UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MONTERIAL WESLEY, Defendant - Appellant.
No. 22-3066
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
February 28, 2023
Appellate Case: 22-3066 Document: 010110818889 Date Filed: 02/28/2023 Page: 1 PUBLISH FILED Christopher M. Wolpert Clerk of Court
Appeal from the United States District Court for the District of Kansas (D.C. No. 2:07-CR-20168-JWL-2)
Kayla Gassmann, Assistant Federal Public Defender (Melody Brannon, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Kansas City, Kansas, for Plaintiff-Appellee.
Jared S. Maag, Assistant United States Attorney (Duston J. Slinkard, United States Attorney, District of Kansas, and James A. Brown, Assistant United States Attorney, Chief, Appellate Division, with him on the brief), Office of the United States Attorney, Topeka, Kansas, for Defendant-Appellant.
Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.
A federal jury convicted defendant Monterial Wesley of drug trafficking. In a post-conviction motion, Wesley alleged his prosecutor suborned perjury about the drug quantities attributable to him, in turn increasing his sentencing exposure. But, rather than asking the district court to vacate his sentence under
Wesley‘s motion asserted various grounds for finding extraordinary and compelling reasons in his case, including the alleged prosecutorial misconduct. The district court concluded that the claim of prosecutorial misconduct must be interpreted as a challenge to the constitutionality of his conviction and sentence, which can only be brought under
On appeal, Wesley challenges the district court‘s jurisdictional dismissal.1 He has not moved for a certificate of appealability (COA), but our case law requires one
We find the question debatable among jurists of reason, so we grant a COA. On the merits, however, we agree with the district court that Wesley‘s motion included a successive
I. Background
A grand jury indicted Wesley on twelve counts relating to a conspiracy to distribute cocaine and cocaine base. After the court impaneled the jury but before the parties presented any evidence, Wesley pled guilty to four counts of the indictment without the benefit of a plea agreement. He went to trial on the eight other counts, and the jury subsequently convicted him of two more drug-related counts.
The district court sentenced Wesley to thirty years’ imprisonment, which was within the Guidelines-recommended range based on the quantity of drugs attributed to him. Specifically, the court found that Wesley was accountable for more than 150 kilograms of cocaine. Few drugs were entered into evidence, so information about the type and quantity of drugs involved in the conspiracy rested almost entirely on cooperating government witnesses. The court particularly relied on the trial testimony and sentencing-hearing testimony of two witnesses the court found credible, Thomas Humphrey and Cruz Santa-Anna.
Wesley unsuccessfully requested relief three times: on direct appeal, through a
The bulk of Wesley‘s motion focused on the prosecutor‘s alleged misconduct. His theory depended on showing that the two witnesses on whom the district court relied in determining the drug quantity—Humphrey and Santa-Anna—knowingly testified to more drugs than were actually involved, and they did so because the prosecutor convinced them to. He did not have evidence directly from Humphrey or Santa-Anna, but he did present statements (some of them sworn) from others who testified, or who were asked to testify, at his trial. Specifically:
- One witness who testified against Wesley now says he lied about the nature of his dealings with Wesley. The witness testified at trial that he sold cocaine to Wesley when in fact he sold only marijuana. The witness asserts that the prosecutor knew his testimony was false, but wanted him to testify that he sold cocaine to Wesley. The witness also states that the prosecutor asked him to “add
weight” to the drug quantities in his trial testimony, R., Vol. I at 513, ¶ 5 (internal quotation marks omitted), although it‘s not clear from his statement if he followed that request. - Another witness who testified against Wesley was pressured by the prosecutor “to make the drug weight to be more than what it really was,” but he refused to do so. Id. at 529.
- A witness who did not testify at trial claims the prosecutor asked him to testify to buying more cocaine from Wesley than he did.
- All three witnesses recall talking with each other at the county jail, realizing they were there to testify in the same case, and discussing the prosecutor‘s similar tactics.
Wesley said this conduct provides reason to believe the prosecutor took a similar approach with other witnesses, such as Humphrey and Santa-Anna. Thus, Wesley believed he could show they testified falsely, in turn affecting his sentence.
Wesley further supported his motion with allegations that the prosecutor engaged in misconduct or untruthfulness in other cases, including five examples of misconduct or alleged misconduct by the same prosecutor in other cases. Given all this, Wesley asserted that he had been convicted and sentenced in “an unconstitutional proceeding.” R., Vol. I at 412. He suggested an evidentiary hearing would be appropriate because “[t]he gravity and character of the prosecutorial misconduct allegations warrant further inquiry.” Id. at 394.
As noted, the district court held that the allegations regarding prosecutorial misconduct amounted to an unauthorized successive
II. Analysis
If Wesley‘s allegations against the prosecutor are true, her conduct would violate the Fifth Amendment‘s due process clause. See Giglio v. United States, 405 U.S. 150, 153–54 (1972). This is the sort of claim the court normally sees in a
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
A. Statutory and Procedural Background
A prisoner must normally use
1. The Compassionate Release Statute
Congress enacted the original version of the compassionate release statute,
The Sentencing Commission did not issue a relevant policy statement until 2006. That policy statement began with language mimicking the statute (and which would turn out to be significant in the context of later developments): “Upon motion of the Director of the Bureau of Prisons . . . .” U.S.S.G. § 1B1.13 (2006). And the original policy statement, without further guidance, only identified as an extraordinary and compelling reason “[a] determination made by the Director of the Bureau of Prisons that a particular case warrants a reduction for extraordinary and compelling reasons.” Id. cmt. n.1(A).
By 2018, the Sentencing Commission had more fully fleshed out that standard to include, for example, terminal illness or the death of the caregiver for the defendant‘s minor children. See U.S.S.G. § 1B1.13 cmt. n.1(A)(i), (C)(i) (2018). But the policy statement still began with the words of the statute, “Upon motion of the Director of the Bureau of Prisons . . . .” See id., main text.
The month following the effective date of the 2018 Guidelines, Congress passed the First Step Act. See Pub. L. No. 115-391, 132 Stat. 5194 (2018). Among many other things, the First Step Act amended the compassionate release statute to permit prisoners to bring motions on their own behalf if they ask the BOP to bring a motion and it does not respond within thirty days. See id., tit. VI, § 603(b)(1), 132 Stat. at 5239 (codified at
In Maumau, we went further and held
that Congress intended to afford district courts with discretion, in carrying out the first part of the statutory test in
§ 3582(c)(1)(A)(i) , to independently determine the existence of “extraordinary and compelling reasons,” and for that discretion to be circumscribed under the second part of the statutory test by requiring district courts to find that a sentence reduction is consistent with applicable policy statements issued by the Sentencing Commission.
Id. at 832. But because the Sentencing Commission had never had enough voting members to form a quorum since enactment of the First Step Act (a situation that persisted until August 2022), no policy statement existed to constrain the district court‘s evaluation of extraordinary and compelling reasons. Id. at 836.
Wesley interprets Maumau to stand for the proposition that “extraordinary and compelling reasons” is limitless, subject only to the district court‘s discretion. See Aplt. Opening Br. at 20 (“Under this open-ended statutory language, district courts are empowered to consider any extraordinary and compelling reason for release that a defendant might raise.” (internal quotation marks omitted)). Thus, “extraordinary and compelling reasons” could include the sorts of attacks on a conviction or sentence that prisoners normally bring through
But in Maumau, whether “extraordinary and compelling reasons” can include matters that, if true, would demonstrate the invalidity of the conviction or sentence, was not before this court.2
2. Wesley‘s Motion for Compassionate Release
Wesley has not yet asserted the alleged prosecutorial misconduct in a motion for authorization under
motions based on new evidence must put the case in such a new light that “no reasonable factfinder would have found the movant guilty of the offense.” Counsel says Wesley is challenging only his sentence, not his guilt, so a motion for authorization under
B. Does § 2255 Control When a Prisoner Asserts an Argument Attacking His Conviction or Sentence?
To answer this question, we “must examine the disputed language in context, not in isolation,” looking both to the “the language and design of the statute as a whole.” True Oil Co. v. Comm‘r, 170 F.3d 1294, 1299 (10th Cir. 1999) (internal quotation marks omitted). And we must keep in mind the canon of statutory
construction that specific controls over general.4 “Where there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of the priority of enactment.” Morton v. Mancari, 417 U.S. 535, 550–51 (1974). “What counts for application of the general/specific canon is not the nature of the provisions’ prescriptions but their scope.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 648 (2012).
Here, the scope of
“Of course the general/specific canon is not an absolute rule, but is merely a strong indication of statutory meaning that can be overcome by textual indications that point in the other direction.” RadLAX, 566 U.S. at 646–47. Wesley offers no such textual indications. In our view, moreover, all indications point in the other
direction, especially when one looks at the sort of system that would result from the ability to use the compassionate release statute to assert errors in a conviction or sentence.
First, Congress required district courts considering compassionate release motions to ensure that any sentence reduction “is consistent with applicable policy statements issued by the Sentencing Commission.”
Second, a prisoner may not bring a motion on his own behalf without first asking the BOP to bring one. The benefits of an exhaustion requirement such as this include allowing the agency to “apply its special expertise” and to “produce a useful record for subsequent judicial consideration.” McCarthy v. Madigan, 503 U.S. 140, 145 (1992), superseded by statute on other grounds, Prison Litigation Reform Act of 1995, 110 Stat. 1321–71, as amended,
Third, Wesley asserts that compassionate release and
Fourth, the compassionate release statute requires the district court to “consider[] the factors set forth in section 3553(a) to the extent that they are applicable.”
(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 for the offense;
(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 [by the Sentencing Commission] . . . .
(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.
Fifth, the most a district court can do for a defendant who merits relief under
For all these reasons, we hold that
C. Other Circuits
Our holding is consistent with holdings or considered dicta from the Second, Fourth, Sixth, Seventh, Eighth, and D.C. Circuits—the majority of circuits to have
issued a published decision on this issue. See United States v. Amato, 48 F.4th 61, 63 (2d Cir. 2022); United States v. Ferguson, 55 F.4th 262, 270 (4th Cir. 2022); United States v. Hunter, 12 F.4th 555, 562, 566–68 (6th Cir. 2021); United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021); United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022); United States v. Jenkins, 50 F.4th 1185, 1200–06 (D.C. Cir. 2022).
Nonetheless, Wesley points to a First Circuit case, which takes a different view. In United States v. Trenkler, 47 F.4th 42, 48 (1st Cir. 2022), the court held that, save for rehabilitation alone, district courts may consider literally anything, including errors normally raised through
Furthermore, Trenkler actually departs from the plain language of the compassionate release statute. It says that “correct application of the ‘extraordinary and compelling’ standard for compassionate release naturally precludes classic post-conviction arguments, without more, from carrying such motions to success.” Id. at 48 (emphasis
D. The Concepcion Decision
Wesley also points to the Supreme Court‘s recent decision in Concepcion v. United States, 142 S. Ct. 2389 (2022). Concepcion involved a part of the First Step Act permitting district courts to re-sentence certain defendants convicted of crack cocaine offenses. The basic question was the scope of information the district court could consider in those re-sentencing proceedings. Specifically, could district courts consider “intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison)“? Id. at 2396. Or were they instead required to assume the facts as they were at the original sentencing, modified only by the changes Congress later enacted to reduce the severity of crack cocaine sentences? See id. at 2397–98.
The Supreme Court held that district courts could consider intervening changes of law and fact. In doing so, it employed very broad language: “It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court‘s discretion to consider information is restrained.” Id. at 2396. Nothing in the First Step Act limited that discretion when re-sentencing eligible crack cocaine offenders, so district courts were not limited to taking account solely of the change in law.
A compassionate release proceeding is not a re-sentencing proceeding under the First Step Act—again, the only thing the First Step Act changed about compassionate release was to authorize prisoners to bring their own motions. But a compassionate release proceeding is a proceeding to “decid[e] whether, and to what extent, to modify a sentence.” Id. Thus, in Wesley‘s view, the district court cannot be restrained from considering any information the defendant puts before it, including alleged errors in the conviction or sentence.
The important distinction between this case and Concepcion is that there was no doubt the district court in Concepcion was applying the correct statute. The parties only disputed its interpretation. But Wesley raises the question Concepcion never had to answer—which is the correct statute
E. Wesley‘s Appeal to Discretion
Wesley next points to our statement that “[i]t is the relief sought, not [the] pleading‘s title, that determines whether the pleading is a
We disagree. Our statement in Nelson regarding “relief sought” does not establish a pleading exercise only. When a federal prisoner asserts a claim that, if true, would mean “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack,”
their confinement—either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness of the State‘s custody“).
F. Appropriate Procedure in the District Courts
A final question remains. If a district court receives a compassionate release motion that comprises or includes a claim governed by
We conclude the district court‘s approach in this case was correct. In all other contexts in which defendants have (following direct appeal) attempted to raise
III. Conclusion
We hold that an