Concepcion Trumps Collington, Limits First Step Act Relief

US v. Reed: Reed was convicted in 1996 of conspiracy and distribution of more than 50 grams of crack, along with two counts of possessing a firearm in connection with a drug trafficking offense. Each of the drug counts had statutory sentences of 10 years to life, while the gun counts added 25 years of consecutive mandatory minimums. Reed was sentenced to life, as required by the then-mandatory Guidelines. In 2019, Reed sought relief under the First Step Act, which lowered the statutory ranges on the drug counts to 5-40 years. The district court agreed Reed was eligible for relief, but declined to reduce his sentence based on the severity of his conduct (which included two murders related to the drug conspiracy).

On appeal, the Fourth Circuit reversed the district court’s decision, but in a way that significantly limits the relief available under the First Step Act. In Collington, the Fourth Circuit held that when a defendant’s original sentence was higher than the newly-applicable statutory range given effect by the First Step Act, the district court must reduce the defendant’s sentence to at least the top of the new statutory range. That was Reed’s primary argument on appeal. Collington, however, had been undermined by the Supreme Court’s recent decision in Concepcion, the court held. Although Concepcion did not involve the same kind of statutory issue as Collington, the court concluded that its observation that “the First Step Act does not compel courts to exercise their discretion to reduce any sentence” based on the defendant’s arguments conflicted with and superseded Collington. However, on this record, the court could not be certain that the district court had adequately considered Reed’s argument to reduce his sentence to reflect the new statutory limits and remanded for further proceedings.

Withdrawal of Objection to PSR Waives Challenge to Facts Set Forth Therein on Appeal

US v. Fowler: Fowler pleaded guilty to being a felon in possession of a firearm and possessing that firearm in connection with a drug trafficking crime. One issue at sentencing was whether Fowler should be a assessed a criminal history point (and therefore bumped up a criminal history category) for a prior South Carolina domestic violence conviction in which he was sentenced to take part in an intervention program.  While Fowler initially objected to it being scored, the objection was withdrawn at sentencing and his argument focused on an argument for a variance sentence. The district court rejected that argument and sentenced Fowler to 117 months in prison, the bottom of the applicable Guideline range.

On appeal, the Fourth Circuit affirmed Fowler’s sentence. Fowler raised the criminal history calculation issue, but the court ultimately concluded it had been waived when Fowler withdrew his objection at sentencing. In doing so, the court reemphasized that a “defendant has an affirmative duty to make a showing that the information in the presentence report is unreliable” and, if that burden is not met, the Government’s burden of proof is met and “the district court is free to adopt the findings of the presentence report.” Fowler could not rely on the fact that the description of his prior offense (and resolution thereof) was slight and might not have shown that the conviction should have been counted. The court also held that it could consider a document provided by the Government on appeal from South Carolina’s computer record system showing that a sentence was imposed on Fowler in that case. The court also rejected Fowler’s argument that the district court had not given sufficient consideration to his variance argument.

Denial of Compassionate Release Reversed Where District Court Failed to Adequately Consider Defendant’s Worsening Medical Issues

US v. Malone: In 2008, Malone was sentenced to 330 months in prison for drug and gun offenses. At the time he was already suffering from several medical issues, including cancer. In 2014, while successfully seeking a reduction to 288 months in prison due to retroactive Guideline amendments, Malone provided medical records showing additional issues including kidney disease, hypertension, and “other specified disorders of his liver.” In 2019, due to further decline in his health, Malone sought compassionate release. The district court denied that motion, finding that Malone had not met the standard for “extraordinary and compelling” reasons set forth in the Guidelines.

In 2020, after the COVID pandemic hit, the Bureau of Prisons moved Malone to home confinement (at his brother’s home) to serve his sentence. While on home confinement, the district court granted Malone’s motion to have the probation office do a home study of his own home, as the release to his brother’s home was “error” (he was forcing Malone to pay rent). Malone then filed a second motion for compassionate release, restating his lengthy catalog of medical issues. He also argued that if he were returned to prison (given that the home confinement placement is theoretically temporary) he would have severely increased odds of contracting COVID and suffering severe consequences. As to the relevant 3553(a) factors, Malone argued that he was not a danger to the community and had a viable release plan. The district court denied Malone’s motion in a brief order.

On appeal, the Fourth Circuit reversed the district court’s denial of Malone’s motion for compassionate release. The court concluded that the district court failed to fully “reckon with Malone’s numerous, health-related extraordinary and compelling circumstances distinct from the COVID-19 pandemic” as well as the relevant 3553(a) factors. Particularly, the district court’s analysis was linked with its erroneous deference to the Guidelines in the 2019 denial order. Properly analyzed, Malone’s “numerous health conditions undoubtedly establish” a basis for release. Over time, the court concluded, “the balance of Malone’s relevant 3553(a) factors has shifted, and we find that his sentence is no longer just,” due to his “severely degenerated health and advanced age.” Therefore the court reversed “with instructions to grant Malone’s motion for compassionate release.”

Judge Harris concurred, agreeing that the district court’s denial should be reversed, but arguing that the court should remand for further proceedings (“I would do as Malone asks in his brief”), rather than direct that Malone’s motion be granted.

Congrats to the Defender office in Western VA on the win!