Compassionate Release While on Appeal: 18 USC 3582, FRCP Rule 37 and FRAP Rule 12.1

We’ve all been in the throws of compassionate release for several months. Over that time I’ve had several incarcerated persons reach out asking about a compassionate release while they are on direct appeal. I have come across a couple of cases that discuss how a compassionate release can go forward while on direct appeal.

The Issue: Appeals rob the district court of jurisdiction to hear a compassionate release

A district court is the court that has to hear and decide a compassionate release case. See United States v. Raia, 954 F.3d 594, 596 (3d Cir. 2020) (“We cannot decide Raia's compassionate-release motion in the first instance. Section 3582's text requires those motions to be addressed to the sentencing court, a point several Circuits have noted and Raia himself acknowledges. See, e.g., United States v. Richardson, 948 F.3d 733, 749 (6th Cir. 2020); United States v. Smith, 896 F.3d 466, 473 (D.C. Cir. 2018))”

But when a person gets a final judgment in a criminal case (the thing that the judge writes that sentences the person to prison time), the appeal of that is exclusive to the jurisdiction of the appellate courts. See 28 USC 1291:

“The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court…”

This means that under normal circumstances when a person files an appeal after the end of a criminal case the district court does not have the power to decide a compassionate release after the the case has been appealed. There are procedural remedies available:

Rule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal: United States vs. Hammond, 02-cr-00294 (D.C.)

Hammond was sentenced to 115 months in prison for possession of a firearm under 18 USC 922(g). The guidelines were mandatory at the time of his sentence and he was enhanced under 2K2.1 for a defendant who gad “at least two felony convictions of either a crime of violence or a controlled substance offense[,]” as those terms were defined in “§4B1.2(a) and Application Note 1 of the Commentary to §4B1.2[,]” see U.S.S.G. §2K2.1, comment. n. 5 (2002).”

In plain english Hammond was challenging the 2k2.1 enhancement for a then mandatory increase in the offense level to 24 convictions for a crime of violence. He used Johnson to seek vacate. The district court denied his 2255 motion and he was on an appeal of the denial of his 2255 earlier this year. A 3582 was filed earlier this year stating that he was seventy five years old and and had medical conditions that would make him at risk to have serious illness if he were to contract COVID-19.

Both the prosecution and the defense were in agreement that Fed. R. Crim. P. 37 allowed that a district court that could not grant a pending motion because of an appeal could issue an determinative ruling stating that it would grant the appeal if the district court had the ability to so. The court went on to determine that the case was properly before them and they had the ability to hear the compassionate release motion. The court went on to state “that it would grant the motion if the court of appeals remands for that purpose” and that his sentence would be reduced to a sentence of time served followed by concurrent terms of supervised release of three and five years, as ordered in the initial judgment in this case…”

Rule 37 states that

(a)Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.
(b)Notice to the Court of Appeals. The movant must promptly notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue.
(c)Remand. The district court may decide the motion if the court of appeals remands for that purpose.

The committee on notes states:

"In the criminal context, the Committee anticipates that Criminal Rule 37 will be used primarily if not exclusively for newly discovered evidence motions under Criminal Rule 33(b)(1) (see United States v. Cronic, 466 U.S. 648, 667 n.42 (1984)), reduced sentence motions under Criminal Rule 35(b), and motions under 18 U.S.C. § 3582(c). ‘
The rules go on to say “To ensure proper coordination of proceedings in the district court and in the appellate court, the movant must notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that the motion raises a substantial issue. Remand is in the court of appeals’ discretion under Federal Rule of Appellate Procedure 12.1.”

Federal Rule of Appellate Procedure 12.1: Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal

FRAP 12.1 States:

“(a) Notice to the Court of Appeals. If a timely motion is made in the district court for relief that it lacks authority to grant because of an appeal that has been docketed and is pending, the movant must promptly notify the circuit clerk if the district court states either that it would grant the motion or that the motion raises a substantial issue.
(b) Remand After an Indicative Ruling. If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has decided the motion on remand.”

So in the compassionate release sense, if your district court determines that they would grant a compassionate release if it was not barred by a pending appeal, then you must let the appellate court clerk know. The appellate court can send the case back down under this procedure in order to let the district court do what they indicated that they would do (in this sense, that means to grant a compassionate release motion). If the district court then grants the compassionate release motion then the parts must let the appellate court know.

Again, reviewing the notes by the committee notes on rules from 2009,

“The procedure formalized by Rule 12.1 is helpful when relief is sought from an order that the court cannot reconsider because the order is the subject of a pending appeal. In the criminal context, the Committee anticipates that Rule 12.1 will be used primarily if not exclusively for newly discovered evidence motions under Criminal Rule 33(b)(1) (see United States v. Cronic, 466 U.S. 648, 667 n.42 (1984)), reduced sentence motions under Criminal Rule 35(b), and motions under 18 U.S.C. §3582(c).” Recall that a covid compassionate release motion is under 3582(c)(1)(A).

This is what Raia should have done, even tough he still would not have won:

“Two days later, the District Court denied the motion, concluding that the pending appeal divested it of jurisdiction. In a footnote, however, the District Court offered that it would have granted the motion and released Raia to home confinement “[d]ue to the increased risk posed by a custodial term” in light of COVID-19, and because Raia’s offense “was non-violent and [Raia] has otherwise been a highly productive, charitable member of his community.” Order n.1, Mar. 26, 2020 (ECF No. 86).

Raia has not appealed that order. Instead, he filed a motion asking this Court to decide his compassionate release motion. Alternatively, he asks us to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice. He claims we have power to do so under Federal Rule of Appellate Procedure 3(a)(2), which notes: “An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal…

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1. That would allow the District Court to consider Raia’s compassionate-release request in the first instance. But any remand would be futile. As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.”

It is possible that if Raia had asked for a FRCP 37 definitive ruling then the district court could have given him a favorable one given that the court stated that they would have granted him a compassionate release. But it is also apparent that the appellate court would NOT have granted him remand because he did not reach out to the BOP and ask for a reduction in sentence 30 days before he filed a motion with the court. Even if you get a favorable “definitive ruling” by the district court pursuant to rule 37, the appellate court IS NOT REQUIRED to send it back down: remember that rule 37(c) states that

c)Remand. The district court MAY decide the motion if the court of appeals remands for that purpose (emphasis added).

and see also FRAP rule 12.1:

(b) Remand After an Indicative Ruling. If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals MAY remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal (emphasis added). They may do it but they are not required to.

Going back to the Hammond case in the DC District court, it appears that this process was done in a matter of days and unopposed by the government. Hammond’s counsel asked for a remand under 12.1, they did that remand and the district court granted the compassionate release. Then Hammond asked for a voluntary dismissal of his appeal.

The Path Forward

So what should a person do if they are seeking a compassionate release while on direct appeal?

• Get all of your compassionate release documents together: letters of support, release plan, safety plan, admin remedies, etc.
• Reach out to the BOP as pursuant to 18 USC 3582(c)(1)(A).
• After 30 days file a motion for a definitive ruling under FRCP 37
• If the definitive ruling is in your favor then ask for a remand under FRAP 12.1.
• If the remand is granted then ask to have the compassionate release granted.
• If the compassionate release is granted or denied then reach out and tell the appellate court for future procedures.