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August 16, 2023

Split Fourth Circuit panel reverses denial of sentence reduction motion and orders 20-year reduction based on stacked § 924(c)

A helpful reader made sure that I did not miss a notable Fourth Circuit ruling today in US v. Brown, No. 21-7752 (4th Cir. Aug. 16, 2023) (available here). The majority opinion for the court begins this way:

On July 30, 2014, a jury convicted Kelvin Brown on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). At the time of Brown’s sentencing, his two § 924(c) convictions carried a five- and twenty-five-year mandatory minimum sentence, respectively. The district court thus sentenced Brown to thirty years in prison for his § 924(c) convictions, and, together with his other five convictions, to fifty-seven years’ imprisonment total.

In July 2020, Brown moved for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Brown primarily argued that his release was warranted because he was at risk of serious illness from COVID-19 and because, under the First Step Act’s amendment to § 924(c) sentencing, he would only be subject to a combined ten-year mandatory minimum for his two § 924(c) convictions if sentenced today.  The district court twice denied Brown’s motion, each time without addressing the disparity between his § 924(c) sentence and the much shorter mandatory minimums the First Step Act now prescribes.

We hold that the district court abused its discretion by denying Brown’s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the § 3553(a) sentencing factors overwhelmingly favor a sentence reduction.  We therefore reverse and remand with instructions to rectify that disparity and reduce Brown’s prison sentence by twenty years.

The majority opinion concludes with some explanation for why it orders a 20-year sentence reduction rather than another remand:

“Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions.” Malone, 57 F.4th at 177.  So, in a different case, we might remedy the district court’s error by remanding for the district court to consider Brown’s disparate sentence in the first instance.  Yet the district court here has already had two opportunities to review Brown’s compassionate release motion: its initial denial of Brown’s motion in July 2020, and its second denial in December 2021 after we remanded Brown’s case for further consideration.  Each time, the district court neglected to address Brown’s disparate sentence. That neglect persisted despite our express recognition in our previous remand order that McCoy — and its holding that disparate § 924(c) sentences can constitute “extraordinary and compelling reasons” for release — “is relevant to this case.” Brown, 2021 WL 4461607, at *2 n.4.

The dissent, authored by Judge Quattlebaum, starts this way:

In an extraordinary and, in my view, regrettable decision, the majority reverses the district court’s order denying Brown’s motion for compassionate release.  It does so only by imposing a standard for explaining decisions that is more demanding than what the Supreme Court recently established. Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“All that is required is for a district court to demonstrate that it has considered the arguments before it.”).  But the majority does not stop there. It then usurps the district court’s assigned responsibility by stepping in to re-weigh the sentencing factors, substitute its judgment for that of the district court and order a 20-year sentence reduction.  The majority may well be troubled by the length of Brown’s original sentence.  But our ordered system of justice requires that appellate courts apply standards set forth by the Supreme Court. And it requires that discretionary sentencing decisions be made by district court judges.  The majority today does neither.  I dissent.

August 16, 2023 at 05:40 PM | Permalink


So much for the discretion invested in district courts by 3582(c)(1)(A). Now, just because something CAN be considered "extraordinary and compelling" means that a district court MUST treat it that way. This should prompt an en banc rehearing petition and, if that fails, a cert petition seeking summary reversal under Concepcion.

Posted by: Da Man | Aug 17, 2023 8:16:34 AM


Funny how Doug always cites the "crime is getting better stories" but not this. What does it say about SF that federal employees get to work from home , , , ,

Posted by: federalist | Aug 17, 2023 9:13:46 AM

That article in behind a paywall for me, federalist, and I tend to focus on homicide data, the most serious of crimes and generally the most consistent data collected/reported. San Francisco historically has had a low homicide rate. I believe it has ticked up in 2023 so far, but at 35 homicides (up from 31) is about half of comparably sized Jacksonville FL, and about a quarter of comparably sized Indianapolis, IN.

Posted by: Doug B | Aug 17, 2023 11:34:08 AM

Where federal workers are unable to safely go to work, it's a sign of an out of control criminal justice system. SF still has demographics on its side when it comes to homicide. How long that lasts is another story.

Posted by: federalist | Aug 17, 2023 11:54:19 AM

And I keep hoping you will start your own blog to discuss all the issues you are most eager to discuss.

Posted by: Doug B | Aug 17, 2023 1:19:01 PM

Why do the comments always veer away from the topic in the post?

Posted by: Da Man | Aug 17, 2023 2:39:38 PM

Da Man, I do not moderate posts, though I do try to encourage sound commenting practices among those who comment. But federalist seemingly has a lot of feelings on a lot of topics and seemingly has only the comments to this blog as a pace where he feels safe (anonymously) sharing these feelings and news items. Though I sometimes urge him to start his own blog for his (off-topic) feelings, often I still engage.

Thanks, Da Man, for usefully reminding me that feeding stay comments can sometime be like feeding stray cats.

Posted by: Doug B | Aug 17, 2023 3:06:30 PM

Well, Doug, just adding to the stuff you put up about crime and society---you pretty much always post the lib POV re: crime.

Posted by: federalist | Aug 17, 2023 3:08:55 PM

Yep, I post what I feel like posting on my blog, federalist, that's how blogs generally work. That's why I suggest, since you have all sorts of feeling on all sorts of topics, that you create your own space to cover the issues that you would like to cover.

Posted by: Doug B | Aug 17, 2023 3:47:38 PM

Not that it’s my business (but I’ll comment anyway), there seems to be a ton more criticism of federalist than for people who say some really nasty stuff.

This website is so left leaning, I enjoy and learn from federalist’s effort to bring some other POVs.

Not my blog though.

Posted by: TarlsQtr | Aug 17, 2023 4:11:03 PM

You can have a conservative bent and still stay on topic. (Just sayin')

Posted by: Da Man | Aug 17, 2023 5:15:47 PM

Doug, the stuff I raise is generally from memory of other blog posts or a little bit of a riff--like comparing the Vietor stuff to the present-day KSM stuff.

And the SF federal employees thing is a measure of how unlivable many areas in SF have become due at least in part to the decisions of prosecutors that you tend to lionize.

Posted by: federalist | Aug 17, 2023 5:55:41 PM

Master Tarls: I tend to engage federalist more than others on legal matters in part because few others do --- because, I sense, his aggressiveness seems to lead some others to disengage. I have had more than a few folks email me wondering about him and some of his statements, but I always say that folks can just not click on the comment thread if they dislike how some use them. (Of course, when federalist sings Trump's praises, he does tend to trigger more responses; I find the usual political partisan-talk beyond boring and something that can be readily found so many other places on the interwebs.)

federalist: I have done nearly 25,000 posts in nearly 20 years, so I am sure there are always "other blog posts" that may trigger all sorts of riffs by those so inclined. But it is pretty easy to set up your own space for your riffing (and you can even use the comments to link to those riffs, as Bill often does). Still, you can riff here as you see fit, though Da Man may represent more than one voice in encouraging effort to tether those riffs to the post topics.

Posted by: Doug B | Aug 17, 2023 6:31:34 PM

Professor Berman, you are exactly right about a reluctance to engage with federalist. Like Trump, he hurls insults and ad hominem attacks at everyone he disagrees with. A very nasty guy with a big chip on his shoulder.

Posted by: anon | Aug 18, 2023 9:23:04 AM


Doug, your commenters are whiny. And my aggressiveness? Quelle horreur. "Nasty guy"--well, federalist is a rude person, he calls a spade a spade.

Posted by: federalist | Aug 18, 2023 9:49:02 AM

I often agree with federalist and sometimes disagree. But one way or the other, he cites and discusses specific cases more consistently than any other commenter.

Posted by: Bill Otis | Aug 18, 2023 10:05:46 AM

I think Bill and Tarls are the best commenters here--I come in well-behind.

Posted by: federalist | Aug 18, 2023 12:21:28 PM

And Doug, I trust you see the relevance of citing Vietor breaking the news to the families of Daqduq's victims in a post about breaking the news to KSM's victims.

Posted by: federalist | Aug 18, 2023 12:24:40 PM

Maybe I can get Bill's take:

So much for the discretion invested in district courts by 3582(c)(1)(A). Now, just because something CAN be considered "extraordinary and compelling" means that a district court MUST treat it that way. This should prompt an en banc rehearing petition and, if that fails, a cert petition seeking summary reversal under Concepcion.

Posted by: Da Man | Aug 18, 2023 5:25:40 PM

Da Man --

I agree with the dissent. Getting further review of the panel opinion is, however, going to be an uphill climb.

Posted by: Bill Otis | Aug 18, 2023 10:49:56 PM

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