Defining Extraordinary and Compelling in Compassionate Release
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 Grapple With Extraordinary and Compelling in the Circuits
Second Circuit: Sentencing Guidelines not Binding: Brooker/Zullo, 19-3218-cr.
The Second Circuit ruled that anything can serve as an extraordinary and compelling circumstance. This will impact COVID-19 relief cases, stacked 924c/851 cases and many more.
Zullo's Procedural History and Compassionate Release Motion
Sentencing for Zullo happened in 2010. The sentence was for a mandatory 10 years for drug charge and a mandatory 5 years for gun charge. The court stated at two separate sentencing hearings that the sentence was excessive. Zullo’s sentence was affirmed on direct appeal and habeas review.
In 2019 Zullo sought compassionate release and filed a motion for a sentence reduction with the court. The court denied Zullo’s motion because it determined that Guideline 1B1.13 required a motion by the BOP. Zullo appealed to the Second Circuit.
Impact of Conflict of Application Note 1(D) & 3582 Compassionate Release Text
In reaching their decision the court first noted that the language in the text 3582(c)(1)(A)(i) included the following:
"if [the court] 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 big difference is indicated that an imprisoned person can bring a claim even if the BOP opposed it. Congress did not view this as a minor change, noting that:
"Congresspersons called it “expand[ing],” “expedit[ing],” and “improving” compassionate release.4 164 Cong. Rec. S7774 (daily ed. Dec. 18, 2018) (statement of Sen. Ben Cardin); 164 Cong. Rec. H10346, H10362 (Dec. 20, 2018) (statement of Rep. Jerrold Nadler)."
Further, the text of the statute indicated that the courts had to consider only "applicable" guidelines. So the issue here was whether Application note 1(D) remained applicable post First Step Act. Outdated language was not fully applicable by the court.
"The very first words of the Guideline are “[u]pon motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. And this is precisely the requirement that the First Step Act expressly removed. See 18 U.S.C. § 3582(c)(1)(A)." Rather than abolishing the statute, the court determined that "motions by the BOP still remain under the First Step Act, they are no longer exclusive, and we read the Guideline as surviving, but now applying only to those motions that the BOP has made. But "if a compassionate release motion is not brought by the BOP Director, Guideline § 1B1.13 does not, by its own terms, apply to it. Because Guideline § 1B1.13 is not “applicable” to compassionate release motions brought by defendants, Application Note 1(D) cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling."
Government's "Severability" Argument Not Accepted
The court considered the Substantive and Procedural argument brought by the government. The government asked the court to retain power for the BOP to determine extraordinary and compelling circumstances. This to be achieved by severing the conflicting portions of the guideline from application note 1(D):
"First, we do not abrogate Guideline § 1B1.13—but only read its applicability to be limited to cases in which the BOP has made a motion. Severability does not come up. There is nothing to sever. Neither the Guideline nor its application notes have been eliminated.
Second, even were we to abrogate Guideline § 1B1.13, the government’s severability argument would be unsuccessful. As we have explained, Application Note 4’s text places motions not made by the BOP Director outside of section 1B1.13’s scope."
The court determined severability was a question of legislative intent. When looking at the "the long history of the compassionate release provisions, the statements of Congress show clear intent. This includes a First Step Act co-sponsor and text of both First Step Act and Guideline."
"[w]hen the BOP does not timely act or administrative options are exhausted, 'whichever is earlier,' discretion to decide compassionate release motions is to be moved from the BOP Director to the courts." The government did not present anything from the legislative history of the guidelines or the FIRST STEP Act that suggested an alternative intent. The court stated that "[g]iven this clear intention, we see no reason to believe that Congress would also wish for BOP to retain a significant rein on the courts’ discretion through Application Note 1(D) when the BOP had made no motion."
Government's Remaining Arguments Dispatched
The government brought forth two more arguments:
"First, it argues that even if Application Note 1(D) no longer applies and the district court has discretion to consider all possible reasons for compassionate release, remand is unnecessary here because the district court did exercise discretion in denying Zullo’s motion.
Second, it argues, regardless of whether the district court exercised discretion, a remand is not needed because any district court granting a compassionate release motion on the facts before us would necessarily abuse its discretion.
We reject both arguments."
The court rejected both arguments. First the court stated that the district court's order “reject[ed] Zullo’s argument that the amendment of 18 U.S.C. § 3852(c)(l)(A) removing the requirement of a BOP motion also removed the substantive effect of [Guideline] § 1B1.13.” The court then quoted Application Note 1(D), including the language that “other reasons” for compassionate release applied only “[a]s determined by the Director of the Bureau of Prisons.” The court reasoned that this was not discretion.
The court also determined that to grant this would not be an abuse of discretion. While true, the compassionate release by Zullo did cite his rehabilitation as a reason for release. The court also noted that "Zullo’s age at the time of his crime and the sentencing court’s statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction. Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984." These arguments may also interact with the present coronavirus pandemic.
The Second Circuit VACATED the district court's decision and remanded for further proceedings.
United States vs. McCoy, (Fourth Circuit Maryland, North Carolina, South Carolina, Virginia, West Virginia),
McCoy's charges are due in part to his involvement in a string of 12 robberies. He pled guilty to 2 counts of Hobbs Act Robbery and 2 counts of the use of firearms under 18 USC 924(c). He received 32 years for the gun charges. He also received 7 years for the first 924c charge and 25 years for the second. He was sentenced to 37 months for the robberies.
McCoy filed for 3582 compassionate release relief in 2020. In granting his motion, the courts determined that when the FIRST STEP Act (that contained the 3582 relief) was enacted, "Congress intended to remove the BOP from this gatekeeping role."
The court determined that it would be frustrating if USSG 1B1.13 application note D were allowed to mandate that the BOP approve McCoy's 3582 motion. The court granted his reduction to time served.
Bryant, Decator and Scott participated in one attempted and two completed bank robberies. Each received a charge with three 924(c) convictions.
At that time such charges carried a mandatory minimum sentence of 45 years. "The district court expressed its concern about the severity of the sentences produced by the stacked § 924(c) charges but explained that it had no discretion in the matter."
Compassionate Release Results
They all sought compassionate release relief and their sentences were reduced to time served. All of the defendants have been released on supervision and subject to additional conditions. The government appealed these decisions.
- The court held 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, 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).
- As a result, district courts are “empowered ... to consider any extraordinary and compelling reason for release that a defendant might raise.” The Government also argued that the district courts erred in "treating as “extraordinary and compelling reasons” the length of the defendants’ sentences. The fact that those sentences would be dramatically shorter today, given that the First Step Act’s elimination of sentence-stacking under § 924(c)" gives relief through compassionate release.
The court disagreed again. "The district court, both in this case and other districts as well, appropriately considered two distinct features of the defendants’ § 924(c) sentences in applying the “extraordinary and compelling reasons” standard.
- First is the sheer and unusual length of the sentences...the district court also considered the “gross disparity” between those sentences and the sentences Congress now believes to be an appropriate penalty for the defendants’ conduct."
- The Fourth Circuit also noted that the district courts relied not only on the 924(c) charges but full consideration of their individual circumstances. The record showed that each of these individuals had spent half of their lives in prison and in some situations they had engaged in rehabilitation.
Fifth 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.”
Sixth Circuit (Kentucky, Michigan, Ohio and Tennessee): Non-Retroactive Judicial Developments are not Extraordinary and Compelling: McCall
Facts: Havis, Covid-19 and Rehabilitation = Sentence Reduction?
McCall was convicted in 2015. At the time, Sixth Circuit case law meant that he received a career offender sentencing guideline enhancement which raised his overall advisory range. By a lot.
After McCall was convicted, the Sixth Circuit decided its well-known and important decision in Havis. Remember, Havis was the first case to say inchoate “attempt” offenses could not be used as “controlled substance offense” priors that count towards the career offender guideline enhancement. Keep in mind that the Havis decision is generally not retroactive to cases that are already final.
McCall sought a compassionate release motion in June 2020. He argued essentially three different types of “extraordinary and compelling reasons” existed in his case. First, he argued that COVID-19 generally was “extraordinary and compelling” even though he did not have any particular medical vulnerabilities. Second, he said that after the Havis decision he would not be a career offender if he was resentenced today. Third, he argued that his rehabilitation and prison record also supported a finding of extraordinary and compelling reasons.
The district court denied his motion. The district court said that COVID-19 in general without any underlying medical condition was not sufficient. The district then went on to say that it COULD NOT consider the non-retroactive decision from Havis and the sentencing disparity McCall faces today. The district court then refused to consider McCall’s rehabilitation.
En Banc Decision: Non-Retroactive Judicial Developments are not Extraordinary and Compelling
The Sixth Circuit took this case up just recently. The en banc court stated that “Nonretroactive legal developments do not factor into the extraordinary and compelling analysis.”
The Sixth Circuit Noted that concepts of finality and nonretroactivity (as in how changes in sentencing law are nonretroactive) impacted their decision:
“Viewed in this light, the phrase ‘extraordinary and compelling reasons’ comes into sharper focus. What is ordinary—the nonretroactivity of judicial precedent announcing a new rule of criminal procedure like Havis—is not extraordinary. And what is routine—a criminal defendant like McCall serving the duration of a lawfully imposed sentence—is not compelling.”
Further, the court noted that congress could have changed the applicable statute to have a retroactive effect if they wanted to:
“The structure of federal sentencing law reinforces our conclusion. Viewed as a whole, that body of law makes one thing clear: When Congress wants a change in sentencing law to have retroactive effect, it explicitly says so. To see this reality at work, we need look no further than the Sentencing Reform Act of 1984 and the First Step Act of 2018.”
McCall brought up the fact that the Supreme Court’s holding in Concepcion mandates a different result, but the Sixth Circuit disagreed, indicating that Concepcion only comes into play after a person meets the extraordinary and compelling reason provision:
“To start, Concepcion concerned a different and unrelated provision of the First Step Act that explicitly applied retroactively. The decision said nothing about the “threshold question [of] whether any given prisoner has established an ‘extraordinary and compelling’ reason for release… Next, to the extent that Concepcion sheds any light on this case, it supports the government’s position. Concepcion’s insight goes to what a court may consider after it finds a defendant meets the threshold requirement for a sentence modification. If that threshold is met, Concepcion teaches that a district court may consider any number of changes in law and fact when exercising its discretion to grant or deny the defendant’s motion. Our approach to compassionate release runs a parallel course. A defendant must first satisfy the provision’s threshold requirement, showing “some  ‘extraordinary and compelling’ reason” justifies “a sentencing reduction.” ... With that hurdle cleared, Concepcion’s holding comes into play. A district court may “consider subsequent developments,” legal or factual, “in deciding whether to modify the original sentence and, if so, in deciding by how much.””
The en banc court affirmed the district court.
Notes: As I said, the holding here means that retroactive legal developments do not factor into the extraordinary and compelling analysis for 3582 cases. This includes things like stacked 851’s and the stacked 924c sentencing structure that was changed as part of the FIRST STEP Act but not deemed retroactive. I am hopeful that the Supreme Court takes this issue up and solves it. Note that prior court decisions have also indicated that 1B1.13 is non-binding in all other respects.
Seventh Circuit (Illinois, Indiana and Wisconsin)
United States vs. Gunn: Courts Free to Disregard Policy Statement
United States v. Gunn, No. 20-1959, 2020 WL 6813995 (7th Cir. Nov. 20, 2020).
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. Thacker: Except in Stacked 924(c) counts [and probably stacked 851 enhancements].
In Thacker, a compassionate release appeal where the incarcerated person had "stacked 924(c)" convictions, the Seventh Circuit stated that the discretion provided by 3582 can only go so far:
“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.”
Ultimately the court held that an inmate had to identify an extraordinary and compelling reason "but that reason cannot include, whether alone or in combination with other factors, consideration of the First Step Act’s amendment to § 924(c)."
Ninth 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.”
Eleventh Circuit: USSG 1b1.13 is Applicable and Binding to Motions Brought by Inmates: Bryant
The Eleventh Circuit ruled that USSG 1B1.13 is an applicable policy statement that applies to pending compassionate release motions brought by incarcerated persons in Bryant. This is potentially dooming COVID and Stacked 924c motions filed by inmates and their lawyers. We are going to talk about what the court said, what happens next and what happens on motions that have already been filed there.
Bryant’s Underlying Case and District Court Procedures
Bryant was charged with and convicted of multiple charges involving drugs and guns. Part of his charges involved “Stacked 924(c)” charges where he received 5 years for one 924(c) charge and 25 years for a second 924(c) charge to be ran consecutively to all other charges.
Post-First Step Act, Bryant filed a motion for a reduction under 3582 stating that:
- he would not be subject to a 25-year mandatory minimum if he were sentenced today;
- he received a higher sentence than some of his co-conspirators because he chose to go to trial; and
- he has a good record of rehabilitation in prison.
The court denied his motion for the reasons that were in the government’s brief and Bryant appealed.
The Eleventh Circuit's Decision:
The Appellate Court stated that there were two things to consider here:
“This debate has spawned two questions: (1) Is 1B1.13 an applicable policy statement for defendant-filed Section 3582(c)(1)(A) motions? (2) If it is, how does a court apply Application Note 1(D) to a motion like Bryant’s?”
Is 1B1.13 an Applicable Policy Statement for Defendant-Filed Pending Compassionate Release Section 3582(c)(1)(A) Motions?
To determine this, the court looked at the definitions of the word “applicable.” The court determined that “’applicable’ has two main dictionary definitions. One definition is ‘capable of being applied’…The other definition is ‘relating to’ or ‘relevant.’” The court determined that both of these applied to 3582 motions and that even the courts that determined that 1B1.13 was not an applicable policy statant determined that the policy statement was “relevant” to or “helpful.”
The court also determined that the context further supported the conclusion that 1B1.13 was applicable. There was “no question that 1B1.13 is the policy statement the Commission adopted to comply with this statutory mandate,” “1B1.13 was applicable because it implemented the relevant statute determining whether something is an “applicable guideline” under the Sentencing Guidelines is resolved based on the statutory provision at issue and nothing else.
Further the Eleventh Circuit indicated that the statute’s purpose supports the reading. Other courts have ruled differently on whether “a congressional decision to make a sentencing change prospective-only creates an extraordinary and compelling reason that allows district courts to apply that change retroactively.”
The Eleventh Circuit stated that “[t]he Fourth Circuit accepts that argument…the Sixth Circuit does not…the Tenth Circuit attempts a middle way.
Some district courts might grant relief on that basis. Surely, others would not. Disparity and uncertainty follow from adopting an interpretation of “applicable” that rejects 1B1.13 as an applicable policy statement.”
Finally, on the why of this, the court noted that “Congress chose to expand who can file a Section 3582(c)(1)(A) motion, but it chose not to lift its stricture that courts must follow the Commission’s applicable policy statements when ruling on those motions. It also chose not to amend its mandate that the Commission publish policy statements defining ‘what should be considered extraordinary and compelling reasons for [a] sentence reduction’ under Section 3582(c)(1)(A).”
The eleventh circuit reasoned that congressional inaction is intentional and that congress made a determined choice that the commission would continue to establish what was extraordinary and compelling, not the courts. Congress could have changed all of this but they did not.
The court stated that, among other things, the other circuits that have ruled on this note “that Congress amended the statute to expand the use of Section 3582(c)(1)(A) and lament that the unamended 1B1.13 does not allow enough expansion.” The Eleventh Circuit stated that was not their concern: “We recognize the intuitive pull of these concerns. But it is not our role to predict what the Sentencing Commission will do or what Congress wants it to do. Our role is to interpret the relevant legal texts and apply them as they exist.”
Additional Quotes for This Section
“We are also not convinced that our interpretation frustrates Congress’s goal of broadening the reach of Section 3582(c)(1)(A). In enacting the FSA, congressional critics of the existing law did not argue that 1B1.13’s criteria were too narrow or that courts should be able to identify ‘extraordinary and compelling reasons’ for themselves.”
“Third, our dissenting colleague argues that we are “blue-pencil[ing]” the policy statement by holding that it is ‘applicable’ to defendant-filed motions. We disagree. We not severing anything from, or adding anything to, the policy statement. Instead, we are recognizing that district courts are bound by the Commission’s definition of ‘extraordinary and compelling reasons’ found in 1B1.13 because, under our understanding of the statute, Congress said they are. That means that courts may grant defendant-filed motions that the BOP refuses to bring, but they must apply 1B1.13’s definition of ‘extraordinary and compelling reasons’ in doing so.
Ultimately the court found that 1B1.13 was an applicable policy statement.
How the Policy Statement Applies to Bryant’s Request for Sentence Reduction
The court reviewed application note 1(D) and determined that it does not conflict with 3582(c)(1)(A);
“Application Note 1(D) does not conflict with Section 3582(c)(1)(A). The FSA’s only change was to allow for defendant-filed reduction motions. Nothing in Application Note 1(D) stops a defendant from filing a Section 3582(c)(1)(A) motion. The BOP may still file motions, and Application Note 1(D) can apply to those motions. The BOP can also take a position on a defendant-filed motion, so Application Note 1(D) has a field of application there as well… Because this Court can give effect to the amended Section 3582(c)(1)(A) and the unamended Application Note 1(D) at the same time, the Court must do so.”
The Eleventh Circuit noted that the compassionate release relief expanded access to the court for adjudicating motions. “In other words, the policy problem that the FSA aimed to solve was not the courts’ inability to identify new grounds for relief; rather, the problem was that the BOP was not filing reduction motions for defendants who qualified under the already existing grounds for relief—the Commission’s criteria set forth in 1B1.13. Allowing defendants to file Section 3582(c)(1)(A) motions ensures that courts can grant reductions to defendants who fall within the Commission’s criteria.”
Finally, the court noted that Bryant’s motion did not fall within any of the reasons that 1B1.13 identifies as “extraordinary and compelling[ ]” and notes that the district court correctly denied his motion for a reduction in sentence.
The Eleventh Circuit Affirmed the ruling of the district court. 19-14267
MEDICAL REASONS: United States vs. Cantu
In United States v. Cantu, No. 1:05-CR-458-1, 2019 WL 2498923 (S.D. Tex. June 17, 2019), Cantu pled guilty to one count of Racketeering and was originally sentenced to 290 months in prison. He sought release under 18 USC § 3582, asking for a reduction in sentence to time served, indicating that 30 days had elapsed from his reduction in sentence request to the warden and a response. The court examined USSG § 1B1.13 to determine what the Sentencing commission considers “extraordinary and compelling.”
While Cantu had not presented evidence about why his reasons were extraordinary and compelling, the court determined that they had the power to make that determination. This was in part because the FIRST STEP Act’s enactment meant that the policy statement (USSG § 1B1.13) no longer applicable to the statute and meant that the policy statement did not provide guidance on the appropriate use of sentence- modification provisions under § 3582. The Court also relied on the Rule of Lenity, which in this situation mandates that “when two rational readings of a statute or possible, the one that treats the defendant less harshly prevails,” citing McNally v. United States, 483 U.S. 350, 359-60 (1987).
The court also determined that they had the statute did not define or place any limits on what “extraordinary and compelling reasons” might warrant such a reduction, citing Crowe v. United States, 430 F.App’x 484, 485 (6th Cir. 2011). Having determined that they had the authority to grant relief, the court determined that there were extraordinary and compelling reasons present in Mr. Cantu’s case that warranted a reduction in sentence under § 3582(c)(1)(A). This included the government’s statement that the court could issue an order that would cause the BOP to release the defendant (Cantu had also sought release under the Elderly Offender Home Detention Program in the same motion.
The government agreed that he was eligible and asked the court to grant an order, “causing the BOP to release Mr. Cantu under that program”, but the court determined that they did not have the authority to grant such relief). The court went on to determine that Mr. Cantu was not a danger to the safety of others and that the §3553 factors supported Mr. Cantu’s request for compassionate release. The court granted that release and amended his sentence to time served.
United States vs. Beck
In United States vs. Beck, 1:13-CR-186-6 (M.D. N.C. June 28, 2019), Beck sought immediate release under the FIRST STEP Act of 2019, stating that “indifference to her treatment constitute[d] extraordinary and compelling reasons.” Beck claimed that lumps in her body were not properly addressed and that her treatment schedule was inappropriate, leading to metastatic breast cancer that had progressed to a point where it was too late to do either radiation or chemotherapy.
The court noted that there is no policy statement applicable to motions for compassionate release filed by defendants under the FIRST STEP Act. It was also noted that the Sentencing Commission has not amended or updated the old policy statement since the FIRST STEP Act was enacted and that it was unlikely that they would soon, given that the United States Sentencing Commission does not have sufficient members to vote to amend the guidelines. It was determined that “courts may, on motions by the defendants, consider whether a sentence reduction is warranted for extraordinary and compelling reasons other than those specifically identified in the application notes to the old policy statement.”
The court determined that the improper treatment schedule constituted Extraordinary and Compelling Reasons under 18 U.S.C. § 3582, that the reduction is consistent with the Sentencing Commission’s Guidance, that Beck was not a danger to the community and that the 3553 factors warranted a reduction. Beck’s sentence was reduced to time served.
Taking Care of Sick Loved ones:Wood
In U.S. vs. Wood, NO. 5:13-CR-00053-KDB-DCK-4 (W.D.N.C. July 22, 2022), the court granted a compassionate release so that an inmate could take care of his sick loved ones.
Wood was previously sentenced to 170 months in federal prison for one count of conspiracy to distribute and possess with the intent to distribute and manufacture methamphetamine. His release date at the time of his sentencing was March of 2024. Wood was serving his sentence in FCI Gilmer in West Virginia.
Wood filed a compassionate release motion asking for the court to release him because of his need to “care for his ailing mother who now lives alone and suffers from pulmonary hypertension, sleep apnea, systolic congestive heart failure, paroxysmal atrial fibrillation, hypertension, peripheral vascular disease, Type II diabetes, morbid obesity and chronic back pain.” Wood’s father and grandfather had both passed away as of the filing of this order.
The court noted that Wood had letters from his mother and other family members that showed that his mother was in dire circumstances and that no one else could take care of her. Wood also indicated that his son had schizophrenia.
The court determined that the 3553(a) factors also warranted a reduction in sentence as well. The court noted that he had 236 hours of HVAC training as well as 210 hours of training to become an electrical technician.
As a result, the court reduced his sentence to time served. The court added a condition of supervised release that Wood submit to home incarceration with location monitoring technology. Wood was restricted to his residence 24 hours a day except for his and his mother’s medical necessities.
Compassionate release granted for failure to grant a treaty transfer: Liu, 3:19-cr-00042-PDW (District of North Dakota, 11/22/22)
Liu, a Chinese National and Canadian Citizen, was sentenced to 72 months imprisonment for attempting to acquire a chemical weapon in violation of 18 USC 229(a)(1) and (2).
At Liu’s sentencing the prosecutor indicated that they would not oppose Liu’s Treaty Transfer to Canada (a Treaty Transfer is when the BOP transfers an inmate from a foreign country “pursuant to the conditions of the treaty agreement which allows for such transfers.” And Liu’s plea agreement indicated that “The United States agrees that if the Defendant, following sentencing, seeks a prison transfer to Canadian custody, the United States will not oppose that request.” Liu also voiced that understanding at her sentencing and indicated that Liu had a Canadian lawyer who also was involved in the plea negotiations.
On the paperwork that is associated with Liu’s request for a treaty transfer the United States indicated that “T[ook] No Position” on the Request. Liu’s compassionate release request was ultimately denied.
The District of North Dakota determined that this was extraordinary and compelling:
“The Court recognizes that the United States Attorney’s Office for the District of North Dakota does not, in isolation, make the final decisions with respect to treaty transfers and international custody transfers. That said, it was evident at sentencing that all the parties, including the undersigned, knew Liu would be applying for a treaty transfer to Canadian custody and the United States would not oppose that request. It was also evident, by Liu’s own words but also the record in this case, that the transfer issue was an essential part of the global resolution.
Liu’s case and plea agreement was, in a word, extraordinary and presents extraordinary and compelling circumstances “other than” those specifically articulated in USSG § 1B1.13. On the unique and specific facts of this case, the Court agrees with Liu and finds that the inconsistent recommendation concerning the treaty transfer and subsequent denial of the transfer presents extraordinary and compelling reasons for a sentence reduction § 3582(c)(1)(A).”
The Court also found that Liu otherwise met the 3553(a) factors for release and granted the reduction.
Maryland Court Grants Compassionate Release Based on Length of Sentence, Time Served and Rehabilitation: Salliey
10-cr-0298 (D. Md. Feb. 13, 2023)
Salliey was sentenced by the U.S. District Court for the District of Maryland to 204 months imprisonment for one count of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g)(1).
In June 2021, Salliey moved for compassionate release, or a reduction in sentence, pursuant to 18 U.S.C. 3582(c)(1)(A). Salliey sought compassionate release on several grounds, including that his sentence was disproportionate to the offense, he had served a substantial percentage of that sentence, he has been rehabilitated, and that he is susceptible to COVID-19.
The district court noted that under Fourth Circuit case law, the court is bound by neither the U.S. Sentencing Commission’s Guidelines nor the Bureau of Prisons’ regulations. United States v. McCoy, 981 F.3d 271, 281 (4th Cir. 2020). The court concluded that Salliey had properly exhausted his administrative remedies and considered the merits of Sailley’s motion.
As to his COVID-19 argument, the district court was unpersuaded. Numerous courts held that a heightened susceptibility to COVID-19 may constitute extraordinary and compelling reasons for a reduction under 3582(c)(1)(A); however, this was not one of those cases.
Nonetheless, the district court concluded that the length of Salliey’s sentence, the substantial time he has already served, and the strong evidence of rehabilitation were collectively sufficient to constitute extraordinary and compelling circumstances for a sentence reduction. The court noted that Salliey was scheduled to be released in just over two years, and during his time incarcerated, Salliey had obtained his GED, completed several self-betterment courses and vocational and training programs.
Lastly, the court considered the factors enumerated under 18 U.S.C. 3553(a) to determine whether a sentence reduction was warranted. Although Salliey had been sentenced as an armed career criminal, the court found that Salliey’s evidence of post-sentence rehabilitation outweighed the negative 3553(a) factors. The court granted Salliey’s motion and reduced Salliey’s sentence to time served.
JEREMY’S NOTE: This case is a bit unusual as far as compassionate releases go. In circuits where the courts have held that compassionate release is not bound by U.S.S.G. 1B1.13, many acknowledge that factors such as a change in law or medical or familial circumstances may constitute extraordinary and compelling reasons for a reduction. However, all typically agree that rehabilitation alone is not sufficient for a reduction under 3582(c)(1)(A).
Here, Salliey argued that COVID-19 was one of the reasons for granting a reduction, but the district court dismissed that argument at the beginning of its analysis. The law had not changed so that Salliey would face a lesser sentence if convicted of the same crime today. Rather, the court determined that the length of the sentence, combined with the amount of time served and significant rehabilitation efforts, were sufficient to warrant a reduction.
This case is atypical, but significant. Importantly, a 3582(c)(1)(A) motion cannot be based solely on rehabilitation. However, in this case, the court gave great weight to the defendant’s extensive rehabilitation efforts and combined those with the length of the sentence and amount of time served. A prison sentence should be primarily focused on rehabilitation, not punishment. This decision is commendable for acknowledging this and granting relief.
3582 Compassionate Release even with 851 enhancements: United States vs. Juan Ledezma-Rodriguez, 3:00-CR-00071, Southern District of Iowa
Ledezma was charged in 2001 with a superseding indictment with violations of immigration, firearm and drug laws. The Government also filed two 851 notices for prior minor drug convictions. He was found guilty by a jury on some of the counts, and the court sentenced Ledezma to life imprisonment as statutorily required.
The court wrote a letter in support of his commutation. The court also urged the US Attorney to vacate his convictions under the Holloway Doctrine, United States v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014). Ledezma would face a mandatory minimum of just 15 years if sentenced today.
On June 1, 2020, through counsel, Ledezma reached out to the Bureau of Prisons, asking for an early release under 18 USC 3582. He argued, “(1) the fact he would not have received his life sentence under modern law; (2) his twenty years incarcerated; (3) his rehabilitation; (4) his need to care for his gravely ill mother; and (5) his risk of catching COVID-19 in prison constituted extraordinary and compelling reasons justifying release.” Ledezma then filed his motion for relief under 18 USC 3582 in district court. The government, “citing this Court's prior rulings on compassionate release motions and the “facts of this case,” the Government declined to make or “repeat” any specific arguments.”
The court determined that Ledezma satisfied the gate-keeping provision because thirty days have passed since the BOP received his request. His exhaustion of administrative rights meant that the court could address the merits.
Extraordinary and Compelling Reasons for 3582 Compassionate release
The court noted that Congress never defined what is “extraordinary and compelling.” The court noted that the commission provided a list of specific examples such as “terminal illness, an elderly inmate's rapidly declining health, and care for dependent family members.” The court also included a catch-all if “there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the” examples described. Further the United States Sentencing Commission never amended their guidelines after the FIRST STEP ACT because they do not have a quorum of voting members to change them. Given this, courts have determined that the Commission lacks an applicable policy statement regarding when a court can grant a compassionate release. Because of that, courts have determined that the court can determine whether any extraordinary and compelling reasons other than those delineated in USSG 1B1.13 warrant granting relief
The court determined that Ledezma’s life sentence was unjust. In this case, Ledezma had been found guilty for two prior offenses where he served a combined ninety days in jail. Those two offenses triggered a mandatory life sentence here. His drug offenses do not meet the standard for a “serious drug felony” under the FIRST STEP Act because he served less than a year for each offense. Ledezma would only have faced a mandatory 10 for the drugs and a consecutive 5 for the 924c. Having served in prison since 2000, Ledezma would be eligible for immediate release. “The Court understands the importance of finality in criminal proceedings. Even so, justice has a role, too.
Ledezma also argued that his substantial rehabilitation constituted an extraordinary and compelling reason. The court noted that “Rehabilitation of the defendant alone shall not be considered” sufficiently extraordinary and compelling to justify compassionate release. § 994(t) (emphasis added). Yet a “statute should be construed so that effect is given to all its provisions…This means that for the word “alone” to do any work—as it must—the statute allows courts to consider rehabilitation as part of a compassionate release motion. Thus, several courts, including this one, have found a defendant's rehabilitation to be part of the extraordinary and compelling reasons favoring release.”
The court noted that Ledezma has not incurred an infraction since 2014 and the Bureau of Prisons has downgraded his security classification as well. He also received the equivalent of a high school diploma and took advantage of the programming until it was shut down.
The court indicated that Ledezma’s prison had two cases of the virus. But the court also noted this public health crisis was difficult to control in prison facilities and that a member of the prison population was more likely to contract COVID-19 than a free person. “Thus, the presence of a once-in-a-hundred years pandemic in and around Defendant's facility cuts in favor of his release.”
Dependent family member
Ledezma indicated that he also had a family member with a debilitating medical condition. While he provided much about her medical condition he did not provide enough information to show that he needed to be released to take care of her. Despite this, the court determined that extraordinary and compelling circumstances existed.
The court also was required to consider if 3582 compassionate release relief comported with the 3553(a) factors. The court noted that Ledezma was forty-seven years old and was half as likely to be convicted of a crime when he was convicted of his latest offense. The court also noted that the need for the sentence imposed was weaker now given that he had already served five years more than the statutory mandatory minimum for his conduct. While Ledezma had also been deported three times, those did not trigger his life sentence. In addition, any lingering public safety concerns were moot because Ledezma would be deported following release.
The court GRANTED the 3582 compassionate release request, reduced the rest of Ledezma’s Sentence to time served, and ordered US Immigration and Customs Enforcement to be alerted of the date and time of his release.
Booker As an Extraordinary and Compelling Reason for Compassionate Release: United States vs. Patrick M. Vigineau
C.R. No. 97-cr-33-JJM-LDA, District of Rhode Island, 2020 WL 4345105. Mr. Vigneau was found guilty of engaging in a Continuing Criminal Enterprise and possession of marijuana with the intent to distribute as well as other crimes. He was sentenced to 365 months of incarceration and five years of supervised release. He filed a motion for release under 18 USC 3582(c)(1)(A).
Similarly to Ledezma, the court noted that the United States Sentencing Commission’s Sentencing guidelines are now incompatible with the statute, the court determined that it did not need to follow the outdated portion of USSG 1B1.13. When evaluating congressional intent, the court noticed that the FSA provision was entitled “Increasing the Use and Transparency of Compassionate Release[.]” The court reasoned that this, as well as other reasons, give the courts the ability to rule on an incarcerated person’s ability to seek a compassionate release.
The court also found that congress wanted the courts to reduce unusually long sentences, and to reduce sentences where amended guidelines suggest a shorter sentence. The court noted that a recent Sentencing Commission Report indicated that “[t]he national average sentence for marijuana trafficking offenders in 2017 was twenty-seven months.” Further, “one district court, in assessing a motion for compassionate release, noted the median lengths of sentences imposed in 2019 for a selection of especially heinous crimes: twenty years for murder, fifteen years for sexual abuse, and ten years for kidnapping.”
Impact of Booker
The court also noted that “following Booker, the ranges in the Sentencing Guidelines are no longer mandatory so long as a sentence follows statutory requirements. The Court in sentencing Mr. Vigneau was not allowed to consider a sentence outside the range. Thus, it is now proper for the Court to consider the fact that the Guidelines have changed–from mandatory to discretionary– in determining whether to grant compassionate release.”
Impact of Marijuana and his CCE Conviction
The court noted that a minority of states have legalized recreational marijuana but that more jurisdictions were likely to do so soon. While marijuana is still illegal federally, the court noted that it was unlikely that the court would have granted Vigneau the same amount of time today. Further, “According to Mr. Vigneau’s research, and not challenged by the government, no one has been charged with a continuing criminal enterprise in this District in over twenty years. The facts in the presentence report would most likely support a drug offense charge that would have had a Sentencing Guideline range much lower than the Guidelines applied in Mr. Vigneau’s sentencing in 1998 and without the twenty-year mandatory minimum for the CCE conviction.”
The court found that the rest of the requirements were also met and granted Vigneau 3582 relief.
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].
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