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Ninth Circuit Joins Five Other Circuits in Holding § 1B1.13 Doesn’t Apply to Compassionate Release Motions by Prisoners

Loaded on June 15, 2021 by Dale Chappell published in Criminal Legal News July, 2021, page 28

Filed under: Guideline Policy Statements/Commentary, Compassionate Release. Location: Hawaii.

by Dale Chappell

Joining five other circuits, the U.S. Court of Appeals for the Ninth Circuit held on April 8, 2021, that U.S. Sentencing Guidelines Manual § 1B1.13 does not apply to compassionate release motions filed by prisoners under recently amended 18 U.S.C. § 3582(c)(1)(A) and that district courts are not bound by the outdated policy statement.

Without oral argument, the Court ruled on Patricia Aruda’s appeal after the U.S. District Court for the District of Hawaii denied her compassionate release motion that she filed based upon her health risks in the face of COVID-19. The district court determined that Aruda met the description of “extraordinary and compelling reasons” for compassionate release, under § 1B1.13, but denied her motion because she failed to show that she was not a danger to the community, as required by that Guideline.

While § 3582(c)(1)(A) now allows a federal prisoner to file for compassionate release in court if the Bureau of Prisons (“BOP”) refuses to do so, the statute still references § 1B1.13 to indicate what constitutes extraordinary and compelling reasons for granting relief. The problem with § 1B1.13 is that the U.S. Sentencing Commission (“USSC”) has not updated that section to align with the changes Congress made to § 3582 under the First Step Act of 2018. Notwithstanding this, the district court said it still had to apply § 1B1.13 to Aruda’s motion.

On appeal, Aruda argued that the district court erred in applying the outdated § 1B1.13, and the Ninth Circuit agreed. First, the Court determined that the district court abused its discretion in denying Aruda’s motion because it applied the wrong standard for extraordinary and compelling reasons. It noted that Congress did not define that term under § 3582 but instead relied on the USSC to describe it. The USSC then promulgated § 1B1.13, giving examples of what would amount to extraordinary and compelling reasons. But the section still says that “a reduction under this policy statement may be granted only upon motion by the Director of the [BOP].”

“The current version of § 1B1.13 refers only to motions filed by the BOP Director, and does not reference motions filed by a defendant as now allowed under § 3582(c)(1)(A),” the Court stated in severing the application of § 1B1.13 from motions filed by prisoners. The Court also acknowledged that the USSC has not yet issued a policy statement for compassionate release motions by prisoners and that it currently lacks the ability to do so.

In support of its ruling, the Court cited the other circuits that have addressed this issue and have all held that § 1B1.13 does not apply to compassionate release motions by prisoners. United States v. McGee, 992 F.3d 1035 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020); United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020); United States v. Jones, 980 F.3d 1098 (6th Cir. 2020); United States v. Brooker, 976 F.3d 228 (2d Cir. 2020).

The Court stated that its sister circuits reached this conclusion based on the: (1) text of § 3582(c)(1)(A); (2) text of USSG § 1B1.13; (3) text of Application Note 4 to § 1B1.13; text of Application Note 1(D) to § 1B1.13; and (5) legislative history of the First Step Act’s compassionate-release amendment. The Court explained that the common thread that runs through all the reasons is that the text of § 1B1.13 expressly states that the policy statement “only” applies when the BOP files the compassionate release motion; it says nothing about motions filed by prisoners.

The Court approvingly quoted the Fourth Circuit’s statement that 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.’” McCoy (quoting Brooker).

Applying the foregoing ruling to Aruda’s compassionate release motion, the Court concluded that the district court erred in finding that a danger to the community precluded the court from granting her motion. “This dangerousness finding is not statutorily required under 18 U.S.C. § 3582(c)(1)(A), but is part of the Sentencing Commission’s policy statement in U.S.S.G. § 1B1.13(2),” the Court said.

Accordingly, the Court vacated the denial of Aruda’s motion and remanded for the district court to “reassess” her motion under the correct state of the law. See: United States v. Aruda, 993 F.3d 797 (9th Cir. 2021).

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