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September 1, 2022

Second Circuit panel rules evidence attacking underlying conviction "cannot be raised in a § 3582 motion" for compassionate release ... and reiterates point after Concepcion

UPDATE/Clarification:  A helpful reader flagged for me that on Aug 31, the Second Circuit actually reissued its Orena opinion after having issued its original opinion on June 15.  I have now corrected/amended this post accordingly.

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Just today I saw a second version of a panel opinion from the Second Circuit issued which expressly invents another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.  The per curiam opinion in US v. Orena, No. 21-2747 (2d Cir. June 15, amended Aug. 31, 2022) (original available here), get started this way:

As part of the First Step Act of 2018, Congress authorized courts to reduce a term of imprisonment upon motion by a defendant. See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (amending 18 U.S.C. § 3582(c)(1)(A)).  Section 3582(c)(1), colloquially known as the “compassionate release” provision, permits a district court to reduce a previously imposed sentence “after considering the factors set forth in [18 U.S.C. § 3553(a)] to the extent that they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a reduction.”  Appellant Victor Orena contends primarily that the district court erred in denying his motion pursuant to § 3582 by refusing to consider new evidence that he says calls into question the validity of his conviction.

We conclude that when considering a motion for sentence reduction pursuant to 18 U.S.C. § 3582(c)(1)(A), a district court does not have discretion to consider new evidence proffered for the purpose of attacking the validity of the underlying conviction in its balancing of the 18 U.S.C. § 3553(a) factors. Facts and arguments that purport to undermine the validity of a federal conviction must be brought on direct appeal or pursuant to 28 U.S.C. § 2255 or § 2241. Because the district court properly refused to consider such evidence here as to the § 3553(a) factors and otherwise did not abuse its discretion in denying Orena’s motion for compassionate release, we affirm.

Here is a key paragraph from the opinion:

Orena primarily contends that the district court erred by assuming the PSR’s accuracy and refusing to weigh his new evidence as part of the § 3553(a) factors.  We disagree. Section 3582(c)(1)(A) directs courts to “consider[] the factors set forth in section 3553(a).”  Section 3553 in turn provides “[f]actors to be considered in imposing a sentence.” 18 U.S.C. § 3553(a) (emphasis added).  To impose a sentence, there must necessarily be a valid conviction.  If a defendant contends his conviction by a federal court is invalid, Congress has provided a vehicle to raise such a challenge through a motion pursuant to 28 U.S.C. § 2255, which imposes particular procedural limitations.  A defendant cannot evade this collateral review structure by attacking the validity of his conviction through § 3582.  Accordingly, we conclude, arguments challenging the validity of an underlying conviction cannot be raised in a § 3582 motion as part of the § 3553(a) sentencing factors.  Rather, such arguments are properly raised on direct appeal or collateral review pursuant to 28 U.S.C. § 2255.  Other courts have reached the same conclusion. See e.g., United States v. Bard, No. 21-3265, 2022 WL 843485, at *2 (3d Cir. March 22, 2022) (unpublished per curiam); United States v. Miller, 855 F. App’x 949, 950 (5th Cir. 2021) (unpublished per curiam)

I get the logic of courts wanting to channel efforts to invalidate a conviction into 2255 or 2241 motions. But in some cases prisoners may be eager to highlight problems with the validity of an underlying conviction to bolster their arguments under § 3553(a) that a sentence reduction would produce a sentence that better "promote[s} respect for the law" or would help "avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct."  Because there is no express text in § 3582(c)(1)(A) that would seem clearly to bar this kind of evidence and argument, and because there is text in § 3553(a) that would seem potentially to invite this kind of evidence and argument, I think it problematic — at least for those of us concerned about textualist limits of judicial policy-making — to see another circuit court inventing another non-textual limit on what factors can be considered by district courts when deciding whether to grant a motion for compassionate release.

As I blogged here back in June, the Supreme Court's ruling in Concepcion seem to clearly indicated that circuit courts should not be creating extra-textual limits on the discretion that Congress has given to sentencing judges.  And the defendant in this Second Circuit cases sought reconsideration based on Concepcion, which led to the reissued opinion linked below.  Here is a key added footnote in the amended opinion:

The Supreme Court’s decision in Concepcion does not conflict with our decision in this case.  In Concepcion, the Court emphasized a “longstanding tradition” of discretion afforded to courts consider changes in law or fact when sentencing or resentencing a defendant. 142 S. Ct. at 2395.  However, the Court acknowledged that that discretion is subject to constraints imposed by Congress and the Constitution. Id. at 2400–01.  One such constraint is 28 U.S.C. § 2255, which provides the procedural mechanism for Orena’s arguments regarding actual innocence and the legality of his conviction.

Download Orena Aug 31 2022

This footnote makes my head hurt, because there is absolutely no language in 28 U.S.C. § 2255 which can be fairly read as a "constraint" on what may be valid considerations in the exercise of § 3582/3553(a) discretion.  There is language in § 2255 which limits when and how § 2255 motions are to be resolved, but nothing in that provision places any express or implicit "constraint" on what should be part of compassionate release considerations.  Sigh... Cf. Lewis Carroll, Through the Looking-Glass (1871) ("'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less'.")

September 1, 2022 at 10:47 AM | Permalink

Comments

This seems somewhat akin to the Heck bar requiring that a § 1983 claimant who seeks relief on a theory that would necessarily imply the invalidity of their conviction or sentence must show favorable termination of the case (though acquittal, habeas, etc.) Allowing such claims to be brought under § 1983 would be inconsistent with the specific restrictions Congress chose to put on habeas.

It does seem that certain sorts of § 3582 claims are (at least in the colloquial sense) collateral attacks on the conviction or sentence in a manner similar to certain § 1983 claims. One could argue that a § 3582 claimant shouldn't be able to launch a de facto collateral attack on their sentence that doesn't comply with the specific restrictions Congress chose to impose in § 2255 on challenges to the validity of conviction or sentence. While that may not draw support from the specific text of § 2255 or § 3582, Heck doesn't really draw support from the specific text of § 1983 or the habeas statute, either.

Posted by: Jason | Sep 2, 2022 10:27:02 PM

A key point, Jason, is that the only available remedy in a 3582 motion will be a reduction of a prison term AND a judge has to decide if the 3553(a) also support such a reduction. It is a discretionary determination in sharp contrast to the legal analysis that should be central to 2255/2241 actions.

That said, I would also criticize the Heck bar as being a judicial invention lacking support in the text of 1983.

Posted by: Doug B. | Sep 3, 2022 2:58:13 PM

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