S. App. LEXIS 14682 (DC Cir., May 18, 2021)

thumbsdown210526Bad: The two Federal Bureau of Prisons Correctional Officerss who were supposed to be watching Jeffrey Epstein, later charged for lying to investigators and phonying up records to hide the fact they were cruising the Web instead, last week entered guilty pleas in the U.S. District Court for the Southern District of New York under deferred prosecution deals that will cost them 100 hours of community service but no prison time.

Forbes, Federal Prison Guards Admit To Filing False Records During Jeffrey Epstein’s Suicide (May 21, 2021)

thumbsup210526Good: Senators Amy Klobuchar (D-Minnesota and John Cornyn (R-Texas), and House Reps. Karen Bass (D-California) and Guy Reschenthaler (R-Pennsylvania) introduced the One Stop Shop Community Reentry Program Act last week, a bill that would set up reentry centers to help coordinate access to job training, medical and mental health services, and financial counseling. The centers would also help individuals land jobs, gain job-skill training, obtain driver’s licenses, fill out college and student loan applications and receive financial counseling.

The bill passed the House in the last session of Congress, but never came to a vote in the Senate.

NPR, Congress Wants To Set Up One-Stop Shops To Help Ex-Inmates Stay Out Of Prison (May 20, 2021)

thumbsdown210526Bad:  Dr. Homer Venters, an epidemiologist tasked by a federal court with inspecting FCC Lompoc reported last week that the facility has “an alarmingly low vaccination acceptance rate among the inmate population,” due to prison staff neglecting to address inmates’ “very valid and predictable concerns” about the effects the vaccine might have on their underlying health conditions.

Rather than address inmate fears, Venters said, prison staff dismissively told the inmates to either “take the vaccine or sign a refusal form.” He reported to the Court that “many of the people who reported refusing the vaccine told me they were willing to take it but simply had questions about their own health status.”

“The approach of BOP Lompoc not only fails to engage with patients; it has a paradoxical effect of creating a pool of extremely high-risk unvaccinated patients,” he wrote. “In other detention settings I have worked in, a COVID-19 refusal by a high-risk patient would result in a prompt session with a physician or mid-level provider because the consequences of infection are so grave.”

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

– Thomas L. Root

Fascinating District Court Use of Compassionate Release to Correct Sentencing Error – Update for May 21, 2021

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

DISTRICT COURT GRANTS COMPASSIONATE RELEASE DUE TO SENTENCING ERRORS

There’s a precedential pecking order that few do-it-yourselfer prisoner litigants appreciate.

coffee210521It’s easy… a Supreme Court decision binds every lower federal court in America. A “published” decision of a federal court of appeals (and “published” means the court declares it to be published, not just that you can find a copy of it on the Internet) binds every district court in that particular circuit. But the opinion of a district court only binds the parties to the action. If the Chief Judge of the Federal District Court for the Eastern District of Northern South Dakota rules that red is really green, the judge in the office next to hers is nonetheless entitled to rule the next day in a different case that red is more blue than green.

So district court decisions ultimately are sometimes interesting, sometimes illuminating, occasionally infuriating and usually boring, but whatever they might be, $5.00 and the combined output of the best district court in America will get you a Strawberry Funnel Cake Frappuccino at Starbucks, but little else.

oracle210521That doesn’t stop prisoners, many of whom breathlessly cite opinions from some knuckleheaded district court a thousand miles away like they are the immutable words of the oracle descended from Mt. Olympus.

But while district court decisions are not binding precedent, they can be what lawyers like to call “persuasive authority.” That kind of authority says to a district court, ‘look how smart Judge Elihu Smails held in this similar case, and don’t you want to look as bright as he does?’ Sometimes that kind of persuasion works, sometimes it doesn’t.

With that prologue, we were impressed with a decision handed down last week by a judge in the District of Massachusetts, granting compassionate release to a man doing life for a 1991 bombing that killed one cop and injured another.

The movant had discovered an error many years after his conviction which made the life sentence unlawful. He filed a motion with the District Court back in 2007 pointing out the error, and the sentencing court granted him relief. Unfortunately for the defendant, the First Circuit reversed the district court on procedural grounds, specifically that the prisoner had no right to bring what was in effect a second 28 USC § 2255, so the sentencing error was unreviewable.

The prisoner tried again 13 years with a motion for compassionate release under 18 USC § 3582(c)(1)(A)(i).  The motion turned on the prevalence of COVID-19 at USP Tucson and the 65-year old prisoner’s vulnerability to it, but as well raised arguments that the conviction and sentence were tainted by the government having played on the homophobia of the jury, and the sentencing error that was argued futilely in 2007.

The district court rejected the COVID-19 argument due to the fact that the prisoner had received the vaccine, and it characterized the evidence of innocence and homophobia as “serious but not overwhelming arguments” that “raise questions and perhaps even doubts – but no more.”

But the court was convinced by the sentencing error. It rejected the government’s argument that the First Circuit had already settled the issue:

The First Circuit’s holding was premised upon a strict application of AEDPA… But now Congress has spoken again. And this time it has given trial judges broad authority – indeed it has imposed a statutory duty, upon a defendant’s motion – to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction… Moreover, at the time of this writing, there is a growing consensus among courts that there are few if any limitations on what may be considered an extraordinary and compelling reason warranting release, even those claims that have been rejected on direct appeal or collateral attack.

compassion160208The district court used compassionate release to do what it could not do in a § 2255 motion: it ruled that “it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.”

The court ruled that there was “no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case. Here, the Court is deploying the broad discretion provided in one statute – § 3582(c)(1)(A) – to effectuate Congress’s clearly stated intent in a separate statute, see 18 USC § 34, as incorporated by 18 USC § 844.”

United States v. Trenkler, Case No 92-10369, 2021 U.S. Dist. LEXIS 87567 (D. Mass. May 6, 2021)

– Thomas L. Root

Two Very Distinguished Cases – Update for May 13, 2021

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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.

A SOLITARY RAY OF LIGHT…

There was a single bright spot in otherwise dreary judicial news last week.

light210513When an appeals court 3-judge panel issues a precedent-making opinion, no other 3-judge panel can invalidate it. Only the court of appeals sitting en banc (all of the active judges as one court) can do that.

So when a 3-judge panel does something stupid, what can another 3-judge panel do about it?

Last week, a 6th Circuit panel employed one method of finessing a way around a lousy opinion: it distinguished it. That means the judges found some factual difference that let them rule the way they thought they should rule, regardless of the prior opinion.

Ian Owens was charged with one count of bank robbery. He wouldn’t take a deal, so the government added an 18 USC § 924(c) count for using a gun in the commission of a violent crime. He still wouldn’t deal, so the government added another. By the time Ian went to trial, the government had heaped five § 924(c) counts on top of the robbery. Because the case was decided much before the First Step Act changed things around, the § 924(c) counts were stacked, with the second through fifth counts each carrying a mandatory 300 months. Ian was sentenced to 1370 months (114 years).

When Ian filed a compassionate release motion claiming that he wouldn’t get that kind of time after the First Step Act ended § 924(c) stacking and that his co-defendants all got a lot less time than he did, he ran into two prior 6th Circuit decisions, United States v. Tomes and United States v. Wills. Both of those cases said First Step changes in 18 USC § 924(c) could not be used as extraordinary and compelling reasons for a compassionate release sentence reduction. The district court did not consider Ian’s evidence of rehabilitation, any other bases for a finding of extraordinary and compelling reasons, or the 18 USC § 3553(a) sentencing factors.

hares210513Last week, the 6th Circuit split hairs in a split decision, and explained away Tomes and Wills. In those cases, the Circuit said, the prisoner argued only that the First Step Act changed § 924(c) stacking. But Ian had three reasons supporting his extraordinary and compelling showing, not just one. That made his case “factually distinguishable,” the 6th said. “Owens points to the fact that his lengthy sentence resulted from exercising his right to a trial and to his rehabilitative efforts as additional factors that considered together constitute an extraordinary and compelling reason meriting compassionate release,” the Circuit said. “Further, the district court in Owen’s case did not consider these other factors and, instead, summarily concluded that his First Step Act 403 argument was meritless.”

It was not necessarily meritless, the 6th said. “In making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied…”

The decision seems to have jumped onto a rather technical difference between Ian’s situation and the prior cases, but those prior decisions largely stink. Now, the odor has been contained, or – as lawyers like to say – Tomes and Wills have been “limited to their facts.”

United States v. Owens, Case No 20-2139, 2021 US App LEXIS 13656 (6th Cir May 6, 2021)

– Thomas L. Root

11th Circuit Throws Wrench Into Compassionate Release Gears – Update for May 10, 2021

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11TH CIRCUIT SPOILS THE COMPASSIONATE RELEASE PARTY

downer210510You’d never invite the 11th Circuit to a party. Once again, the Debbie Downer of appellate courts has gone its own way, destroying most of the usefulness of compassionate release motions (aka sentence reduction motions under 18 USC § 3582(c)(1)(A)(i)) that all the other circuits take for granted.

Before last Friday, seven courts of appeal have held that USSG § 1B1.13 – the Guidelines policy statement on compassionate release – does not limit motions brought by prisoners. The Guideline – written well before the First Step Act allowed defendants themselves (instead of the BOP Director alone) to bring compassionate release motions – only allows compassionate release motions for a limited list of problems. Anything not on the list – such as the COVID risks for people with vulnerable medical conditions – must be approved by the BOP.

The BOP’s record of approving compassionate release motions is dismal. Between April and December 2020, the BOP approved 11 out of 10,940 inmate requests, which works out to one-tenth of 1%. The 2nd, 4th, 5th, 6th, 7th, 9th, and 10th Circuits have all agreed that § 1B1.13 – unamended since First Step passed – is not an “applicable policy statement” for compassionate release motions brought by prisoners, and will not be until the Sentencing Commission amends it to reflect current law.

hammer160509The consensus of those other circuits does not impress the 11th Circuit. Jim Bryant moved for compassionate release because First Step had cut the mandatory 25-year minimum for an 18 USC § 924(c) gun conviction because he received a higher sentence than some of his coconspirators, because he went to trial, and because he has a good prison rehabilitation record. Last week, the Circuit shot down his request because the BOP had not approved the basis for reduction.

The 11th said, “Application Note 1(D) does not conflict with § 3582(c)(1)(A). The First Step Act’s only change was to allow for defendant-filed reduction motions. Nothing in Application Note 1(D) stops a defendant from filing a § 3582(c)(1)(A) motion. The BOP may still file motions, and Application Note 1(D) can apply to those motions. The BOP can also take a position on a defendant-filed motion, so Application Note 1(D) has a field of application there as well… Because this Court can give effect to the amended § 3582(c)(1)(A) and the unamended Application Note 1(D) at the same time, the Court must do so.”

The effect this ruling will have on compassionate release motions in the 11th Circuit can hardly be overstated. The stark circuit split created by this 2-1 decision may result in Supreme Court review, but inasmuch as a reconstituted Sentencing Commission – which President Biden intends to do – is likely to have § 1B1.13 amended by November 2022, the likelihood the Supreme Court will take up what is likely to be moot a few months after the case is decided is slim.

United States v. Bryant, Case No 19-14267, 2021 U.S.App. LEXIS 13663 (11th Cir., May 7, 2021)

– Thomas L. Root

“Did We Nail That Pandemic, Or What?” – Update for May 6, 2021

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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.

TELL US HOW WE’RE DOING

howwedoing210506The Dept of Justice Office of Inspector General announced last week that it would be conducting a second survey of BOP staff and a first survey of inmates to determine how well the BOP performed during the pandemic.

The results of the surveys should be illuminating.

And how are things now? As of last Friday, the BOP said it has given two doses of vaccine to about 35% of all inmates, and about 49% of staff. About 126 inmates are sick with COVID-19, and 164staff, with COVID still present in 67% of facilities, if BOP numbers can be believed.

numbers180327But can the numbers be believed? The Marshall Project and Associated Press, which jointly have been tracking how many people are being sickened and killed by COVID-19 in prisons across the country and within each state since March 2020, have given up on BOP numbers, warning that “our understanding of the full toll of the pandemic on incarcerated people is limited by the Federal Bureau of Prisons’ policy of removing cases and deaths from its reports in recent months. As a result, we cannot accurately determine new cases or deaths in federal prisons, which have had more people infected than any other system.”

Another federal inmate died of COVID last week, this one at FMC Devens. Paul Archambault contracted COVID-19 at the end of December but was declared “recovered” ten days later. The “recovery” label appears to have benefited record-keeping more than Mr. Archambault. Like a number of others before him, he died of the COVID-19 from which he had recovered.

rehabB160812In New York last week, U.S. District Judge Katherine Polk Failla granted compassionate release to an inmate at MCC Manhattan, ruling that a key part of her sentence was addiction treatment and care for other ailments. The judge said the BOP hasn’t provided it to the inmate, who was serving a sentence for a cocaine conspiracy.

“Due to the extreme lockdown conditions at the [Metropolitan Correctional Center] and [Metropolitan Detention Center], the inmate has been unable to receive mental health care, drug abuse treatment, and other important services that the Court envisioned her receiving while incarcerated,” the judge wrote. “The Court believes these services to be critical to her physical and mental health, and to her ability to reenter society as a productive and law-abiding citizen.”

DOJ Inspector General, Surveys of BOP Federal Prison Staff and Inmates (April 28, 2021)

The Marshall Project, A State-by-State Look at Coronavirus in Prisons (April 30, 2021)

BOP, Inmate Death at FMC Devens (April 29, 2021)

New York Daily News, Judge, inmate slam conditions at NYC federal jails in pandemic’s 13th month (April 26, 2021)

– Thomas L. Root