On Tuesday, October 11, 2022, the Court of Appeals for the District of Columbia Circuit, decided United States v. Curtis Jenkins, limiting the available rationale for compassionate release under the First Step Act (FSA). The court found that compassionate release was not available where substantial changes in the law radically reduced the sentence a defendant would face if he had not pled guilty. With this decision, the court made clear that compassionate release is not a substitute for collateral attacks on convictions.
Compassionate Release.
As we have previously discussed, compassionate release is a statutory mechanism allowing federal prisoners facing new hardships to request release from prison or a reduction in their sentence. Previously, the Bureau of Prisons had to make a request. But, as of December 2018, the FSA allows federal prisoners and their attorneys to directly seek relief from the courts.
Under the old regime, BOP would request compassionate release where “extraordinary and compelling reasons” justify early release and the new sentence would be “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582. The Sentencing Commission’s policy listed three reasons for release: health, if the prisoner developed a terminal condition; age, if the prisoner is over sixty-five, has poor health, and has served at least 10 years or 75% of his sentences; and family circumstances if the prisoner is needed to take care of a spouse or miner child. The Sentencing Commission has not updated this policy since the FSA allowed prisoners to request release themselves. Courts, however, consider the list non-exhaustive, and have expanded it—e.g., courts sometimes consider a non-terminal condition compelling where it would leave the prisoner vulnerable to Covid-19. These expansions have stayed within the realm of personal developments in the prisoner’s health and circumstances, independent of the prisoner’s criminal activity or sentence.
Some prisoners, like Mr. Jenkins, have argued that developments in the law should also call for compassionate release.
Mr. Jenkins’ Case
Mr. Jenkins was stopped by police with drugs, cash, and a gun. The government charged Mr. Jenkins, a prior offender, with one count of felon in possession, one count of drug trafficking, and one count of using a firearm while drug trafficking. He was released pending trial, but soon stopped by police again—they found more drugs and another gun. The government introduced identical counts for the second stop.
Mr. Jenkins faced a steep sentence. A first conviction for using a firearm during the crime of drug trafficking carried a mandatory five-year sentence—served consecutive to any other conviction. A second conviction would trigger a twenty-five-year mandatory minimum. At the time, a defendant convicted on two counts in the same case counted as the first and second conviction: Mr. Jenkins faced thirty years for those counts alone. Moreover, Mr. Jenkins had a few prior convictions which meant he qualified as an armed career criminal exposing him to another mandatory fifteen years. All told, Mr. Jenkins could get forty-five years before his drug counts even entered the equation.
Mr. Jenkins pled guilty in federal court to one gun and one drug charge. Prosecutors agreed to ask for a sentence between eight and twelve years, and the court sentenced him to eight years. A pretty good deal, right?
It was—compared to the sentence Mr. Jenkins was facing, but he would not face the same sentence if charged today. First, in addition to expanding accessibility to compassionate release, the FSA eliminated “stacked” mandatory minimum gun sentences: Mr. Jenkins would have only faced five years for each count of use of a firearm while trafficking in drugs—ten years total. (Burnham and Gorokhov recently secured a Fourth Circuit voluntary remand arguing that these changes applied retroactively where a defendant’s pre-FSA sentence was vacated). Second, two later court decisions lowered the impact Mr. Jenkins earlier convictions would have had on his sentence, dropping his career criminal status and the extra 15 year minimum that came with it. The plea he accepted would not look as appealing if he were not facing a forty-five-year mandatory minimum at trial.
The Decision
Mr. Jenkins moved for compassionate release arguing principally that the change in the law governing sentencing was an extraordinary and compelling reason calling for compassionate release. He also argued that he was at risk of developing Covid-19 due to obesity, that his elderly mother needed a caregiver, and that his adult daughters needed their father in their lives. The district court denied his motion, and he appealed to the circuit court.
The circuit court began by concluding, as had the district court, that courts are not bound by pre-FSA Sentencing Commission policy statements when considering compassionate release motions brought by defendants. The court, however, held that Sentencing Commission guidance could serve as a persuasive interpretation of federal law under an administrative law case, Skidmore v. Swift & Co. (1944). “The level of weight such an interpretation carries ‘var[ies] with circumstances,’ including ‘the degree of the agency’s care, its consistency, formality, and relative expertness.’” Jenkins. The Court explained that, as the guidance is formal—created and published and binding in cases where BOP brings motions for compassionate release—concerns sentencing (which the Sentencing Commission is supposed to be an expert on) and is consistent over time, that district courts may rely on the Sentencing Commission’s guidance when ruling on compassionate release motions.
Thus, district courts in the District of Columbia are allowed to limit compassionate release to cases where a prisoner is undergoing a roughly comparable hardship to those in the Sentencing Commission’s policy statement: health, age, or family need.
The circuit next concluded that Mr. Jenkin’s would still not receive to compassionate release if the district court had considered his arguments about the change of law.
Considering FSA’s elimination of stacked sentences, the court joined a the third, seventh, and eight circuits in concluding that changes in sentencing statutes cannot themselves be extraordinary and compelling reasons calling for compassionate release. This puts the D.C. circuit at loggerheads with the neighboring Fourth Circuit—as well as the First, Ninth, and Tenth Circuits—in a growing split across the country. Meanwhile, the Sixth Circuit is internally split while the Second, Fifth, and Eleventh Circuits have yet to reach the issue.
As for Mr. Jenkins’ claim that he was incorrectly classified as a career offender: the D.C. Circuit first found that compassionate release was not a proper vehicle to challenge an error that occurred at sentencing: such claims should be handled in habeas proceedings. Next, the court found that a new judicial decision, like a change in sentencing law, was not grounds for compassionate release. Indeed, a judicial decision only interprets existing law and cannot, itself, change the law.
Absent his arguments about the changes in the law, Mr. Jenkins’ personal reasons for compassionate release—his health and family concerns—were found not to be grounds for compassionate release. The circuit affirmed the district court’s denial of compassionate release.
Takeaways
The key takeaway from this case is that compassionate release is only available in the district of Columbia where circumstances individual to the defendant warrant release. This means those sentenced in D.C. will be less likely to receive compassionate release than their counterparts in Maryland and Virginia (both in the Fourth Circuit). In D.C., defendants may not use compassionate release as a blanket challenge to their convictions.