Important COVID-19 3582 Ruling: United States vs. Kelly
The Court's Ruling in United States vs. Kelly is important because he received 3582 relief and had no CDC risk factors and was seeking to bypass his administrative remedies.
Kelly's Offense Conduct in 3582 Ruling
Lemarcus Kelly sought 3582 relief with covid-19 extraordinary and compelling circumstances. He was serving a 97-month sentence in Oakdale after pleading guilty to one count of possession of an unregistered destructive device. He also admitted to shooting a firearm into an “unoccupied building.” Kelly had been taking advantage of educational programs, maintained a clean record, and had earned 324 days of good time. His expected release date was May 18, 2020.
The court noted that at that time, Oakdale I had the highest number of prisoner deaths in the BOP due to COVID-19. The court noted the existence of the April 3 Barr memorandum indicating that the BOP system was “experiencing significant levels of infection at several. . . facilities, including FCI Oakdale.” The court went on to note that Barr “directed immediate review of all “inmates who have COVID-19 risk factors, as established by the CDC, starting with the inmates incarcerated at FCI Oakdale. . . and similarly situated facilities.”
Kelly mailed a letter to the court on March 30 indicating that he was eligible for immediate release “due to the pandemic of COVID-19.” The court construed it as a motion. On March 31, Kelly also sent his Unit manager a request to be placed on home confinement or in a halfway house. That request was denied and Kelly appealed the denial. That appeal was still pending as of the date of this ruling.
The government opposed the motion indicating that Kelly did not exhaust his administrative remedies prior to filing the motion. Kelly contended that the First Step Act’s exhaustion requirements were non-jurisdictional and that his failure to exhaust his administrative remedies should be excused in light of the COVID-19 pandemic.
Did Kelly Meet Jurisdictional Requirements?
The court first looked at whether the FIRST STEP ACT’S exhaustion requirements are jurisdictional or a "claims-processing rule." The court noted that “[e]xhaustion requirements can either be (1) jurisdictional, meaning the rule ‘governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction,’ or (2) a ‘[c]laims-processing rule, which are rules ‘requiring that a party take certain procedural steps at certain specified times.’”
When looking at the text of 18 USC 3582, the court indicated that the language “does not ‘clearly state[ ]” that the exhaustion requirement was jurisdictional. The court indicated that the provision does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts. Because of this, the language of 3582(c)(1)(A) did not provide a clear indication that Congress intended the provision to be jurisdictional and this court determined that 3582(c)(1)(A)’s exhaustion requirement was a non-jurisdictional claims-processing rule.
The court also indicated that 3582(c)(1)(A)’s exhausting requirement was not mandatory but one of two ways that a person could get into court. In 3582(c)(1)(A), a person can either engage their administrative remedies or they can “wait 30 days after the warden receives the defendant’s request to bring a motion for a sentence reduction.”
The court also noted that there were equitable exceptions available as well. Because 3582(c)(1)(A) has “two avenues of relief,” that meant that it had an administrative exhaustion requirement and a timeliness statute and that “equitable exceptions plainly apply to the latter.”
The court noted that “In these situations, other courts have applied the ‘equitable tolling’ standard given Section 3582(c)(1)(A) has the features of a timeliness statute.” “For this narrow exception to apply, a plaintiff must show ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.’” Sandoz v. Cingular Wireless, L.L.C., 700 F. App’x 317, 320 (5th Cir. 2017) (citation omitted).
The court found that Kelly had met both elements. Kelly had begun the administrative process to request relief and was denied at the first stage. He appealed the decision and was still waiting for a decision from the warden. The court determined that Kelly had diligently pursued his rights. The court went on to note that the COVID-19 pandemic was an “extraordinary circumstance” that prevented his timely filing. Not only has COVID-1 gripped the nation but at the time of the court’s order 33 prisoners and 17 staff had tested positive for COVID-19 and 7 prisoners had passed away from the virus.
Did Kelly's motion merit relief?
The consideration of 3582 COVID relief without any CDC risk factors
First the court looked at whether Kelly had “extraordinary and compelling circumstances.” The court determined that Kelly’s argument, the COVID-19 pandemic and the BOP’s response, was novel because Kelly is young (22 years old at the time of sentencing in 2014, so no more than 30 years old at the time of this order) and has no underlying health issues that could leave him at increased risk of a bad outcome per the CDC’s guidelines.
Most of the people who have been granted 3582 relief on these cases have had underlying health issues that could leave them at increased risk of a bad outcome per the CDC’s guidelines. But here the court noted that
“it has become increasingly apparent that the BOP has failed to control the outbreak at Oakdale I. Despite the BOP’s efforts, COVID-19 has continued to spread at the facility and more prisoners have died. In fact, almost a quarter of COVID-19-related prisoner deaths reported by the BOP have occurred at Oakdale I. Given the steadily growing death toll and the apparent continued spread of the disease at Oakdale I, COVID-19 creates an “extraordinary and compelling reason” potentially warranting a reduced sentence”
Risk to the Safety of the Community or any other person
The court went on to evaluate whether Kelly had demonstrated that he “is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13. The court also noted that “Section 3142(g) requires the court to consider factors such as the nature and circumstances of the charged offense, the history and characteristic of the defendant, and the nature of seriousness of the danger to a person or the community at large posed by the defendant’s release.” The court noted that while Kelly had pled guilty to one serious, violent crime the court went on to note that he has kept a clean conduct record absent one offense at the beginning of his incarcerated. The court also noted his good conduct time, jail credit, programming, and completion of educational courses. After looking at all of this the court found that Kelly did not pose a risk to others or the community if released.
Evaluation of the 3553(a) factors
Finally, the court evaluated the Section 3553(a) Factors. “Section 3553(a) requires a court to consider certain factors when imposing a sentence, including the nature and circumstances of the offense and history and characteristics of the defendant, the need for the sentence, and the variety of sentences available.”
The court noted that “Kelly has [maintained a relationship with his children] ... been a model prisoner and would not pose a danger to the public if released. He apparently sought to be rehabilitated. Moreover, he has a verified reentry plan and plans to live with his brother, who is a police officer. “ The court reconsidered the 3553(a) factors and concluded that they warranted a release in this case.
As a result, the court granted Kelly’s motion for compassionate release and resentenced him to time served and 36 months of supervised release. The court ordered him released from custody immediately and ordered him to self-isolate for 14 days at his brother’s home or another appropriate place.
I was surprised to find a case like this where a person received a reduction in the sentence without any CDC risk factors. But given what we know about this virus now I believe that this was appropriate. Naysayers may say things like “well if you’re going to do that for him, why not everybody?” It is important to remember that extraordinary and compelling circumstances is only one part of the analysis. The court still must determine if the person is a danger to the safety of any other person or to community and if the 3553(a) factors warrant a release.
In this particular case we also noted that Kelly had sent a halfway house placement request to the BOP. When denied, he sought an appeal of such. The court noted that in its ruling as well. Whether a person can bypass the doctrine of exhaustion is going to vary in each district and even vary for each judge. I would recommend either you or your loved one (under program statement 50.50) reaching out to the BOP to seek compassionate release and then do whatever research you can in order to determine what your district is doing on these cases. If your loved one is going to mail in a request make sure that they do it certified mail return receipt requested with the “green card” and request a signature. Any mailing store should be able to help them get this done if they don’t know how to do this.