Published on: Thursday, June 25, 2020

Professor Douglas Berman has identified 15 new federal cases (available here) granting sentencing reductions related to COVID-19, pursuant to 18 U.S.C. § 3582(c)(1)(A). Berman’s recent post includes the Westlaw citations and links to the online opinions.  

Ordinarily, a disctrict court may not modify a term of imprisonment once it has been entered, but there are exceptions, such as when the modification is expressly permitted by statute.  See generally 18 U.S.C. § 3582(c).  Commonly referred to as "compassionate release," 18 U.S.C. § 3582(c)(1)(A) provides district courts a statutory basis to reduce a defendant's sentence.  As amended by the First Step Act of 2018, a court, upon motion of the Director of the BOP or the defendant, upon exhaustion of administrative remedies, may modify the defendant's sentence if, "after consdering the factors set forth in 3553(a) ot the extent they are applicable, it finds that:

(i) extraordinary and compelling reasons warrant such a reduction;

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

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).  While most of the cases cited by Professor Berman find that the pandemic is critical to its finding "extraordinary and compelling reasons" to grant a sentence reduction, it's important to keep in mind that some courts are also using compassionate release proceedings to revisit and recalculate a defendand's original guidelines to take into consdieratoin intervenig legal developments that would have reduced a defendant's sentencing guielines had the defendant been sentenced today.  See, e.g., United States v. Kess, No. ELH-14-480, 2020 WL 3268093 (D Md. June 17, 2020) (granting compassionate release, in part, based on consideration that defendant would no longer be considered career offender if he were sentenced today).  Further, Courts are granting compassionate release based on pre-COVID concerns.  For example, although the First Step Act's limitations on 924(c) stacking are not retroactive, this has not prevented some courts from granting compassionate release based on the harsh consequences of 924(c) stacking to defendant's sentenced before the First Step Act. See, e.g., United States v. Haynes, No. 93 CR 1043 (RJD), 2020 WL 1941478 (EDNY Apr. 22, 2020). 

The Training Division provides resources on compassionate release and the impact of COVID-19 on federal practice on