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Fifth Circuit Orders Limited Remand Where District Court’s Denial of First Step Act Relief Unclear

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ordered a limited remand where the U.S. District Court for the Western District of Texas denied Gabriel Perez’s petition under § 404 of the First Step Act of 2018 (“FSA”) without adequately explaining its reasons.

Perez was convicted of conspiracy to possess with intent to distribute more than five kilograms of cocaine and 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(A), and he was sentenced to 240 months in prison and 10 years of supervised release.

Perez moved for relief under the FSA; he established his eligibility for relief and cited his good conduct in prison. He asserted that the 18 U.S.C. § 3553(a) factors warranted a sentence reduction. Perez also argued that he had increased susceptibility to COVID-19 and that some men in his unit had died from the virus.

In its response, the Government focused almost exclusively on the COVID-19 segment of Perez’s argument, treating Perez’s motion as one for compassionate relief under 18 U.S.C. § 3582. The Government argued relief wasn’t warranted “because Perez had failed to demonstrate he was no longer a danger to the community and because the § 3553(a) factors did not warrant a reduction.”

Perez stated in his reply that he sought relief solely under the FSA and disavowed any reliance on compassionate release as a basis for his motion. The District Court’s order stated only: “[a]fter considering the applicable factors provided in § 404 [sic] and 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission,” Perez’s motion is denied “on its merits.” Perez appealed, arguing the basis of the District Court’s decision was unclear because there aren’t any “applicable policy statements” with regard to motions brought under the FSA; however, “applicable policy statements” are a part of compassionate release consideration.

The Fifth Circuit observed “[t]he First Step Act ‘gives courts discretion to apply the Fair Sentencing Act of 2010 to reduce a sentence for certain covered offenses.’” United States v. Abdul-Ali, 19 F.4th. 835 (5th Cir. 2021). “Perez would be eligible for a discretionary reduction under the First Step Act if ‘(1) he committed a covered offense; (2) his sentence was not previously imposed or reduced pursuant to the Fair Sentencing Act; and (3) he did not previously file a motion under the First Step Act that was denied on the merits.’” United States v. Batiste, 980 F.3d 466 (5th Cir. 2020).

Although Perez demonstrated he was eligible for relief, the decision whether to reduce a prisoner’s sentence under the FSA is discretionary. Batiste. And while “district courts need not always provide a detailed explanation of why they have denied a motion, sometimes ‘review is possible … only with a statement of reasons for the denial.’” Id.

In the present case, the District Court’s order said that it had “consider[ed] the applicable factors provided in § 404 [sic] and 18 U.S.C. § 3553(a),” which would have been sufficient, but the district court’s order also stated it had considered “applicable policy statements issued by the Sentencing Commission,” the Court noted. The Court explained that the FSA has no “applicable policy statements” for the District Court to consider, and the court’s order indicated it may have erroneously reviewed Perez’s motion under the standard for compassionate release. If the District Court applied the wrong law in deciding Perez’s FSA motion, it was an abuse of discretion, the Court stated. Abdul-Ali. Thus, the Court concluded that the District Court’s “reference to its consideration of ‘the applicable policy statements’ leave the grounds for its decision unclear.”

Accordingly, the Court remanded the case to the District Court for the limited purpose of allowing it to enter reasons for denying Perez’s motion. See: United States v. Perez, 27 F.4th 1101 (5th Cir. 2022). 

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