United States v. McCoy

• Decision Date: 02 December 2020
• Docket Number: No. 20-6877, No. 20-6875,No. 20-6821, No. 20-6869,20-6821
• Citation: 981 F.3d 271
• Parties: UNITED STATES of America, Plaintiff – Appellant, v. Thomas F. MCCOY, Defendant – Appellee. United States of America, Plaintiff – Appellant, v. Keith E. Bryant, Defendant – Appellee. United States of America ,Plaintiff – Appellant, v. Craig Lamont Scott, Defendant – Appellee. United States of America, Plaintiff – Appellant, v. Kittrell Bernard Decator, Defendant – Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

981 F.3d 271

UNITED STATES of America, Plaintiff – Appellant,

v.Thomas F. MCCOY, Defendant – Appellee.

United States of America, Plaintiff – Appellant,

v.Keith E. Bryant, Defendant – Appellee.

United States of America ,Plaintiff – Appellant,

v.Craig Lamont Scott, Defendant – Appellee.

United States of America, Plaintiff – Appellant,

v.Kittrell Bernard Decator, Defendant – Appellee.

No. 20-6821

No. 20-6869

No. 20-6875

No. 20-6877

United States Court of Appeals, Fourth Circuit.

Argued: September 10, 2020

Decided: December 2, 2020

ARGUED: Joseph Attias, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia; Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. John Gleeson, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees. ON BRIEF: G. Zachary Terwilliger, United States Attorney, Richard D. Cooke, Assistant United States Attorney, Daniel T. Young, Assistant United States Attorney, Aidan Taft Grano, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Robert K. Hur, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant. Marisa Taney, Matthew Specht, Steven Tegrar, DEBEVOISE & PLIMPTON LLP, New York, New York, for Appellees. James Wyda, Federal Public Defender, Paresh Patel, Assistant Federal Public Defender, Shari Silver Derrow, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellees Craig Scott, Keith Bryant, and Kittrell Decator.

Before DIAZ, THACKER, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Diaz and Judge Thacker joined.

PAMELA HARRIS, Circuit Judge:

The defendants in these consolidated appeals were convicted of robberies and accompanying firearms violations under 18 U.S.C. § 924(c). At the time, sentences under § 924(c) were "stacked," which exposed the defendants to additional mandatory minimums and led to sentences ranging from 35 to 53 years of imprisonment. After the defendants’ convictions became final, Congress passed the First Step Act and ended sentence "stacking" under § 924(c). Today, the defendants’ sentences would be dramatically shorter – in most cases, by 30 years – than the ones they received.

At the same time it shortened sentences under § 924(c), the First Step Act significantly expanded access to compassionate release under 18 U.S.C. § 3582(c)(1)(A). Prior versions of § 3582(c)(1)(A), which empowers courts to reduce sentences for "extraordinary and compelling reasons," had allowed review of sentences only at the request of the Bureau of Prisons ("BOP"). The First Step Act removed the BOP from that gatekeeping role, authorizing defendants themselves to file motions for sentence reductions.

Relying on both these First Step Act provisions, the defendants moved for reductions in their sentences under § 3582(c)(1)(A), resting their case for "extraordinary and compelling reasons" primarily on the length of their § 924(c) sentences and the disparity between their sentences and those that Congress deemed appropriate in the First Step Act. After considering each defendant's individual circumstances – including their youth at the time of the offenses, their lack of significant prior criminal history, their exemplary behavior and rehabilitation in prison, and their already-substantial years of incarceration – the district courts granted the defendants’ motions and reduced their sentences to time served.

We now affirm the judgments of the district courts. As the government emphasizes on appeal, § 3582(c)(1)(A) prohibits sentence reductions that are not consistent with "applicable policy statements issued by the Sentencing Commission." But contrary to the government's argument, treating the defendants’ § 924(c) sentences as an "extraordinary and compelling" reason for release is not inconsistent with any "applicable policy statement" of the Sentencing Commission for the simple reason that the Commission has yet to issue a policy statement that applies to motions filed by defendants under the recently amended § 3582(c)(1)(A). Nor was it otherwise improper, we conclude, for the district courts to consider the First Step Act's declaration of the appropriate level of punishment under § 924(c) in assessing the defendants’ cases, on an individualized basis, for compassionate release.

I.

We begin with a brief overview of the First Step Act and the law regarding compassionate release, and turn next to the district court decisions granting the defendants’ motions for sentence modifications.

A.

The First Step Act was enacted on December 21, 2018. Pub. L. No. 115-391, 132 Stat. 5194 (2018). As the Second Circuit recently explained:

The First Step Act ... was simultaneously monumental and incremental. Monumental in that its changes to sentencing calculations, mandatory minimums ... 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.

United States v. Zullo , 976 F.3d 228, 230 (2020).

The First Step Act made two specific changes relevant here. First is a "[m]onumental ... change[ ] to sentencing calculations," id. , under 18 U.S.C. § 924(c). That provision imposes mandatory minimum sentences for using or carrying a firearm in connection with a crime of violence: for a first offense, a five- to ten-year mandatory minimum, depending on the circumstances; and for a subsequent conviction, a consecutive 25-year mandatory minimum. Prior to the First Step Act, a conviction was treated as "second or subsequent," triggering the 25-year minimum sentence, even if the first § 924(c) conviction was obtained in the same case. See Deal v. United States , 508 U.S. 129, 132, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). The First Step Act ended this practice, known as sentence "stacking," by clarifying that the 25-year mandatory minimum applies only when a prior § 924(c) conviction arises from a separate case and already "has become final." § 403(a), 132 Stat. at 5222. Under § 403 of the First Step Act, that is, the 25-year mandatory minimum is "reserved for recidivist offenders, and no longer applies to multiple § 924(c) convictions obtained in a single prosecution." United States v. Jordan , 952 F.3d 160, 171 (4th Cir. 2020). But that change does not apply retroactively to sentences – like the defendants’ – imposed before December 21, 2018, when the First Step Act became law. See § 403(b), 132 Stat. at 5222; Jordan , 952 F.3d at 174.

The second relevant change is to § 3582(c)(1)(A), known as the compassionate release statute. Under § 3582(c)(1)(A), a court may reduce a defendant's sentence if the "court ... finds that ... extraordinary and compelling reasons warrant such a reduction" and that the reduction is "consistent with applicable policy statements issued by the Sentencing Commission," and if the § 3553(a) sentencing factors merit a reduction.

18 U.S.C. § 3582(c)(1)(A). Importantly, prior to the First Step Act, courts could consider compassionate release only upon motion by the BOP. See 18 U.S.C. § 3582(c)(1)(A) (2012).

The BOP used that power so "sparingly" that the Department of Justice's Inspector General found in a 2013 report that an average of only 24 imprisoned persons were released each year by BOP motion. See Zullo , 976 F.3d at 231 (citing U.S. Dep't of Just., Office of the Inspector Gen., The Federal Bureau of Prisons’ Compassionate Release Program 1 (2013), https://www.oversight.gov/sites/default/files/oig-reports/e1306.pdf); United States v. Rodriguez , 451 F. Supp. 3d 392, 395 (E.D. Pa. 2020). According to the same report, the BOP poorly managed the compassionate-release process and failed to establish timeliness standards for reviewing prisoner requests, causing delays so substantial that inmates sometimes died awaiting final BOP decisions. See Zullo , 976 F.3d at 231–32.

Against this backdrop, Congress amended § 3582(c)(1)(A) to "remove the Bureau of Prisons from its former role as a gatekeeper over compassionate release petitions." McCoy v. United States , No. 2:03-cr-197, 2020 WL 2738225, at *4 (E.D. Va. May 26, 2020). Section 603(b) of the First Step Act announces its purpose in its title – "Increasing the Use and Transparency of Compassionate Release" – and provides that defendants now may file motions for sentence modifications on their own behalf, so long as they first apply to the BOP. See § 603(b), 132 Stat. at 5239. By creating an avenue for defendants to seek relief directly from the courts, Congress effectuated an "incremental" change, expanding the "discretion [of the courts] to consider leniency." Zullo , 976 F.3d at 230.

Section 3582(c)(1)(A)(i) does not attempt to define the "extraordinary and compelling reasons" that might merit compassionate release.¹ Instead, the Sentencing Commission, pursuant to authority granted it by Congress, see 28 U.S.C. § 994(t) ; see also id. § 994(a)(2)(C), addressed the issue in a policy statement, United States Sentencing Guideline § 1B1.13. The Commission first issued its policy statement in 2006 and last updated it in November 2018, before the First Step Act. Accordingly, it is directed at BOP requests for sentence reductions: "Upon the motion of the Director of the Bureau of Prisoners," it provides, a court may reduce a sentence if, after considering the § 3553(a) sentencing factors, it determines that "extraordinary and compelling reasons warrant the reduction," that the defendant is not a danger to the community, and that the reduction is consistent with the instant policy statement. U.S.S.G. § 1B1.13.

Finally, in an application note, the Commission sets out four categories of "extraordinary and compelling reasons." The first three establish specific circumstances...