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January 14, 2023

Fourth Circuit panel finds district court abused its discretion when denying compassionate release to elderly drug offender

I just came across a notable ruling from last week by a Fourth Circuit panel in US v. Malone, No. 21-6242 (4th Cir. Jan. 5, 2023) (available here). In this case, the circuit court panel concludes that "the district court abused its discretion by failing to properly assess the following factors which would warrant Malone’s compassionate release: his ailing health, advanced age, and relevant 18 U.S.C. § 3553(a) factors." Here is one key paragraph from the opinion (emphasis in the original):

[W]e conclude that the district court abused its discretion by failing to recognize that the relevant § 3553(a) factors clearly favor release.  Having a Category I criminal history, Malone acknowledged the seriousness of his offense in prior motions to the court and has now served over fourteen years of his sentence.  While in prison, he participated in multiple classes and was also placed in a low-level prison camp.  His new extraordinary and compelling health-related circumstances have condemned him to a life filled with limitations.  Due to these circumstances, his potential for recidivism is low to none and he does not pose a threat to others or the community at large.  To affirm the district court’s denial would not only be a great disservice to Malone, but to any defendant with failing health seeking autonomy in their twilight.  There is a reason this is called compassionate release, after all.

January 14, 2023 at 09:56 PM | Permalink


What a waste of resources. Having a higher court hear and decide a case that is not about facts of law, but subjective judgement, is ridiculous.

Posted by: TarlsQtr | Jan 14, 2023 10:46:09 PM

I wonder what do you suggest would be a better way to use available resources? Or, is it better to allow someone who is clearly not a threat to the community to sit in prison and compel the public tax dollars to pay medical expenses for this person as they age?

Posted by: Eric A. Hicks | Jan 15, 2023 9:47:26 AM

The courts are already overwhelmed. This case is not worthy of clogging the docket.

Perhaps he should get out, perhaps not. But those are the breaks in the crime game. You put your fate into the hands of others. He’s barely done half his sentence for crimes he admits to.

I’d much rather the Fourth Circuit Panel use its time to stop racial discrimination against Asians on college campuses or on cases where the facts are in doubt.

Posted by: TarlsQtr | Jan 15, 2023 12:47:29 PM

One more point. Do you seriously believe we are not going to pay his medical expenses upon release? If he is healthy enough to go out and get a job with health insurance, he shouldn’t get out. If not, he’s on the dole for every welfare program we have, including Medicaid or Medicare.

Posted by: TarlsQtr | Jan 15, 2023 12:50:25 PM

Great 'talking' points. It's unlikely that the U.S. appellate courts can deter the scourge of discrimination against Asians since they have yet to do it against African-Americans. So, my friend, perhaps if our friends in Congress created more legislation that was less ambiguous and that more effectively targeted the rampant racism within our institutions---including the courts, we would not be having this discussion on a Sunday afternoon about Asians or any other group.

Second, I wonder if many individuals---predominantly in rural 'red' areas---would find your comments on Medicare and Medicaid thoughtful. After all, these programs aid a majority of the 'base' that your type continuously use for political expediency. Nothing is done to improve the lot or lives of these folks. Rather, false narratives are used to stoke anger and resentment within the communities and make them believe that 'some' faction of the country is benefiting from social spending (when they are actually the greatest benefactors) at their expense.

Lastly, maybe the individual should be released, maybe not. I'm not the judge of that and neither are you. I recognize that it's very easy to form a topical opinion of something or someone when you have not walked in the shoes of another. A judgment---often completely lacking in empathy, is made from limited experiences and exposure.

I also recognize that a certain element of society is more likely to accept a sentence of 330 months for this individual while arguing unfair persecution at 'no' jail time when confronted for transgressions against the country or that a sentence of likely less than half is too much for those who: 1) use misinformation to grift from a portion of society; 2) use the same misinformation to deliberately peddle misinformation endangers members of Congress and other law enforcement entities; 3) threaten and/or assault members of the government under the guise of being 'patriots.' In fact, the list of crimes committed by those who profess to be 'patriots' is innumerable. They pose a greater danger to the democracy than the Lonnie Edward Malones' of the world but it's easier to vilify the lowest hanging fruit. It always has been.

What I am saying, is that the hypocrisy runs very deep. I wish life, and the country we love, wasn't so complicated but it is. The simple answer, which you tend to have many of, is often the wrong one because it fails to truly look beneath the surface. I wonder if it is because you know what you will find there and really "don't" want to know "it"is as it will mark the beginning of the end of your 'narrative.'

Posted by: Eric A. Hicks | Jan 15, 2023 2:54:38 PM

What is notable about this decision to me is that it comes from the Fourth Circuit Court of Appeals. My view is that the Eleventh Circuit and the Fourth Circuit are the two most harsh Circuit Courts when it comes to appeals in criminal matters. This case was not decided by the notably liberal Ninth Circuit Court of Appeals. Thus, I think the Government's prosecutors and the District Judges should sit up and take note of what the panel has written in its opinion. In August or September of 2006, I wrote a Petition for Compassionate Release for the longest serving inmate in the BOP, who was then terminally ill with cancer that had metasticized throughout his body. Under the old Compassionate Release rules, he died 6 weeks later, with his Petition approved by the Warden at USP-1, Coleman, Florida, but still sitting at the BOP Regional Office. That inmate was convicted of kidnapping resulting in death and had a paroleable life sentence; he had begun serving time in June 1962, as I recall. He had been released on parole in 1993, for about 2 weeks, after serving 30 years of that sentence. During those two weeks, he and his brother had robbed a few banks, resulting in additional Federal charges and the revocation of his parole. By 2006, he was in his 80s, frail and restricted to a wheel chair. He was no longer a threat to anyone and should have been permitted the dignity of dying with his family on the street. He had a release plan, to go to the home of his deceased brother's wife, in Tennessee.

Posted by: Jim Gormley | Jan 15, 2023 7:01:23 PM

Nice discussion of the “narrative.” Too bad most of it was written by you.

The only numbers I see showing the “rampant racism of our institutions,” is the ridiculous use of incarceration rates by race. If you want to pick out specific cases of racism, I’m right there with you to stamp it out. Minority crime has skyrocketed since the 1950’s. Are we supposed to believe that these “racist institutions” were less racist then? Why are people pretending to be black when applying to college and for jobs? A bunch of white people want to be victims of racist institutions? We know the colleges are discriminating against Asian-Americans. They admit it.

Your screed about Medicare/Medicaid is a red herring. You made the point that we are paying for healthcare in prison. I made the point that we will be paying for it anyway. It was neutral. In fact, I am in charge of training for the Dept. of Medicaid and the Kentucky Health Benefit Exchange (Obamacare). I do believe the programs are abused and Obamacare was an atrocity, but I can’t be THAT against it, can I? I also worked in the NYS prison system helping inmates get their GEDs. “So, I’m not sure what “your type” refers to.

And as far as stoking hatred, constant screeching about institutional racism is exactly that. It creates victims and pits them against the white devil.

Another red herring with the January 6, I think you would call them, “talking points.” Your gross overstatements aside, on this very website I’ve indicated those people deserve what they get for what can be proven.

You are winning the debate, just not the one with me. It’s like you are typing to someone else.

Simple answer? What’s more simple than, Racism! Racism! Racism!”

Posted by: TarlsQtr | Jan 15, 2023 7:52:19 PM

Jim Gormley--Your view of the Fourth Circuit is outdated. It has been the most progressive court of appeals in the country at least since the Obama years. The Ninth Circuit, by contrast, has been largely remade by Trump and is not notably progressive in any way. (The Eleventh Circuit remains horrible for criminal defendants.)

Posted by: AFPD | Jan 16, 2023 1:12:24 PM

Re: waste of resources, etc.

The tradition in this country is nearly unlimited first appeal as a matter of right. While I might tighten that slightly and require leave to appeal from the district judge or a circuit judge in some categories of cases -- cf. certain decisions in the UK -- this case isn't anywhere close to the most useless case on the court of appeals' docket.

Posted by: Jason | Jan 16, 2023 10:13:27 PM

Jason: You might be interested to know that according to the Bureau of Justice Statistics, only about 2.6% of all Federal criminal appeals result in a benefit for the defendant/appellant. Most of the benefit is having the sentence vacated and remanded for re-sentencing, but in half of such cases, the District Judge reimposes the same sentence, but justifies it better than he did the first time, so that it will withstand the second appeal that follows. It is really quite rare to actually see a substantive conviction reversed on direct appeal, but in many such cases, the reversal is based upon mistakes in the jury instructions.

Posted by: Jim Gormley | Jan 16, 2023 11:17:04 PM

Among the rarest of appellate victories was United States vs. Douglas Adams, et al. (July 2013), where the Sixth Circuit reversed all convictions for all defendants in a high profile political corruption/ RICO vote buying case. The trial in the Eastern District of Kentucky had lasted more than 6 weeks. Two weeks after the massive appellate reversal, the trial judge, Danny Reeves, sua sponte recused himself from re-trying the case. Chief Judge Karen Caldwell kept the case for herself and quickly put out the word that she did not want another 6-week long trial. She encouraged counsel to come to plea bargains. Several defendants agreed to plead to some charges in exchange for sentences of "time served" (they had been incarcerated while the first appeal was being briefed, argued and decided). The last defendant to plea was former Circuit Judge Cletus Maricle, who agreed to 6 more months of home confinement. The opinion is definitely worth a read, if you haven[t seen it before.

Posted by: Jim Gormley | Jan 16, 2023 11:28:10 PM

The citation to United States v. Adams, et al., discussed above, is 722 F.3d 788 (6th Cir. 2013). It is a worthy read. It is extremely rare to see all of the convictions of the 10 defendants vacated after a 7 weeks long trial, based on the trial court's cumulative errors denying the defendants a fair trial. The Adams case belongs in a criminal law case book.

Posted by: Jim Gormley | Jan 17, 2023 6:47:18 AM

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