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Denial of Compassionate Release

The Seventh Circuit Followed the Sixth Circuit’s lead and held that compassionate release requests that were based on non-retroactive changes to the law were inappropriate.

Denial of Compassionate Release in Thacker

He filed a motion for reduction in sentence under 3582 arguing for relief from his stacked 924(c) convictions and also for release based on the COVID-19 pandemic.

The district court found that COVID-19 was well contained inside the prison.  It was also mentioned that his conditions were being managed with medication.

Regarding his 924(c) matter, the court observed that the amendment was not retroactive. The sentencing disparity between someone sentenced before and after December of 2018 could not serve as an extraordinary and compelling reason for a sentence reduction.

The court also indicated that even if Thacker was eligible that release was inappropriate given the 3553(a) factors.  Thacker appealed his sentence.

Thacker's 924c Counts

Thacker was found guilty of one charge of bank robbery and two counts of carrying a weapon in furtherance of a crime of violence.  He was sentenced to seven years for the first 924(C) count and 25 years for the second 924(c) count.  This made a total sentencing of  33 years.

Compassionate Release and Court’s Discretion

The district court indicated that the compassionate release statute gives district courts discretion to reduce a sentence.  Further, “district courts have broad discretion to determine what else may constitute “extraordinary and compelling reasons” warranting a sentence reduction.  However:

“the discretionary authority conferred by § 3582(c)(1)(A) only goes so far. It cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in § 403(b) of the First Step Act that the amendment to § 924(c)’s sentencing structure apply only prospectively.”

The court went on to say that they had grave concerns with individuals seeking compassionate release to get under mandatory minimums:

“We see nothing preventing the next inmate serving a mandatory minimum sentence under some other federal statute from requesting a sentencing reduction in the name of compassionate release on the basis that the prescribed sentence is too long, rests on a misguided view of the purposes of sentencing, reflects an outdated legislative choice by Congress, and the like.”

The court was quick to indicate that other extraordinary and compelling circumstances can still supply the basis for a discretionary sentencing reduction of a mandatory minimum sentence.  “But we are saying that the discretion conferred by  § 3582(c)(1)(A) does not include authority to reduce a mandatory minimum sentence on the basis that the length of the sentence itself constitutes an extraordinary and compelling circumstance warranting a sentencing reduction.”

Court's Test for Appropriateness

The court noted that the following was the test to determine whether compassionate release was appropriate in the seventh circuit:

"The proper analysis when evaluating a motion for a discretionary sentencing reduction under  § 3582(c)(1)(A) based on “extraordinary and compelling” reasons proceeds in two steps. At step one, the prisoner must identify an “extraordinary and compelling” reason warranting a sentence reduction, but that reason cannot include, whether alone or in combination with other factors, consideration of the First Step Act’s amendment to  § 924(c). Upon a finding that the prisoner has supplied such a reason, the second step of the analysis requires the district court, in exercising the discretion conferred by the compassionate release statute, to consider any applicable sentencing factors in  § 3553(a) as part of determining what sentencing reduction to award the prisoner."

Regarding whether a petition for rehearing en banc would be appropriate, the court said this:

"Before issuing this opinion, we circulated it to the full court under Circuit Rule 40(e). No judge in active service requested to hear this case en banc.* Accordingly, the legal framework articulated in this opinion reflects the law of the Circuit."

The Seventh Circuit affirmed the decision of the district court.

Jeremy’s Notes:

Well, here we go.  With a split on this issue, it is certain to go to the Supreme Court.  The rulings here are different than McCoy, Zullo, Shkambi and the like.  I could see other circuits making similar rulings on this issue in the future.

If you have a stacked 924(c) matter or a stacked 851 matter, in court other than the sixth or the seventh circuits, go ahead and file.  I would file as soon as possible before other prosecutors take action on these cases.

If you’re in the Sixth Circuit then you can file and ask for a stay pending Jarvis.  If you’re in the Seventh Circuit then you can ask for a stay for 90 days while the PD’s office determines if they are going to file for cert on this case.  And in the meantime, it is time to get the First Step Implementation Act passed and into law.

Attribution for Featured Image:  Ken Lund from Reno, Nevada, USA, CC BY-SA 2.0, via Wikimedia Commons

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