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September 25, 2020

Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise"

I am very pleased to see the first of what may soon be many circuit rulings on the reach and application of the compassionate release provisions amended by the federal FIRST STEP Act.  As regular readers know, in lots of (pre-COVID) prior posts I made much of the provision of the FIRST STEP Act allowing federal courts to directly reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  I have consider this provision a big deal because, if applied appropriately and robustly, it could and should enable many hundreds (and perhaps many thousands) of federal prisoners to have excessive prison sentences reduced.  COVID realities, of course, raised the need for and stakes of this important provision of federal sentencing law.

The first significant circuit ruling on the reach and application of this statute is a great one, coming from a Second Circuit panel in US v. Zullo, No. 19-3218-CR (2d Cir. Sept. 25, 2020) (available here).  Though I may be a bit biased because this opinion was penned by a former boss of mine (Judge Guido Calabresi), I suspect others will share my view that this ruling is a great accounting of applicable law and a great outcome.  Here are just a few excerpts from the 21-page opinion (some analysis may follow in future posts):

The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act”), was simultaneously monumental and incremental.  Monumental in that its changes to sentencing calculations, mandatory minimums, good behavior credits and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated.  Incremental, in that, rather than mandating more lenient outcomes, it often favored giving discretion to an appropriate decisionmaker to consider leniency.

This case reflects that dichotomy.  The First Step Act provision we analyze overturned over 30 years of history, but at the same time it often did no more than shift discretion from the Bureau of Prisons (“BOP”) to the courts.  We must today decide whether the First Step Act empowered district courts evaluating motions for compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) § 1B1.13 Application Note 1(D) (“Application Note 1(D)”), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling.  Because we hold that Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court’s contrary decision....

For all of these reasons, 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.  Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court’s discretion....

Nor can we say, as a matter of law, that a court would abuse its discretion by granting someone compassionate release on this record.  It bears remembering that compassionate release is a misnomer.  18 U.S.C. § 3582(c)(1)(A) in fact speaks of sentence reductions.  A district court could, for instance, reduce but not eliminate a defendant’s prison sentence, or end the term of imprisonment but impose a significant term of probation or supervised release in its place. Id.  Beyond this, a district court’s discretion in this area — as in all sentencing matters — is broad.  See United States v. Cavera, 550 F.3d 180, 188 (2d Cir. 2008) (en banc) (noting a district court’s “very wide latitude” in sentencing). The only statutory limit on what a court may consider to be extraordinary and compelling is that “[r]ehabilitation … alone shall not be considered an extraordinary and compelling reason.”  28 U.S.C. § 994(t) (emphasis added).

In the instant case, Zullo does not rely solely on his (apparently extensive) rehabilitation.  Zullo’s age at the time of his crime and the sentencing court’s statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction.  Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984.  See S. Rep. No. 98-225, at 55-56 (1984) (noting that reduction may be appropriate when “other extraordinary and compelling circumstances justify a reduction of an unusually long sentence” (emphasis added)); see also United States v. Maumau, No. 2:08-CR-00758-TC-11, 2020 WL 806121, at *6-*7 (D. Utah Feb. 18, 2020) (further discussing this history and collecting cases where district courts have reduced sentences in part because they were overly long).

September 25, 2020 at 11:31 AM | Permalink


Wonderful decision today Mr. Berman. You were always right on this issue. As you know and have wrote about Judge Larimer reduced my stacked 924 (c) mandatory minimum sentence after finding extraordinary and compelling reasons were present. This CR or Reduction In Sentence avenue does what is was suppose to do - Allows the people in the best possible position (Federal Sentencing Judges) to Judge.

Posted by: Chad Marks | Sep 25, 2020 4:00:22 PM

I have a feeling we'll see further review of this one. Under this decision, we now have a federal parole system again.

Posted by: hgd | Sep 25, 2020 5:31:18 PM

The decision is no longer available at the link you posted, but it available on Westlaw as 2020 WL 5739712. Also, for some reason, the case was captioned with the names of all the defendants, rather than just the one appealing defendant. The first named defendant is Brooker, so it appears as U.S. v. Brooker in search results.

Posted by: nkp | Sep 29, 2020 7:33:44 PM

Thanks, nkp. I think I fixed the link above, but its great to also have the Westlaw cite.

Posted by: Doug B. | Sep 29, 2020 11:54:45 PM

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