United States v. Russo

For the United States: BREON PEACE United States Attorney By (as to Anthony Russo): Devon Lash Assistant United States Attorney By: (as to Paul Moore): Sophia M. Suarez Assistant United States Attorney Eastern District of New York

For Defendant Anthony Russo: James R. Froccaro

For Defendant Paul Moore: Robert L. Begleiter Hamsa Mahendranathan Saidah A. Grimes Elizabeth D. Soltan Constantine Cannon LLP

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AMENDED MEMORANDUM ^[1]

Frederic Block, Senior United States District Judge

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This December will mark the fourth anniversary of the passage of the First Step Act.^[2] The Act modified 18 U.S.C. § 3582(c)(1)(A), known as the “compassionate release” statute, which empowers the district courts to reduce a previously imposed sentence. However, a court may only do so “after considering the factors set forth in § 3553(a) to the extent that they are applicable, if [the court] finds that...extraordmary and compelling reasons warrant such a reduction...and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A)(i). See United States v. Gotti, 433 F.Supp.3d 613, 615 (S.D.N.Y. 2020) (“[A] defendant who meets all the criteria for compassionate release consideration.is not thereby automatically entitled to a sentence modification. He is simply eligible for a sentence modification.”); Reynolds v. United States, 2022 WL 1444167, at *4 (E.D.N.Y. May 6, 2022) (“Although often referred to as ‘compassionate release,' the statute allows for any sentence reduction-up to and including immediate release-so long as that reduction is warranted by extraordinary and compelling reasons, consistent with the applicable policy statement, and is appropriate in light of the Section 3553(a) factors.”).

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Prior to the First Step Act, the Bureau of Prisons (“BOP”) was the sole arbiter of compassionate release applications. Now, defendants apply first to the BOP for relief, and if the BOP denies their application, they may apply directly to the district court. Though this procedural change appears minor, it has had significant impact for inmates: in 2018, only 34 inmates received sentence reduction via compassionate release. In the years since the First Step Act was passed, more than 4,000 sentence reductions have been granted. See Federal Bureau of Prisons, First Step Act, https://www.bop.gov/inmates/fsa/ (last visited October 25, 2022).

Unsurprisingly, the Act has spawned a plethora of litigation which now makes up a significant part of a district judge's criminal docket. At the heart of the matter is the challenge the district judge faces in deciding which factors the judge can consider in determining whether the “extraordinary and compelling reasons” threshold has been satisfied. This has produced inconsistent caselaw across the country.

In the Second Circuit, a full appreciation of the breadth of the circuit court's unanimous decision in United States v. Brooker, 976 F.3d 228 (2020) is the requisite starting point. It is remarkable in a number of respects. Initially, the court sided with the majority of the courts that had ruled that despite Guideline § 1B1.13 and Application Note 1D, which, to this day, still vest the BOP with “the exclusive authority to bring a compassionate release motion before the court,” Id. at 234, the

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First Step Act has “freed district courts to exercise their discretion in determining what are extraordinary circumstances.” Id.

Guideline § 1B1.13 and its Application Notes set forth factors that the BOP can consider in determining whether extraordinary and compelling circumstances exist. The court in Brooker chose not to abolish them in light of the First Step Act, preferring to “save as much of the Guideline language and policy as possible.” Id. at 235. It therefore ruled that “though motions by the BOP still remain under the First Step Act, they are no longer exclusive.” Consequently, the court “read the Guidelines as surviving, but now applying only to those motions that the BOP has made.” Id. at 235-36.

But what are these surviving Guidelines? Under Guideline § 1B1.13(1) the district court must determine, under subdivision (A), that there are either “extraordinary and compelling reasons to warrant a reduction,” or, under subdivision (B), that “the defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison under his sentence,” provided in each case that “the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).”^[3]

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Under the Application Notes, the Commission identified in three subdivisions under Note 1 the extraordinary and compelling bases for a sentencing reduction: Subdivision (A) speaks to the “Medical Conditions of the Defendant,” such as a terminal illness, “a serious physical or medical condition or serious functional or cognitive impairment, or deteriorating physical or mental health because of the aging process,” provided that the applicable circumstance “substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.” Subdivision (B) speaks to the “Age of the Defendant.” He or she must be “at least 65 years old.. .experiencing serious deterioration in physical or mental health because of the aging process,” and have “served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.” And subdivision (C) addresses “Family Circumstances,” namely, “[t]he death or incapacitation of the caregiver of the defendant's minor child or minor children,” or “[t]he incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.”

Apparently recognizing that these circumstances are rather unforgiving, the Commission assuaged their harsh application by providing in subdivision (D) that the BOP could consider whether there exists “an extraordinary and compelling

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reason, other than, or in combination with the reasons described in subdivisions (A) through (C).” It further provided, in Note 2, that

an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement

But Note 3 provides that “[p]ursuant to 28 U.S.C. § 994(t), rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason.”^[4]

The district court can certainly consider Guideline § 1B1.13 and its Application Notes in determining whether to grant a compassionate release motion, but since they are no longer “‘applicable' to compassionate release motions brought by defendants,” Brooker, 976 F.3d at 236, the court in Brooker pronounced that “[n]either Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion.” Id.

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Notably, Brooker did not address under which circumstances the district court would exceed its compassionate release discretion. It did hold, however, that “a district court's discretion in this area-as in all sentencing matters-is broad.” Id. at 237.

The Brooker court also provided some minimal guidance in remanding to the district court, in the first instance, to exercise its discretion. It commented on the defendant's extensive rehabilitation coupled with the length of his sentence: “Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984.” Id. at 238 (noting that the statute then provided that “reduction may be appropriate when ‘other extraordinary and compelling circumstances justify a reduction of an unusually long sentence'” (citing referencing S. Rep. No. 98-225, at 55-56 (1984)).

The court continued: “these arguments may also interact with the present coronavirus pandemic, which courts around the country, including in this district, have used as a justification for granting some sentence reductions.” Id.

But notwithstanding these comments, district courts throughout the country have not been provided with any guidance as to the limits of their “broad discretion.”

Notably, in Concepcion v. United States, 142 S.Ct. 2389 (2022), the Supreme Court gave an expansive interpretation of the First Step Act's reach in the resentencing context. The court applied the First Step Act...