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Fourth Circuit: Disparate Sentence of 30 Years for Two § 924(c) Convictions Constitutes ‘Extraordinary and Compelling Reason’ for Early Release and § 3553(a) Sentencing Factors ‘Overwhelmingly’ Favor Sentence Reduction

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that Kelvin Brown’s disparate sentence of 30 years on two convictions for violating 18 U.S.C. § 924(c) created an “extraordinary and compelling reason” for his early release, and the 18 U.S.C. § 3553(a) sentencing factors overwhelmingly favored a sentence reduction.

In May 2014, Brown was indicted on 10 drug-related felonies and on two unlawful possession of a firearm offenses in relation to the drug offenses in violation of § 924(c). A jury convicted the then 34-year-old Brown on all counts except for one count of possession with intent to distribute crack cocaine. On the nine drug-related offenses the U.S. District Court for the Eastern District of Virginia imposed a term of 327 months’ imprisonment.

At the time of Brown’s sentencing, § 924(c) prescribed a five-year mandatory minimum sentence on the first § 924(c) violation and a consecutive 25-year mandatory minimum for the subsequent violation of § 924(c) “even if the first § 924(c) conviction was obtained in the same case.” United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). Therefore, the District Court imposed a term of 360 months on the two § 924(c) convictions to be run consecutively to the 327 months’ imprisonment for the nine drug-related offenses for an aggregate sentence of 687 months (about 57 years). Brown’s judgment was affirmed on appeal.

In 2020, Brown filed a pro se motion for compassionate release (“Letter Motion”) under 18 U.S.C. § 3582(c)(1)(A)(i), arguing his preexisting health conditions placed him in “a greater danger of contracting and possibly dying from complications that accompany the COVID-19 virus.” Additionally, he argued that he was serving “a disparate sentence, which support[ed] his early release.” The First Step Act of 2018 clarified that “the 25-year mandatory minimum” for a subsequent § 924(c) offense “applies only when a prior § 924(c) conviction arises from a separate case and already has become final.” McCoy. Brown argued he “would be subject to two five-year mandatory minimums, rather than a five-year and a twenty-five-year mandatory minimum if sentenced for his two § 924(c) offenses today,” and thus, he was subject to disparate treatment.

The District Court denied Brown’s Letter Motion, and for reasons not relevant here, the Fourth Circuit reversed and remanded.

The District Court again denied Brown’s Letter Motion. As to his preexisting health conditions placing Brown in greater danger of contracting and possibly dying from COVID-19, the District Court relied on the fact that because Brown had refused the Pfizer-BioNTech vaccine, he could not “claim that he must be released because of the risk of complications while refusing a vaccine that could virtually eliminate that risk.” And as to the disparate sentence argument, the District Court concluded that “the § 3553(a) factors here do not support early release.” To support its finding, the court cited that Brown had served only 11% of his sentence, which was not enough to deter others from similar activity of large-scale drug distribution, and Brown’s multiple firearms convictions suggested that community safety would be affected by his early release. Brown appealed again.

The Court began its discussion by noting the general rule that a sentencing court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). But Congress has provided an exception when “extraordinary and compelling reasons warrant such reduction.” Id. Under the First Step Act, prisoners can now file motions for compassionate release themselves directly with the appropriate District Court after having exhausted their administrative remedies. United States v. Malone, 57 F.4th 167 (4th Cir. 2023). A District Court must conclude that there are “extraordinary and compelling reasons” and that release is proper under the 18 U.S.C. § 3553(a) sentencing factors in order to grant compassionate release. United States v. Bethea, 54 F.4th 826 (4th Cir. 2022).

The Court affirmed the District Court’s decision regarding Brown’s argument that COVID-19 and his health conditions warranted compassionate release.

It then turned to Brown’s disparate sentence argument, stating the argument is relevant to both the extraordinary and compelling inquiry and the § 3553(a) factors. As such, the District Court’s failure to analyze either step in connection with his disparate sentence argument was error, the Court concluded. It then exercised its discretion to correct the error. United States v. Worley, 685 F.3d 404 (4th Cir. 2012).

The Court first addressed the extraordinary and compelling inquiry. The McCoy Court affirmed the grant of compassionate release for two prisoners, explaining that the respective District Courts properly considered two separate aspects of the prisoners’ § 924(c) sentences in applying the extraordinary and compelling standard: (1) “the sheer and unusual length of the [prisoners’] sentences” and (2) “the gross disparity between those sentences and the sentences Congress now believes to be an appropriate penalty for the defendants’ conduct.” McCoy.

The Court stated that both of them are present in Brown’s case. It was concerned with “the sheer and unusual length” of Brown’s sentence, noting that he was 34 years old at the time of receiving a sentence of 57 years (functionally a life sentence) for drug distribution and gun possession offenses. However, the national average for more serious crimes such as murder was about 22 years and kidnapping about 15 years.

The Court reasoned: “While we do not make light of the serious conduct for which Brown was convicted, we cannot ignore the extraordinary fact that Brown, who was not charged with causing any physical violence or injury, is serving a sentence more than two-and-a-half times the length of today’s average murder sentence. If that were not enough, Brown also received a far lengthier sentence than his codefendants, each of whom was sentenced to less than twenty years of incarceration – nearly a third of Brown’s sentence – and some of whom were sentenced to ten years or less.”

The Court also reasoned that there is clearly a “gross disparity” between Brown’s sentence and “the sentence Congress now believes to be an appropriate penalty for [his] conduct.” McCoy. “If sentenced today, Brown would have been subject to a ten- (rather than a thirty-) year mandatory minimum for his two § 924(c) convictions,” according to the Court. The Court explained that the 20-year disparity is largely the result of Congress’ conclusion that sentences like Brown’s are unfair and unnecessary, i.e., “a legislative rejection of the need to impose sentences under § 924(c), as originally enacted, as well as a legislative declaration of what level of punishment is adequate.” McCoy.

The Court concluded: “While Congress did not make this change to § 924(c) retroactive, § 3582(c)(1)(A) allows for ‘individual relief’ based on a § 924(c) sentencing disparity ‘in the most grievous cases.’ The sheer length and disparate nature of Brown’s sentence makes clear that this is such a case.”

However, considering the severity of Brown’s criminal history and the nature of his charged conduct, the Court recognized that reducing his sentence to “time served might be too strong a medicine for remedying that disparity.” Since § 3582(c)(1)(A) “allows for any sentence reduction up to and including time served,” the Court balanced the severity of his conduct with the nature of the disparity and determined a sentence reduction of 20 years was appropriate. A sentence of 37 years – instead of 57 years – satisfies the § 3553(a) factors, i.e., “‘because the risk of recidivism is inversely related to an inmate’s age,’ Brown’s release at over 70 years of age should further alleviate the district court’s concern for the risk to public safety posed by Brown’s release,” the Court stated.

Accordingly, the Court reversed and remanded to the District Court with instructions to grant Brown’s motion and reduce his sentence by 20 years. See: United States v. Brown, 78 F.4th 122 (4th 2023).

 

Editor’s note: Anyone interested in the “extraordinary and compelling reasons” standard and the application of the § 3553(a) factors in connection with a disparate sentence argument is encouraged to read the Court’s full opinion, in which it declares that “Brown’s disparate sentence so clearly meets” the forgoing standards that “no analysis or explanation could persuade us” that compassionate release could be appropriately denied.   

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