In United States v. Brooker (Zullo), No. 19-3218, 2020 WL 5739712 (2d Cir. Sept. 25, 2020), the Second Circuit, in an opinion by Judge Calabresi (joined by Judges Winter and Chin), held that the First Step Act of 2018 (“FSA”) empowers district courts evaluating motions for compassionate release to consider any “extraordinary and compelling reasons” for granting release or a sentence reduction, not just those criteria set forth by the Sentencing Commission in guidelines that have been unmodified since the FSA’s passage. The Circuit emphasized that the FSA was intended to expand and expedite compassionate release by allowing defendants to make motions directly to the district courts—thus ending the BOP’s role as the “sole arbiter” of such claims—and by permitting those courts greater discretion in granting release. Accordingly, the Circuit held that the constraints imposed by previously-enacted Sentencing Guideline § 1B1.13 do not apply to compassionate release motions brought to the courts directly by defendants, as opposed to by the BOP.
Judge Calabresi first recounted the history of compassionate release under 18 U.S.C. § 3582(c)(1)(A) and noted that the original version of the statute “unlike the current law, gave BOP exclusive power over all avenues of compassionate release,” and that the BOP was miserly in its use of this power to grant such relief. However, as Judge Calabresi explained, “while BOP is still given the first opportunity to decide a compassionate release motion, and may still bring a motion on a defendant’s behalf, under Congress’ mandate [of the FSA] a defendant now has recourse if BOP either declines to support or fails to act on that defendant’s motion.” Section 3582(c)(1)(A) now provides that a defendant may go to court “after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier.”
Section 3582(c)(1)(A), then and now, imposes a substantive standard of whether “extraordinary and compelling reasons” exist for compassionate release. When the Sentencing Commission was tasked with defining “extraordinary and compelling reasons” under the original version of the statute, it did so through a policy statement in Sentencing Guideline § 1B1.13, which largely tracked the criteria used by the BOP as relating to factors such as old age, terminal illness, and incapacitation. Judge Calabresi remarked that even the 2007 amendment to the guideline, which added what has come to be known as the “catch-all clause,” still deferred to the BOP by providing that compassionate release is warranted if, “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in [the other parts of the Guideline].” § 1B1.13 n.1(A)(iv) (U.S. Sentencing Comm’n 2007).
Against this backdrop, the question presented to the Second Circuit was “whether the First Step Act allows courts independently to determine what reasons, for purposes of compassionate release, are ‘extraordinary and compelling,’ or whether that power remains exclusively with the BOP Director as stated in Application Note 1(D) [of Guideline § 1B1.13].” In answer, Judge Calabresi held that the statutory language, as well as the clear congressional intent, establish that the “First Step Act freed district courts to exercise their discretion in determining what are extraordinary circumstances.”
Although the text of the FSA requires courts to consider the Guidelines when deciding compassionate release motions, it requires consideration only of “applicable” guidelines. Examining the text of Guideline § 1B1.13, which was not modified after passage of the FSA, Judge Calabresi observed: “The very first words of the Guideline are ‘[u]pon motion of the Director of the Bureau of Prisons.’ U.S.S.G. § 1B1.13. And this is precisely the requirement that the First Step Act expressly removed.” Thus, “it is manifest that its language is clearly outdated and cannot be fully applicable.”
Judge Calabresi further noted that while the Court would be within its rights to deem the Guideline “as in effect abolished,” it instead would interpret “the Guideline as surviving, but now applying only to those motions that the BOP has made.” Because the Guideline does not apply to compassionate release motions brought by defendants, it “cannot constrain district courts’ discretion to consider whether any reasons are extraordinary and compelling.”
Moreover, the Circuit affirmed the breadth of this sentencing discretion. Judge Calabresi rejected the Government’s claim that the specific factors at issue in the case, including the defendant’s claim that his initial sentence was excessive, could not qualify as “extraordinary and compelling reasons” to grant compassionate release or a sentence reduction. Judge Calabresi stressed that a court’s sentencing discretion is broad and that the length of the original sentence, the defendant’s rehabilitation, his youth at the time of the offense, and any other relevant factors, including “the present coronavirus pandemic,” may all be considered. Indeed, “the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.”