United States v. Harvey

• Decision Date: 28 April 2021
• Docket Number: No. 20-1944,20-1944
• Citation: 996 F.3d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lamont HARVEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

996 F.3d 310

UNITED STATES of America, Plaintiff-Appellee,

v.Lamont HARVEY, Defendant-Appellant.

No. 20-1944

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 28, 2021

ON BRIEF: Ryan Hugh Machasic, RYAN H. MACHASIC, P.C., Detroit, Michigan, for Appellant. Amanda Jawad, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

Before: STRANCH, LARSEN, and NALBANDIAN, Circuit Judges.

The court delivered a PER CURIAM opinion. STRANCH, J. (pp. 7–10), delivered a separate opinion concurring in the judgment.

PER CURIAM.

Lamont Harvey appeals the district court's denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We affirm.

I. BACKGROUND

In 2016, Harvey pleaded guilty to a charge of distributing a controlled substance under 21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to 156 months’ imprisonment and three years’ supervised release. Harvey then filed a § 2255 motion claiming ineffective assistance of counsel. The case was reassigned to a different judge, who denied the motion. We affirmed. Harvey v. United States , 798 F. App'x 879 (6th Cir. 2020).

On June 12, 2020, Harvey filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Arguing that "[t]he ongoing coronavirus pandemic presents extraordinary and compelling reasons where a defendant is susceptible to infection," he cited his "chronic bronchitis

" (which had previously "required emergency intervention") and the spread of COVID-19 cases at the facility in which he was incarcerated at the time as justifying release. He also noted that he was a "non-violent offender" and "had no disciplinary actions against him at the BOP."

After the Government filed a response in opposition, and Harvey filed a reply, the district court denied Harvey's motion on September 17, 2020. The district court did not hold a hearing. It used a one-page form order to deny Harvey's motion. The form stated "[u]pon renewed motion of Defendant (Dkt. 87) for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), and after considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy statements issued by the Sentencing Commission, IT IS ORDERED THAT the motion is ...." It then listed four check boxes labeled: (1) "GRANTED," (2) "DEFERRED pending supplemental briefing ....," (3) "DENIED after complete review of the motion on the merits," and (4) "DENIED WITHOUT PREJUDICE because Defendant has not exhausted all administrative remedies as required in 18 U.S.C. § 3582(c)(1)(A), nor have 30 days lapsed since receipt of Defendant's request by the warden of Defendant's facility." The district court checked box (3).

Harvey timely filed a notice of appeal on September 28, 2020. About three weeks later, on October 21, 2020, the district court filed a five-page document titled "OPINION SETTING FORTH THE REASONS FOR DENYING DEFENDANT LAMONT HARVEY'S MOTION FOR COMPASSIONATE RELEASE." The document stated that "[t]he Court is entering this Opinion to set forth its findings and analysis in support of" the form order. In outlining the legal standard it would apply, the district court asserted that its discretion to consider extraordinary and compelling reasons justifying release was circumscribed by the list in USSG § 1B1.13. And the court decided that "[a] reduction in sentence would not have been consistent with the policy statements issued by the Sentencing Commission." The district court also discussed Harvey and the Government's arguments about whether the § 3553(a) factors weighed in favor of release, concluding (in one paragraph) that they did not. It also noted that Harvey had satisfied the exhaustion requirement.

II. ANALYSIS

We first address the effect of the district court's post-appeal opinion. The parties disagree about whether we can or should take the opinion into account in determining whether the district court sufficiently explained the denial of Harvey's compassionate release motion. Harvey maintains that the district court was without jurisdiction to file the opinion altogether. We agree.

Typically, "filing a notice of appeal with the district court divests the district court of jurisdiction to act in a case, except on remedial matters unrelated to the merits of the appeal." Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't of Nat. Res. , 71 F.3d 1197, 1203 (6th Cir. 1995) ; see also 6 Charles A. Wright et al., Federal Practice and Procedure § 1489 (3d ed. Apr. 2021 update) ("Once an appeal has been taken from the judgment, the district court no longer has jurisdiction over the case and cannot reopen the judgment to allow an amendment to be made.").

In other words, "expansion of a district court's judgment [is] not permitted while an appeal is pending." NLRB. v. Cincinnati Bronze, Inc. , 829 F.2d 585, 588 (6th Cir. 1987). We have interpreted this rule to except certain actions taken "in aid of the appeal," a "narrowly defined" set that "includes issuance of an opinion that memorializes an oral ruling made days before." United States v. Sims , 708 F.3d 832, 834 (6th Cir. 2013) (quoting Inland Bulk Transfer Co. v. Cummins Engine Co. , 332 F.3d 1007, 1013 (6th Cir. 2003) ). But we have also noted that "appellate courts have generally prevented trial courts from developing supplemental findings after the notice of appeal has been filed." Inland Bulk Transfer , 332 F.3d at 1013 (collecting cases).

The district court's opinion—filed 23 days after the notice of appeal and eight days after Harvey filed his brief in this case—does not fall within an exception to the rule. There was no oral ruling to memorialize. And even if there had been, the district court waited weeks, not days, to provide a fuller explanation for its ruling. Given that Harvey argued on appeal precisely that the form order was insufficient, before the district court filed its opinion, that opinion was an "action[ ] that alter[ed] the case on appeal" and not one that "merely aid[ed] the appellate process." Inland Bulk Transfer , 332 F.3d at 1013 (quoting Allan Ides, The Authority of a Federal District Court to Proceed after a Notice of Appeal Has Been Filed , 143 F.R.D. 307, 323 (1992) ).

Moreover, the court's opinion was not a "remedial matter[ ] unrelated to the merits of the appeal." Fort Gratiot Sanitary Landfill , 71 F.3d at 1203. Instead, the court used the opinion to "set forth its findings and analysis in support of" its earlier order. See Inland Bulk Transfer , 332 F.3d at 1013 (noting that appellate courts generally prevent district courts from "developing supplemental findings" after a party has filed a notice of appeal). So the opinion is "null and void" because the district court did not have jurisdiction to file it, and we cannot consider it. United States v. Holloway , 740 F.2d 1373, 1382 (6th Cir. 1984) (quoting Keohane v. Swarco, Inc. , 320 F.2d 429, 432 (6th Cir. 1963) ). This conclusion resolves the Government's argument that "there would be little reason to remand only for a more thorough explanation here, now that the district court has already given one."

We turn next to the merits of Harvey's challenge. Harvey argues that the district court's form order here was insufficient and thus procedurally defective, and that the district court abused its discretion in denying his motion. In reviewing the district court's decision, we "must apply the law in effect at the time [we] render[ our] decision," Henderson v. United States , 568 U.S. 266, 276, 133 S.Ct. 1121, 185 L.Ed.2d 85 (2013) (quoting Thorpe v. Hous. Auth. of Durham , 393 U.S. 268, 281, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969) ), and since the district court's September 17, 2020, order, that law has changed significantly. "For thirty-four years, only the BOP's Director could file motions for compassionate release," and "the Director seldom wielded this significant power." United States v. Jones , 980 F.3d 1098, 1104 (6th Cir. 2020). In an effort "to boost grants of compassionate release," Congress passed the First Step Act of 2018, which allows incarcerated people to file motions for compassionate release themselves so long as they exhaust their administrative remedies or wait 30 days after the warden's receipt of a compassionate release request (whichever comes first). Id. at 1104–05 ; see also United States v. Alam , 960 F.3d 831, 833–34 (6th Cir. 2020).

Last year, we clarified that "sentence-modification decisions pursuant to § 3582(c)(1)(A) embody a three-step inquiry: [(1)] district courts must ‘find’ both that ‘extraordinary and compelling reasons warrant [a sentence] reduction’ and that [(2)] ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission’ before [(3)] considering all relevant sentencing factors listed in 18 U.S.C. § 3553(a)." Jones , 980 F.3d at 1101 (second alteration in original) (footnote omitted) (quoting 18 U.S.C. § 3582(c)(1)(A) ); see also United States v. Ruffin , 978 F.3d 1000, 1004–05 (6th Cir. 2020). And we held that for purposes of the third requirement, USSG § 1B1.13 "is not an applicable policy statement for compassionate-release motions brought directly by inmates, and so district courts need not consider it when ruling on those motions. United States v. Elias , 984 F.3d 516, 519 (6th Cir. 2021).

So without an applicable policy statement, district courts have significant, though not unlimited, discretion to define "extraordinary and compelling" reasons for relief "on their own initiative." Elias , 984 F.3d at 519–20. And "district courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others." Elias , 984 F.3d at 519. No matter the basis, we review these decisions for abuse of discretion. Jones , 980 F.3d at 1112.

In United States v. Quintanilla Navarro , we dealt with a nearly identical form order. 986 F.3d 668, 669 (6th Cir. 2021). And we affirmed. We noted that Quintanilla...