United States District Court, S.D. Alabama, Southern Division
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE.
15, 2019, the Court entered an order denying the
defendant's motion for reduction of sentence. (Doc.
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,  the Court construes the defendant's
motion as one to reconsider.
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).
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.
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).
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.
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 (7th 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.
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).
Expanded Criteria for Compassionate Release.
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 ….
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 ...