Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act

April 8, 2021

Last week brought a number of notable Tenth Circuit opinions regarding compassionate release authority after the FIRST STEP Act, as discussed in posts here and here. A helpful reader made sure I did not miss the latest circuit ruling of note in this arena, this one coming from the Fifth Circuit in US v. Shkambi, No. 20-40543 (5th Cir. April 7, 2021) (available here). Here is the start and some key parts of the ruling (with some cites removed):

The question presented is whether the U.S. Sentencing Commission’s compassionate-release policy statement binds district courts in considering prisoners’ motions under the First Step Act (“FSA”). The district court said yes and dismissed Francesk Shkambi’s motion for lack of jurisdiction. That was wrong for two reasons. First, the district court did have jurisdiction. And second, the policy statement is inapplicable. We reverse and remand….

The district court nevertheless thought itself bound by the old preFSA policy statement that appears in § 1B1.13. That was error for three reasons.

First, the text of § 1B1.13 says it only applies to “motion[s] of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. That makes sense because in 2006 (when the Sentencing Commission issued the policy statement) and in November of 2018 (when the Commission last amended it), the BOP had exclusive authority to move for a sentence reduction. When Congress enacted the FSA in December of 2018, it gave prisoners authority to file their own motions for compassionate release; but it did not strip the BOP of authority to continue filing such motions on behalf of its inmates. So the policy statement continues to govern where it says it governs — on the “motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. But it does not govern here — on the newly authorized motion of a prisoner.

Second, the text of the commentary confirms the limited applicability of § 1B1.13. Application note 4 of the commentary makes clear that a “reduction under this policy statement may be granted only upon a motion by the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13 cmt. n.4 (emphasis added). That note expressly limits the policy statement’s applicability to motions filed by the BOP.

Third, the district court cannot rely on pieces of text in an otherwise inapplicable policy statement. See United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020) (refusing to “do some quick judicial surgery on § 1B1.13 . . . [and] assume that what remains . . . applies to defendant-filed as well as BOP filed motions”). It’s true that application note 1 defines “extraordinary and compelling reasons” by articulating four categories of reasons that could warrant a sentence reduction. But this “text may not be divorced from context.” United States v. Graves, 908 F.3d 137, 141 (5th Cir. 2018)…. And the context of the policy statement shows that it applies only to motions filed by the BOP. Just as the district court cannot rely on a money-laundering guideline in a murder case, it cannot rely on the BOP-specific policy statement when considering a non-BOP § 3582 motion.

For these reasons, we conclude that neither the policy statement nor the commentary to it binds a district court addressing a prisoner’s own motion under § 3582. The district court on remand is bound only by § 3582(c)(1)(A)(i) and, as always, the sentencing factors in § 3553(a). In reaching this conclusion, we align with every circuit court to have addressed the issue. See United States v. McGee, — F.3d —, 2021 WL 1168980, at *12 (10th Cir. Mar. 29, 2021); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020)McCoy, 981 F.3d at 284; Jones, 980 F.3d at 1111; Brooker, 976 F.3d at 234.

A few of many, many prior related posts: