UNITED STATES OF AMERICA, Appellee v. JOHN ORLANDO BROOKER, JR., ZACHARY ADAM GRANT, MICHAEL ROBERT ROSS, JR., GRAYTZ MORRISON, AKA SPACE, AKA SPIZZY, DONALD CHRISTOPHER PERKINS, JR., AKA D.P., SHAWN A. FRANCIS, AKA S.O., ALAN HORICK, GREGORY FLAKE, AKA TONE, THOMAS LUZADER, JERIMIAH JOEL DURFEE, AKA J-FRO, LAMAR LARRY JOHNSON, AKA BLUB, WILLIAM COREY WARNER, DANIEL F. WEBSTER, JR., AKA D2, MILES EDWARDS, JULIAN VICTOR DATIL-RODRIGUEZ, BRIAN KEITH DOMINGO, AKA BRAWLI, AKA GHOST FACE, LEROY J. RICE, AKA KINFOLK, DANIEL LUGO, AKA FAT ANTHONY, NOEL DELAROSA, EVELIO BARO, MOISES ORTIZ, ANTOINE MATHIS, Defendants, JEREMY D. ZULLO, Defendant-Appellant.
No. 19-3218-CR
United States Court of Appeals For the Second Circuit
September 25, 2020
August Term, 2019; Submitted: June 25, 2020
Appeal from the United States District Court for the District of Vermont
No. 1:09-cr-00064-gwc-2 - Crawford, Chief Judge.
Before: WINTER, CALABRESI, AND CHIN, Circuit Judges.
About ten years ago Jeremy Zullo was sentenced to a mandatory minimum fifteen-years’ imprisonment. After the passage of the First Step Act of 2018, he sought compassionate release in the district court, arguing that his sentence was unjustly long, that he has shown exemplary rehabilitation, that he maintains close relationships with his family, that he was a teenager at the time of his offense, and that the government breached his plea agreement. The district court held that, despite the First Step Act‘s changes to compassionate release, see
GREGORY L. WAPLES (Eugenia A.P. Cowles, on the brief), Assistant United States Attorneys, for Christina E. Nolan, United States Attorney for the District of Vermont, Burlington, VT, in support of Appellee.
PETER J. TOMAO, ESQ., Garden City, NY, in support of Defendant-Appellant.
The First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194 (“First Step Act“), was simultaneously monumental and incremental. Monumental in that its changes to sentencing calculations, mandatory minimums, good behavior credits and other parts of our criminal laws led to the release of thousands of imprisoned people whom Congress and the Executive believed did not need to be incarcerated. Incremental, in that, rather than mandating more lenient outcomes, it often favored giving discretion to an appropriate decisionmaker to consider leniency.
This case reflects that dichotomy. The First Step Act provision we analyze overturned over 30 years of history, but at the same time it often did no more than shift discretion from the Bureau of Prisons (“BOP“) to the courts. We must today decide whether the First Step Act empowered district courts evaluating motions for compassionate release to consider any extraordinary and compelling reason for release that a defendant might raise, or whether courts remain bound by U.S. Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.“)
BACKGROUND
A. Zullo‘s Offense, Conviction, and Sentencing
Jeremy Zullo became involved in serious crimes at a young age. He joined the drug trafficking conspiracy that would land him in prison at 17; he was indicted at 20; and he was convicted and sentenced at 22. On May 26, 2010, Zullo pleaded guilty to conspiring to traffic marijuana and more than five kilograms of cocaine, possessing a gun in furtherance of a drug crime, and using criminally derived property in a transaction valued at more than $10,000. These crimes required the district court to sentence Zullo to, at a minimum, separate 10-year and 5-year mandatory minimum sentences.
At that time, however, we had held that the sentencing court had discretion to run these sentences concurrently. See United States v. Williams, 558 F.3d 166, 176 (2d Cir. 2009), abrogated by Abbott v. United States, 562 U.S. 8 (2010). And at Zullo‘s sentencing that is exactly what happened. The district court heard how Zullo had no criminal background before this set of crimes, and how, even while released pre-trial, he had seemingly begun to turn his life around. It then remarked,
[y]ou know, a sentence like this it‘s difficult for me to sentence somebody like you to 10 years in prison frankly. You know, I look back at the number of
people I‘ve sentenced to 10 years or more. Most of them have been pretty experienced criminals with a lot of past criminal behavior. So you are a little bit unique in that sense. So I‘m not going to give you much more than the 120 months [mandatory minimum] because I don‘t, because I frankly think 120 months is enough.
App‘x 113. True to its word, the district court sentenced Zullo to 126 months imprisonment. It ran the five-year mandatory minimum required for Zullo‘s gun conviction concurrently with the ten-year minimum required for his drug trafficking conviction.
The government appealed. While that appeal was pending the Supreme Court decided Abbott, holding that mandatory sentences under
B. A Brief History of Statutory Compassionate Release
The statute authorizing compassionate release as it exists today was first enacted as part of the Comprehensive Crime Control Act of 1984. See Pub. L. No. 98-473, 98 Stat. 1837, 1998-1999 (1984).1 That statute created the substantive standard that we still apply: whether “extraordinary and compelling reasons” exist for compassionate release. Id. (codified at
That original statute, unlike the current law, gave BOP exclusive power over all avenues of compassionate release. For over 30 years any motion for compassionate release had to be made by the BOP Director. See
BOP used this power sparingly, to say the least. A 2013 report from the Office of the Inspector General revealed that, on average, only 24 incarcerated people per year were released on BOP motion. See U.S. Dep‘t of Just. Office of the Inspector General, The Federal Bureau of Prisons’ Compassionate Release Program 1 (2013), https://www.oversight.gov/sites/default/files/oig-reports/e1306.pdf. That report concluded that BOP did “not properly manage the compassionate release program,” that its “implementation of the program . . . [was] inconsistent and result[ed] in ad hoc decision making,” and that it
As a result of this report and other criticisms, BOP revamped portions of its compassionate release procedures. This included expanding the population it would consider eligible for release to people over the age of 65 who had served a significant portion of their sentences. See Hearing on Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing Comm‘n (2016) (statement of Michael E. Horowitz, Inspector General, Dep‘t of Justice), https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-hearings-and-meetings/20160217/IG.pdf. And, in the first 13 months after these changes, 83 people were granted compassionate release. Id. But these 83 were still only a small part of a potential release pool of over 2000 people who met the BOP‘s revised criteria of being over 65 and having served at least half of their sentence. Id.
The Sentencing Commission has also played a role in compassionate release, though its work has been constrained by the BOP‘s absolute gatekeeping authority.
Despite the seeming statutory command, this policy statement did not define “extraordinary and compelling reasons.” Instead, it stated in an application note only that “[a] determination made by the Director of the Bureau of Prisons that a particular case warrants a reduction for extraordinary and compelling reasons shall be considered as such for purposes of [the policy statement].”
By 2018, when the latest amendment to section 1B1.13 was made, the Sentencing Commission had expanded its own definition of extraordinary and compelling circumstances more broadly to cover events relating to the traditional categories of the imprisoned person‘s health, age, or family circumstances, and to clarify that such circumstances did not have to be unforeseen
The current version of the Guideline also includes an application note, added in 2016, titled “Motion by the Director of the Bureau of Prisons.” Id.
C. The First Step Act
It was against this backdrop that Congress passed the First Step Act. The First Step Act, among numerous other reforms, made the first major changes to compassionate release since its beginnings in 1984. Chief among these changes was the removal of the BOP as the sole arbiter of compassionate release motions. While BOP is still given the first opportunity to decide a compassionate release motion, and may still bring a motion on a defendant‘s behalf, under Congress’ mandate a defendant now has recourse if BOP either declines to support or fails to act on that defendant‘s motion. As the Act states, a defendant may go to court “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 ....”
One co-sponsor of the bill described this provision as both “expand[ing]” and “expedit[ing]” compassionate release. 164 Cong. Rec. S7774 (daily ed. Dec. 18, 2018) (statement of Sen. Ben Cardin). Another representative stated that the First Step Act was “improving application of compassionate release ....” 164 Cong. Rec. H10362 (daily ed. Dec. 20, 2018) (statement of Rep. Jerrold Nadler). Sentiments like these were apparently so widely shared that Congress titled this portion of the First Step Act, “Increasing the Use and Transparency of Compassionate Release.” See P.L. 115-391 § 603(b), 132 Stat. 5194, 5239.
This change—though seemingly only procedural in its modification of the decisionmaker—quickly resulted in significant substantive consequences. In 2018 only 34 people received compassionate release sentence reductions. See U.S Dep‘t of Just., Department Of Justice Announces the Release of 3,100 Inmates Under First Step Act, Publishes Risk And Needs Assessment System (July 19, 2019), https://www.justice.gov/opa/pr/department-justice-announces-release-3100-inmates-under-first-step-act-publishes-risk-and. After the First Step Act became law in December 2018, BOP reports that over 1000 motions for compassionate release or sentence reduction have been granted. Federal Bureau of Prisons, First Step Act, https://www.bop.gov/inmates/fsa/ (last visited July 27, 2020). What Congress seems to have wanted, in fact occurred.
* * *
It is in this context that the instant case arises. For, despite the material changes Congress made to compassionate release procedures in the First Step Act, the Sentencing Commission has not updated its
D. Procedural History
On July 25, 2019, Zullo, in accordance with the language of the First Step Act, sought compassionate release and, having exhausted his administrative remedies, moved for release or a sentence reduction in the district court. A few days later, on July 31, Zullo asked the lower court to amend his motion to add the argument that the government had violated his plea agreement.2
On September 23, 2019, the district court denied Zullo‘s motion for compassionate release and his motion to amend.3 It did so relying on Guideline
DISCUSSION
A. U.S.S.G. § 1B1.13 Application Note 1(D) and the First Step Act
And so we turn to the question at the heart of this case: whether the First Step Act allows courts independently to determine what reasons, for purposes of compassionate release, are “extraordinary and compelling,” or whether that power remains exclusively with the BOP Director as stated in Application Note 1(D). Because this is a legal question, we review the district court‘s decision de novo. See United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020).
This question has split district courts across the country. A majority has concluded that, despite Application Note 1(D), the First Step Act freed district courts to exercise their discretion in determining what are extraordinary circumstances. See, e.g., United States v. Young, No. 2:00-CR-00002-1, 2020 WL 1047815, at *6 (M.D. Tenn. Mar. 4, 2020) (reaching this conclusion and collecting similar cases). A sizable minority, including the district court below, has reached the opposite conclusion, holding that Application Note 1(D)‘s language continues to preclude court action, absent a motion by the BOP. See United States v. Fox, No. 2:14-CR-03-DBH, 2019 WL 3046086, at *2 (D. Me. July 11, 2019) (collecting cases). We agree with the majority position, and so vacate and remand the district court‘s decision.
1. The First Step Act and Application Note 1(D)‘s Text
As with most cases of statutory interpretation, we begin with the text. See Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1737 (2020) (“When the express terms of a statute give us one answer and extratextual considerations suggest another, it‘s no contest. Only the written word is the law, and all persons are entitled to its
the 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 section 3553(a) to the extent that they are applicable, if [the court] finds that ... extraordinary and compelling reasons warrant such a reduction ... and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission ... . (emphasis added).
As we have described, the major difference between this statute and its prior incarnations is that an imprisoned person moving for compassionate release can now bring a claim before the courts even if the BOP opposes the claim. Congress clearly did not view this—a break with over 30 years of procedure—as a minor or inconsequential change. Congresspersons called it “expand[ing],” “expedit[ing],” and “improving” compassionate release.4 164 Cong. Rec. S7774 (daily ed. Dec. 18, 2018) (statement of Sen. Ben Cardin); 164 Cong. Rec. H10346, H10362 (Dec. 20, 2018) (statement of Rep. Jerrold Nadler).
Significantly, the statute‘s text, while it requires courts when adjudicating compassionate release motions to consider the Guidelines, requires such courts to consider only “applicable” guidelines.
Turning to the text of Guideline
In doing so, we look also to Application Note 4, which says that “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to
This reading not only saves as much of the existing Guideline as is possible, given the First Step Act, but it also aligns with Congress’ intent in passing that Act. After watching decades of the BOP Director‘s failure to bring any significant number of compassionate release motions before the courts, Congress allowed people seeking compassionate release to avoid BOP if BOP rejects their motions or fails to act on them within a short time period, only 30 days. See
2. Severability
The government seeks to retain BOP power to define extraordinary and compelling circumstances by urging us to sever the explicitly conflicting portions of the Guideline from Application Note 1(D). It argues that Application Note 1(D) can remain in force because Congress made only procedural changes to compassionate release, and the statutory requirement that the Commission promulgate a definition of “extraordinary and compelling reasons” went unchanged. See
First, because we do not abrogate Guideline
More generally, severability, as the government recognizes, is largely a question of legislative intent. United States v. Smith, 945 F.3d 729, 738 (2d Cir. 2019). “An ‘invalid part’ of a statute or regulation ‘may be dropped if what is left is fully operative as a law,’ absent evidence that ‘the Legislature would not have enacted those provisions which are within its power, independently of that which is not.‘” Id. (quoting Regan v. Time, Inc., 468 U.S. 641, 653 (1984)). Here, the long history of the compassionate release provisions, the statements of Congresspersons, including a First Step Act co-sponsor, and the text of both the First Step Act and the Guideline, make the intent of everyone involved clear.
The government presents nothing from the legislative history of either Guideline
B. Zullo‘s Motion
The government makes two alternative arguments in the instant case. First, it argues that even if Application Note 1(D) no longer applies and the district court has discretion to consider all possible reasons for compassionate release, remand is unnecessary here because the district court did exercise discretion in denying Zullo‘s motion. Second, it argues that, regardless of whether the district court exercised discretion, a remand is not needed because any district court granting a compassionate release motion on the facts before us would necessarily abuse its discretion. We reject both arguments.
The district court‘s order did not use the language of discretion. It said that it “reject[ed] Zullo‘s argument that the amendment of
Nor can we say, as a matter of law, that a court would abuse its discretion by granting someone compassionate release on this record. It bears remembering that compassionate release is a misnomer.
In the instant case, Zullo does not rely solely on his (apparently extensive) rehabilitation. Zullo‘s age at the time of his crime and the sentencing court‘s statements about the injustice of his lengthy sentence might perhaps weigh in favor of a sentence reduction. Indeed, Congress seemingly contemplated that courts might consider such circumstances when it passed the original compassionate release statute in 1984. See S. Rep. No. 98-225, at 55-56 (1984) (noting that reduction may be appropriate when “other extraordinary and compelling circumstances justify a reduction of an unusually long sentence” (emphasis added)); see also United States v. Maumau, No. 2:08-CR-00758-TC-11, 2020 WL 806121, at *6-*7 (D. Utah Feb. 18, 2020) (further discussing this history and collecting cases where district courts have reduced sentences in part because they were overly long).
Moreover, these arguments may also interact with the present coronavirus pandemic, which courts around the country, including in this circuit, have used as a justification for granting some sentence reduction motions. See, e.g., United States v. Zukerman, No. 16 CR. 194 (AT), 2020 WL 1659880, at *6 (S.D.N.Y. Apr. 3, 2020) (granting compassionate release because of the risk of Covid-19); United States v. Colvin, No. 3:19CR179 (JBA), 2020 WL 1613943, at *4 (D. Conn. Apr. 2, 2020) (same); United States v. Rodriguez, No. 2:03-CR-00271-AB-1, 2020 WL 1627331, at *12 (E.D. Pa. Apr. 1, 2020) (same).
We list these possibilities not to indicate that Zullo should be granted compassionate release, or even to suggest that they necessarily apply—we state no opinion either way on these questions. We merely believe that the consideration of these factors and of their possible relevance, whether in isolation or combination, is best left to the sound discretion of the trial court in the first instance. We therefore vacate and remand to allow the district court to consider the possible relevance of these and any other factors, and then to exercise the discretion that the First Step Act gives to it.6
CONCLUSION
We VACATE the district court‘s decision and REMAND for further proceedings not inconsistent with this opinion.
Notes
We do note, however, that Houston‘s attempted appeal of the denial of a motion to file an amicus brief is beyond our jurisdiction. See Boston & Providence R.R. Stockholders Dev. Grp. v. Smith, 333 F.2d 651, 652 (2d Cir. 1964) (“A denial of a motion to intervene as amicus curiae is not appealable.“).