United States v. Bass

• Decision Date: 03 November 2021
• Docket Number: No. 21-1094,21-1094
• Citation: 17 F.4th 629
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John BASS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

17 F.4th 629

UNITED STATES of America, Plaintiff-Appellant,

v.John BASS, Defendant-Appellee.

No. 21-1094

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2021

Decided and Filed: November 3, 2021

ARGUED: Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellant. Douglas R. Mullkoff, Ann Arbor, Michigan, for Appellee. ON BRIEF: Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellant. Douglas R. Mullkoff, Ann Arbor, Michigan, for Appellee. Stephanie Franxman Kessler, PINALES STACHLER YOUNG & BURRELL CO., LPA, Cincinnati, Ohio, Barry J. Pollack, Courtney L. Millian, ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Amicus Curiae.

Before: ROGERS, WHITE, and MURPHY, Circuit Judges.

ROGERS, J., delivered the opinion of the court in which MURPHY, J., joined. WHITE, J. (pp. 642–44), delivered a separate dissenting opinion.

ROGERS, Circuit Judge.

In 2003, John Bass, a local drug kingpin in the state of Michigan, was convicted of murdering a hitman whom Bass had hired to kill Bass's half-brother. Though the Government sought the death penalty, Bass was ultimately sentenced to two concurrent terms of life imprisonment without the possibility of release. In 2020, Bass moved for compassionate release due to COVID-19. The district court granted Bass's request in January 2021 and ordered his immediate release. In March, a divided panel of this court granted the Government's emergency motion to stay the release. In this merits appeal, the Government argues that the district court abused its discretion when it granted Bass's request for immediate release. Because the district court's decision rested upon legal errors, its decision to release Bass constituted an abuse of its discretion. On remand, moreover, the district court must reevaluate the compassionate release request based on current facts and circumstances, which have materially changed.

I.

From 1989 to 1997, Bass controlled a criminal organization known as the "Dog Pound," which was involved in the distribution of multi-kilogram quantities of cocaine base in Michigan and Ohio. The organization routinely employed violence to further its goals. As one example of the Dog Pound's ruthlessness, Joseph Chatman testified that Bass and other members of the organization thrashed and tortured Chatman after accusing him of stealing money. According to Chatman, "Bass and others shot him in the chest, doused him with alcohol and set him ablaze," and "tortured Chatman with a hot iron before taking him to the hospital for treatment." "During the torture Bass was heard saying ‘Let's see what burning flesh smells like.’ " Bass and his half-brother, Patrick Webb, distributed crack cocaine as business partners before later creating their own separate organizations, but tensions between them grew over their respective drug businesses. United States v. Bass , 460 F.3d 830, 832 (6th Cir. 2006). In 1996, Bass hired Armenty Shelton to kill Webb so that Bass could capture his brother's portion of the drug business. A few days after Webb's murder, Bass met with Shelton to make a drug deal. Id. While Shelton was examining the drugs, "Bass produced a handgun and proceeded to shoot Shelton," with the help of another half-brother, Cornelius Webb. The government later recovered the murder weapons during a search of Bass's residence and positively identified them as the weapons used in the murder of Shelton.

On August 11, 2003, a criminal jury convicted Bass of conspiracy to distribute five or more kilograms of cocaine and fifty or more grams of cocaine base in violation of 21 U.S.C. § 846, and firearms murder during or in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(j). The jury found Bass guilty of the murder of Shelton but acquitted him of Patrick Webb's murder. Bass , 460 F.3d at 834. As we observed in Bass's direct appeal, during the penalty phase of the trial, the defense represented to the jury that "there was no need to execute Bass because he would spend the rest of his life in prison if not given the death penalty." Id. His conviction on the murder offense meant he was punishable by death, life imprisonment, or imprisonment for a term of years, but for "strategic reasons" Bass's trial counsel "agreed to limit the jury's choice either to death or to life in prison." Id. at 839. We noted that:

[d]efense counsel apparently did not want the jury to be given the option of imposing a term of years as it was inconsistent with her argument that there was no need to execute Bass because he would spend the rest of his life in prison if not given the death penalty. The jury declined to ... impose the death penalty, opting instead to impose a life sentence.

Id. at 834. In March 2004, the district court sentenced Bass to life without the possibility of release on the drug trafficking charge, and life on the murder charge, with both set to run concurrently. We affirmed Bass's conviction and sentence on direct appeal. Id. at 832.

On June 28, 2020, Bass moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), citing the COVID-19 pandemic. Bass claimed that as a 51-year-old African American male suffering from morbid obesity, he faced a higher risk of severe illness from the virus while incarcerated. The Government opposed the motion but conceded that Bass's heightened risk from COVID-19 due to obesity meant that he had satisfied the first eligibility threshold for compassionate release under U.S.S.G. § 1B1.13(1)(A) : that there were "extraordinary and compelling reasons" warranting his release. However, the Government argued that Bass was ineligible for compassionate release because he was still a danger to the community under U.S.S.G. § 1B1.13(2), and because the 18 U.S.C. § 3553(a) sentencing factors strongly weighed against granting release.

While the motion was pending, one of Bass's surviving victims filed an anonymous statement with the court, writing that Bass "should not be released from jail" because he had "an evil mind to do what he did" and was "a threat to society."

Bass noted in supplemental briefing that as of December 9, 2020, FCI McKean (where he was imprisoned) had 167 active COVID-19 cases among the inmates housed there, which was approximately 20% of the inmate population. Bass also submitted the Bureau of Prisons’ ("BOP") Male Prisoner Assessment Tool Targeting Estimated Risk and Need ("PATTERN") Risk Scoring Sheet, which allegedly shows that, based on an analysis of Bass's prison history and programming, he is a generally low-risk prisoner and less likely to reoffend.

On January 22, 2021, the district court granted Bass's motion for compassionate release. United States v. Bass , 514 F. Supp. 3d 977, 979 (E.D. Mich. 2021). Relying on CDC guidelines, the court found that Bass's obesity put him at an increased risk of severe illness from COVID-19. Id. at 982. Reviewing sua sponte the most recent BOP COVID-19 statistics available online, the court noted the prison's high infection rate, with 46% of inmates having been infected at one point and over one hundred active infections as of January 21. Id. The district court determined that Bass was at high risk of severe illness because of the high infection rate at FCI McKean and the risk that "not all prison populations are being prioritized for inoculation." Id.

Next, evaluating the sentencing factors articulated in 18 U.S.C. § 3553(a), the district court found that Bass's record of rehabilitation over twenty-two years of incarceration "significantly mitigate[d]" the Government's concern of Bass's danger to the community and risk of recidivism. Bass , 514 F. Supp. 3d at 983. Pointing to Bass's troubled upbringing, the court concluded that twenty-two years in prison was sufficient punishment for the crimes he had committed. Id. at 983-84. The district court emphasized Bass's life coaching activities and the testimony from family members demonstrating his personal growth, remorse, and commitment to his family. Id. at 984-86. The decision also rested on Bass's ostensibly low risk of recidivism as measured by the BOP's PATTERN score. Id. at 986. The court further stressed that the reduction was appropriate to avoid a sentencing disparity between Bass and his twenty-one codefendants, including his half-brother Cornelius Webb, who was convicted of second-degree murder in state court and sentenced to 25-45 years in prison, but was released on parole after serving over eighteen years. Id. at 988-89. Consequently, the court ordered BOP officials to release Bass immediately, and that upon his release, Bass would serve a three-year term of supervised release, reduced from five years. Id. at 989.

On January 29, 2021, the Government appealed to this court and sought an emergency stay. On February 5, a motions panel of this court granted the stay in a 2–1 order. United States v. Bass , 843 F. App'x 733, 738 (6th Cir. Feb. 5, 2021) (order). The majority held that a stay was warranted because the Government was likely to succeed on the merits of its arguments that the district court's decision amounted to an abuse of discretion. Id. at 736. The majority reasoned that the district court had engaged in a substantively unreasonable balancing of the § 3553(a) factors by affording "too much weight to certain sentencing factors ... and insufficient weight to others." Id. Dissenting from the stay order, Judge Stranch reasoned that the district court's order fell within the "expansive" discretion that district courts traditionally enjoy in deciding such motions. Id. at 738 (Stranch, J., dissenting).¹

In this merits appeal, the Government contends that the mandatory nature of Bass's sentence to life "without the possibility of release" means that the district court's decision—even if permitted under the First Step Act's compassionate release provisions in 18 U.S.C. § 3582(c)(1)(A) —amounts to a "stunning" deviation from the jury's verdict. The...