Tag Archives: sentencing factors

A Refreshing Pair of Compassionate Release Rulings – Update for July 15, 2025

Leave a comment

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

TWO CIRCUITS SHOW SOME COMPASSION

The 1st and 4th Circuits have both issued significant compassionate release decisions in the last two weeks.

Under 18 USC § 3582(c)(1), a sentencing court can grant a sentence reduction – known colloquially if not quite precisely as “compassionate release” – to a federal prisoner if the court finds “extraordinary and compelling reasons” for a sentence reduction, the reduction is consistent with Sentencing Commission policies, and that release would be consistent with the sentencing factors listed in 18 USC § 3553(a). Since passage of the First Step Act in 2018, a prisoner may bring a motion for compassionate release himself or herself.

What constitute “extraordinary and compelling reasons” are defined in the Guidelines at USSG § 1B1.13.

The 4th Circuit ruling first: Richard Smith has served about half of his 504-month crack cocaine conspiracy and stacked 18 USC § 924(c) sentences. He filed for compassionate release, citing his advanced age, poor health, rehabilitation efforts,  and the disparity between his current sentence and the one he would receive for the same conduct if sentenced today.

The district court found that there were “extraordinary and compelling reasons” to grant the compassionate release motion, but in weighing the 18 USC § 3553 factors, the court concluded that “[r]eleasing Smith would not reflect the seriousness of the offense conduct, promote respect for the law, provide just punishment for the offense, or deter criminal conduct.” The district court noted Dick’s prior state convictions for drugs and domestic battery and complained that the estimated amount of crack cocaine used by the original sentencing judge “was low.” The judge refused to consider the non-retroactive First Step Act amendments to 18 USC § 924(c) and for good measure, said that even if he did consider the changes, “they would not overcome the finding that the § 3553(a) factors weigh against a sentence reduction.”

Last week, the 4th Circuit reversed the district court and remanded with instructions to let Dick go home. First, it held that the sentence disparity created by the First Step Act’s elimination of “stacked” mandatory minimums under § 924(c) can constitute an “extraordinary and compelling reason” under 18 USC  § 3582(c)(1)(A)(i) (thus suggesting the Sentencing Commission’s compassionate release guideline 1B1.13(b)(6) is lawful). The issue of whether (b)(6) – which authorizes a district court to consider nonretroactive changes in the law as part of an “extraordinary and compelling reason” analysis – exceeds Sentencing Commission authority is currently before the Supreme Court in Rutherford v. United States and will be decided next spring.

Second (and more significant for compassionate release movants), the Circuit concluded that the district court’s rote recitation of § 3553 factors “fail[ed] to recognize that the relevant § 3553(a) factors clearly favor release.” Dick was no recidivism risk, the 4th said, no matter what his criminal history in the last century might have been, due to “his advanced age and serious medical conditions. Smith was 66 years old at the time he filed his renewed motion for compassionate release. He is 71 years old today… Moreover, Smith suffers from black lung disease, an irreversible respiratory impairment resulting from his years as a coal miner. Smith has also been diagnosed with COPD, emphysema, pre-diabetes, a liver cyst, and a heart rhythm disorder. He is totally disabled and a portion of his right lung has been removed.”

Dick only had two minor disciplinary infractions in 20 years, completed dozens of vocational classes and participated in drug treatment programs. He worked his way down from high security to low. “This is not the picture of an unremorseful defendant bent on causing future harm even if he was physically able,” the 4th said.

The Circuit noted that “the district court determined, without elaboration, that a reduced sentence would fail to ‘deter criminal conduct.’ But this ignores that, by the time of his release, Smith will have already served nearly 25 years of his 42-year sentence. The prospect of 25 years of prison time serves as a powerful deterrent against the conduct—which was undoubtedly serious—for which Smith was convicted and sentenced.”

Meanwhile, Edison Burgos filed for compassionate release on the grounds that the BOP was failing to treat his hypertension and obstructive sleep apnea. The district court held that Eddie was getting “adequate medical, dental and psychological care” and denied his motion. Two weeks ago, the 1st Circuit reversed, holding that the district court had “overlooked the undisputed evidence demonstrating that, almost one year after Ed’s sleep apnea diagnosis and despite his ongoing severe hypertension, the BOP had yet to provide him with the established treatment for sleep apnea.”

The BOP argued that the fact that Ed’s medical records show that a “second sleep study was listed as an ‘urgent’ priority…”  was “sufficient evidence that the BOP was adequately treating him for sleep apnea.”  The 1st ripped that fig leaf away:

Even if we overlook that the “urgent” sleep study had yet to be conducted as of Dr. Venuto’s second letter to the court, however, a sleep study is a diagnostic tool: The only treatment for sleep apnea discussed in Burgos-Montes’s medical records is a CPAP machine… Indeed, as we have explained, in April 2022, an outside cardiologist recommended that Burgos-Montes receive a CPAP machine “ASAP” to treat his sleep apnea, without suggesting that additional diagnostic testing was needed. And Dr. Venuto acknowledged that as of July 2022, Burgos-Montes had still not received a CPAP machine.

The Circuit ruled that “the record is clear that nearly a year after Burgos-Montes received a sleep apnea diagnosis, months after a consulting cardiologist recommended that he receive a CPAP machine “ASAP,” and even after his transfer to a higher-level care facility, the BOP had yet to provide Burgos-Montes with a CPAP machine or any other sleep apnea treatment. And there is no dispute that untreated sleep apnea for a patient like Burgos-Montes, who also suffers from severe hypertension, could amount to an ‘extraordinary and compelling’ reason to grant compassionate release.”

United States v. Smith, Case No. 24-6726, 2025 U.S.App. LEXIS 16565 (4th Cir. July 7, 2025)

Rutherford v. United States, Case No. 24-820 (cert. granted June 6, 2025)

United States v. Burgos-Montes, Case No. 22-1714, 2025 U.S.App. LEXIS 16048 (1st Cir. June 30, 2025)

– Thomas L. Root

Big White Bear Banished… Or Is He? – Update for June 24, 2025

Leave a comment

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

‘DON’T THINK ABOUT THE BIG WHITE BEAR’ IN SENTENCING SUPERVISED RELEASE VIOLATIONS, SCOTUS TELLS JUDGES

When a federal prisoner who is out of prison but serving a term of supervised release (a version of parole after a prison term is served) gets violated for breaching one of the many supervised release conditions, the Court may impose some more time in prison. When doing so, the supervised release statute (18 USC § 3583(e)) directs the Court to consider most of the sentencing factors in the Guidelines.

But not all. Conspicuously missing from the list of permissible factors listed in § 3583(e) is § 3553(a)(2)(A), which directs a district court to consider “the need for the sentence imposed… to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.”

Edgardo Esteras pled guilty to conspiring to distribute heroin. The district court sentenced him to 12 months in prison followed by a 6-year term of supervised release. He did his time and began his supervised release. Eventually, he was arrested and charged with domestic violence and other crimes.

The district court revoked Eddie’s supervised release and ordered 24 months of reimprisonment, explaining that his earlier sentence had been “rather lenient” and that his revocation sentence must “promote respect for the law,” a consideration enumerated in 18 USC § 3553(a)(2)(A) but not authorized to be considered in fashioning a supervised release revocation sentence by § 3583(e).

The 6th Circuit affirmed the sentence, holding that a district court may consider § 3553(a)(2)(A) when revoking supervised release even though it is not one of the listed factors to be considered in 18 USC § 3583(e).

Legend has it that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. Last week, the Supreme Court told district courts to ignore the bear when sentencing supervised release violations.

Writing for the 7-2- majority, Justice Barrett reversed the 6th Circuit in what seemed to be an easy lift for the Court. The decision applied the well-established canon of statutory interpretation “expressio unius est exclusio alterius” (expressing one item of an associated group excludes another item not mentioned). In other words, where a statute provides a list of what can or cannot be considered – the classic example being Section 61 of the Internal Revenue Code,  which lists ten examples of what constitutes “gross income” – that detailed list implicitly excludes anything not listed.

Likewise, the Supreme Court held that where Congress provided in § 3583(e) that the Court should consider a list of eight of the ten sentencing factors from 18 USC § 3553(a) when sentencing on a supervised release violation, “[t]he natural implication is that Congress did not intend courts to consider the other two factors…” Justice Barrett wrote that “Congress’s decision to enumerate most of the sentencing factors while omitting § 3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release. This inference is consistent with both the statutory structure and the role that supervised release plays in the sentencing process.”

But such a Pyrrhic victory! Any judge worth a robe and wig can easily figure out how to throttle a mutt like Eddie — who unquestionably got a real break in his original heroin sentence — with a maxxed out supervised release sentence that will withstand judicial review. The supervised release sentence may still be based on the “nature and circumstances of the offense and the history and characteristics of the defendant” (§ 3553(a)(1)), on the need “to afford adequate deterrence to criminal conduct” (§ 3553(a)(2)(B)) and the need “to protect the public from further crimes of the defendant” (§ 3553((a)(2)(C)). The judge can describe the offender as having the characteristic of “not learning from his mistakes” or as needing a long supervised release sentence because he has not yet been deterred from criminal conduct or as needing to be locked up to protect the public.

Different spirits summoned, but the same result. As long as no one mentions the big white bear, a canny sentencing judge can think about the bruin all he or she wants to and sentence accordingly.

As for Eddie, he finished his supervised release sentence in October 2024, so the Supreme Court decision does little for him.  But maybe it will have some beneficial effect. It seems Edgardo was arrested on a fresh supervised release violation last month and is currently held by the Marshal Service. He will appear in front of Judge Benita Y. Pearson (N.D. Ohio) for a hearing in three weeks.

We’ll see if the bear comes up during that hearing.

Esteras v. United States, Case No. 23-7483, 2025 U.S. LEXIS 2382 (Jun 20, 2025)

– Thomas L. Root

Counting Angels on Pins in the Guidelines – Update for July 26, 2017

Leave a comment

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

LISAStatHeader2small
WHY SHOULD IT MATTER?

Consumers of the Federal Sentencing Guidelines – the courts that apply them, the lawyers that argue them, and the defendants that suffer under them – all have experience with the Byzantine nature of the code: enhancements are many and malleable, timelines are flexible as needed, and the quantum of evidence needed to jack up offense levels seems to fluctuate like political approval ratings.

emperor170726A refreshing 7th Circuit decision handed down Monday declared emphatically that the Guidelines emperor has no clothes. Crane Marks, who had pled guilty to conspiring to distributing heroin, was sentenced to 108 months, a sentence that was “either well above or well below the advisory range under the Sentencing Guidelines, depending on one issue,” the Court said. The district court decided the issue against Crane, but did so in a way that was both legally and factually defective.

Most of us who have spent any time at all in courtrooms have heard judges disgustedly ask parties – either the plaintiff or defendant, and sometimes both – “why are you here?” It hardly ever is asked as eloquently as it was in this case. The Circuit complained,

In all candor, [the] one issue [in this case] seems astonishingly technical and trivial. It has nothing to do with Marks’ culpability or the larger goals of sentencing. As we explain below, the issue is whether, when Marks was imprisoned on his fourth state drug conviction in 2000, he also had his state parole revoked on any of his earlier state drug convictions and was re‐imprisoned on that revocation as well. From this description of the issue, we hope readers will agree that this is one of those guideline issues that should prompt the sentencing judge to ask why the judge or anyone else should care about the an‐swer.

Because the issue seems so technical and trivial, we have examined the record in this case for any signs that the judge would have given Marks the same sentence regardless of how the technical criminal history issue was resolved. We found no such signs, however, so we have considered the technical guideline issue on the merits.

The issue was straightforward enough. Crane had enough prior state drug convictions to be a career offender under USSG Sec. 4B1.1, which would subject him to a dramatically higher sentencing range. However, for a prior drug sentence to count, it had to be otherwise eligible for criminal history points, meaning that Crane would have had to have been in prison for it within 15 years of the current offense.

guidelines170530The government and Crane agreed he was not a career offender, because he got out of prison on one of his qualifying priors, from 1994, more than 15 years before his current crime. This would have set his sentencing range at 51-63 months. But the Probation Officer writing the presentence report found some handwritten state prison records saying Crane had had his parole revoked on the 1994 case in 2000, which would put imprisonment on the offense within the 15-year window and make the 1994 case countable. The records showed that his parole was revoked, and he was “in the custody” of the state department of corrections. The Probation Officer – and the court – concluded Crane was a career offender. His career offender guidelines were 151-188 months, but the court sentenced him well below that at 108 months.

Probation officers work for the U.S. Probation and Pretrial Services, a judicial agency. They are often considered by the district court judges to be their trusted employees. This unhealthy familiarity, in our opinion, leaves judges way too willing to accept anything the probation officer says, even when both the government and the defendant disagree. So it was in this case.

The Court of Appeals was not wearing the same blinders. It concluded “that the court made both a legal error and a factual error. The legal error was that the court did not make the finding needed to treat Marks as a career offender under the Guidelines. The factual problem is that the court was not presented with reliable evidence from which it could have found that Marks was imprisoned on a revocation of parole on any earlier conviction. That means that Marks does not qualify, technically, as a career offender. His advisory guideline sentencing range is lower than the range found by the district court.”

checkoff170726The legal problem was that the state department of corrections treated anyone on home confinement, electronic monitoring or in prison as being “in custody.” This meant that the notation that Crane was “in custody” was irrelevant: only if he was actually locked up within the 15 years would the prior offense count. As the Circuit put it, “The broad concept of “custody” is not enough under Sec. 4A1.2(k)(2). The focus is “incarceration.” Proving that Marks’ parole terms did not expire until 2000 was not enough—the government had to show that Marks was incarcerated on at least one of those convictions.”

The factual problem was that the district court lacked reliable evidence to support application of the career‐offender Guideline. As a general rule, a sentencing judge may rely on a presentence report if it “is well‐supported and appears reliable,” the Circuit said. “But if a presentence report contains nothing but a naked or unsupported charge,” the defendant’s denial will suffice to call the report’s accuracy into doubt. Similarly, if the presentence report “omits crucial information, leaving ambiguity on the face of that document,” the government has the burden of independently demonstrating the accuracy of the report.”

Here, the records contained no narrative showing that Crane was given a new term of imprisonment for violating parole, or whether he was merely noted as being in custody on a potential parole violation. The fact that his sentence on 1994 conviction “was discharged only a few months after he pled guilty to the 2000 charge,” the Circuit said, “suggests that no revocation occurred. And it is difficult to understand why, if Marks’ parole was actually revoked, the government could not have supported the presentence report with a copy of the order of revocation.”

angels170726It seems so much like counting angels on the heads of pins. Had the trial judge stated on the record that his sentence would be 108 months with or without the career offender finding, the 7th would have simply called it a day. But without being able to tell from the record how the faulty career offender status influenced the trial court, the Circuit had no option but to remand the case for resentencing.

United States v. Marks, Case No. 15-2862 (7th Cir., July 24, 2017)

– Thomas L. Root

LISAStatHeader2small

District Judge Won’t Go Along With the Government’s Program, Gets Slapped – Update for June 28 ,2017

Leave a comment

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

LISAStatHeader2small
SUPER MARIO

mario170628Mario Crancho, a trucker from Mexico, got busted in Arkansas with 43 kilos of coke hidden in his trailer. He wisely agreed to cooperate, and proceeded to make controlled deliveries, identified stash houses and debriefed extensively on the trans-border coke trade.

Of course, the government freely used its considerable powers to assist Mario, too. First, the government somehow failed to pass on to the Presentence Report writer the actual drug quantity Mario had shipped, instead mentioning only two of over 20 trips Mario had made from south of the border. This conveniently omitted probably 95% of the quantity he had actually shipped, leaving him with a very favorable advisory sentencing range of 168-210 months. The district judge wondered why, but lacking any cooperation from the parties in providing the right number, he ultimately adopted the PSR “without change.”

Then, at the sentencing hearing, the prosecution waxed rhapsodic about Mario’s assistance, calling it very substantial and asking for a 50% sentence cut from the low end of his guidelines pursuant to a USSG § 5K1.1 downward departure.

coke170628
So how many pallets of Mario’s cocaine did the court not hear about? Inquiring minds – including the judge’s – want to know…

The district court reluctantly granted the government’s 5K1.1 motion, concluding that Mario had provided substantial assistance. But the judge was troubled, and pretty clearly had had a bellyful of these kinds of deals. The court said he was “really struggling with this because, while he has provided substantial assistance, what it does is shows me the breadth of… his involvement in these drug crimes, and it’s huge.” The district court had “seen people with not nearly this culpability go to jail for extended periods of time” and was “struggling with the 50 percent reduction and with the low end of the guidelines.”

And isn’t that the problem? The government has so much power to shower love on people who assist it, no matter their prior culpability. And the poor shmuck who peddled nickel bags on the corner. He didn’t know nuthin’, and so he’s got no information to trade. Watch the U.S. Attorney’s young guns hammer that kid at sentencing.

hammer160509However, when Mario’s judge expressed his misgivings, the government doubled down, becoming even more effusive. It argued Mario was super, having placed himself in great personal danger by making the controlled deliveries, that he began cooperating with the government at his first opportunity (forgetting his previous 21 coke runs from Sinoloa to North Carolina), and that had provided other valuable information as well. Defense counsel chimed in that Mario was a great guy and had a successful trucking business (that success helped no doubt by payments received for shipping hundreds of kilos of coke to the Tarheel State).

The government’s happy talk did not allay the district court’s concerns:

The problem I have with this is he’s given the opportunity to cooperate because he was so high up and because he was driving so much drugs and he was dumping that crap here in Winston-Salem, and we send people to jail every day for .6 grams of drugs, and it is massive amounts of drugs, and… in terms of the equity in sentencing… I can tell you I am not going to the low end, and I am still struggling with whether or not I am going to do the actual total 50 percent.

The judge sentenced Mario to 210 months, the top of the guidelines, and then cut it by 40% for substantial assistance. So instead of walking out of the courtroom with 84 months, Mario ended up with 126 months. That’s 44 months more than Mario expected, for the math-challenged among us.

Mario appealed, and on Monday, the 4th Circuit slapped the district judge’s hand.

Fourth Circuit case law requires a district court determining the extent of a 5K1.1 departure to consider assistance-related factors only. The district court clearly found Mario’s assistance to be substantial, but then judged the 50% reduction not on the extent or quality of Mario’s assistance but instead to the scope of the charged conspiracy and the level of Mario’s culpability in that conspiracy, questioned the equity of giving Mario a lower sentence than is often imposed on less culpable defendants, and condemned the destructive effect of the “junk” that Mario was “dumping” on the community.

The 4th Circuit's subtle advice to the district judge...
The 4th Circuit’s subtle advice to the district judge…

The Circuit admitted there was no problem relying on those other factors in setting the 210-month end of the guidelines, but the district court used it again in selecting a 40% instead of 50% reduction. The Court of Appeals said, “these concerns, which focus on facts related to the charged conspiracy, simply bear no relation to the nature, extent, and significance of the defendant’s assistance.”

Bottom line: The district judge was substituting his judgment for the prosecutor’s. There’s little room for that kind of judicial independence under the current sentencing regime.

The case was remanded for resentencing.

United States v. Crancho, Case No. 15-4760 (4th Cir. June 26, 2017)

– Thomas L. Root

LISAStatHeader2small

7th Circuit Sanctifies Judicial “Hunches” as Sentencing Tool – Update for January 10, 2017

Leave a comment

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

LISAStatHeader2small
HUH?

pecks170110Ryan Gibbs was just one of those perennial bad boys, with a record as long as your arm and a demonstrated lack of interest in conforming his conduct to the strictures of the law. In front of a district court for possession with Ryan faced a Guidelines-suggested 151-188 month sentencing range. The government asked for 216 months. The most Ryan could have gotten was a 240-month term.

The district judge, rambling “none too clearly” (as the Court of Appeals lamented), decided that Ryan was incorrigible:

When I look at the 3553(a) factors apart from the “nature and circumstances of the offense,” your “history and characteristics” of you as a defendant does [sic] not indicate that there should be any leniency at all; that they [anteced‐ent unclear] “reflect the seriousness of the offense,” “promote respect for the law,” which your history and characteristics indicate that you have no respect for the law; “provide just punishment.” Nothing — No previous sentence that this Court has imposed or other Courts have deterred you from your criminal conduct.

With this gibberish constituting the sum and substance of the district court’s application of the sentencing factors of 18 USC 3553(a), the judge slapped Ryan with 216 months.

Last week, the 7th Circuit affirmed the sentence. No surprise there – the government wins over 92% of the time in criminal appeals to begin with.

But the Court of Appeals upheld the decision primarily because it sensed it could trust the judge’s (and, to a lesser extent, the prosecutor’s) gut.

hunch170111The Circuit admitted that no one in the case “attempted a sophisticated analysis of the likely consequences… of adding roughly two years to the sentence he would have been given had the judge stopped at the top of the guideline range… both the prosecution and the judge based the 216-month sentence (proposed by the government, imposed by the judge) on a hunch. As the prosecutors as well as the judge are highly experienced, their hunches are likely often to be reliable.”

The Court said that, after all, the government can suggest any sentence within the statutory range and the judge can impose any sentence within the statutory range. Plus, the panel argued, the “briefs and argument of defense counsel in this case bordered on the perfunctory.”

So the judge and the AUSA are “highly experienced” and their hunches are “reliable.” Defense counsel, on the other hand, is a legal klutz filing cookie-cutter motions and soulless briefs. It sounds as though imposition of a sentence after proper consideration of the Guidelines and sentencing factors in Sec. 3553(a) is a privilege reserved only for defendants who have good lawyers or face lousy prosecutors and a neophyte judge.

Judge Richard Posner, the author of the decision and an appellate jurist for whom we have great respect, said that “some consideration, however, should be given to the possibility of basing a prison sentence – at least a very long one (and an 18-year sentence is very long) – on something other than a hunch.” We agree wholeheartedly. But he then proceeded on a flight of impractical fancy by suggested that maybe the sentencing judge should have called the Sentencing Commission, which then would given the AUSA, court and defense counsel guidance on why it set the Guidelines where it did, and might even propose the right out-of-guidelines sentence in this particular case. The parties might find the Sentencing Commission “a valuable resource,” Judge Posner opined.

momscold170110What a capital idea! For that matter, the district courts might just want to call Congress for guidance on why the statutory penalties are as they are, or ring up the President for his view as to whether it should peremptorily commute the sentence, or even ask the defendant’s mother what punishment she found to be the most effective when Ryan was a mere lad. To be sure, the Sentencing Commission could not be so busy that it wouldn’t be willing to give a few minutes of time to arbitrate an individual sentence in Ryan’s case (or in any of the other 80,000 criminal sentences that occur in federal courts annually).

phonefriend170110In the days before the Guidelines, judges sentenced anywhere within the statutory range virtually without oversight or discretion. The Guidelines were to change all of that. In Gibbs, the 7th Circuit has handed down a decision that enshrines a judge’s “hunch” as a standard that trumps all others. What’s nearly as bad, the Court has suggested that maybe district courts should start using the U.S. Sentencing Commission as a “phone-a-friend” in troublesome sentencing cases, a development undoubtedly as unwelcome to the Commission is it would be for people like us who believe that judging is for judges.

United States v. Gibbs, Case No. 16-1747 (7th Cir., Jan. 6, 2017)

– Thomas L. Root

LISAStatHeader2small