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December 6, 2020

Tangible example of continuing big sentence reductions in COVID era thanks to the FIRST STEP Act

I have highlighted in some recent posts some important new circuit rulings about district courts' sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act (see here and here).  These rulings reinforce that federal judges now have broad authority to consider any and all "extraordinary and compelling reasons" for a sentence reduction and need not just focus on medical reasons for granting compassionate release.  But, of course, amidst the worldwide COVID pandemic, lots and lots of vulnerable inmates have lots and lots of medical reasons for requesting compassionate release, and many federal judges have been responsive to these requests.  

As of this writing, the BOP is now reporting at this FSA page that there have been "2,205 Approved" total "Compassionate Releases / Reduction in Sentences" since the passage of the FIRST STEP Act in December 2018.  The US Sentencing Commission has previously reported, as noted here, that 145 of these motions were granted in "First Step Year One," which in turn suggests that over 2000(!) compassionate release motions have now been granted by federal district judges in the COVID era. 

These topics are on my mind because a helpful reader sent me a district court ruling granting a sentence modification last week that provides a tangible example of a defendant securing quite a significant sentence reduction.  I sometimes get asked about examples of a defendant securing relief despite having served less than half of their initial sentence, and US v. Ferizi, No. 1:16-cr-42 (LMB) (ED Va. Dec. 3, 2020) (available for download below), is such a case.  The defendant in Ferizi was initially sentenced to 240 months in prison, but that sentence was "reduced to time served" after he served just over 60 months. Here is an excerpt (cites removed):

There is no dispute that defendant has a particularized susceptibility to the disease.  Defendant has had a chronic cough since childhood, and was diagnosed with asthma in 2018. Defendant's obesity is yet another factor that places him at greater risk for severe illness — the CDC has warned that having a body mass index greater than 30 is a risk factor, and defendant's BMI has fluctuated between 30 and 31 during his incarceration.  Considering these multiple risk factors, the government has conceded that Ferizi is at elevated risk of contracting COVID-19, and as such has established 'extraordinary and compelling circumstances' to justify release for purposes of 18 U.S.C. § 3582....

Defendant has also satisfactorily responded to the Court's concerns that it might be infeasible to release him if he could not then be promptly deported, either because he might be on a no-fly list or because Kosovo might refuse to accept him.  The government has "confirmed with FBI and ICE" that, in spite of defendant's no-fly status, he would be able to board a specifically-designated deportation flight....

The government argues that even if that is the case, "the seriousness of [defendant's] offense and the danger he poses to the community make him an inappropriate candidate for compassionate release."  There is no doubt that defendant committed a serious offense when he provided the personal information of U.S. government and military employees to ISIL, and as the victim impact letter attached to the Presentence Investigation Report demonstrates, his actions were harmful to the individuals whose names appeared on the list posted by ISIL.  Nevertheless, even defendants who have committed very serious offenses can be appropriately released from custody or supervision where "[t]here is no indication that defendant poses a risk to the public, and reducing defendant's sentence to time served will not diminish the seriousness of his offense or respect for the law."...

In this case, defendant's offense did not involve violence, and none of the individuals whose information he gave to ISIL suffered physical harm. Defendant has explained that he
"totally and completely oppose[s] ISIL and all that it stands for," and that immaturity rather than ideology was the primary motivator of his conduct....  Defendant had no significant criminal history before his arrest for his present offenses, which he committed when he was only 19 years old.  He has incurred only minor infractions while in BOP custody, all of which were more than two years ago.  He has completed educational courses and drug treatment programs, and has been rated by BOP staff as a "low" risk for recidivism....

Given defendant's age; the more than five years he has spent in prison, including the particularly brutal months in the Malaysian prison; his health risks; and the conditions at Gilmer, defendant has established extraordinary and compelling grounds for release, which the § 3552 [sic] factors do not outweigh. 

Download Ferizi Order Granting Compassionate Release

A few of many prior related posts:

December 6, 2020 at 03:26 PM | Permalink


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