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Second Circuit Announces Compassionate Release Motion by Prisoner Not Constrained by Outdated Guideline § 1B1.13, Application Note 1(D)

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held on September 25, 2020, that the outdated compassionate release guideline under U.S. Sentencing Guidelines Manual § 1B1.13, Application Note 1(D) (“Application Note 1(D)”), doesn’t control when a compassionate release motion is filed by a federal prisoner, rather than the warden.

When Jeremy Zullo was sentenced a decade ago, the sentencing judge said, “it’s difficult for me to sentence somebody like you to 10 years in prison frankly.” The judge recognized that such a long sentence didn’t fit Zullo’s drug and firearm conviction with his clean criminal history but was obligated to impose at least 10 years, giving him 10 and a half years. The Government then appealed that sentence, and on remand, the judge was ordered to hand Zullo a five-year mandatory sentence in addition to the mandatory 10-year sentence for a total of 15 years in prison without parole.

After the First Step Act passed in 2018, opening the door for prisoners to file for compassionate release when the federal Bureau of Prisons (“BOP”) refuses to do so, Zullo filed a motion under 18 U.S.C. § 3582, giving the sentencing judge a chance to reduce his seemingly unfair sentence.

He cited his good conduct and his rehabilitation as key factors, along with the judge’s reluctance to impose the sentence earlier.

The U.S. District Court for the District of Vermont, however, rejected Zullo’s motion. It concluded that “his primary complaint that his sentence is too long in the first place cannot qualify as an extraordinary and compelling circumstance.” The court quoted Application Note 1(D), the sentencing Guideline that provides guidance for compassionate release motions under § 3582. That Guideline defines “extraordinary and compelling circumstances,” which were mostly medical-based reasons. 

On appeal, the Court stated that the question before it was “whether the First Step Act empowered district courts evaluating motions for compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by [USSG § 1B1.13, Application Note.1(D)], which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling.” The Court held that “Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act….”

Prior to the First Step Act, a compassionate release motion could only be filed by the BOP under § 3582, and the limited criteria under § 1B1.13, Application Note 1(D) controlled. But Congress, after reports showed the BOP rarely filed compassionate release motions, expanded compassionate release to allow motions by prisoners.

The Court then set out to reconcile § 1B1.13 with the new § 3582 statute. Preferring to save the Guideline if possible, the Court removed § 1B1.13 as controlling when a prisoner files the motion. Instead, § 1B1.13 only applies when the BOP files a compassionate release motion, the Court instructed. 

The Court explained: “motions by the BOP still remain under the First Step Act, [but] they are no longer exclusive … we read the Guideline as surviving, but now apply only to those motions that the BOP has made.” It added: “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion.”

In fact, the Court recognized that Congress took the BOP out of the equation when a prisoner files a compassionate release motion. “When the BOP fails to act, Congress made the courts the decision maker as to compassionate release,” the Court stated. “Motions not made by the BOP Director [fall] outside of section 1B1.13’s scope.”

The Court also recognized that compassionate release doesn’t mean “release.” “It bears remembering that compassionate release is a misnomer,” the Court said. The compassionate release statute “in fact speaks of sentence reductions.” The district court has options to reduce or terminate a sentence and impose probation or supervised release. The court has “broad” discretion in a remedy, the Court reiterated.

Accordingly, the Court reversed the district court’s decision and remanded for further proceedings consistent with its opinion. See: United States v. Brooker, 976 F.3d 228 (2d Cir. 2020). 

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Related legal case

United States v. Brooker



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