by Dale Chappell

The U.S. Court of Appeals for the D.C. Circuit joined seven other circuits and held that a compassionate release motion filed by a prisoner under 18 U.S.C. § 3582(c)(1)(A) is not subject to the policy statement in U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.13, after the First Step Act’s changes.

David Long was sentenced to 29 years in federal prison for his role in a narcotics enterprise that had operated in Washington, D.C., since the 1980s. The criminal conduct also involved murder-for-hire plots that resulted in severe disabilities in some who survived and the death of at least one person. Long, himself, suffered injuries that caused debilitating medical conditions. He is currently in prison at the high-security Federal Medical Center in Springfield, Missouri, and has served almost 13 years of his sentence.

He filed for compassionate release in September 2020, claiming that COVID-19 is threatening his life due to his medical conditions. While the U.S. District Court for the District of Columbia agreed that his medical situation was an “extraordinary and compelling reason” for compassionate release, the court denied relief because it could not conclude that Long was no longer a “danger to the community,” as required by USSG § 1B1.13. The court relied on that restriction in denying relief.

On appeal, Long argued that USSG § 1B1.13 doesn’t apply to prisoner-filed compassionate release motions because the policy predates the First Step Act and therefore is not “an applicable policy statement[] issued by the Sentencing Commission” with respect to prisoner-filed motions; thus, it does not bind the district court in its consideration of prisoner-filed motions.

As an initial matter, the Court stated that other circuits that have heard appeals on this issue “have not yet engaged with the jurisdictional question at any length, although many have cited 28 U.S.C. § 1291.” After a lengthy discussion, the Court concluded that it has jurisdiction to hear the appeal because the “disposition of Long’s motion for compassionate release was either a sentence-modification ruling appealable under 28 U.S.C. § 1291 … or the imposition of a final sentence resulting from a misapplication of the Sentencing Guidelines, providing jurisdiction under 18 U.S.C. § 3742(a)(2).”

Long never raised the claimed error in the district court, so he had to meet the onerous “plain error” standard. Puckett v. United States, 556 U.S. 129 (2009). This required Long to show (1) the district court committed an error, (2) that was “plain,” (3) that affected his “substantial rights,” and (4) that affected the “fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461 (1997). These four factors controlled the outcome of Long’s appeal.

The Court determined that the first two factors was satisfied by showing that the district court erroneously relied on USSG § 1B1.13 to deny relief when the Guideline did not apply to Long’s motion. An error is plain when it violates an “absolutely clear” legal norm like when the clarity of a statutory provision isn’t in doubt. In re Sealed Case, 573 F.3d 844 (D.C. Cir. 2009).

USSG § 1B1.13 applies only to motions filed by the Bureau of Prisons (“BOP”) and not to motions by prisoners, the Court explained. “The policy statement’s inapplicability is plain on its face,” according to the Court, adding “By its terms, the policy statement applies only to motions for compassionate release filed by the [BOP], not by defendants.”

The Court reasoned that the policy statements by the Sentencing Commission are not simply background to statutes enacted by Congress. In fact, it’s the other way around. “They flow from and are responsive to Congress’s changes in the law,” the Court said. “Congress leads, and the Commission follows.” Any change by Congress to the statutes may result in a change to the policy statements by the Sentencing Commission, but there hasn’t been a quorum to allow these changes since 2019. Thus, the Court concluded that the district court committed error that was plain.

The Court similarly concluded that the final two factors of the plain error test were met because the district court misapplied the Guideline to Long’s motion. In Molina-Martinez v. United States, 136 S. Ct. 1338 (2016), the Supreme Court ruled that substantial rights are affected when a district court commits an error in calculating a range under the Guidelines in determining a sentence. Such an error, the Supreme Court explained, “can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error.”

“Because the district court treated USSG 1B1.13’s dangerousness criterion as a categorical bar on relief,” the Court held that the district court committed plain error in denying Long’s motion.

Accordingly, the Court vacated the judgment of the district court and remanded for consideration of Long’s compassionate release motion “under the correct legal standard.” See: United States v. Long, 997 F.3d 342 (D.C. Cir. 2021).

Editor’s note: In reaching its conclusion that USSG § 1B1.13 is not applicable to prisoner-filed motions for compassionate release, the Court noted that it joins seven other circuits that have reached the same conclusion. See United States v. Brooker, 976 F.3d 228 (2d Cir. 2020); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020); United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021); United States v. Jones, 980 F.3d 1098 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020); United States v. Aruda, 993 F.3d 797 (9th Cir. 2021); United States v. McGee, 992 F.3d 1035 (10th Cir. 2021).

Standing alone, the Eleventh Circuit reached the opposite conclusion. See United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021). However, the Court was thoroughly unimpressed with the Eleventh Circuit’s rationale in reaching its conclusion, declaring that the Eleventh Circuit’s position is correct “only if we take an eraser to the words [in USSG § 1B1.13] that say the opposite.” 

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