Federal Sentencing Mitigation 2018 First Step Act Compassionate Release Petition

The Congress in writing the FSA of 2018, by doubling down the confusion and confliction of policy and program designations, worse still in using familiar wording in the Compassionate Release program has left the Attorney General, the BOP and the Federal courts going in different directions.

The emergent resultant conflicts between Federal Circuits means no one can know what and how Compassionate Release can and is to be pled and how to proceed with Petitions.

Less like a horserace and more like a three ring circus, litigating Federal sentencing mitigation and Compassionate Release is like a road-trip to sentence mitigation without a map and with a compass that has three “true north” arrows. Which is true North will only be known when your Federal Judge rules on a Petition and the appellate courts demur or send it up to the United States Supreme Court to resolve District conflicts.

Courts have only agreed on one thing: the language of 18 USC § 3582(c)(1)(A)(2019), Subsection (A) makes little sense, as written, and either overrules or conflicts procedures with 2008, 2015 BOP Rules (now outdated), United States Sentencing Guidelines Commission promulgations and other Federal Sentencing Laws.

Subsection (A) is vague at best, as will be explained below. The District Courts in January, 2020 have acknowledged that (A) has an express interpretation that is most likely different from what Congress intended. So the Courts have derived a peculiar fix, also explained below, that does not make a whole lot of sense. See Bolino, infra.

The path to Compassionate Release Petitions in 2020 must be a trifurcated program of pleadings. Path One: file pleadings that follow the BOP’s pre-2018 path. Path Two; file pleadings that follow the Pilot Program that was given new life by the 2018 FSA act by extending the Pilot program to April 4, 2020. Path Three: Force the Attorney General and the BOP to Federal Court under the 2018 FSA language and let the Judge resolve the question.

A robust litigation program for Compassionate Release would be to simultaneously file pleadings following all three of these conflicted and possibly precluded Petitions. The answers will be known when the Petition is in front of a Federal Judge and will result in a different outcome in different Federal District Courts.

The only safe course is to file three theories of relief.

...It All Starts With 18 Usc § 3582

18 USC § 3582(c)(1)(A)(2019) Reads:

“..(c) Modification of an Imposed Term of Imprisonment. The court may not modify a term of imprisonment once it has been imposed except that-

(1) in any case--

(A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that--

(i) extraordinary and compelling reasons warrant such a reduction” Id.

Note above that the express language of the statute says “..the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility”...”whichever is earlier..”. Id.

In 2019 inmates started to file Compassionate Release Request Petitions with U.S. District Courts nationwide. Many of these inmates did not file BOP Requests whatsoever, and were just Dismissed by the District Courts without prejudice to refile after exhausting administrative remedies. Other inmates filed Petitions, after the Warden did not respond to the Request AND 30 days lapsed. Yet other inmates filed Petitions where the Warden responded within 30 days, but did not grant the Compassionate Release Request, or simply Denied the Compassionate Release Request, but did so, within the 30 day time period after receipt.

The United States Code Of Federal Regulations (“CFR”) has specific regulations dealing with the Compassionate Release Program and processes, that pre-date enactment of the First Step Act Of 2018, as found at 28 CFR §§ 571.60-571.64(2019)1. In short, the CFR rules of engagement suggest that an inmate must follow all Administrative Appeals processes for Compassionate Release Requests, however, the 2019 CFR Rules do not permit an inmate to Petition a District Court Judge for Compassionate Release at the conclusion of the administrative remedies stated either, because the CFR Rules predate the First Step Act Of 2018. In any event, the CFR are the nuts and bolts administrative regulations that the Bureau Of Prisons, in this case, was given authority by Congress to promulgate. The rub is that those specific CFR Rules are at odds now, with the express language of Subsection (A) to 18 USC 3582(c)(1)(2019), supra.

The best scenario possible would be for the Warden to receive the BP9 Compassionate Release Request and then to completely ignore the request entirely, or to file a Denial a week or two after the 30 day period for the filing of such a response lapses, infra.

Because these issues are brand new issues of first impression in the United States, District Courts did not start taking a serious look at Subsection (A) until late in 2019. These issues are so new that the reported cases are only couple months old.

These are standing issues which are paramount to the Courts subject matter jurisdiction.

The US Attorney states that the inmate did not exhaust Administrative Remedies, before filing the Petition with the District Court and therefore the Petition should just be Dismissed; while the inmate states that he did exhaust administrative remedies first before filing and the Court should Grant the Petition.

Relative to the initial standing issue, the Court is left with a vague on it’s face First Step Act Of 2018 18 USC § 3582(c)(1)(A), that could be interpreted as though complete normal administrative appeal processes are mandatory, yet the express language of the statute reads otherwise, but to read the statute literally means that all the related 2019 CFR Rules are wrong, resulting in a potential absurd interpretation. Hence, Congress screwed up2 on the language. That is obvious.

1. If the Warden does not respond within 30 days, and the 30th day lapses without ANY response from the Warden to the inmate, then the inmate gains immediate standing to file a Petition in the District Court asking for Compassionate Release; but
2. If the Warden responds in writing within 30 days and either Denies, disagrees, takes neither position, tells the inmate to further appeal, basically any response whatsoever within the 30 day window, that the inmate must go through the entire Administrative Appeals Processes prior to filing a Petition with the District Court.
3. Hence the strange District Court interpretation of Subsection (A) following rules of judicial interpretation first, giving literal meaning to the provision as written, as opposed to interjection it’s own suppositions relative to what Congress really intended to say, but didn’t.
4. This is why the best possible scenario is that the Warden gets the Request For Compassionate Release and just ignores it until 30+ days after receipt lapses. That result is golden at this very moment in time. No United States Circuit Courts have gotten their hands on this issue yet.

In United States v. Nance, 2020 WL 114195 (WDVA 1-10-2020) the Court quickly got to the crux of the administrative remedies exhaustion vagueness issue stating:

“The court may not modify a defendant's term of imprisonment for extraordinary and compelling reasons unless upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier.

18 U.S.C. § 3582 (c)(l)(A). While Congress likely meant that an inmate must exhaust all of his administrative remedies unless his warden does not respond to the inmate's request to file a motion on the inmate's behalf within 30 days, the literal language permits the inmate to seek judicial relief in the event that (1) he has exhausted all of his administrative remedies or (2) 30 days have elapsed since the Warden received the inmate's request, whichever event is earlier. This literal reading would ignore the extreme unlikelihood of any administrative appeal within the bureaucracy of the Bureau of Prisons being completed in 30 days. The cases indicate that this statutory exhaustion requirement has been interpreted to excuse full exhaustion of administrative remedies only if 30 days have elapsed without any response by the Bureau of Prisons to the inmate's request. See United States v. Bolino, No. 0 -cr-080 (BMC), 2020 WL 32461, at *1 (E:D.N.Y. an. 2, 2020) (citing cases). In Nance's case, the Warden did respond to his request within 30 days. Accordingly, Nance was obligated to complete the administrative appeal process.” Id.(Italics added)

The Nance Court extrapolated and expanded an interpretation from United States v. Bolino3, 2020 WL 32461 (EDNY 1-2-2020), that stated:

“18 U.S.C. § 3582(c)(l)(A). The First Step Act expanded the criteria for compassionate release and provided defendants with the opportunity to challenge the Bureau of Prisons' ("BOP") denial of compassionate release in federal district court; however, the law did not alter the requirement that prisoners must first exhaust their administrative remedies before seeking judicial relief. See United States v. Hassan, No. Cr-10-187, 2019 WL 6910068, at *1 (D. Minn. Dec. 19, 2019) (A defendant "must exhaust her administrative remedies before seeking judicial relief, or she must show that she submitted a request for compassionate release and that 30 days have lapsed since the request was submitted [without action by the BOP]."); United States v. Davis, No. 15-cr-20067, 2019 WL 6898676, at *1 (W.D. Tenn. Dec. 18, 2019); United States v. Keith, No. CR-16-62, 2019 WL 6617403, at *l (W.D. Okla. Dec. 5, 2019); United States v. Koch, No. 0l-cr-83, 2019 WL 3837727, at *2 (E.D. Ky. Aug. 14, 2019); United States v. Brewington, No. 12CR9-007, 2019 WL 3317972, at *2 (W.D. Va. July 24, 2019); United States v. Solis, No. CR-16-15, 2019 WL 2518452, at *2 (S.D. Ala. June 18, 2019).

A BOP Program Statement outlines the administrative appeal process in detail. See Program Statement No. 5050.50, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§ 3582 and p i 4205(g) (Jan. 17, 2019), https://www.bop.gov/policy/progstat/5050_050_EN.pdf. The BOP's Program Statement explains that a prisoner seeking a compassionate release must first file a request with the prison warden asking the BOP to move for compassionate release on the prisoner's behalf. See id. at 3 (citing 28 C.F.R. § 571.61). If the prison warden denies that request, the prisoner must appeal the denial through the BOP's Administrative Remedy Procedure. See id. at 15 (citing 28 C.F.R. § 571.63). Thus, the same exhaustion procedure for routine administrative grievances (i.e., the use of forms BP-9 through BP-11) applies to requests for compassionate release.” Id.

EDNY Judge Brian M. Cogan is single handedly making the First Step Act Of 2018 more expansive and more user friendly for inmates in the EDNY, having authored two first impression opinions within a 30 day period that are spot on. Quashie and Bolino are spot on user friendly for inmates. Quashie arguments have already been added to Lewis Stahl’s Compassionate Release Request in Section III., Subsection C., 3. Now Bolino arguments will be added to Lewis Stahl’s Request in Section III., Subsection C., 3., because Judge Cogan tied in the DOJ-BOP Program Statement into Compassionate Release extraordinary and compelling reason considerations.

The DOJ-BOP Program Statement4 (Policy Statement) contains it’s own drafting errors that will invariably enure to the benefit of inmates filing Compassionate Release Petitions. The DOJ-BOP Program Statement incorrectly states in Section 7: “FACTORS AND EVALUATION OF CIRCUMSTANCES IN RIS REQUESTS”, which are factors that the Warden must consider in processing compassionate release requests. Use of the term “circumstances” is more broad than “other reasons” enumerated in USSG § 1B1.13(2018). Circumstances connotes many of the 18 USC § 3553(a) considerations. In short, 3553(a) considerations tie into “circumstances”. Great stuff there. Judge Cogan was smart enough to tie in the Program Statement into his written opinion. Now the DOJ will have a harder time arguing that 1B1.13 does not apply, or that 3553(a) considerations do not constitute “other reasons” for compassionate release. In Lewis Stahl’s Compassionate Release draft another section will be added arguing “circumstances” pursuant to the Warden’s factors that must be considered, in addition to “other reasons” warranting compassionate release.

Note that Judge Cogan suggests that when a Warden does respond within 30 days that the inmate must fully exhaust all other mandated administrative remedies, pursuant to both the BOP Program Statement (January 17, 2019), which are also codified in 28 CFR §§ 571.60-571.64(2019).

1. Compassionate Release Request gets filed directly with the Warden, attached to a BP9 Form. Strict observance must be given to 30 days after receipt by the Warden. The Petition must be filed with the District Court within a day or two after the 30 day lapses, in order to avoid the entire administrative remedies processes. The best case scenario is that the Warden ignores the Request completely.
2. If the Warden responds within 30 days following receipt, the entire administrative appeals process must be exhausted, which takes between 3 months minimum to about 6 months maximum time.
3. Many related laws are either rendered moot or replaced by the First Step Act Of 2018. Many BOP Policy Statements, etc.. are outdated and have not been amended. Same thing with the CFRs which are in need of amendment and make little sense when compared to First Step Act Of 2018 provisions to the contrary.