Under the First Step Act, courts must apply any "applicable policy statements" issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(1)(A), such as U.S.S.G. § 1B1.13
(Application Notes)(including “(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C). Id.)
Eight Circuit Courts have ruled that U.S.S.G. § 1B1.13, issued the month prior to the First Step Act was signed into law, is not "applicable" to defendant-filed motions for compassionate release under the First Step Act. As such, these Circuits permit District Court Judges latitude for determining what grounds constitute extraordinary and compelling grounds for compassionate release, including what “other reasons” should be considered by the court, on a case by case basis. Most notably, in 2020-2021 COVID-19 was stated as an independent other reason by inmates, notwithstanding that COVID-19 was unknown when § 1B1.13 was promulgated by the United States Sentencing Commission in November, 2019.
United States v. Long, No. 20-3064 (D.C. Cir. May. 18, 2021);
United States v. Brooker, 976 F.3d 228, 235 (2d Cir. 2020);
United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020);
United States v. Shkambi, 993 F.3d 388, 392-393 (5th Cir. 2021);
United States v. Jones, 980 F.3d 1098, 1109-1111 (6th Cir. 2020);
United States v. Gunn, 980 F.3d 1178, 1180-1181 (7th Cir. 2020);
United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021);
United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021).
The 11th Circuit, taking the opposite position, ruled that U.S.S.G. § 1B1.13 is"applicable" to defendant filed motions for compassionate release under the First Step Act. United States v. Bryant, No. 19-14267 (11th Cir. May. 7, 2021).
The 3rd Circuit Affirmed District Court Denials of motions for compassionate release, that also found U.S.S.G. § 1B1.13 to be applicable, but took no official position other than to state that the district court did not abuse its discretion. United States v. Jones, 20-2507 (3d Cir. July 9, 2021)(issue avoided); United States v. Henderson, No. 21-1653 (3d Cir. May 27, 2021).
The 8th Circuit has taken no position, regarding whether 1B1.13 is applicable or not. United States v. Gater, No. 20-2158 (8th Cir. May 24, 2021)(issue not reached).
This information is current as of August 13, 2021, and is provided by Federal Sentencing Alliance to foster critical thinking regarding the issues presented. Federal Sentencing Alliance is not a law firm, and therefore, cannot and does not give legal advice, ever.
The 2021-2022 117th Congress of the United States is examining certain 2021 amendments that implicate the issues presented above. Please see S. 312, H.R. 3669 and S. 1014 pending at this time.
The information provided above is solely for the purpose of fostering critical thinking relative to the issues identified. Federal Sentencing Alliance is not a law firm, and therefore cannot, and does not offer legal advise or legal opinions, ever. Please see our First Step Act of 2018 related publications available at Amazon HERE.
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