Petition for Writ of Certiorari — James A. Hald, et al., Petitioners v. United States

Supreme Court briefDec 10, 2021

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IN THE

Supreme Court of the United States

________________

JAMES A. HALD, WALTER B. SANDS, AND CONNIE EDWARDS,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

________________

JOINT PETITION FOR A WRIT OF CERTIORARI

________________

MELODY BRANNON

Federal Public Defender

DANIEL T. HANSMEIER

Appellate Chief

Counsel of Record

KAYLA GASSMANN

Assistant Federal Defender

KANSAS FEDERAL PUBLIC DEFENDER

500 State Avenue, Suite 201

Kansas City, Kansas 66101

Phone: (913) 551-6712

Email: daniel_hansmeier@fd.org

Counsel for Petitioners

December 2021

__________________________________________________________________

QUESTION PRESENTED

Under 18 U.S.C. § 3582(c)(1)(A)(i), a district court may reduce a term of

imprisonment “after considering the factors set forth in [18 U.S.C. §] 3553(a) to

the extent that they are applicable,” but only “if it finds that . . . extraordinary

and compelling reasons warrant such a reduction.” As initially codified, only the

Bureau of Prisons could move to modify a federal prisoner’s sentence, but it rarely

did so. In response, in December 2018, Congress amended the statute to permit

federal prisoners to file their own motions. This amendment has resulted in

significant litigation, but the lower courts have split multiple ways over the

statute’s meaning. At present, this Court has yet to interpret the statute. The

question presented is:

Whether, under 18 U.S.C. § 3582(c)(1)(A)(i), a district court must first

determine whether “extraordinary and compelling reasons warrant such a

reduction” as a threshold eligibility inquiry, as multiple Circuits have held, or

whether a district court can deny a motion for a reduced sentence without

resolving this issue at all, but instead by finding that the applicable sentencing

factors in 18 U.S.C. § 3553(a) do not warrant a reduced sentence, as the Tenth

Circuit held below.

RELATED PROCEEDINGS

United States v. Hald, Case No. 6:11-cr-10227-EFM-1 (D. Kan. Sept. 16, 2020)

United States v. Hald, Case No. 20-3195 (10th Cir. Aug. 6, 2021)

United States v. Sands, Case No. 2:06-cr-20044-JAR-3 (D. Kan. Oct. 29, 2020)

United States v. Sands, Case No. 20-3228 (10th Cir. Aug. 6, 2021)

United States v. Edwards, Case No. 2:12-cr-20015-DDC-1 (D. Kan. Sept. 29, 2020)

United States v. Edwards, Case No. 20-3209 (10th Cir. Oct. 4, 2021)

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

RELATED PROCEEDINGS.......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

INDEX TO APPENDIX ................................................................................................ iv

TABLE OF AUTHORITIES CITED ............................................................................. v

Cases ......................................................................................................................... v

Statutes ................................................................................................................... vii

Other Authorities .................................................................................................. viii

JOINT PETITION FOR WRIT OF CERTIORARI ....................................................... 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED........................ 2

STATEMENT OF THE CASE ....................................................................................... 2

A. Statutory Background ......................................................................................... 4

B. Proceedings Below ............................................................................................... 8

REASONS FOR GRANTING THE WRIT .................................................................. 14

Review is necessary to resolve a conflict in the Circuits.................................... 14

II. The Tenth Circuit erred. ..................................................................................... 19

III. The resolution of this issue is critically important to the federal criminal

justice system. ...................................................................................................... 30

IV. This petition is an ideal vehicle to resolve the question presented. .................. 34

CONCLUSION............................................................................................................. 36

iii

INDEX TO APPENDIX

Appendix A: Tenth Circuit’s Published Decision in Hald & Sands .......................... 1a

Appendix B: District Court’s Decision in Hald......................................................... 31a

Appendix C: District Court’s Decision in Sands....................................................... 37a

Appendix D: Tenth Circuit’s Unpublished Order in Edwards ................................ 45a

Appendix E: District Court’s Decision in Edwards .................................................. 49a

Appendix F: Order Denying Petition for Rehearing En Banc in Hald & Sands .... 60a

Appendix G: 18 U.S.C. § 3582 ................................................................................... 61a

TABLE OF AUTHORITIES CITED

PAGE

Cases

Bostock v. Clayton County, 140 S.Ct. 1731 (2020) ...................................................... 27

Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994) ................................................. 29

Dawson v. Steager, 139 S.Ct. 698 (2019) .................................................................... 30

Dillon v. United States, 560 U.S. 817 (2010) ...................................................... passim

Florida v. Georgia, 138 S.Ct. 2502 (2018) ................................................................... 29

Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231 (1959) ................................. 31

Guam v. United States, 141 S.Ct. 1608 (2021) ........................................................... 25

Koons v. United States, 138 S.Ct. 1783 (2018) ................................................... passim

Life Techs. Corp. v. Promega Corp., 137 S.Ct. 734 (2017) .......................................... 33

Merit Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S.Ct. 883 (2018) ........................ 29

Nijhawan v. Holder, 557 U.S. 29 (2009) ..................................................................... 26

Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342 (1944) ................... 31

Rodriguez-Aguirre v. Hudgins, 739 Fed. Appx. 489 (10th Cir. 2018) .......................... 5

Rogers Cty. Bd. of Tax Roll Corr. v. Video Gaming Techs., 141 S.Ct. 24 (2020) ....... 31

Salazar-Limon v. Houston, 137 S.Ct. 1277 (2017) ..................................................... 31

Stokeling v. United States, 139 S.Ct. 544 (2019) ........................................................ 33

United States v. Andrews, 12 F.4th 255 (3d Cir. 2021) ........................................ 17, 20

United States v. Brooker, 976 F.3d 228 (2d Cir. 2020) ....................................... 5, 6, 27

United States v. C.D., 848 F.3d 1286 (10th Cir. 2017) ....................................... passim

United States v. Caraballo-Martinez, 866 F.3d 1233 (11th Cir. 2017) ...................... 24

United States v. Christie, 736 F.3d 191 (2d Cir. 2013) ............................................... 23

United States v. Darden, 910 F.3d 1064 (8th Cir. 2018) ............................................ 24

United States v. Giddens, __ Fed. Appx. __, 2021 WL 5267993 (2d Cir. Nov. 12,

2021) .......................................................................................................................... 16

United States v. Haynes, 856 Fed. Appx. 405 (3d Cir. 2021) ..................................... 17

United States v. Hernandez-Martinez, 933 F.3d 1126 (9th Cir. 2019) ...................... 24

United States v. High, 997 F.3d 181 (4th Cir. 2021) ............................................ 17, 20

United States v. Holmes, 858 Fed. Appx. 429 (2d Cir. 2021) ............................... 16, 29

United States v. Hunter, 12 F.4th 555 (6th Cir. 2021) ............................. 18, 27, 28, 34

United States v. Johnson, 732 F.3d 109 (2d Cir. 2013) .............................................. 26

United States v. Jones, 17 F.4th 371 (2d Cir. 2021) ................................................... 16

United States v. Jones, 980 F.3d 1098 (6th Cir. 2020) ............................. 17, 18, 20, 24

United States v. Keller, 2 F.4th 1278 (9th Cir. 2021) ..................................... 16, 17, 29

United States v. Kibble, 992 F.3d 326 (4th Cir. 2021) .......................................... 24, 27

United States v. Long, 997 F.3d 342 (D.C. Cir. 2021) ................................................ 24

United States v. Lopez, 989 F.3d 327 (5th Cir. 2021) ................................................. 24

United States v. Martin, 916 F.3d 389 (4th Cir. 2019) ............................................... 24

United States v. McGee, 992 F.3d 1035 (10th Cir. 2021).......................... 10, 11, 12, 15

United States v. McGuire, 822 Fed. Appx. 479 (6th Cir. 2020) .................................. 18

United States v. Navarro, 986 F.3d 668 (6th Cir. 2021)............................................. 18

United States v. Phelps, 823 F.3d 1084 (7th Cir. 2016) ............................................. 24

United States v. Rodriguez, 855 F.3d 526 (3d Cir. 2017) ........................................... 24

United States v. Ruffin, 978 F.3d 1000 (6th Cir. 2020) .......................................... 5, 17

United States v. Saccoccia, 10 F.4th 1 (1st Cir. 2021)................................ 2, 17, 20, 24

United States v. Taylor, 778 F.3d 667 (7th Cir. 2015)................................................ 26

United States v. Thacker, 4 F.4th 569 (7th Cir. 2021) ....................................... passim

United States v. Thompson, 714 F.3d 946 (6th Cir. 2013) ......................................... 24

United States v. Tinker, 14 F.4th 1234 (11th Cir. 2021) .................................. 2, 15, 22

United States v. Ugbah, 4 F.4th 595 (7th Cir. 2021) .................................. 2, 17, 20, 23

United States v. Vaughn, 806 F.3d 640 (1st Cir. 2015) .............................................. 23

United States v. Wyche, 741 F.3d 1284 (D.C. Cir. 2014) ............................................ 24

Statutes

18 U.S.C. § 3231 ............................................................................................................. 1

18 U.S.C. § 3553(a) .............................................................................................. passim

18 U.S.C. § 3559(c) ............................................................................................. 5, 23, 28

18 U.S.C. § 3582 ............................................................................................................. 2

18 U.S.C. § 3582(a) .................................................................................................. 4, 28

18 U.S.C. § 3582(b) ........................................................................................................ 4

18 U.S.C. § 3582(b)(1) .................................................................................................... 4

18 U.S.C. § 3582(c) ......................................................................................................... 4

18 U.S.C. § 3582(c)(1) .......................................................................................... 4, 7, 24

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

18 U.S.C. § 3582(c)(1)(A)(i) .................................................................................. passim

18 U.S.C. § 3582(c)(1)(A)(ii) ................................................................................. passim

18 U.S.C. § 3582(c)(1)(B) ............................................................................................... 5

vii

18 U.S.C. § 3582(c)(2) .......................................................................................... passim

18 U.S.C. § 3582(d) ........................................................................................................ 4

18 U.S.C. § 3582(e)......................................................................................................... 4

18 U.S.C. § 3621(b) ...................................................................................................... 31

28 U.S.C. § 1254(1) ........................................................................................................ 1

28 U.S.C. § 1291 ............................................................................................................. 1

28 U.S.C. § 994(o)................................................................................................... 25, 26

Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837

(1984)........................................................................................................................... 5

First Step Act, Pub. L. 115-391, 132 Stat. 5194, § 603 (2018) ............................... 6, 30

Other Authorities

Black’s Law Dictionary (11th ed. 2019) ...................................................................... 19

Casey Tolan, Compassionate release became a life-or-death lottery for thousands

of federal inmates during the pandemic, available at:

https://www.cnn.com/2021/09/30/us/covid-prison-inmates-compassionaterelease-invs/index.html ...................................................................................... 32, 33

Department of Justice, Office of the Inspector General, The Federal Bureau of

Prisons’ Compassionate Release Program (Apr. 2013) (hereinafter “The 2013

Report”), available at: https://oig.justice.gov/reports/2013/e1306.pdf .................. 5, 6

https://www.bop.gov/about/statistics/population_statistics.jsp ................................. 30

Oxford English Dictionary (2d ed. 1989) ................................................................ 2, 19

U.S. Const. amend. I .................................................................................................... 25

U.S. Const. amend. VI ................................................................................................. 25

USSC Compassionate Release Data Report (Sept. 2021), available at:

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federalsentencing-statistics/compassionate-release/20210928-CompassionateRelease.pdf ................................................................................................................ 30

viii

USSG § 1B1.10......................................................................................................... 7, 23

Webster’s Third New International Dictionary (2002) .......................................... 2, 19

JOINT PETITION FOR WRIT OF CERTIORARI

James Hald, Walter Sands, and Connie Edwards respectfully petition for a writ of

certiorari to review the judgments of the United States Court of Appeals for the Tenth

Circuit.

OPINIONS BELOW

The Tenth Circuit’s published opinion in Mr. Hald’s and Mr. Sands’ appeals is

available at 8 F.4th 932, and is included as Appendix A. The Tenth Circuit’s

unpublished order denying rehearing en banc is included as Appendix F. The district

court’s unpublished order denying Mr. Hald’s motion for a reduced sentence is

available at 2020 WL 5548826, and is included as Appendix B. The district court’s

unpublished order denying Mr. Sands’ motion for a reduced sentence is available at

2020 WL 6343303, and is included as Appendix C.

The Tenth Circuit’s unpublished order in Ms. Edwards’ appeal is available at 2021

WL 4520048, and is included as Appendix D. The district court’s unpublished order

denying Ms. Edwards’ motion for a reduced sentence is available at 2020 WL

5802080, and is included as Appendix E.

JURISDICTION

The district courts had jurisdiction under 18 U.S.C. § 3231. The Tenth Circuit had

jurisdiction under 28 U.S.C. § 1291. The Tenth Circuit affirmed the denial of Mr.

Hald’s and Mr. Sands’ motions on August 6, 2021, and denied their joint petition for

rehearing en banc on September 20, 2021. The Tenth Circuit affirmed the denial of

Ms. Edwards’ motion on October 4, 2021. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED

18 U.S.C. § 3582 (full text included as Appendix F)

STATEMENT OF THE CASE

The lower courts are split over § 3582(c)(1)(A)(i)’s statutory design. Some courts of

appeals have held that, under the statute’s sequential-step test, district courts must

first determine, as a threshold eligibility inquiry, whether “extraordinary and

compelling reasons warrant [] a reduction.” See, e.g., United States v. Ugbah, 4 F.4th

595, 597 (7th Cir. 2021); United States v. Saccoccia, 10 F.4th 1 (1st Cir. 2021). Other

courts of appeals (including the Tenth Circuit below) disagree and have held that the

statute does not include a sequential-step test, and, thus, that district courts may

deny motions for reduced sentences solely under the § 3553(a) factors. Pet. App. 3a;

United States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021). Review is necessary to

resolve this conflict over the statute’s plain meaning.

On the merits, the Tenth Circuit’s decision is at direct odds with the statute’s text.

By its plain terms, the “extraordinary and compelling reasons” inquiry is a threshold

eligibility inquiry. 18 U.S.C. § 3582(c)(1)(A) (authorizing a reduction only “if”

extraordinary and compelling reasons exist); Webster’s Third New International

Dictionary 1124 (2002) (“if” means “in the event that,” “so long as,” or “on condition

that”); Oxford English Dictionary (2d ed. 1989) (defining “if” as “[i]ntroducing a clause

of condition or supposition”; “[o]n condition that”) (accessed online). If such reasons

for a reduced sentence exist, the question then becomes “what sentencing reduction

to award the prisoner.” United States v. Thacker, 4 F.4th 569, 576 (7th Cir. 2021).

The § 3553(a) factors are not a threshold inquiry to relief, but are simply factors

courts must consider “after” finding that “extraordinary and compelling reasons

warrant [] a reduction.” 18 U.S.C. § 3582(c)(1)(A). Thus, it naturally follows that the

extraordinary-and-compelling-reasons inquiry must precede any consideration of the

§ 3553(a) factors. This Court’s decision in Koons v. United States confirms the point.

138 S.Ct. 1783 (2018) (interpreting a similar neighboring provision to include a

threshold-eligibility determination). As does this Court’s decision in Dillon v. United

States. 560 U.S. 817 (2010) (interpreting the same neighboring provision to include a

sequential-step test).

Resolution of this Circuit split is critically important for at least four reasons.

First, Congress just amended § 3582(c)(1)(A)(i) to permit defendant-filed motions.

The statute is literally available to every federal prisoner (and there are over 150,000

such prisoners), and thousands of federal prisoners have already sought relief under

this newly available remedial statute. It is thus critical that this Court provide a

definitive interpretation of this widely available and widely used statute at the

outset. Second, and relatedly, this frequently-used statute should not have different

meanings in different jurisdictions (as it currently does). Third, because the Tenth

Circuit’s atextual approach does not provide clear guidance to district courts, it

creates even more disparities, both across and within the various judicial districts.

And fourth, the Tenth Circuit’s interpretation encourages district courts to deny

motions without ever addressing § 3582(c)(1)(A)(i)’s key threshold inquiry: whether

“extraordinary and compelling reasons warrant [] a reduction.” Congress expected

district courts to answer that question, not avoid it by reciting the § 3553(a) factors

used to impose the sentence in the first instance.

This joint petition is an excellent vehicle to resolve the conflict over this extremely

important question. This Court should grant this petition.

A. Statutory Background

Section 3582 – entitled “Imposition of a sentence of imprisonment” – includes

multiple subsections. 18 U.S.C. § 3582(a)-(e).1 The first subsection provides that a

sentencing court, when imposing a term of imprisonment, “shall consider the factors

set forth in section 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(a).

This provision is consistent with § 3553 itself, which also instructs that sentencing

courts “shall consider” the § 3553(a) factors “in imposing a sentence.” 18 U.S.C.

§ 3553(a). The second subsection makes clear that “a judgment of conviction that

includes [a sentence to imprisonment] constitutes a final judgment,” despite the fact

that a sentencing court could later modify the term of imprisonment under certain

circumstances. 18 U.S.C. § 3582(b).

One of these enumerated circumstances is found within § 3582’s third subsection.

18 U.S.C. § 3582(b)(1). Section 3582(c) generally provides that a “court may not

modify a term of imprisonment once is has been imposed,” but then includes two

overarching exceptions to this general rule. The first overarching exception, found

within 18 U.S.C. § 3582(c)(1), authorizes reduced sentences in three circumstances.

Section 3582(c)(1)(A)(i) permits a district court to reduce a sentence “if it finds that .

. . extraordinary and compelling reasons warrant such a reduction” (the provision

The last two subsections are not relevant here (they deal with relief for federal prisoners with

terminal illnesses, 18 U.S.C. § 3582(d), and associational restrictions for those convicted of drug or

racketeering offenses, 18 U.S.C. § 3582(e)). We do not discuss them further.

directly at issue here). Section 3582(c)(1)(A)(ii) permits reductions for qualifying

elderly defendants who were sentenced under 18 U.S.C. § 3559(c). And § 3582(c)(1)(B)

permits a district court to modify a term of imprisonment if “expressly permitted by

statute or by Rule 35 of the Federal Rules of Criminal Procedure.” The second

overarching exception, found within 18 U.S.C. § 3582(c)(2), generally permits a

district court to reduce a term of imprisonment based on a retroactive change to the

defendant’s guidelines range.

To drill down on § 3582(c)(1)(A), Congress enacted the provision as part of the

Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1837, 19981999 (1984). In its original form, any motion for a reduced sentence “had to be made

by the BOP Director.” United States v. Brooker, 976 F.3d 228, 231 (2d Cir. 2020). The

BOP had “exclusive power over all avenues of” relief. Id. An inmate could not file his

own motion, nor could he seek judicial review of the BOP’s refusal to file a motion on

the inmate’s behalf. See United States v. Ruffin, 978 F.3d 1000, 1003 (6th Cir. 2020);

Rodriguez-Aguirre v. Hudgins, 739 Fed. Appx. 489, 491 (10th Cir. 2018)

(unpublished).

Over the years, the “BOP used [its release] power sparingly, to say the least.”

Brooker, 976 F.3d at 231. In 2013, the Office of the Inspector General issued a report

highly critical of the BOP’s implementation of its statutory authority.2 The Inspector

General concluded that “[t]he BOP does not properly manage the compassionate

Department of Justice, Office of the Inspector General, The Federal Bureau of Prisons’

Compassionate Release Program 11 (Apr. 2013) (hereinafter “The 2013 Report”), available at:

https://oig.justice.gov/reports/2013/e1306.pdf.

release program, resulting in inmates who may be eligible candidates for release not

being considered.” The 2013 Report at 11. The Inspector General found that the BOP

failed to provide adequate guidance to staff regarding medical and non-medical

criteria for relief, lacked timeliness standards for reviewing requests, did not

adequately inform prisoners about the program, and had no system to track requests

or ensure that decisions were consistent with BOP policy or with § 3582(c)(1)(A). Id.

In response, in 2018, Congress amended § 3582(c)(1)(A) to, inter alia, permit

defendants to file their own motions. First Step Act, Pub. L. 115-391, 132 Stat. 5194,

§ 603 (2018) (entitled “Increasing the Use and Transparency of Compassionate

Release”). “Congress clearly did not view this – a break with over 30 years of

procedure – as a minor or inconsequential change. Congresspersons called it

‘expand[ing],’ ‘expedit[ing],’ and ‘improving’ compassionate release.” Brooker, 976

F.3d at 235. In its current form, § 3582(c)(1)(A) provides that, “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;

(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)(i) (emphasis added).

Congress used similar sequential language within § 3582(c)(2). In that provision,

Congress authorized a reduced sentence if certain prerequisites were met:

in the case of a defendant who has been sentenced to a term of imprisonment

based on a sentencing range that has subsequently been lowered by

the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion

of the defendant or the Director of the Bureau of Prisons, or on its own

motion, the court may reduce the term of imprisonment, after

considering the factors set forth in section 3553(a) to the extent that

they are applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2) (emphasis added).

This Court has not yet interpreted § 3582(c)(1). But in Dillon, this Court held that

§ 3582(c)(2) “establishes a two-step inquiry. A court must first determine that a

reduction is consistent with § 1B1.10 before it may consider whether the

authorized reduction is warranted, either in whole or in part, according to the factors

set forth in § 3553(a).” 560 U.S. at 826 (emphasis added). Then, in Koons, this Court

further made clear that § 3582(c)(2) includes a threshold eligibility inquiry – whether

the defendant’s guidelines range was based on a subsequently-lowered retroactive

guideline – that must be addressed before anything else. 138 S.Ct. at 1790.

Whether a similar threshold-eligibility sequential-step inquiry applies to

§ 3582(c)(1)(A) is at the heart of this joint petition.

B. Proceedings Below

1. In 2012, James Hald pleaded guilty to a drug conspiracy and was sentenced to

a 210-month term of imprisonment. Pet. App. 7a, 32a. In July 2020, Mr. Hald moved

for a reduced sentence under § 3582(c)(1)(A)(i). Id. Mr. Hald argued that his

preexisting health conditions (obesity, hypertension, and Hepatitis C), in conjunction

with the COVID-19 pandemic and his incarceration, qualified as extraordinary and

compelling reasons for a reduced sentence. Pet. App. 7a, 35a.

The district court denied the motion. Pet. App. 8a, 32a-37a. The district court

noted that Mr. Hald’s health conditions “may present an extraordinary and

compelling reason,” Pet. App. 35a, but did not definitively resolve the issue, Pet. App.

14a, 24a. Rather, the district court “move[d] on to consider the § 3553(a) factors,” Pet.

App. 35a, and determined that, in light of those factors (specifically, Mr. Hald’s

offense conduct and criminal history), Mr. Hald failed to “demonstrate an

extraordinary and compelling reason warranting [a] sentence reduction.” App. 8a,

35a-37a.

2. In 2007, a jury found Walter Sands guilty of drug-and-gun-related offenses, and

the district court imposed a 420-month term of imprisonment. Pet. App. 11a, 38a. The

district court later reduced the sentence under § 3582(c)(2) to 384 months’

imprisonment. Pet. App. 12a, 39a. In July 2020, Mr. Sands moved for a reduced

sentence under § 3582(c)(1)(A)(i). Pet. App. 12a, 39a. Mr. Sands, like Mr. Hald, argued

that his preexisting health conditions (obesity, diabetes, asthma, hypertension, and

sleep apnea) in conjunction with the COVID-19 pandemic and his incarceration,

established extraordinary and compelling reasons for a reduced sentence. Pet. App.

12a, 39a, 42a.

The district court denied the motion. Pet. App. 12a. The district court noted the

government’s concession that Mr. Sands established extraordinary and compelling

reasons, Pet. App. 42a-43a, but did not definitively resolve the issue, Pet. App. 14a,

24a. Rather, the district court (like it did in Mr. Hald’s case) “move[d] on to consider

the § 3553(a) factors,” Pet. App. 43a, and determined that, in light of those factors

(specifically, Mr. Sands’ offense conduct and criminal history, as well as the need to

deter and punish), Mr. Sands failed to “demonstrate an extraordinary and compelling

reason warranting [a] sentence reduction.” Pet. App. 45a.

3. In 2012, Connie Edwards pleaded guilty to a drug conspiracy, and the district

court imposed a 300-month term of imprisonment. Pet. App. 50a-51a. In 2020, Ms.

Edwards moved for a reduced sentence under § 3582(c)(1)(A)(i). Pet. App. 50a. Ms.

Edwards (like Mr. Hald and Mr. Sands) argued that her preexisting health conditions

(cancer, chronic kidney disease, chronic obstructive pulmonary disease, obesity, Type

2 diabetes, hypertension, and her age (68 years old)) in conjunction with the COVID19 pandemic and her incarceration, established extraordinary and compelling

reasons for a reduced sentence. Pet. App. 47a, 51a.

The district court denied the motion. Pet. App. 56a-59a. Although the district

court determined that “Ms. Edwards has not established that ‘extraordinary and

compelling reasons’ warrant compassionate release,” Pet. App. 56a, it did so “by

skipping ahead” to the § 3553(a) factors, Pet. App. 48-49a. Pet. App. 56a-59a (relying

on Mr. Edwards’ offense conduct and history and characteristics, the need to punish

and deter, and the advisory guidelines range (of life)). The district court ultimately

concluded that, although Ms. Edwards’ “significant health problems” “favor[ed] her

request,” “the pertinent sentencing factors in 18 U.S.C. § 3553(a) do not favor the

reduction Ms. Edwards’s motion seeks.” Pet. App. 59a.

4a. All three petitioners appealed. They each explained that § 3582(c)(1)(A)(i)’s

plain text requires a three-step sequential test, with step one – whether

extraordinary and compelling reasons warrant a sentence reduction – as a threshold

eligibility inquiry. Pet. App. 13a-14a, 17a-18a, 48a. Petitioners explained that this

reading of the statute was obvious in light of this Court’s decision in Dillon, as Dillon

held that a neighboring subsection with similar language – 18 U.S.C. § 3582(c)(2) –

required an analogous sequential-step test. Pet. App. 17a-18a, 20a. This reading was

also obvious in light of United States v. C.D., 848 F.3d 1286, 1289-1290 (10th Cir.

2017), as C.D. further held that § 3582(c)(2) required a threshold-eligibility

determination that had to be answered before considering any applicable policy

statement or the § 3553(a) factors. See Pet. App. 16a. n.7. Because the district courts

skipped over § 3582(c)(1)(A)’s threshold eligibility inquiry, and denied relief solely

under the § 3553(a) factors, the petitioners asked the Tenth Circuit to vacate the

district courts’ orders and remand for a proper analysis. See Pet. App. 13a-14a, 48a.

b. While the appeals were pending, the Tenth Circuit published its decision in

United States v. McGee, 992 F.3d 1035 (10th Cir. 2021). Consistent with petitioners’

plain-text interpretation of § 3582(c)(1)(A), McGee interpreted the statute to require

a “three-step test.” Id. at 1043. “At step one . . . a district court must find whether

extraordinary and compelling reasons warrant a sentence reduction.” Id. at 1042

(alterations omitted). “At step two . . . a district court must find whether such

reduction is consistent with applicable policy statements issued by the Sentencing

Commission.” Id. (alterations omitted). “At step three . . . § 3582(c)(1)(A) instructs a

court to consider any applicable § 3553(a) factors and determine whether, in its

discretion, the reduction authorized by steps one and two is warranted in whole or in

part under the particular circumstances of the case.’” Id. (alterations omitted). McGee

made clear that the first two steps “authorize[]” a district court to reduce a sentence.

Id. In contrast, at the third step, a district court considers the § 3553(a) factors only

if the reduction is “authorized by steps one and two,” and only to determine whether

(and to what extent) to reduce the sentence. Id.

But immediately after setting forth this three-step test, McGee noted in dicta “that

district courts may deny compassionate-release motions when any of the three

prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the

others.” Id. at 1043 (emphasis added); Pet. App. 15a (noting that this sentence was

dicta). Ultimately, McGee was not about the statute’s sequence, however, but instead

about whether district courts can consider intervening statutory changes when

determining whether a defendant had established extraordinary and compelling

reasons to warrant a reduced sentence under step one (the Tenth Circuit held that it

could). 992 F.3d at 1047. McGee also held that the second step was inapplicable to

defendant-filed motions because the Sentencing Commission has not yet amended

the “applicable policy statement” since § 3582(c)(1)(A)’s amendment in 2018. Id. at

1050. Because the district court in that case “misunderstood the extent of its

authority at both steps one and two of § 3582(c)(1)(A)’s statutory test,” the Tenth

Circuit vacated the denial of the defendant’s motion and remanded “so that it may

consider McGee’s motion anew.” Id. at 1051.

c. Following McGee, the Tenth Circuit affirmed the denial of Mr. Hald’s and Mr.

Sands’ motions in a published opinion. Pet. App. 31a.3 In doing so, the Tenth Circuit

did not rely on § 3582(c)(1)(A)’s plain text. The Tenth Circuit barely mentioned the

text (and did not address petitioners’ textual arguments surrounding Congress’s use

of the words “if” and “after” within § 3582(c)(1)(A)). See Pet. App. 15a-24a. Instead,

although admitting that the statement in McGee was dicta, the Tenth Circuit, quoting

that statement, held “that district courts may deny compassionate-release motions

when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need

to address the others.” Pet. App. 14a-15a.

The Tenth Circuit provided two reasons to adopt this dicta as binding precedent.

Pet. App. 15a-24a. First, the Tenth Circuit cited the structure of § 3582(c)(1)(A),

noting that the statute “mentions step three [the § 3553(a) factors] first,” and so “the

natural meaning could well be that the court is to first determine whether relief

would be authorized by that step and then consider whether the other two steps are

satisfied.” Pet. App. 15a. But “most importantly,” the Tenth Circuit declared, “there

[was] no reason to mandate any particular order for the three steps.” Pet. App. 16a.

“If the most convenient way for the district court to dispose of a motion for

3 The Tenth Circuit affirmed the denial of a third prisoner’s motion as well (Monterial Wesley). Pet.

App. 1a. Because we did not represent Mr. Wesley on appeal, we have not petitioned for a writ of

certiorari on his behalf. Moreover, Mr. Wesley did not raise the question presented in this joint

petition.

compassionate release is to reject it for failure to satisfy one of the steps, we see no

benefit in requiring it to make the useless gesture of determining whether one of the

other steps is satisfied.” Pet. App. 16a-17a.

The Tenth Circuit was unpersuaded that this Court’s decision in Dillon supported

a contrary interpretation. Pet. App. 17a-24a. The Tenth Circuit implied that this

Court’s sequential-step language in Dillon was dicta. Pet. App. 20a. Citing decisions

interpreting constitutional provisions, not statutes, it surmised that it was “not at all

unusual for an appellate court, including the Supreme Court, to conceptualize a

decision as proceeding in a certain order (step 1, step 2, etc.), yet permit the ultimate

decisionmaker—ordinarily the trial court—to proceed in a different order if more

convenient and efficient.” Pet. App. 20a-23a. And it saw “no justification for requiring

a specific order of analysis” under § 3582(c)(1)(A) even if Dillon required such an

analysis under § 3582(c)(2). Pet. App. 23a. The Tenth Circuit further distinguished

C.D. because C.D. held that § 3582(c)(2)’s threshold-eligibility requirement was

jurisdictional, but here, the extraordinary-and-compelling-reasons inquiry is not

jurisdictional. Pet. App. 16 n.7. In doing so, however, the Tenth Circuit conceded that

C.D.’s jurisdictional holding was likely incorrect under this Court’s recent

jurisdictional precedent. Pet. App. 16 n.7.

5. Mr. Hald and Mr. Sands petitioned for rehearing en banc because the Tenth

Circuit’s decision conflicted with decisions from other courts of appeals. The Tenth

Circuit ordered the government to respond, but it then denied the petition in a onepage unpublished order. Pet. App. 61a.

6. After the petition for rehearing en banc was denied, a different Tenth Circuit

panel affirmed the denial of Ms. Edwards’ motion. Pet. App. 46a-49a. The panel held

that “[u]nder Hald, the [district] court did not err by skipping ahead to [the § 3553(a)]

factors.” Pet. App. 48a-49a.

This timely joint petition follows.

REASONS FOR GRANTING THE WRIT

This Court should grant this petition to resolve a conflict in the Circuits over

whether Congress has provided for a sequential threshold-eligibility determination

under § 3582(c)(1)(A). Review is especially important because the Tenth Circuit’s

decision – holding that Congress has not provided for such a test – is contradicted by

the text and structure of the statute, as well as this Court’s decisions in Koons and

Dillon. Moreover, review is essential because of the question’s importance. Aside from

the need to resolve an entrenched conflict, the question involves the interpretation of

a new remedial statute that is widely available to all federal prisoners. It is

imperative that the statute be interpreted uniformly and in a manner that provides

meaningful guidance to the lower courts. The Tenth Circuit’s test does neither of

these things. The Tenth Circuit’s test also undermines the entire point of §

3582(c)(1)(A)(i) – to determine whether a federal prisoner has established

extraordinary and compelling reasons that warrant a reduction – because it does not

require district courts to answer that threshold eligibility question. This petition is

an excellent vehicle to resolve the Circuit split. This Court should grant this petition.

I. Review is necessary to resolve a conflict in the Circuits.

There is an established conflict over whether § 3582(c)(1)(A)(i)’s plain text requires

a sequential threshold-eligibility determination to resolve motions for reduced

sentences.

1a. Two courts of appeals – the Tenth Circuit and the Eleventh Circuit – have

held that § 3582(c)(1)(A)(i) does not establish a sequential test at all. Pet App. 15a

(the statute “does not mandate a particular ordering of the three steps”)4; United

States v. Tinker, 14 F.4th 1234, 1237 (11th Cir. 2021) (“nothing on the face of 18

U.S.C. § 3582(c)(1)(A) requires a court to conduct the compassionate-release analysis

in any particular order.”). In those Circuits, district courts “may deny compassionaterelease motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking

and do not need to address the others.” Pet. App. 14a (emphasis in original); Tinker,

14 F.4th at 1240 (noting “a district court’s ability . . . to assess one necessary condition

while skipping over another”). Because these Courts have held that § 3582(c)(1)(A)(i)

does not mandate a particular sequence, they’ve held that the existence of

extraordinary and compelling reasons is not a threshold eligibility determination

under the statute. Pet. App. 14a, 17a; Tinker, 14 F.4th at 1240. Rather, a district

court is free to “skip[]” the “extraordinary and compelling reasons” inquiry entirely.

Pet. App. 14a, 48a; Tinker, 14 F.4th at 1238.

b. Two courts of appeals – the Second Circuit and the Ninth Circuit – agree

with the Tenth and Eleventh Circuits that § 3582(c)(1)(A)(i) does not require district

courts to apply a sequential threshold-eligibility test when denying motions. United

4 The decision below modifies the Tenth Circuit’s earlier decision in McGee, which appeared to adopt

a sequential-step test when a district court grants (but not denies) a motion. See 992 F.3d at 1043. The

decision below makes clear that a sequential-step test is never necessary. Pet. App. 15a.

States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (rejecting the defendant’s

argument that “motions brought under § 3582(c)(1)(A)(i) require courts to perform a

sequential step-by-step analysis”); United States v. Holmes, 858 Fed. Appx. 429, 430

(2d Cir. 2021) (same); see also United States v. Giddens, __ Fed. Appx. __, 2021 WL

5267993, at *2 (2d Cir. Nov. 12, 2021) (“nothing in section 3582(c) required the district

court to draw an express and definitive conclusion on [whether extraordinary and

compelling reasons existed] before considering whether the section 3553(a) factors

nevertheless rendered a sentence reduction unwarranted”).

But the Ninth Circuit has held that a threshold-eligibility sequential-step test is

required before a district court grants a motion. Keller, 2 F.4th at 1284 (“although a

district court must perform this sequential inquiry before it grants compassionate

release, a district court that properly denies compassionate release need not evaluate

each step”). The Second Circuit appears to agree with the Ninth Circuit on this point.

See, e.g., United States v. Jones, 17 F.4th 371 (2d Cir. 2021) (“extraordinary and

compelling reasons are necessary—but not sufficient—for a defendant to obtain

relief”). Neither court, however, has explained how the statute’s text supports

different tests based on whether a district court intends to grant or deny relief.

2. In conflict with the Tenth and Eleventh Circuits (and in partial conflict with

the Second and Ninth Circuits), five courts of appeals – the First Circuit, Third

Circuit, Fourth Circuit, Sixth Circuit, and Seventh Circuit – have all held that

§ 3582(c)(1)(A)(i)’s plain text requires district courts to employ a threshold-eligibility

sequential-step test when resolving motions. United States v. Saccoccia, 10 F.4th 1,

4 (1st Cir. 2021) (“First, the courts must find [] that the defendant has presented an

‘extraordinary and compelling reason’ warranting a sentence reduction . . . . Then,

the court must consider any applicable § 3553(a) factors”) (citing Dillon); United

States v. Jones, 980 F.3d 1098, 1106-1108 (6th Cir. 2020) (same) (citing Dillon);

United States v. Andrews, 12 F.4th 255, 258, 262 (3d Cir. 2021) (same); United States

v. Haynes, 856 Fed. Appx. 405, 407 (3d Cir. 2021) (same); United States v. High, 997

F.3d 181, 186 (4th Cir. 2021) (same); United States v. Thacker, 4 F.4th 569, 576 (7th

Cir. 2021) (same).

As the Third Circuit has explained: “[t]he conditional statement is clear: The

court first determines whether a defendant is eligible for relief by considering

whether ‘extraordinary and compelling reasons warrant’ relief. If the court finds such

reasons, it then considers the § 3553(a) factors to determine whether to grant the

relief.” Haynes, 856 Fed. Appx. at 407. “[I]it is best to proceed in that order, which

reflects the statutory structure.” United States v. Ugbah, 4 F.4th 595, 597 (7th Cir.

2021).

The Ninth and Tenth Circuits have both indicated that the Sixth Circuit agrees

with its test. Pet. App. 14a; Keller, 2 F.4th at 1284. But that’s untrue. In the Sixth

Circuit, in order to “skip” the threshold-eligibility inquiry, a district court must, at a

minimum, assume the existence of extraordinary and compelling reasons. Jones, 980

F.3d at 1108 (the district court “assumed for the sake of argument that extraordinary

and compelling reasons existed . . . and then proceeded to weigh several § 3553(a)

factors”); Ruffin, 978 F.3d at 1006 (denying the motion because the defendant “did

not identify extraordinary and compelling reasons”); United States v. Navarro, 986

F.3d 668, 670 (6th Cir. 2021) (affirming in a form order under the § 3553(a) factors);

United States v. McGuire, 822 Fed. Appx. 479, 480 (6th Cir. 2020) (unpublished) (the

use of a form order, like the one in Navarro, “assume[s] that the district court

determined that [defendant] had demonstrated extraordinary and compelling

reasons making him eligible for compassionate release”).

Unlike in the Second, Ninth, Tenth, and Eleventh Circuits, a district court in the

Sixth Circuit cannot simply deny a motion under the § 3553(a) factors. “The exception

in § 3582(c)(1)(A)(i) is not an open-ended invitation to simply relitigate and reweigh

the § 3553(a) factors based on facts that existed at sentencing. ‘Congress did not write

the statute that way.’” United States v. Hunter, 12 F.4th 555, 569 (6th Cir. 2021).

Rather, “the statute contains three distinct requirements,” id., and those

requirements must be addressed in “sequence,” “i.e., a district court must make the

two requisite ‘find[ings] before weighing the applicable § 3553(a) factors,” Jones, 980

F.3d at 1107.

This Circuit split is in need of resolution.5 Section 3582(c)(1)(A)(i) should not have

different meanings in different jurisdictions. As with any statute, it should have one

uniform meaning throughout the United States. At present, it does not. And there is

no plausible reason to think that the courts of appeals will resolve this conflict on

their own. The conflict is significant. It would take multiple Circuits to switch sides

to eliminate it. We already know that the Tenth Circuit has no intent of switching

sides. Pet. App. 61a. There is no reason to think that any of the other Circuits would

5 Even if we’re wrong about what side of the split the Sixth Circuit falls, there is still an identical

entrenched conflict that is in need of resolution. Moreover, as far as we can tell, the Fifth, Eighth, and

DC Circuits have not yet definitively ruled on this issue. But when they do, their decisions will just

deepen what is already an entrenched conflict.

either (let alone 4 or 5 other Circuits). The conflict will persist until this Court

resolves it. Review is necessary.

II. The Tenth Circuit erred.

Review is also necessary because the Tenth Circuit’s decision has no support in

the statute’s text. The statute’s text plainly includes a threshold-eligibility

sequential-step test.6 This is obvious from Congress’s use of the phrase “if [the district

court] finds that” to introduce two prerequisites to relief: that “extraordinary and

compelling reasons warrant [] 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)(i). By using the word “if,” Congress plainly introduced conditions

precedent to relief. See Black’s Law Dictionary (11th ed. 2019) (defining “condition

precedent” as “[a]n act or event, other than a lapse of time, that must exist or occur

before a duty to perform something promised arises,” and including numerous

examples using “if” to signal a condition precedent). This follows naturally from the

plain meaning of the word “if.” Webster’s Third New International Dictionary 1124

(2002) (“if” means “in the event that,” “so long as,” or “on condition that”); Oxford

English Dictionary (2d ed. 1989) (defining “if” as “[i]ntroducing a clause of condition

or supposition”; “[o]n condition that”) (accessed online).

Thus, under the statute’s text, a district court must first determine “if”

“extraordinary and compelling reasons warrant such a reduction,” and then “if” any

“such reduction is consistent with applicable policy statements issued by the

Section 3582(c)(1)(A) also includes a preliminary exhaustion requirement, but this petition has

nothing to do with that requirement, so we do not discuss it.

Sentencing Commission” (if such an applicable policy statement exists), before it

moves on to consider anything else. See, e.g., Thacker, 4 F.4th at 576; Andrews, 12

F.4th at 258; Saccoccia, 10 F.4th at 4; Jones, 980 F.3d at 1106-1108. If either of these

conditions precedent are not met, the motion must be denied. See, e.g., Ugbah, 4 F.4th

at 598. If these conditions precedent are met, however, “a defendant becomes eligible

for relief,” High, 997 F.3d at 186 (emphasis in original), and the district court “may

reduce the term of imprisonment,” 18 U.S.C. § 3582(c)(1)(A).

Only at this point, “after” a defendant has met the conditions precedent to relief,

does a district court conduct the third step: “considering the factors set forth in section

3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(1)(A). This also

follows from the statute’s text, which places this phrase – “after considering the

factors set forth in section 3553(a) to the extent that they are applicable” –

immediately before the conditional language (“if it finds that”), but immediately after

the phrase “may reduce the term of imprisonment.” As the majority of courts of

appeals have held, the statute’s text makes plain that the § 3553(a) factors are not a

condition precedent to relief, but rather factors district courts must consider “after”

finding that a defendant is eligible for a reduced sentence. Thacker, 4 F.4th at 576;

Andrews, 12 F.4th at 258; Saccoccia, 10 F.4th at 4; Jones, 980 F.3d at 1106-1108;

High, 997 F.3d at 186. The Seventh Circuit has summed it up best:

“Upon a finding that the prisoner has supplied [an extraordinary and

compelling reason], . . . the analysis requires the district court, in exercising

the discretion conferred by the compassionate release statute, to consider any

applicable sentencing factors in § 3553(a) as part of determining what

sentencing reduction to award the prisoner.”

Thacker, 4 F.4th at 576.

The Tenth Circuit did not address any of these textual points below. See Pet. App.

14a-24a. Rather, the Tenth Circuit surmised that, because § 3582(c)(1)(A) “mentions

step three first, the natural meaning could well be that the court is to first determine

whether relief would be authorized by that step and then consider whether the other

two steps are satisfied.” Pet. App. 15a. That is not an argument the government made

below (the government made no textual arguments at all below), and so that

suggestion was not briefed by the parties. The suggestion is untenable for three

reasons.

First, the suggestion ignores the conditional language used by Congress, as just

explained. It is irrelevant where Congress puts conditional language within a statute;

the language is still conditional. Second, this suggestion ignores the fact that

Congress included two avenues to relief within § 3582(c)(1)(A) – subsection (i) and

subsection (ii). Because Congress included two avenues to relief, the most natural

place to put a § 3553(a)-consideration requirement was within § 3582(c)(1)(A) so that

this requirement would apply to both subsections. 18 U.S.C. § 3582(c)(1)(A)(i)-(ii).

And third, as explained below, this suggestion is incompatible with this Court’s

decisions in Dillon and Koons, which interpret analogous conditional language within

§ 3582(c)(2) to require a threshold-eligibility sequential-step test.

The Eleventh Circuit’s attempt to defend its test is equally unpersuasive. The

Eleventh Circuit provided this sentence as an “analogy” to support its position: “Rose

can give Joe a cookie, after Joe walks the dog, if he does the dishes, and takes out the

trash.” Tinker, 14 F.4th at 1237. According to the Eleventh Circuit, this sentence has

“the same syntax as § 3582(c)(1)(A),” and “[i]t’s clear to the average speaker of

American English that, before Rose can give Joe a cookie, Joe must walk the dog, do

the dishes, and take out the trash. But the order in which Joe completes those tasks

is immaterial.” Id.

The problem with this analogy is that the Eleventh Circuit’s sentence does not

have “the same syntax” as § 3582(c)(1)(A). Section 3582(c)(1)(A) requires district

courts to “consider[]” the § 3553(a) factors when determining the extent, if any, of a

reduction under § 3582(c)(1)(A)(i) or (ii). That is not the same thing as requiring Joe

to “walk[] the dog.” 14 F.4th at 1237. The phrase “after Joe walks the dog” is not

similar to the phrase “after considering the [§ 3553(a)] factors to the extent that they

are applicable.” If the Eleventh Circuit’s phrase were – “after considering whether

Joe walked the dog” – then it would have “the same syntax,” and it would disprove

the Eleventh Circuit’s approach. Then, as long as Joe “does the dishes, and takes out

the trash,” 14 F.4th at 1237, he’s eligible for a cookie. It’s just that, after Joe has done

those things, Rose has the discretion to give him the cookie after considering whether

Joe also walked the dog. Maybe Rose still gives him the cookie even if he did not walk

the dog; maybe she only gives him half of a cookie even if he walked the dog; maybe

she doesn’t give him a cookie at all even though he walked the dog because he walked

the dog in a giant mud puddle and made a huge mess. That decision is discretionary.

Joe’s cookie-quest doesn’t support a no-sequential-step test under § 3582(c)(1)(A).

For two additional reasons, the statute’s structure further undermines the Tenth

(and Eleventh) Circuit’s position. First, the Tenth Circuit’s position is even more

untenable with respect to subsection (c)(1)(A)(ii). That provision only applies to

prisoners who are “at least 70 years of age” and have “served at least 30 years in

prison” under a sentence “imposed under section 3559(c).” § 3582(c)(1)(A)(ii). Yet,

under the Tenth Circuit’s approach, a district court could deny relief under the

§3553(a) factors to, for instance, a 50-year-old defendant not sentenced under

§ 3559(c) who has served two years in prison. That cannot possibly be what Congress

intended. That defendant is ineligible for a reduced sentence under § 3582(c)(1)(A)(ii).

The district court should not “consider the § 3553(a) factors at all.” See Ugbah, 4 F.4th

at 598.

Second, Congress structured § 3582(c)(2) similarly, including a thresholdeligibility requirement (a retroactively reduced guidelines range), and using

analogous conditional language (“if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission”), preceded by the phrase

“after considering the factors set forth in section 3553(a) to the extent that they are

applicable.” 18 U.S.C. § 3582(c)(2). In Dillon, this Court held that § 3582(c)(2)

“establishes a two-step inquiry. A court must first determine that a reduction is

consistent with § 1B1.10 before it may consider whether the authorized reduction

is warranted, either in whole or in part, according to the factors set forth in § 3553(a).”

560 U.S. at 826 (emphasis added).

Following Dillon, every court of appeals (including the Tenth Circuit) has held

that § 3582(c)(2) requires the sequential-step test this Court announced in Dillon.

See, e.g., United States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015); United States v.

Christie, 736 F.3d 191, 194 (2d Cir. 2013); United States v. Rodriguez, 855 F.3d 526,

529 (3d Cir. 2017); United States v. Martin, 916 F.3d 389, 395 (4th Cir. 2019); United

States v. Lopez, 989 F.3d 327, 332 (5th Cir. 2021); United States v. Thompson, 714

F.3d 946, 948 (6th Cir. 2013); United States v. Phelps, 823 F.3d 1084, 1087 (7th Cir.

2016); United States v. Darden, 910 F.3d 1064, 1066 (8th Cir. 2018); United States v.

Hernandez-Martinez, 933 F.3d 1126, 1130 (9th Cir. 2019); C.D., 848 F.3d at 12891290; United States v. Caraballo-Martinez, 866 F.3d 1233, 1247 (11th Cir. 2017);

United States v. Wyche, 741 F.3d 1284, 1292 (D.C. Cir. 2014). When analyzing

§ 3582(c)(1)(A), multiple courts of appeals have recognized “[s]ections 3582(c)(1)’s and

(c)(2)’s parallel language and structure.” Jones, 980 F.3d at 1107; United States v.

Long, 997 F.3d 342, 351 (D.C. Cir. 2021) (“[t]he structure of Section 3582(c)(2) closely

parallels that of [] Section 3582(c)(1)(A)”); Saccoccia, 10 F.4th at 4 (referring to

§ 3582(c)(2) as “a provision adjacent to section 3582(c)(1), employing similar

language”); United States v. Kibble, 992 F.3d 326, 329 (4th Cir. 2021) (“we see no

reason to adopt different standards for these parallel provisions”).

The Tenth Circuit dismissed Dillon as irrelevant, Pet. App. 17a-24a, implying that

the relevant language from Dillon was unpersuasive dicta, Pet. App. 20a-23a.

According to the Tenth Circuit, whether this portion of Dillon binds lower courts is

left for “further clarification by” this Court. Pet. App. 23a. But no court of appeals has

ever considered that language dicta. Rather, as just shown, every court of appeals

(including the Tenth Circuit) has adopted Dillon’s sequential-step test as binding

precedent.

The Tenth Circuit also discounted Dillon’s test because it is “not at all unusual for

an appellate court, including the Supreme Court, to conceptualize a decision as

proceeding in a certain order (step 1, step 2, etc.), yet permit the ultimate

decisionmaker—ordinarily the trial court—to proceed in a different order if more

convenient and efficient.” Pet. App. 20a. But in support, the Tenth Circuit cited

decisions interpreting constitutional provisions, not statutes. Pet. App. 20a-22a. That

is an all-together different thing. The First Amendment’s prohibition against any

“law abridging the freedom of speech” obviously does not set forth a sequential order

to resolve disputes over commercial speech. See Pet. App. 21a. Nor does the Sixth

Amendment’s right to counsel set forth a sequential order to resolve disputes over an

attorney’s effectiveness. See Pet. App. 20a. But the same is not true for statutes.

Congress often passes sequential statutory schemes. See, e.g., Guam v. United States,

141 S.Ct. 1608, 1613 (2021) (noting the “sequence” of the statute at issue there)).

Moreover, this Court made clear in Koons, 138 S.Ct. at 1790, that § 3582(c)(2)

includes a “threshold” eligibility requirement: whether the defendant’s sentence was

“based on a sentencing range that has subsequently been lowered by the Sentencing

Commission pursuant to 28 U.S.C. § 994(o),” 18 U.S.C. § 3582(c)(2). This threshold

eligibility requirement precedes not just any consideration of the § 3553(a) factors,

but also whether a reduction is consistent with any applicable policy statement. Id.

(holding that the policy statement “cannot make a defendant eligible when

§ 3582(c)(2) makes him ineligible”).

The Tenth Circuit did not address Koons below, but it did address its earlier

decision in C.D., Pet. App. 16 n.7, which, the year before Koons, held, as Koons would

later hold, that § 3582(c)(2) includes a threshold eligibility requirement. 848 F.3d at

1289-1290. The Tenth Circuit dismissed C.D. because it considered the thresholdeligibility requirement a jurisdictional one, and a “court has no authority to address

a nonjurisdictional merits issue if it lacks jurisdiction.” Pet. App. 16a. n.7. But the

Tenth Circuit acknowledged “the apparent tension between [C.D.’s jurisdictional

holding] and recent Supreme Court law.” Pet. App. n.7. Indeed, consistent with

decisions

from

other

courts

appeals,

Koons

expressly

refers

§ 3582(c)(2)’s retroactive-guidelines-range requirement as a “threshold” eligibility

requirement without even a hint that this requirement is jurisdictional. 138 S.Ct. at

1790; see also United States v. Johnson, 732 F.3d 109 (2d Cir. 2013) (thresholdeligibility requirement not jurisdictional); United States v. Taylor, 778 F.3d 667 (7th

Cir. 2015) (same).

Section 3582(c)(1)(A) should be interpreted similarly to § 3582(c)(2) to require an

analogous threshold-eligibility sequential-step test. See, e.g., Nijhawan v. Holder, 557

U.S. 29, 39 (2009) (“Where, as here, Congress uses similar statutory language and

similar statutory structure in two adjoining provisions, it normally intends similar

interpretations.”). Under both provisions, a district court must first determine

whether a defendant is eligible for relief in the first instance: under § 3582(c)(1)(A)(i)

if the district court finds that “extraordinary and compelling reasons warrant [] a

reduction,” and under § 3582(c)(2) if the district court finds that the defendant’s

guidelines range “has subsequently been lowered by the Sentencing Commission

pursuant to 28 U.S.C. 994(o).” See Koons, 138 S.Ct. at 1790. Under both provisions,

Congress has set forth a sequential-step test for district courts to use to resolve these

motions. See Dillon, 560 U.S. at 826.

Contrary to the Tenth Circuit’s position below, we do not need to surmise whether

“there is a reason why a court acting under § 3582(c)(2) must first address whether

the defendant’s guidelines range has been changed by a postsentencing amendment.”

Pet. App. 23a. We know the answer: because Congress has said it must. Dillon, 560

U.S. at 826; Koons, 138 S.Ct. at 1790. Likewise, here, a district court must first

determine whether “extraordinary and compelling reasons warrant such a reduction”

because that’s what § 3582(c)(1)(A)’s plain text requires courts to do. The

“justification for requiring a specific order of analysis” under § 3582(c)(1)(A), Pet. App.

23a, is the statute’s text. The Tenth Circuit doesn’t get to amend the statute simply

because it disagrees with it. Bostock v. Clayton County, 140 S.Ct. 1731, 1738 (2020)

(judges cannot “add to, remodel, update, or detract from” the statute’s text, as that

“would risk amending statutes outside the legislative process reserved for the people’s

representatives”).

Indeed, there is a very good reason why Congress wrote § 3582(c)(1)(A) the way

that it did. Congress amended § 3582(c)(1)(A) to ensure that district courts can reduce

sentences for those who demonstrate extraordinary and compelling reasons for such

reductions. See Brooker, 976 F.3d at 235. The district court’s “task [is] not to assess

the correctness of the original sentence it imposed. Rather, its task [is] to determine

whether the § 3553(a) factors counsel[] against a sentence reduction in light of the

new, extraordinary circumstances identified.” Kibble, 992 F.3d at 334 (Gregory, C.J.,

concurring). “The exception in § 3582(c)(1)(A)(i) is not an open-ended invitation to

simply relitigate and reweigh the § 3553(a) factors based on facts that existed at

sentencing.” Hunter, 12 F.4th at 569. Perhaps that is the “most convenient way for

the district court to dispose of a motion,” Pet. App. 15a-16a, but “‘Congress did not

write the statute that way,’” Hunter, 12 F.4th at 569. And § 3582(c)(1)(A) was not

amended to give district courts convenient ways to deny relief. It should not be

interpreted with that goal in mind.

Finally, statutory context also severely undermines the Tenth Circuit’s decision.

In § 3582(a), Congress referenced § 3553(a) as well, requiring that district courts, “in

determining whether to impose a term of imprisonment, and, if a term of

imprisonment is to be imposed, in determining the length of the term, shall consider

the factors set forth in section 3553(a) to the extent that they are applicable.” See also

18 U.S.C. § 3553(a) (instructing that sentencing courts “shall consider” the § 3553(a)

factors “in imposing a sentence”). This provision makes clear that the § 3553(a)

factors are relevant at the sentencing stage of the proceedings. Those factors guide a

district court’s discretion in determining “whether to impose a term of imprisonment”

and “the length of [any such] term.” 18 U.S.C. § 3582(a). They do not guide a district

court’s discretion in determining whether “extraordinary and compelling reasons

warrant [] a [sentence] reduction,” 18 U.S.C. § 3582(c)(1)(A)(i), or whether an elderly

defendant sentenced under § 3559(c) is eligible for a sentence reduction, 18 U.S.C.

§ 3582(c)(1)(A)(ii). Only if a defendant satisfies those conditions “may” a district court

“reduce a term of imprisonment.” 18 U.S.C. § 3582(c)(1)(A). And it is only at that

point, “after” the threshold eligibility determination is made, that a district court

considers any applicable § 3553(a) factors in order to determine “whether to impose

a term of imprisonment” and “the length of [any such] term.” 18 U.S.C. § 3582(a).

The Second and Ninth Circuits’ hybrid approach – adopting a threshold-eligibility

sequential-step test to grant, but not deny, motions, Keller, 2 F.4th at 1284; Holmes,

858 Fed. Appx. at 430 – also lacks any support in the text. There is nothing within

the statute that requires a district court to proceed one way, but not the other, based

solely on whether the district court intends to grant or deny relief. Indeed, under the

Second and Ninth Circuits’ approach, in order to know which analysis to employ (a

threshold-eligibility sequential-step test or something different), a district would first

have to decide whether to grant or deny the motion. But that type of ends-justifiesthe-means decisional process puts the cart before the horse. The purpose of a legal

test is to guide a district court’s decision-making authority. It makes no sense to adopt

a reading of § 3582(c)(1)(A)(i) that requires a district court to make the ultimate

decision first in order to determine what legal test to employ.

This Court has rejected such illogical reasoning in other contexts. See, e.g., Merit

Mgmt. Grp., LP v. FTI Consulting, Inc., 138 S.Ct. 883, 892 (2018) (“those inquiries

put the proverbial cart before the horse. Before a court can determine whether a

transfer was made by or to or for the benefit of a covered entity, the court must first

identify the relevant transfer to test in that inquiry.”); Florida v. Georgia, 138 S.Ct.

2502, 2516 (2018) (“To require ‘clear and convincing evidence’ about the workability

of a decree before the Court or a Special Master has a view about likely harms and

likely amelioration is, at least in this case, to put the cart before the horse.”); Consol.

Rail Corp. v. Gottshall, 512 U.S. 532, 551 (1994) (“By treating the common-law tests

as mere arbitrary restrictions to be disregarded if they stand in the way of recovery

on ‘meritorious’ FELA claims, the Third Circuit put the cart before the horse: The

common law must inform the availability of a right to recover under FELA for

negligently inflicted emotional distress, so the ‘merit’ of a FELA claim of this type

cannot be ascertained without reference to the common law.”). For this reason, and

the others just discussed, this Court should grant this petition.

III. The resolution of this issue is critically important to the federal criminal

justice system.

Review is also necessary because of the importance of the question presented. This

is so for at least four reasons.

First, Congress just recently amended § 3582(c)(1)(A) to permit defendants to file

their own motions for relief. First Step Act, § 603, 132 Stat. 5194, 5238. This new

remedy is available to every federal prisoner, and there are currently over 150,000

federal prisoners.7 Over 20,000 federal prisoners have already sought relief under

this newly available remedial statute (and over 3,600 prisoners have obtained relief).8

A statute that is so widely available and so widely used must have a uniform

interpretation. As it stands now, it does not. This Court should thus use this petition

to interpret this statute for the first time in order to bring uniformity to this

important and expansive area of the law. See, e.g., Sup. Ct. R. 10(a) (authorizing

review where “a United States court of appeals has entered a decision in conflict with

the decision of another United States court of appeals on the same important

matter”); Dawson v. Steager, 139 S.Ct. 698, 703 (2019) (“Because cases in this field

have yielded inconsistent results, much as this one has, we granted certiorari to

afford additional guidance.”).

Importantly, § 3582(c)(1)(A)(i)’s meaning is currently unsettled. This Court has

7 https://www.bop.gov/about/statistics/population_statistics.jsp.

USSC Compassionate Release Data Report (Sept. 2021) at 4, available at:

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencingstatistics/compassionate-release/20210928-Compassionate-Release.pdf (hereinafter “USSC Report”)

not yet interpreted the meaning of the statute. Thus, the question presented is not

“that a lower court simply erred in applying a settled rule of law to the facts of a

particular case.” Salazar-Limon v. Houston, 137 S.Ct. 1277, 1278 (2017) (Alito, J.,

concurring in denial of certiorari). It is that the law in this area is entirely unsettled

and in need of resolution. See, e.g., Order of R.R. Telegraphers v. Ry. Express Agency,

321 U.S. 342, 346 (1944) (granting certiorari to review “unsettled” questions

“important to the administration of” a statutory scheme). In light of the wide sweep

of the statute, and the extensive Circuit split, this question will continue to recur

until this Court resolves it. See, e.g., Glus v. Brooklyn Eastern Dist. Terminal, 359

U.S. 231, 232 (1959) (“Since the question is important and recurring we granted

certiorari.”).

Second, in light of this pervasive conflict, § 3582(c)(1)(A)(i) has a different meaning

based solely on geography. Prisoners sentenced in one jurisdiction must play by

different rules than prisoners sentenced in other jurisdictions. And district courts in

one jurisdiction are subject to different rules than district courts in other

jurisdictions. Such “geographical happenstance” has no place in the proper

interpretation of a statute. See, e.g., Rogers Cty. Bd. of Tax Roll Corr. v. Video Gaming

Techs., 141 S.Ct. 24, 25 (2020) (Thomas, J., dissenting from the denial of cert.).

Indeed, considering that federal prisoners are housed throughout the United

States without any real regard as to the jurisdiction of conviction, 18 U.S.C. § 3621(b),

and considering that many federal prisoners must file pro se motions in this context9,

9 See, e.g., Casey Tolan, Compassionate release became a life-or-death lottery for thousands of federal

inmates during the pandemic, available at: https://www.cnn.com/2021/09/30/us/covid-prison-inmates-

there is obvious risk of confusion in terms of pro se prisoners and their ability to seek

relief under a proper understanding of the law. A prisoner housed in a federal prison

in Chicago, but who was convicted in Denver (for instance), may reasonably seek

relief under a threshold-eligibility sequential-step test, not realizing that such a test

does not apply in the federal district court in Denver. And regardless, prisoners

housed in the same prison (but with convictions from different jurisdictions) should

not be subject to differing interpretations of § 3582(c)(1)(A)(i) simply because of

geography.

Third, the Tenth Circuit’s non-sequential-step test does not provide meaningful

guidance to lower courts. On the one hand, a district court in the Tenth Circuit is

instructed that it need not consider whether a defendant has established

extraordinary and compelling reasons for a reduced sentence in order to deny a

motion. Pet. App. 16a-17a. This is a “useless gesture” in some cases. Pet. App. 17a.

On the other hand, a district court in the Tenth Circuit is instructed that it must still

consider the alleged extraordinary and compelling reasons under the § 3553(a)

factors. Pet. App. 23a-24a. This mashed-up test not only has no textual support, but

provides little guidance to the lower courts on how to comply with the law. And by

permitting district courts to skip the first step, there is a serious risk that courts will

never meaningfully address what it means to establish “extraordinary and

compelling reasons” for a reduced sentence. In contrast, a threshold-eligibility

sequential-step test would provide clear guidance to the lower courts on precisely how

compassionate-release-invs/index.html (explaining that some jurisdictions do not appoint counsel for

prisoners in this context).

to apply this statute, and it would ensure meaningful development of the contours of

the “extraordinary and compelling” threshold inquiry.

Statutes should not be interpreted in ways that “prove exceedingly difficult to

apply,” Stokeling v. United States, 139 S.Ct. 544, 554 (2019), or “complicate the

factfinder’s review.” Life Techs. Corp. v. Promega Corp., 137 S.Ct. 734, 741 (2017).

Rather, a statute’s construction should “hew[] most closely to the text of the statute

and provide[] an administrable construction.” Id. The Tenth Circuit’s approach does

not do that.

And this lack of clear guidance undoubtedly attributes to the “wide disparities”

that currently exist under this statute. See Tolan, supra, p. 29 n.9. “[W]hether

defendants get released early during the pandemic has had almost as much to do with

which courts are hearing their motion as it does with the facts of their cases.” Id. At

present, there is “a national patchwork of jarringly different approval rates between

federal courts.” Id. This should come as no surprise considering that the lower courts

are divided over what test district courts should apply when ruling on such motions.

“‘You need a national standard”; “without one, ‘it creates a vacuum and it creates

uncertainty, and most importantly it creates disparity.’” Id. (quoting United States

District Judge Charles Breyer). By resolving the question presented, this Court could

(and should) take one crucial step toward defining that much-needed national

standard.

Finally, the question presented is exceedingly important because the Tenth

Circuit’s interpretation of § 3582(c)(1)(A)(i) encourages district courts to deny motions

without ever addressing § 3582(c)(1)(A)(i)’s key inquiry: whether “extraordinary and

compelling reasons warrant [] a reduction.” See Pet. App. 16a-17a. This critical

question is nothing more than a “useless gesture” in the Tenth Circuit. Pet. App. 17a.

That cannot be the law. Congress expected district courts to answer that question,

not avoid it by reciting the § 3553(a) factors used to impose the sentence in the first

instance. See, e.g., Hunter, 12 F.4th at 569; Thacker, 4 F.4th at 576. The whole point

of the statute is to reduce sentences for those with extraordinary and compelling

reasons for such reductions. The threshold eligibility question must be answered in

every case, not rendered “useless” by an appellate court. Review is necessary.

IV. This petition is an ideal vehicle to resolve the question presented.

For two reasons, this petition presents an ideal opportunity for this Court to

answer the question presented.

1. The question arises on direct review from a lower federal court of appeals. The

petitioners properly preserved the question presented below, and the Tenth Circuit

affirmed under de novo review. The unanimous, summary denial of en banc

rehearing, after receiving a response from the government, makes clear that the

Tenth Circuit will not overrule its precedent on this point. Thus, there are no

procedural hurdles to overcome for this Court to resolve the conflict on this issue and

address the merits of this critically important question.

2. This is also an excellent vehicle because the petitioners can establish

extraordinary and compelling reasons for reduced sentences. Each petitioner suffers

from serious medical conditions that put their lives at risk while incarcerated during

the COVID-19 pandemic. Indeed, the government conceded below that both Mr.

Sands and Ms. Edwards can satisfy this first step. Pet. App. 42a-43a, 56a. And absent

some significant countervailing reason, a federal prisoner who establishes that

“extraordinary and compelling reasons warrant [] a reduction” should receive a

reduced sentence.

The Tenth Circuit missed the point of this below, claiming that we somehow

“fail[ed] to explain how a finding of extraordinary and compelling reasons would

factor into the § 3553(a) analysis.” Pet. App. 17a. That was untrue. We explained

below the practical difficulties with an order-less interpretation of the statute: when

a district court fails to determine whether extraordinary and compelling reasons

independently exist for a reduced sentence, the district court “impermissibly

devalue[s]” the reasons why the defendant filed the motion. Sands Br. 23. Those

reasons “are not just one factor among many; they are the factor that permits the

reduction.” Id. (emphasis in original).

The district court’s approach [and now the Tenth Circuit’s approach] sets aside

the precise grounds that actually authorize a motion for a reduction under

§ 3582(c)(1)(A). If all the court must do is consider the § 3553(a) factors,

§ 3582(c)(1)(A) is completely meaningless. At the initial sentencing, 18 U.S.C.

§ 3553(a) already mandates that the court “impose a sentence sufficient, but

not greater than necessary” to comply with the sentencing factors. The key

question in a motion under § 3582(c)(1)(A) is whether there are extraordinary

and compelling reasons which now alter the balance and warrant a reduction.

Hald Br. 23. When a district court finds that extraordinary and compelling reasons

warrant a reduced sentence, it is up to the district court to explain how the § 3553(a)

factors counterbalance those reasons, “especially considering that the current

sentence is one the district court found sufficient, but not greater than necessary, at

a time when extraordinary and compelling reasons did not warrant a lower sentence.”

Id. 24.

The petitioners can satisfy the first step. That fact makes this an excellent vehicle

to resolve this conflict.

CONCLUSION

For the foregoing reasons, this Court should grant this petition.

Respectfully submitted,

MELODY BRANNON

Federal Public Defender

DANIEL T. HANSMEIER

Appellate Chief

Counsel of Record

KAYLA GASSMANN

Assistant Federal Defender

KANSAS FEDERAL PUBLIC DEFENDER

500 State Avenue, Suite 201

Kansas City, Kansas 66101

Phone: (913) 551-6712

Email: daniel_hansmeier@fd.org

December 2021

Counsel for Petitioners

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PUBLISH

FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

August 6, 2021

FOR THE TENTH CIRCUIT

_________________________________

Christopher M. Wolpert

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 20-3195

JAMES A. HALD,

Defendant - Appellant.

_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 20-3208

MONTERIAL WESLEY,

Defendant - Appellant.

_________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 20-3228

WALTER B. SANDS,

Defendant - Appellant.

_________________________________

Appendix A

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Appeals from the United States District Court

for the District of Kansas

(D.C. No. 6:11-CR-10227-EFM-1)

(D.C. No. 2:07-CR-20168-JWL-2)

(D.C. No. 2:06-CR-20044-JAR-3)

_________________________________

Kayla Gassmann, Appellate Attorney (Melody Brannon, Federal Public Defender, with

her on the briefs), Kansas Federal Public Defender’s Office, Topeka, Kansas, for

Defendant - Appellant James A. Hald.

Monterial Wesley, pro se.

Daniel T. Hansmeier, Appellate Chief (Melody Brannon, Federal Public Defender, with

him on the briefs), Kansas Federal Public Defender’s Officer, Topeka, Kansas, for

Defendant - Appellant Walter B. Sands.

James A. Brown, Assistant United States Attorney (Stephen R. McAllister, United States

Attorney, and Jared S. Maag, Assistant United States Attorney, with him on the briefs,

and Duston J. Slinkard, Acting United States Attorney, District of Kansas, on the

memorandum briefs), District of Kansas, Topeka, Kansas, for Appellee United States of

America.

_________________________________

Before HARTZ, HOLMES, and EID, Circuit Judges.

_________________________________

HARTZ, Circuit Judge.

_________________________________

James A. Hald, Monterial Wesley, and Walter B. Sands (Defendants) appeal

the denials of their district-court motions for compassionate release under 18 U.S.C.

§ 3582(c)(1)(A).1 They are among the many prisoners who have sought to be

released from prison confinement during the COVID-19 pandemic. Each claimed

that his underlying health conditions and mounting infections at his correctional

Although these cases were not consolidated, we deal with them jointly in this

opinion because of the similarity of the issues presented.

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facility satisfied the statute’s “extraordinary and compelling reasons” requirement for

early release.2 18 U.S.C. § 3582(c)(1)(A). But before granting a sentence reduction

the district court must also consider whether the factors set forth in 18 U.S.C.

§ 3553(a) support the reduction. See 18 U.S.C. § 3582(c)(1)(A). And each of the

Defendants was denied relief by the United States District Court for the District of

Kansas based on the court’s discretionary analysis of the § 3553(a) factors.

The principal issue on appeal is whether, as argued by Hald and Sands, a

district court is permitted to deny relief based on its assessment of the § 3553(a)

factors without first making a determination on the existence of “extraordinary and

compelling reasons.” We reject the argument, holding that district courts are free to

deny relief on the basis of any one of § 3582(c)(1)(A)’s requirements without

considering the others. We also reject the other arguments raised by Sands and

Wesley.3 Exercising jurisdiction under 28 U.S.C. § 1291, we affirm denial of all

three motions for compassionate release.

As of oral argument in May 2021, all three men had either been vaccinated or been

offered the opportunity to be vaccinated against COVID-19. Although we do not

consider this development in resolving their appeals, there is certainly room for doubt

that Defendants’ present circumstances would support a finding of “extraordinary and

compelling reasons.” See United States v. Baeza-Vargas, -- F. Supp. 3d --, 2021 WL

1250349, at *3–4 (D. Ariz. April 5, 2021) (collecting district-court cases representing

a “growing consensus” that either receiving or refusing COVID-19 vaccination

“weighs against a finding of extraordinary and compelling circumstances” for

purposes of § 3582(c)(1)(A)).

Wesley’s notice of appeal refers only to the district court’s denial of his motion for

reconsideration of the denial of his motion for release. But since his notice of appeal

would have also been timely with respect to the court’s initial order denying his

motion for compassionate release, we construe Wesley’s pro se notice of appeal as

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STATUTORY FRAMEWORK

“Federal courts are forbidden, as a general matter, to modify a term of

imprisonment once it has been imposed; but the rule of finality is subject to a few

narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011) (citation

and internal quotation marks omitted). One such exception is codified at 18 U.S.C.

§ 3582(c)(1)(A). From its enactment in 1984 until 2018, § 3582(c)(1)(A) allowed

only the Director of the Bureau of Prisons (BOP) to move for a reduction in a

defendant’s sentence, making the defendant “wholly dependent upon the Director of

the BOP [to do] so on his or her behalf.” United States v. McGee, 992 F.3d 1035,

1041 (10th Cir. 2021). This arrangement resulted in infrequent and perhaps uneven

application of § 3582(c)(1)(A)—between 1984 and 2013 the Director of the BOP

used the process to release an average of only 24 inmates per year. See id.

In 2018 Congress enacted the First Step Act. Relevant here, § 603(b) of the

Act, entitled “INCREASING THE USE AND TRANSPARENCY OF

COMPASSIONATE RELEASE,” amended § 3582(c)(1)(A) to allow defendants to

encompassing both the original denial of his motion under § 3582(c)(1)(A) and the

denial of his motion for reconsideration. Cf. Artes-Roy v. City of Aspen, 31 F.3d 959,

961 n.5 (10th Cir. 1994) (“[A]n appeal from the denial of a Rule 59 motion will be

sufficient to permit consideration of the merits of the [judgment], if the appeal is

otherwise proper, the intent to appeal from the final judgment is clear, and the

opposing party was not misled or prejudiced.” (internal quotation marks omitted)).

(The proposed amendments to Fed. R. App. P. 3, which would become effective later

this year, further appear to support our treatment of Wesley’s notice of appeal. See

https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments.)

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seek relief under the statute on their own, rather than depending on the Director of

the BOP. See id at 1042. The provision now reads, in relevant part, as follows:

[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 section

3553(a) to the extent that they are applicable, if it finds that—

. . . extraordinary and compelling reasons warrant such a reduction

...

and that such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission . . . .

We recently held that the plain language of the statute creates a “three-step

test.” McGee, 992 F.3d at 1043; see United States v. Maumau, 993 F.3d 821, 831

(10th Cir. 2021). “At step one . . . a district court must find whether extraordinary

and compelling reasons warrant a sentence reduction.” McGee, 992 F.3d at 1042

(brackets and internal quotation marks omitted). “At step two . . . a district court

must find whether such reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” Id. (brackets, emphasis, and internal

quotation marks omitted). “At step three . . . § 3582(c)(1)(A) instructs a court to

consider any applicable [18 U.S.C.] § 3553(a) factors and determine whether, in its

discretion, the reduction authorized by steps one and two is warranted in whole or in

part under the particular circumstances of the case.” Id. (original brackets and

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internal quotation marks omitted); see Maumau, 993 F.3d at 831 (same). We

declared (although Hald and Sands contend that our statement was nonbinding

dictum) that “‘district courts may deny compassionate-release motions when any of

the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address

the others.’” McGee, 992 F.3d at 1043 (quoting United States v. Elias, 984 F.3d 516,

519 (6th Cir. 2021)); Maumau, 993 F.3d at 831 n.4 (same). To grant a motion for

compassionate release, however, the district court “must of course address all three

steps.” McGee, 992 F.3d at 1043 (internal quotation marks omitted).4

In McGee and Maumau we also clarified two matters that are not directly relevant

to this appeal. First, we held that “district courts, in applying the first part of

§ 3582(c)(1)(A)’s statutory test, have the authority to determine for themselves what

constitutes ‘extraordinary and compelling reasons,’” McGee, 992 F.3d at 1045,

rejecting the government’s suggestion that the Sentencing Commission, rather than

the courts, should “define what types of circumstances constitute extraordinary and

compelling reasons,” id. at 1043 (internal quotation marks omitted); see Maumau,

993 F.3d at 832. The design of Congress in amending § 3582(c)(1)(A) was not to

create an open season for resentencing (after all, the title of the amendment speaks in

terms of “Compassionate” release, see First Step Act of 2018, Pub. L. No. 115-391,

132 Stat. 5194 § 603(b)); but our opinions in McGee and Maumau suggest that the

district court has substantial discretion. Second, we held that the relevant Sentencing

Commission policy statement, USSG § 1B1.13, “is applicable only to motions for

sentence reductions filed by the Director of the BOP, and not to motions filed

directly by defendants.” McGee, 992 F.3d at 1050; Maumau, 993 F.3d at 836–37.

Thus, until the additional voting members required for a quorum are appointed to the

Sentencing Commission and the Commission is able to “comply with its statutory

duty of promulgating a post-First Step Act policy statement regarding the appropriate

use of the sentence reduction provisions of § 3582(c)(1)(A)(i),” the district court’s

discretion is not restricted by any Sentencing Commission policy statements, McGee,

992 F.3d at 1050, although it would hardly be an abuse of discretion for a district

court to look to the present policy statement for guidance.

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PROCEEDINGS BELOW

Hald

In October 2011 Hald was indicted in Kansas federal court on one count of

conspiracy to distribute 50 grams or more of methamphetamine and three substantive

counts of possession with intent to distribute methamphetamine (100.5 grams, 86.1

grams, and 543.4 grams). After rejecting an initial plea agreement under which Hald

would have served 180 months’ imprisonment, the district court approved in March

2012 an agreement under which he would plead guilty to the conspiracy count and be

sentenced to 210 months’ imprisonment, with the remaining counts being dismissed.

In July 2020, a little less than halfway through his sentence, Hald filed a

motion under § 3582(c)(1)(A) asking the district court to reduce his sentence to time

served, although imposing home confinement for five years as a condition of

supervised release and adding five years to his five-year term of supervised release.

The motion claimed that “extraordinary and compelling reasons warrant[ed]

immediate reduction of his sentence.” Hald R., Vol. 1 at 52. He argued that his

preexisting health conditions—obesity, hypertension, and Hepatitis C—put him at

high risk of serious illness or death should he become infected with COVID-19 and

that the close quarters at his correctional facility, FMC Fort Worth, had led to a high

prevalence of the disease.5

Hald’s motion appears to suggest that he had already been infected by COVID-19

at the time, see Hald R., Vol. 1 at 58, though he later represented in supplemental

appellate briefing that he “ha[d] never tested positive for COVID-19,” Hald Supp.

Aplt. Br. at 1. Given the ambiguity produced by these apparently conflicting

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The government opposed Hald’s motion, arguing that his “medical conditions

. . . when considered collectively [did not] establish extraordinary and compelling

circumstances,” Hald R., Vol. 1 at 102, and that even if they did, consideration of the

§ 3553(a) factors would still warrant denial of the motion.

The district court denied Hald’s motion. See United States v. Hald, No. 1110227-01-EFM, 2020 WL 5548826, at *3 (D. Kan. Sept. 16, 2020). Although it

found “that [his] medical conditions, in tandem with the COVID-19 pandemic, may

present an extraordinary and compelling reason” for early release, id. at *2, the court

decided that no sentence reduction was warranted, id. at *2–3. On consideration of

the § 3553(a) factors, it noted the serious nature of Hald’s offense, the violent

circumstances surrounding the offense, and his lengthy criminal history, concluding

“that the 210-month sentence originally imposed remains sufficient, but not greater

than necessary, to meet the sentencing factors in § 3553(a) and punish the offense

involved.” Id. at *3.

Wesley

In 2008 Wesley was indicted in Kansas federal court on 13 counts arising out

of a conspiracy to distribute cocaine and cocaine base (crack). Among the charges

was one count of using a firearm “during and in relation to . . . [a] drug trafficking

statements and the government’s failure to raise this point, we need not linger on it.

We merely note that, like access to vaccination, prior infection and recovery from

COVID-19 would presumably weigh against a finding of extraordinary and

compelling reasons. See United States v. Neal, No. CR 11-28, 2020 WL 4334792, at

*1 (E.D. La. July 28, 2020) (collecting district-court cases).

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crime,” in violation of 18 U.S.C. § 924(c). After Wesley pleaded guilty (without the

benefit of a plea agreement) to the conspiracy count and three counts of using a

telephone to facilitate the conspiracy, he went to trial on the nine remaining counts

and was ultimately convicted on just two of them, both being charges of attempted

possession with intent to distribute cocaine. At sentencing, “the district court found

that Mr. Wesley was accountable for 150 kilograms of cocaine, had possessed a

firearm, and did not qualify for an adjustment for acceptance of responsibility,”

resulting in a guideline range of 324 to 405 months. United States v. Wesley, 423 F.

App’x 838, 839 (10th Cir. 2011) (unpublished) (Wesley I). In October 2009 Wesley

was sentenced to 30 years’ imprisonment, to be followed by five years’ supervised

release. We affirmed the sentence on direct appeal. See id. at 841.

In May 2020, about one-third through his sentence, Wesley filed a motion

under § 3582(c)(1)(A) to reduce his sentence to time served while imposing home

confinement as a condition of supervised release. Wesley argued that his preexisting

health conditions—epileptic seizures, hyperlipidemia (high cholesterol), and

“respiratory infections related to juvenile asthma”—put him at “imminent risk” of

serious disease or death should he contract COVID-19, and that those risk factors,

coupled with the prevalence of the virus at his correctional facility, FCI Forrest City

Low, constituted extraordinary and compelling reasons warranting his release.

Wesley R., Vol. 1 at 41. The government opposed Wesley’s motion, arguing that he

had failed to present extraordinary and compelling reasons, and even if he had,

consideration of the § 3553(a) factors would still require denial. The government

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also pointed out that BOP records indicated that his asthma could not have been

serious because it was not being treated by medication or inhaler. Wesley failed to

address the asthma issue at all in his reply brief, relying solely on his epileptic

seizures and hyperlipidemia.

The district court denied Wesley’s motion, finding that he “ha[d] simply not

shown that he bears an increased risk of serious medical harm,” and thus could not

show that “extraordinary and compelling reasons warrant his release from prison.”

United States v. Wesley, No. 07-20168-02-JWL, 2020 WL 3868901, at *3 (D. Kan.

July 9, 2020) (Wesley II). The court noted that the record did not support a finding

that any of Wesley’s medical conditions “place[d] him at an elevated risk of harm

from the virus.” Id. at *2. It found that “Wesley’s cholesterol is managed with daily

medication and there is no evidence that this condition is debilitating in any way,”

and that he had not reported a seizure in over a year and had “refused to take the

[anti-seizure] medication prescribed to him.” Id. at *2–3. The court further observed

that high cholesterol was not “among the conditions cited by the Centers for Disease

Control as involving some increased risk of complications from Covid-19 infection,”

id. at *2, and neither were seizure disorders, see id. at *3. Given Wesley’s failure to

address his juvenile asthma or related respiratory conditions in his reply brief, the

court understood that he was no longer seeking relief on that basis. See id. at *1 n.2.

In July 2020, Wesley moved for reconsideration, asserting, among other

things, that the district court had overlooked or otherwise failed to consider

information relevant to his various medical conditions. For instance, he claimed to

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have newly discovered evidence reflecting that he had suffered seizures as recently as

June 2020 and evidence substantiating his claimed respiratory conditions. Wesley

also submitted a two-page affidavit from a medical doctor offering opinions on his

conditions and their effect on his risk of death or severe illness were he to contract

COVID-19. The district court denied the motion for reconsideration. See United

States v. Wesley, No. 07-20168-02-JWL, 2020 WL 5848897, at *3 (D. Kan. Oct. 1,

2020) (Wesley III). First, it said that even if it were to “assume for purposes of the

motion that Mr. Wesley’s seizure disorder ‘may’ increase his risk of severe illness,”

that still would not be sufficient to establish extraordinary and compelling reasons

because the outbreak at FCI Forrest City Low “appears to now be contained and

controlled.” Id. at *2. Second, it said that even if Wesley’s medical conditions did

constitute an extraordinary and compelling reason, compassionate release would still

be inappropriate based on application of the § 3553(a) factors. See id. at *3. The

court pointed to the “significant quantity” of drugs (more than 150 kilograms of

cocaine) attributed to Wesley as well as the “inherent violence associated with the

related firearms offense.” Id.

Sands

In September 2006 Sands was indicted in Kansas federal court on five counts

arising from firearms violations and a conspiracy to distribute methamphetamine. He

was convicted by a jury on all counts and in September 2008 was sentenced to 420

months’ imprisonment, to be followed by 10 years’ supervised release. We upheld

the convictions and sentence on direct appeal. See United States v. Sands, 329 F.

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App’x 794, 796, 800–02 (10th Cir. 2009) (unpublished) (Sands I). The district court

later reduced Sands’s sentence from 420 to 384 months based on a retroactive

amendment to the drug-quantity guideline. See USSG § 2D1.1.

In July 2020 Sands filed a pro se motion seeking compassionate release under

§ 3582(c)(1)(A). The Federal Public Defender for the District of Kansas took on the

representation and filed a supplemental brief on his behalf, seeking a reduction of his

sentence to time served with five years’ home confinement as a condition of

supervised release. Sands argued that his preexisting health conditions—including

obesity, diabetes, asthma, hypertension, and sleep apnea—put him at high risk of

serious disease or death should he contract COVID-19, and that those risk factors,

coupled with an outbreak of the virus at his correctional facility, FCI Edgefield,

constituted extraordinary and compelling reasons warranting his release. In

opposition to the motion the government conceded that his medical conditions

“establish[ed] extraordinary and compelling reasons allowing for consideration of

compassionate release,” but argued that application of the § 3553(a) factors

nevertheless required denial. Sands R., Vol. 1 at 97.

The district court denied the motion. See United States v. Sands, No. 0620044-03-JAR, 2020 WL 6343303, at *4 (D. Kan. Oct. 29, 2020) (Sands II). In light

of the government’s concession on the issue of extraordinary and compelling reasons,

the court turned to the § 3553(a) factors and concluded that “the 384-month sentence

remains sufficient, but not greater than necessary, to meet the sentencing factors in

§ 3553(a) and punish the offense involved.” Id. at *3–4. The court noted the

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seriousness of the offense (nearly two kilograms of methamphetamine were attributed

to Sands), Sands’s criminal history, and the need to “provide adequate deterrence

[and] appropriate punishment.” Id.

III.

DISCUSSION

We first address the arguments advanced by Hald and Sands and explain why

they do not warrant reversal. We then address the issues raised by Wesley, again

affirming the denial of relief.

Hald’s and Sands’s Motions

Hald and Sands both argue that the district court misinterpreted

§ 3582(c)(1)(A) by not considering the three prerequisites for relief in the proper

order of step 1, step 2, and step 3, as we have labeled them in our precedents. For the

reader’s convenience, we requote the pertinent provisions of the section, inserting

bracketed numerals to identify the three steps:

[T]he court, . . . upon motion of the defendant, . . . may reduce the term

of imprisonment . . . , [3] after considering the factors set forth in

section 3553(a) to the extent that they are applicable, if it finds that—

[1] extraordinary and compelling reasons warrant such a reduction . . .

and [2] that such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission . . . .

Hald and Sands contend that the statutory provision requires an inflexible, mandatory

sequencing of the analysis of the three prerequisites, and that by bypassing what they

call the threshold inquiry on the existence of extraordinary and compelling reasons,

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the district court in both cases committed reversible error. Our review of this legal

issue is de novo. See McGee, 992 F.3d at 1041.

We reject this argument of Hald and Sands. Even assuming that their

characterization of the district-court orders is correct and that both proceeded to

consider the § 3553(a) factors (step three) before resolving, or at least assuming, the

existence of extraordinary and compelling reasons (step one), there was no error. We

addressed this precise issue in both McGee and Maumau. In McGee we stated that

“district courts may deny compassionate-release motions when any of the three

prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the

others.” Id. at 1043 (emphasis added) (internal quotation marks omitted); see

Maumau, 993 F.3d at 831 n.4 (same).

Hald and Sands offer two principal responses to this language.6 First, they

suggest that what McGee and Maumau really meant to say is that a district court may

assume the existence of “extraordinary and compelling reasons” before continuing on

to the § 3553(a) factors. But that is not what we said. Nor has that been said by the

Sixth Circuit, whose opinions we discussed at length and followed in our two

precedents. In particular, in United States v. Ruffin, 978 F.3d 1000 (6th Cir. 2020),

the district court had denied the defendant’s § 3582(c)(1)(A) motion after finding that

he had failed to satisfy any of the three requirements. See id. at 1002–03. Affirming,

Although McGee and Maumau were filed after the close of briefing in these cases,

Hald and Sands both addressed their effect at oral argument and in multiple letters

submitted under Federal Rule of Appellate Procedure 28(j).

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the Sixth Circuit neither decided nor assumed the existence of extraordinary and

compelling reasons, explaining that “we may affirm the denial of relief based on the

third discretionary rationale alone.” Id. at 1006.

Second, Hald and Sands argue that the language in McGee and Maumau

allowing courts to deny § 3582(c)(1)(A) motions at any of the three steps without

addressing the others is nonbinding dicta. They have a point. Although we have no

doubt that the statements in those opinions were carefully considered by the panels

(and are therefore entitled to our respect), it is true that the sequence of the three

steps was “not necessarily involved nor essential to determination” of the issues in

either McGee or Maumau. United States v. Barela, 797 F.3d 1186, 1190 (10th Cir.

2015). We therefore must consider the statements as dicta. See id.

In any event, we agree with the statements. The language of § 3582(c)(1)(A)

certainly requires that relief be granted only if all three prerequisites are satisfied, but

it does not mandate a particular ordering of the three steps (much less the ordering

Hald and Sands urge). Since it mentions step three first, the natural meaning could

well be that the court is to first determine whether relief would be authorized by that

step and then consider whether the other two steps are satisfied. We think it

persuasive, if not binding, that our well-considered reading of the statutory language

in McGee declared that the three steps could be considered in any order. See 992

F.3d at 1044.

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Moreover, and most importantly, there is no reason to mandate any particular

order for the three steps.7 If the most convenient way for the district court to dispose

One reason to mandate that a particular issue be the first to be considered is that the

issue is a jurisdictional one. The court has no authority to address a nonjurisdictional

merits issue if it lacks jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 94 (1998). But no party has argued in these appeals that step one is

jurisdictional. And in recent years the Supreme Court has been increasingly firm in

limiting what statutory provisions should be considered jurisdictional. As the Court

wrote in Sebelius v. Auburn Regional Med. Ctr., 568 U.S. 145, 153 (2013), “To ward

off profligate use of the term ‘jurisdiction,’ we have adopted a ‘readily administrable

bright line’ for determining whether to classify a statutory limitation as jurisdictional.

Arbaugh [v. Y & H Corp., 546 U.S. 500, 516 (2006)]. We inquire whether Congress

has ‘clearly state[d]’ that the rule is jurisdictional; absent such a clear statement, we

have cautioned, ‘courts should treat the restriction as nonjurisdictional in character.’

Id., at 515–516.” Accord Fort Bend County v. Davis, 139 S. Ct. 1843, 1848–50

(2019). Against this backdrop and in the absence of contrary controlling precedent,

we decline to read a jurisdictional element into § 3582(c)(1)(A)’s “extraordinary and

compelling reasons” requirement when the statute itself provides no indication (much

less a “clear statement”) to that effect. We acknowledge that this circuit has reached

the opposite conclusion with respect to a neighboring statutory provision, holding

that § 3582(c)(2)’s requirement that the defendant “show he was sentenced based on

a guideline range the Sentencing Commission lowered subsequent to defendant’s

sentencing” is a jurisdictional requirement that must be addressed first by the district

court. United States v. C.D., 848 F.3d 1286, 1289–90 (10th Cir. 2017), following

United States v. White, 765 F.3d 1240, 1244, 1245 n.3 (10th Cir. 2014), following

United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996); see also United States

v. Green, 405 F.3d 1180, 1184 (10th Cir. 2005) (suggesting in dictum that each

paragraph of § 3582(c) has a jurisdictional grant). But see United States v. Taylor,

778 F.3d 667, 670 (7th Cir. 2015) (“clarify[ing] that district courts have subjectmatter jurisdiction over—that is, the power to adjudicate—a § 3582(c)(2) motion

even when authority to grant a motion is absent because the statutory criteria are not

met”). But no precedent of this court has extended that holding to § 3582(c)(1)(A),

and we decline to do so now, particularly in light of the apparent tension between that

precedent and recent Supreme Court law. See C.D., 848 F.3d at 1289 n.2 (stating that

whether § 3582(c)(2) contains a jurisdictional element “is certainly debatable” in

light of Auburn Regional and other recent Supreme Court cases); United States v.

Shkambi, 993 F.3d 388, 389–90 (5th Cir. 2021) (district court “plainly had

jurisdiction over [defendant’s] § 3582[(c)(1)(A)] motion” even though defendant had

failed to demonstrate extraordinary and compelling reasons; “[the defendant]

properly filed [his § 3582(c)(1)(A) motion] in a court that had the power to grant it.

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of a motion for compassionate release is to reject it for failure to satisfy one of the

steps, we see no benefit in requiring it to make the useless gesture of determining

whether one of the other steps is satisfied. Hald and Sands suggest that the existence

of “extraordinary and compelling reasons” (step one) must be resolved first because

that determination somehow informs the district court’s § 3553(a) analysis at step

three. We are not persuaded. They fail to explain how a finding of extraordinary and

compelling reasons would factor into the § 3553(a) analysis. To be sure, the various

facts that would support a finding of such reasons are relevant to the § 3553(a)

analysis. But to the extent that they influence that analysis, it is irrelevant whether

those facts meet the test of “extraordinary and compelling reasons.” Certainly,

nothing in § 3553 itself requires a court to consider whether there are extraordinary

and compelling reasons when it is determining the proper sentence to be imposed

under § 3553(a). And the massive body of case law directing how courts are to

conduct their § 3553(a) analysis imposes no such requirement.

Hald and Sands rely on Dillon v. United States, 560 U.S. 817 (2010), in

support of their argument that step one must first be considered, but we think that

they read too much into that opinion. In that case the Supreme Court addressed the

application of § 3582(c)(1)(a)’s neighboring paragraph, § 3582(c)(2), which permits

a district court to reduce the sentence of a defendant if a guideline on which the

. . . The district court got to the end and found [his] motion meritless. But that does

not mean the district court suddenly lost the jurisdiction it previously exercised; it

just means that [his] motion failed on the merits.”).

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defendant’s original sentence was based had been amended so that the defendant’s

sentencing guideline range would now be lower.8 There was no issue in that case

about whether the district court had addressed issues in the proper order. The Court

was considering something altogether different. Dillon’s sentencing-guideline range

had been reduced by postsentencing amendments to the guidelines. He argued that

§ 3582(c)(2) therefore entitled him to a resentencing hearing at which the guidelines

would be only advisory because the Supreme Court in United States v. Booker, 543

U.S. 220 (2005), had held that the Sixth Amendment prohibited the imposition of

mandatory guidelines on sentencing courts. See Dillon, 560 U.S. at 819 (Booker

“rendered the Guidelines advisory to remedy the Sixth Amendment problems

associated with a mandatory sentencing regime.”). That is, he contended, Booker

always conferred on sentencing courts the authority to vary from what would be

required under the guidelines.

The Supreme Court rejected the contention, holding that the procedure to

reduce a sentence under § 3582(c)(2) is not a resentencing procedure and is not

Section 3582(c)(2) provides:

The court may not modify a term of imprisonment once it has been

imposed except that . . . in the case of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range that

has subsequently been lowered by the Sentencing Commission pursuant

to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the

Bureau of Prisons, or on its own motion, the court may reduce the term

of imprisonment, after considering the factors set forth in section

3553(a) to the extent that they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.

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governed by Booker. See id. at 825–26, 828. In Booker the Court held that the

mandatory-guideline regime violated the Sixth Amendment because the maximum

sentence to which the defendant could be subjected depended on fact findings made

by a judge under a preponderance-of-the-evidence standard, rather than on findings

made by a jury beyond a reasonable doubt. See Dillon, 560 U.S. at 820. But the

proceedings at issue in Dillon arose only after imposition of a final sentence

consistent with Booker and were solely to permit a reduction from the original

sentence. A reduced sentence could be imposed only if there had been a relevant

postsentencing amendment to the guidelines. In the Court’s words: “Congress

intended to authorize only a limited adjustment to an otherwise final sentence and not

a plenary resentencing proceeding.” Id. at 826. The Court described the statutory

scheme as follows: “A court must first determine that a reduction is consistent with

§ 1B1.10 before it may consider whether the authorized reduction is warranted, either

in whole or in part, according to the factors set forth in § 3553(a).” Id. (emphasis

added). “[P]roceedings under [§ 3582(c)(2)]” thus have a significantly more “limited

scope and purpose” than original sentencing proceedings and “do not implicate the

interests identified in Booker.” Id. at 828; see id. (“[P]roceedings under § 3582(c)(2)

do not implicate the Sixth Amendment right to have essential facts found by a jury

beyond a reasonable doubt. Taking the original sentence as given, any facts found by

a judge at a § 3582(c)(2) proceeding do not serve to increase the prescribed range of

punishment[.]”).

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Hald and Sands fasten on Dillon’s description of the procedure under

§ 3582(c)(2), arguing not only that its “must first” language mandates a particular

order of operations under that statute, but that we should require that same order of

analysis in cases under § 3582(c)(1)(A) as well. As previously noted, however, the

Court in Dillon was not resolving whether the district court had improperly taken

matters out of order. It was conceptualizing proceedings under § 3582(c)(2) to

distinguish them from original sentencing proceedings. The important conceptual

distinction was that relief was permissible under the provision only if a final sentence

had previously been imposed and there had been a relevant postsentencing

amendment to the guidelines.

It is not at all unusual for an appellate court, including the Supreme Court, to

conceptualize a decision as proceeding in a certain order (step 1, step 2, etc.), yet

permit the ultimate decisionmaker—ordinarily the trial court—to proceed in a

different order if more convenient and efficient. A few examples will suffice.

First, in Smith v. Robbins, 528 U.S. 259 (2000), the Court stated that to

establish an ineffective-assistance-of-counsel claim under Strickland v. Washington,

466 U.S. 668 (1984), “Respondent must first show that his counsel was objectively

unreasonable in failing to find arguable issues to appeal—that is, that counsel

unreasonably failed to discover nonfrivolous issues and to file a merits brief raising

them. If [Respondent] succeeds in such a showing, he then has the burden of

demonstrating prejudice.” Id. at 285 (emphasis added) (citation omitted). But in

Strickland itself the Court made it clear that courts need not follow the rigid order of

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operations suggested by the language in Robbins. See Strickland, 466 U.S. at 697

(“Although we have discussed the performance component of an ineffectiveness

claim prior to the prejudice component, there is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the same order or even to

address both components of the inquiry if the defendant makes an insufficient

showing on one.”); Robbins, 528 U.S at 286 n.14 (noting this flexibility).

Similarly, the Court in Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York, 447 U.S. 557 (1980) stated that, in commercial-speech

cases, “[a]t the outset, we must determine whether the expression is protected by the

First Amendment.” Id. at 566 (emphasis added). Yet in United States v. Edge

Broadcasting Co., 509 U.S. 418 (1993), the Court found it unnecessary to resolve

that question. See id. at 425 (“The Government argues first that gambling implicates

no constitutionally protected right . . . . The Court of Appeals did not address this

issue and neither do we, for the statutes are not unconstitutional [even] under the

standards of Central Hudson applied by the courts below.”). And although the Court

has said that a “public employee’s speech is entitled to Pickering [v. Bd. of Educ. of

Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968)] balancing only

when the employee speaks as a citizen upon matters of public concern,” City of San

Diego v. Roe, 543 U.S. 77, 83 (2004) (per curiam) (emphasis added) (internal

quotation marks omitted), which is a “threshold inquiry,” id. at 82, it bypassed that

inquiry altogether in Waters v. Churchill, 511 U.S. 661 (1994), see id. at 680 (“Even

if [the fired employee’s] criticism . . . was speech on a matter of public concern—

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something we need not decide—the potential disruptiveness of the speech as reported

was enough to outweigh whatever First Amendment value it might have had.”

(emphasis added)).

To be sure, there are some contexts in which the order of operations is

important, and courts err by disregarding that order. But when the Supreme Court

has insisted on a particular order, it has explained why the order is important. For

instance, under the since-rescinded rule of Saucier v. Katz, 533 U.S. 194 (2001),

abrogated in pertinent part by Pearson v. Callahan, 555 U.S. 223 (2009), courts

ruling on qualified immunity were required to decide the existence of a constitutional

violation before proceeding to consider whether, if a right had indeed been violated,

that right was clearly established. See id. at 201. The Court expressed concern that

if qualified immunity were regularly resolved on the clearly-established prong, the

development of constitutional law would suffer. See id. (explaining that by first

addressing the existence of a constitutional violation, courts facilitate “the law’s

elaboration from case to case” and that “[t]he law might be deprived of this

explanation were a court simply to skip ahead to the question whether the law clearly

established that the officer’s conduct was unlawful”). Likewise, in an initial

sentencing proceeding, “a district court should begin . . . by correctly calculating the

applicable Guidelines range” before proceeding to consider the § 3553(a) factors and

the parties’ arguments for any departure. Gall v. United States, 552 U.S. 38, 49

(2007); see United States v. Maynard, 984 F.3d 948, 956 (10th Cir. 2020).

Calculation of the guidelines range at the outset is essential to inform the sentencing

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judge of what a typical sentence is for similar offenses and similar defendants. See

Gall, 522 U.S. at 49 (“As a matter of administration and to secure nationwide

consistency, the Guidelines should be the starting point and the initial benchmark.”);

Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (“The Guidelines are

the framework for sentencing and anchor the district court’s discretion. Even if the

sentencing judge sees a reason to vary from the Guidelines, if the judge uses the

sentencing range as the beginning point to explain the decision to deviate from it,

then the Guidelines are in a real sense the basis for the sentence.” (citations, ellipsis,

and internal quotation marks omitted)); 18 U.S.C. § 3553(a)(6) (sentencing court

must consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct”).

Perhaps there is a reason why a court acting under § 3582(c)(2) must first

address whether the defendant’s guideline range has been changed by a

postsentencing amendment. (After all, the court needs to calculate the guideline

sentencing range before analyzing the effect of the § 3553(a) factors.) We will leave

that to further clarification by the Supreme Court. But even if there is justification

for requiring a specific order of analysis under that statutory provision, we see no

justification for requiring that the district court proceed under § 3582(c)(1)(A) in the

manner demanded by Hald and Sands.

One last comment on this issue. We emphasize that we are not saying that a

court can deny compassionate-release relief on the ground that release is not

appropriate under § 3553(a) if the court has not considered the facts allegedly

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establishing extraordinary and compelling reasons for release. As we have stated

above, those facts are relevant to the § 3553(a) analysis. But Hald and Sands have

not argued this type of error, and the records in the two cases do not support such a

claim. See Hald, 2020 WL 5548826, at *3 (“At this point, Defendant has served

approximately half of his sentence as he has served 104 months. Reducing his

sentence by half, even during the ongoing COVID-19 pandemic, does not further

sentencing objectives. The Court remains convinced that 210 months is an

appropriate sentence.” (emphasis added)); Sands II, 2020 WL 6343303, at *4 (“At

this time, Defendant has only served approximately half of his sentence and is not

expected to be released until 2033. Although Defendant has underlying conditions

increasing his risk of serious complications should he contract COVID-19, the

reduction of Defendant’s sentence in such a significant manner would not afford

adequate deterrence or punishment.” (emphasis added)).

We therefore conclude that the district courts committed no legal error in

resolving the motions by Hald and Sands by first addressing the § 3553(a) factors.

Because Hald does not argue that the district court abused its discretion in how it

weighed the § 3553(a) factors, we affirm its denial of his motion.9

As Hald appears to acknowledge, the district court cannot have erred in “fail[ing]

to conduct the second step of the § 3582(c)(1)(A) analysis,” Hald Aplt. Br. at 24,

when we have held that there is no applicable policy statement, see McGee, 992 F.3d

at 1050.

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Before we can affirm the district court’s denial of Sands’s motion, however,

we must also address some other issues he has raised with respect to the court’s

order. First, Sands argues that the district court erred by failing to mention his

“asthma as a severe medical condition,” by “misstat[ing] the number of counts of

conviction,” and by “cit[ing] [his] offense level as 38, without acknowledging that

[it] was retroactively reduced to 36.” Sands Aplt. Br. at 24 (citation omitted).

Second, he claims that the district court erred when it mistakenly referred to the first

§ 3553(a) factor as the “nature and circumstances of the offense and the history and

characteristics of the offense,” Sands II, 2020 WL 6343303, at *3 (emphasis added),

rather than “the nature and circumstances of the offense and the history and

characteristics of the defendant,” 18 U.S.C. § 3553(a)(1) (emphasis added). Third, he

contends that the district court “ignored” and “never accurately acknowledged” his

arguments for mitigation, including reclassification of his drug-possession

conviction, postsentencing rehabilitation, and letters submitted by family and friends.

Sands Aplt. Br. at 25. Finally, he argues that the district court erred by failing to

“seriously consider” that his request for compassionate release included placement on

home confinement as a condition of his current five-year term of supervised release

and the revision of his term of supervised release to add an additional five years

thereafter. Id.; see Sands R., Vol. 1 at 70–71.

We are not persuaded. This court is not in the business of grading the papers

of our very busy colleagues on the trial bench. Any reasonable reading of the district

court’s opinion would conclude that it properly performed its job in assessing

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Sands’s arguments. Regarding Sands’s first set of alleged errors, there would have

been little point in the district court’s mentioning Sands’s asthma since it had

accepted his contention that his “underlying conditions increase[ed] his risk of

serious complications should he contract COVID-19.” Sands II, 2020 WL 6343303,

at *4. Whether Sands’s very serious drug and firearms offenses were prosecuted in

five counts or six counts is so obviously inconsequential that the court’s miscount of

the numbers (although its opinion listed the five counts of conviction) is no more

reflective of the thoroughness of the court’s deliberations than a misspelling. Sands

has waived any argument based on the district court’s failure to mention the

retroactive reduction of his offense level by not making any effort to explain how that

failure affected the court’s decision, particularly when the court’s opinion twice

mentioned the later reduction in his sentence. And the district court’s misquote of

the final word of § 3553(a)(1)—substituting “offense” for “defendant”—after

correctly quoting the language earlier in its opinion undoubtedly is a simple

typographical error.

Nor has Sands established that the district court erred by failing to mention

some of his mitigation arguments or by failing to adequately consider his suggestion

of supervised release on the condition of home confinement. To be sure, when

imposing the original sentence, the district court must provide a statement of reasons.

See 18 U.S.C. § 3553(c). But as we noted in United States v. Chavez-Meza, 854 F.3d

655, 658 (10th Cir. 2017), aff’d 138 S. Ct. 1959 (2018), the provision at issue in that

case, § 3582(c)(2)—which is identical to § 3582(c)(1) in this respect—contains no

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such requirement. And since at initial sentencing we ordinarily do not require

“specific discussion of Section 3553(a) factors . . . for sentences falling within the

ranges suggested by the Guidelines,” United States v. Ruiz-Terrazas, 477 F.3d 1196,

1202 (10th Cir. 2007), it would seem to follow that nothing more detailed is required

to justify imposing or maintaining under either paragraph of § 3582(c) a sentence

within the recommended range of the applicable guidelines, see Chavez-Meza, 854

F.3d at 659 (addressing § 3582(c)(2)). In any event, “[a]t bottom, the sentencing

judge need only set forth enough to satisfy the appellate court that [s]he has

considered the parties’ arguments and has a reasoned basis for exercising [her] own

legal decisionmaking authority.” Chavez-Meza, 138 S. Ct. at 1964 (internal

quotation marks omitted). And that is certainly the case here. We think that the

points raised by Sands in mitigation are hardly such “substantial contentions” as to

demand a written explanation by the court. United States v. Lopez-Flores, 444 F.3d

1218, 1222 (10th Cir. 2006). The court’s failure to mention these matters in its

opinion can be easily explained by their being “typical” and therefore already

incorporated into the Sentencing Commission’s reasoning (adopted by the sentencing

court) of what the usual sentencing range should be. Chavez-Meza, 138 S. Ct. at

1964 (internal quotation marks omitted). Sands does not explain why the contents of

the letters from family and friends provide convincing reasons for reducing his

sentence (certainly not by half); the only evidence he mentions of postsentencing

rehabilitation is that he served “as a UNICOR maintenance worker, and had

completed a number of BOP programs (including a drug education program),” Aplt.

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Br. at 9; and he has failed to explain the relevance of the fact that § 401(a) of the

First Step Act of 2018, Pub. L. 115–391, 132 Stat. 5194, 5220–21 (which does not

apply to persons previously sentenced, see id. § 401(c), 132 Stat. 5221) would reduce

the minimum sentence that could be imposed, especially when his guidelines range

and sentence (384 months after the 2015 reduction in his sentence) were significantly

above the previous statutory minimum of 300 months. As for Sands’s suggestion of

home confinement, his contention is only that the sentencing judge failed to

“seriously consider” the suggestion, id. at 25, which amounts to nothing more than a

complaint that the judge did not agree with him.

Having disposed of Sands’s remaining arguments, we affirm the district

court’s order denying his request for compassionate release under § 3582(c)(1)(A).

Wesley’s Motion

Proceeding pro se, Wesley raises several arguments in his appeal from the

district court’s denial of his request for compassionate release and denial of his

motion for reconsideration.10 First, he contends that “[t]he district court abused its

discretion in determining that [he] had not demonstrated extraordinary and

compelling circumstances to support compassionate release.” Wesley Aplt. Br. at 3a.

But the district court ultimately did not rely on that determination. In denying

Wesley’s motion for reconsideration, the district court stated that “even if the court

Because Wesley is a pro se litigant, we construe his appellate “pleadings and other

papers liberally and hold them to a less stringent standard than those drafted by

attorneys.” Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007).

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found that Mr. Wesley had established extraordinary and compelling reasons for

release, the court would nonetheless deny the motion based on the § 3553(a) factors.”

Wesley III, 2020 WL 5848897, at *2. As stated above, if a district court properly

denies compassionate release because of the § 3553(a) factors, it is irrelevant how the

court viewed whether the defendant had demonstrated extraordinary and compelling

circumstances.

Next, Wesley argues that the district court abused its discretion in its

consideration of the § 3553(a) factors, both by failing to adequately explain its

reasoning and by incorrectly weighing the individual factors. But, for the reasons

stated above in rejecting Sands’s similar argument, we see no merit to the adequateexplanation argument. See Chavez-Meza, 138 S. Ct. at 1964; Chavez-Meza, 854 F.3d

at 658–59; Lopez-Flores, 444 F.3d at 1222. The district court listed the six

potentially applicable § 3553(a) factors11 before concluding that they required denial

of Wesley’s motion. See Wesley III, 2020 WL 5848897, at *2. We have no reason to

doubt that the district court in fact considered those factors, and nothing more was

required. And the district court was not required to consider, as Wesley argues, that

the applicable Sentencing Commission policy statement, USSG § 1B1.13, supports

compassionate release because he does not pose “a danger to the safety of any other

The seventh factor, “the need to provide restitution to any victims of the offense,”

18 U.S.C. § 3553(a)(7), is inapplicable to Wesley.

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person or to the community.” This court has held that § 1B1.13 is inapplicable to

§ 3582(c)(1)(A) motions filed directly by defendants. See McGee, 992 F.3d at 1050.

We also reject Wesley’s claim that the district court abused its discretion in

analyzing any of the individual § 3553(a) factors. Because the weighing of the

§ 3553(a) factors is committed to the discretion of the district court, we cannot

reverse “unless we have a definite and firm conviction that the lower court made a

clear error of judgment or exceeded the bounds of permissible choice in the

circumstances.” Chavez-Meza, 854 F.3d at 659 (internal quotation marks omitted).

Since the court had determined that Wesley was “accountable for more than 150

kilograms of cocaine” and had possessed a firearm, Wesley III, 2020 WL 5848897, at

*3, we see no error in the court’s decision that the seriousness of the offense and the

need to provide adequate deterrence weighed against compassionate release and see

no reason why these factors should necessarily be outweighed by Wesley’s relatively

minor preexisting criminal history or his unspecified efforts at rehabilitation while in

prison.

Finally, we reject Wesley’s argument that the denial of relief for him created

an “unwarranted sentenc[ing] disparit[y] among defendants with similar records who

have been found guilty of similar conduct,” 18 U.S.C. § 3553(c)(6), because of grants

of compassionate release to defendants Jeffrey Plank, Kenneth Rayford, and James

Riccardi by the same judge who denied release to him. See United States v. Plank,

No. 17-20026-JWL, 2020 WL 3618858, at *1 (D. Kan. July 2, 2020); United States v.

Rayford, No. 09-20143-01-JWL, 2020 WL 4335013, at *1 (D. Kan. July 28, 2020);

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United States v. Riccardi, No. 02-20060-JWL, 2020 WL 4260636, at *1 (D. Kan.

July 24, 2020). A comparison of the orders granting relief to Plank and denying

relief to Wesley show that the court considered Wesley’s criminal activity to be much

more serious than Plank’s. And both Rayford and Riccardi had already served a

much greater percentage of their sentences than Wesley had. Compare Rayford,

2020 WL 4335013, at *1 (projected 15 months remaining on 168-month sentence)

and Riccardi, 2020 WL 4260636, at *1 (projected 13 months remaining on 262month sentence) with Wesley III, 2020 WL 5848897, at *1 (projected 160 months

remaining on 360-month sentence). We are not left with “a definite and firm

conviction that the [district] court made a clear error of judgment or exceeded the

bounds of permissible choice in the circumstances.” Chavez-Meza, 854 F.3d at 659

(internal quotation marks omitted). If anything, the judge’s grant of compassionate

release in three other cases increases our confidence that he has given careful

attention to the specific facts in each case. Accordingly, we affirm.

IV.

CONCLUSION

We AFFIRM the denials by the district courts of Hald’s motion for early

release, Sands’s motion for early release, and Wesley’s motions for early release and

for reconsideration. We GRANT Wesley’s motion to proceed in forma pauperis.

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

Plaintiff,

vs.

Case No. 11-10227-01-EFM

JAMES A. HALD,

Defendant.

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant’s Motion to Reduce Sentence (Doc. 63).

He seeks early release from prison due to having underlying health conditions that make him

susceptible to contracting COVID-19. The government opposes Defendant’s motion. For the

reasons stated in more detail below, the Court denies Defendant’s motion.

Factual and Procedural Background

On March 26, 2012, Defendant pleaded guilty to Conspiracy to Distribute and Possess with

the Intent to Distribute 50 grams or more of Methamphetamine, in violation of 21 U.S.C. § 846.

On that same date, Defendant was sentenced to 210 months imprisonment. Defendant is 53 years

old, and he is currently incarcerated at Fort Worth FMC. There have been 587 positive cases, and

Appendix B

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12 inmates have died in the facility in which Defendant is housed.1 Currently, there are 23 active

inmate cases and 9 active staff cases. Defendant’s projected release date is October 9, 2026.

On July 7, 2020, Defendant filed an emergency motion seeking to reduce his sentence due

to the risk of contracting COVID-19 in prison.2 He states that he suffers from a combination of

medical ailments that make him more susceptible to serious complications from COVID-19.

Defendant also contends that the situation at FMC Fort Worth is dire. The government opposes

the motion.

II.

Legal Standard

The First Step Act amended the compassionate release statute, 18 U.S.C. § 3582(c)(1)(A),

to allow a defendant to file his own motion for release.3 It allows defendants to seek early release

from prison provided certain conditions are met. First, “a criminal defendant may file a motion

for compassionate release only if: ‘(1) he has exhausted all administrative rights to appeal the

[Bureau of Prisons’ (“BOP”)] failure to bring a motion on his behalf, or (2) 30 days have passed

since the warden of his facility received his request for the BOP to file a motion on his behalf.’ ”4

The administrative exhaustion requirement is jurisdictional and cannot be waived.5

Federal Bureau of Prisons, COVID-19 Coronavirus: COVID-19 Cases, https://www.bop.gov/coronavirus/

(last visited September 14, 2020).

The Federal Public Defender filed a motion on behalf of Defendant.

See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).

United States v. Boyles, 2020 WL 1819887, at *2 (D. Kan. 2020) (citing United States v. Alam, 2020 WL

1703881, at *2 (E.D. Mich. 2020)); see also 18 U.S.C. § 3582(c)(1)(A).

See United States v. Johnson, 766 F. App’x 648, 650 (10th Cir. 2019) (holding that without an express

statutory authorization, a court lacks jurisdiction to modify a sentence); United States v. Read-Forbes, --- F. Supp. 3d

---, 2020 WL 1888856, at *3–4 (D. Kan. 2020) (examining the text, context, and historical treatment of § 3582(c)’s

subsections to determine that the exhaustion requirement is jurisdictional); Boyles, 2020 WL 1819887, at *2

(determining that exhaustion of administrative remedies is a prerequisite for the court’s jurisdiction); cf. United States

v. Younger, 2020 WL 3429490, at *3 (D. Kan. 2020) (reasoning that the Sixth Circuit’s approach articulated in United

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Next, if a defendant satisfies the exhaustion requirement, the Court may reduce the

defendant’s sentence, after considering the factors set forth in 18 U.S.C. § 3553(a) to the extent

they are applicable, if the Court determines: (1) “extraordinary and compelling reasons warrant

such a reduction;” or (2) “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) . . . and a determination has been

made by the Director of the [BOP] that the defendant is not a danger to the safety of any other

person or the community.”6 Finally, the Court must ensure that any reduction in Defendant’s

sentence under this statute is “consistent with applicable policy statements issued by the

Sentencing Commission.”7

III.

Analysis

Defendant seeks early release based on underlying health conditions and the risk of

contracting serious complications from COVID-19 in prison.

The government asserts that

Defendant is not an appropriate candidate for early release.

Exhaustion

Defendant has satisfied the exhaustion requirement described in § 3582(c). He requested

compassionate release from the Warden at FMC Fort Worth on June 2, 2020. Confirmation of that

request was received the same day. As of July 7, 2020, Defendant had not received a response

States v. Alam, 960 F.3d 831 (6th Cir. 2020), is “highly persuasive,” and concluding that § 3582(c)(1)(A)’s exhaustion

requirement is a claims-processing rule).

18 U.S.C. § 3582(c)(1)(A)(i)-(ii).

Id.; see also Dillon v. United States, 560 U.S. 817, 819 (2010) (holding that the Sentencing Commission’s

policy statement regarding 18 U.S.C. § 3582(c)(2) remains mandatory in the wake of United States v. Booker, 543

U.S. 220 (2005)).

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from the Warden. Thus, because more than 30 days have passed since Defendant’s request, the

Court has jurisdiction to decide his motion.

Extraordinary and Compelling Reasons

Having determined that Defendant exhausted his administrative remedies, the Court next

considers whether Defendant’s underlying medical conditions of hypertension, Hepatitis C, and

obesity, coupled with the outbreak of COVID-19 in FMC Fort Worth, constitutes an extraordinary

and compelling reason warranting a sentence reduction under § 3582(c)(1)(A). Obesity is listed

by the Centers for Disease Control and Prevention (“CDC”) as one condition that is at increased

risk for severe illness from COVID-19.8

Hypertension is listed as a condition that may cause

increased risk.9 While Hepatitis C is not listed, Defendant has at least two underlying conditions

that increase his risk of serious complications should he contract COVID-19. Thus, the Court

finds that these medical conditions, in tandem with the COVID-19 pandemic, may present an

extraordinary and compelling reason. Accordingly, the Court will move on to consider the

§ 3553(a) factors.

Section 3553(a) Factors

The Court must consider the sentencing factors enumerated in 18 U.S.C. § 3553(a) “to the

extent that they are applicable” when determining whether a sentence reduction is appropriate.10

Some of the § 3553(a) factors include the nature and circumstances of the offense; the need for the

CDC, People with Certain Medical Conditions, https://www.cdc.gov/coronavirus/2019-ncov/need-extraprecautions/people-with-medical-conditions.html (last visited September 14, 2020).

Id.

18 U.S.C. § 3582(c)(1) (stating that the court should consider the factors set forth in § 3553(a) when

determining the length of imprisonment).

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sentence imposed to reflect the seriousness of the offense, afford adequate deterrence, and protect

the public from future crimes by the defendant; and the need to avoid unwarranted sentence

disparities.11

Defendant pleaded guilty to the serious offense of conspiracy to distribute and possess with

the intent to distribute 50 grams or more of methamphetamine. The sentencing guideline range,

based on Defendant’s criminal history and offense level, was 360 months to life. This Court

rejected the parties’ Rule 11(c)(1)(C) plea agreement of 180 months, which was only half of the

recommended sentence guideline, and instead sentenced Defendant to 210 months.

At this point, Defendant has served approximately half of his sentence as he has served 104

months. Reducing his sentence by half, even during the ongoing COVID-19 pandemic, does not

further sentencing objectives. The Court remains convinced that 210 months is an appropriate

sentence.

Contrary to Defendant’s contention that his offense was non-violent, the overall

circumstances surrounding it were not. The Sedgwick County Sheriff’s Department conducted an

investigation into Defendant’s criminal conduct for approximately ten months in 2011. During

that time, Defendant was found to be in the possession of drugs, and arrested, multiple times. In

the course of one arrest, Defendant engaged the police in a car chase, crashed his vehicle, and then

continued to try and evade capture. Defendant was also in possession of brass knuckles during

another arrest.

Defendant’s criminal history spans twenty-five years. In addition, Defendant committed

the offense, for which he was sentenced in this Court, while he was on parole for the offenses of

18 U.S.C. § 3553(a).

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criminal threat and driving while license suspended. Indeed, Defendant’s guideline range was 360

months to life.

The Court recognizes that Defendant appears to have performed well in prison. He reduced

his custody level to low, completed education courses and drug programs, and recently obtained a

letter from the Health Services Administrator at FMC Fort Worth who gave recognition to

Defendant’s help during the COVID-19 pandemic recovery process at that facility. Defendant is

to be commended for these positive efforts and changes.

Reducing Defendant’s sentence,

however, to time served would not reflect the seriousness of Defendant’s criminal conduct or his

criminal history. Nor would it provide adequate deterrence or appropriate punishment. The Court

finds that the 210-month sentence originally imposed remains sufficient, but not greater than

necessary, to meet the sentencing factors in § 3553(a) and punish the offense involved.

Accordingly, the Court finds that Defendant does not demonstrate an extraordinary and compelling

reason warranting sentence reduction and an early release from prison.

IT IS THEREFORE ORDERED that Defendant’s Motion to Reduce Sentence (Doc. 63)

is DENIED.

IT IS SO ORDERED.

Dated this 16th day of September, 2020.

ERIC F. MELGREN

UNITED STAES DISTRICT JUDGE

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 06-20044-03-JAR

WALTER B. SANDS,

Defendant.

MEMORANDUM AND ORDER

This matter comes before the Court on Defendant Walter B. Sands Motion for

Compassionate Release (Doc. 247). For the reasons provided below, Defendant’s motion is

denied.

Background

On February 16, 2007, Defendant was convicted by jury of : (1) conspiracy to possess

with intent to distribute at least fifty grams of methamphetamine; (2) possession with intent to

distribute or distribution of at least five grams of methamphetamine; (3) possession with the

intent to distribute at least fifty grams of methamphetamine; (4) use of a firearm in furtherance of

a drug trafficking crime; and (5) being a felon in possession of a firearm.1 On September 24,

2008, Defendant was sentenced to 420 months imprisonment, a ten-year term of supervised

release, and a $100 special assessment.2

Doc. 123.

Doc. 183.

Appendix C

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The Tenth Circuit dismissed Defendant’s appeal and affirmed his convictions and

sentence.3 Defendant filed a postconviction petition under 28 U.S.C. § 2255, which was denied.4

The Tenth Circuit denied Defendant a certificate of appealability and dismissed the § 2255

appeal.5 Defendant’s sentence was reduced on February 10, 2015, from 420 months to 384

months imprisonment.6

Defendant is currently incarcerated at Edgefield FCI. The Bureau of Prisons (“BOP”)

reports 102 inmates at that facility have tested positive for COVID-19, 837 inmates have been

tested, and one inmate has died.7 There is one active inmate case, sixteen active staff cases, and

six tests remain pending.8 Defendant is 48 years old, and his projected release date is July 25,

2033.

On July 20, 2020, Defendant filed a motion requesting compassionate release due to his

underlying medical conditions of obesity, diabetes, hypertension, and sleep apnea and the risk of

severe complications or death should he contract COVID-19 while in prison. He requests that

his sentence be reduced to time served. He then requests that as a condition of supervised

release, he be placed on home confinement for five years, and have an additional five years

added to his ten-year term of supervised release. Defendant is represented by counsel.

II.

Legal Standards

Doc. 205.

Docs. 214, 235.

Doc. 243.

Doc. 246.

Federal Bureau of Prisons, COVID-19 Coronavirus: COVID-19 Cases, https://www.bop.gov/coronavirus

(last accessed October 23, 2020).

Id.

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“[I]t is well-settled that ‘[a] district court is authorized to modify a [d]efendant’s sentence

only in specified instances where Congress has expressly granted the court jurisdiction to do

so.’”9 Section 3582(c) permits a court to modify a term of imprisonment for compassionate

release only if certain exceptions apply. Until recently, these exceptions required the BOP to

move on a defendant’s behalf. In 2018, however, the First Step Act modified the compassionate

release statute, permitting a defendant to bring his own motion for relief.10 But a defendant may

bring a motion for compassionate release from custody only if he “has fully exhausted all

administrative rights to appeal a failure of the [BOP] to bring a motion on [his] 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. . . .”11 Unless a defendant meets this exhaustion requirement, the court

lacks jurisdiction to modify the sentence or grant relief.12

Where a defendant has satisfied the exhaustion requirement, a court may reduce the

defendant’s proposed sentence, after considering the factors set forth in 18 U.S.C. § 3553(a) to

the extent they are applicable, if the court determines: (1) “extraordinary and compelling reasons

warrant such a reduction”; or (2) “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) . . . and a determination

United States v. White, 765 F.3d 1240, 1244 (10th Cir. 2014) (quoting United States v. Blackwell, 81 F.3d

945, 947 (10th Cir. 1996)).

First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).

18 U.S.C. § 3582(c)(1)(A).

United States v. Johnson, 766 F. App’x 648, 650 (10th Cir. 2019) (holding that without an express

statutory authorization, a court lacks jurisdiction to modify a sentence); see also United States v. Walker, No. 1310051-EFM, 2020 WL 2101369, at *2 (D. Kan. May 1, 2020) (“The administrative exhaustion requirement is

jurisdictional and cannot be waived.”); see also United States v. Read-Forbes, 454 F. Supp. 3d 1113, 1116–17 (D.

Kan. Apr. 16, 2020) (analyzing the text, context, and historical treatment of § 3582(c)’s subsections to determine the

exhaustion requirement is jurisdictional). Cf. United States v. Younger, No. 16-40012-DDC, 2020 WL 3429490, at

*3 (D. Kan. June 23, 2020) (reasoning that, absent direct guidance from the Tenth Circuit, the Sixth Circuit’s

approach articulated in United States v. Alam, 960 F.3d 831 (6th Cir. 2020), is “highly persuasive,” and concluding

that § 3582(c)(1)(A)’s exhaustion requirement is a claims-processing rule).

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has been made by the Director of the [BOP] that the defendant is not a danger to the safety of

any other person or the community.”13 In addition, a court must ensure that any reduction in a

defendant’s sentence under this statute is “consistent with applicable policy statements issued by

the Sentencing Commission.”14

The Sentencing Commission’s policy statement pertaining to sentence reductions under

18 U.S.C. § 3582(c)(1)(A) is found at U.S.S.G. § 1B1.13. The comments to § 1B1.13

contemplate four categories of extraordinary, compelling circumstances: (1) the defendant is

suffering from a terminal illness, i.e., a serious, advanced illness with an end-of-life trajectory;

(2) the defendant is suffering from a serious physical or medical condition, serious functional or

cognitive impairment, or deteriorating physical or mental health because of the aging process

that substantially diminishes the ability of the defendant to provide self-care within the

environment of a correctional facility and from which the defendant is not expected to recover;

(3) the defendant is at least 65 years old, is experiencing a serious deterioration in physical or

mental health because of the aging process, and has served at least ten years or seventy-five

percent of the term of imprisonment, whichever is less; and (4) the defendant needs to serve as a

caregiver for a minor child, spouse, or registered partner.15 A defendant requesting

compassionate release bears the burden of establishing that compassionate release is warranted

under the statute.16

18 U.S.C. § 3582(c)(1)(A).

Id.; see also Dillon v. United States, 560 U.S. 817, 819 (2010) (holding the Sentencing Commission

policy statement regarding 18 U.S.C. § 3582(c)(2) remains mandatory in the wake of United States v. Booker, 543

U.S. 220 (2005)).

U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.1 (U.S. Sentencing Comm’n 2018).

See United States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016) (finding that defendant bears the burden of

demonstrating entitlement to relief under § 3582(c)(2)); United States v. Bright, No. 14-10098-JTM, 2020 WL

473323, at *1 (D. Kan. Jan. 29, 2020) (noting that the “extraordinary and compelling” standard imposes a heavy

burden on an inmate seeking compassionate release under § 3582(c)(1)(A)).

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Discussion

A. Exhaustion

Defendant has satisfied the exhaustion requirement described in § 3582(c). Defendant

sent a letter to the Warden on June 10, 2020 requesting compassionate release. As of July 20,

2020, the date Defendant filed his motion in this Court, more than 30 days had passed. In

addition, the government does not dispute that Defendant has satisfied the applicable exhaustion

requirement. Thus, because more than thirty days have passed since Defendant filed his request

with the Warden, this Court has jurisdiction to decide Defendant’s motion.

B. Extraordinary and Compelling Reasons

Having determined that Defendant has properly exhausted administrative remedies, the

Court must next determine whether extraordinary and compelling reasons warrant reducing

Defendant’s sentence to time served. Congress permitted the Sentencing Commission to

“describe what should be considered extraordinary and compelling reasons for sentence

reduction, including the criteria to be applied and a list of specific examples.”17 The Sentencing

Commission, in its commentary to U.S.S.G. § 1B1.13, has enumerated four categories of

circumstances which may constitute extraordinary relief.18

Here, Defendant asserts that his circumstances constitute extraordinary, compelling

reasons to reduce his sentence. He contends that his underlying health conditions of obesity,

diabetes, hypertension, and sleep apnea, and the outbreak of COVID-19 in prison, makes him

more susceptible to serious illness or death should he contract COVID-19. The government

concedes that per Department of Justice (“DOJ”) policy and Centers for Disease Control and

28 U.S.C. § 994(t).

U.S. Sentencing Guidelines Manual § 1B1.13 cmt. n.1 (U.S. Sentencing Comm’n 2018).

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Prevention (“CDC”) guidance, Defendant’s medical conditions, in the context of the COVID-19

pandemic, constitute an extraordinary and compelling reason. The government contends,

however, that when balanced with the § 3553(a) factors, Defendant fails to demonstrate a

situation so severe that release is warranted. Accordingly, the Court will move on to consider the

§ 3553(a) factors.

Section 3553(a) Factors

The Court next considers whether Defendant’s reduction would comply with the

sentencing factors enumerated in 18 U.S.C. § 3553(a). That statutes requires courts to “impose a

sentence sufficie

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