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Jessica Ward, also known as Jessica Lynn Ward versus United States of America
Case Number: Leslie H. Southwick
Judge: Leslie H. Southwick
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: Not Listed
New Orleans, LA- Criminal defense lawyer represented defendant with a conspiracy to possess with intent to distribute 50 grams or more of methamphetamine charge.
In October 2017, Ward pled guilty to a one-count information
charging her with conspiracy to possess with intent to distribute 50 grams or
more of methamphetamine. See 21 U.S.C. §§ 846, 841(a)(1), and
841(b)(1)(B). In February 2018, the district court sentenced Ward to 200
months of imprisonment to be followed by 5 years of supervised release.
Ward did not file a direct appeal, but she later unsuccessfully sought postconviction relief based on alleged ineffective assistance of counsel. See
United States v. Ward, 2020 WL 6194457, at *1 (5th Cir. Mar. 2, 2020) (No.
19-10468) (denying certificate of appealability).
In March 2020, through counsel, Ward sent a request for
compassionate release to the warden of her facility. She asserted that her
kidney failure, other medical problems, and vulnerability to COVID-19
constituted an extraordinary and compelling reason for a sentence reduction.
In May 2020, the Bureau of Prisons denied her request because Ward’s
“medical condition has not been determined to be terminal within eighteen
months nor end of life trajectory.”
In July 2020, after exhausting her administrative remedies,1 Ward
filed a motion in the United States District Court, Northern District of
Texas, seeking compassionate release under 18 U.S.C. § 3582(c)(1)(A).
Ward asserted that her chronic kidney failure, other medical conditions, and
the COVID-19 pandemic constituted “extraordinary and compelling”
reasons for compassionate release. Given her medical conditions, Ward
contended that she was particularly susceptible to “grave illness or death if
infected by COVID-19.” She also contended that compassionate release
1 Ward exhausted her administrative remedies because the Bureau of Prisons did
not respond to her initial request within 30 days. See 18 U.S.C. § 3582(c)(1)(A).
Case: 20-10836 Document: 00515995782 Page: 2 Date Filed: 08/26/2021
would be consistent with Section 1B1.13 of the Sentencing Guidelines, and
that Section 3553(a) factors favor a reduction. She requested a reduction
either to time served or to a term of home confinement.
Ward filed with the motion her proof of exhaustion, her medical
records, and an expert’sreport that her kidney disease put her “at higher risk
for developing severe illness, kidney failure, or death if she becomes infected
with the coronavirus SARS-CoV-2 (Covid-19).”
At the request of the district court, the Government filed an
opposition that made two arguments. The first was that Ward’s
“COVID-related concerns do not constitute ‘extraordinary and compelling
reasons’ under the compassionate-release statute.” Relying on Section
1B1.13 of the Sentencing Guidelines, the Government argued that COVID19 is not a stand-alone basis for a sentence reduction. The second argument
was that the Bureau of Prisons was adequately managing the pandemic and
that judicial intervention was unnecessary. The Government never
mentioned Ward’s kidney condition or the Section 3553(a) factors.
Ward filed a reply. She emphasized that the Government failed to
respond to her kidney-disease argument and failed to argue that the
sentencing factors counseled against a reduction. She asked the court to
“consider these matters conceded” and to grant her motion. The
Government filed a sur-reply which acknowledged that, while “COVID-19 is
a very serious matter for the Country, . . . it should not be used as a get-outof-jail-free card and it should not serve as a fulcrum for catapulting everyone
with an infirmity out of prison.”
The district court denied Ward’s motion for two independent
reasons. The first was that Ward failed to show an “extraordinary and
compelling reason” for a reduction. It discussed her kidney disease, but
Case: 20-10836 Document: 00515995782 Page: 3 Date Filed: 08/26/2021
never mentioned COVID-19.2 The second reason was that the Section
3553(a) factors did not support a reduction.3
The district court concluded
that Ward’s release “would not be in the interest of justice.” Ward timely
We review the denial of a motion for compassionate release for abuse
of discretion. United States v. Cooper, 996 F.3d 283, 286 (5th Cir. 2021). A
court abuses its discretion when “it bases its decision on an error of law or a
clearly erroneous assessment of the evidence.” Id. (quoting United States v.
Chambliss, 948 F.3d 691, 693 (5th Cir. 2020)).
The sole issue in this appeal is whether the district court abused its
discretion by denying Ward’s motion based on arguments not advanced by
the Government. Ward contends that the district court impermissibly relied
on two “waived” arguments and violated the “principle of party
presentation.” See United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579
(2020). The Government argues that the district court merely engaged in
2 As the court explained:
The court is not persuaded that an extraordinary and compelling reason exists in
movant’s case. In particular, movant’s expert opines that she has stage 3 chronic
kidney disease, but does not aver that she has any particular life expectancy. The
warden denied her request for compassionate release because movant’s medical
condition had not been determined to be terminal within 18 months nor end of life
3 The court considered the length of Ward’s term of imprisonment, her managerial role in
the crime of conviction, the quantity of methamphetamine involved, her criminal history,
and the danger of her continued fraudulent conduct upon release.
Case: 20-10836 Document: 00515995782 Page: 4 Date Filed: 08/26/2021
analysis required by the statute and challenges Ward’s argument that it never
raised an argument related to Ward’s kidney condition.
We begin with a brief background of the compassionate release
statute. See 18 U.S.C. § 3582(c)(1)(a). We then examine whether the district
court abused its discretion in adopting reasoning not argued by a party.
Compassionate release is one of a few exceptions to the general rule
that “court[s] may not modify a term of imprisonment once it has been
imposed.” See 18 U.S.C. § 3582(c). Until the passage of the First Step Act,
only the Bureau of Prisons could file a motion for compassionate release. See
United States v. Shkambi, 993 F.3d 388, 391 (5th Cir. 2021). The First Step
Act amended Section 3582(c)(1)(A) to allow defendants to file
compassionate-release motions after exhausting administrative remedies.
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5239 (2018). As
relevant here, the compassionate-release statute now provides:
[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
[S]ection 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
18 U.S.C. § 3582(c)(1)(A). We summarize its key requirements.
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At the outset, a defendant must exhaust her administrative remedies
before filing a motion for compassionate release. Id. Here, it is undisputed
that Ward exhausted her administrative remedies, as the Bureau of Prisons
failed to respond to her initial request within 30 days.
A defendant who has exhausted her administrative remedies is eligible
for a sentence reduction if the district court finds: (1) that one of the two
conditions set forth in Section 3582(c)(1)(A) is met (here, it must find that
“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.” Id. If the district court makes those
two findings, then the court “may” reduce the defendant’s sentence “after
considering the factors set forth in [S]ection 3553(a) to the extent that they
are applicable.” Id. The district court has discretion to deny compassionate
release if the Section 3553(a) factors counsel against a reduction. See, e.g.,
United States v. Ruffin, 978 F.3d 1000, 1008 (6th Cir. 2020).
The Government made two arguments in opposition to Ward’s
motion. First, it argued that Ward’s “COVID-19 related concerns” are not
“extraordinary and compelling reasons” for compassionate release. Second,
it also asserted that the Bureau of Prisons was adequately managing the
pandemic within federal prisons. The district court accepted that Ward’s
kidney disease was not an “extraordinary and compelling reason,” and it
further found the Section 3553(a) factors did not support release.
We discuss first the district court’s holding that Ward failed to
present an “extraordinary and compelling” reason for a reduction. The
district court discussed Section 1B1.13 of the Guidelines, which lists certain
medical conditions and family circumstances as “extraordinary and
compelling” in a policy statement. After the district court’s decision,
though, we held that Section 1B1.13 is “inapplicable” to motions for
Case: 20-10836 Document: 00515995782 Page: 6 Date Filed: 08/26/2021
compassionate release filed by defendants. Shkambi, 993 F.3d at 392–93. As
a result, a district court errs by treating Section 1B1.13 as binding. Cooper,
996 F.3d at 289.
In this case, the district court did not explicitly state that it considered
Section 1B1.13 to bind its determination, but it relied on Section 1B1.13
exclusively to delineate the contours of what constitutes an “extraordinary
and compelling reason” before concluding that Ward failed to present one.
Accordingly, this part of the district court’s analysis is not a basis to affirm
What remains is the district court’s alternative determination that,
even if Ward was otherwise eligible for a reduction, her motion should be
denied based on the Section 3553(a) factors. The Government made no
mention of the Section 3553(a) factors in its response to Ward’s motion.
Because of that, Ward contends that the Government “waived” reliance on
the Section 3553(a) factors and that the court violated the principle of party
presentation by relying on the factors as a basis for denial.
In examining for error, we begin with the proposition that motions for
compassionate release are inherently discretionary. By statute, a district
court “may” reduce an otherwise-eligible defendant’s sentence “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). Further, we give deference to the
district court’s determination because a “sentencing judge is in a superior
position to find facts and judge their import under [Section] 3553(a) in the
individual case.” Chambliss, 948 F.3d at 693 (quoting Gall v. United States,
552 U.S. 38, 51 (2007)). Altogether, the district court is obligated to consider
the Section 3553(a) factors before deciding whether to order compassionate
release, and we give deference to the district court when it does. We see no
reason to hold that the Government’s failure to make arguments about the
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factors cancels the statutory obligation to consider them. Indeed,
consideration of the factors is as needed to justify granting compassionate
relief as it is to denying release.
Second, the burden falls on the defendant to “convince the district
judge to exercise discretion to grant the motion [for compassionate release]
after considering the [Section] 3553(a) factors.” Shkambi, 993 F.3d at 392.
If the defendant fails to convince the district court to exercise its discretion,
such as in this case, then the court may deny the motion, assuming it
“provide[s] specific factual reasons, including but not limited to due
consideration of the [Section] 3553(a) factors.” Chambliss, 948 F.3d at 693.
This is true regardless of whether the Government raises the Section 3553(a)
factors. Indeed, we agree with an unpublished opinion of this court that a
district court may in proper circumstances deny a motion for compassionate
release without even requesting a response from the Government. See United
States v. Smith, 828 F. App’x 215, 216 & n.1 (5th Cir. 2020). Obviously, in
such a case there are no opposing arguments of any kind.
Third, the district court’s duty to consider the Section 3553(a) factors
at original sentencing supports the conclusion that it has authority to consider
the factors, even if sua sponte, during sentence-modification proceedings. A
judge imposing an original sentence “must always take account of certain
statutory factors,” i.e., the Section 3553(a) factors. Chavez-Meza v. United
States, 138 S. Ct. 1959, 1963 (2018) (emphasis added). Sentencemodification proceedings, such as Section 3582(c)(1) or Section 3582(c)(2)
proceedings, are limited exceptions to the general rule that a sentence “may
not be modified by a district court.” See Dillon v. United States, 560 U.S. 817,
824 (2010). The Supreme Court has not held but only assumed “for
argument’s sake” that “district courts have equivalent duties when initially
sentencing a defendant and when later modifying the sentence.” ChavezCase: 20-10836 Document: 00515995782 Page: 8 Date Filed: 08/26/2021
Meza, 138 S. Ct. at 1965. Flexibility and discretion from rigid rules is
particularly applicable when there is a motion to modify a sentence.
Our analysis so far does not constitute a holding that the Government
cannot forfeit or waive some arguments against compassionate release. For
example, the administrative-exhaustion requirement is a non-jurisdictional
but “mandatory” claim-processing rule. United States v. Franco, 973 F.3d
465, 468 (5th Cir. 2020). Like other claim-processing rules, the Government
must “properly raise the rule” before it will be enforced. Id. Similarly, “an
objection based on a mandatory claim-processing rule may be forfeited ‘if the
party asserting the rule waits too long to raise the point.’” Fort Bend Cnty. v.
Davis, 139 S. Ct. 1843, 1849 (2019) (quoting Eberhart v. United States, 546
U.S. 12, 19 (2005)).
To support her assertion that the Government waived reliance on the
Section 3553(a) factors, Ward cites a case in which we treated as
“abandoned” arguments that were not properly presented in the opening
brief by an appellant. United States v. Lindell, 881 F.2d 1313, 1325 (5th Cir.
1989). An appellate brief, though, is a place to challenge or support another
court’s ruling. We do not see the connection between that principle and the
Government’s ability to block a district court’s consideration of the Section
3553(a) factors by a failure to rely on those factors in its opposition.
Ward also refers to the “principle of party presentation” recently
described by the Supreme Court. Sineneng-Smith, 140 S. Ct. at 1579. Under
this principle, courts ordinarily “rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of matters the parties
present.” Id. (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)).
“[A]s a general rule,” the Court explained, “our system ‘is designed around
the premise that [parties represented by competent counsel] know what is
best for them, and are responsible for advancing the facts and argument
Case: 20-10836 Document: 00515995782 Page: 9 Date Filed: 08/26/2021
entitling them to relief.’” Id. (quoting Castro v. United States, 540 U.S. 375,
386 (Scalia, J., concurring in part and in judgment)). In Sineneng-Smith, the
Supreme Court held that the Ninth Circuit abused its discretion by
conducting a “takeover of the appeal.” Id. at 1581. In a defendant’s appeal
that challenged her statute of conviction, the Ninth Circuit panel appointed
three amici to brief three wholly different theories of relief that the defendant
never herself raised. Id. at 1578. The Court held that the Ninth Circuit
“departed so drastically from the principle of party presentation as to
constitute an abuse of discretion.” Id.
Outcome: An appellate court’s interjection of three wholly different legal
theories in favor of constitutional relief is hardly comparable to a district
court’s complying, unbidden, with its statutory obligation to act only after
considering certain matters. We find no authority that the Government’s
failure to brief the Section 3553(a) factors means it is error for a district court
to apply them.