UNITED STATES OF AMERICA, APPELLEE v. DAVID M. LONG, ALSO KNOWN AS DAMO, APPELLANT
No. 20-3064
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 8, 2021 Decided May 18, 2021
Appeal from the United States District Court for the District of Columbia (No. 1:10-cr-00171-1)
Andrew B. Talai, appointed by the court, argued the cause for appellant. With him on the appellant‘s Memorandum of Law and Fact was Jeffrey T. Green, appointed by the court.
Mark Hobel, Assistant U.S. Attorney, argued the cause for appellee. With him on the appellee‘s Memorandum of Law and Fact were Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.
Before: MILLETT and PILLARD, Circuit Judges, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
As the COVID-19 pandemic raged through the federal prison system, Long filed a motion for compassionate release under
The district court denied his motion because it believed itself bound by a policy statement issued by the United States Sentencing Commission that bars courts from releasing any incarcerated defendant unless the court first finds that he “is not a danger to the safety of any other person or to the community[.]” See
I
A
As a general rule, a federal court “may not modify a term of imprisonment once it has been imposed.”
In 1984, Congress authorized the Director of the Bureau of Prisons to ask courts to reduce defendants’ sentences in unusual circumstances. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, sec. 212, § 3582(c), 98 Stat. 1837, 1998–1999. The statute provided that a court could, “upon motion of the Director of the Bureau of Prisons,” reduce a defendant‘s term of imprisonment when (1) “extraordinary and compelling reasons warrant such a reduction,” (2) the “reduction is consistent with applicable policy statements issued by the Sentencing Commission[,]” and (3) the reduction is appropriate “considering the factors set forth in [S]ection 3553(a) to the extent that they are applicable[.]” Id. (codified at
Displeased with that desuetude, Congress put this problem in its crosshairs in 2018 when it enacted criminal justice reform measures in the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018). See Shon Hopwood, Second Looks & Second Chances, 41 CARDOZO L. REV. 83, 105–106 (2019). In a Section of the Act entitled “Increasing the Use and Transparency of Compassionate Release,” First Step Act § 603(b), 132 Stat. at 5239, Congress made an important change to
As a result, the compassionate release statute now provides in relevant part (with the new First Step Act language italicized):
[T]he 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 [S]ection 3553(a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a reduction; * * *
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]
The Sentencing Commission has lacked a quorum since early 2019, and so it has been unable to update its preexisting policy statement concerning compassionate release to reflect the First Step Act‘s changes. See Brooker, 976 F.3d at 234; United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); see also
In substantive terms, the policy statement governing the Bureau of Prisons’ motions provides that a district court may grant a motion for compassionate release, after considering the applicable factors listed at
B
David Long led a narcotics distribution enterprise in the District of Columbia from the late 1980s through at least November 2008. In May 2012, he pleaded guilty to one count of RICO conspiracy in violation of
Long also admitted to several violent crimes as part of his drug operations. In the summer of 1990, Long kidnapped a young man named Anthony Morrisey and attempted to extract a ransom from Morrisey‘s family and friends. When Long suspected that the police had been tipped off, he murdered Morrisey.
In 2002, Long himself was targeted for murder. He sustained significant injuries, leading to the amputation of both legs. Long believed that Franklin Moyler was responsible, as Moyler had demanded money from Long not long before the attempt on his life.
In 2007, Long paid his co-defendant Rico Thomas $10,000 to kill Moyler. In the same year, Long also contracted to have two more people murdered, Melvin Terrell and Oakley Majors. While the hit on Moyler resulted in his death, the other two targets survived. Terrell was paralyzed and lost his ability to speak. He has since had an arm amputated, undergone a lobotomy, and gone blind in one eye.
The Guidelines range for Long‘s RICO conspiracy conviction would have been life imprisonment, but the government and Long agreed to a plea under Federal Rule of Criminal Procedure 11(c)(1)(C) under which Long would be sentenced to 29 years in prison. The district court accepted that agreement and imposed the 29-year sentence.
C
Long is incarcerated at the federal medical penitentiary in Springfield, Missouri. At this point, he has served almost 13 years of his 29-year sentence. His Bureau of Prison records indicate no disciplinary issues, and he has completed approximately twenty educational courses during his incarceration.
On September 4, 2020, Long moved the district court for compassionate release under
The district court denied Long‘s motion. The court assumed that Long‘s health conditions
Long filed a timely notice of appeal. He argues that the district court erred in relying on
II
The district court had jurisdiction under
Other courts that have heard appeals from denials of compassionate release have not yet engaged with the jurisdictional question at any length, although many have cited
In
But there is a wrinkle. Another jurisdictional provision,
A “would-be appellant cannot use” Section 1291‘s “broad grant of jurisdiction to circumvent statutory restrictions on sentencing appeals in [Section] 3742.” Jones, 846 F.3d at 369. So if the appeal of a denial of a sentence reduction under
In Jones, though, we expressed “serious doubt” about whether Section 3742 applies at all in the analogous context of appeals from the denial of a motion to reduce a sentence under the compassionate release provision‘s immediate neighbor,
Jones centered its analysis on Dillon v. United States, 560 U.S. 817 (2010). There, the Supreme Court ruled that, “[b]y its terms,
The Supreme Court explained that Congress and the federal rules have repeatedly addressed the modification of already-imposed sentences separately and “apart from other sentencing proceedings.” Dillon, 560 U.S. at 828. For example, the jurisdictional provision, Section 3742, itself contemplates only procedures “impos[ing]” sentences initially or through resentencing.
Similarly, Federal Rule of Criminal Procedure 43 requires that a defendant “must be present at * * * sentencing.”
Dillon‘s doctrinal distinction between the imposition of a sentence under Section 3742 and sentence-modification proceedings also makes practical sense. That is because, “[b]y definition, a sentence must already have been imposed” before a sentence-modification rule may be invoked “and a sentence reduction contemplated.” United States v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993). This point is evident
For the same reasons that a sentence modification under
That said, even if an appeal from the denial of a compassionate release motion were to constitute the imposition of a final sentence within the meaning of Section 3742, Long‘s appeal would fall within one of the allowable bases for appeal.
In short, the district court‘s disposition of Long‘s motion for compassionate release was either a sentence-modification ruling appealable under
III
A
While we have not previously established the standard of review for decisions on compassionate release motions under
But because Long seeks reversal on the basis of an argument—the inapplicability of the existing Sentencing
Long argues that we should review the applicability of
B
The government argues that Long is not even entitled to plain error review because he invited the district court to apply
It is settled that a defendant “may not complain about invited error” on appeal. United States v. Brown, 892 F.3d 385, 393 (D.C. Cir. 2018). “Invited error occurs when defense counsel induces the error” through their litigation conduct before the district court. United States v. Lawrence, 662 F.3d 551, 557 (D.C. Cir. 2011).
But not every mistake by defense counsel is an invited error. The invited error doctrine is an equitable doctrine that “seeks to avoid rewarding mistakes stemming from a defendant‘s own intelligent, deliberate course of conduct in pursuing his defense.” United States v. Bastian, 770 F.3d 212, 218 (2d Cir. 2014) (emphasis added; formatting modified). Said another way, “‘[s]tatements amounting to invited error are a species of waiver’ and generally evince an ‘intent’ by the speaker to convince ‘the district court to do [something that] it would not otherwise have done.‘” United States v. Lerma, 877 F.3d 628, 632 (5th Cir. 2017) (second alteration in original) (quoting United States v. Rodebaugh, 798 F.3d 1281, 1304 (10th Cir. 2015)).
Invited error, then, involves intentional “strategic gambit[s]” designed to induce the trial court to take a desired action. Bastian, 770 F.3d at 219. It does not extend to every unintentional “oversight” or innocent mistake that counsel might make. Id.; see also United States v. Coffelt, 529 F. App‘x 636, 639 n.2 (6th Cir. 2013) (“[T]his case is a far cry from a case of gamesmanship or a tactical decision gone wrong, which is the typical factual scenario when the invited-error doctrine is applied.“).
We drew that same line in In re Sealed Case, 108 F.3d 372 (D.C. Cir. 1997), when
In this case, Long‘s motion laid out the elements for compassionate release under the First Step Act, including the requirement that release be “consistent with applicable policy statements issued by the Sentencing Commission.” Mot. for Compassionate Release at 4, United States v. Long, No. 10-cr-171 (D.D.C. Sept. 4, 2020), ECF No. 347 (quoting
That error was a mere mistake, not a strategy or tactic. The motion simply referenced the existing policy statement, as it was the only one to be found. But counsel never affirmatively argued that the statement was applicable to defendant motions under the First Step Act nor urged the district court to apply it as controlling. In fact, Long‘s motion did not treat the policy statement‘s dangerousness criterion as relevant because it never addressed dangerousness at all. See App. 61–71. Nothing in that reference to the policy provision suggests that Long meant to mislead the district court or to strategically induce the district court to enforce an unargued criterion against him.
In fact, it was the government that expressly urged the district court to apply the policy statement in spite of the First Step Act‘s revisions to the compassionate release statute. Opp. to Mot. for Compassionate Release at 7 n.1, Long, No. 10-cr-171 (D.D.C. Sept. 17, 2020), ECF No. 349 (“[T]he policy statement applies to motions filed by defendants as well.“). And it was the government that encouraged the district court to resolve the motion based on the policy statement‘s dangerousness factor alone. See id. at 10. In other words, the government provided the district court with all of the ammunition it needed to deny Long‘s motion on the basis of the policy statement‘s dangerousness criterion. Nothing in the record remotely suggests that the outcome would have changed if Long had omitted reciting the policy statement in his motion.
Finding no invited error, we apply the plain error standard to Long‘s argument on appeal that
IV
Long argues that the district court erred in relying upon the Sentencing Commission‘s pre–First Step Act policy statement to deny his motion for compassionate release. More specifically, he contends that the district court should not have treated as controlling the policy statement‘s requirement
Long is correct, and that error was plain.
A
1
Under the First Step Act, courts must apply any “applicable policy statements” issued by the Sentencing Commission.
The policy statement‘s inapplicability is plain on its face. By its terms, the policy statement applies only to motions for compassionate release filed by the Bureau of Prisons, not by defendants. See
The Sentencing Commission‘s accompanying commentary drives the point home: “A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to
The Sentencing Commission, for its part, has never suggested that its existing policy statement applies to defendant motions under the First Step Act. The Commission, in fact, has issued no policy statement applicable to the First Step Act because it has lacked a quorum since shortly after that Act‘s passage.
In short, if a compassionate release motion is not brought by the Director of the Bureau of Prisons,
2
None of the government‘s counterarguments succeed.
First, the government says that we should disregard the plain language of the policy statement and hold that the policy statement is applicable to defendant-filed motions because, in its view, Congress did not mean to “divest[] § 1B1.13 from its well-established role as the applicable policy
That is a no go. Courts have no license under the First Step Act to perform “quick judicial surgery on [U.S.S.G.] § 1B1.13, * * * editing out the language” that expressly confines its operation to motions filed by the Bureau of Prisons. McCoy, 981 F.3d at 282. There is no ambiguity in the policy statement‘s scope, and “[w]e cannot replace the actual text with speculation as to Congress’ intent.” Magwood v. Patterson, 561 U.S. 320, 334 (2010).
Second, the government invokes the presumption that Congress legislates against and preserves existing law and background understandings. See Gov‘t Mem. 18–20 (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–185 (1988) and United States v. Wilson, 290 F.3d 347, 356 (D.C. Cir. 2002)).
But that canon of construction gets the government nowhere because we would equally have to presume that Congress was aware that the preexisting policy statement applied exclusively to motions filed by the Bureau of Prisons.
The presumption that Congress knows what existing law says means just that: Congress knows what the policy statement says. And what it does not say.
Anyhow, the government has the order of operations exactly backwards. The policy statements of the Sentencing Commission are not background understandings against which Congress legislates. They flow from and are responsive to Congress‘s changes to the law. See
Third, the government argues that “it would be absurd * * * to conclude that Congress and the Commission intended for the dangerousness requirement to apply or not based on who filed the motion[.]” Gov‘t Mem. 20.
Hardly. To begin with, courts may not use the absurdity canon to set aside plain text unless “the absurdity and injustice of applying the provision to the case[] would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.” Pirie v. Chicago Title & Trust Co., 182 U.S. 438, 452 (1901) (quoting Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 203 (1819) (Marshall, C.J.)); see also Stovic v. Railroad Ret. Board, 826 F.3d 500, 505 (D.C. Cir. 2016) (same).
No such absurdity is afoot here. For defendant motions under the First Step Act, courts still must consider and weigh the factors laid out in Section 3553(a), which include the need “to protect the public from further crimes of the defendant” and to ensure “adequate deterrence to criminal conduct.”
All that the pre–First Step Act policy statement did was make that dangerousness factor a rigid precondition to release. Surely all humankind would not recoil in horror at the prospect of the same Congress that wished to expand access to compassionate release also trusting courts to balance all relevant considerations as part of a release decision, including the ability to reduce the risk of criminality by imposing strict supervised release conditions.
Apparently Congress would not blanch at the idea either. When it wanted to make a lack of dangerousness an explicit and inflexible precondition to release, it knew how to say so. As it did in the very next provision of
Anyhow, how absurd can Long‘s reading of the First Step Act really be given that seven other circuits have already adopted it?
B
Of course, finding error in the district court‘s reliance on the
The easiest case for plain error is when “a clear precedent in the Supreme Court or this circuit establishe[s] [a decision‘s] erroneous character.” Terrell, 696 F.3d at 1260. While seven circuit court decisions go a long way, neither the Supreme Court nor this circuit has yet spoken on the inapplicability of the pre–First Step Act policy statement.
But that is not the universe of plain error. Even in the absence of binding precedent, “an error can be plain if it violates an ‘absolutely clear’ legal norm, ‘for example, because of the clarity of a statutory provision.‘” In re Sealed Case, 573 F.3d 844, 851 (D.C. Cir. 2009) (quoting United States v. Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)); see also United States v. Abney, 957 F.3d 241, 252 (D.C. Cir. 2020); United States v. Joaquin, 326 F.3d 1287, 1293 (D.C. Cir. 2003).
This case fits that bill. The plain language of the existing policy statement is applicable only to compassionate release motions filed by the Director of the Bureau of Prisons, and it is facially inapplicable to those motions filed by defendants under the later-enacted First Step Act.
The error is at least as plain here as it was in Sealed Case and Joaquin. In both of those cases, we found that the relevant statutory and Sentencing Guidelines texts, respectively, were sufficiently clear that the district court‘s contrary interpretation was plain error—even though other circuits had taken the opposite view. See Sealed Case, 573 F.3d at 851–852; Joaquin, 326 F.3d at 1292–1293. Here, the score in favor of Long‘s interpretation is seven circuits to one.
The government points to an unpublished and non-precedential decision of the Third Circuit in United States v. Doe, 833 F. App‘x 366 (3d Cir. 2020). But the court of appeals in that case did not address the applicability of
Recently, a divided decision of the Eleventh Circuit ruled that
But that opinion‘s reliance on dictionary definitions of “applicable” misses the forest for a tree. The decision ignores all of the other words in Section 1B1.13 that already state in plain and clear terms when the policy statement applies: “Upon motion of the Director of the Bureau of Prisons[.]”
The Eleventh Circuit backhanded the policy statement‘s express text as “prefatory” language that just “orients the reader by paraphrasing the statute as it existed at the time the policy statement was enacted.” Bryant, 2021 WL 1827158, at *11. Not so. The opening language is not mere prologue. Cf., e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1977–1978 (2016). Quite the opposite, the policy statement‘s first words—“Upon motion of the Director of the Bureau of Prisons under
At bottom, for a policy statement to be “applicable,” it must, at a minimum, take account of the relevant legislation and the congressional policy that it embodies.
The district court‘s error, while plain, was understandable. Long did not present the question of the policy statement‘s applicability to the district court, while the government argued that it was applicable. So the district court did not have the benefit of adversarial briefing on the question. And at the time, some district courts, including within this circuit, had reached the same conclusion that the district court did here. See, e.g., United States v. Goldberg, No. 12-cr-180 (BAH), 2020 WL 1853298 (D.D.C. April 13, 2020); United States v. Alonzo, --- F. Supp. 3d ----, 2021 WL 327571 (E.D. Tex. Feb. 1, 2021). But see United States v. Quinn, 467 F. Supp. 3d 824, 830 (N.D. Cal. 2020); United States v. Beck, 425 F. Supp. 3d 573, 579 (M.D.N.C. 2019). None of the circuit courts had yet weighed in.
The plainness of an error, however, is evaluated at the time of appellate review, not at the time the district court ruled. Henderson v. United States, 568 U.S. 266, 279 (2013). Under that test, the combination of clear text and overwhelming and vigorously reasoned authority from seven other circuits (and the unpersuasiveness of the Eleventh Circuit‘s analysis) make the error plain.
C
To survive plain error review, Long must demonstrate not just a plain error, but also that the error affected his “substantial rights.” Johnson, 520 U.S. at 468. Usually, an error will affect the defendant‘s substantial rights if there is a “‘reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). In other words, Long must show prejudice. Puckett, 556 U.S. at 141. Long has met that task.
In Molina-Martinez, the Supreme Court held that an error by the district court in calculating a range under the Sentencing Guidelines, “whether or not the defendant‘s ultimate sentence falls within the correct range[,] * * * can, and most often will, be sufficient to show a reasonable probability of a different outcome absent the error” and, thus, prejudice under the plain error standard. 136 S. Ct. at 1345. This is because the Guidelines are the “essential framework” and “lodestar” for sentencing proceedings. Id. at 1345, 1346. Because of “the centrality of the Guidelines in the sentencing process,” the Supreme Court concluded, the district
The showing of prejudice is even starker here than in Molina-Martinez. While the district court in Molina-Martinez could have departed from the miscalculated advisory Guidelines range, United States v. Booker, 543 U.S. 220, 264 (2005), where applicable, the policy statement requires courts to deny compassionate release unless they affirmatively find that “the defendant is not a danger to the safety of any other person or to the community.”
In that way, the district court‘s mistaken application of an otherwise mandatory Sentencing Guidelines prohibition affected Long‘s sentencing outcome at least if not more “systemic[ally]” than a discretionary-but-frequently-adopted Guidelines range. See Molina-Martinez, 136 S. Ct. at 1346. And as a result, the court never had an opportunity to evaluate whether release was warranted upon a balancing of the
The government argues that there was no prejudice because the district court would have considered Long‘s dangerousness under the Section 3553(a) balancing framework and likely would have denied the motion on that basis.
But Section 3553(a) requires a discretionary balancing of multiple factors, not just dangerousness. Under that provision, courts weigh (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment; (B) to afford adequate deterrence to criminal conduct; (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; (3) the kinds of sentences available; (4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the Guidelines; (5) any pertinent policy statement issued by the Sentencing Commission; (6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and (7) the need to provide restitution to any victims of the offense.
Because the district court treated
Because “the record is silent as to what the district court might have done had it considered the correct” factors, the district court‘s reliance on an incorrect Guidelines policy statement is “suffic[ient] to show an effect on [Long‘s] substantial rights.” Molina-Martinez, 136 S. Ct. at 1347.
D
Finally, we hold that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Under this factor, “[w]e have repeatedly opted to correct plain sentencing errors that, if left uncorrected, would result in a defendant serving a longer sentence.” Sealed Case, 573 F.3d at 853.
In a similar vein, Long has sought compassionate release asserting extraordinary and compelling circumstances for expeditious relief. If we do not correct this error, we would permanently close the door on any prospect of that release, and even on the district court‘s discretionary consideration of all the factors bearing on such a decision. As the Supreme Court has explained in an analogous circumstance, the “risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because of the role the district court plays” in applying the Guidelines “and the relative ease of correcting the error.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907, 1908 (2018). Indeed, “what reasonable citizen wouldn‘t bear a rightly diminished view of the judicial process and its integrity if courts refused to correct obvious errors of their own devise that threaten to require individuals to linger longer in federal prison than the law demands?” Id. at 1908 (quoting United States v. Sabillon-Umana, 772 F.3d 1328, 1333–1334 (10th Cir. 2014) (Gorsuch, J.)).
V
For all of those reasons, we vacate the judgment of the district court and remand for consideration of Long‘s compassionate relief application under the correct legal standard.
So ordered.