United States v. Brooker

• Decision Date: 25 September 2020
• Docket Number: No. 19-3218-CR,August Term, 2019,19-3218-CR
• Citation: 976 F.3d 228
• Parties: 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.
• Court: U.S. Court of Appeals — Second Circuit

976 F.3d 228

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

August Term, 2019

United States Court of Appeals, Second Circuit.

Submitted: June 25, 2020

Decided: September 25, 2020

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.

Before: Winter, Calabresi, and Chin, Circuit Judges.

Calabresi, Circuit Judge:

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.") § 1B1.13 Application Note 1(D) ("Application Note 1(D)"), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling. Because we hold that Application Note 1(D) does not apply to compassionate release motions brought directly to the court by a defendant under the First Step Act, we vacate and remand the district court's contrary decision.

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, 131 S.Ct. 18, 178 L.Ed.2d 348 (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 18 U.S.C. § 924(c), like the one Zullo received, must run consecutively to any other mandatory minimum sentence. 562 U.S. at 13, 131 S.Ct. 18. Recognizing that Zullo's sentence was now contrary to law, we vacated and remanded for resentencing. See United States v. Brooker , No. 10-4764-cr, 2011 WL 11068864, at *1 (2d Cir. Dec. 22, 2011). On remand, the district court, repeating its belief that the required now-15-year sentence was excessive, imposed that sentence. Zullo's conviction and sentence were then affirmed on direct appeal and on habeas review. United States v. Zullo , 581 F. App'x 70 (2d Cir. 2014) (direct appeal); United States v. Zullo , No. 1:09-CR-00064-JGM-2, 2015 WL 6554783 (D. Vt. Oct. 29, 2015) (habeas review).

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 18 U.S.C. § 3582(c)(1)(A) ).

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 18 U.S.C. § 3582(c)(1)(A) (2017). No matter what other changes Congress made to the compassionate release statute over the years, the BOP's absolute control over this mechanism for lenity remained. See, e.g. , Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322 § 70002, 108 Stat. 1796, 1984-85 (codified at 18 U.S.C. § 3582(c)(1)(A)(ii) ) (providing for the release, upon BOP motion, of some imprisoned persons at least 70 years of age who have served at least 30 years in prison).

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 "ha[d] no timeliness standards for reviewing ... requests." Id. at 11. These failures were not without consequence. Of the 208 people whose release requests were approved by both a warden and a BOP Regional Director, 13% died awaiting a final decision by the BOP Director. Id.

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. 28 U.S.C. § 994(t) requires the Commission to "describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples." And 28 U.S.C. § 994(a)(2)(C) requires the Commission to promulgate "general policy statements regarding application of the guidelines or any other aspect of sentencing ... including ... the sentence modification provisions set forth in section[ ] ... 3582(c)." The above-mentioned section 994 was passed in 1984, but it was not until 2006 that the Commission finally acted on this mandate and issued a new policy statement, Guideline § 1B1.13.

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]." U.S.S.G. § 1B1.13 n.1(A) (U.S. Sentencing Comm'n 2006). The next year, however, the Commission updated that Guideline to explain that extraordinary and compelling reasons for a sentence reduction exist if "the defendant is suffering from a terminal illness," from significant decline related to the aging process that would make him unable to care for himself within a prison, or upon "the death or incapacitation of the defendant's only family member capable of caring for the defendant's minor child or...