An Extraordinary and Compelling Circumstance: 2nd Circuit Decides Zullo’s Compassionate Release

In Zullo, the Second Circuit court determined that a compassionate release motion could go forward without BOP approval.
Zullo Compassionate Release

On Friday, the Second Circuit made an important decision in the Compassionate Release realm in 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

In 2010, Zullo was sentenced to a mandatory 10 years for a drug charge and a mandatory 5 years for a gun charge. The court stated at two separate sentencing hearings that the court believed 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 the court determined that Guideline 1B1.13 required a motion by the BOP. Zullo appealed to the Second Circuit.

The History of Compassionate Release

As many of you know, the original statute that authorized a compassionate release indicated that any motion for compassionate release had to be made by the BOP Director. The court noted the 2013 report from the Office of the Inspector General that stated that on average, 24 incarcerated people per year were released on the BOP’s motion. While the BOP revamped several portions of the compassionate release procedures, only 83 of the over 2000 people who met the revised criteria of being over 65 and having served half of their sentence were released by compassionate release.

In 2018 the FIRST STEP Act was passed. The relevant portion of the FIRST STEP Act to this discussion was called “Increasing the Use and Transparency of Compassionate Release.” The court also stated:

While [the] BOP is still given the first opportunity to decide a compassionate release motion, and may still bring a motion on a defendant’s behalf, under Congress’ mandate a defendant now has recourse if BOP either declines to support or fails to act on that defendant’s motion. As the Act states, a defendant may go to court “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier ….” 18 U.S.C. § 3582(c)(1)(A).

However application note 1(D) of USSG 1B1.13 still says the following:

(D) Other Reasons.—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).

USSG 1B1.13

The impact of the conflict of Application note 1(D) and the text of 3582 for Compassionate Releases

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 was that the text of the statute 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. The court found that the language was outdated and could not be fully applicable:

“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.”

The Court did not accept the government’s “severability” argument

Next 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 by severing the conflicting portions of the guideline from application note 1(D):

“First, because 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, for 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 that severability was a question of legislative intent. When looking at the “the long history of the compassionate release provisions, the statements of Congresspersons, including a First Step Act co-sponsor, and the text of both the First Step Act and the Guideline,” the intent becomes clear:

“[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.”

The court dispatched the government’s remaining arguments

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 that, 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 absuse of discretion. While it was true that Zullo did cite his rehabilitation as a reason for release, the court 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.” Further these arguments may also interact with the present coronavirus pandemic.

The Second Circuit VACATED the district court’s decision and remanded for further proceedings.


So the impact here is that because the Second Circuit has indicated that 1B1.13 Application Note 1D only applies when the BOP is filing a motion, that means that in the Second Circuit that a person is not constrained to what is in application note 1(D). Many district courts have already decided this (Ukrevich, Maumau, etc) but this is the first time that an appellate court has decided it.

To my knowledge, this is the first appellate court to reject the government’s “substantive vs procedural” arguments. Which is fine with me because I did not find that persuasive when I was listening to the oral arguments in “McCoy/Bryant” in the 4th.

If you are in the Second Circuit (NY, Vermont, Conn) and the government is making these types of arguments then your reply brief should immediately reference this case. I would even consider a notice for supplemental authority if you can do it. This case is mandatory authority there. This case does NOT mean that everyone wins their compassionate release in the second circuit, it only means that the court can make a determination as to compassionate release there even if the BOP did not file the motion on your behalf. You still have to meet the rest of the considerations (extraordinary and compelling circumstances, not a danger to the community, 3553(a) factors).

If you’re in a place like the 4th then this case can be persuasive authority until McCoy/Bryant is ruled on (hopefully in favor of the incarcerated people).

Will the prosecutors appeal this decision? Maybe? I could see this going at least to an en banc court, maybe to the Supremes. This case potentially has a big impact. The prosecutors took Dimaya and Davis all the way up even after Johnson was decided. Expect no quarter from them.

Should you file a second motion on your case if you were denied a compassionate release in the past? It depends on why your court denied you. If your court denied you ONLY for this reason then you could use the case law here to make an argument. If the judge also stated tat your 3553(a) factors made you unsuitable then that is a different matter.

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