Photo Credit: https://www.newyorker.com/podcast/the-new-yorker-radio-hour/the-pandemic-crisis-inside-americas-prisons-and-jails (last visited March 15, 2022).
Authored By: Vina Nguyen
Member, American Journal of Trial Advocacy
Prisons in the United States are notoriously unhygienic and so overpopulated and close-knit that it almost impossible to maintain a six-foot distance between inmates every day. [1] Thus, when the COVID-19 pandemic started, one of the hugest populations at risk were prisoners. [2] Scared for their lives with this unknown disease, prisoners flooded courts with motions for compassionate releases pursuant 18 U.S.C. § 3585(c)(1)(A). [3] Under the First Step Act, an act whose purpose was to reduce prison populations, defendants could seek a motion for a reduced sentence under 18 U.S.C. §3583(c)(1)(A). [4] Despite finding the COVID-19 pandemic to be an “extraordinary and compelling” circumstance, the vast majority of these motions were denied. [5] This was even the case when a prisoner, Delvin Tinker, with many underlying health conditions making him more likely to be seriously ill or die from COVID-19, sought compassionate release in the District Court for the Southern District of Florida. [6] The district court denied his motion, and Tinker appealed that denial to the Eleventh Circuit on the grounds the district court erred when it failed to make explicit factual finding, failed to consider his mitigating evidence, and failed when it treated USSG § 1B1.13 as binding. [7] In a per curiam opinion, the Court affirmed the district court’s decision splitting from its sister circuits. [8]
In their analysis, the Court disagreed with the defendant and found the language of 18 U.S.C. § 3582(c)(1)(A) did not require an explicit factual finding before the motion could be denied. [9] 18 U.S.C. § 3582(c)(1)(A) states:
[T]he Court . . . may reduce the term of imprisonment . . . , after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. [10]
The applicable policy statement refers to § 1B1.13 of that United States Sentencing Guidelines that states:
Upon motion . . . under 18 USC §3582(c)(1)(A), the court may reduce a term of imprisonment . . . if the court determines that (1)(A) extraordinary and compelling reasons warrant the reduction; or (B) the defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison; and (2) the defendant is not a danger to the safety of any other person or to the community. [11]
From a plain reading of the language of 18 U.S.C. § 3582(c)(1)(A), the court held “a district court may reduce a term of imprisonment if (1) the § 3553(a) sentencing factors favor doing so, (2) there are ‘extraordinary and compelling reasons’ for doing so, and, as relevant here, (3) doing so wouldn’t endanger any person or the community.” [12] Because a district court must find that all three prongs in the analysis favor the defendant, the court here found it was permissible for the court to consider § 3553(a) before making a factual inquiry into extraordinary and compelling reasons finding “the order in which [the court] completes those tasks is immaterial.” [13] Thus, the court could deny a motion for compassionate release by the defendant on grounds the reduced sentence is inconsistent with the § 3553(a) factors or § 1B1.13 of the USSG without consideration of the extraordinary and compelling reasons. [14] Because the defendant had a violent criminal history, the district court found the defendant was a danger to the community and that the reduction of the defendant’s sentence would be inconsistent with both § 3553(a) and USSG §1B1.13. [15] Based on their analysis, the Eleventh Circuit held the district court did not err in its analysis and affirmed the decision of the district court. [16]
With its holding, the Eleventh Circuit noted it officially joined Sixth, Eighth, Ninth, and Tenth Circuits stating that it is permissible for a district court to assume extraordinary and compelling factors exists and then consider § 3553(a) factors because satisfaction of both analyses are required before the motion for compassionate release can be granted. [17] [18]
However, also within this opinion, the Eleventh Circuit held against eight other circuits when it held that USSG §1B1.13 must be considered. [19] The other eight circuits, the majority, have held that it is inapplicable [20], but these eight circuits are split on why §1B1.13 is inapplicable. The Fourth, Fifth, Sixth, Seventh, Ninth, and D.C. Circuit Courts held that §1B1.13 was limited to motions for by the Bureau of Prisons because it clearly states, “[u]pon motions of the Director of Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A).” [21] Meanwhile, the Second Circuit held §1B1.13 as inapplicable because it was abolished when the First Step Act amended 18 U.S.C. § 3582(c)(1)(A). [22] The Eighth Circuit, in its own reading of §3583(c)(1)(A) in conjunction with the Supreme Court opinion Williams v. United States, held that § 1B1.13 “is important advisory guidance, but it is binding only if it ‘prohibits a district court from taking a specific action.’” [23] The Third Circuit recently joined the Eighth Circuit holding that §1B1.13 was not binding, but “it is not error for a district court to consider the policy statement in its ‘extraordinary and compelling’ analysis.” [24] While the Supreme Court has not granted Certiorari for any of the above cases, the 11th Circuit case United States v. Bryant has petitioned for Certiorari. [25] The Court may be persuaded to grant writ in Bryant in light of the recent Third and Eight Circuit holdings creating the three-prong circuit split. Alternatively, the United States Sentencing Commission could alter the § 1B1.13 policy statement so that it specifically provides how it should be used with § 3582(c)(1)(A). But in the meantime, it seems that the Eleventh Circuit is alone in its holding that §1B1.13 is binding.
[1] See Onyeka Otugo & Brooke Wages, COVID-19: The Additional Sentence for the Incarcerated, Health Equity 4.1, 403-4, 403 (2020)(discussing how incarcerated people are one of the most vulnerable populations during the coronavirus pandemic)(“[M]any prisons are overpopulated, creating the perfect breeding ground for infectious disease transmission leading to outbreaks. . . . In addition, it is not uncommon to find sinks that do not work or are not easily accessible and a lack of soap in prisons.”).
[2] See id. at 404 (“Given that overcrowding and poor sanitation are vehicles to promote disease transmission, this population is left further exposed.”).
[3] Emily M. Smachetti & Alix I. Cohen, Introduction to the First Step Act, 69 DOJ J. Fed. L. & Prac. 39, 39 (2021)(“ The Act, which will likely impact nearly a third of the federal prison population over the next 10 years, has two main goals: to reduce overly long federal sentences and to improve conditions in federal prison. . . . Section 603(b) of the First Step Act amended 18 U.S.C. § 3582(c)(1)(A) to allow defendants to move for compassionate release on their own behalf after they exhaust their administrative remedies.”).
[4] See United States v. Brooker, 976 F.3d 228, 230 (2nd Cir. 2020)(“The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (‘First Step Act’), was simultaneously monumental and incremental. Monumental in that its changes to sentencing calculations, mandatory minimums, good behavior credits and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated.”).
[5] See Colleen M. Berryessa, Compassionate Release as a “Right” in the Age of COVID-19, Am. Jrnl. Bioethics 20, 185, 185-7 (2020)(“[Federal Bureau of Prisons] only approved 6% of the over 5,400 applications for compassionate release from 2013 to 2017; . . . the historical pattern of denying compassionate release applications as continued in the face of COVID-19.”).
[6] United States v. Tinker, 14 F.4th 1234, 1236 (11th Cir. 2021).
[7] Tinker at 1236-7.
[8] Id. at 1241.
[9] Id. at 1237-8.
[10] 18 U.S.C. § 3582(c)(1)(A).
[11] U.S.S.G. § 1B1.13.
[12] Tinker at 1237.
[13] Id.
[14] Id. at 1238.
[15] Id.
[16] Id. at 1241.
[17] Id. at 1238 (citing United States v. Jones, 980 F.3d 1098, 1111 (6th Cir. 2020)(Court held a district court could assume extraordinary and compelling reasons and move onto analyzing § 3553(a) factors.); United States v. Rodd, 966 F.3d 740, 747 (8th Cir. 2020)(Court only needed to determine if the district court abused their discretion analyzing § 3553(a) factors; United States v. Keller, 2 F.4th 1278 (9th. 2021)(Court affirmed the district court’s denial for a reduction after assessing only the § 3553(a) factors.); United States v. Hald, 8 F.4th 932, 942 (10th Cir. 2021)(“[D]istricts courts are free to deny relief on the basis of any one of § 3582(c)(1)(A)’s requirements without considering the others.)).
[18] The Eleventh Circuit had the same holding in United States v. Bryant, but that opinion was not published and was not binding. United States v. Bryant, 996 F.3d 1243, 1262 (11th Cir. 2021)(“[d]istrict courts may not reduce a sentence under Section 3582(c)(1)(A) unless a reduction would be consistent with 1B1.13.”).
[19] See Tinker at 1237 (“Section 1B1.13’s policy statement is applicable to all motions under § 3582(c)(1)(A), and accordingly, ‘district courts may not reduce a sentence under Section 3582(c)(1)(A) unless a reduction would be consistent with [§] 1B1.13.’”)(citing Bryant at 1262.); United States v. Long, 997 F.3d 342, 357 (D.C. Cir. Ct. 2021)(Court agreed with the Defendant’s argument that U.S.S.G. § 1B1.13 was inapplicable stating, “how absurd can [the defendant]’s reading of the First Step Act really be given that seven other circuits have already adopted it?”).
[20] Long at 357.
[21] Id. at 355; United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020); United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021); Jones at 1108; United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States v. Aruda, 993 F.3d 797, 801 (9th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021).
[22] United States v. Brooker, 976 F.3d 228, 235 (2nd Cir. 2020).
[23] United States v. Marcussen, 15 F.4th 855, 855 (8th Cir. 2021).
[24] United States v. Jefferson, No. 21-2020, 2021 WL 4279626, at 2* (3rd Cir. Sept. 21, 2021).
[25] Petition for Writ of Certiorari, Bryant (No. 20-1732).
American Journal of Trial Advocacy 