UNITED STATES, APPELLANT, v. EUGENE R. FACON, APPELLEE.
No. 21-CO-542
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided January 26, 2023
Appeal from the Superior Court of the District of Columbia (1998-FEL-002984) (Hon. Jose M. Lopez, Trial Judge) (Argued September 22, 2022)
Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb and Adam Braskich, Assistant United States Attorneys, were on the brief, for appellant.
Hillary S. Smith, with whom Allante Keels and Matt Jones were on the brief, for appellee.
Daniel Gonen, Public Defender Service, with whom Samia Fam, Alice Wang, Mikel-Meredith Weidman, and Paul Maneri, Public Defender Service, were on the brief
Before DEAHL, Associate Judge, and THOMPSON and GLICKMAN,* Senior Judges.
GLICKMAN, Senior Judge: In 1999, the Superior Court sentenced appellee Eugene Facon to life imprisonment without parole following his convictions for armed kidnapping, first-degree sexual abuse while armed, and other offenses. In December 2020, Facon filed a motion for compassionate release pursuant to
Over the government‘s opposition, the judge to whom the motion was assigned granted the motion based on findings that Facon no longer poses a danger to anyone and is medically eligible for early release from prison because of his “heightened susceptibility to the extreme consequence of contracting COVID-19.”
The United States has appealed. It argues that the motion judge erred in finding Facon medically eligible for release without requiring him to show that he remains “acutely vulnerable” to severe illness or death from COVID-19 despite having been vaccinated against the disease. The United States also contends the judge abused his discretion in finding that Facon would not be “a danger to the safety of any other person or the community” if released. We granted the government‘s motion to stay the order releasing Facon pending our resolution of its appeal.
The threshold issue we confront is the issue of our appellate jurisdiction. This is the first government appeal of a compassionate release order to come before this court; the compassionate release cases we have considered in the past all were appeals by defendants from denials of relief. Facon and amicus curiae the Public Defender Service (PDS) argue that we must dismiss the appeal for lack of jurisdiction because no statute expressly permits the
In this opinion we examine the two jurisdictional statutes on which the government relies and conclude that
On the merits, we agree with the government that the motion judge, who did not have the benefit of this court‘s subsequent decision in Autrey v. United States,4 did not apply the proper legal standard set forth in that case in determining Facon‘s medical eligibility for release. We therefore must vacate the order granting Facon‘s compassionate release motion and remand for consideration of whether Facon has shouldered his burden of showing he is acutely vulnerable to severe illness or death from COVID-19 despite having been vaccinated. As to whether the judge abused his discretion in finding that Facon is no longer dangerous, we agree with the government that the judge‘s explanation for that finding is unclear and raises serious questions that make it less than convincing. However, we refrain from holding that the judge erred in determining that Facon‘s release will not endanger any other person or the community, inasmuch as a new, up-to-date assessment of Facon‘s current dangerousness will be necessary on remand before his motion can be granted.
I.
At Facon‘s 1999 trial in Superior Court, the prosecution presented evidence that, on an afternoon in April 1998, Facon attacked K.L., a 24-year-old woman who was a complete stranger to him, in the parking garage at her place of work. Facon approached K.L. from behind, demanded her car keys, slashed her hand and chest with a 10-inch blade, and threatened to kill her if she did not get into the car with him. When K.L. screamed for help and fought to escape, Facon grabbed her by the hair, pulled her into the car, and slammed her head on the dashboard. He drove K.L. to a park, raped her at knifepoint, took her money, and then left her there as he drove off in her car. The jury convicted Facon of armed kidnapping, first-degree sexual abuse while armed, armed carjacking, armed robbery, assault with a dangerous weapon, and threatening to injure a person.
On July 23, 1999, the trial judge sentenced Facon to two consecutive terms of life imprisonment without eligibility for parole (LWOP) for armed kidnapping and first-degree sexual abuse while armed, and an additional 18 1/2 to 55 years in prison for the other offenses of conviction. This court affirmed Facon‘s convictions on direct appeal in 20085 and affirmed the denial of his first collateral challenge to his convictions (alleging ineffective assistance of trial counsel) in 2011.6 In early 2020, Facon appealed the trial court‘s denial of a second post-conviction motion, in which he challenged the legality of his LWOP sentences.7
The latter appeal was still pending on December 30, 2020, when Facon moved in Superior Court for compassionate release pursuant to
The United States opposed Facon‘s motion. While noting that he soon would be offered a COVID-19 vaccine, the government acknowledged that the Centers for Disease Control and Prevention had concluded that obesity, Type 2 diabetes, and, possibly, hypertension increase the risk of severe illness from COVID-19. (The government disputed the significance of Facon‘s other claimed risk factors.) But the United States argued that Facon remained dangerous and had failed to demonstrate otherwise. As evidence of his disqualifying dangerousness, the government emphasized the nature and circumstances of his offenses against K.L.; his criminal history, including the fact that he committed his crimes against K.L. within only six weeks of his release on parole after serving ten years in prison for armed robberies; his history of cocaine use and insufficient drug rehabilitation; his disciplinary violations while serving time, which included not only several minor incidents (e.g., insolence) but also an assault with serious injury in 2002,
On March 8, 2021, the motion judge issued an indicative order stating he would grant Facon‘s motion for compassionate release if this court enabled him to do so by remanding Facon‘s then-pending case on appeal.9 The judge explained that Facon was eligible for release because of his “heightened susceptibility to the extreme consequence of contracting COVID-19.” The possibility that Facon would soon be vaccinated against COVID did not change that conclusion, the judge said, because the vaccines only “diminished” but did not “extinguish[]” the chance of severe illness.
On the main issue disputed by the government, the judge found that the nature and circumstances of Facon‘s crimes against K.L. “show[ed] his potential dangerousness to the community” and weighed against releasing him, especially because the “severity of the crime itself [was] among the worst.” The judge likewise found that Facon‘s previous criminal history and heavy cocaine usage, “as well as the fact that 10 years in prison did so little to rehabilitate him in the past,” weighed “heavily against his release.” But despite those indicia of dangerousness, several considerations persuaded the judge that Facon had been “sufficiently rehabilitated” to justify granting his motion for compassionate release.
First, the judge cited the fact that Facon “admits the seriousness of his offenses, but notes that substance abuse was a contributing factor to his criminal behavior.” On that score, the judge found it significant that Facon, while serving his sentence in prison, had “voluntarily participated in a [N]arcotics [A]nonymous program and ha[d] not used or possessed illegal drugs or alcohol since 2004.” Second, the judge cited Facon‘s maintenance in prison of “consistent employment from food services to carpentry,” his completion of 284 hours of “coursework” (including vocational training, life skills education, and behavioral therapy), his “limited disciplinary infractions,” and “[t]he amount of time since any severe disciplinary infraction.” The judge acknowledged the government‘s representation that Facon had “at least twice been offered and refused sex offender treatment,” but noted that Facon denied having been offered such treatment. The judge did not resolve this factual dispute. Third, the judge cited Facon‘s “claims to have also found renewed religious faith while incarcerated,” and his “close relationships with family members” who “love and care for him deeply” and had come forward to offer him their support upon his release. Lastly, the judge mentioned Facon‘s “advanced age [and] poor health,” as factors that made recidivism less likely. Taking everything into consideration, and admittedly having “some hesitation” due to the nature of Facon‘s crimes and his history, the judge found that the “balance favors
By this time, unbeknownst to the motion judge, Facon already had received both doses of the Pfizer COVID-19 vaccine.10 The United States promptly moved for reconsideration, informing the judge of Facon‘s vaccination and asserting that Facon no longer could show extraordinary and compelling reasons for his release in light of the efficacy of the vaccine in preventing severe illness or death from COVID. Facon opposed the motion for reconsideration. He also asked this court per
On April 26, 2021, the motion judge denied the government‘s motion for reconsideration. “There is still uncertainty,” the judge explained,
regarding the efficacy of the Pfizer vaccine against variants of the COVID-19 virus, the long-term efficacy of the vaccine, as well as how the vaccine affects individuals with Mr. Facon‘s particular risk factors. The Pfizer vaccine, or any other available treatment or mitigation tactics, is not 100% effective at preventing infection or serious complications. Risk appears to remain, but it has been reduced to an unknown degree.
In May 2021, a division of this court granted Facon‘s motion to remand his post-conviction appeal. The United States filed a motion to stay the modification of Facon‘s sentence pending its anticipated appeal of the forthcoming compassionate release order. Facon opposed the stay. In August 2021, the motion judge granted Facon‘s motion for compassionate release by suspending the execution of the remainder of his prison term. Although the judge initially expressed his intent to place Facon on five years of supervised probation, the amended judgment and commitment order thereafter issued by the judge placed Facon on five years of supervised release instead. The judge denied the government‘s stay motion.
The United States appealed and moved this court to stay the amended judgment. Facon, joined by PDS as amicus curiae, moved to dismiss the appeal for lack of jurisdiction in the absence of proper statutory authorization. We denied the motion to dismiss, granted the government‘s motion for a stay, ordered that the appeal be expedited, and directed the parties to address the issue of our jurisdiction in their briefs.11
This and other courts appear to treat proceedings on post-conviction motions for compassionate release from prison sentences as being criminal rather than civil in nature, at least for some purposes.12 That treatment implicates the oft-repeated proposition that “the government has no right of appeal in a criminal case unless there is express legislative authorization.”13 Unfazed, the United States argues
either
A. D.C. Code § 23-104(d-2)
In a criminal or delinquency case, the United States or the District of Columbia may appeal a decision or order entered by the trial court granting the release of a person charged with, or convicted or adjudicated delinquent of an offense, the denial of a motion for revocation of release, or modification of the conditions of release.
The United States argues that the plain language of this subsection authorizes its appeal in this case because Facon was “a person . . . convicted . . . of an offense,” and the order modifying his sentence effectively granted his “release” from prison. Facon and PDS argue that the government misreads the statute, and that it does not authorize governmental appeals of sentencing orders in general, or modifications of prison sentences under the compassionate release statute in particular. Rather, they contend, the text, history, and purpose of
The proper interpretation of
In this case, the government‘s “plain language” reading of
of the
Nor, we note, does
Digging further, we are persuaded that the derivation and legislative history of
B. D.C. Code § 11-721(a)(1)
Thus, there appears to be ample authority supporting the government‘s position that we have jurisdiction over the present appeal under our statutory counterpart of
But Carroll and Stokes recognized an exception that we conclude applies to appeals of orders granting compassionate release to prisoners under sentence. The opinions in both cases acknowledged that “certain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable [by the government as well as the defendant] on the authority of” the final order statute,
Since Carroll, “a number of courts have ruled that section 1291 provides appellate jurisdiction in criminal cases when the issue on appeal is sufficiently distinct from the underlying criminal proceeding.”51 We
The District Court‘s determination that Peterson did not violate the terms of his probation had nothing to do with the merits of Peterson‘s criminal conviction. . . . Nothing the District Court could have done in response to the government‘s petition would in any way have affected, or even called into question, the validity of Peterson‘s underlying conviction or the validity of the sentence imposed by the District Court.
When a district court order has no effect on the merits of the underlying criminal prosecution or sentence, it is ‘truly collateral to the criminal prosecution.’ Accordingly, we have no difficulty concluding that a district court‘s determination that a defendant has or has not violated a condition of probation ordinarily is a decision collateral to the main course of criminal prosecution and therefore appealable under section 1291.53
Much the same analysis demonstrates that an order granting post-conviction compassionate release to a prisoner is sufficiently independent of and “collateral to the main course of [the] criminal prosecution” to be appealable by the United States under
Facon and PDS argue that a compassionate release order under
Accordingly, the court‘s inquiry in a compassionate release hearing is considerably narrower than the inquiry in an initial sentencing or a resentencing; notably, as we have held, a number of factors that are appropriately considered in fashioning a defendant‘s sentence, such as concerns about general deterrence, promoting respect for the law, victim restitution, and imposing just and commensurate punishment, are not properly considered in deciding whether to modify a previously imposed term of imprisonment under
We review the determination of a prisoner‘s medical eligibility for compassionate release for abuse of discretion.62 The United States argues that the motion judge exercised his discretion erroneously by basing his determination of Facon‘s post-vaccination eligibility for release on an incorrect legal standard. Facon and PDS disagree; they argue that the judge did not abuse his discretion in relying on uncertainty as to the efficacy of vaccination to justify his ruling, and that evidence in the record supports a finding that Facon remained acutely vulnerable to severe illness or death from COVID-19 even after being vaccinated. We conclude that the judge did apply an erroneous legal standard in assessing Facon‘s medical eligibility, and that a remand is required for the judge as trier of fact to reassess that issue in light of the correct standard.
The motion judge initially concluded that Facon made the showing required by
There is still uncertainty regarding the efficacy of the Pfizer vaccine against variants of the COVID-19 virus, the long-term efficacy of the vaccine, as well as how the vaccine affects individuals with Mr. Facon‘s particular risk factors. The Pfizer vaccine, or any other available treatment or mitigation tactics, is not 100% effective at preventing infection or serious complications. Risk appears to remain, but it has been reduced to an unknown degree.
The judge‘s analysis is inconsistent with the standard we subsequently articulated in Autrey, that a vaccinated prisoner must show “that he remains ‘acutely vulnerable’ to severe illness or death from COVID-19 ‘despite being vaccinated.‘”63 While we did not offer a “precise definition” of “acute vulnerability,” we said in Autrey that “it requires more than an ‘above-average’ risk, as compared to the general population“—more, clearly, than the motion judge‘s metric of “heightened susceptibility“—since the word “acute” implies the risk must be “serious, urgent, and demanding attention; intensified or aggravated nearly to a crisis, culmination, or
Rather than relying on uncertainties, the judge in the present case needed to make particular findings regarding whether Facon‘s evidence proved that his risk factors rendered him “acutely” vulnerable to severe illness or death from COVID-19 in prison even after vaccination, so as to constitute “extraordinary and compelling circumstances” warranting his release or other modification of his term of imprisonment. On the existing record, we are not prepared to hold that only one answer can be given to this question as a matter of law. We therefore must remand the case for reconsideration of Facon‘s medical eligibility under the legal standard articulated in Autrey.
IV. The Issue of Facon‘s Dangerousness
The United States argues that the motion judge also abused his discretion in finding Facon is “not a danger to the safety of any other person or the community, pursuant to the factors to be considered in
Like the question of Facon‘s medical eligibility for compassionate release, the question of his current dangerousness is not one we are prepared to resolve one way or the other as a matter of law on the existing record; the most we could say is whether the motion judge properly addressed the dangerousness issue. In light of our conclusion that the case must be remanded anyhow for a new determination of Facon‘s eligibility, we exercise our discretion to refrain from deciding whether the judge also erred in finding him not dangerous. Whether or not the judge did so err when he rendered his decision in 2021, an up-to-date assessment of Facon‘s dangerousness will be necessary on remand before his motion can be granted. The motion judge should consider any new evidence the parties introduce regarding Facon‘s present dangerousness.
That said, we think it important to add that we find the reasoning behind the judge‘s finding of non-dangerousness to be unclear, and we explain why with the hope that the rationale for any determination of the question on remand will be more pellucid.
For example, the judge highlighted Facon‘s claim that “substance abuse was a contributing factor to his criminal behavior,” and that while in prison he had participated in a Narcotics Anonymous program and had not used or possessed illegal drugs or alcohol since 2004. But the judge did not explain why these bare facts supported a finding that Facon would not be dangerous if he were no longer incarcerated and under close supervision. It is not clear, and the judge did not find, that Facon overcame his substance abuse problems in prison and would be unlikely to relapse if drugs once again became available to him. Nor is it clear how Facon‘s substance abuse can be said to have contributed to (or otherwise mitigated) the extremely violent crimes perpetrated against a complete stranger (kidnapping K.L., slashing her with a knife, and raping her) that raised the gravest concerns about his “potential dangerousness.” In that regard, the judge gave inexplicably short shrift to the government‘s allegation that Facon had “at least twice been offered and refused sex offender treatment“—which, if true, undercuts Facon‘s claim to have used his time in prison to ameliorate his dangerous propensities and supports the validity of K.L.‘s continuing fear of him.
Similarly, the judge also cited other facts about Facon‘s activities while in the highly regulated environment of prison—his “limited disciplinary infractions,” “[t]he amount of time since any severe disciplinary infraction,” and his employment and coursework—but did not explain why those activities supported a finding that Facon was rehabilitated and would not endanger others if released from such an environment. The same lack of explanation applies to the judge‘s reliance on Facon‘s “advanced” age (he was 57) and health problems; it may be true as a statistical matter that such facts correlate with a decline in violent criminal behavior, but that does not make them reliably predictive in the individual case. Finally, the judge cited Facon‘s “close relationships” with family members who had offered him their support upon his release. But the judge did not explain how this information about his family said anything about Facon‘s own rehabilitation and his receptivity to help from his family, or how the family members would lessen any danger he posed to other persons in the community.
In short, the judge asserted that the “balance favors the conclusion that [Facon] does not” pose a danger, but he did not explain why that was so. If the remand judge adheres to that conclusion, an explanation would be in order.
V.
For the foregoing reasons, we vacate the judgment and orders granting Facon‘s motion for compassionate release and remand the case for further proceedings and a redetermination of Facon‘s medical eligibility and dangerousness. The parties should be afforded the opportunity to present
So ordered.
Notes
In pertinent part,
(a) Notwithstanding any other provision of law, the court shall modify a term of imprisonment imposed upon a defendant if it determines the defendant is not a danger to the safety of any other person or the community, pursuant to the factors to be considered in
* * *
(3) . . . [E]xtraordinary and compelling reasons warrant such a modification, including:
(A) A debilitating medical condition involving an incurable illness, or a debilitating injury from which the defendant will not recover; [or]
(B) Elderly age, defined as a defendant who:
(i) Is 60 years of age or older;
(ii) Has served the lesser of 15 years or 75% of the defendant‘s sentence; and
(iii) Suffers from a chronic or serious medical condition related to the aging process or that causes an acute vulnerability to severe medical complications or death as a result of COVID-19; . . . .
See Bailey v. United States, 251 A.3d 724, 729 n.2 (D.C. 2021) (explaining that a prisoner seeking compassionate release has the burden of showing non-dangerousness by a preponderance of the evidence, because while “a preponderance standard is the default rule in civil cases, its rationale applies to criminal cases when, like here, the legislature has placed an evidentiary burden on the defendant rather than the government“); United States v. Long, 997 F.3d 342, 353 (D.C. Cir. 2021) (holding that the Federal Rules of Criminal Procedure compel application of plain error review to unpreserved arguments in compassionate release appeals).
The characterization of compassionate release proceedings as criminal proceedings is arguably in tension with the “civil” categorization of seemingly analogous proceedings, such as parole revocation proceedings and collateral attacks on convictions in the nature of habeas corpus. If we viewed compassionate release proceedings the same way — for example, as essentially a form of “judicial parole” — the government‘s right to appeal would not be in issue. See, e.g., United States v. Robinson, 388 A.2d 469, 470 n.1 (D.C. 1978) (affirming jurisdiction to hear government appeal from trial court order granting a
District of Columbia v. Whitley, 640 A.2d 710, 712 (D.C. 1994) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977)). The judicial articulation of this constraint on appeals by the United States in criminal cases arose out of double jeopardy concerns. See, e.g., Kepner v. United States, 195 U.S. 100, 133 (1904). Double jeopardy principles do not bar the government‘s appeal in the present case, however. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 132 (1980) (“The Double Jeopardy Clause is not a complete barrier to an appeal by the prosecution in a criminal case. ‘[W]here a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended.’ From this it follows that the Government‘s taking a review of respondent‘s sentence does not itself offend double jeopardy principles just because its success might deprive respondent of the benefit of a more lenient sentence.” (quoting Martin Linen Supply Co., 430 U.S. at 569-70) (alteration in original) (citations omitted)).
Facon has argued that he has a legitimate expectation, protected by the Double Jeopardy Clause, that his modified sentence would be final and hence not appealable by the government. This argument is unavailing. For one thing, a defendant cannot expect finality in a sentence that the government is statutorily authorized to appeal and has appealed. Herring v. United States, 169 A.3d 354, 359 (D.C. 2017) (citing DiFrancesco, 449 U.S. at 139). Moreover, while this court has acknowledged that a defendant may acquire a legitimate expectation of finality in a sentence when he begins serving it, see Smith v. United States, 687 A.2d 581, 583 (D.C. 1996), Facon never began serving his modified sentence, as the release order was stayed and Facon has remained in prison.