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April 4, 2020

Misguided dicta from Third Circuit panel on procedural aspects of sentence reduction motions under § 3582(c)(1)(A)

In many prior posts since the FIRST STEP Act was enacted, I have made much of the provision that allows federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without needing a formal motion brought and supported by the Bureau of Prisons.  Well before anybody had heard of COVID-19, this provision seemed so very significant because, if applied appropriately and robustly, it could enable many hundreds (and perhaps many thousands) of federal prisoners to have their excessive federal prison sentences reduced.

Of course, as I have highlighted in recent posts here and here, sentence reduction motions under § 3582(c)(1)(A) have become hugely important in the coronavirus world of federal sentencing.  As SDNY Chief Judge Coleen McMahon astutely stated this week in US v. Resnik, No. 1:12-cr-00152-CM (SDNY Apr. 2, 2020) (download here), "releasing a prisoner who is for all practical purposes deserving of compassionate release during normal times is all but mandated in the age of COVID-19."   As noted in this post, FAMM has wisely urged tens of thousands of federal prisons to consider pursuing sentence reduction motions under § 3582(c)(1)(A) during this terrible time when any federal prison term can become a potential death sentence.

But, importantly, a procedural issue can complicate sentence reduction motions under § 3582(c)(1)(A) because the text now now provides: "the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant 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, may reduce the term of imprisonment..."  In other words, this text provides that a sentence reduction motion can be acted upon by the court (1) immediately if brought by BOP, or (2) as soon as a defendant requests such a motion and that request is formally/finally denied by BOP or 30 days has lapsed, "whichever is earlier."  Because the Director of the Bureau of Prisons rarely brings motions on behalf of prisoners and because BOP's administrative process for reviewing requests is historically quite slow, this provision has often functionally meant that courts would consider these motions 30 days after a BOP request is made by the defendant.

Under normal circumstances, this procedural provision struck me as a reasonable way to give the Bureau of Prisons a first opportunity to consider supporting a sentence reduction motion before the defendant heads to court. (That said, I have heard various ugly reports about the BOP treating an inmate poorly in various ugly ways after he has requested  a sentence reduction motion).  But in a COVID-19 word in which every day brings increasing positive cases and deaths among federal inmates and staff, waiting 30 days to rule on a compelling sentence reduction motion under § 3582(c)(1)(A) could literally have deadly consequences for an inmate and others he comes into contact with.  (It was only roughly 30 days ago that the US had its first COVID death, we could be over 10,000 US deaths by the end of this weekend.)   Consequently, I was not surprised to see, in US v. Perez, No. 17 Cr. 513-3 (AT) (SDNY Apr. 1, 2020) (download here), a federal judge waive the "30-day lapsing" requirement based on the determination that, for the defendant, "remaining incarcerated for even a few weeks increases the risk that he will contract COVID-19," and so "requiring exhaustion ... would be directly contrary to the purpose of identifying and releasing individuals whose circumstances are 'extraordinary and compelling'."  

This extended discussion is a prelude to noting a troubling opinion handed down by a Third Circuit panel in United States v. Raia, No. 20-1033 (3d Cir. Apr. 2, 2020) (available here).  This case involved a 68-year-old New Jersey politician given a three-month sentence who reported to a federal prison on March 3 while the government was pursuing an appeal of his sentence as to low.  With his appeal pending, the defendant first "asked BOP to move for compassionate release on his behalf. But before BOP responded, and before thirty days passed, Raia filed his own motion with the District Court for compassionate release given the present pandemic caused by COVID-19. The district court dismissed the motion because it decided the "pending appeal divested it of jurisdiction," but it also indicated it would grant the motion if it could.

In the Third Circuit, Raia did not appeal this order but instead "filed a motion asking this Court to decide his compassionate release motion [or] to return jurisdiction to the District Court by dismissing the government’s appeal without prejudice [under FRAP 3(a)(2)." In response, the Third Circuit panel starts on solid ground: "We cannot decide Raia’s compassionate-release motion in the first instance. Section 3582’s text requires those motions to be addressed to the sentencing court." That strikes me as right not only as a matter of statutory text, but also as a matter of sound policy: district motions for sentence reductions ought to be addressed in the first instance by sentencing courts, not appeals courts. Continuing to address points raised by Raia, the panel then says (cites and quote removed): "Nor can we dismiss the government’s appeal under Rule 3(a)(2). Rule 3(a)(2) dismissal is a sanction for failing to comply with procedural rules. Here, there is nothing the government has failed to do."

Having addressed are rejected claims by the appellant, things go sideways as the Third Circuit panel says the following (which I am calling dicta it does not respond to claims actually brought by the litigant):

We could, however, remand the case to the District Court while retaining jurisdiction over the government’s appeal under Rule 12.1.  That would allow the District Court to consider Raia’s compassionate-release request in the first instance.

But any remand would be futile.  As noted, Raia failed to comply with § 3582(c)(1)(A)’s exhaustion requirement: BOP has not had thirty days to consider Raia’s request to move for compassionate release on his behalf, nor has Raia administratively exhausted any adverse decision by BOP.  Although the District Court’s indicative ruling did not mention the exhaustion requirement, it presents a glaring roadblock foreclosing compassionate release at this point.

Accordingly, since Rule 3(a)(2) is inapt and since remanding the matter under Rule 12.1 would be futile, we will deny Raia’s motion outright.

This "futile" language here creates the problematic impression that "30-day lapsing/exhaustion" language in 18 U.S.C. § 3582(c)(1)(A) is tantamount to a jurisdictional bar to the granting of a sentence reduction motion.  But the language and structure of this requirement makes it appear much more like what the Supreme Court calls "nonjurisdictional claim-processing rules."  Fort Bend County v. Davis, No. 18-525 (S. Ct. June 3, 2019) (available here).  With COVID-19 making every day matter, this is a critically important distinction because claim-processing rules can be forfeited if not raised by a party and might be subject to equitable exceptions.  In other words, if and when the "30-day lapsing/exhaustion" language is properly understood by courts as a claim-processing rules, then courts can (1) ask federal prosecutors if they are willing to waive/forfeit the requirement in a particular case, and courts may be able (2) on their own, as in the Perez case, to decide that the requirement need not be meet given the equities of a particular case.

I hope that counsel might be seeking reconsideration or even an emergency rehearing en banc in Raia.  Because it is not at all clear that a remand would be futile, and especially because the Third Circuit panel here spun off some misguided dicta on an issue that appears not to have even been briefed, this portion of the opinion ought to be retracted at least until a court considers these (now life-and-death) issues with the assistance of full briefing.

UPDATE: I just noticed that the same panel that decided Raia also handed down last week a more defendant-friendly COVID opinion in United States v. Roeder, No. 20-1682 (3d Cir. Apr. 1, 2020) (available here).  Here is how this (unpublished) opinion starts and ends:

Calvin Roeder filed an emergency appeal seeking review of the District Court’s denial of his motion to postpone his self-surrender date in light of the COVID-19 pandemic. We reversed the District Court’s denial on March 29, 2020. We now provide the reasons for our order....

Under ordinary circumstances, it would be our preference to vacate the District Court’s order and permit it to provide substantive conclusions concerning the merits of Roeder’s motion.  These are not, however, ordinary times.  In light of the exigent circumstances surrounding the COVID-19 pandemic and the timing of our ruling (less than 24 hours before Roeder’s scheduled surrender date), we were compelled to grant relief and reverse the District Court’s order — even though the existence of a widespread health risk is not, without more, a sufficient reason for every individual subject to a properly imposed federal sentence of imprisonment to avoid or substantially delay reporting for that sentence.
While the COVID-19 pandemic has given rise to exceptional and exigent circumstances that require the prompt attention of the courts, it is imperative that they continue to carefully and impartially apply the proper legal standards that govern each individual’s particular request for relief.  If, in the future, Roeder seeks an additional modification of his self-surrender date, we expect that the District Court will provide an adequately reasoned decision so that, if an appeal follows, we may engage in a thorough appellate review.

April 4, 2020 at 06:20 PM | Permalink


That isn't dicta; it's a reason they give for their judgment not taking the form of a remand and retention for jurisdiction. Whether Raia asked for such a remand is entirely irrelevant to whether the reasons they give for denying it, i.e., for their judgment, are dicta. On your logic, if a court raises jurisdiction sua sponte, whatever it says about whether it has or lacks jurisdiction is dicta because no one asked for a jurisdictional dismissal/vacatur.

Posted by: Asher Steinberg | Apr 5, 2020 1:52:58 PM

That's not quite right, Asher, as the key here is that the resolution in Raia would be exactly the same if the the quoted paragraphs never were mentioned AND those paragraphs concerned issues not raised by the parties and not essential to resolving the issues that were raised by the parties.

Imagine if the court had ALSO said "We could also consider whether the Eighth Amendment might justify a remand to allow the District Court to consider Raia’s compassionate-release request in the first instance. But we think it futile to remand for that reason because we think the failure to raise the Eighth Amendment below presents a glaring roadblock foreclosing compassionate release at this point." I think it would be fair to call this Eighth Amendment discussion dicta for the same reasons I call the Rule 12.1/procedural issue dicta --- the court invented its own contention and rejected it on the way to reaching the same result as it is had not invented its own contention. (The jurisdiction idea also is distinguishable because a court arguably always has an obligation to consider whether it actually has jurisdiction over a matter.)

I will readily note that it is often hard to sort out what is to be considered dicta and what is a holding. Here's a 140-page article on "Definiting Dicta": https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1201&context=faculty_publications.

The Legal Information Institute provides this definition: "The term is generally used to describe a court's discussion of points or questions not raised by the record or its suggestion of rules not applicable in the case at bar. Judicial dictum is an opinion by a court on a question that is not essential to its decision even though it may be directly involved." Part of the reason I am inclined to use the label dicta is because it seems that the Rule 12.1/procedural issue was not raised by the parties AND was not essential to the decision because it was raised/rejected by the panel on it own.

Posted by: Douglas A Berman | Apr 5, 2020 3:13:01 PM

Dictum or not, the portions of the decision that Doug focuses on are very likely incorrect, and the Court was at best ill-advised to include them in a precedential opinion without proper adversarial briefing. And there is more that is wrong in the decision, as pointed out in the CA3 Blog post on it, which is complementary to Doug's. (See http://ca3blog.com/cases/third-circuit-issues-a-ruling-that-could-have-a-big-impact-on-whether-many-prisoners-win-release-due-to-the-covid-19-pandemic/) The first holding of the Raia case, which is not incorrect, is also important in sentencing law: that while an appeal of a sentence is pending, whether a defendant's appeal or a government appeal, the district court is temporarily divested of jurisdiction to modify that sentence. If, as here (or where a motion is filed to reduce the sentence as a reward for cooperation, or to reflect a new and retroactive Guidelines amendment, or whatever), good grounds to modify the sentence right away arise during an appeal, the remedy (in federal court) is for the defendant to file a motion under Federal Criminal Rule 37 (unfortunately unmentioned in the Third Circuit opinion) for an "indicative ruling" on the motion, and if that motion is successful (that is, the judge indicates an inclination to grant the motion if allowed to do so), then a motion in the Court of Appeals under Federal Appellate Rule 12.1 (referred to by the Third Circuit, somewhat cryptically, as just "Rule 12.1") for a remand and temporary relinquishment of jurisdiction to allow the district court to act.

Posted by: Peter Goldberger | Apr 5, 2020 3:25:51 PM

I agree with Peter's analysis. The Third Circuit jumped the gun in giving jurisdictional import to the statutory exhaustion requirement. The District Court had already made its indicative ruling. The Third Circuit should have remanded pursuant to FRA 12.1 to have the District Court decide in the first instance whether (a) the exhaustion requirement is waivable on the basis of equitable considerations and (b) if so, whether the equities warranted waiving exhaustion. It may just be that the District Courts and the Court of Appeals are facing an avalanche of these requests and the Court of Appeals decided to issue a precedential opinion that required District Courts to treat the exhaustion requirement as jurisdictional. Because of the serious ramifications of such a holding, immediate panel and en banc reconsideration should be sought.

Posted by: Tom Vanaskie | Apr 6, 2020 12:12:42 PM

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