Sentencing Commission Vacancies Finally FIlled: Two Positive Compassionate Release Developments

 

Sentencing Commission Reactivated by Biden Nominees; Oregon Judge Grants Compassionate Release, Citing "Excruciating" Conditions of Confinement;  Battles for FSA Sentence Credits Continue; Two New Supreme Court "Relists" Seek to Expand 2241 Retroactivity; Appellate Updates 

by Derek Gilna 

            In very positive news, the White House announced on Wednesday a bipartisan list of seven nominees to fill the federal sentencing body that hasn’t had enough members to do its work since 2019. One of the nominees is Carlton Reeves, a federal judge in Mississippi, who would be the first Black chairman of the Commission. John Gleeson, the former federal judge and reform advocate, is also nominated.  The Commission has lacked a quorum to make sentencing changes for several years, much to prisoners' detriment. The commission in recent years showed itself willing to make positive changes when Congress lacked the political will to do so.

            The Sentencing Commission also recently published charts showing that the grant of Compassionate release varied widely from district to district, and often within districts, with about 20% of all petitions being granted.

            A federal district court judge in Oregon recently issued a scathing opinion,  finding that Oregon federal prisoner James Lee Wood, 53, served significant periods of his sentence in federal prison without access to his psychiatric medication or received medication that made his symptoms worse with no recourse. U.S. District Judge Michael W. Mosman this week granted James Lee Wood compassionate release, calling his prison term “an excruciating experience.”

             "For reasons stated on the record, I find Defendant Wood has provided extraordinary and compelling reasons for compassionate release and that the 18 USC 3553(a) factors weigh in favor of compassionate release. Accordingly, the motion is granted. " Wood v. US, 18-599, D. of Oregon, 2-25-21.

            In Charlemagne v. US, 18-cr-181, (D. of Conn, 5-7-22), the court also granted compassionate release. "On October 29, 2020, this court sentenced defendant Timothy Charlemagne to 41 months in prison...(and) recommended that Mr. Charlemagne be "housed at a facility that accounts for his medical condition," including "chronic ulcerations under both of his feet and at the ends of both his big toes that require . . . [debridement] of the wounds every 3-4 weeks, (since) failure to continue this course of treatment 'could leave him subject to amputation,' (but) the BOP has failed to treat his conditions appropriately at every step of the way. On February 22, 2022, following the development of gangrene in his right foot, the toes on that foot had to be amputated. In light of: (1) the fact that the BOP has repeatedly demonstrated its inability to provide adequate medical care for Mr. Charlemagne and (2) the court's consideration of the applicable section 3553(a) factors below, the Motion is granted."

            We have previously commented about how many courts are now apply FSA more expansively to grant sentence relief. Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard.  The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.

            COVID and its variants continue to infest almost all federal facilities. As noted by  one observer, " I am pretty positive that there are a lot of Covid cases here at Edgefield right this moment but the facility is not testing nor recording them. It's a lot of inmates walking around sick but are scared to go to medical."  Sound familiar? Another at  Ray Brook FCI said, "we are operating on code red because of the 'outside community' and this means we have to go to chow and get a pre-made tray and walk directly back to our units, we are on the unit 23 hours a day." So much for rehabilitation and programming.

           My personal mission to find reliable data from ANY agency or reputable research group that the various COVID vaccines, ( initially touted as completely effective,) even reduces the risk of death from COVID, has failed. Although the CDC (and others, especially drug manufacturers) has flatly stated that as fact, when one examines the fine print, there are so many qualifiers as to render the CDC pronouncement suspect. (Full disclosure: I took two doses, but no booster, and still contracted the virus.)  Here is the bottom line: if you are old and have serious chronic health problems, the vaccines will not conclusively prevent you from falling ill and dying, period. And if you get sick, DOJ will not provide even the necessary minimum level of care to assist in your recovery.

            Many prisoners are seeking relief in compelling courts to grant them sentence credits provided for under the plain language of FSA. Obviously, only those with outdates in the next two years, or those who reach the 50% threshold for possible CARES consideration should consider prioritizing these petitions.

            In the Supreme Court, two pending petitions ask,  whether a habeas corpus statute, 28 U.S.C. § 2241, grants district courts authority to review a claim that a federal prisoner’s sentence is invalid, when circuit precedent foreclosed the claim at the time of the prisoner’s prior habeas motion, but an intervening Supreme Court precedent changed the construction of the statute and held that new interpretation applies retroactively. Federal prisoners raise that issue in pending petitions in Ham v. Breckon and Jones v. Hendrix.

Be not afraid, and let not your heart be troubled.

Derek Gilna, Director of Research, JD, (De Paul Law School , 1975), MARJ, (Vermont Law School, 2020), Federal Legal Center, 113 McHenry Rd. #173, Buffalo Grove, IL   60089 (and Indiana); dgilna1948@yahoo.com (English newsletter and ALL inquiries, English or Spanish); (Alternate email: dagilna1948@yahoo.com, firststeprelief@yahoo.com). federallc_esp@yahoo.com, Spanish newsletter, but NO inquiries. (This Newsletter is for Information Only and Does Not Constitute Legal Advice.reckon and Jones v. Hendrix.