Why Not?--The Sixth Circuit Explains How Much a District Court Must Explain the Denial of Compassionate Release

Shortly after learning to talk, we learn to ask, “Why?” Children pepper their parents with why questions. The endless questioning causes many parents to say, “Because!” (My father’s favorite response to my questions about why something happened in a movie was, “It’s in the script.” So helpful.) It’s easy to understand, then, why someone asking for mercy in the age of a pandemic would want to know why they must remain in prisons where, to date, 209 people have died.

Unable to socially distance, many incarcerated people have filed motions for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) (a.k.a., “compassionate release”). How much of an explanation are they owed when their requests are denied?

In 2018, Congress amended 18 U.S.C. § 3582(c) to allow incarcerated people to file motions for a sentence reduction. Before then, the Bureau of Prisons alone could file such motions, and it did so rarely. The combination of a new statute and the pandemic has caused the law in this area to develop at a rapid clip. Here’s what the Sixth Circuit has said so far about what this law requires:

·   Before filing a motion for a sentence reduction, incarcerated people must “exhaust[] all administrative rights,” or, alternatively, wait 30 days after the warden’s first “receipt of [his] request.” United States v. Alam, 960 F.3d 831, 832 (6th Cir. 2020).

·   The Court must  determine whether the person presents “extraordinary and compelling reasons” and whether a sentence reduction is consistent with the purposes of punishment. United States v. Jones, 980 F.3d 1098, 1106 (6th Cir. 2020)

·     For now, there are no “applicable policy statements” explaining what that term means because the Sentencing Commission has not promulgated any since the First Step Act became law. United States v. Elias, --- F.3d ---, No. 20-3654, 2021 WL 50169, at *2 (6th Cir. Jan. 6, 2021) (citing Jones, 980 F.3d at 1108). Section 1B1.13 thus no longer binds district courts’ determination of what an “extraordinary and compelling reason” is.

·   District courts must provide reasons for granting or denying a motion for sentence reduction to allow for meaningful appellate review. Jones, 980 F.3d at 1112­-13.

In 2009, Jeffrey Hampton was sentenced to serve 204 months for participating in a conspiracy to distribute cocaine and aiding and abetting the possession of a firearm in furtherance of that conspiracy. The district judge later reduced the sentence to 180 months as a result to a retroactive change to the drug guidelines. In 2020, like many other incarcerated people who fear for their health and safety, Mr. Hampton filed a motion for compassionate release. The government opposed the motion, as it has done in the vast majority of these cases.

     The district court provided Mr. Hampton the following explanation for denying his motion: “Defendant’s Emergency Motion . . . is DENIED for the reasons stated in the response brief. The Defendant has not met the requirement of 18 U.S.C. § 3582(c)(A)(i).” But the government provided a number of reasons to reject the motion. It argued that a sentence reduction would be inconsistent with the purposes of punishment as outlined in 18 U.S.C. § 3553(a). It also claimed that Mr. Hampton’s medical conditions were not sufficiently serious to meet the policy statement’s definition as explained in the commentary--an argument the Sixth Circuit has now rejected.

The Sixth Circuit could not discern—let alone review—the legality or reasonableness of the district court’s decision because it could have relied on a misapplication of the law. Mr. Hampton now has another chance to convince the district court to grant his emergency request for release. Perhaps this time he will get more of an explanation.

The District Court Must Allow the Defense to Weigh In Before Ruling on a 35(b) Sentencing Reduction

 In the redacted case of United States v. ______, the Sixth Circuit addressed a sentencing reduction given to a defendant who provided substantial assistance in the investigation and prosecution of a murder case unrelated to his federal charges. The defendant was central in convincing another inmate to confess to the murder of his adopted daughter, and that confession led to his prosecution and conviction to life imprisonment. As a result, the government moved for the unnamed defendant to receive a sentence reduction of between twelve and eighteen months.

Before the defense had an opportunity to make an argument about what reduction should be imposed, the district court ordered a twelve-month reduction. The Sixth Circuit reversed and remanded the case back to the district court to allow the defense an opportunity to argue for a larger sentence reduction. Based on prior sentencing decisions that addressed reductions, the Court concluded that the defense must be given an opportunity to weigh in; otherwise, the district court commits reversible error in imposing sentence under Rule 35(b). Of note, the Sixth Circuit denied the defense's request to have the case assigned to a new judge on remand, concluding that no bias had been shown.

Judge Batchelder wrote a short dissenting opinion explaining that it was not a violation of Rule 35(b) for the district court to make a sentencing determination before the defense had an opportunity to respond. The judge reached that conclusion based on the "constrained nature" of Rule 35(b) proceedings which - in her view - do away with some of the "adjudicatory formalities."

Court Holds 18 U.S.C. § 111(b) Does Not Require Specific Intent to Injure

Fleeing United States Marshals in his mobile meth lab, William Milliron decided to aid his escape by lighting bottles containing the chemicals he was using and launching them at his pursuers. After 35 miles, however, Milliron's chase ended when he crashed his vehicle into a building.

Pursuant to a written plea agreement with the Government, Milliron pleaded guilty to four counts of a seven-count indictment, including a violation of 18 U.S.C. § 111(a)(1) and (b) for using a deadly or dangerous weapon to forcibly assault, resist, oppose, impede, intimidate, and interfere with federal officers performing their official duties. However, Milliron subsequently moved the district court to allow him to withdraw his plea citing his counsel's failure to correctly explain that, in order to convict him of violating 18 U.S.C. § 111(b), the Government had to prove he specifically intended to cause injury during the chase. The district court disagreed and denied Milliron's motion. At sentencing, the district court varied upward from the recommended Guidelines sentence and imposed a sentence of 110-months imprisonment. Milliron appealed. 

At the outset, Milliron faced a significant hurdle in his appeal: an appellate waiver. In its opinion, the Court held that the appellate waiver in Milliron's plea agreement was valid and limited his appeal to considering the validity of the plea agreement.

The Court first turned its attention to Milliron's claim that his counsel misread 18 U.S.C. § 111(a)(1) and (b). Noting that the Sixth Circuit had already held that subsection (a) only required general intent, the Court held, for the first time, subsection (b) likewise required general intent. Thus, the Government did not have to prove Milliron specifically intended to injure his pursuers, and his plea agreement was valid.

Turning to Milliron's sentence, the Court likewise found no error. Specifically, the Court rejected his argument that the district court erred in imposing a three-level enhancement for possessing and threatening to use a "dangerous weapon" pursuant to USSG § 2A2.4(b)(1)(B). Noting the "functional approach" taken by the Court to considering what constitutes a dangerous weapon, it concluded that the makeshift Molotov cocktails lobbed at the pursuing marshals by Milliron were "dangerous weapons" as defined under the Guidelines. It therefore affirmed his sentence.

Important Guidance on Courts' Expansive Discretion to Grant Compassionate Release

2020 was a big year for compassionate release. Although Congress enacted the "First Step Act" more than two years ago—allowing incarcerated people to directly ask federal courts for release when "extraordinary and compelling" reasons warranted release—the pandemic sparked a flurry of litigation about the meaning of the law. 

As of December 2020, as Prof. Douglas Berman points out, COVID-19 has "killed in nine months more US prisoners than capital punishment over last 50+ years." So far, between BOP and privately run facilities, nearly 200 federal prisoners have died of this disease.

This week the Sixth Circuit continued to provide important guidance on district courts' wide discretion to decide what constitutes "extraordinary and compelling" reasons for release.

Background. Before the First Step Act, the BOP rarely moved for release for ill prisoners. According to the NYT, "[f]rom 2013 to 2017, the BOP approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody."

Even before the pandemic, the First Step Act's provision allowing incarcerated people to petition the court directly was already making a difference. But the pandemic accelerated its use, as the Sixth Circuit explained recently:

In 2019, federal courts granted 145 compassionate release motions; incarcerated individuals filed ninety-six (67.1%) of the motions, and the BOP filed the other forty-seven (32.9%). See [USSC Report, at 47]. We are now well into the second year of the First Step Act's implementation, a year defined by COVID-19. The BOP denied or ignored more than 98% of compassionate release requests in the first three months of the pandemic. See Blakinger & Neff [] (citing data provided by the BOP). Now unhindered by the BOP's procedural bars, incarcerated persons' filing and federal courts' granting § 3582(c)(1)(A) motions have surged this year. 10,940 federal prisoners applied for compassionate release between March and May 2020, id., and federal courts have compassionately released an estimated 1,700 persons in 2020 so far, compare [USSC Report, at 47] (twenty-four grants of compassionate release in 2018; 145 grants in 2019), with [BOP Statistics] (1,992 grants since December 2018).

Roadblocks. Federal prosecutors have vigorously fought many of these COVID-19-related petitions for release. The first roadblock to release was the "administrative exhaustion" requirement, and whether petitioners had to wait 30 days after asking the BOP to petition for release before asking the courts. As covered here, the Sixth Circuit sided with the government, holding that the requirement was mandatory.

Another potential hurdle was whether, as the government argued, petitioners needed to satisfy the detailed guidance about compassionate release found in Sentencing Commission policy statement USSG 1B1.13 and its corresponding "commentary." This argument found support in the language of the First Step Act, which amended 18 U.S.C. § 3582, stating that compassionate-release reductions must be "consistent with applicable policy statements issued by the Sentencing Commission." But on the other hand, 1B1.13, by its own terms, addressed the old (pre-First Step Act) procedure where motions were made by "the Director of the Bureau of Prisons," not those made directly by an incarcerated person to the court directly. 

Given that the policy statement was so clearly outdated, could it truly be called "applicable"?

Recent Rulings. In November, the Sixth Circuit answered "no." In United States v. Jones, the court held: "Until the Sentencing Commission updates § 1B1.13 to reflect the First Step Act, district courts have full discretion in the interim to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion." One Sixth Circuit judge concurred, but argued that the court didn't need to reach the 1B1.13 question.

Nevertheless, this question continued to percolate in the district courts in the Sixth Circuit because the government insisted that the holding in Jones was dicta. This argument was met with criticism from district courts, with one particularly striking rebuke: 

The government may not like the Jones court's answer to the question it posed, but calling it dictum misrepresents that holding in that case. Ethical lapses by the Executive Branch like this do not advance the cause of justice, irrespective of the underlying merits of the motion.

Yesterday, the Sixth Circuit affirmed its decision in Jones. In United States v. Elias, the Sixth Circuit cemented its view, restating its holding as follows (citations removed):

§ 1B1.13 is not an applicable policy statement for compassionate-release motions brought directly by inmates. The text of the guideline, along with the clear congressional purpose in the First Step Act of removing the BOP from its gatekeeping role, led this Court to its conclusion. The statement in Jones that § 1B1.13 was inapplicable to inmate-filed compassionate-release motions aligned with the Second Circuit, the first Circuit to rule on the matter, as well as the majority of district courts. Since Jones, the Seventh Circuit and Fourth Circuit have reached the same conclusion.

Thus, the inapplicability of 1B1.13 is firmly established in the Sixth Circuit, removing another potential barrier to compassionate release as COVID-19 continues to ravage the Bureau of Prisons.