Vermont-based Federal post-conviction attorney Brandon Sample (who has no connection with this site other than a devotion to criminal defense and his talent in prevailing over sometimes-substantial resistance) went for the fence on a First Circuit compassionate release appeal. Last week, he blasted a walk-off homer.
Compassionate Release and 1st Cir.
Brandon’s client, Juan Ruvalcaba, was convicted of a massive drug-distribution operation over 15 years ago and sentenced to life in prison. “Life” was the sentence that the 21 U.S.C. § 846 counts needed at that time because of Juan’s past drug offenses.
In 2020, Juan sought his court for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) due of COVID and his medical condition. He further contended that the fact that the obligatory minimum sentence for his drug conviction had been changed by the First Step Act – being decreased from life to 25 years – was an additional extraordinary and compelling justification for a sentence reduction.
Section 3582(c)(1)(A)(i) motion, for those of you who just came in, requires that a moving party prove that there is one or more “extraordinary and compelling reason[s]” for a sentence reduction, and that, after considering the sentencing considerations of 18 U.S.C. § 3553(a), a reduction is merited. Time was only the Bureau of Prisons could submit such motions on behalf of convicts – sort of like letting the fox determine whose hens in the henhouse would be freed to go “free-range” – but First Step changed that to let offenders file for compassionate release on their own.
The Sentencing Commission has specified what facts may constitute “extraordinary and compelling” grounds in a Policy Statement (USSG §1B1.13). However, because the Commission has been out of business for lack of a quorum since First Step changed the compassionate release legislation in December 2018, the Policy Statement is still worded as though just the BOP director is conducting all of the filing.
Juan’s district court disagreed that the First Step adjustment to his obligatory minimum may constitute an extraordinary and compelling grounds for compassionate release. What’s more, the court concluded that it was bound to adopt the Sentencing Commission Policy Statement, which did not mention sentence duration or a later non-retroactive modification in the sentencing legislation as grounds for a sentence reduction.
Brandon brought Juan’s appeal to the 1st Circuit, and last week, that court joined a majority of other federal courts of appeal in declaring that Section 1B1.13 does not apply to prisoner-filed compassionate release motions. What’s more, the 1st Circuit found that a district court was permitted to consider that the prisoner is serving an over-long sentence that would not be required had it been issued after the First Step Act.
“The wording of the present policy statement makes pellucid that it is ‘applicable’ exclusively to motions for compassionate release started by the BOP,” the Circuit said. “To find the present policy statement “applicable” to prisoner-initiated motions, we would need to delete the wording relating to motions made by the BOP. That would be serious surgery and executing it would be much outside our appropriate interpretative province…. We may not ‘blue pencil’ unambiguous text to remove it from its context.”
The appeals court agreed that eventually, the Sentencing Commission will be back in business and presumably render § 1B1.13 applicable in a First Step world. Then, “district courts answering such motions not only will be constrained by the statutory requirements but also will be compelled to ensure that their assessments of extraordinary and compelling grounds are consistent with that guidance.” But until then, compassionate release will be read “through the prism of the statutory standards, subject to review on appeal.”
The 1st Circuit likewise found that an excessive sentence might be a cause for a sentence reduction, at least when a subsequent but non-retroactive modification in the law had cut a statutory minimum. “Our opinion that a district court may consider the FSA’s anticipated modifications to sentencing law as part of the ‘extraordinary and compelling’ calculus fits neatly with the history and purpose of the compassionate-release act. In eliminating federal parole, Congress acknowledged the necessity for a ‘safety valve’ with respect to cases in which a defendant’s circumstances had changed so that the term of prolonged incarceration no longer remained equitable.”
Such a safety valve should “encompass an individualized examination of a defendant’s circumstances and authorize a sentence reduction — in the district court’s sound judgment — based on any combination of facts (including unforeseen post-sentencing changes in the law),” the Circuit said. Thus, a district court, examining a prisoner-initiated application for compassionate release in the absence of an applicable policy statement, may examine any “complex of circumstances cited by a defendant as comprising an extraordinary and compelling cause warranting relief.”
Juan still needs to persuade his district court on the merits of giving any sentence reduction on remand, but – judging by his appellate success – he probably has the counsel who can do it, if anybody can. Go, Brandon!