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Fourth Circuit: Denial of Motion for Compassionate Release Abuse of Discretion Where District Court Failed to Properly Address Numerous Health Issues, Advanced Age, and Relevant § 3553(a) Factors

by Douglas Ankney

The U.S. Court of Appeals for the Fourth Circuit held that a District Court’s denial of a motion for compassionate release was an abuse of discretion where the District Court concluded that Lonnie Edward Malone’s numerous health conditions did not provide extraordinary and compelling reasons for release and where the District Court did not recognize that the relevant factors of 18 U.S.C. § 3553(a) favor release.

In May 2008, Malone was sentenced to 330 months in prison for possession of a short-barreled shotgun in furtherance of a drug-trafficking offense and for conspiracy to distribute 50 grams or more of a mixture containing methamphetamine. In 2019, the almost-69-year-old Malone moved, pro se, for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A).

Malone explained his extraordinary and compelling reasons were his health conditions, viz., he had colon-rectal cancer, that a surgery sewed his rectum shut, and he now lived with a colostomy bag permanently affixed to his body. His medical records revealed he had cystic kidney disease, hernia, malignant neoplasm of rectum, hypertension, morbid obesity, neoplasm of uncertain behavior, hyperlipidemia, and other specified disorders of the liver.

He recounted countless issues with the colostomy bag, five surgeries to remove and reinstall it, and an instance where the bag blew off from its port, spraying himself and his room with feces. The bag and its foul smell relegated him to pariah status among other prisoners. Additionally, Malone’s medical records revealed he suffers from nocturia, the removal of a mass from his left chest wall, Type II Diabetes, a dysfunction in his heart ventricle, pulmonary regurgitation, abnormal Q waves, obstructive sleep apnea, chronic rhinitis, dyslipidemia, other respiratory diseases, dental decay and loss, tingly legs, burning sensations, and swollen feet.

The U.S. District Court for the Western District of Virginia denied Malone’s motion, reasoning that pursuant to the “helpful guidance” of U.S.S.G. § 1B.1.13 cmt. n. 1 (A-B), “it [did] not appear that the defendant’s grounds for compassionate release complies with any of these categories ... [that] qualif[y] [him] for such extraordinary relief.”

However, in May 2020, the Bureau of Prisons (“BOP”) determined Malone’s health conditions and advanced age made him “highly susceptible to death or serious illness from COVID-19” and transferred him to his brother’s home to continue serving his sentence. (Malone was subsequently transferred to his own home.) Malone moved again for compassionate release in December 2020, requesting time served. He again pointed to his advanced age and severe medical conditions. He also argued that the § 3553(a) factors weighed in favor of his release.

Additionally, he argued that if the BOP were to reimprison him, the odds of contracting COVID-19 would be high and potentially deadly. Malone included in his pleadings a Notice of Office of Legal Counsel letter that explained that after the COVID-19 emergency period expired, Malone would be required to return to prison at the BOP’s discretion unless his motion for compassionate release was granted. The District Court, relying on its reasons for denial of Malone’s first motion for compassionate release, denied the second motion. Malone appealed.

The Court observed “[i]n analyzing a motion for compassionate release, district courts must determine: (1) whether extraordinary and compelling reasons warrant such a reduction; and (2) that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582. “Only after this analysis may the district court grant the motion if (3) the relevant 18 U.S.C. § 3553(a) factors, to the extent they are applicable, favor release.” Id. As to factor (2)’s applicable policy statements, the Court formerly looked to U.S.S.G. 1B1.13, but the Court had since joined the Second, Sixth, and Seventh Circuits in holding that U.S.S.G. 1B1.13 is inapplicable to motions for compassionate release filed by the defendants (versus those filed by the BOP). United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). “Though the outdated policy remains helpful guidance, a district court must not entirely rely upon Section 1B1.13 when considering a motion for compassionate release.” United States v. Kibble, 992 F.3d 326 (4th Cir. 2021). “Ultimately, district courts are encouraged to ‘consider any extraordinary and compelling reason[s] for release that a defendant might raise.’” McCoy.

The Court stated “[i]n denying [Malone’s first motion for compassionate release], the district court recognized § 1B1.13’s inapplicability but failed to step outside the policy statement’s four corners.” Since the District Court relied on its decision denying the first motion when denying Malone’s second motion, it followed that the flawed analysis from the first denial flowed into the second denial. “As a result, the district court did not present a sufficient or accurate legal framework when it rejected Malone’s extraordinary and compelling reasons unrelated to COVID-19.”

The Court determined that Malone’s numerous health conditions “undoubtedly establish extraordinary and compelling reasons for release.” And even if the District Court were bound by § 1B1.13’s “Age” provision, Malone qualified, i.e., (1) he is at least 65 years old, (2) he is experiencing a serious deterioration in physical or mental health because of the aging process, and (3) he has served at least 10 years of his term of imprisonment. § 1B1.13 cmt. n.1(B). Further, the fact that the BOP found Malone was at severe risk of contracting COVID-19 due to his health and advanced age was a factor the District Court was required to consider but failed to do so. United States v. Gamboa, 467 F. Supp. 3d 1092 (D.N.M. 2020).

With regard to the § 3553(a) factors, the District Court is to weigh those factors against sentence reduction in light of new extraordinary and compelling reasons. When Malone was initially sentenced, the District Court explained that the sentence length was necessary to protect the public. But Malone’s deteriorated health now renders him incapable of posing a danger to the community. This conclusion is bolstered by the fact that the BOP had transferred him to home confinement, the Court observed. See United States v. Calhoun, 539 F. Supp. 3d 613 (S.D. Miss. 2021). Therefore, the Court concluded that the relevant § 3553(a) factors favor release and that the District Court abused its discretion in denying Malone’s second motion for compassionate release.

Accordingly, the Court reversed and remanded with instructions to grant Malone’s motion for compassionate release. See: United States v. Malone, 57 F.4th 167 (4th Cir. 2023).

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