United States v. Wesley
| Docket Number | 22-3066 |
| Decision Date | 28 August 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MONTERIAL WESLEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
1
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MONTERIAL WESLEY, Defendant-Appellant.
No. 22-3066
United States Court of Appeals, Tenth Circuit
August 28, 2023
D.C. No. 2:07-CR-20168-JWL-2 (D. Kan.)
Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, and ROSSMAN, Circuit Judges.
ORDER
This matter is before the court on Appellant's Petition for Rehearing En Banc and Appellee's Response in Opposition to Petition for Rehearing En Banc. The petition and the response were circulated to all judges of the court who are in regular active service, and a poll was called. The poll did not carry. Consequently, Appellant's request for en banc rehearing is DENIED.
Judge Rossman would grant the petition. Judge Tymkovich has filed a separate concurrence in support of the denial of rehearing en banc, which is joined by Judge Eid.
Judge Rossman has written separately in dissent.
TYMKOVICH, Circuit Judge, joined by EID, Circuit Judge, concurring in the denial of rehearing en banc.
I agree that this case need not be reviewed by the full court. The panel opinion explains in detail why the compassionate release statute does not apply to Mr. Wesley's claims of prosecutorial misconduct. Rather, § 2255 applies, and § 2255 (not § 3582(c)(1)(A)) is the source of the jurisdictional inquiry-in this case, whether Mr. Wesley is attempting to bring a second or successive § 2255 claim without this court's authorization. See 28 U.S.C. § 2255(h). He is, so the district court properly dismissed that portion of his compassionate release motion for lack of jurisdiction.
In addition, the panel opinion creates no conflict with our decisions in United States v. Maumau, 993 F.3d 821 (10th Cir. 2021), and United States v. McGee, 992 F.3d 1035 (10th Cir. 2021). Nor is there any conflict with the Sentencing Commission's forthcoming amended policy statement regarding compassionate release motions (which, notably, contains not a word about errors in a conviction or sentence as a basis for compassionate release). See 88 Fed.Reg. 28,254 (May 3, 2023). The discretion afforded to district courts under those authorities will continue to apply when the prisoner brings a motion actually governed by § 3582(c)(1)(A). The panel opinion establishes, however, that not all motions invoking § 3582(c)(1)(A) are actually governed by § 3582(c)(1)(A).
Nor will the holding established in this case burden the district courts with a difficult task to identify § 2255-like claims within motions brought under § 3582(c)(1)(A). As we explained:
When a federal prisoner asserts a claim that, if true, would mean "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack," § 2255(a), the prisoner is bringing a claim governed by § 2255
United States v. Wesley, 60 F.4th 1277, 1288 (10th Cir. 2023). And "such a motion, however captioned or argued, must be treated as a § 2255 motion." Id. District courts have for decades been screening postconviction motions for claims that are, in substance, § 2255 claims, even though ostensibly brought under some other authority. There is no reason to believe district courts will have more difficulty isolating § 2255 claims brought in the guise of compassionate release compared to § 2255 claims brought in some other guise. See Wesley, 60 F.4th at 1288-89 (cataloguing the various types of motions through which prisoners have attempted to bring claims actually governed by § 2255).
ROSSMAN, J., dissenting from the denial of rehearing en banc.
Mr. Wesley moved for a sentence reduction in federal district court in Kansas under 18 U.S.C. § 3582(c)(1)(A) (or "the compassionate release statute"). He advanced a combination of "extraordinary and compelling reasons" to support his request-including that a prosecutor in his underlying criminal case had suborned perjury and coerced witnesses.[1] Mr. Wesley did not challenge the validity of his conviction or sentence.
The district court concluded it lacked statutory authority under § 3582(c)(1)(A)(i) to consider prosecutorial misconduct as an "extraordinary and compelling" reason for compassionate release. According to the district court, some of the arguments Mr. Wesley advanced under § 3582(c)(1)(A) were actually claims under 28 U.S.C. § 2255. The district court then dismissed Mr. Wesley's motion for compassionate release, in part, for lack of jurisdiction. Mr. Wesley appealed the jurisdictional dismissal, and the Wesley panel affirmed. See United States v. Wesley, 60 F.4th 1277 (10th Cir. 2023).
Today, the court denies Mr. Wesley's petition for rehearing. In my view, we have missed an important opportunity for en banc review.
"En banc review is an extraordinary procedure intended to focus the entire court on an issue of exceptional public importance or on a panel decision that conflicts with a decision of the United States Supreme Court or of this court." 10th Cir. R. 35.1(A); accord Fed. R. App. P. 35(a). Both components of this exacting standard are satisfied here.
This case undoubtedly involves an issue of exceptional public importance. And it involves an issue appearing before Tenth Circuit courts on, literally, a daily basis. Between October 2019 and March 2023, federal courts decided 29,440 motions for a sentence reduction under § 3582(c)(1)(A). See U.S. Sent'g Comm'n, Compassionate Release Data Report (May 2023) at 4. During that same time, our own circuit adjudicated almost 1,200 of these motions. Id. at 9; U.S. Sent'g Comm'n, Compassionate Release Data Report (2020 to 2022), at 9 (Dec. 2022). There is nothing surprising about these numbers.[2] As this court has observed, "[W]e know
that Congress, by way of § 603(b) of the First Step Act, intended to increase the use of sentence reductions under § 3582(c)(1)(A)." United States v. McGee, 992 F.3d 1035, 1046 (10th Cir. 2021). It is critical to all stakeholders in the criminal justice process that our very busy federal trial courts apply the correct applicable law when adjudicating compassionate release motions.
The rule announced in Wesley-that a defendant is barred from raising "§ 2255-like claims" as "extraordinary and compelling reasons" for compassionate relief-runs afoul of the plain text of the compassionate release statute, precedent in our circuit interpreting it, the First Circuit's well-reasoned decision on the same issue, and the Sentencing Commission's view. Wesley seems to impose a new extra-textual threshold inquiry in § 3582(c)(1)(A) cases but leaves district courts without clear guidance on how to undertake it. Because Wesley reaches the wrong result on a recurring
issue of exceptional importance, I respectfully dissent from the denial of rehearing en banc.
I A
"We start, as always, with the language of the statute." Dean v. United States, 556 U.S. 568, 572 (2009) (citation omitted). The compassionate release statute, as amended by the First Step Act, provides, in pertinent part:
(c) Modification of an imposed term of imprisonment.--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 (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 section 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 ....
§ 3582(c)(1)(A)(i).
"[N]either § 3582(c)(1)(A)(i), nor any other part of the statute, defines the phrase 'extraordinary and compelling reasons' ...." McGee, 992 F.3d at 1043. The text of § 3582(c)(1)(A)(i) excludes no categories of reasons from the grounds that could constitute "extraordinary and compelling reasons" warranting a sentence reduction. As Wesley acknowledges, "The only limit Congress explicitly put on 'extraordinary and compelling reasons' was a directive that the Sentencing Commission's explanatory policy statements could not designate '[r]ehabilitation of the defendant alone [as] an extraordinary and compelling reason.'" Wesley, 60 F.4th at 1282 (alterations in original) (quoting 28 U.S.C. § 994(t)).
Congress also did not clearly state any threshold jurisdictional element in § 3582(c)(1)(A)(i). Still, Wes...
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