Another notable (but ultimately disappointing) ruling about sentence reductions under § 3582(c)(1)(A) after FIRST STEP Act
by Professor Douglas A. Berman, Sentencing Law and Policy blog (sentencing.typepad.com)
As regular readers know, in prior posts I have made much of a key provision of the FIRST STEP Act which now allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons. I see this provision as such a big deal because I think, if applied appropriately and robustly, this provision could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.
But in order for § 3582(c)(1)(A) to have a significant impact, federal judges will need to fully embrace and give full effect to their new authority to "reduce the term of imprisonment" whenever and wherever they find that "extraordinary and compelling reasons warrant such a reduction." I have flagged here and here and here some notable examples of judges finding notable reasons sufficient to reduce a sentence. But now I have to note a notable new ruling in which a notable judge seems to conclude there are "extraordinary and compelling reasons" to warrant a sentencing reduction, but then still decides not to grant a reduction for reasons that do not seem justified by the provisions of § 3582(c)(1)(A).
This new ruling comes in US v. Brown, No. 4:05-CR-00227-1, 2019 WL 4942051 (S.D. Iowa Oct. 8, 2019), and it is authored by Senior District Judge Robert Pratt. Notably, Judge Pratt was the district judge in the Gall case who gave full effect to the Booker ruling and whose non-incarcerative decision there was ultimately vindicated by SCOTUS. In this new Brown case, Judge Pratt writes an extended, thoughtful opinion about compassionate release and the changes to § 3582(c)(1)(A) brought by the FIRST STEP Act. In so doing, Judge Pratt states that "much about Defendant's situation is extraordinary and compelling" and yet still "the Court concludes it cannot exercise its discretion to grant release at this time."
The Brown opinion explains the basis on which Daniel Brown claims his situation is "extraordinary and compelling": (a) his behavior for a dozen years in prison was "exemplary," (b) he "suffered a botched surgery while incarcerated" (though he can still care for himself in prison) (c) "his daughter is without a parent" (though an adult who cares for herself) and (d) "he faces a sentence far longer than he would ever receive under modern law." This last point is a function of Brown having received an extra 300 months (25 years!) because of stacked 924(c) gun counts that would no longer stack now after the FIRST STEP Act. On this point, Judge Pratt further notes that the judge who originally sentenced Brown "concluded the additional 300 months' imprisonment from the second § 924(c) count was 'far greater than was necessary to achieve the ends of justice'." And for good measure, as Judge Pratt notes, Brown's "co-defendant, who eventually ran his own drug operation, was released in April 2018."
This all sure seems to me to be "extraordinary and compelling reasons [that] warrant a reduction" under 18 U.S.C. § 3582(c)(1)(A), and Judge Pratt essentially says as much. But, disappointingly, after making a strong factual record on Brown's behalf, Judge Pratt declines any reduction of Brown's original 510-month sentence with this reasoning:
In this case, compassionate release nevertheless is premature because even if the First Step Act applied retroactively, Defendant would still be in prison. With a lone § 924(c) count, Defendant still faced 210 months in prison. ECF No. 118. Even rounding up to the nearest month and including good conduct credits, Defendant has served 167 months. That is a long stretch by any measure, and perhaps more than appropriate for Defendant’s crimes. Regardless, because Defendant would still be in prison under modern law, any sentencing disparity created by § 924(c) stacking does not, at least yet, provide an “extraordinary and compelling reason” for compassionate release. Thus, despite discretion to consider a broad range of factors, the Court declines to grant Defendant’s motion at this juncture.
This reasoning seems deeply misguided to me: Daniel Brown has not moved in this case for the First Step Act to be applied retroactively, because (disappointingly) Congress has not provided for the Act to be applied retroactively. Rather, Brown has moved for a sentence reduction under § 3582(c)(1)(A) because Congress has provided for judges to be able to “reduce [his] term of imprisonment” if and whenever a judge finds “extraordinary and compelling reasons warrant such a reduction.” Judge Pratt suggests Brown has made such a showing and he even suggests that Brown has already served more time than is appropriate for his crimes. But, still, Judge Pratt refuses to use the legal tool available to him to reduce Brown’s sentence, and so Brown is now still slated to serve nearly another 30 years in prison(!) that neither Congress nor any judge views as in any way justified by any sound sentencing purposes.
Critically, though 18 U.S.C. § 3582(c)(1)(A) is often called a "compassionate release" provision, there is no requirement in the statute that a judge order a sentencing reduction in the form of a "time served" sentence. All the statute says is that a judge is authorized to "reduce the term of imprisonment ... after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and compelling reasons warrant such a reduction." If Judge Pratt's concern was that section 3553(a) factors did not justify reducing Brown's sentence below 210 months, he still could have granted him relief by reducing his sentence from 510 to 210 months.
Because Judge Pratt used terms like “not yet” and “at this juncture” and “at this time,” I am hopeful that Judge Pratt could and would entertain a renewed § 3582(c)(1) from Brown in four years when he has served 210 months of imprisonment. Notably, there is no clear law right now about whether and when there are limits on how many times a defendant can bring a motion for sentence reduction pursuant to § 3582(c)(1)(A). But since I think the law clearly supports granting his motion now, I am disappointed Judge Pratt did not exercise his discretion in this case in a manner similar to how he did in Gall.
A few prior related posts on § 3582(c)(1)(A) after FIRST STEP Act:
- Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
- Sad start to what should become happier compassionate release tales after passage of FIRST STEP Act
- Encouraging new reports about encouraging new compassionate release realities thanks to FIRST STEP Act
- Highlighting how judges can now bring needed compassion to compassionate release after FIRST STEP Act
- Federal judge pens extraordinary and compelling order requesting US Attorney to vacate old stacked 924(c) conviction in extraordinary and compelling case
- Is anyone collecting and analyzing sentence reduction orders under 3582(c)(1) since passage of the FIRST STEP Act?
- Good day for thinking hard about sentencing second looks and second chances
- New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
- District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing LWOP sentence under 3582(c)(1)(A)
UPDATE: I was able to secure a copy of the ruling in Brown, which can be accessed here: Download Brown Compassionate releaseANOTHER UPDATE: A month after this ruling, another District Judge in Nebraska considering similar facts granted a reduction in sentencing in US v. Urkevich, No. 8:03CR37, 2019 WL 6037391 (D. Neb. Nov. 14, 2019). That ruling is discussed in this post: Another District Court finds statutory sentence reform among "extraordinary and compelling reasons" for reducing sentence by 40 years under 18 U.S.C. § 3582(c)(1)(A).
Douglas A. Berman holds the Newton D. Baker-Baker & Hostetler Chair in Law and is the Drug Enforcement and Policy Center Director at The Ohio State University Moritz College of Law.
This article was originally published October 9, 2019, on the Sentencing Law and Policy blog (sentencing.typepad.com), an Affiliate of the Law Professor Blogs Network; reprinted with permission. Copyright, Douglas A. Berman