Case o' The Week: The Real McCoy - Compassionate Release and "Second Look" Sentencing

 “We return to the Second Circuit's description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.”

  

United States v. McCoy, 981 F.3d 271 (4th Cir. 2020), decision available here.

 [Ed. Note: A slow spell in the Ninth lets us flag an important – and time-sensitive – recent Compassionate Release case out of the Fourth Circuit].

Players: Decision by Judge Harris, joined by Judges Diaz and Thacker.

Big win for AFPDs Paresh Patel and Shari Silver Darrow, District of Maryland Office of the Federal Public Defender.   

Facts: These appeals were from Compassionate Release grants for defendants convicted of “stacked” § 924(c) charges. Id. at 274. Their sentences ranged from 35 to 53 years. Id. Because of the First Step Act, if sentenced today the terms for these defenders would be 30 years less. Id.

  After the defendants’ Compassionate Release motions were denied by the BOP, counsel litigated for reductions in the district court. Id. at 277.

  The lead appellee, McCoy, was nineteen when he received a 35 year sentence. Id. McCoy had served seventeen years when the district court granted his C/R motion and reduced his sentence to time served. Id. The Fourth consolidated several government appeals of these resentencing decisions.

Issue(s): “[T]he government presents two primary arguments . . . . First, the government contends that treating a disproportionately long sentence as an ‘extraordinary and compelling’ reason for a potential sentence reduction is not ‘consistent with applicable policy statements issued by the Sentencing Commission,’ as required by § 3582(c)(1)(A).” Id. at 280.

  “And second, the government argues, even if consideration of the defendants’ § 924(c) sentences were not precluded by § 1B1.13, the First Step Act's elimination of sentence-stacking still could not constitute an ‘extraordinary and compelling reason’ for compassionate release . . . .” Id.

Held: Issue One: “[W]e agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no ‘applicable’ policy statement governing compassionate release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.” Id. at 285 (internal quotations and citation omitted).

  Issue Two: “[W]e find that the district courts permissibly treated as ‘extraordinary and compelling reasons’ for compassionate release the severity of the defendants’ § 924(c) sentences and the extent of the disparity between the defendants’ sentences and those provided for under the First Step Act. We emphasize, as did the district courts, that these judgments were the product of individualized assessments of each defendant’s sentence. And we note that in granting compassionate release, the district courts relied not only on the defendants’ § 924(c) sentences but on full consideration of the defendants’ individual circumstances . . . .” Id. at 286.

Of Note: Critical to this great outcome is dusty guideline § 1B1.13, that predated the First Step Act. Short of a quorum, the Sentencing Guideline Commission has been unable to update this guideline and thus slam the door on this opportunity. See id. at 282 & n.6.

When the Commission does get a forum, will its skepticism of Compassionate Release change?  Who knows – but why risk it? This window of opportunity may not last forever: the time for these “Second Look” motions is now.

How to Use: Stacked § 924(c)s are great candidates for these motions. So are drug cases with changed mand mins.

For a great holiday example, check out United States v. Blanco, CR 93-20042 CW (N.D. Cal. Dec. 14, 2020), Ord., Dkt. 2784. 

In Blanco, ND Cal FPD Appellate Chief Carmen Smarandoiu brought a Compassionate Release motion to earn a resentencing on a life mand-min drug case. The resentencing result? Time served after twenty-five years in, and a “lifer” home for Christmas!                                           

For Further Reading: Like the A.G. slot, President Biden has been mum thus far on his potential Sentencing Commission nominees.

  How about another shot for a great President Obama nominee, whose nomination expired with the 114th Congress? See Press Release here.  

 

Image of “The Real McCoy” from https://blog.kiddom.co/the-real-mccoy/

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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