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May 13, 2021

Fascinating compassionate release ruling based on clear sentencing error without other means of remedy

Regular readers are likely familiar with many of my (pre-COVID) prior posts making 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 long considered 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 on a variety of grounds.  A helpful reader alerted me to an especially interesting example of the granting of a sentencing reduction in US v. Trenkler, Cr. No. 92-10369 (D. Mass. May 6, 2021) (available for download below).

Trenkler is a fascinating case and opinion for many reasons, and the discussion of the case particulars and compassionate release jurisprudence more generally make Trenkler a must-read for anyone working in this space.  Here are some small snippets from the start and heart of the 50+ page opinion to encourage downloads:

Defendant Alfred Trenkler is a sixty-five-year-old federal inmate serving a life sentence for convictions stemming from his role in an October 28, 1991 bombing in Roslindale, Massachusetts that killed one Boston Police Department Bomb Squad officer and maimed a second officer.  On November 29, 1993, a jury convicted Trenkler of illegal receipt and use of explosive materials and attempted malicious destruction of property by means of explosives, in violation of 18 U.S.C. §§ 844(d), 844(i) (Counts 2 and 3), and conspiracy, in violation of 18 U.S.C. § 371 (Count 1). See Jury Verdict, ECF No. 487. Trenkler is currently incarcerated at the U.S. Penitentiary in Tucson, Arizona (“USP Tucson”).  Defendant moves for compassionate release, asserting that extraordinary and compelling circumstances warrant his release based on (1) the COVID-19 pandemic, particularly in light of his documented heart condition and the outbreak that has left at least 1009 inmates infected with COVID-19 over the past year at USP Tucson; and (2) what Trenkler characterizes as a series of miscarriages of justice that call into question his convictions and sentence....  The Court reduces Trenkler’s sentence to a term of 41 years, followed by a term of supervised release of 3 years... 

In addition to the risks associated with the COVID-19 pandemic, Trenkler urges the Court to reduce his sentence to time served in light of the “unique circumstances” surrounding his case.  Those unique circumstances, in Trenkler’s view, include questions surrounding his guilt and the fundamental unfairness of his conviction; the disproportionality of his sentence as compared to Shay, Jr.’s sentence; and his unlawfully imposed life sentence.

[Despite limits in AEDPA concerning habeas petitions,] now Congress has spoken again [via the FIRST STEP Act].  And this time it has given trial judges broad authority — indeed it has imposed a statutory duty, upon a defendant’s motion — to conduct an individualized review of the defendant’s case for extraordinary and compelling circumstances that call out for correction....  [A series of discussed] cases — and others like them — leave no question that this Court may conclude that a legal error at sentencing constitutes an extraordinary and compelling reason, and reduce the sentence after conducting an individualized review of the case....

Here, it is both extraordinary and compelling that (1) a judge sentenced a defendant to life imprisonment using a preponderance of the evidence standard where the controlling statute provided that a life sentence could be imposed only by the jury; and (2) there exists no available avenue for relief from this legal error.

Download Trenkler CR opinion

May 13, 2021 at 06:27 PM | Permalink


When I was working as a "jailhouse lawyer" at USP - 1, Coleman, Florida, (circa 2007) I met a man who had received an illegal life sentence for "distribution of heroin resulting in death" -- except that the friend he gave 1 gram of heroin at a party for no money is very much alive and was serving his own prison sentence for "distribution resulting in death" over the same gram of heroin! One has to ask how this would even be possible in the Federal criminal system, so let me explain. D-1 and D-2 had been friends since they were 5 years old and both used heroin as adults. At a party, D-1 gave D-2 one gram of heroin, for his own personal use, for no consideration -- it was just a gift. Unbeknownst to D-1, D-2 did not consume the entire gram. The next day, D-2 sold the remaining half gram or so of heroin to V-1 and V-2, who were both long-term drug addictions. Both V-1 and V-2 had overdosed many times, and had been told by E.R. physicians that they had to stop using heroin and other drugs (narcotic pills and benzodiazapines) or they would die. V-1 and V-2 used the half gram of heroin they had purchased, along with other drugs, and V-1 died of an overdose that day. V-2 told the police that he and V-1 had bought the heroin from D-2. The police tried to "move up the food chain" in questioning D-2, threatening him with a life sentence unless he cooperated. D-2 honestly told the police that the heroin had been a gift from his life-long friend, D-1, for no consideration. Federal prosecutors tried to get D-1 indicted with D-2 for "conspiracy to distribute heroin", but the Grand Jury returned a "No Bill", because the transfer to D-2 was a gift, for personal use, without any agreement for further sale or distribution. Thus, the prosecutors could only get D-1 indicted for the initial distribution of 1 gram of heroin to D-2, who was very much alive. D-1 pleaded guilty to distributing 1 gram of heroin to D-2, and was facing a Guidelines Range of 18 to 21 months at sentencing. Instead, the District Judge in Tampa sentenced him to life, with an enhancement for "distribution resulting in death", which had not been mentioned in the Pre-sentence Investigative Report. Incredibly, D-1's defense counsel made no objection to perfect the record for appeal. D-1's sentence was upheld by the 11th Circuit on direct appeal, and the Supreme Court denied Certiorari. I wrote his 2255 Motion for Habeas Corpus, which I briefed as a violation of Due Process of Law, a Violation of the 8th Amendment and Ineffective Assistance of Counsel. I never found out what happened to this case or this defendant, whose name I cannot remember. The real explanation of how he received an illegal life sentence without the person he distributed heroin to dying and his attorney failing to object, is that V-1, who died, was the son of a secretary, who had worked in the Tampa U.S. Attorney's Office for more than 20 years! The Judge and the Prosecutors decided to screw this guy, no matter what the law said, and they even got his attorney to refrain from objecting. It is one of the biggest miscarriages of justice I saw while working in prisons as a "jailhouse lawyer". D-2 received a sentence of 20 years for distribution of heroin (part of the same gram) resulting in death, with consideration given him for providing substantial assistance to the Government in pursuing its case against D-1!

Posted by: Jim Gormley | May 14, 2021 2:50:22 PM

In an extraordinary development, on December 6, 2017, inmate James Terry won a 2241 Habeas Corpus Petition filed in U.S. District Court in Arizona (where he was incarcerated at the Tucson Penitentiary) and was relieved of his illegal life sentence. His Petition is based upon the retroactive application of the Supreme Court's decision in Burrage v. United States, 134 S. Ct. 881 (2014) (narrowing the interpretation of "distribution resulting in death" from strict liability, to being a "but for" cause of death). Because he had already served more than the 20 year statutory maximum for heroin distribution under 21 U.S.C. 841(b)(1)(C), Terry was immediately released from prison. See, James Terry v. J.T. Shartle, Warden, Case No. 4:15-CV-00107-CKJ (CRP) (Dist. of Arizona). One can gain a complete understanding of this rare situation by reading the Magistrate's Report and Recommendation (Doc. #44); Petitioner's Opposition to the Respondent's Objections to the Magistrate's Report and Recommendation (Doc. #52); Docs 63 thru 68, including the Government's "Emergency Motion to GRANT the Petition for Habeas Corpus" (Doc.#63) and the Court's dispositive Order granting Habeas Corpus and ordering that the inmate be released from prison (Doc. #68). It is extraordinarily rare for a defendant whose life sentence has been upheld on appeal (this defendant also waived his right to appeal his conviction in his plea agreement) to ever get out from under a Federal life sentence. What is perverse is that the person Terry distributed heroin to is not dead, and himself served about 20 years in Federal prison for re-selling 1.5 of the 2 grams he received from Terry. The two addicts who bought (the next day) the 1.5 grams of heroin from the person Terry gave it to are the people who died of overdoses (mixing the heroin with cocaine and benzo drugs), leading to the allegation of "distribution resulting in death" against Terry. My memory is that one of the two addicts who overdosed and died was the son of a secretary in the Tampa U.S. Attorney's Office for more than 20 years.

Posted by: Jim Gormley | May 16, 2021 10:43:20 AM

I am a lay man assisting another who is incarcerated and attempting to regain his freedom.

Posted by: Charles Upshur-Bey | Sep 14, 2021 6:03:48 PM

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