Jeremy Gordon

Eleventh Circuit Makes Pending Compassionate Release Split in Bryant

The Eleventh Circuit ruled that USSG 1B1.13 is an applicable policy statement that applies to compassionate release motions brought by incarcerated persons in Bryant, potentially dooming COVID and Stacked 924c motions filed by inmates and their lawyers.

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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:

  1. he would not be subject to a 25-year mandatory minimum if he were sentenced today;
  2. he received a higher sentence than some of his co-conspirators because he chose to go to trial; and
  3. 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

Jeremy’s Notes:

What Happens Next for Bryant? 

From the look of Federal Rule of Appellate Procedure 35, Bryant should be able to file a Petition for Rehearing En Banc.  That rule states:

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

The decision feels like it runs afoul of (B) here.  So Bryant’s counsel could file for an en banc hearing. 

Bryant could also seek certiorari, that is, for the Supreme Court to hear the case, citing the circuit split.  I think that Cert would be granted here. For the Supreme Court to hear and decide this would take over a year most likely. 

Impact on Currently Pending Compassionate Release Motions   

The answer to this depends on where your case is being heard.  If your case is in the Eleventh Circuit then you are most likely going to be on hold pending all of this.  I believe that some further action will be taken here whether it’s an en Banc petition or seeking the Supreme Court’s ruling on this. 

If you have a COVID motion that is pending then I would not give up hope.  I would continue to engage in social distancing and being as careful as possible.  The CEO of Pfizer has indicated that Booster Shots may be necessary to protect against COVID-19:

“A likely scenario is that there will be likely a need for a third dose, somewhere between six and 12 months and then from there, there will be an annual revaccination, but all of that needs to be confirmed. And again, the variants will play a key role,” he told CNBC’s Bertha Coombs during an event with CVS Health.”

Source:  Pfizer CEO says third Covid vaccine dose likely needed within 12 months, https://www.cnbc.com/2021/04/15/pfizer-ceo-says-third-covid-vaccine-dose-likely-needed-within-12-months.html

So engage in as much safety protocols as you can on your own and watch this space for more updates on this case.  No one asked me, but I (obviously) stand with the majority of district and appellate courts that have ruled the opposite of this decision. 

Update:  Bryant Files Supreme Court Cert Petition

Bryant has filed a Supreme Court certiorari Petition.  This means that he has asked the Supreme Court to hear the case.    Here are some excerpts:

The circuit conflict shows no sign of abating. In fact, the D.C. Circuit issued its opinion after the court of appeals below issued its decision in this case. Joining the majority of other courts of appeals, the D.C. Circuit held that the inapplicability of Section 1B1.13 is “plain on its face” because, “[b]y its terms, the policy statement applies only to motions for compassionate release filed by the Bureau of Prisons, not by defendants.” Long, 2021 WL 1972245, at *8.

[…]

To begin with, the court of appeals engaged in a flawed, superficially textualist inquiry by focusing on dictionary definitions of the word “applicable” and then asking the wrong question. See App., infra, 13a. For instance, reasoning that “applicable” means “capable of being applied,” the court concluded that, simply because some of the “substantive standards” within the policy statement could be applied by a district court, the policy statement was therefore “applicable.” Id. at 13a-14a. But the salient question here is whether the policy statement itself is applicable to defendant-filed motions that the Sentencing Commission never contemplated. As the D.C. Circuit explained, “[i]t plainly is not.”

View the Supreme Court Docket here.

View the Petition here

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