I find it important to continue to discuss these compassionate release grants. This compassionate release deals with important topics such as the coming winter months and the 3553(a) factors.
Kirschner’s Offense Conduct and Prison Record
Kirschner pled guilty to one count of conspiracy to advertise child pornography. and one count of conspiracy to distribute child pornography. He was sentenced to 124 months in the BOP and a life term of supervised release. He had served 97 months of his sentence as of the granting of this order. He had a clear disciplinary record in the BOP and he had completed the electrical apprenticeship program and graduated from Jackson College with an Associates of Applied Science in Business Administration and Associates In General Studies. He planned to live with his sister at a place approved by the probation department.
Kirschner was housed at FCI Milan. The BOP’s website (as of July 15, 2020) indicated that 80 inmates there had recovered from COVID-19, three inmates had died from it and 13 inmates currently have it. Kirschner has COPD, hypertension, and obesity, each of those creating an increased risk of severe illness from COVID-19. ““The CDC does not differentiate between mild, moderate, or severe forms of these conditions, nor does it exclude from the at-risk group individuals whose conditions are managed with medication.” Kirschner filed a request for a reduction in sentence of FCI Milan which was denied. The request was made over 30 days from the date of the court order so the court determined that the matter was ripe.
Did Kirschner Experience Extraordinary and Compelling CIrcumstances?
The court noted that cold weather can exacerbate COPD, noting a study from the NIH and well as a Johns Hopkins study. Further, the court noted that “Mr. Kirschner’s COPD symptoms may become more severe this fall and winter at FCI Milan due to Michigan’s cold winter climate.” While the government argued that Kirschner’s COPD was effectively managed by medication, the Court noted that the CDC Guidelines make no distinction between COPD that is managed by medication and COPD that is not managed. Further, the court noted that the CDC guidelines define obesity as BMI of 30 or higher. The court also noted that Kirschner was slated to be released in 7 months. The court looked at all of the things and the court determined that he had experienced extraordinary and compelling circumstances that warranted a reduction.
Was Kirschner a danger to the community?
Next the court evaluated whether the reduction was a danger to any other person or the community. The court noted that the government does not argue that Mr. Kirschner’s early release would present a danger to the safety of any person or the community and the court noted that Mr. Kirschner had a lack of disciplinary history in prison, had educational and rehabilitation efforts taken and had arrangements to live with family. In addition, Mr. Kirshcner was released on his own recognizance for more than 18 months while his criminal case was pending and again while pending designation by the BOP. As a result, the court found that his release would not present a danger to the public.
Did the 3553(a) sentencing factors support a release?
Finally, the court considered the 3553(a) factors. The court noted that the offense conduct was extremely serious and “the nature and circumstances of the crime were horrific.” But the court also noted that he would be under stringent terms of court supervision for the rest of his life. His sentence of 124 months was below the mandatory minimum and a result of his acceptance of responsibility, cooperation and a binding plea agreement. As a result, the court determined that the applicable 3553(a) factors supported release.
The court granted Kirschner’s motion for compassionate release and ordered his release by 5:00 PM the next day. 1:10-cr-00203-JPH-MJD
One of the biggest things to note here is that the court noted that cold weather could both exacerbate COPD. Cold weather could may also cause more colds, sniffles and as such, respiratory droplets. This may be something that is appropriate in your motions as we head into autumn and winter.
The second thing that I have noticed is not to forget the second and third prongs of the compassionate release analysis. The third prong of the analysis is whether the 3553(a) factors warrant a reduction. The 3553(a) factors are:
(1)the nature and circumstances of the offense and the history and characteristics of the defendant;
(2)the need for the sentence imposed—
(A)to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B)to afford adequate deterrence to criminal conduct;
(C)to protect the public from further crimes of the defendant; and
(D)to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3)the kinds of sentences available;
(4)the kinds of sentence and the sentencing range established for—
(A)the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines—
(i)issued by the Sentencing Commission pursuant to section 994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(ii)that, except as provided in section 3742(g), are in effect on the date the defendant is sentenced; or
(5)any pertinent policy statement—
(A)issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(B)that, except as provided in section 3742(g), is in effect on the date the defendant is sentenced.
(6)the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7)the need to provide restitution to any victims of the offense.
Some of your factors may lean against receiving a reduction, especially the offense conduct depending on the case. It is important to bring the other factors to the court’s attention. Remember, you are asking the court to reduce your sentence all the way down to zero days in prison remaining. It is a lot different from Amendment 782 back in the day where you may have asked the court to reduce your sentence several years.
The third thing that has come up on a few of our cases is what happens if you have a 2255 that is pending at the same time. The court will consider each as their own separate matter, meaning that the court will consider the 3582 and the 2255 motion each on their own terms and perogative.
About the Law Office of Jeremy Gordon
The Law Office of Jeremy Gordon has been practicing federal criminal appeals and post-conviction law since 2012. We have had favorable outcomes in more than 70 cases in the past four years. Our entire staff is committed to providing excellent service to our clients and their families. We encourage you to reach out to us today to visit with us on how we might be able to help you or your loved one get the representation they deserve. For more information on appeals please click here. If you can also add us on Facebook or Twitter.
In Kirschner, the District of Indiana granted 3582 compassionate release relief to a person due to coronavirus concerns.
In United States vs. Alam, the 6th Circuit upheld a dismissal of a compassionate release case for failure to wait 30 days.
In United States vs. Fischman, 4:16-cr-00246-HSG, the Northern District of California determined a way that an inmate can receive 3582 relief even when they are COVID-19 positive
In US v. Huntley, the District of Columbia granted 3582 Compassionate Release relief to a COVID-19 Positive Inmate.
On April 22, 2020, the Acting Assistant Director of the Correctional Programs Division and the Assistant Director of the Reentry Services Division for the BOP released a memorandum in regard to placing inmates on home confinement due to the COVID-19 pandemic. This memorandum introduced some new guidelines to the previously existing order.