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Defining Extraordinary and Compelling in Compassionate Release

With the signing of the FIRST STEP Act, congress amended 18 U.S.C. Section 3582(c)(1) to permit an inmate to file his own request for relief under the compassionate release statute.

Act One: Searching for Compassion

Prior to the FIRST STEP Act of 2018, there were extremely few compassionate release motions ever filed for federal inmates. Of course, many inmates had extraordinary and compelling reasons for release before 2018. However, the reason there were virtually zero compassionate release motions filed prior to 2018 was more basic.

BOP Doesn't Acknowledge Extraordinary and Compelling Reasons

For three decades, only the Federal Bureau of Prisons (“BOP”) could file motions to reduce sentence for compassionate release. Congress explicitly set out this restriction at 18 U.S.C. Section 3582(c). This part of the federal code governs compassionate release. In short, the BOP’s implementation of the compassionate release law constituted an unmitigated disaster.

Notably, the Department of Justice's Office of the Inspector General repeatedly documented the BOP’s failure to file compassionate release motions for sick or dying inmates. For example, in 2013, the DOJ Inspector General issued a scathing report detailing the BOP’s failure to implement compassionate release. Department of Justice, Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program, at 11 (April 2013) (“The BOP does not properly manage the compassionate release program, resulting in inmates who may be eligible candidates for release not being considered.”).

Following years of hearings, Congress recognized that the BOP would never grant compassionate release to inmates on a meaningful basis. Despite its moral reprehensibility, this makes some intuitive sense. After all, the jailer holding the keys to the jail doesn't see any real incentive to unlock the cell doors.

FIRST STEP Act Allows Inmates To File Motions

On December 21, 2018, the FIRST STEP Act destroyed the BOP's ultimate authority over compassionate release. With the signing of the FIRST STEP Act, congress amended 18 U.S.C. Section 3582(c)(1) to permit an inmate to file his own request for relief under the compassionate release statute.

This allowed sentencing judges to consider a motion from the defense instead of just the BOP. Simply put, the FIRST STEP Act only requires that an inmate make a request to their warden and wait 30 days before filing a motion with the court. First Step Act of 2018, Section 603(b), Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018).

As of November 2020, the federal courts have compassionately released an estimated 1,700 persons so far. In 2019, there were 145 grants of compassionate release. The FIRST STEP Act changes to compassionate release appear to be working.

Act Two: How To Decide Compassionate Release Motions

Before 2018, very little caselaw informed how courts evaluated compassionate release motions. Because the BOP rarely filed such motions, extremely limited caselaw existed. Once inmates could bring their own motions for compassionate release, however, courts needed to decide how to evaluate the motions.

Congress did not give any new direction with the passage of the FIRST STEP Act. Instead, Congress told sentencing courts they could grant reductions in sentence in cases where “extraordinary and compelling reasons" existed. 18 U.S.C. Section 3582(c)(1).

However, Section 3582(c) contains other requirements for granting a sentence reduction that the FIRST STEP Act did not change. Today, there are three substantive requirements for a court to grant compassionate release to a defendant.

Firstly, the court must make findings that “extraordinary and compelling reasons” merit a sentence reduction for compassionate release. Secondly, the court must find that the sentence reduction is consistent with all “applicable” Sentencing Commission policy statements. Thirdly, the court must weigh the applicable sentencing factors under 18 U.S.C. Section 3553(a) and determine they support the compassionate release sentence reduction. See United States v. Ruffin, 978 F.3d 1000 (6th Cir. Oct. 26, 2020).

U.S. Sentencing Commission Policy Statements On Extraordinary and Compelling Reasons

A brief recap of the U.S. Sentencing Commission’s role in the compassionate release process helps us understand where things stand today. Decades ago, Congress directed the Sentencing Commission to develop policies to help determine what “extraordinary and compelling reasons” warrant compassionate release. See 28 U.S.C. Section 994(t).

The Sentencing Commission policy statements can be found at U.S.S.G. Section 1B1.13. The Sentencing Commission has not updated its guidance on compassionate release motions since before the passage of the FIRST STEP Act. They have not acted largely because they do not have enough voting members to enact any new guidelines today.

As a result, step one and step two of the compassionate release analysis required courts to look at the Sentencing Commissions’ policy statements. At step one, the policy statements help guide decisions about whether circumstances were “extraordinary and compelling reasons,” for a reduction. At step two, courts considered the definitions as “applicable” policy statements. The question that has divided courts rose out of these facts.

Simply put, are the courts limited to only granting compassionate release for circumstances that are consistent with the Sentencing Commissions’ policy on “extraordinary and compelling reasons” when that guidance has not been updated after the FIRST STEP Act?  

Act Three: Courts Unbound From Sentencing Commission

COVID-19 accelerated the need for courts to resolve compassionate release motions quickly and with the safety of inmates in mind. COVID-19 has ravaged U.S. prisons including the BOP. It seems intuitive that courts could grant compassionate release to vulnerable inmates based on the risk of dying from COVID-19, but the government has argued the law did not allow these motions.

Government Claims Policy Statement Exclusivity

Instead, the government opposed compassionate release motions across the country by making all kinds of arguments. One argument the government repeatedly made was that courts were required to support any sentence reduction by finding “extraordinary and compelling reasons” in only the circumstances outlined by the Sentencing Commission policy statement. The same policy statement that has not been updated since 2018.

This argument posed a real roadblock for inmates fearing death from COVID-19. That is because the policy statement generally said that “extraordinary and compelling reasons” applied only to inmates who were already sick, debilitated, or otherwise in compromised health and were unlikely to recover (it also detailed old age and some family situations as sufficient reasons).

The Sentencing Commission policy statement on sentence reduction did not account for the future risk of deadly disease. That is understandable; the United States has not seen a disease as communicable or deadly as COVID-19 in almost 100 years.

The Sentencing Commission policy statement did seem to have one safety-valve. The commentary to the policy statement contained a “catch-all” provision that allowed for “extraordinary and compelling reasons” in other situations as determined by the Director of the BOP. See U.S.S.G. 1B1.13 cmt. n.1(D) (“As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).”) (emphasis added).

The problem was that the “catch-all” still left the BOP as the sole and absolute arbiter of what exactly was “extraordinary and compelling.” Put bluntly, the Sentencing Commission policy statement did not reflect the FIRST STEP Act’s procedural reforms to compassionate release that allowed motions brought by inmates.

Courts Hold Policy Statement No Longer Applicable

United States vs. McCoy, (Fourth Circuit Maryland, North Carolina, South Carolina, Virginia, West Virginia),

In McCoy, the Fourth Circuit stated that “[w]hat § 3582(c)(1)(A) requires is that sentence reductions be consistent with “applicable policy statements.” And here, that consistency requirement simply is not implicated, for the threshold reason that there currently exists no “applicable policy statement[ ].”  The court noted that they joined the Second Circuit’s holding in Zullo. They also indicated the agreement with the Sixth Circuit’s decision in Jones and the Second Circuit’s decision in Gunn

The court went on to say that “A sentence reduction brought about by motion of a defendant, rather than the BOP, is not a reduction “under this policy statement.”…By its plain terms, in short,  § 1B1.13 does not apply to defendant-filed motions under  § 3582(c)(1)(A).”…”There is as of now no ‘applicable’ policy statement governing compassionate-release motions filed by defendants under the recently amended  § 3582(c)(1)(A), and as a result, district courts are “empowered … to consider any extraordinary and compelling reason for release that a defendant might raise.”

5th Circuit:  United States vs. Shkambi, No. 20-40543

Shkambi filed a motion for compassionate release after seeking his administrative remedies.  He was at FCI Elkton and had contracted COVID-19.  He was concerned with being reinfected with the virus and that a medication that he was receiving would weaken his immune system.  The district court stated that Shkambi’s extraordinary and compelling reasons argument “fail[ed] because it [wa]s untethered to the Sentencing Commission’s binding applicable policy statement in section 1B1.13 of the Sentencing Guidelines.”  As a result the court dismissed his motion for lack of jurisdiction.   

In holding that the district court erred, the Fifth Circuit stated that:

“First, the text of § 1B1.13 says it only applies to ‘motion[s] of the Director of the Bureau of Prisons’ … When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates…So the policy statement continues to govern where it says it governs—on the ‘motion of the Director of the Bureau of Prisons.’ U.S.S.G. § 1B1.13. But it does not govern here—on the newly authorized motion of a prisoner.”

“Second, the text of the commentary confirms the limited applicability of § 1B1.13. Application note 4 of the commentary makes clear that a ‘reduction under this policy statement may be granted only upon a motion by the Director of the Bureau of Prisons.’…That note expressly limits the policy statement’s applicability to motions filed by the BOP.

“Third, the district court cannot rely on pieces of text in an otherwise inapplicable policy statement…It’s true that application note 1 defines “extraordinary and compelling reasons” by articulating four categories of reasons that could warrant a sentence reduction. But this “text may not be divorced from context.” … And the context of the policy statement shows that it applies only to motions filed by the BOP. Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.”

United States vs Jones (Sixth Circuit, Kentucky, Michigan, Ohio and Tennessee)

In United States v. Jones, the Sixth Circuit issued an exhaustive opinion on the history of compassionate release, the legislative backdrop, and how to define “extraordinary and compelling reasons” for sentence reductions under Section 3582(c). United States v. Jones, No. 20-3701, 2020 WL 6817488 (6th Cir. Nov. 20, 2020). The central holding of Jones was that district courts are not required to look to U.S.S.G. 1B1.13 when evaluating compassionate release motions brought by inmates.

The Sixth Circuit said that the old policy statement was not “applicable” to compassionate release requests brought by the defense after the passage of the FIRST STEP Act.  Thus, district court judges in the Sixth Circuit have “full discretion” to define “extraordinary and compelling” without consulting the policy statement found at U.S.S.G. 1B1.13.

United States vs. Gunn (Seventh Circuit, Illinois, Indiana and Wisconsin)

Not to be outdone, the Seventh Circuit issued a similar decision on compassionate release in United States v. Gunn the very same afternoon. United States v. Gunn, No. 20-1959, 2020 WL 6813995 (7th Cir. Nov. 20, 2020). The long-tenured and thorough Judge Easterbrook authored the Gunn decision.

According to Judge Easterbrook, the Sentencing Commission has not yet issued an “applicable” policy statement to defendant requests for compassionate release. As Easterbrook said, “[a]ny decision is “consistent with” a nonexistent policy statement.”

In the Seventh Circuit, district courts are free to operate under the statutory criteria of “extraordinary and compelling reasons” when deciding sentence reduction motions. This can be done without regard for the policy statement. Any decision by the district courts to grant compassionate release will be subject only to “deferential appellate review” for an abuse of discretion.  Gunn, No. 20-1959, 2020 WL 6813995, at *2 (7th Cir. Nov. 20, 2020).

United States vs. Elias (Sixth Circuit, Kentucky, Michigan, Ohio and Tennessee)

In United States vs. Elias, the Sixth Circuit reconsidered the applicability of United States Sentencing Guideline 1B1.13. Elias was decided after Jones. When asked, the government said that the holding in Jones was dicta (meaning that it was a remark, statement, or observation of a judge that is not a necessary part of the legal reasoning needed to reach the decision in a case) and as such it was not binding on the court.

The court was unpersuaded by this argument. The court determined that the government provided no compelling reason for the court to disturb the consensus of the circuits. It was also held that 1B1.13 was not an applicable policy statement for compassionate release motions that are brought by inmates and that District Courts did not need to consider it when ruling on motions. While the court ultimately denied relief for other reasons, Elias is another example of the courts determining that 1B1.13 was not applicable to motions that are bought by inmates.

9th CIRCUIT:  United States vs. Arruda, 20-10245

Arruda filed a compassionate release motion seeking reduction.  Arruda was denied 

On appeal, the 9th Circuit reversed, noting that after the decision by the district court here, five other circuits unanimously held that USSG 1B1.14 only applies to 3582(c)(1)(A) motions filed by the BOP director and does not apply to motions filed by a defendant.  The court noted: 

“Our sister circuits have reached this conclusion based on: (1) the text of § 3582(c)(1)(A), which only requires courts to consider “applicable” policy statements by the Sentencing Commission; (2) the text of U.S.S.G. § 1B1.13, which begins “[u]pon motion of the Director of the Bureau of Prisons”; (3) the text of Application Note 4 to § 1B1.13, which states that “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A)”; (4) the text of Application Note 1(D) to § 1B1.13, which is a catch-all provision allowing only the “Director of the Bureau of Prisons” to determine “other” extraordinary and compelling reasons; and (5) the legislative history of the First Step Act’s compassionate-release amendment, which sought to expand and expedite compassionate-release motions because they had seldom been brought by the BOP.” 

The Ninth Circuit court agreed and vacated and remanded the decision of the court here so that Arruda’s motion could be reconsidered. 

Tenth Circuit:  United States vs. McGee, 20-5047

McGee was found guilty in the District Court in Oklahoma on a PCP charge.  He was sentenced to life because at the time of his conviction, he had two prior California felony Drug convictions.  He filed a 3582 motion indicating that “he received a mandatory life sentence under a provision of § 841(b)(1)(A) that was amended by § 401 of the First Step Act because Congress considered it to be unduly punitive; (b) he was serving a sentence that would be substantially lower if imposed at the time of his petition because of changes to federal statutory law and California state drug law2; (c) his remarkable record of rehabilitation added to the determination that he presented extraordinary and compelling reasons to support a sentence reduction; and (d) if resentenced and eventually released, he had a comprehensive reentry plan in place that included support from his family.”  The District court acknowledged that he would receive a lower sentence if he were sentenced today, but the FIRST STEP Act was not made retroactive by congress:

“The government argues that the Sentencing Commission’s existing policy statement remains binding on district courts, even in cases where the defendant, rather than the Director of the BOP, has filed a motion for sentence reduction under § 3582(c)(1)(A).  The problem with this position, however, is at least two-fold.  First, it ignores the fact that the Sentencing Commission has failed to fulfill its statutory duty to issue a post-First Step Act policy statement recognizing the ability of defendants to file their own motions for sentence reductions.  Second, and relatedly, it effectively undercuts the statutory changes that Congress made in the First Step Act when it authorized defendants to file their own motions.  More specifically, treating the existing policy statement as continuing to be applicable would effectively eliminate, in all cases involving motions filed directly by defendants rather than the Director of the BOP, the “Other Reasons” (i.e., “catch-all”) category that the Sentencing Commission clearly intended to exist.  This is because the “catch-all” category, as described in the Sentencing Commission’s existing policy statement, requires a determination by the Director of the BOP that extraordinary and compelling circumstances exist in a given case.  But, in a case where the defendant has moved for relief under the statute, the Director of the BOP has necessarily not made any such determination.  This is problematic and clearly undercuts not only Congress’s intent to expand the use of compassionate release,5 but also the Sentencing Commission’s intent to recognize a “catch-all” category of cases in addition to those that fall within the narrow confines of the first three categories of cases.  Thus, we reject the government’s position.  See generally Dorsey v. United States, 567 U.S. 260, 266 (2012) (noting that “federal sentencing statutes . . . interact[] with the Guidelines in an important way,” and always “trump[] the Guidelines”). “We conclude instead, as have the Second, Fourth, Sixth, and Seventh Circuits, that the Sentencing Commission’s existing policy statement is applicable only to motions for sentence reductions filed by the Director of the BOP, and not to motions filed directly by defendants.” 

Conclusion Regarding Extraordinary and Compelling Reasons


Every court of appeals to look at this issue has held that the Sentencing Commission policy statement on compassionate release is no longer “applicable” to requests from inmates after the FIRST STEP Act. This means that district courts have much more discretion than ever before to decide what types of circumstances are extraordinary and compelling to merit a sentence reduction.

This could include stacked 924(c) convictions, no longer applicable mandatory minimums for drug crimes, Section 851 enhancements that do not count, or any other host of reasons for seeking a reduction.

If you or your loved one is in federal prison and is interested in seeking compassionate release, please contact the law office of Jeremy Gordon P.L.L.C. at 972-483-4865 to schedule an appointment or send us an email to [email protected].

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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