United States v. Long

Decision Date18 May 2021
Docket NumberNo. 20-3064,20-3064
Citation997 F.3d 342
Parties UNITED STATES of America, Appellee v. David M. LONG, also known as Damo, Appellant
CourtU.S. Court of Appeals — District of Columbia Circuit

Andrew B. Talai, Los Angeles, CA, appointed by the court, argued the cause for appellant. With him on the appellant's Memorandum of Law and Fact was Jeffrey T. Green, Washington, DC, appointed by the court.

Mark Hobel, Assistant U.S. Attorney, argued the cause for appellee. With him on the appellee's Memorandum of Law and Fact were Elizabeth Trosman and John P. Mannarino, Assistant U.S. Attorneys.

Before: Millett and Pillard, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Millett, Circuit Judge:

Defendant David Long is currently incarcerated at a federal medical penitentiary. He is serving a 29-year sentence for violent racketeering offenses committed over the course of three decades. He is a double amputee and suffers from a variety of other disabling medical conditions.

As the COVID-19 pandemic raged through the federal prison system, Long filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). He argued that his distinct medical susceptibility to COVID-19 and the failure of prison officials to curb the disease's rapid spread constituted "extraordinary and compelling" reasons for release under that statute.

The district court denied his motion because it believed itself bound by a policy statement issued by the United States Sentencing Commission that bars courts from releasing any incarcerated defendant unless the court first finds that he "is not a danger to the safety of any other person or to the community[.]" See U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 1B1.13(2) ( U.S. SENTENCING COMM'N 2018) We, like seven other circuits, hold that this policy statement is not applicable to compassionate release motions filed by defendants, and so we vacate the district court's order and remand the case for further proceedings.


As a general rule, a federal court "may not modify a term of imprisonment once it has been imposed." 18 U.S.C. § 3582(c). But this rule of finality is subject to a few narrow exceptions. Freeman v. United States , 564 U.S. 522, 526, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). One of those exceptions is for compassionate release.

In 1984, Congress authorized the Director of the Bureau of Prisons to ask courts to reduce defendants’ sentences in unusual circumstances. Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, sec. 212, § 3582(c), 98 Stat. 1837, 1998–1999. The statute provided that a court could, "upon motion of the Director of the Bureau of Prisons," reduce a defendant's term of imprisonment when (1) "extraordinary and compelling reasons warrant such a reduction," (2) the "reduction is consistent with applicable policy statements issued by the Sentencing Commission[,]" and (3) the reduction is appropriate "considering the factors set forth in [S]ection 3553(a) to the extent that they are applicable[.]" Id. (codified at 18 U.S.C. § 3582(c)(1)(A) ).

For more than three decades, the statute left the Director of the Bureau of Prisons in "absolute control over this mechanism for lenity[.]" United States v. Brooker , 976 F.3d 228, 231 (2d Cir. 2020). The Bureau "used that power so ‘sparingly’ " that, as of 2013, on average only 24 defendants were being released annually. United States v. McCoy , 981 F.3d 271, 276 (4th Cir. 2020) (first citing Brooker , 976 F.3d at 231 ; and then citing Department of Justice, 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).

Displeased with that desuetude, Congress put this problem in its crosshairs in 2018 when it enacted criminal justice reform measures in the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018). See Shon Hopwood, Second Looks & Second Chances , 41 CARDOZO L. REV. 83, 105–106 (2019). In a Section of the Act entitled "Increasing the Use and Transparency of Compassionate Release," First Step Act § 603(b), 132 Stat. at 5239, Congress made an important change to 18 U.S.C. § 3582(c)(1). The Act removed the Bureau of Prisons as the gatekeeper of compassionate release and "provid[ed] that defendants now may file motions for sentence modifications on their own behalf," as long as they first exhaust their remedy of applying to the Bureau of Prisons. McCoy , 981 F.3d at 276. Any such motion for compassionate release is generally filed with the judge that imposed the original sentence. See United States v. Keefer , 832 F. App'x 359, 363 (6th Cir. 2020) (considering compassionate release motion and noting the "common scenario" in which "the district judge who sentenced the defendant is the same judge who considers the defendant's reduction-of-sentence motion").

As a result, the compassionate release statute now provides in relevant part (with the new First Step Act language italicized):

[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant's facility, whichever is earlier , may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in [S]ection 3553(a) to the extent that they are applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a reduction; * * *
and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission[.]

18 U.S.C. § 3582(c)(1)(A) (emphasis added).

The Sentencing Commission has lacked a quorum since early 2019, and so it has been unable to update its preexisting policy statement concerning compassionate release to reflect the First Step Act's changes. See Brooker , 976 F.3d at 234 ; United States v. Gunn , 980 F.3d 1178, 1180 (7th Cir. 2020) ; see also 28 U.S.C. § 992(b)(2)(B) (voting member of Commission whose term has expired may continue to serve until "the date on which the Congress adjourns sine die to end the session of Congress that commences after the date on which the member's term expired"); U.S. Senate, Dates of Sessions of the Congress , https://www.senate.gov/legislative/DatesofSessionsofCongress.htm (last accessed May 3, 2021) (115th Congress adjourned Jan. 3, 2019). As a result, the text of the Sentencing Commission's policy statement still limits compassionate release to "motion[s] of the Director of the Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A) [.]" U.S.S.G. § 1B1.13. The Commission's commentary is to the same effect: "A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A)." U.S.S.G. § 1B1.13, Application Note 4.

In substantive terms, the policy statement governing the Bureau of Prisons’ motions provides that a district court may grant a motion for compassionate release, after considering the applicable factors listed at 18 U.S.C. § 3553(a), only when it finds both that "extraordinary and compelling reasons warrant the reduction," and that "the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g) [.]" U.S.S.G. § 1B1.13(1)(A), (2).


David Long led a narcotics distribution enterprise in the District of Columbia from the late 1980s through at least November 2008. In May 2012, he pleaded guilty to one count of RICO conspiracy in violation of 18 U.S.C. § 1962(d). In connection with the plea, Long admitted to running a narcotics enterprise in which he distributed large volumes of heroin to street-level dealers for sale to consumers.

Long also admitted to several violent crimes as part of his drug operations. In the summer of 1990, Long kidnapped a young man named Anthony Morrisey and attempted to extract a ransom from Morrisey's family and friends. When Long suspected that the police had been tipped off, he murdered Morrisey.

In 2002, Long himself was targeted for murder. He sustained significant injuries, leading to the amputation of both legs. Long believed that Franklin Moyler was responsible, as Moyler had demanded money from Long not long before the attempt on his life.

In 2007, Long paid his co-defendant Rico Thomas $10,000 to kill Moyler. In the same year, Long also contracted to have two more people murdered, Melvin Terrell and Oakley Majors. While the hit on Moyler resulted in his death, the other two targets survived. Terrell was paralyzed and lost his ability to speak. He has since had an arm amputated, undergone a lobotomy, and gone blind in one eye.

The Guidelines range for Long's RICO conspiracy conviction would have been life imprisonment, but the government and Long agreed to a plea under Federal Rule of Criminal Procedure 11(c)(1)(C) under which Long would be sentenced to 29 years in prison. The district court accepted that agreement and imposed the 29-year sentence.


Long is incarcerated at the federal medical penitentiary in Springfield, Missouri. At this point, he has served almost 13 years of his 29-year sentence. His Bureau of Prison records indicate no disciplinary issues, and he has completed approximately twenty educational courses during his incarceration.

On September 4, 2020, Long moved the district court for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Long argued that his distinct medical susceptibility to COVID-19 qualified as an extraordinary and compelling reason for the reduction of his sentence.

The district court denied Long's motion. The court assumed that Long's health conditions provided an "extraordinary and compelling...

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