UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KELVIN BROWN, a/k/a Doom, Defendant - Appellant.
No. 21-7752
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
August 16, 2023
PUBLISHED. Argued: May 3, 2023.
ARGUED: Brandon J. Brown, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Erica Hashimoto, Director, Tiffany Yang, Supervising Attorney, Lyric Elizabeth Perot, Student Counsel, Jennifer Simon, Student Counsel, Appellate Litigation Program, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Jessica D. Aber, United States Attorney, Richmond, Virginia, Grace Bowen, Special Assistant United States Attorney, Peter G. Osyf, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.
GREGORY, Circuit Judge:
On July 30, 2014, a jury convicted Kelvin Brown on seven counts, including two counts of possessing a firearm in furtherance of a drug trafficking crime in violation of
In July 2020, Brown moved for compassionate release pursuant to
We hold that the district court abused its discretion by denying Brown‘s motion because his disparate sentence creates an “extraordinary and compelling reason” for his early release, and the
I.
On May 12, 2014, a grand jury indicted Kelvin Brown and one of his co-defendants in a twelve-count superseding indictment.1 The indictment charged Brown with eight counts: drug conspiracy in violation of
Brown elected to represent himself at trial “with the assistance of appointed stand-by counsel.” Brown v. United States, No. 4:17-CV-72, 2018 WL 9990480, at *1 (E.D. Va. Sept. 4, 2018). The jury ultimately found Brown guilty on all counts except Count Seven. The district court sentenced Brown, then thirty-four years old, to 327 months’ imprisonment on Count One, sixty months’ imprisonment on Counts Six, Eight, and Ten (to run concurrently with Count One), 120 months’ imprisonment on Count Twelve (to run concurrently with Count One), and 360 months’ imprisonment on Counts Nine and Eleven (to run consecutively with Count One), for a total term of 687 months—or roughly fifty-seven years—in prison. Additionally, the court sentenced Brown to a term of five years of supervised release.
The district court imposed the 360-month sentence for Counts Nine and Eleven
Brown filed a direct appeal, and this Court affirmed his conviction in January 2016. United States v. Brown, 636 F. App‘x 157, 161 (4th Cir. 2016).
II.
On July 10, 2020, Brown, who was then forty years old, filed a pro se motion for compassionate release (“Letter Motion“) with the district court. In his motion, Brown argued that his preexisting conditions, including bronchitis, sleep apnea, narcolepsy, high blood pressure, esophageal reflux disorder, pre-diabetes, and obesity, place him in “a greater danger of contracting and possibly dying from the complications that accompany the COVID-19 virus.” J.A. 62. Brown discussed the anxiety he was experiencing based on his heightened risk of contracting the virus in prison and highlighted the harsh prison conditions imposed by COVID-related lockdowns. In addition to his pandemic-related
arguments, Brown pointed out that he is serving a disparate sentence, which supports his early release. That is, because the First Step Act “clarif[ied] that the 25-year mandatory minimum” for a subsequent
Brown also highlighted the steps he has taken to rehabilitate since he was sentenced. While incarcerated, Brown has taken classes on Microsoft Office, drug abuse, anger management, criminal thinking, leadership, and other adult continuing education courses. Further, Brown worked as a tutor to help his fellow inmates attain their GEDs, taught multiple adult continuing education classes, and worked as the head library clerk. Brown also expressed a desire to contribute to both his family and his larger community. He stated that he needed to be home to care for his mother, who had recently undergone surgery, his eighteen- and twenty-year-old daughters, and his six-year-old son, who struggles with mental health issues. Brown further explained that, if released, he had plans to live with his aunt and pursue employment and volunteer opportunities that his brother had already lined up for him.
On July 16, 2020, without requesting a response from the government, the district court denied Brown‘s motion. The court first held that Brown‘s “Letter Motion fails to establish that [he] has complied with the procedural requirements of
compassionate release.” J.A. 84. Moreover, even if it were to waive
Brown appealed, and we vacated the district court‘s decision and remanded because “the district court abused its discretion in denying Brown‘s motion without expressly evaluating” “Brown‘s alleged obesity in its analysis of whether his preexisting medical conditions, considered within the context of the COVID-19 pandemic, satisfied the ‘extraordinary and compelling’ standard in
On remand, the district court directed the government to respond to Brown‘s motion. Brown filed a Supplemental Motion, which, in relevant part, fleshed out his argument that his disparate
brief, the government argued that Brown‘s motion failed because Brown did not properly exhaust his administrative remedies. In the alternative, the government contended that Brown could not show “extraordinary and compelling reasons” for his release—in part because he declined to be vaccinated—or that the
On December 2, 2021, the district court denied Brown‘s Letter Motion, Supplemental Motion, and motion for counsel. Before assessing the merits, the court stated that Brown failed to establish that he “complied with the procedural requirements of
Addressing Brown‘s Letter Motion, the district court began by stating that “[i]n the context of the COVID-19 outbreak, courts have found extraordinary and compelling reasons for compassionate release when an inmate shows both a particularized susceptibility to the disease and a particularized risk of contracting the disease at his prison facility.” J.A. 131 (citation omitted). The court recognized that Brown‘s obesity “is a significant fact that puts him at increased risk of a severe COVID-19 infection,” but found
that “significant factors also mitigate against a
The district court further found that Brown could not prove that he has a particularized risk of contracting COVID-19 at his prison facility because, as of the district court‘s decision, the facility where Brown was incarcerated had zero confirmed cases of the virus among inmates and only one case among staff. Moreover, the court reasoned that any transmission would be mitigated by the high vaccination rate at that facility, and that Brown‘s high blood pressure and obesity are “common chronic conditions that [Brown‘s] facility can help manage.” J.A. 133. Accordingly, the court found no “extraordinary and compelling reason” for Brown‘s release “based on his alleged susceptibility to COVID-19.” J.A. 134.
Next, the district court found that there was “no proof [Brown] brought” his claims in the Supplemental Motion (including, as relevant here, that the stacking of his
factors, including Defendant‘s self-representation at trial,” and imposed a within-guidelines sentence. J.A. 135. The court then assessed the factors in one paragraph:
Defendant has had a troubled past with a criminal history category of V, reflecting a criminal history that has gotten worse leading up to the offenses for which Defendant was convicted. Defendant has only served approximately 11% of his sentence at this time, which would not serve to deter other[s] from similar activity, which involved large scale drug distribution . . . for over a decade. Finally, Defendant‘s multiple firearms convictions suggest to the Court that community safety would be harmed by Defendant‘s early release. The Court appreciates Defendant‘s service while imprisoned, including his work in the library and as a GED tutor. However, the Court cannot say a reconsideration of the
§ 3553(a) factors would lead to a different result than arrived at during Defendant‘s sentencing.
J.A. 135–36 (citation omitted). The court thus concluded that “the
III.
This Court reviews the denial of compassionate release motions pursuant to
As a general matter, a sentencing court “may not modify a term of imprisonment once it has been imposed.”
on that ground only ‘upon motion of the Director of the Bureau of Prisons.‘” High, 997 F.3d at 185 (quoting
“To grant [] a compassionate release motion, the district court must conclude that the . . . prisoner is eligible for a sentence reduction because he has shown ‘extraordinary and compelling reasons’ supporting relief,” and “that release is appropriate under the
Taking each argument in turn, we find Brown‘s first argument unpersuasive, but agree that the district court should have granted Brown‘s motion based on his disproportionately long sentence.
A.
We first address Brown‘s argument that COVID-19 and his health conditions warrant compassionate release. To establish that the risk posed by COVID-19 presents an “extraordinary and compelling reason” for release, a defendant must allege “that the risk of contracting COVID-19 in a prison is higher than the risk outside the prison and that [his] preexisting medical condition increases [his] risk of experiencing a serious, or even fatal, case of COVID-19.” High, 997 F.3d at 185. While this “inquiry is ‘multifaceted’ and must account for the ‘totality of the relevant circumstances,‘” Bethea, 54 F.4th at 832 (quoting United States v. Hargrove, 30 F.4th 189, 198 (4th Cir. 2022)), courts within the Fourth Circuit have looked to whether “an inmate shows both a particularized susceptibility to COVID-19 and a particularized risk of contracting the disease at his prison facility,” Hargrove, 30 F.4th at 196 (cleaned up). Applying that standard, the district court determined that Brown‘s obesity and high blood pressure put him at an increased risk of a severe COVID-19 infection, but that risk was mitigated by Brown‘s refusal to receive the COVID-19 vaccine, and that Brown did not show that he had a particularized risk of contracting the disease at his facility.
Brown lodges numerous objections to this decision, but none are availing.
(unpublished). Courts should consider, for example, whether a defendant is “unable to receive or benefit from a vaccine, or [whether] they remain vulnerable to severe infection, notwithstanding the vaccine.” United States v. Rucker, 27 F.4th 560, 563 (7th Cir. 2022). But Brown made no argument that he was “unable to receive or benefit from [the] vaccine.” Id. Rather, he appears to have refused the vaccine because he questioned its efficacy. Moreover, the district court concluded that, while Brown‘s high blood pressure and obesity put him at increased risk of severe COVID-19 infection, the vaccine “could virtually eliminate that risk.” J.A. 132 (citation omitted).2 The district court thus did not abuse its discretion by finding that, in Brown‘s case, his vaccination status mitigated his particularized susceptibility to COVID-19.
Brown‘s objections to the court‘s assessment of his risk of contracting the virus fare no better. Brown argues that the district court‘s focus on the low number of COVID-19 cases at his facility “incorrectly demands that an outbreak occur before a movant can demonstrate a particularized risk of contracting the disease,” and alleges that the case numbers are likely inaccurate based on inadequate testing. Opening Br. 26. To be sure, the current case-count at a facility does not capture the long-term risk of transmission. And certainly, the district court‘s analysis might have been more compelling if it included, for
instance, an assessment of the precautions the facility is taking to prevent the spread of the virus, the risk of transmission inherent in a congregate setting, and the aggregate case count at the facility. Its failure to do so, however, does not render its analysis “arbitrar[y] or irrational[].” High, 997 F.3d at 185. Rather, the court‘s reasoning “fell within the scope of its discretion.” Id. at 187.
Brown also challenges the district court‘s focus on the vaccination rate at his facility and the facility‘s ability to manage Brown‘s underlying conditions. For similar reasons, however, these arguments fail. The district court relied on a medical resource regarding the COVID-19 vaccine and an analogous district court decision to conclude that “the high number of vaccinations at [Brown‘s facility] assist in limiting the spread of COVID-19” and that Brown‘s facility could help manage his “common chronic conditions.” J.A. 133. While we might have applied a different analysis in the first instance, we cannot say that the district court‘s consideration of those factors rendered its “extraordinary and compelling reasons” determination an abuse of discretion.
Accordingly, we affirm the district court‘s holding that the risk posed by COVID-19 does not create an “extraordinary
B.
We next consider Brown‘s argument that his disproportionately long sentence warrants a sentence reduction. As discussed, Brown was convicted of two
first
The district court declined to consider whether Brown‘s disparate sentence for his
case, the 924(c)‘s were stacked and thus resulted in a[n] extreme sentence disparity.” J.A. 65. Therefore, the district court‘s decision to “assess the merits of [Brown‘s] original claims” should have triggered its consideration of Brown‘s
In the alternative, the district court stated that “[e]ven if [it] were to waive exhaustion, the
Because Brown‘s disparate sentence is relevant to both the “extraordinary and compelling reasons” inquiry and the
i.
To start, we consider Brown‘s disparate sentence within the “extraordinary and compelling reasons” inquiry. In McCoy, we reviewed two district courts’ grants of compassionate release based, in part, on the defendants’ disparate
considered two distinct features of the defendants’
First, we are struck by “the sheer and unusual length” of Brown‘s sentence. Id. At thirty-four-years old, Brown was sentenced to fifty-seven years in prison—functionally a life sentence—for various drug distribution and gun possession offenses. Brown‘s prison sentence is substantially longer than the average sentence imposed for far more serious and violent crimes. For example, in 2022, the national average sentence for murder was 261 months (or about twenty-two years), and the national average sentence for kidnapping was 184 months (or about fifteen years). U.S. Sentencing Commission, Statistical Information Packet, Fiscal Year 2022, Fourth Circuit, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/state-district-circuit/2022/4c22.pdf [https://perma.cc/9XBB-TZZQ] (last visited July 24, 2023). While we do not make light of the serious conduct for which Brown was convicted, we cannot ignore the extraordinary fact that Brown, who was not charged with causing any physical violence or injury, is serving a sentence more than two-and-a-half times the length of today‘s average murder sentence. If that were not enough, Brown also received a far lengthier sentence than his co-defendants, each of whom was sentenced to less than twenty years of
incarceration—nearly a third of Brown‘s sentence—and some of whom were sentenced to ten years or less.
Second, there is a clear “gross disparity” between Brown‘s “sentence[] and the sentence[] Congress now believes to be an appropriate penalty for [his] conduct.” McCoy, 981 F.3d at 285. If sentenced today, Brown would have been subject to a ten- (rather than thirty-) year mandatory minimum for his two
ii.
The
unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,”
In one cursory paragraph, the district court concluded that the
Brown‘s disparate sentence also speaks to, among other factors, “the need for the sentence imposed” to “provide just punishment for the offense” and “to afford adequate deterrence to criminal conduct.”
areas were closed. J.A. 62. Brown also reported being “crammed up in very small cells with roommates” and “little to no ventil[ation].” J.A. 63. Even if those factors have been mitigated by the evolving circumstances of the pandemic, that they plagued Brown at any point “has made [his] incarceration harsher and more punitive than would otherwise have been the case.” United States v. Rodriguez, 492 F. Supp. 3d 306, 311 (S.D.N.Y. 2020). Therefore, Brown‘s drastic sentence, which might have been “‘sufficient but not greater than necessary’ before the coronavirus pandemic[,] may no longer” be justified. Kibble, 992 F.3d at 335 (Gregory, C.J., concurring).
If the district court had considered these facts, it might have realized that they contradict the very limited reasoning it did provide. For example, the court stated that Brown had “only served approximately 11% of his sentence at th[at] time, which would not serve to deter other[s] from similar activity,” and that his “multiple firearms convictions suggest . . . that community safety would be harmed by [his] early release.” J.A. 135. Yet the fact that Congress has since concluded that
efforts ameliorate any risk posed to Brown‘s community upon his release. While incarcerated, Brown has not only bettered himself through his completion of a variety of courses but has also given back to his community by tutoring, teaching adult continuing education classes, and working as a library clerk. This “postsentencing rehabilitation” minimizes the “need for the sentence imposed” to “protect the public from further crimes of the defendant,” and “provides the most up-to-date picture of [Brown‘s] ‘history and characteristics,‘” which also favors a sentence reduction. Pepper v. United States, 562 U.S. 476, 491–92 (2011) (quoting
Nevertheless, we take seriously the district court‘s concerns about Brown‘s severe criminal history and the serious nature of his charged conduct. We also recognize that Brown‘s disparate
related to an inmate‘s age,” Brown‘s release at over seventy years of age should further alleviate the district court‘s concern for the risk to public safety posed by Brown‘s release. United States v. Howard, 773 F.3d 519, 553 (4th Cir. 2014).
“Ordinarily, we understand that district courts wield broad discretion in deciding compassionate release motions.” Malone, 57 F.4th at 177. So, in a different case, we might remedy the district court‘s error by remanding for the district court to consider Brown‘s disparate sentence in the first instance. Yet the district court here has already had two opportunities to review Brown‘s compassionate release motion: its initial denial of Brown‘s motion in July 2020, and its second denial in December 2021 after we remanded Brown‘s case for further consideration. Each time, the district court neglected to address Brown‘s disparate sentence. That neglect persisted despite our express recognition in our previous remand order that McCoy—and its holding that disparate
More fundamentally, any additional analysis by the district court is unnecessary because any further decision that declined to reduce Brown‘s sentence to ameliorate his
irrational to deny Brown‘s motion. See High, 997 F.3d at 185.3 “[I]n the end, no analysis or explanation could persuade us that compassionate relief was appropriately denied,” particularly because we already “allow[ed] the district court to consider the full record under the proper framework.” Malone, 57 F.4th at 178 (Harris, J., concurring in part). Remanding for further analysis would therefore offend basic notions of judicial economy.
Simply put, “in cases—as in here—where the record presents such extraordinary conditions” that so clearly favor a sentence reduction, and the district court has twice declined to engage with that record, “we are compelled to conclude” that relief is warranted. Id. at 177 (majority opinion) (reversing denial of compassionate release motion and remanding with instructions for district court to grant motion); see also Worley, 685 F.3d at 408–09 & n.1 (reversing, without remanding, district court‘s imposition of certain special conditions of supervised release because they were unsupported by the record).
V.
For the foregoing reasons, we reverse the district court‘s denial of Brown‘s compassionate release motion and remand with instructions to grant his motion and reduce his prison sentence to 447 months.
REVERSED AND REMANDED WITH INSTRUCTIONS
QUATTLEBAUM, Circuit Judge, dissenting:
In an extraordinary and, in my view, regrettable decision, the majority reverses the district court‘s order denying Brown‘s motion for compassionate release. It does so only by imposing a standard for explaining decisions that is more demanding than what the Supreme Court recently established. Concepcion v. United States, 142 S. Ct. 2389, 2405 (2022) (“All that is required is for a district court to demonstrate that it has considered the arguments before it.“). But the majority does not stop there. It then usurps the district court‘s assigned responsibility by stepping in to re-weigh the sentencing factors, substitute its judgment for that of the district court and order a 20-year sentence reduction. The majority may well be troubled by the length of Brown‘s original sentence. But our ordered system of justice requires that appellate courts apply standards set forth by the Supreme Court. And it requires that discretionary sentencing decisions be made by district court judges. The majority today does neither. I dissent.
I.
First, contrary to the majority‘s conclusion, the district court adequately addressed Brown‘s argument that his stacked
extraordinary and compelling reasons for a sentence reduction.“). After identifying that argument, and others, it concluded that the ”
The district court then discussed the
[Brown] has had a troubled past with a criminal history category of V, reflecting a criminal history that has gotten worse leading up to the offenses for which [Brown] was convicted. [Brown] has only served approximately 11% of his sentence at this time, which would not serve to deter other[s] from similar activity, which involved large scale drug distribution in the Hampton Roads area for over a decade. Finally, [Brown‘s] multiple firearms convictions suggest to the Court that community safety would be harmed by [Brown‘s] early release. The Court appreciates [Brown‘s] service while imprisoned, including his work in the library and as a GED tutor. However, the Court cannot say a reconsideration of the
§ 3553(a) factors would lead to a different result than arrived at during [Brown‘s] sentencing.
J.A. 135–36. All of that supported the court‘s ultimate conclusion that “the
Nothing more was required. The district court was not required to rebut Brown‘s argument. The Supreme Court has been clear on this. Concepcion, 142 S. Ct. at 2405 (holding district courts need not rebut each of the parties’ arguments). So have we. United States v. Reed, 58 F.4th 816, 823 (4th Cir. 2023) (“Nor does the First Step Act require a district court to make a point-by-point rebuttal of the parties’ arguments.“). Nor are district
courts required to provide detailed explanations or detail why the sentencing factors outweigh the defendant‘s arguments. Concepcion, 142 S. Ct. at 2404. All they are required to do is demonstrate that they considered the parties’ arguments. Id. at 2405. And that does not even require explicitly identifying the argument. United States v. Mangarella, 57 F.4th 197, 203–04 (4th Cir. 2023) (an omission of any discussion of an argument “does not by itself establish that the district court failed to consider [the argument] at least implicitly. . . .” (emphasis in original)).
The Supreme Court has set a low bar for demonstrating an argument was considered. Reed, 58 F.4th at 823. In describing Brown‘s
II.
But my disagreement with the majority‘s opinion runs deeper. Not only does the majority improperly conclude that the district court did not consider the
First, the majority effectively re-weighs the
sentences for stacked
The majority also makes an argument in favor of granting compassionate release that Brown did not even make. According to the majority, because of measures the prison took to avoid the spread of COVID-19, Brown‘s time in prison was actually more punitive than it would otherwise have been. This, the majority insists, undermines the district court‘s reasoning that Brown had served only 11% of his term. Perhaps a district court might reach this conclusion. But we should not fault the district court for not agreeing with it sua sponte.2
The majority then rejects the district court‘s reasoning that because of his multiple firearm convictions, community safety would be harmed by Brown‘s early release. According to the majority, the district court “failed to weigh how [his rehabilitative] efforts [while in prison] ameliorate any risk posed to Brown‘s community upon his release.” Maj. Op. at 19. But the district court considered those efforts. It even identified some of them. It just concluded that they were outweighed, on balance, by the
But
A 447-month (or approximately thirty-seven year) sentence reflects the seriousness of Brown‘s offenses and criminal history while rectifying the twenty-year disparity in Brown‘s
§ 924(c) sentence and accounting for the numerous changed circumstances since Brown was sentenced nine years ago. Additionally, because “the risk of recidivism is inversely related to an inmate‘s age,” Brown‘s release at over seventy years of age should further
alleviate the district court‘s concern for the risk to public safety posed by Brown‘s release. United States v. Howard, 773 F.3d 519, 553 (4th Cir. 2014).
Maj. Op. at 20-21.
This is remarkable. The majority abandons our role as a reviewing court and, for all practical purposes, assumes the role of a factfinder. Even if a prisoner establishes extraordinary and compelling circumstances, a district court is “not required to grant the defendant‘s motion for a sentence reduction.” Hargrove, 30 F.4th at 195 (internal quotation marks omitted). District courts must consider the
The majority justifies this usurpation of the district court‘s responsibilities by declaring that the district court already had two chances to address Brown‘s argument about his
footnote, we flagged that McCoy supports the argument that the disparity between stacked
In sum, “it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence[.]” Solem v. Helm, 463 U.S. 277, 290, n.16 (1983). But to me, that is exactly what the majority opinion does.
I dissent.4