UNITED STATES OF AMERICA v. JEFFREY ALLAN MCMARYION
No. 21-50450
United States Court of Appeals for the Fifth Circuit
March 28, 2023
Aрpeal from the United States District Court for the Western District of Texas, USDC No. 7:13-CR-141-1
Before HIGGINBOTHAM, JONES, and OLDHAM, Circuit Judges.
Jeffrey McMaryion, a federal prisoner, appeals the denial of his motion for compassionate release under
I.
McMaryion pleaded guilty to conspiracy to possess with intent to distribute 280 grams or more of a substance containing cocaine, in violation of
On November 16, 2020, McMaryion filed a motion for compassionate release under
McMaryion again appealed. We review questions of law de novo and the ultimate decision to deny compassionate release for abuse of discretion. See United States v. Escajeda, 58 F.4th 184, 186 (5th Cir. 2023).
II.
The First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), allows a prisoner to move for a sentence reduction under certain circumstances. The one at issue here is colloquially called “compassionate release.” See United States v. Shkambi, 993 F.3d 388, 390-92 (5th Cir. 2021) (describing the history of compassionate release). As relevant here, a prisoner can move for compassionate release when “extraordinary and compelling reasons warrant” a reduction of his sentence. See
McMaryion offers four reasons for his
First, McMaryion raises substantive challenges to the legality of his confinement. Specifically, McMaryion argues that his trial and appellate counsel were ineffective and that the Government breached his plea agreement. But because these claims are cognizable under
Second, McMaryion argues that he should get a sentence reduction because the First Step Act reduced the statutory minimums applicable to his offenses. But Congress did not make those reductions retroactive. And a prisoner may not leverage non-retroactive changes in criminal law to support a compassionate release motion, because such changes are neither extraordinary nor compelling. See, e.g., United States v. Jenkins, 50 F.4th 1185, 1198-1200 (D.C. Cir. 2022) (so holding); United States v. McCall, 56 F.4th 1048, 1065–66 (6th Cir. 2022) (en banc) (same). Rather, “in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012) (emphasis added). This ordinary practice reflects a “presumption against retroactive legislation” that is “deeply rooted in our jurisprudence” and that “embodies a legal doctrine centuries older than our Republic.” Landgraf v. USI Film Prods., 511 U.S. 244, 265 (1994). We may not
Third, McMaryion briefly suggests that an amendment to the United States Sentencing Guidelines favors his early release. McMaryion did not adequаtely present this argument to the district court, however, so it is forfeited. See Rollins v. Home Depot, 8 F.4th 393, 397–99 (5th Cir. 2021). And in any event, changes to the Sentencing Guidelines can give rise to relief under
McMaryion‘s fourth and final argument is the only one that states a possibly cognizable basis for compassionate release—namely, that COVID-19 constitutes an “extraordinary and compelling” reason for his release. To support this argument, McMaryion suggests that his prior COVID-19 infection and general ill health place him at greater risk from COVID-19 relative to the broader population.
We have said that a late-stage, terminal prognosis can constitute an extraordinary and compelling basis for a
III.
Separately, McMaryion argues that the district court committed procedural error by perfunctorily denying his
And in any event, the district court did not procedurally err. True, we require that a district court provide a reason for its denial of a prisoner‘s compassionate release motion. See Chambliss, 948 F.3d at 693. Here, the district court denied McMaryion‘s motion “[a]fter considering the applicable factors provided in
The dissent highlights past occasions in which we required greater explication when the district judge deciding a compassionate release motion did not originally sentence the movant. See United States v. Sauseda, No. 21-50210, 2022 WL 989371, at *2 (5th Cir. 2022) (per curiam). The Sauseda panel based its judgment on perceived inability to impute reason for the compassionate release decision from sentencing.
We decline to do so for three principal reasons.
First, Sauseda is distinguishable. There the Government did not file a response opposing the prisoner‘s
Second, Sauseda and Suttle are non-binding, unpublished decisions. See 5th Cir. R. 47.5. And they diverge from the bulk of our authorities upholding succinct district court decisions on
Third, Chavez-Meza v. United States, 138 S. Ct. 1959 (2018), supports our approach. In that case, the Supreme Court emphasized that context and “circumstances” determine “the appropriateness of brevity” in
Here, the relevant “circumstances” are that McMaryion already received a procedurally rigorous and proper sentencing hearing, and afterwards he asked the district court to revisit it under
Concepcion v. United States, 142 S. Ct. 2389 (2022), is not to the cоntrary. In that case, the question was whether a federal judge could consider intervening changes in facts and law in adjudicating a sentence-reduction motion under
The Concepcion Court referenced
No one doubts that district courts enjoy wide discretion when considering compassionate-release motions. That includes discretion to offer lengthy explanations for denying relief under
AFFIRMED.
PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:
I would hold that the able district court insufficiently explained its reasoning, a procedural error necessitating vacatur and remand, and would not reach the merits of McMaryion‘s motion.
I.
It is common ground that a district court, when denying a motion for a sentence reduction, must articulate the reasons, and failing to do so is error.1 The majority holds that the district court‘s recital—“the applicable factors provided in
Beginning with the end, the majority writes: “Even if the district court committed procedural error, McMaryion would not be entitled to a remand. That‘s because a procedural error is by definition harmless where, as here, the prisoner‘s arguments fail on the merits.”2 The majority here collapses a district court‘s duty to articulate its reasons and the merits of McMaryion‘s plea for a reduction. Simply put, it erases the obligation to articulate a court‘s reasons. In doing so, it fails to honor the distinct mission of articulation whether in open court or in a filed order.
One‘s right to a procedurally reasonable sentence—including the adequacy of the explanation—is distinct from the right to a substantively
reasonable sentence. As the Supreme Court has explained, an appellate court “must first ensure that the district court committed no significant procedural error, such as . . . failing to adequately explain the chosen sentence,” and only once it has determined procedural soundness may it then “consider the substantive reasonableness of the sentence imposed.”3 In other words, the defеndant has a right not only to a fair denial, but also an independent right to know why.
The natural extension of the majority‘s position makes this plain: taken to its logical end, a defendant can never successfully vindicate the right to a sufficient explanation if the outcome is substantively reasonable, as the defendant could never make the requisite showing that the sentence would be modified upon such a showing. This elides the obligation to explain and would give rise to the sort of “absurd result[]” this Court aims to avoid,4 acutely in the criminal law arena.
This is no check the box exercise. A district court judge failing to adequately explain what the judge found persuasive in sentencing and in
error,”5 the error must be discernable or “identifiable” for review.6 Second, explanations serve systemic aims such as “promot[ing] the perception of fair sentencing.”7 As the Supreme Court has stated, “[c]onfidence in a judge‘s use of reason underlies the public‘s trust in the judicial institution,” and “[a] public statement of those reasons helps provide the public with the assurance that creates trust,”8 this with the Supreme Court‘s further guidance that the degree and depth of the articulation required depends “upon the circumstances of the particular case.”9 In sum, to deprive the relevant entities of vital information as to the denial of any incarcerated individual‘s
II.
Tucked away at the end of the opinion, the majority questions the procedural requirements for adjudicating
Recent Supreme Court precedent dictates this conclusion. In Concepcion v. United States, the Supreme Court directly tied sentencing jurisprudence to deciding
This Court has held as much. Three years ago, this Court made clear that in denying
In sum, a defendant has the procedural right to a sufficient explanation of a denial for compassionate release, whether it takes the form of a statement in open court or an issued order—nothing morе, nothing less.
III.
Having established the procedural requirement of a sufficient explanation, we turn to the order at issue. The majority holds that the district court‘s explanation was sufficient. I disagree.
It is true that this Court has upheld such perfunctory orders at least once in a published case in response to a motion filed under
same judge who denied the defendant‘s motion to reduce his sentence.20 The Court reasoned that because the judge deciding the
The majority cuts Sauseda at the pass, holding that it should not be extended and adopted into published precedent for three reasons: (1) it is distinguishable;22 (2) it and one follow-on case23 stand opposed to “the lion‘s share” of other unpublished cases that purportedly take an opposing view;24 and (3) the Supreme Court‘s decision in Chavez-Meza forecloses Sauseda.25 None persuade.
A.
The majority distinguishes Sauseda, observing that “[t]here[,] the Government did not file a response,” whereas “[h]ere, the district court ordered the Government to respond to McMaryion‘s petition and considered that response before denying relief.”26 This interpretation fails to engage the record.
McMaryion pled guilty in 2013 and judgment against him was entered in November of that year.27 His petition for certiorari was denied in March 2015.28 In July 2018, he moved to unseal a search warrant that produced the evidence in the case.29 It was denied as moot two months later.30 In December 2018, McMaryion mоved to compel the Government to produce documents, which the Court also denied as moot several months later after the Government furnished the records in question.31
By contrast, McMaryion‘s motion for compassionate release32 merited a detailed response. It is axiomatic that “[d]istrict judges control their dockets by setting and enforcing adherence to reasonable deadlines.”33 So the able district judge filed a 2-sentence
to respond,34 which it may not have otherwise done in light of the action‘s then history. In other words, that one of McMaryion‘s previous filings neither warranted nor received the Government‘s attention and the other simply remained pending on the docket suggests that Judge Count‘s order was, at best, administrative, ensuring that the Government weighed in as appropriate and that the motion did not languish.
And respond the Government did: over 240 pages, inclusive of exhibits.35 The Government put forward multiple arguments as to why the district court should have denied McMaryion‘s motion.36 Yet the judge‘s ultimate decision did not point to any one argument as persuasive, betraying the fact that while the court had ample evidence before it, the explanation was insufficient. In sum, the procedural posture of this action with its order to respond and voluminous response does not bear on the sufficiency of the explanation at issue.
B.
The lynchpin of the majority‘s argument is that Sauseda and Suttle are wrong and ought not be extended. These “non-binding, unpublished decisions,” the majority contends, “diverge from the bulk of our authorities upholding succinct district court decisions on
if appeals to unpublished authority are persuasive, then the lion‘s share makes clear that on McMaryion‘s exact facts, the district court did not err.”37
The number of unpublished opinions here matters not. The persuasive force of unpublished opinions aside, looking to the underlying facts in the purported “lion‘s share” finds the majority of such cases is no cohesive pride, but rather a distinct species.
The four cases in question are: United States v. Shorter, 850 F. App‘x 327, 328 (5th Cir. 2021) (unpublished) (per curiam); United States v. White, No. 21-50943, 2022 WL 1699467, at *1 (5th Cir. 2022) (unpublished) (per curiam); United States v. Franco, No. 21-50041, 2022 WL 1316218, at *1 (5th Cir. 2022) (unpublished) (per curiam); United States v. Escobedo-Aragon, No. 22-50003, 2023 WL 130420, at *1 (5th Cir. Jan. 9, 2023) (unpublished) (per curiam).
In United States v. White, this Court affirmed an identically barren order denying a motion for compassionate release, but as noted in the opinion, “White‘s opening brief raises no challenges to the district court‘s analysis, and he has thus abandoned such arguments.”38 In United States v. Franco, this Court again affirmed an identical order where the defendant‘s argument rested on whether “the district court abused its discretion by treating U.S.S.G. § 1B1.13 as binding” as well as if it “fail[ed] to consider factors showing that he is not a danger to the community.”39 Said differently,
the Franco defendant simply did not bring a claim based on the adequacy of the district court‘s explanation.40
This leaves Shorter, a case parallel to this action where the defendant challenged as “ad hoc” a similarly barren order denying a sentence reduction43 that was affirmed as sufficient.44 Shorter must give way to Sauseda, as it failed to engage the importance of a handoff to another judge—the crucial question at issue—rendering it minimally persuasive, if at all.45 Sauseda nоt only analyzed the subject at issue, but did so persuasively46:
absent a specific jurist‘s discussion at sentencing and against a barren denial, “nothing in the record on appeal [would] illumine how the district court determined that [the] motion should be denied other than the bare conclusions of the order.”47
This design creates an easily applicable framework. Where a sentencing judge has articulated the considerations animating the sentence and then denies a motion for a sentence reduction, we would uphold orders as terse as the one now before us because, “when thе order is considered together with the record,” our appellate review would not be frustrated and the values of articulation would have been served.48 Conversely, where the judge deciding the motion for a reduction was not the initial sentencing judge and decides the motion on the papers, we would require more than an isolated reference to § 3553, as “the original sentencing transcript [would] not reflect the latter judge‘s factual reasons for their
Finally, the majority contends that Chavez-Meza “supports [its] approach.”50 Once more, I disagree.
In Chavez-Meza, the Supreme Court discussed at length the district court‘s reasoning for imposing the initial sentence:
At petitioner‘s original sentencing, he sought a variance from the Guidelines range (135 to 168 months) on the ground that his history and family circumstances warranted a lower sentence. The judge denied his request. In doing so, the judge noted that he had “consulted the sentencing factors of
18 U.S.C. 3553(a)(1) .” He explained that the “reason the guideline sentence is high in this case, even the low end of 135 months, is because of the [drug] quantity.” He pointed out that petitioner had “distributed 1.7 kilograms of actual methamphetamine,” a “significant quantity.” And he said that “one of the other reasons that the penalty is severe in this case is because of methamphetamine.” He elaborated this latter point by stating that he had “been doing this a long time, and from what [he] gather[ed] and what [he had] seen, methamphetamine, it destroys individual lives, it destroys families, it can destroy communities.”51
The Supreme Court emphasized that the judge adjudicating the motion “was the same judge who had sentenced petitioner originally.”52 Given the district court‘s original discussion at sentencing, the Supreme Court continued, “it is unsurprising that the judge considered a sentence somewhat higher than
the bottom of the reduced range to be appropriate.”53 Indeed, the High Court explained, the order was permissible despitе its concision because, after the district court‘s lengthy discussion on the topic, appellate review was already possible: “there was not much else for the judge to say.”54 As the initial and subsequent sentencing judge here are not the same, Chavez-Meza is inappropriately extended to the case before us, and the majority‘s omission of this crucial part of “the relevant ‘circumstances‘” at issue in Chavez-Meza betrays its application here.55
Nowhere is this principle more evident than in United States v. Montoya-Ortiz,56 overlooked by the majority. There, a defendant was sentenced in 1992 by District Judge Benton.57 The case was then reassigned to multiple district judges for resolution of post-sentencing matters.58 By 2019, when the defendant moved for a reduction in sentence, the case had been again re-assigned to District Judge Counts, who heard the motion.59 Judge Counts issued a “fifteen-page order” engaging with and responding to
the defendant‘s various arguments, ultimately denying it.60 Following that denial, the
*****
As Sauseda, Shorter, and Suttle make clear, this Court has not yet had an opportunity to harmonize our unpublished opinions on this subject.66 Today, we do so. In this concerto, to this ear, the majority is off-key.67
With respect, I must DISSENT.68