United States v. Facon

• Decision Date: 26 January 2023
• Docket Number: 21-CO-542
• Citation: 288 A.3d 317
• Parties: UNITED STATES, Appellant, v. Eugene R. FACON, Appellee.
• Court: D.C. Court of Appeals

288 A.3d 317

UNITED STATES, Appellant,

v.Eugene R. FACON, Appellee.

No. 21-CO-542

District of Columbia Court of Appeals.

Argued September 22, 2022

Decided January 26, 2023

Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb and Adam Braskich, Assistant United States Attorneys, were on the brief, for appellant.

Hillary S. Smith, with whom Allanté Keels and Matt Jones, Washington, were on the brief, for appellee.

Daniel Gonen, Public Defender Service, with whom Samia Fam, Alice Wang, Mikel-Meredith Weidman, and Paul Maneri, Public Defender Service, were on the brief for Public Defender Service, amicus curiae, in support of appellee.

Before Deahl, Associate Judge, and Thompson and Glickman,^* Senior Judges.

Glickman, Senior Judge:

In 1999, the Superior Court sentenced appellee Eugene Facon to life imprisonment without parole following his convictions for armed kidnapping, first-degree sexual abuse while armed, and other offenses. In December 2020, Facon filed a motion for compassionate release pursuant to D.C. Code § 24-403.04. That statute directs a court to "modify a term of imprisonment imposed upon a defendant" if the court determines that (1) the defendant is "not a danger to the safety of any other person or the community," and (2) the sentence modification is warranted by "extraordinary and compelling reasons," which typically are reasons of a medical nature.¹ The defendant bears the burden of proving each of these preconditions to relief by a preponderance of the evidence.²

Over the government's opposition, the judge to whom the motion was assigned granted the motion based on findings that Facon no longer poses a danger to anyone and is medically eligible for early release from prison because of his "heightened susceptibility to the extreme consequence of contracting COVID-19."

The United States has appealed. It argues that the motion judge erred in finding Facon medically eligible for release without requiring him to show that he remains "acutely vulnerable" to severe illness or death from COVID-19 despite having been vaccinated against the disease. The United States also contends the judge abused his discretion in finding that Facon would not be "a danger to the safety of any other person or the community" if released. We granted the government's motion to stay the order releasing Facon pending our resolution of its appeal.

The threshold issue we confront is the issue of our appellate jurisdiction. This is the first government appeal of a compassionate release order to come before this court; the compassionate release cases we have considered in the past all were appeals by defendants from denials of relief. Facon and amicus curiae the Public Defender Service (PDS) argue that we must dismiss the appeal for lack of jurisdiction because no statute expressly permits the United States to appeal Superior Court orders granting compassionate release. In response, the United States argues that two statutes do authorize such government appeals: D.C. Code § 23-104(d-2), which allows government appeals in criminal cases of orders "granting the release of a person ... convicted ... of an offense," and D.C. Code § 11-721(a)(1), which gives this court jurisdiction over appeals of "all final orders and judgments of the Superior Court." Alternatively, the government argues that even if a direct appeal of a compassionate release order is not permitted by either of those statutes, we should treat its brief as a petition for a writ of mandamus to correct a sentence modification that exceeded the Superior Court's authority under D.C. Code § 24-403.04.

In this opinion we examine the two jurisdictional statutes on which the government relies and conclude that D.C. Code § 11-721(a)(1) confers appellate jurisdiction in this case. An order or judgment granting a motion for compassionate release is "final" within the meaning of that statute. And although § 11-721(a)(1) does not authorize government appeals in criminal cases as a general matter, a compassionate release order is sufficiently independent of and collateral to the underlying criminal prosecution to be appealable under § 11-721(a)(1).³

On the merits, we agree with the government that the motion judge, who did not have the benefit of this court's subsequent decision in Autrey v. United States ,⁴ did not apply the proper legal standard set forth in that case in determining Facon's medical eligibility for release. We therefore must vacate the order granting Facon's compassionate release motion and remand for consideration of whether Facon has shouldered his burden of showing he is acutely vulnerable to severe illness or death from COVID-19 despite having been vaccinated. As to whether the judge abused his discretion in finding that Facon is no longer dangerous, we agree with the government that the judge's explanation for that finding is unclear and raises serious questions that make it less than convincing. However, we refrain from holding that the judge erred in determining that Facon's release will not endanger any other person or the community, inasmuch as a new, up-to-date assessment of Facon's current dangerousness will be necessary on remand before his motion can be granted.

I.

At Facon's 1999 trial in Superior Court, the prosecution presented evidence that, on an afternoon in April 1998, Facon attacked K.L., a 24-year-old woman who was a complete stranger to him, in the parking garage at her place of work. Facon approached K.L. from behind, demanded her car keys, slashed her hand and chest with a 10-inch blade, and threatened to kill her if she did not get into the car with him. When K.L. screamed for help and fought to escape, Facon grabbed her by the hair, pulled her into the car, and slammed her head on the dashboard. He drove K.L. to a park, raped her at knifepoint, took her money, and then left her there as he drove off in her car. The jury convicted Facon of armed kidnapping, first-degree sexual abuse while armed, armed carjacking, armed robbery, assault with a dangerous weapon, and threatening to injure a person.

Facon perpetrated these crimes just six weeks after he was released on parole following ten years in prison for two unrelated armed robberies he had committed in 1987. Facon also had a history of substance abuse and had been using cocaine daily for several years prior to his commission of those robberies. Although he participated in substance abuse treatment while in prison, he tested positive for cocaine use within two weeks of his release on parole and again on the day after he attacked K.L.

On July 23, 1999, the trial judge sentenced Facon to two consecutive terms of life imprisonment without eligibility for parole (LWOP) for armed kidnapping and first-degree sexual abuse while armed, and an additional 18? to 55 years in prison for the other offenses of conviction. This court affirmed Facon's convictions on direct appeal in 2008⁵ and affirmed the denial of his first collateral challenge to his convictions (alleging ineffective assistance of trial counsel) in 2011.⁶ In early 2020, Facon appealed the trial court's denial of a second post-conviction motion, in which he challenged the legality of his LWOP sentences.⁷

The latter appeal was still pending on December 30, 2020, when Facon moved in Superior Court for compassionate release pursuant to D.C. Code § 24-403.04. By then he had served 22 years, eight months, and two days of his sentence. In support of a finding that he was no longer dangerous, Facon cited the length of time he had spent in prison; his age (57 at the time he filed the motion), renewed religious faith, and strong family ties; his lack of substance or alcohol use since 2004; and his conduct and activities during his incarceration, including his limited disciplinary history (a total of 12 infractions in 22 years, the most recent of which was in 2011), consistent employment, and voluntary participation in Narcotics Anonymous and institutional programming. To establish his medical eligibility for compassionate release, Facon argued that he had five risk factors — his age, type 2 diabetes

, obesity, hypertension, and hepatitis C — that increased his likelihood of experiencing severe consequences from COVID-19 and therefore constituted "extraordinary and compelling reasons" warranting his early release within the meaning of D.C. Code § 24-403.04(a)(3).

The United States opposed Facon's motion. While noting that he soon would be offered a COVID-19 vaccine, the government acknowledged that the Centers for Disease Control and Prevention had concluded that obesity

, Type 2 diabetes, and, possibly, hypertension increase the risk of severe illness from COVID-19. (The government disputed the significance of Facon's other claimed risk factors.) But the United States argued that Facon remained dangerous and had failed to demonstrate otherwise. As evidence of his disqualifying dangerousness, the government emphasized the nature and circumstances of his offenses against K.L.; his criminal history, including the fact that he committed his crimes against K.L. within only six weeks of his release on parole after serving ten years in prison for armed robberies; his history of cocaine use and insufficient drug rehabilitation; his disciplinary violations while serving time, which included not only several minor incidents (e.g., insolence) but also an assault with serious injury in 2002, threatening bodily harm in 2002, possession of intoxicants in 2003 and 2004, and fighting with another inmate in 2011; and his minimal program participation (only 284 hours in nearly 23 years, an average of less than 13 hours a year⁸ ). The government also represented that Facon had refused sex offender treatment (which Facon disputed). In addition, the government reported that Facon's victim, K.L., strongly opposed his release; she had written a letter saying she remained scarred by the attack and...