United States v. Lynn

          ORDER

          WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.

         On July 15, 2019, the Court entered an order denying the defendant's motion for reduction of sentence. (Doc. 70).^[1] A week later, the defendant filed a motion to alter or amend judgment. (Doc. 73). The defendant invokes Federal Rule of Civil Procedure 59(e) but, because civil rules do not apply in criminal cases, ^[2] the Court construes the defendant's motion as one to reconsider.

         The defendant seeks relief under the “compassionate release” provision of 18 U.S.C. § 3582(c)(1)(A). As the Court's order notes, Congress has expressly prohibited relief under this provision except to the extent such relief “is consistent with applicable policy statements issued by the Sentencing Commission [“the Commission”].” Id. Congress elsewhere required the Commission to issue a policy statement “regarding … the appropriate use” of Section 3582(c), to include “describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied.” 28 U.S.C. § 994(a)(2)(C), (t). As the Court noted, by virtue of these provisions, “[t]he Commission's policy statement thus establishes the boundaries of what may and may not be judicially determined to be extraordinary and compelling reasons for a sentence reduction.” (Doc. 70 at 1-2). The Court in its order reviewed each of the five categories of extraordinary and compelling reasons identified by the Commission's policy statement and explained why the defendant's case satisfies none of them. (Id. at 2-4).

         The defendant identifies a number of alleged errors in the Court's analysis: (1) permitting the Bureau of Prisons (“BOP”) to respond to his motion for compassionate release; (2) failing to recognize that the First Step Act (“the Act”) “expand[ed] the criteria” for compassionate release; (3) relying on the Commission's policy statement even though it has not been updated since passage of the Act; (4) failing to take account of BOP's post-First Step Act program statement; (5) ignoring congressional intent regarding the scope of compassionate release; and (6) overlooking the defendant's request for relief under Section 60541. The Court considers these arguments in turn.

         A. BOP Input.

         Prior to the Act, Section 3582(c)(1)(A) provided that only BOP could bring a motion for compassionate release. Section 603(b) of the Act amended this provision to permit a defendant to bring such a motion as well, after either exhausting administrative rights to appeal BOP's failure to bring such a motion or the passage of 30 days from the defendant's unanswered request to the warden for such relief. The defendant filed his Section 3582(c)(1)(A) motion on March 11, 2019, assertedly more than 30 days after he requested the warden to file such a motion on his behalf. (Doc. 49 at 2). The Court permitted the government to respond to the defendant's motion, and its response included a one-page memorandum from the acting warden (dated three months after the defendant's request) denying the request and explaining why the defendant did not qualify for compassionate release. (Doc. 68-1).

         The defendant asserts now, as he did then, that the 30-day period added by the Act is an absolute deadline for BOP to provide input into a court's compassionate release determination. (Doc. 73 at 3-4). Nothing in the text of the statute supports the defendant's argument; by its terms, the only purpose of the 30-day period is to provide a trigger for the filing of a judicial motion, not to preclude BOP from providing a court its assessment of the request. Given that, prior to the Act, all motions for compassionate release were required to be brought by BOP, and given that BOP therefore developed substantial expertise in the evaluation of such requests and the standards by which they are to be evaluated, it would be passing strange to conclude that Congress sub silentio forbade that BOP be heard.

         The defendant's only authority in support of his implausible argument is United States v. Cantu, 2019 WL 2498923 (S.D. Tex. 2019). In the course of addressing a different issue, the Cantu Court declared that “[t]he BOP in fact may never weigh in or provide guidance when a § 3582(c) motion is brought by a defendant.” Id. at *4. The Court provided no analysis in support of this dictum, and its only citation was to DeLuca v. Lariva, 586 Fed.Appx. 239 (7^th Cir. 2014). DeLuca predates the Act by four years and, unsurprisingly, does not purport to address the Act's effect. Nor does it purport to address what input BOP may have with respect to a compassionate release motion; even had DeLuca done so, it could scarcely have precluded BOP's input, since in the pre-Act world all compassionate release motions had to be filed by BOP and therefore necessarily contained BOP's input.

         In any event, the Court's ruling does not depend on input from BOP. The only relevant statement in the assistant warden's memorandum is that the defendant's conditions do not affect his ability to function in a correctional setting and that he is able to independently attend to his activities of daily living. (Doc. 68-1). The Court noted this statement but did not rely on it, because the statute requires the Court to “fin[d]” the existence of extraordinary and compelling reasons and because the defendant (without consideration of BOP's position) did not present evidence sufficient to support such a finding. (Doc. 70 at 2-4).

         B. Expanded Criteria for Compassionate Release.

         The defendant asserts that Congress “expand[ed] the criteria [for “extraordinary and compelling reasons”] in that statute [Section 3582(c)(1)(A)] as part of the First Step Act of 2018.” (Doc. 73 at 7). Congress patently did not do so.

Prior to the Act, Section 3582(c)(1)(A) provided that:

The court may not modify a term of imprisonment once it has been imposed except that … the 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 ….

         Following the Act, Section 3582(c)(1)(A) reads exactly the same. The only change to this section made by the Act was to allow a defendant to file a compassionate release motion under certain circumstances. The defendant ...