Petition for Writ of Certiorari — Louis A. Wilson, Petitioner v. United States

Supreme Court briefNov 20, 2023

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APPENDIX

TABLE OF CONTENTS

Page

Appendix A – D.C. Circuit Opinion Affirming

Denial of Wilson’s Emergency Motion to

Reduce Sentence under the First Step Act

for Compassionate Release (July 21, 2023) .....1a

Appendix B – D.D.C. Memorandum Opinion

and Order Denying Emergency Motion to

Reduce Sentence under the First Step Act

for Compassionate Release (Aug. 6, 2021,

ECF No. 394) ...................................................11a

Appendix C – D.D.C. Memorandum Opinion

and Order Denying Wilson’s Motion for

Reconsideration (Sept. 28, 2021, ECF No.

396) ..................................................................28a

Appendix D – D.C. Circuit Judgment Opinion

Affirming Denial of Wilson’s Emergency

Motion to Reduce Sentence under the First

Step Act for Compassionate Release (July

21, 2023) ..........................................................31a

Appendix E – Relevant Statutes ..........................33a

18 U.S.C. § 3582.................................................33a

18 U.S.C. app. § 1B1.13 (Nov. 1, 2023) .............41a

APPENDIX A

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______

Argued September 29, 2022

Decided July 21, 2023

No. 21-3074

UNITED STATES OF AMERICA,

APPELLEE

LOUIS A. WILSON, ALSO KNOWN AS SPUDS,

APPELLANT

_______

Appeal from the United States District Court

for the District of Columbia

(No. 1:96-cr-00319-1)

_______

Anthony F. Shelley argued the cause and filed the

memorandum of law and fact and reply for appellant.

Alexandra E. Beaulieu entered an appearance.

David P. Saybolt, Assistant U.S. Attorney, argued

the cause for appellee. With him on appellee’s

memorandum of law and fact were Chrisellen R. Kolb

and John P. Mannarino, Assistant U.S. Attorneys.

Before: CHILDS, Circuit Judge, and ROGERS, Senior

Circuit Judge.†

Opinion for the Court filed by Circuit Judge

CHILDS.

CHILDS, Circuit Judge: Louis Wilson appeals the

denial of his motion for compassionate release made

pursuant to 18 U.S.C. § 3582(c)(1)(A). First Step Act

of 2018, Pub. L. No. 115-391, § 602(b)(1), 132 Stat.

5194, 5239 (2018) (codified at 18 U.S.C. §

3582(c)(1)(A)). He argues that intervening changes in

law, in combination with other factors, warrant that

his motion be granted.

Wilson waited the required time of thirty days

after the warden received his initial request for

compassionate release, but chose not to bring it on his

behalf, to file his own motion in district court. That

motion included additional grounds for his release,

like his increased weight and a change in sentencing

law, not found in his request to the warden. See Req.

for Compassionate Release 1–2.

The government maintains that Wilson failed to

properly exhaust his administrative remedies as to

these additional grounds such that the court may not

consider Wilson’s contentions on the merits. This

Court, however, assumes without deciding that

Wilson properly exhausted his administrative

†

Senior Circuit Judge Silberman was a member of the

panel before his death on October 2, 2022. Judges

Childs and Rogers have acted as a quorum in this

opinion. See 28 U.S.C. § 46(d).

remedies and nonetheless affirms the district court’s

denial of Wilson’s motion.

We hold that Section 3582(c)(1)(A) is not

jurisdictional because Congress did not use express

language making it so.

And per United States v. Jenkins, 50 F.4th 1185,

1192, 1198 (D.C. Cir. 2022), Wilson’s change in law

arguments cannot constitute extraordinary and

compelling reasons, whether alone or in combination

with other factors.

A court can grant a defendant compassionate

release from prison if they meet certain criteria. 18

U.S.C. § 3582(c)(1)(A). They must demonstrate, in the

court’s judgment, an extraordinary and compelling

reason for release. Id. (c)(1)(A)(i). And that reason

must be consistent with the various factors Congress

instructs courts to consider when sentencing

defendants. Id. (c)(1)(A)(ii); 18 U.S.C. § 3553(a).

But before defendants may file a motion for

compassionate release, they must first exhaust their

administrative remedies. Two pathways are available

for them to do so. 18 U.S.C. § 3582(c)(1)(A). Either is

sufficient. Id. First, defendants can “fully exhaust[]

all administrative rights [by] appeal[ling] a failure of

the Bureau of Prisons to bring a motion on the

defendant’s behalf.” Id. Alternatively, they may file a

motion for compassionate release “30 days from the

receipt of such a request [to] the warden.” Id.

In 1997, Wilson was convicted of several federal

crimes, including killing a federal witness with the

intent to prevent him from testifying. Wilson is

serving a sentence of life imprisonment plus one

consecutive five-year term.

On September 18, 2020, Wilson first submitted his

request for compassionate release to the warden at

Federal Correction Institution (FCI) Petersburg. The

warden denied the request on October 6, 2020. On

April 7, 2021, 201 days after submitting his request,

Wilson filed a pro se motion for compassionate release

in the district court. In that motion, Wilson added

factors not included in his request to the warden, such

as his increased “weight” and “length of time served.”

See Req. for Compassionate Release 1–2. The

government argued that Wilson did not properly

exhaust his administrative remedies as to those

additional grounds under Section 3582(c)(1)(A) but

nonetheless addressed them. United States v. Wilson,

No. CR 96-319-01, 2021 WL 107 5292457, at *3 n.4

(D.D.C. Aug. 6, 2021), recons. denied, 2021 WL

5292460 (D.D.C. Sept. 28, 2021). The district court

considered the merits of these additional grounds and

did not deny the motion for failure to issue exhaust.

Id. (citation omitted); see also id. at *4–6.

Wilson maintains that the following extraordinary

and compelling reasons support his release: (i) if

United States v. Booker, 543 U.S. 220 (2005), and

Apprendi v. New Jersey, 530 U.S. 466 (2000), were

issued prior to his sentence, he would have received

twenty-five years instead of life imprisonment

because the district court considered additional facts

during sentencing not proven to a jury; (ii) the

national sentencing statistics for murder have

trended downward; and (iii) his medical conditions

plus his exemplary prison citizenship.

Wilson argued to the district court that the

purported intervening changes in law went to his

length of time served and should constitute

extraordinary and compelling reasons. The district

court concluded, however, that time served in prison

“does not in [and] of itself constitute an extraordinary

and compelling circumstance.” Wilson, 2021 WL

5292457, at *3; see also id. at *4–6. After considering

the Section 3553(a) factors, the district court also

decided that “the severity of his crime, the need for

the sentence imposed, and the risk to the public

outweigh[ed] th[e] factors that weigh[ed] in Mr.

Wilson’s favor.” Id. at *6. Thus, the district court

denied Wilson’s motion.

Wilson timely appealed. On appeal, Wilson also

contends that if the district court failed to consider his

change in law arguments as extraordinary and

compelling reasons under Section 3582(c)(1)(A)(i),

they should have been considered under the district

court’s Section 3553(a) analysis. Appellant’s Mem. Br.

17–18.

II.

We have jurisdiction to review this appeal. 28

U.S.C. § 1291; United States v. Long, 997 F.3d 342,

352 (D.C. Cir. 2021). This Court reviews the district

court’s denial of Wilson’s motion for compassionate

release for abuse of discretion. United States v.

Jackson, 26 F.4th 994, 1001 (D.C. Cir. 2022); see also

United States v. Smith, 896 F.3d 466, 470 (D.C. Cir.

2018).

III.

Because this Court cannot assume it has

jurisdiction, we first answer whether Section

3582(c)(1)(A) is jurisdictional. Steel Co. v. Citizens for

a Better Env’t, 523 U.S. 83, 94 (1998). Joining our

sister circuits that have considered the question, we

think not and thus address the merits of Wilson’s

contention

without

deciding

whether

issue

exhaustion is required under Section 3582(c)(1)(A).

Begin with the text. Section 3582 (c)(1)(A)

provides:

(1) [I]n 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[.]

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

Jurisdictional rules “govern a court’s adjudicatory

authority,” Gonzalez v. Thaler, 565 U.S. 134, 141

(2012) (quotations and citation omitted), while

nonjurisdictional claim-processing rules simply

“promote the orderly progress of litigation . . . . ”

Henderson v. Shinseki, 562 U.S. 428, 435 (2011).

Congress must “clearly state[]” when a provision is

jurisdictional. Fort Bend Cnty. v. Davis, 139 S. Ct.

1843, 1850 (2019) (internal quotations and citation

omitted). Thus, the question of whether a statutory

provision is jurisdictional is governed by a “clear

statement” rule where the statute must “expressly

refer to subject-matter jurisdiction or speak in

jurisdictional terms.” Musacchio v. United States, 577

U.S. 237, 246 (2016). That high standard makes sense

because “[j]urisdictional requirements cannot be

waived or forfeited, must be raised by courts sua

sponte, and . . . do not allow for equitable exceptions.”

Boechler, P.C. v. Comm’r of Internal Revenue, 142 S.

Ct. 1493, 1497 (2022).

Absent Congress’s clear command, mandatory

language does not transform a statutory provision

into a jurisdictional requirement. Musacchio, 577

U.S. at 246; United States v. Wong, 575 U.S. 402, 410

(2015). For example, in Wilkins v. United States, 143

S. Ct. 870, 875 (2023), the Court considered whether

Section 2409a(g), a provision of the Quiet Title Act,

was jurisdictional. The provision at issue stated that

action “shall be barred unless it is commenced within

twelve years of the date upon which it accrued.” 28

U.S.C. § 2409a(g). Yet, the Court held that it was

nonjurisdictional not only because the “text sp[oke]

only to a claim’s timeliness,” but also because the

provision was placed outside of the jurisdictional

grant section of the statute. Wilkins, 143 S. Ct. at 877

(citation omitted). In Boechler, a provision of the Tax

Code stated that, “The person may, within 30 days of

a determination under this section, petition the Tax

Court for review of such determination (and the Tax

Court shall have jurisdiction with respect to such

matter).” 26 U.S.C. § 6330(d)(1). Because “to such

matter[,]” id., lacked a clear antecedent and contained

“multiple plausible interpretations,” the Court still

held that the provision was nonjurisdictional.

Boechler, P.C., 142 S. Ct. at 1498. And this Court

“presume[s] [that an administrative] exhaustion

[requirement] is non-jurisdictional unless Congress

states in clear, unequivocal terms that the judiciary

is barred from hearing an action until the

administrative agency has come to a decision . . . .”

Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1248

(D.C. Cir. 2004) (quotations and citation omitted).

Here, Section 3582(c)(1)(A) is a nonjurisdictional

claim-processing rule. Congress did not speak clearly

that this provision is jurisdictional, Fort Bend, 139 S.

Ct. at 1850, nor does it appear in the jurisdictional

portion of the criminal code. See 18 U.S.C. § 3231.

Nothing in Section 3582(c)(1)(A) uses any mandatory

language that would deprive this Court of jurisdiction

should the defendant fail to satisfy either exhaustion

pathway. 18 U.S.C. § 3582(c)(1)(A). Therefore, the

plain text of Section 3582(c)(1)(A) does not permit this

Court to infer that Congress intended it to be

jurisdictional.

Every circuit to have considered this question

agrees. United States v. Texeira-Nieves, 23 F.4th 48,

52–53 (1st Cir. 2022); United States v. Saladino, 7

F.4th 120, 121–24 (2d Cir. 2021); United States v.

Muhammad, 16 F.4th 126, 129–30 (4th Cir. 2021);

United States v. Franco, 973 F.3d 465, 467–68 (5th

Cir. 2020), cert. denied, 141 S. Ct. 920 (2020); United

States v. Alam, 960 F.3d 831, 833–34 (6th Cir. 2020);

United States v. Gunn, 980 F.3d 1178, 1179 (7th Cir.

2020); United States v. Houck, 2 F.4th 1082, 1084 (8th

Cir. 2021); United States v. Keller, 2 F.4th 1278,

1281–82 (9th Cir. 2021); United States v.

Hemmelgarn, 15 F.4th 1027, 1030–31 (10th Cir.

2021).

Since we conclude that Section 3582(c)(1)(A) is a

nonjurisdictional claim-processing rule, we need not

reach whether it requires defendants to exhaust each

issue in their submitted requests before the warden

before filing in district court. See Texeira-Nieves, 23

F.4th at 53. Instead, this Court assumes without

deciding that Wilson properly exhausted as to each of

his grounds for compassionate release.

We next answer whether Wilson’s change in law

arguments can be extraordinary and compelling

reasons warranting compassionate release. They

cannot. Accordingly, this Court need not reach

Wilson’s contention that his change in law arguments

should still be considered as Section 3553(a) factors

because, under Jenkins, the district court did not

abuse its discretion in denying Wilson’s motion for

lack of an extraordinary and compelling reason. 50

F.4th at 1198.

10a

Nevertheless, we recognize that since this Court

decided Jenkins, the United States Sentencing

Commission amended its guidelines regarding what

constitutes an extraordinary and compelling reason

for release. 88 Fed. Reg. 28,254 (May 3, 2023). That

update will become effective on November 1, 2023. Id.

at 28,254/1. The guidelines state that district courts

“may . . . consider[]” a “change in the law” to

“determine[] whether the defendant presents an

extraordinary and compelling reason” for release if he

has “served at least 10 years” of “an unusually long

sentence.” Id. at 28,255/2. However, this Court does

not decide whether Wilson’s contentions would

constitute extraordinary and compelling reasons

under the not-yet-effective guidelines.

Wilson largely relays the same argument as this

Court rejected in Jenkins: if Booker, 543 U.S. at 224,

and Apprendi, 530 U.S. at 483–84, were issued before

his conviction, he would have received a twenty-fiveyear sentence, instead of a life sentence. He then

supplements that position with additional claims

about general downward nationwide trends for

murder sentences, his overall medical conditions, and

his exemplary prison citizenship. But intervening

judicial decisions, regardless of whether they are

combined with other factors, are barred as

extraordinary and compelling bases for release.

Jenkins, 50 F.4th at 1192, 1198. Consequently, we do

not reach whether Wilson’s arguments were properly

considered under Section 3553(a).

***

For the foregoing reasons, we affirm the denial of

Wilson’s motion for compassionate release.

So ordered.

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF

AMERICA

LOUIS ANTHONY

WILSON,

Defendant.

Crim. Action No. 96-319-01

(CKK)

[ECF No.

09/28/21]

394,

eFiled

MEMORANDUM OPINION AND ORDER

(August 6, 2021)

Pending before this Court is Defendant Louis

Anthony Wilson’s [386] Emergency Motion to Reduce

Sentence under the First Step Act for Compassionate

Release.1Defendant Louis Wilson (“Defendant” or

In connection with this Memorandum Opinion and

Order, the Court considered Defendant’s Emergency

Motion to Reduce Sentence under the First Step Act

for Compassionate Release. (“Def.’s Mot.”), ECF No.

386, and the exhibits attached thereto; the United

States’ Opposition to Defendant’s Emergency Motion

for Compassionate Release Under 18 U.S.C. §

3582(c)(1)(A)(i) (“Govt. Opp’n”), ECF No. 388, and the

exhibits attached thereto; Defendant’s Addendum to

his Emergency Motion to Reduce Sentence under the

First Step Act for Compassionate Release (“Def.’s

Addendum”), ECF No. 389; Letters regarding

Defendant’s Character, ECF Nos. 390 & 391;

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“Mr. Wilson”) requests that this Court issue an order

reducing his sentence to time served, “due to the

COVID-19 pandemic and because Defendant’s

medical conditions, including hypertension and early

stages of kidney disease, Defendant’s age, and “other”

extraordinary and compelling reasons render

Defendant especially vulnerable to COVID-19.” Def.’s

Mot., ECF No. 386, at 1.

The Government opposes Defendant’s Motion on

grounds that Defendant “has received both doses of

the Pfizer-BioNTech COVID-19 vaccine and

therefore, cannot establish extraordinary and

compelling reasons for relief based upon his asserted

medical conditions and age.” Govt. Opp’n, ECF No.

388, at 1. The Government asserts further that

Defendant has not shown that consideration of the

factors in 18 U.S.C. Section 3553(a) warrants a

sentence modification. Id. For the reasons set forth

herein, Defendant’s [386] Emergency Motion is

DENIED.

I. BACKGROUND

On September 19, 1996, Defendant was charged

with seven counts: (1) conspiracy to kill a federal

witness in violation of 18 U.S.C. § 371; (2) killing a

federal witness with the intent to prevent him from

Defendant’s Response to the Government’s Reply to

his Motion (“Def.’s Reply”), ECF No. 393, and the

entire record in this case.

In an exercise of its discretion, the Court finds that

holding oral argument in this action would not be of

assistance in rendering a decision. See LCrR 47(f).

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testifying in violation of 18 U.S.C. § 1512(a)(1)(A);

(3) retaliating against a federal witness in violation

of 18 U.S.C. § 1513(a)(1)(B); (4) first-degree murder

while armed in violation of D.C. Code §§ 22-2401 and

3202; (5) two counts of using a firearm during and in

relation to a crime of violence, in violation of 18

U.S.C. § 924(c); and (6) possession of a firearm

during a crime of violence or dangerous offense, in

violation of D.C. Code § 22-3204(b). See Indictment,

ECF No. 3. On February 28, 1997, a jury trial

commenced before the Honorable Norma Holloway

Johnson, and Mr. Wilson was found guilty on all

counts on March 21, 1997. See Verdict Form, ECF

No. 146. On September 10, 1007, Defendant was

sentenced to a life sentence plus two consecutive

five-year terms of incarceration, see Judgment, ECF

No. 201, and his conviction was affirmed by the

United States Court of Appeals for the District of

Columbia Circuit on November 20, 1998, with the

exception of vacating one of Defendant’s two Section

924 (c) convictions for use of a firearm. See United

States v. Wilson, 160 F.3d 732, 750 (D.C. Cir. 1998),

cert. denied, 528 U.S. 828 (1999).

Defendant

has

been

incarcerated

for

approximately twenty-five years, see Govt. Ex. 1

(sentence computation), and he is serving his

sentence at FCI Petersburg Medium, in Hopewell,

Virginia. As of August 3, 2021, there were no inmates

or staff members who tested positive for Covid-19; 254

inmates and 22 staff members have recovered, and

there has been one death at FCI Petersburg.2

Defendant’s Bureau of Prisons (“BOP”) medical

See https://www.bop.gov/coronavirus/index.jsp (last

visited on August 3, 2021).

14a

records show that he received his first dose of PfizerBioNTech COVID-19 vaccine on March 1, 2021 and

received his second dose on March 25, 2021. See Govt.

Ex. 2 (BOP Medical Records). Defendant has filed an

emergency motion requesting compassionate release,

which is opposed by the Government and is ripe for

resolution by this Court.3

II. LEGAL STANDARD

The concept of “compassionate release” is

embodied in the First Step Act of 2018, Pub. L. No.

115-391, 132 Stat. 5194, 5239 (2018) (“Increasing the

Use and Transparency of Compassionate Release”).

While federal courts are generally forbidden to

modify a term of imprisonment that has been

imposed, see United States v. Smith, 467 F.3d 785,

788 (D.C. Cir. 2006) (noting “that Congress has, in

language with a somewhat jurisdictional flavor,

limited district court authority to modify

sentences””), this “rule of finality is subject to a few

narrow exceptions.” Freeman v. United States, 564

U.S. 522, 526 (2011). The First Step Act addresses

one of those exceptions permitting a “[m]odification

of an imposed term of imprisonment.” See First Step

Act, Pub. L. 115-391, §603(b) (amending 18 U.S.C.

§3582(c) to permit a defendant — rather than the

Bureau of Prisons (“BOP”) — to move for a

sentencing reduction).

Pursuant to 18 U.S.C. § 3582(c)(1)(A), courts may,

in certain circumstances, grant a defendant’s motion

to reduce his or her term of imprisonment. Section

This case was reassigned from Judge Holloway

Johnson to the undersigned on March 24, 2003.

15a

3582(c)(1)(A) of Title 18 “authorizes federal courts to

entertain a motion for a sentence reduction brought

by the Director of the BOP of by the defendant,”

provided that certain conditions are met. United

States v. Greene No. 71-cr-1913, 2021 WL 354446, at

*6 (D.D.C. Fed. 2, 2021). If defendant is the movant,

he must have “fully exhausted all administrative

rights to appeal a failure of the Bureau of Prisons to

bring a motion on the defendant’s behalf” or that 30

days have passed “from the receipt of such a request

by the warden of the defendant’s facility, whichever

is earlier[.]” 18 U.S.C. § 3582(c)(1)(A).

Once the exhaustion requirement is met, a

defendant must carry his “burden of establishing that

he is eligible for a sentence reduction under [Section]

3582(c)(1)(A)(i).” United States v. Holroyd, 464 F.

Supp. 3d 14, 17 (D.D.C. 2020). Applying that

provision, courts may grant a defendant’s motion for

compassionate release only if “after considering the

factors set forth in 18 U.S.C. § 3553(a),” the court

finds that “extraordinary and compelling reasons

warrant such a reduction” and “such a reduction is

consistent with the applicable policy statement

issued by the Sentencing Commission.” 18 U.S.C. §

3582(c)(1)(A). In their evaluation of extraordinary

and compelling reasons, courts have looked

previously to a United States Sentencing

Commission policy statement - U.S.S.G. § 1B1.13

cmt. n.1(A) - issued in 2018 and not yet updated

concerning compassionate release to reflect the First

Step Act’s changes. See United States v. Long, 997

F.3d 342, 348-349 (D.C. Cir. 2021) (noting that the

policy statement refers only to motions brought by

the BOP and not by defendants on their own behalf).

16a

In Long, the United States Court of Appeals for

the District of Columbia Circuit (“D.C. Circuit”) “like

seven other circuits, h[e]ld that this policy statement

is not ‘applicable to compassionate release motions

filed by defendants” under the First Step Act. Id. at

347. The D.C. Circuit did not however address how

district courts should evaluate extraordinary and

compelling circumstances. Other circuits have held

that even if the policy statement is not controlling

regarding defendant-filed motions, it may still

provide important “guideposts.” United States v.

McGee, 992 F.3d 1035, 1045 (10th Cir. 2021); United

States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021)

(“Although not dispositive, the commentary to the

United States Sentencing Guidelines [ ] § 1B1.3

informs our analysis as to what reasons may be

sufficiently ‘extraordinary and compelling’ to merit

compassionate release.”); United States v. Gunn, 980

F.3d 1178, 1180 (7th Cir. 2020) (indicating that the

policy statement may provide guidance as to the

extraordinary and compelling nature of a

defendant’s circumstances).

The defendant bears the burden of establishing

entitlement to a sentencing reduction. United States

v. Jones, 836 F.3d 896, 899 (8th Cir. 2016); United

States v. Green, 764 F.3d 1352, 1356 (11th Cir. 2014).

Accordingly, a defendant who moves on his own for

compassionate release “must [first] show that he has

exhausted his administrative remedies with the

Bureau of Prisons and that there are ‘extraordinary

and compelling reasons’ warranting relief.” United

States v. Oliver, No. 00-cr-157-21, 2021 WL 2913627,

at *4 (D.D.C. July 12, 2021) (quoting Section

3582(c)(1)(A)(i)). If the defendant demonstrates

exhaustion and extraordinary and compelling

17a

reasons, a court “may reduce the [defendant’s] term of

imprisonment . . . after considering the relevant

factors set forth in 18 U.S.C. § 3553(a).” United States

v. Winston, No. 94-cr-296-11, 2021 WL 2592959, at *3

(D.D.C. June 24, 2021).

III. DISCUSSION

In the instant case, there is no dispute that

Defendant “has exhausted his administrative

remedies with respect to his claims that he should be

granted compassionate release based on his age and

the fact that he has hypertension and his assertion

that he is in danger of having kidney disease.” Govt.

Opp’n, ECF No. 388, at 12.4

A. Analysis of Extraordinary and Compelling

Reasons

Defendant asserts that he is 63 years old, with a

body mass index (“BMI”) of over 30, and his medical

records indicate that he suffers from early signs of

kidney disease and hypertension. Def.’s Mot., ECF

No. 386, at 3; Def.’s Reply, ECF No. 393, at 19. This

Court will address Defendant’s obesity and

hypertension but will not address his claim of early

In his Motion, Defendant seeks compassionate

release also based on his weight and the length of

time served. These factors were not mentioned in his

request to the Warden at FCI Petersburg, and as

such, the Government contests exhaustion based on

these factors. See Govt. Opp’n, ECF No. 388, at 12.

Nevertheless, “in the interest of efficiency, the

[G]overnment addresses the merits of these

unexhausted claims[.]” Id.

18a

kidney disease as there is no cited support for this in

his medical records.5 Defendant is currently at FCI

Petersburg, and he alleges generally that the BOP is

not adequately protecting inmates from the risks

associated with the COVID-19 pandemic. See id. at 714. Furthermore, Defendant asserts that the Court

should consider the length of time he has served - 25

years – as a factor that demonstrates extraordinary

and compelling reasons (though this is not mentioned

in the policy statement). This “length of time served”

factor will be addressed in connection with

consideration of the Section 3553(a) factors, as it does

not in of itself constitute an extraordinary and

compelling circumstance. See United States v.

Moreira, No. 06-20021-01-KHV, 2020 WL 6939762, at

*6 (D. Kan. Nov. 25, 2020) (“Nothing in the First Step

Act suggests that Congress authorized courts to grant

relief under the compassionate release provision of

Section 3582(c)(1)(A) based on a request that the

Court reconsider whether the sentence is too long.”)

As a preliminary matter, the Government argues

that the COVID-19 pandemic “cannot alone provide

a basis for a sentence reduction.” Govt. Opp’n, ECF

No. 388, at 13; see United States v. Raia, 954 F.3d

In Defendant’s Ex. C (Form Request for

Compassionate Release/Reduction in Sentence), Mr.

Wilson self-indicated that “as of 7-15-20 Dr. Laybourn

placed [him] on medication for signs of oncoming

kidney diseases due to recent lab work done.” This

diagnosis was not mentioned by Dr. Laybourne in the

July 15, 2020 medical records attached to Defendant’s

Motion as Ex. D (identifying Mr. Wilson’s chief

complaint as hypertension and prescribing

medication for hypertension).

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594, 597 (3d Cir. 2020) (“[T]he mere existence of

COVID-19 in society and the possibility that it may

spread to a particular prison alone cannot

independently justify compassionate release.”) The

Government acknowledges that “[i]f an inmate is

elderly and/or has a chronic medical condition that

has been identified as elevating the inmate’s risk of

becoming seriously ill from COVID-19, that condition

may satisfy the standard of ‘extraordinary and

compelling reasons.’” Govt. Opp’n, ECF No. 388, at

13. In the instant case, the Government argues

however that Mr. Wilson has now “been fully

vaccinated, which is the best protection against

COVID-19 inside or outside of prison, [and

accordingly,] he has not established an extraordinary

and compelling reason based on his medical

conditions and/or his age [63 years old].” Govt. Opp’n,

ECF No. 388, at 13.

In his Addendum, Defendant asserts that

vaccines do not provide complete protection against

COVID-19; Def.’s Addendum, ECF No. 389, at 2;

vaccinated people are still advised to “take[]

precautions like physical distancing and avoiding

large groups,” id. at 3; and there are variants of

COVID-19, for which vaccines may not be effective.

Id. at 5-12. Mr. Wilson alleges further that a

defendant’s vaccination status does not preclude a

court from granting compassionate release. Def.’s

Addendum, ECF No. 389, at 4-5 (citing cases). The

Court notes that the cases cited by Defendant do not

necessarily support a grant of compassionate release

for inmates that have already been vaccinated, but

rather, they indicate that courts may consider

motions for compassionate release despite a

defendant’s vaccination status. See United States v.

20a

Manglona, No. CR 14-5393 (RJB), 2021 WL 808386,

at *1 (W.D. Wash. Mar. 3, 2021) (courts should

consider compassionate release requests from

persons vaccinated during the pendency of the

motion); see also United States v. Browning, No. CR

19-20203-2, 2021 WL 795725, at *3 (E.D. Mich. Mar.

2, 2021) (considering the number of cases of COVID19 at the BOP facility where the defendant resided).

Turning now to medical conditions that increase

the risk of COVID-19, “[t]he Defendant’s BOP

medical records verify that he currently suffers from

hypertension.” Govt. Opp’n, ECF No. 388, at 14; see

Def.’s Ex. D (BOP medical records) at 51 (noting

defendant’s history of “hypertension which appears

adequately controlled.”) Furthermore, “a note from

July 15, 2020 reflects that [defendant] weighed

198.8 pounds” and at a height of 5’10,” he would have

a “BMI of 28.4, thus qualifying as overweight.” Govt.

Opp’n, ECF No. 388, at 16. The Government

concludes that if Defendant had not been offered a

vaccine, he “would have established an

extraordinary and compelling reason based on his

obesity, and possibly hypertension.” Id. But, through

vaccination, “[D]efendant’s risk of serious

complications from COVID-19 is significantly

diminished,” and the vaccine would “substantially

mitigate any increased risk” due to potential

exposure to COVID-19. Govt. Opp’n, ECF No. 388,

at 16-17; see also id. at 17-21 (discussing the efficacy

of the vaccines).

This Court finds that the increased risk of

COVID-19 due to Defendant’s age and medical

conditions of hypertension and obesity has been

mitigated by the fact that Mr. Wilson has been

21a

vaccinated as well as the fact that there are no

known COVID-19 cases at FCI Petersburg, where

Mr. Wilson is incarcerated. Accordingly, Defendant

fails to establish extraordinary and compelling

circumstances that warrant compassionate release.

B. Analyzing the Section 3553(a) Factors

Even if there were extraordinary and compelling

reasons to reduce Defendant’s term of imprisonment,

the Court must reassess the sentencing factors that

Congress established at 18 U.S.C. Section 3553(a) to

the extent applicable, including the need for the

sentence imposed “to reflect the seriousness of the

offense” and “afford adequate deterrence” and “to

protect the public from further crimes of the

defendant,” 18 U.S.C. Section 3553(a)(2)(A)-(C), and

any reduction must likewise be consistent with the

Sentencing Commission’s expressed policy concern

about the release of dangerous offenders.6 See United

States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020)

(considering the defendant’s “severe” conduct, his

serious drug crime, his criminal history, and the

The Section 3553(a) factors include “the nature and

circumstances of the offense;” “the history and

characteristics of the defendant,” and also the need

for a sentence “to reflect the seriousness of the

offense, to promote respect for the law, and to provide

just punishment for the offense,” “to afford adequate

deterrence to criminal conduct,” “to protect the public

from further crimes of the defendant,” and “to provide

the defendant with needed educational or vocational

training, medical care, and other correctional

treatment in the most effective manner.” 18 U.S.C.

§ 3553(a).

22a

timing of the commission of the underlying offense

while defendant was on parole); see also U.S.S.G.

Section 1B1.13(2) (stating that, before granting a

motion for compassionate release, courts should make

a finding that “the defendant is not a danger to the

safety of any other person or to the community”).

Considering the nature and circumstances of the

offense and the need for the sentence imposed to

reflect the seriousness of the offense, the Government

explains that Mr. Wilson received a life sentence for

commission of a serious crime that resulted in the

death of person who was supposed to testify against

his brother, thus “thwarting the justice system.” Govt.

Opp’n, ECF No. 388, at 23. “The case was strong, as

shown by the affirmance on direct appeal and denial

of [Defendant’s] collateral attacks.” Id.7 Defendant

asserts generally that “[s]hortening [his] sentence

does not undermine the seriousness of the offense, or

fail to respect the law, provide just punishment, or

adequately deter criminal conduct.” Def.’s Reply, ECF

No. 393, at 17. Defendant spends a significant amount

of time arguing that the sentence that he received

would be shorter if he was sentenced now, and that

this should be considered as an extraordinary and

compelling circumstance. The Court notes that the

purpose of compassionate release is not a revisiting of

a defendant’s term of incarceration although a court

may look at the length of time served versus the

length of the sentence imposed. See generally United

The Government does note however that the

decedent’s next of kin “support the defendant’s

request to be released, and that they feel ‘he has

served enough time.’” Govt. Opp’n, ECF No. 388, at

23.

23a

States v. Farley, Criminal No. 08-01185 (PLF), 2020

WL 4698434, at *1 (D.D.C. August 13, 2020)

(granting compassionate release to a defendant who

“has already served approximately 95% of his fifteen

year sentence”); United States v. Thomas, 10-Cr00023 (ESH/DLF) (D.D.C. 2020), May 27, 2020

Order, ECF No. 28, at 1 (granting compassionate

release to defendant who “has served almost all of his

151-month sentence” and was projected to be

released within the year).

In the instant case, this Court finds that releasing

Mr. Wilson after 25 years may well “minimize the

nature and seriousness of the offense.” United States

v. Logan, Crim. Action No. 1:96-CR-20-TBR, 2020

WL 730879, at *3 (W.D. Ky. Feb. 13, 2020) (denying

relief to an 81-year old defendant, who served 22

years of his life sentence for an arson that killed four

people and whose medical conditions of prostate

cancer, glaucoma, blindness, and diabetes made him

eligible for consideration); United States v. Evans,

Crim. Action No. 18-103 (EGS), 2020 WL 3542231, at

*4-5 (D.D.C. June 30, 2020) (denying compassionate

release for an inmate who suffered from severe

obesity, high blood pressure, hypertension, and sleep

apnea because of the nature of his extortion offense);

United States v. Wright, 991 F.3d 717, 719 (6th Cir.

2021) (the district court did not abuse its discretion

in denying relief from life sentences for an inmate

who had served 19 years for commission of “a cold

blooded killing,” as well as distribution of large

quantities of cocaine and doing business with cartels);

Walker v. United States, Case No. 16-21973-CivScola, 2020 WL 2308468, at *1 (S.D. Fla. May 8, 2020)

(whether or not defendant had medical conditions,

the court declined to reduce his life sentence after he

24a

had served sixteen years because defendant’s instant

and earlier offenses were very violent); United States

v. Levine, No. 2:91 CR 3, 2020 WL 2537786, at * 4

(N.D. Ind. May 19, 2020) (concluding that release

should be denied for a 78-year old defendant who was

serving a life sentence for orchestrating the murder

of two family members); United States v. Epstein,

Crim. Action No. 14-287-1 (FLW), 2020 WL 2537648,

at * 3 (D.N.J. May 19, 2020) (denying release to a 74year old defendant who had numerous medical

issues for which he was receiving treatment, where

his kidnapping offenses were “severe and violent”).

Considering the parties arguments and the

caselaw cited, this Court finds that the nature and

circumstances of Defendant’s offense and the need

for the sentence imposed to reflect the seriousness of

the offense weigh against Defendant’s request for

compassionate release.

Turning next to the history and characteristics of

the Defendant, the Government notes that, “this

case is defendant’s only adult conviction.” Govt.

Opp’n, ECF No. 388, at 24. Furthermore, while

incarcerated, Defendant has been sanctioned only

twice, once for a 100-level offense in 2010 for

possession of drugs/alcohol (taking medication of

another inmate) and in 2011 for a lower level offense

– being insolent to a staff member. Id.

Defendant asserts that he has “maintained

employment while in BOP custody” and “receiv[ed]

excellent work reports.” Def.’s Mot., ECF No. 386, at

21 (noting that he “worked for the past 15 years in

the vocational barbershop”). Furthermore, he has

“demonstrated

strong

commitment

25a

rehabilitation, self-improvement and assisting

others while in federal prison” and he is “on a waiting

list to attend Barber School and Autocab Classes.”

Def.’s Reply, ECF No. 393, at 19. The Court notes

that numerous persons associated with Mr. Wilson

filed letters of support on his behalf. The

Government contends that “[a]lthough the defendant

has earned his GED while incarcerated, his

participation in vocational and behavioral classes

has been limited,” . . . with defendant completing

“only 41 hours of programming” since 2010. Govt.

Opp’n, ECF No. 388, at 24. The Government

comments further that “[D]efendant’s Proposed

Release Plan is sparse” insofar as Defendant is going

to live in the District of Columbia with his ex-wife,

and he has presumably “secured employment with

Pure Air as a cleaning technician but provides no

documentation from the purported employer” or

information about wages and benefits. Id. Moreover,

Defendant identifies Catholic Charities generally as

a possible source of additional housing and

employment resources, and he volunteers without

further explanation his son and niece as being able

to assist with medical needs, as he has no health

insurance. Id. The Government concludes that

“[w]ithout a detailed and feasible plan in place, it is

more likely that the defendant’s transition back to

civil society will be a more difficult one, thereby

placing the community at greater risk.” Govt. Opp’n,

ECF No. 25, at 25.

While some of Defendant’s history and

characteristics

(lack

criminal

history,

employment while at BOP, family support) weigh in

favor on his request for compassionate release, the

severity of his crime, the need for the sentence

26a

imposed, and the risk to the public outweigh those

factors that weigh in Mr. Wilson’s favor.

Accordingly, this Court finds that the Section

3553(a) factors do not favor granting Mr. Wilson’s

request for compassionate release, despite his

acknowledged medical conditions. See, e.g., United

States v. Gotti, 433 F. Supp. 3d 613, 615 (S.D.N.Y.

2020) (On a compassionate release motion, a court is

“still required to consider all the Section 3553(a)

factors to the extent they are applicable, and may

deny such a motion if, in its discretion,

compassionate release is not warranted because

Section 3553(a) factors override, in any particular

case, what would otherwise be extraordinary and

compelling circumstances.”)

IV. CONCLUSION

On the record before this Court, the Court finds

that Defendant has not demonstrated extraordinary

and compelling reasons based on his age and medical

conditions (obesity and hypertension) because he has

been fully vaccinated and he is incarcerated at a

facility with no known COVID-19 cases. Nor do the

sentencing factors set forth in 18 U.S.C. Section

3553(a) weigh in favor of Defendant’s request for

compassionate release, particularly in light of the

serious nature of the crime on which he is serving a

life sentence and this Court’s need to consider public

safety.

27a

Accordingly, it is this 6th day of August 2021,

ORDERED that Defendant’s [386] Emergency

Motion to Reduce Sentence under the First Step Act

for Compassionate Release be and hereby is

DENIED.

/s/

COLLEEN KOLLAR-KOTELLY

UNITED STATES DISTRICT

JUDGE

28a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF

AMERICA

LOUIS ANTHONY

WILSON,

Defendant.

Crim. Action No. 96-319-01

(CKK)

[ECF No.

09/28/21]

396,

eFiled

MEMORANDUM OPINION AND ORDER

(September 28, 2021)

On August 6, 2021, this Court issued its [394]

Memorandum Opinion and Order denying

Defendant’s request for compassionate release. The

Court

found

that

“Defendant

ha[d]

not

demonstrated extraordinary and compelling reasons

based on his age and medical conditions (obesity and

hypertension) because he ha[d] been fully vaccinated

and he [was] incarcerated at a facility with no known

COVID-19 cases.” Memorandum Opinion and Order,

ECF No. 394, at 12. Nor did the sentencing factors

set out in 18 U.S.C. Section 3553 (a) weigh in

Defendant’s favor, “particularly in light of the

serious nature of the crime [for] which he is serving

a life sentence and this Court’s need to consider

public safety.” Id.

Pending before this Court is Defendant Louis

Anthony Wilson’s [395] Motion for Reconsideration

concerning his earlier request for compassionate

29a

release. Defendant asks this Court to reconsider his

request for compassionate release because of alleged

“new law and changes in the circumstances[.]” Def.’s

Motion, ECF No. 395, at 1.1 To prevail on a motion for

reconsideration, the movant bears the burden of

identifying an “intervening change of controlling law,

the availability of new evidence, or the need to

correct a clear error or prevent manifest injustice.”

Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir.

1996).

In his Motion, Defendant proffers nothing more

than a reiteration of certain arguments noted in his

previous motion. Defendant alleges that he made a

“showing” in his “reply motion” that focuses on

“consideration of the factors in 18 U.S.C. Section

3553(a),” but he argues that this Court did not

consider it. Def.’s Motion for Reconsideration, ECF

No. 395, at 3. Defendant’s allegation is incorrect as

Mr. Wilson’s “Response to the Government’s Reply to

his Motion [for Compassionate Release],” ECF No.

393, was both noted and considered by this Court in

its Memorandum Opinion and Order, ECF No. 394;

see id. at 9-11 (discussing Mr. Wilson’s arguments

that the sentence he received would be shorter if he

were sentenced now, and how this should be

considered by the Court as an extraordinary and

compelling circumstance). Accordingly, Defendant

Louis Wilson has not proffered any new law or

changes in circumstances that would warrant

Pending before this Court is Defendant’s Motion for

Reconsideration, ECF No. 395. The Court did not

request that the Government file a response thereto.

This Court incorporates by reference the background

and analysis in its Memorandum Opinion and Order,

ECF No. 394.

30a

reconsideration of this Court’s decision to deny

compassionate release, or warrant granting his

request for counsel. It is hereby this 28th day of

September 2021,

ORDERED that Louis Wilson’s [395] Motion for

Reconsideration be and hereby is DENIED.

/s/

COLLEEN KOLLAR-KOTELLY

UNITED STATES DISTRICT

JUDGE

31a

APPENDIX D

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______

No. 21-3074

September Term, 2022

FILED ON: JULY 21, 2023

UNITED STATES OF AMERICA,

APPELLEE

LOUIS A. WILSON, ALSO KNOWN AS SPUDS,

APPELLANT

_______

Appeal from the United States District Court

for the District of Columbia

(No. 1:96-cr-00319-1)

_______

Before: CHILDS, Circuit Judge, and ROGERS, Senior

Circuit Judge*

JUDGMENT

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia and was argued by counsel. On

consideration thereof, it is

ORDERED and ADJUDGED that the denial of

Wilson’s motion for compassionate release be

32a

affirmed, in accordance with the opinion of the court

filed herein this date.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Daniel J. Reidy

Deputy Clerk

Date: July 21, 2023

Opinion for the court filed by Circuit Judge Childs.

* Senior Circuit Judge Silberman was a member of

the panel before his death on October 2, 2022. Judges

Childs and Rogers have acted as a quorum in this

judgment. See 28 U.S.C. § 46(d).

33a

APPENDIX E

18 U.S.C. § 3582. Imposition of a sentence of

imprisonment.

(a) Factors to be considered in imposing a term

of imprisonment.

The court, 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) [18 USCS §

3553(a)] to the extent that they are applicable,

recognizing that imprisonment is not an appropriate

means of promoting correction and rehabilitation. In

determining whether to make a recommendation

concerning the type of prison facility appropriate for

the defendant, the court shall consider any pertinent

policy statements issued by the Sentencing

Commission pursuant to 28 U.S.C. 994(a)(2).

(b)

Effect

finality

Notwithstanding the fact that a

imprisonment can subsequently be—

judgment.

sentence to

(1)

modified pursuant to the provisions of

subsection (c);

(2) corrected pursuant to the provisions of rule 35

of the Federal Rules of Criminal Procedure and

section 3742 [18 USCS § 3742]; or

(3) appealed and modified, if outside the guideline

range, pursuant to the provisions of section 3742

[18 USCS § 3742];

34a

a judgment of conviction that includes such a

sentence constitutes a final judgment for all other

purposes.

imprisonment. The court may not modify a term of

imprisonment once it has been imposed except that—

(1) in any case—

(A) the court, upon motion of the Director of

the Bureau of Prisons, or upon motion of the

defendant after the defendant has fully

exhausted all administrative rights to appeal a

failure of the Bureau of Prisons to bring a

motion on the defendant’s behalf or the lapse of

30 days from the receipt of such a request by

the warden of the defendant’s facility,

whichever is earlier, may reduce the term of

imprisonment (and may impose a term of

probation or supervised release with or without

conditions that does not exceed the unserved

portion of the original term of imprisonment),

after considering the factors set forth in section

3553(a) [18 USCS § 3553(a)] to the extent that

they are applicable, if it finds that—

(i) extraordinary and compelling reasons

warrant such a reduction; or

(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) [18 USCS § 3559(c)], for the

offense or offenses for which the defendant

currently

imprisoned,

and

35a

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) [18 USCS §

3142];

and that such a reduction is consistent with

applicable policy statements issued by the Sentencing

Commission; and

(B) the court may modify an imposed term of

imprisonment to the extent otherwise

expressly permitted by statute or by Rule 35 of

the Federal Rules of Criminal Procedure; and

(2) 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) [18 USCS § 3553(a)] to the

extent that they are applicable, if such a reduction

is consistent with applicable policy statements

issued by the Sentencing Commission.

(d) Notification requirements.

(1) Terminal illness defined.

In this

subsection, the term “terminal illness” means a

disease or condition with an end-of-life trajectory.

36a

(2) Notification. The Bureau of Prisons shall,

subject to any applicable confidentiality

requirements—

(A) in the case of a defendant diagnosed with

a terminal illness—

(i) not later than 72 hours after the

diagnosis notify the defendant’s attorney,

partner, and family members of the

defendant’s condition and inform the

defendant’s attorney, partner, and family

members that they may prepare and submit

on the defendant’s behalf a request for a

sentence reduction pursuant to subsection

(c)(1)(A);

(ii) not later than 7 days after the date of

the diagnosis, provide the defendant’s

partner and family members (including

extended family) with an opportunity to

visit the defendant in person;

(iii) upon request from the defendant or his

attorney, partner, or a family member,

ensure that Bureau of Prisons employees

assist the defendant in the preparation,

drafting, and submission of a request for a

sentence reduction pursuant to subsection

(c)(1)(A); and

(iv) not later than 14 days of receipt of a

request for a sentence reduction submitted

on the defendant’s behalf by the defendant

or the defendant’s attorney, partner, or

family member, process the request;

37a

(B) in the case of a defendant who is physically

or mentally unable to submit a request for a

sentence reduction pursuant to subsection

(c)(1)(A)—

(i)

inform the defendant’s attorney,

partner, and family members that they may

prepare and submit on the defendant’s

behalf a request for a sentence reduction

pursuant to subsection (c)(1)(A);

(ii)

accept and process a request for

sentence reduction that has been prepared

and submitted on the defendant’s behalf by

the defendant’s attorney, partner, or family

member under clause (i); and

(iii) upon request from the defendant or his

attorney, partner, or family member,

ensure that Bureau of Prisons employees

assist the defendant in the preparation,

drafting, and submission of a request for a

sentence reduction pursuant to subsection

(c)(1)(A); and

regularly and visibly post, including in

prisoner handbooks, staff training materials,

and facility law libraries and medical and

hospice facilities, and make available to

prisoners upon demand, notice of—

(i)

a defendant’s ability to request a

sentence reduction pursuant to subsection

(c)(1)(A);

38a

(ii)

the procedures and timelines for

initiating and resolving requests described

in clause (i); and

(iii) the right to appeal a denial of a request

described

clause

(i)

after

all

administrative rights to appeal within the

Bureau of Prisons have been exhausted.

(3) Annual report. Not later than 1 year after

the date of enactment of this subsection, and once

every year thereafter, the Director of the Bureau

of Prisons shall submit to the Committee on the

Judiciary of the Senate and the Committee on the

Judiciary of the House of Representatives a report

on requests for sentence reductions pursuant to

subsection (c)(1)(A), which shall include a

description of, for the previous year—

(A) the number of prisoners granted and

denied sentence reductions, categorized by the

criteria relied on as the grounds for a reduction

in sentence;

(B) the number of requests initiated by or on

behalf of prisoners, categorized by the criteria

relied on as the grounds for a reduction in

sentence;

Prisons employees assisted prisoners in

drafting, preparing, or submitting, categorized

by the criteria relied on as the grounds for a

reduction in sentence, and the final decision

made in each request;

39a

(D) the number of requests that attorneys,

partners, or family members submitted on a

defendant’s behalf, categorized by the criteria

relied on as the grounds for a reduction in

sentence, and the final decision made in each

request;

(E) the number of requests approved by the

Director of the Bureau of Prisons, categorized

by the criteria relied on as the grounds for a

reduction in sentence;

(F) the number of requests denied by the

Director of the Bureau of Prisons and the

reasons given for each denial, categorized by

the criteria relied on as the grounds for a

reduction in sentence;

(G) for each request, the time elapsed between

the date the request was received by the

warden and the final decision, categorized by

the criteria relied on as the grounds for a

reduction in sentence;

(H) for each request, the number of prisoners

who died while their request was pending and,

for each, the amount of time that had elapsed

between the date the request was received by

the Bureau of Prisons, categorized by the

criteria relied on as the grounds for a reduction

in sentence;

(I)

the number of Bureau of Prisons

notifications to attorneys, partners, and family

members of their right to visit a terminally ill

40a

defendant as required under paragraph

(2)(A)(ii) and, for each, whether a visit occurred

and how much time elapsed between the

notification and the visit;

(J) the number of visits to terminally ill

prisoners that were denied by the Bureau of

Prisons due to security or other concerns, and

the reasons given for each denial; and

(K) the number of motions filed by defendants

with the court after all administrative rights to

appeal a denial of a sentence reduction had

been exhausted, the outcome of each motion,

and the time that had elapsed between the date

the request was first received by the Bureau of

Prisons and the date the defendant filed the

motion with the court.

(e) Inclusion of an order to limit criminal

association of organized crime and drug

offenders. The court, in imposing a sentence to a

term of imprisonment upon a defendant convicted of

a felony set forth in chapter 95 [18 USCS §§ 1951 et

seq.] (racketeering) or 96 [18 USCS §§ 1961 et seq.]

(racketeer influenced and corrupt organizations) of

this title or in the Comprehensive Drug Abuse

Prevention and Control Act of 1970 (21 U.S.C. 801 et

seq.), or at any time thereafter upon motion by the

Director of the Bureau of Prisons or a United States

attorney, may include as a part of the sentence an

order that requires that the defendant not associate

or communicate with a specified person, other than

his attorney, upon a showing of probable cause to

believe that association or communication with such

person is for the purpose of enabling the defendant to

41a

control, manage, direct, finance,

participate in an illegal enterprise.

otherwise

18 U.S.C. app. § 1B1.13. Reduction in Term of

Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy

Statement) (Nov. 1, 2023)

(a) In General. Upon motion of the Director of the

Bureau of Prisons or the defendant pursuant to 18

U.S.C. § 3582(c)(1)(A), the court may reduce a term of

imprisonment (and may impose a term of supervised

release with or without conditions that does not

exceed the unserved portion of the original term of

imprisonment) if, after considering the factors set

forth in 18 U.S.C. § 3553(a), to the extent that they

are applicable, the court determines that—

(1)

(A) extraordinary and compelling reasons

warrant the reduction; or

(B) the defendant (i) is at least 70 years old;

and (ii) has served at least 30 years in prison

pursuant to a sentence imposed under 18

U.S.C. § 3559(c) for the offense or offenses for

which the defendant is imprisoned;

(2) the defendant is not a danger to the safety of

any other person or to the community, as provided

in 18 U.S.C. § 3142(g); and

42a

(3) the reduction is consistent with this policy

statement.

(b) Extraordinary and compelling reasons.

Extraordinary and compelling reasons exist under

any of the following circumstances or a combination

thereof:

(1) Medical circumstances of the defendant.

(A) The defendant is suffering from a terminal

illness (i.e., a serious and advanced illness

with an end-of-life trajectory). A specific

prognosis of life expectancy (i.e., a probability

of death within a specific time period) is not

required. Examples include metastatic solidtumor cancer, amyotrophic lateral sclerosis

(ALS), end-stage organ disease, and advanced

dementia.

(B) The defendant is—

(i) suffering from a serious physical or

medical condition,

(ii) suffering from a serious functional or

cognitive impairment, or

(iii) experiencing deteriorating physical or

mental health because of the aging process,

(iv)

that substantially diminishes the

ability of the defendant to provide self-care

within the environment of a correctional

facility and from which he or she is not

expected to recover.

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condition that requires long-term or specialized

medical care that is not being provided and

without which the defendant is at risk of

serious deterioration in health or death.

(D) The defendant presents the following

circumstances—

(i) the defendant is housed at a correctional

facility affected or at imminent risk of being

affected by (I) an ongoing outbreak of

infectious disease, or (II) an ongoing public

health emergency

declared by the

appropriate federal, state, or local

authority;

(ii) due to personal health risk factors and

custodial status, the defendant is at

increased risk of suffering severe medical

complications or death as a result of

exposure to the ongoing outbreak

infectious disease or the ongoing public

health emergency described in clause (i);

and

(iii)

such risk cannot be adequately

mitigated in a timely manner.

(2) Age of the defendant. The defendant (A) is at

least 65 years old; (B) is experiencing a serious

deterioration in physical or mental health because

of the aging process; and (C) has served at least

10 years or 75 percent of his or her term of

imprisonment, whichever is less.

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(3) Family circumstances of the defendant.

(A)

The death or incapacitation of the

caregiver of the defendant’s minor child or the

defendant’s child who is 18 years of age or older

and incapable of self-care because of a mental

or physical disability or a medical condition.

(B) The incapacitation of the defendant’s

spouse or registered partner

when the

defendant would be the only available

caregiver for the spouse or registered partner.

parent when the defendant would be the only

available caregiver for the parent.

(D)

The defendant establishes that

circumstances similar to those listed in

paragraphs (3)(A) through (3)(C) exist

involving any other immediate family member

or an individual whose relationship with the

defendant is similar in kind to that of an

immediate family member, when the

defendant would be the only available

caregiver for such family member or

individual. For purposes of this provision,

‘immediate family member’ refers to any of the

individuals listed in paragraphs (3)(A) through

(3)(C) as well as a grandchild, grandparent, or

sibling of the defendant.

(4) Victim of Abuse. The defendant, while in

custody serving the term of imprisonment sought

to be reduced, was a victim of:

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(A) sexual abuse involving a ‘sexual act,’ as

defined in 18 U.S.C. § 2246(2) (including the

conduct described in 18 U.S.C. § 2246(2)(D)

regardless of the age of the victim); or

(B) physical abuse resulting in ‘serious bodily

injury,’ as defined in the Commentary to

§1B1.1 (Application Instructions);

of, a correctional officer, an employee or

contractor of the Bureau of Prisons, or any

other individual who had custody or control

over the defendant.

(D)

For purposes of this provision, the

misconduct must be established by a conviction

in a criminal case, a finding or admission of

liability in a civil case, or finding in an

administrative proceeding, unless such

proceedings are unduly delayed or the

defendant is in imminent danger.

(5) Other reasons. The defendant presents any

other

circumstance

combination

circumstances that, when considered by

themselves or together with any of the reasons

described in paragraphs (1) through (4), are

similar in gravity to those described in paragraphs

(1) through (4).

(6) Unusually long sentence. If a defendant

received an unusually long sentence and has

served at least 10 years of the term of

imprisonment, a change in the law (other than an

46a

amendment to the Guidelines Manual that has not

been made retroactive) may be considered in

determining whether the defendant presents an

extraordinary and compelling reason, but only

where such change

would produce a gross

disparity between the sentence being served and

the sentence likely to be imposed at the time the

motion is filed, and after full consideration of the

defendant’s individualized circumstances.

provided in subsection (b)(6), a change in the law

(including an amendment to the Guidelines Manual

that has not been made retroactive) shall not be

considered for purposes of determining whether an

extraordinary and compelling reason exists under

this policy statement. However, if a defendant

otherwise establishes that extraordinary and

compelling reasons warrant a sentence reduction

under this policy statement, a change in the law

(including an amendment to the Guidelines Manual

that has not been made retroactive) may be

considered for purposes of determining the extent of

any such reduction.

(d) Rehabilitation of the defendant. Pursuant to

28 U.S.C. § 994(t), rehabilitation of the defendant is

not, by itself, an extraordinary and compelling reason

for purposes of this policy statement. However,

rehabilitation of the defendant while serving the

sentence may be considered in combination with

other circumstances in determining whether and to

what extent a reduction in the defendant’s term of

imprisonment is warranted.

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(e) Foreseeability of extraordinary and

compelling reasons. For purposes of this policy

statement, an extraordinary and compelling reason

need not have been unforeseen at the time of

sentencing in order to warrant a reduction in the term

of imprisonment.

Therefore, the fact that an

extraordinary and compelling reason reasonably

could have been known or anticipated by the

sentencing court does not preclude consideration for

a reduction under this policy statement.

Commentary

Application Notes:

1. Interaction with Temporary Release from Custody

Under 18 U.S.C. § 3622 (“Furlough”). A reduction of a

defendant’s term of imprisonment under this policy

statement is not appropriate when releasing the

defendant under 18 U.S.C. § 3622 for a limited time

adequately addresses the defendant’s circumstances.

2. Notification of Victims. Before granting a motion

pursuant to 18 U.S.C. § 3582(c)(1)(A), the

Commission encourages the court to make its best

effort to ensure that any victim of the offense is

reasonably, accurately, and timely notified, and

provided, to the extent practicable, with an

opportunity to be reasonably heard, unless any such

victim previously requested not to be notified.

Background: The Commission is required by 28

U.S.C. § 994(a)(2) to develop general policy

statements regarding application of the guidelines or

other aspects of sentencing that in the view of the

Commission would further the purposes of sentencing

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(18 U.S.C. § 3553(a)(2)), including, among other

things, the appropriate use of the sentence

modification provisions set forth in 18 U.S.C. §

3582(c). In doing so, the Commission is required by 28

U.S.C. § 994(t) 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.” This policy statement

implements 28 U.S.C. § 994(a)(2) and (t).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.