Sentencing Guidelines – Compassionate Release

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7^th Circuit Court of Appeals

Case Name: United States of America v. Tequila J. Gunn

Case No.: 20-1959

Officials: EASTERBROOK, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Sentencing Guidelines – Compassionate Release

Federal judges have long been able to release prisoners for compassionate reasons such as terminal illness. Until recently that authority depended on a motion by the Bureau of Prisons. But in 2018 the First Step Act created a judicial power to grant compassionate release on a prisoner’s own request, provided that the prisoner first allowed the Bureau to review the request and make a recommendation (or it let 30 days pass in silence). 18 U.S.C. §3582(c)(1)(A). Subsection (c) now reads: The court may not modify a term of imprisonment once it has been imposed except that— (1) in any case— (A) the court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment), after considering the factors set forth in section 3553(a) to the extent that they are applicable, if it finds that— (i) extraordinary and compelling reasons warrant such a reduction; 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), 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[.]

Tequila Gunn’s sentence for drug and firearm offenses runs through March 2024. She asked a court to order her release under §3582(c)(1)(A) on the ground that, because of her age (62) and medical condition, she faces extra risks should she contract COVID-19. Gunn sought administrative relief but came to court before the Director had replied or 30 days had run. Yet on appeal the United States has not invoked the statute’s exhaustion requirement, thus forfeiting its benefit. Failure to exhaust administrative remedies is an affirmative defense, see Jones v. Bock, 549 U.S. 199, 216 (2007); Weinberger v. Salfi, 422 U.S. 749, 767 (1975), not a jurisdictional issue that the court must reach even if the litigants elect not to raise it. It is true that a judge acting on a prisoner’s motion may lack the advice of the Director, contemplated by Application Note 1(D), about whether some novel “extraordinary and compelling reason” exists. Yet the First Step Act does not muzzle the Director; to the contrary, it gives the Director at least 30 days to articulate the Bureau of Prisons’ decision and rationale. We expect that district judges will give the Director’s analysis substantial weight, even though under the First Step Act the Director’s views are not controlling.

Like the district court, we hope that the Sentencing Commission’s ability to revise its guidelines and policy statements will be restored by the appointment of additional members. Until that happens and §1B1.13 is amended, however, the Guidelines Manual lacks an “applicable” policy statement covering prisoner-initiated applications for compassionate release. District judges must operate under the statutory criteria—”extraordinary and compelling reasons”—subject to deferential appellate review. The district court’s decision is vacated, and the case is remanded with instructions to resolve Gunn’s motion under the statutory standard.

Vacated and remanded

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Derek A Hawkins is Associate Corporate Counsel, IP at Amazon.