Federal Compassionate Release
The federal criminal justice system is too often short on justice. Instead, the criminal system focuses on lengthy punishments, mandatory minimums, and avoids considering personal facts in order to impose a prison sentence.
One question that regularly comes up is whether a federal inmate can seek a sentence reduction from a court after the person has already been sentenced. With some limited exceptions, once a federal criminal judgment is filed and an appeal is finished the case is final. One exception is a 2255 motion, but defendants are very limited in the types of arguments they can raise in a 2255 motion for procedural reasons (which we are not going to cover here today).
One other exception is a motion to reduce sentence under 18 U.S.C. § 3582(c)(1)(A). This is commonly referred to as a “compassionate release motion” and is one of the most powerful tools in the federal system to seek a second-look at criminal sentences.
At Newland Legal, our attorneys have been fighting for compassionate release for our clients from day one. We are up to date on all compassionate release legal developments and know how to make the most persuasive arguments to help our clients get back home. At Newland Legal, we know that a great compassionate release case starts with understanding your story.
Compassionate Release is not for everyone sadly
In order to file a successful compassionate release motion, your loved one must first show “extraordinary and compelling reasons” exist in their case. See 18 U.S.C. § 3582(c)(1)(A). What is an extraordinary and compelling reason? This is a question that is dividing courts across the country.
Recently, the U.S. Court of Appeals for the Sixth Circuit issued an opinion from the full court (en banc) on what situations could and could not qualify as “extraordinary and compelling” reasons for a compassionate release motion in federal court. The case was United States v. McCall, No. 21-3400, 2022 U.S. App. LEXIS 35473 (6th Cir. Dec. 22, 2022).
Understanding what federal compassionate release is today, and why courts are fighting over “extraordinary and compelling reasons” like cats and dogs requires a bit of detour through history. As experienced federal compassionate release lawyers, we are happy to show you the way through this mess.
History in Brief: Defendant’s Can Seek Compassionate Release
In 2018, Congress passed the landmark FIRST STEP Act. This law changed compassionate release immensely. Prior to the FIRST STEP Act, only the Federal Bureau of Prisons (the jailers) could file a sentence reduction motion (remember, same thing as compassionate release). See United States v. Rufffin, 978 F.3d 1000, 1003 (6th Cir. 2020).
The FIRST STEP Act of 2018 changed this framework by allowing prisoners to file their own compassionate release motions with an attorney when the BOP refused to file the motions for them. Id. at 1003-04.
1984- 2018: No Parole and Virtually No Compassionate Release
The modern-day version of the federal compassionate release law is found at 18 U.S.C. § 3582(c)(1)(A) and was first created by the Sentencing Reform Act of 1984. The 1984 SRA was a sea-change in federal criminal law.
Prior to 1984, the federal system relied in large part on parole. Parole rested on the penological theory of rehabilitation. Put differently, one of the main purposes of incarceration prior to 1984 was to “rehabilitate” the people that we sent to prison. Pretty much everyone agreed that although these goals were noble in theory they failed in practice.
Along came the 1984 crime reform law. The 1984 law abolished parole and prohibited a district court from “modify[ing] a term of imprisonment once it has been imposed…” 18 U.S.C. § 3582(b). This became the general rule in favor of finality: once imposed, a sentence cannot be changed.
However, Congress did carve out a few exceptions. First, they left in place the traditional habeas corpus remedies found at 28 U.S.C. § 2255. Second, and most important here, was the carve out for compassionate release based (also known as a motion to reduce sentence).
This framework stayed untouched for almost 30 years, but during that time compassionate release motions in federal court were virtually nonexistent. This was almost entirely due to the fact that Congress put the jailers in charge of using the keys to the jail. The BOP was tasked with filing compassionate release motions in federal court, but they rarely did so.
In fact, even though there were over 150,000 federal inmates incarcerated on average only 24 compassionate release motions were filed per year. See United States v. Elias, 984 F.3d 516, 518 (6th Cir. 2021).
Big Picture: Compassionate Release Requirements in Federal Courts.
In theory, there are four requirements that must be met under 18 U.S.C. Section 3582(c)(1)(1) before a federal inmate can obtain compassionate release. First, an inmate or their authorized representative must request compassionate release from the warden of the prison where the inmate is locked up. If the warden does not file a compassionate release motion for the inmate within 30 days (which never happens) the inmate can proceed to federal court with their federal compassionate release lawyer.
Second, the district court must make a threshold finding that “extraordinary and compelling reason warrant” a sentence reduction. 18 U.S.C. § 3582(c)(1)(A)(i). Third, the “reduction” must be “consistent with applicable policy statements issued by the Sentencing Commission…” Id. And fourth, the sentencing factors outlined in 18 U.S.C. § 3553(a) must support a lowered sentence.
What qualifies as an extraordinary and compelling reason?
Congress, paradoxically, did not tell anyone what qualifies as an “extraordinary and compelling reason” for compassionate release. Instead, Congress punted this definitional work to the federal Sentencing Commission to develop a policy statement outlining what qualifies. Yet, Congress did make one statutory directive clear: “rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 944(t).
The Sentencing Commission finally did their part in 2007 when they issued a detailed policy statement with specific examples of what circumstances could qualify as “extraordinary and compelling reasons” for compassionate release in federal court. See U.S.S.G. § 1B1.13 cmt. n.1 (A)-(D). Even after this more detailed policy statement came out, the BOP still refused to use its discretion and routinely let sick and elderly inmate die in prison in deplorable states.
2018: Power to the People (Sort Of)
The FIRST STEP Act of 2018 made many changes to federal sentencing law. One of the most important, and least discussed at the time, was the changes made to the motion to reduce sentence statute under § 3582(c)(1)(A). Remember, under the 1984 version of the law only the BOP could file for compassionate release. You could hire the best compassionate release attorney in the world, but he was statutorily prohibited from filing a motion on your behalf in federal court.
The FIRST STEP Act thankfully eliminated this gatekeeping role and gave the power back to citizens who are incarcerated. The portion of the law was titled “Increasing the Use and Transparency of Compassionate Release.” 18 U.S.C. 3582(c)(1)(A) now states in relevant part that:
“the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment…”
(emphasis added).
The change was seemingly procedural since the law now allowed a defendant and his compassionate release defense lawyer to file their own compassionate release motion. Your compassionate release lawyer still needed to show: (1) extraordinary and compelling reasons; (2) the sentence reduction would be consistent with “applicable Sentencing Commission policy statements”; and (3) that the § 3553(a) sentencing factors called for granting the compassionate release.
In practice, defendants today do not have to show #2 in order to qualify for compassionate release in federal court (unless you are in the Eleventh Circuit). That is because the Sentencing Commission has not adopted a policy statement that would apply to defendant-filed motions to reduce sentence after the passage of the FIRST STEP Act of 2018. United States v. McKinnie, 24 F.4th 583, 586 (6th Cir. 2022). The end result is this: federal compassionate release attorneys need to only show (1) extraordinary and compelling reasons and (2) the § 3553(a) factors support the reduction.
David McCall: Compassionate Release For Sentencing Law Changes
In 2015, David McCall pleaded guilty to a drug conspiracy charge involving heroin possession and distribution. Mr. McCall had several prior convictions for drug charges that were used to qualify him as a “career offender” under the Sentencing Guidelines. U.S.S.G. § 4B1.1.
Without the career offender status, Mr. McCall’s base-offense level would have been a 24 instead of a 34. This would have produced a much lower advisory Sentencing Guideline range. With the career offender status, Mr. McCall’s federal Sentencing Guideline range became 188 to 235 months imprisonment. The district court ultimately sentenced Mr. McCall to 235 months.
In 2020, Mr. McCall filed a motion for compassionate release. He argued that five “extraordinary and compelling reasons” warranted reducing his sentence. First, he argued that his risk of contracting COVID-19 merited compassionate release. Second, he pointed to his efforts to better himself (i.e., rehabilitate) while in prison. Third, he argued that the Sixth Circuit’s recent decision in the Havis case was impact his status as a career offender. See United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc).
Mr. McCall argued that had he been sentenced after the Havis decision, most of his prior convictions would not have qualified for applying the career offender enhancement under the Sentencing Guidelines. According to Mr. McCall, without the career offender enhancement, his 235 month sentence was years, if not decades, longer than the sentence he would receive today.
The district court denied his compassionate release request. The district court cited the fact that the Havis decision was not retroactive and could not be raised in a 2255 motion. According to the district court, Mr. McCall could not side-step the normal post-conviction rules by relying on Havis in a compassionate release motion.
Mr. McCall appealed. The initial 3 judge panel that heard Mr. McCall’s case agreed with McCall that a subsequent legal clarification could, together with other factors, potentially amount to an extraordinary and compelling reason. The government did not like this result and sought review by the full U.S. Court of Appeals for the Sixth Circuit.
6th Circuit: No Compassionate Release Based on Sentencing Law Changes
According to the 6th Circuit in McCall, non-retroactive changes in sentencing law cannot constitute “extraordinary and compelling reasons” to warrant compassionate release. The court claimed that they reached this conclusion because it was consistent with the text of § 3582(c)(1)(A), the principles, structure, and history of federal sentencing law.
The Court started by using the supposed plain meaning of “extraordinary” and “compelling” to determine the meaning of the phrase since Congress did not define it. The Court agreed that the terms essentially meant unusual, rare, and forceful. However, instead of using this plain meaning definition to allow a court to define compassionate release based on any legal or factual reason, the Sixth Circuit moved to background principles.
Finality is at the heart of most of the compassionate release arguments raised by the Sixth Circuit. They discussed at length the fact that the ordinary rule is that new decisions in criminal law do not apply to defendants in federal court who have already been sentenced. They are typically not going to be retroactive.
According to the Sixth Circuit’s McCall decision, since changes in sentencing law happen all of the time they thus become “ordinary” and are not “extraordinary and compelling” for compassionate release. This is even true when the change in sentencing law could mean the difference of decades in prison according to the Sixth Circuit.
Going further, the Sixth Circuit said that if Congress wanted non-retroactive sentencing law changes to be available in compassionate release cases they would have expressly made that clear. The Court pointed to other provisions of the FIRST STEP Act which were explicitly made retroactively applicable. Congress did not do that when amending compassionate release so the Sixth Circuit determined they intentionally chose non-retroactivity among a host of policy options.
Third, the Sixth Circuit explained how Mr. McCall would not have been able to raise a Havis claim about a no-longer applicable career offender enhancement under 28 U.S.C. § 2255. Since Mr. McCall had already filed a § 2255 motion he would have needed to seek permission to even file a second § 2255 motion. See 28 U.S.C. § 2244(b).
However, Mr. McCall’s request would have been denied because second § 2255 motions must be based on either (a) newly discovered evidence or (b) a new rule of constitutional law. Havis was a case interpreting a statutory provision, U.S.S.G. § 4B.1.1, not the constitution. As a result, Mr. McCall could not use it to get back into court for § 2255 relief.
The Sixth Circuit said that Mr. McCall could not avoid the restrictions on seeking § 2255 relief by resorting to a request for compassionate release instead. If Congress had intended federal compassionate release lawyers to use the statute as an exception to the § 2255 framework, “it would have made that intent specific,” according to the Sixth Circuit. Functionally, the Sixth Circuit wants Mr. McCall’s type of arguments to be subject to the normal habeas rules. Not compassionate release.
House Divided: Compassionate Release Depends on Where Your Criminal Case Was Filed
Moving forward, federal inmates whose cases started in courts within the Sixth Circuit cannot rely on any non-retroactive sentencing law changes (statutory or judicial decision) as “extraordinary and compelling” reasons for compassionate release. At Newland Legal, we think this is contrary to the plain text and structure of the compassionate release scheme, but that is the law in the Sixth Circuit now.
However, that is not the end of things. The Sixth Circuit, after all, only includes federal courts in Kentucky, Michigan, Ohio, and Tennessee.
What about cases in other areas of the country? Can federal compassionate release lawyers use non-retroactive sentencing law changes to seek sentence reductions for their clients after McCall?
The short answer is YES, but not always. In the First, Fourth, Fifth, Ninth, and Tenth U.S. Circuit Courts of Appeals defendants can use non-retroactive sentencing law changes as “extraordinary and compelling reasons” for now.
The 6th Circuit, 7th Circuit, 3rd Circuit, 8th Circuit, and 11th Circuit, all prohibit federal lawyers filing compassionate release motions from making these arguments. This is what attorneys call a “circuit split” and is not likely to be resolved anytime soon.
Compassionate release lawyers in federal court
Seeking and getting compassionate release in federal court is not easy. The case law is rapidly developing. You need a lawyer who is experienced in fighting for compassionate release all over the country if you want to have your best chance at getting a sentence reduction.
Does your attorney know that there is currently a split of authority among the appellate courts about what can qualify as an extraordinary and compelling reason? If you have a federal criminal case in Colorado does your attorney know where the Tenth Circuit stands on this importan question in 2022?
Do you or your loved one in federal criminal court have a compassionate release case? If so, contact the experienced federal defense attorneys of Newland Legal at (303) 948-1489 or by email to zach@newlandlegal.com to discuss your case today.
Contact the attorneys at Newland Legal today if you have a federal criminal court case need and legal help The attorneys at Newland Legal are experienced federal criminal defense attorneys who are not afraid to fight in any federal courtroom across the United States.
