United States v. Shakur

• Decision Date: 02 November 2020
• Docket Number: No. 82 CR 312 (CSH),82 CR 312 (CSH)
• Citation: 498 F.Supp.3d 490
• Parties: UNITED STATES of America v. Mutulu SHAKUR, Defendant.
• Court: U.S. District Court — Southern District of New York

498 F.Supp.3d 490

UNITED STATES of America

v.Mutulu SHAKUR, Defendant.

No. 82 CR 312 (CSH)

United States District Court, S.D. New York.

Signed November 2, 2020

Edward Arthur Imperatore, United States Attorney's Office, New York, NY, for United States of America.

RULING ON DEFENDANT'S MOTION FOR COMPASSIONATE RELEASE

HAIGHT, Senior District Judge:

Defendant Mutulu Shakur renews a motion before this Court for reduction of his sentence. This Ruling resolves that motion.

I

Shakur is currently serving a 60-year sentence of imprisonment imposed following his conviction in 1988 in this Court for conspiracy to violate RICO, participation in a racketeering enterprise, bank robbery, armed bank robbery, and bank robbery murder. Shakur was tried together with a co-defendant, Marilyn Jean Buck, who was convicted on the same charges.

Shakur has filed a motion in this Court for a reduction of his sentence and a "compassionate release" from custody. He bases that motion upon the First Step Act of 2018, 18 U.S.C. § 3582(c)(1)(A). In a Preliminary Ruling dated May 27, 2020, 2020 WL 2749686, familiarity with which is assumed, I construed the First Step Act to require that Shakur first address his request for reduction of sentence to the federal Bureau of Prisons ("BOP") before filing a motion for that relief in the District Court. The Preliminary Ruling also stated that such a request to the BOP "must be acted upon within thirty days of its receipt by the warden," and "If that period of time lapses without response, the Court will proceed to consider the motion's merits (which have been thoroughly briefed already)." 2020 WL 2749686, at *7.

Obedient to that ruling, Shakur promptly filed with the BOP a "Petition for Compassionate Release" dated May 28, 2020. Shakur contended that the BOP should move immediately for a reduction of his sentence. The BOP has taken no action with respect to that petition. The thirty days specified for the BOP's response elapsed on or about June 30. Shakur renews his motion before this Court. The Court now considers the merits of Shakur's motion.

II

I have used the phrase "compassionate release" because that is way courts have come to characterize the reduction of sentence an inmate seeks in such a motion. The First Step Act, which extended to district courts the authority to reduce sentences which had previously been vested exclusively in the BOP, does not use that term. The Act provides that the court "may reduce the term of imprisonment" if it finds that "extraordinary and compelling reasons warrant such a reduction." The characterization of a resulting reduction as a "compassionate release" was fashioned by judges, not the Congress: see, e.g., United States v. Brooker , 976 F.3d 228 (2d Cir. 2020), construing the First Step Act ("The statute authorizing compassionate release as it exists today was first enacted as part of the Comprehensive Crime Control Act of 1984.... 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."). 976 F.3d at 231.

It is striking that judges, not the Congress, coined the phrase "compassionate release." "Compassion," the root noun for the adjective "compassionate," is a subjective, broadly defined, emotional state of mind;¹ the word sits unnaturally in the objective, precise, narrow language of the law.

Shakur's motion presents the question whether, in the circumstances of his case, the Court should grant him a reduction of sentence resulting in what the law has come to call a compassionate release. It is necessary to consider cases which define that concept, and grant or deny the requested relief.

III

The First Step Act, which conferred Shakur's ability to file a compassionate release motion with the district court, was enacted by Congress "amidst widespread complaints about the failure of the BOP to file motions on prisoners’ bring a motion on the behalf," United States v. Gionfriddo , No. 3:18-cr-307, 2020 WL 3603754 (D. Conn. July 2, 2020), at *2. The Act, which became effective on December 21, 2018, provides in pertinent part in 18 U.S.C. § 3582(c) :

The court may not modify a term of imprisonment once it has been imposed except that – (1) in any case – (A) the 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 ..., after considering the factors set forth in section 3553(a) to the extent they are applicable.

(emphasis added). I have emphasized the phrase that introduces the First Step Act's principal reform: extending to district courts the authority to entertain prisoners’ motions for sentence, which had previously fallen within the exclusive authority of the BOP.

As I previously observed in the Preliminary Ruling: "The combined result of the First Step Act in 2018 and the COVID-19 pandemic in 2020 has been an uncontained increase of motions in district courts by federal inmates seeking to reduce the length of their sentences." 2020 WL 2749686, at *4. The predictable multitude of district court decisions, not all reconcilable, gave rise to uncertainties as to the scope of the reasons a district judge could consider in deciding whether to grant or deny compassionate release. On September 25, 2020, the Second Circuit decided United States v. Brooker , 976 F.3d 228, which answers that question in this Circuit.²

Judge Calabresi's opinion begins by observing that although the First Step Act overturned history, "it often did no more than shift discretion from the Bureau of Prisons to the courts." 976 F.3d at 230. That left open the question posed by the Second Circuit:

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 § 1B1.13 Application Note 1(D), which makes the Bureau of Prisons the sole arbiter of whether most reasons qualify as extraordinary and compelling.

Id. The Second Circuit foretold its conclusion:

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.

976 F.3d at 230, and then concluded that

the First Step Act freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release. Neither Application Note 1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district court's discretion.

Id. at 237. The opinion adds, in footnote 5 to *8 : "Because Application Note 1(D) does not bind district courts, they are similarly not bound by BOP's updated guidance on what counts as an extraordinary and compelling reason."

The Second Circuit arrived at these conclusions in Brooker after analyzing the history of federal sentencing law prior to enactment of the First Step Act in 2018. Brooker , decided in 2020, notes that "the statute authorizing compassionate release as it exists today was first enacted as part of the Comprehensive Crime Control Act of 1984," a statute that "created the substantive standard that we still apply: whether ‘extraordinary and compelling reasons’ exist for compassionate release." 976 F.3d at 231. "That original statute, unlike the current law, gave BOP exclusive power over all avenues of compassionate release," an "absolute control over this mechanism for lenity" the BOP retained during updatings by the U.S. Sentencing Commission of Application Note 1(D) to § 1B1.13 of the Sentencing Guidelines. Id.

Given that history, the enactment of the First Step Act gave rise to a question which Brooker notes "has split district courts across the country." 976 F.3d at 234. The Second Circuit summarized the dispute:

A majority has concluded that, despite Application Note 1(D), the First Step Act freed district courts to exercise their discretion in determining what are extraordinary circumstances. A sizable minority, including the district court below, has reached the opposite conclusion, holding that Application Note 1(D)’s language continues to preclude court action, absent a motion by the BOP.

(citations omitted). The Second Circuit resolved the dispute in Brooker : "We agree with the majority position, and so vacate and remand the district court's decision." Id. One can understand Judge Calabresi's comment in Brooker that the decision "freed" district judges to use their discretion in deciding motions for compassionate release.

"Nor can we say, as a matter of law," the Second Circuit continued in Brooker , "that a court would abuse its discretion by granting someone compassionate release on this record. It bears remembering that compassionate release is a misnomer." The First Step Act, the Second Circuit observed, "in fact speaks of sentence reductions,"³ which may be accomplished in a variety of ways, and the court of appeals reminds us that "a district court's discretion in this area – as in all sentencing matters – is broad." Id. at 237.

The district court in Brooker took a constricted view of its authority under the First Step Act. The Second Circuit reversed, listed possible reasons for granting compassionate release to the defendant, held that consideration of such factors, "whether in isolation or combination, is best left to the sound discretion of the trial court in the first instance," and vacated and remanded the case "to allow the district court to consider the possible...