by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit held that the Sentencing Commission’s policy statement in U.S. Sentencing Guidelines § 1B1.13 is inapplicable to a prisoner’s own motion for compassionate release filed under 18 U.S.C. § 3582(c)(1)(A)(i).

Francesk Shkambi filed a motion in the U.S. District Court for the Eastern District of Texas seeking compassionate release under § 3582 while at FCI Elkton, alleging that the prison was “a cauldron of disease and death.” He reported that 25% of the prisoner population had been infected with COVID-19, including himself. He recovered but feared he would become reinfected due to his prednisone medication weakening his immune system.

The district court cited three provisions of § 3582, where sentence reductions are authorized if: (1) extraordinary and compelling circumstances warrant such a reduction, (2) such a reduction is consistent with policy statements issued by the Sentencing Commission, and (3) the reduction is appropriate in light of the factors set forth in 18 U.S.C. 3553(a). The district court determined that the motion was “untethered to the Sentencing Commission’s binding applicable policy statement in section 1B1.13 of the Sentencing Guidelines.” The district court further concluded that, because the motion failed on the merits, it lacked jurisdiction since the “rule of finality” forbade it from modifying a lawfully imposed sentence. On this reasoning, the district court dismissed the motion. Shkambi appealed.

The Fifth Circuit observed that under the plain text of § 3582 a motion such as Skhambi’s is to be filed in the same docket that contains the prisoner’s final judgment, and the motion is no different in that sense from a 28 U.S.C. § 2255 motion. The Court reasoned that § 2255 motions are filed and denied every day, and no court concludes that an unsuccessful § 2255 motion should be dismissed for want of jurisdiction. The Court ruled that the district court erred in concluding that it lacked jurisdiction. In fact, the district court had exercised its jurisdiction when considering the merits of the motion, and a court doesn’t suddenly lose jurisdiction simply because a motion fails on the merits. Federal Practice and Procedure § 3702.4 (4th ed. 2011).

The Court further observed that compassionate release is not a new remedy but dates back at least to the Parole Reorganization Act of 1976. But in 1984, Congress abolished federal parole in the Sentencing Reform Act (“SRA”) and forbade federal courts from modifying a term of imprisonment after it was imposed. United States v. Jones, 980 F.3d 1098 (6th Cir. 2020).

However, Congress retained an exception for compassionate-release motions. 18 U.S.C. § 3582(c)(1)(A) (1984). In the first 34 years after the SRA was enacted, compassionate release required: (1) a motion from the Bureau of Prisons (“BOP”), (2) one of two conditions under § 3582(c)(1)(A) (the condition relevant to the case sub judice is “extraordinary and compelling reasons”), (3) the sentence reduction be consistent with applicable policy statements issued by the Sentencing Commission, and (4) consideration of the BOP’s motion in light of § 3553(a)’s sentencing factors. United States v. Lightfoot, 724 F.3d 593 (5th Cir. 2013). But Congress, instead of defining the second factor’s “extraordinary and compelling reasons,” delegated that authority to the Sentencing Commission. The Sentencing Commission failed to provide helpful guidance to define “extraordinary and compelling reasons,” stating only “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t).

As to the third factor, the Sentencing Commission failed to issue any policy statements for 22 years, and when it did, the statement merely said a court could grant relief upon motion of the BOP if “[e]xtraordinary and compelling reasons warrant the reduction” but again didn’t define “extraordinary and compelling reasons.” Jones. The only part of § 1B1.13 that wasn’t a mere recitation of § 3582 was the Commission’s commentary. Application note 1 of the commentary articulates four categories that could warrant a sentence reduction: (1) medical conditions of the defendant, (2) age of the defendant, (3) family circumstances, and (4) other reasons.

Then in 2018, President Trump signed the First Step Act (“FSA”) into law. The FSA amended § 3582 to allow prisoners themselves to file a motion for compassionate release, eliminating the requirement that the motion be filed by the BOP. That was the decisive factor in this case.

The Court ruled that the district court erred in finding that the Sentencing Commission’s policy statement applies to Shkambi’s motion because: (1) the text of § 1B1.13 states it applies only to motions filed by the BOP (meaning it is inapplicable to the motion filed by Shkambi), (2) application note 4 of the commentary to § 1B1.13 states it is applicable only to motions filed by the BOP, and (3) a district court cannot rely on pieces of text from an otherwise inapplicable policy statement. Thus, the Court concluded that “neither the policy statement nor the commentary to it binds a district court addressing a prisoner’s own motion under § 3582.” The Court noted that its decision aligns with all other Circuit Courts that have addressed this issue. United States v. McGee, 2021 U.S. App. LEXIS 9074 (10th Cir. 2021); United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020); United States v. McCoy, 981 F.3d 271(4th Cir. 2020); United States v. Jones, 980 F.3d 1098 (6th Cir. 2020); United States v. Brooker, 976 F.3d 228 (2d Cir. 2020).

Accordingly, the Court reversed the district court’s order of dismissal for lack of jurisdiction and remanded for further proceedings, specifically instructing that the district court “is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). See: United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021). 

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