United States of America v. David Long

Washington, DC - Criminal defense lawyer represented defendant with numerous violent racketeering offenses charges.

As a general rule, a federal court "may not modify a term

of imprisonment once it has been imposed.” 18 U.S.C.

3

§ 3582(c). But this rule of finality is subject to a few narrow

exceptions. Freeman v. United States, 564 U.S. 522, 526

(2011). One of those exceptions is for compassionate release.

In 1984, Congress authorized the Director of the Bureau

of Prisons to ask courts to reduce defendants' sentences in

unusual circumstances. Comprehensive Crime Control Act of

1984, Pub. L. No. 98-473, sec. 212, § 3582(c), 98 Stat. 1837,

1998–1999. The statute provided that a court could, "upon

motion of the Director of the Bureau of Prisons,” reduce a

defendant's term of imprisonment when (1) "extraordinary and

compelling reasons warrant such a reduction,” (2) the

"reduction is consistent with applicable policy statements

issued by the Sentencing Commission[,]” and (3) the reduction

is appropriate "considering the factors set forth in [S]ection

3553(a) to the extent that they are applicable[.]” Id. (codified

at 18 U.S.C. § 3582(c)(1)(A)).

For more than three decades, the statute left the Director

of the Bureau of Prisons in "absolute control over this

mechanism for lenity[.]” United States v. Brooker, 976 F.3d

228, 231 (2d Cir. 2020). The Bureau "used that power so

'sparingly'” that, as of 2013, on average only 24 defendants

were being released annually. United States v. McCoy, 981

F.3d 271, 276 (4th Cir. 2020) (first citing Brooker, 976 F.3d at

231; and then citing Department of Justice, Office of the

Inspector General, The Federal Bureau of Prisons'

Compassionate Release Program 1 (2013), https://www

.oversight.gov/sites/default/files/oig-reports/e1306.pdf).

Displeased with that desuetude, Congress put this problem

in its crosshairs in 2018 when it enacted criminal justice reform

measures in the First Step Act, Pub. L. No. 115-391, 132 Stat.

5194 (2018). See Shon Hopwood, Second Looks & Second

Chances, 41 CARDOZO L. REV. 83, 105–106 (2019). In a

4

Section of the Act entitled "Increasing the Use and

Transparency of Compassionate Release,” First Step Act

§ 603(b), 132 Stat. at 5239, Congress made an important

change to 18 U.S.C. § 3582(c)(1). The Act removed the

Bureau of Prisons as the gatekeeper of compassionate release

and "provid[ed] that defendants now may file motions for

sentence modifications on their own behalf,” as long as they

first exhaust their remedy of applying to the Bureau of Prisons.

McCoy, 981 F.3d at 276. Any such motion for compassionate

release is generally filed with the judge that imposed the

original sentence. See United States v. Keefer, 832 F. App'x

359, 363 (6th Cir. 2020) (considering compassionate release

motion and noting the "common scenario” in which "the

district judge who sentenced the defendant is the same judge

who considers the defendant's reduction-of-sentence motion”).

As a result, the compassionate release statute now provides

in relevant part (with the new First Step Act language

italicized):

[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—

5

(i) extraordinary and compelling reasons warrant

such 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) (emphasis added).

The Sentencing Commission has lacked a quorum since

early 2019, and so it has been unable to update its preexisting

policy statement concerning compassionate release to reflect

the First Step Act's changes. See Brooker, 976 F.3d at 234;

United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020);

see also 28 U.S.C. § 992(b)(2)(B) (voting member of

Commission whose term has expired may continue to serve

until "the date on which the Congress adjourns sine die to end

the session of Congress that commences after the date on which

the member's term expired”); U.S. Senate, Dates of Sessions of

the Congress, https://www.senate.gov/legislative/Datesof

SessionsofCongress.htm (last accessed May 3, 2021) (115th

Congress adjourned Jan. 3, 2019). As a result, the text of the

Sentencing Commission's policy statement still limits

compassionate release to "motion[s] of the Director of the

Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A)[.]”

U.S.S.G. § 1B1.13. The Commission's commentary is to the

same effect: "A reduction under this policy statement may be

granted only upon motion by the Director of the Bureau of

Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A).” U.S.S.G.

§ 1B1.13, Application Note 4.

In substantive terms, the policy statement governing the

Bureau of Prisons' motions provides that a district court may

grant a motion for compassionate release, after considering the

applicable factors listed at 18 U.S.C. § 3553(a), only when it

finds both that "extraordinary and compelling reasons warrant

6

the reduction,” and that "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)[.]” U.S.S.G. § 1B1.13(1)(A), (2).

B

David Long led a narcotics distribution enterprise in the

District of Columbia from the late 1980s through at least

November 2008. In May 2012, he pleaded guilty to one count

of RICO conspiracy in violation of 18 U.S.C. § 1962(d). In

connection with the plea, Long admitted to running a narcotics

enterprise in which he distributed large volumes of heroin to

street-level dealers for sale to consumers.

Long also admitted to several violent crimes as part of his

drug operations. In the summer of 1990, Long kidnapped a

young man named Anthony Morrisey and attempted to extract

a ransom from Morrisey's family and friends. When Long

suspected that the police had been tipped off, he murdered

Morrisey.

In 2002, Long himself was targeted for murder. He

sustained significant injuries, leading to the amputation of both

legs. Long believed that Franklin Moyler was responsible, as

Moyler had demanded money from Long not long before the

attempt on his life.

In 2007, Long paid his co-defendant Rico Thomas $10,000

to kill Moyler. In the same year, Long also contracted to have

two more people murdered, Melvin Terrell and Oakley Majors.

While the hit on Moyler resulted in his death, the other two

targets survived. Terrell was paralyzed and lost his ability to

speak. He has since had an arm amputated, undergone a

lobotomy, and gone blind in one eye.

7

The Guidelines range for Long's RICO conspiracy

conviction would have been life imprisonment, but the

government and Long agreed to a plea under Federal Rule of

Criminal Procedure 11(c)(1)(C) under which Long would be

sentenced to 29 years in prison. The district court accepted that

agreement and imposed the 29-year sentence.

C

Long is incarcerated at the federal medical penitentiary in

Springfield, Missouri. At this point, he has served almost 13

years of his 29-year sentence. His Bureau of Prison records

indicate no disciplinary issues, and he has completed

approximately twenty educational courses during his

incarceration.

On September 4, 2020, Long moved the district court for

compassionate release under 18 U.S.C. § 3582(c)(1)(A). Long

argued that his distinct medical susceptibility to COVID-19

qualified as an extraordinary and compelling reason for the

reduction of his sentence.

The district court denied Long's motion. The court

assumed that Long's health conditions provided an

"extraordinary and compelling reason” for a sentence

reduction, but it nevertheless denied relief because it could not

"conclude that Long no longer poses a danger to the

community” as required by the existing Sentencing Guidelines

policy statement on compassionate release. App. 103; see also

U.S.S.G. § 1B1.13.

Long filed a timely notice of appeal. He argues that the

district court erred in relying on U.S.S.G. § 1B1.13(2) to deny

compassionate release because that Guideline is not an

"applicable policy statement[] issued by the Sentencing

Commission” for defendant-filed motions under the First Step

8

Act. See 18 U.S.C. § 3582(c)(1)(A). Alternatively, he argues

that the district court abused its discretion in finding that he

remains a danger to the community.

II

The district court had jurisdiction under 18 U.S.C. §§ 3231

and 3582(c)(1)(A). The source of our appellate jurisdiction is

an open question in this circuit, and neither party has offered a

basis for it. Yet it is our duty to assure ourselves of jurisdiction

in every case. See Kaplan v. Central Bank of the Islamic

Republic of Iran, 896 F.3d 501, 509 (D.C. Cir. 2018).

Other courts that have heard appeals from denials of

compassionate release have not yet engaged with the

jurisdictional question at any length, although many have cited

28 U.S.C. § 1291. See, e.g., United States v. Handerhan, 789

F. App'x 924, 926 n.2 (3d Cir. 2019); United States v. Gipson,

829 F. App'x 780, 780 (9th Cir. 2020); United States v.

Rodriguez, 837 F. App'x 652, 653 (10th Cir. 2021). Others

have not addressed jurisdiction at all. See, e.g., Brooker, 976

F.3d at 234; Gunn, 980 F.3d at 1180.

In 28 U.S.C. § 1291, Congress provided the federal courts

of appeals with "jurisdiction of appeals from all final decisions

of the district courts of the United States[.]” Decisions denying

sentence reductions "are unquestionably 'final decisions of [a]

district court' because they close the criminal cases once

again.” United States v. Jones, 846 F.3d 366, 369 (D.C. Cir.

2017) (Williams, J.) (quoting 28 U.S.C. § 1291) (formatting

modified). So Section 1291 "obviously looks promising” as a

basis for jurisdiction. Id.

But there is a wrinkle. Another jurisdictional provision,

18 U.S.C. § 3742, allows a defendant to seek "review of an

otherwise final sentence” only in four specified circumstances:

9

If the sentence (1) is "imposed in violation of law”; (2) is

"imposed as a result of an incorrect application of the

sentencing guidelines”; (3) exceeds the maximum fine or term

of imprisonment, probation, or supervised release under the

applicable Guideline range; or (4) is imposed "for an offense

for which there is no sentencing guideline and is plainly

unreasonable.” 18 U.S.C. § 3742(a).

A "would-be appellant cannot use” Section 1291's "broad

grant of jurisdiction to circumvent statutory restrictions on

sentencing appeals in [Section] 3742.” Jones, 846 F.3d at 369.

So if the appeal of a denial of a sentence reduction under

Section 3582(c)(1)(A)'s compassionate release provision

constitutes a request for review of an "otherwise final

sentence” and does not fall within one of the enumerated

circumstances, Section 3742 would prohibit appellate

jurisdiction.

In Jones, though, we expressed "serious doubt” about

whether Section 3742 applies at all in the analogous context of

appeals from the denial of a motion to reduce a sentence under

the compassionate release provision's immediate neighbor, 18

U.S.C. § 3582(c)(2). 846 F.3d at 370. That provision

authorizes sentencing courts to reduce an existing term of

imprisonment when the Sentencing Guidelines range on which

that sentence rested is later lowered by the Sentencing

Commission.1

1 The structure of Section 3582(c)(2) closely parallels that of the

compassionate release provision, Section 3582(c)(1)(A). The former

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

10

Jones centered its analysis on Dillon v. United States, 560

U.S. 817 (2010). There, the Supreme Court ruled that, "[b]y

its terms, § 3582(c)(2) does not authorize a sentencing or

resentencing proceeding[,]” but instead "provides for the

'modif[ication of] a term of imprisonment' by giving courts the

power to 'reduce' an otherwise final sentence in circumstances

specified by the [Sentencing] Commission.” Id. at 825 (first

alteration in original). By distinguishing between proceedings

for the initial imposition of sentence and sentence-modification

proceedings, the Court concluded that a sentence-reduction

proceeding under Section 3582(c)(2) "does not impose a new

sentence in the usual sense.” Id. at 827.

The Supreme Court explained that Congress and the

federal rules have repeatedly addressed the modification of

already-imposed sentences separately and "apart from other

sentencing proceedings.” Dillon, 560 U.S. at 828. For

example, the jurisdictional provision, Section 3742, itself

contemplates only procedures "impos[ing]” sentences initially

or through resentencing. 18 U.S.C. § 3742(a)(1), (2) & (4); see

also id. § 3742(f) (authorizing remand to district court for

"further sentencing” if court of appeals finds error); id.

§ 3742(g) (describing procedures for district court to

"resentence” defendant upon remand); Dillon, 560 U.S. at 825

(citing Section 3742 to show that sentencing and resentencing

proceedings are distinct from sentence-modification

proceedings). Section 3742 says nothing about the "sentence

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).

11

modification” procedures set out in Section 3582(c)(2) or in

any other type of post-imposition adjustment in sentences.

Similarly, Federal Rule of Criminal Procedure 43 requires

that a defendant "must be present at * * * sentencing.” FED. R.

CRIM. P. 43(a)(3); see also United States v. Garcia-Robles, 640

F.3d 159, 164 (6th Cir. 2011) ("Every circuit court to address

the issue has held that when resentencing is directed pursuant

to a general remand order, a defendant is entitled to be

present[.]”). But the same rule specifies that defendants "need

not be present” for a "proceeding involv[ing] the correction or

reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).”

FED. R. CRIM. P. 43(b).

Dillon's doctrinal distinction between the imposition of a

sentence under Section 3742 and sentence-modification

proceedings also makes practical sense. That is because, "[b]y

definition, a sentence must already have been imposed” before

a sentence-modification rule may be invoked "and a sentence

reduction contemplated.” United States v. McAndrews, 12 F.3d

273, 277 (1st Cir. 1993). This point is evident even in Section

3582(c)'s title, which calls for the "Modification of an Imposed

Term of Imprisonment.” 18 U.S.C. § 3582(c); see also

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

473, sec. 212, § 3582(c), 98 Stat. at 1998.

For the same reasons that a sentence modification under

Section 3582(c)(2) does not fall within Section 3742's

jurisdictional bar, neither does a compassionate release

application for modification of a sentence under

Section 3582(c)(1)(A). The same textual and logical reasons

explicated in Dillon and Jones apply with equal force to

(c)(1)(A) as they do to (c)(2). All a decision on the application

for compassionate release does is operate upon and modify—

or leave unchanged—an already-existing and already-imposed

12

sentence. Cf. McAndrews, 12 F.3d at 277. And an order

denying a requested sentence modification leaves the

preexisting sentence untouched, and so cannot sensibly be said

to impose a final sentence. We therefore hold that Section 3742

is no obstacle to our exercise of jurisdiction under 28 U.S.C.

§ 1291 over this appeal of a denial of compassionate release.

That said, even if an appeal from the denial of a

compassionate release motion were to constitute the imposition

of a final sentence within the meaning of Section 3742, Long's

appeal would fall within one of the allowable bases for appeal.

Section 3742(a)(2) authorizes defendants to seek appellate

review of "an otherwise final sentence if the sentence * * * was

imposed as a result of an incorrect application of the sentencing

guidelines[.]” 18 U.S.C. § 3742(a)(2). That is precisely what

Long argues here. See Long Mem. 14.

In short, the district court's disposition of Long's motion

for compassionate release was either a sentence-modification

ruling appealable under 28 U.S.C. § 1291, consistent with our

decision in Jones, or the imposition of a final sentence resulting

from a misapplication of the Sentencing Guidelines, providing

jurisdiction under 18 U.S.C. § 3742(a)(2).

III

A

While we have not previously established the standard of

review for decisions on compassionate release motions under

18 U.S.C. § 3582(c)(1), we have reviewed motions for

sentence reductions under Section 3582(c)(2) for an abuse of

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

2018); United States v. Wyche, 741 F.3d 1284, 1291–1292

(D.C. Cir. 2014); see also United States v. White, 984 F.3d 76,

85 (D.C. Cir. 2020). Because of their similar character, abuse

13

of discretion is also the appropriate standard of review in

compassionate release appeals, as numerous other circuits have

recognized. See United States v. Pawlowski, 967 F.3d 327, 330

(3d Cir. 2020); United States v. Thompson, 984 F.3d 431, 433

(5th Cir. 2021); United States v. Kimball, 988 F.3d 945, 947

(6th Cir. 2021); United States v. Saunders, 986 F.3d 1076, 1078

(7th Cir. 2021). That standard "comports with the language of

the statute,” which provides that the district court "may [not

shall] reduce the term of imprisonment.” Pawlowski, 967 F.3d

at 330 (alteration in original) (quoting United States v. Mateo,

560 F.3d 152, 154 n.2 (3d Cir. 2009)). It also reflects the

important discretion afforded the district court in the weighing

of relevant factors and its expertise in evaluating the

appropriateness of a sentence reduction given its role in

originally sentencing the individual.

But because Long seeks reversal on the basis of an

argument—the inapplicability of the existing Sentencing

Commission policy statement to his compassionate release

application—that he did not raise before the district court, we

must review the denial of his motion only for plain error. See

FED. R. CRIM. P. 52(b); Puckett v. United States, 556 U.S. 129,

135 (2009). Under plain error review, we may reverse only if

(1) the district court committed error; (2) the error is "plain”;

(3) the error affects the defendant's "substantial rights”; and

(4) the error "seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Taylor,

497 F.3d 673, 676 (D.C. Cir. 2007) (formatting modified)

(quoting Johnson v. United States, 520 U.S. 461, 466–467

(1997)); see United States v. Olano, 507 U.S. 725, 732 (1993).

Long argues that we should review the applicability of

U.S.S.G. § 1B1.13 de novo as a question of statutory

construction. That we cannot do. The Federal Rules of

Criminal Procedure "compel[]” the application of plain error

14

review to unpreserved arguments in criminal appeals. Puckett,

556 U.S. at 143. As a result, we lack the discretion we possess

in civil cases "to determine what questions to consider and

resolve for the first time on appeal” through de novo review.

See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416,

419 n.5 (D.C. Cir. 1992); see also Al Bahlul v. United States,

767 F.3d 1, 10–11 & n.7 (D.C. Cir. 2014) (en banc) (applying

plain error to statutory construction question).

B

The government argues that Long is not even entitled to

plain error review because he invited the district court to apply

U.S.S.G. § 1B1.13 to his case. The government

misunderstands the scope of the invited error doctrine.

It is settled that a defendant "may not complain about

invited error” on appeal. United States v. Brown, 892 F.3d 385,

393 (D.C. Cir. 2018). "Invited error occurs when defense

counsel induces the error” through their litigation conduct

before the district court. United States v. Lawrence, 662 F.3d

551, 557 (D.C. Cir. 2011).

But not every mistake by defense counsel is an invited

error. The invited error doctrine is an equitable doctrine that

"seeks to avoid rewarding mistakes stemming from a

defendant's own intelligent, deliberate course of conduct in

pursuing his defense.” United States v. Bastian, 770 F.3d 212,

218 (2d Cir. 2014) (emphasis added; formatting modified).

Said another way, "'[s]tatements amounting to invited error are

a species of waiver' and generally evince an 'intent' by the

speaker to convince 'the district court to do [something that] it

would not otherwise have done.'” United States v. Lerma, 877

F.3d 628, 632 (5th Cir. 2017) (second alteration in original)

(quoting United States v. Rodebaugh, 798 F.3d 1281, 1304

(10th Cir. 2015)).

15

Invited error, then, involves intentional "strategic

gambit[s]” designed to induce the trial court to take a desired

action. Bastian, 770 F.3d at 219. It does not extend to every

unintentional "oversight” or innocent mistake that counsel

might make. Id.; see also United States v. Coffelt, 529 F. App'x

636, 639 n.2 (6th Cir. 2013) ("[T]his case is a far cry from a

case of gamesmanship or a tactical decision gone wrong, which

is the typical factual scenario when the invited-error doctrine is

applied.”).

We drew that same line in In re Sealed Case, 108 F.3d 372

(D.C. Cir. 1997), when we held that the invited error doctrine

did not apply where defense counsel incorrectly represented to

the court that his client was tied to the distribution of the total

quantity of drugs in the case (seven kilograms) rather than the

correct smaller number applicable to his actions (four

kilograms), id. at 373. We concluded that defense counsel's

blunder did not amount to invited error because "it [was] not as

if counsel made a strategic decision” in telling the court that

seven kilograms was the relevant number. Id. at 374. Counsel

just misspoke due to errors in the presentencing report. See id.

at 373–374. So while the defendant "acquiesced in what he

now claims is error, * * * he did not invite it”—instead, "it was

simply a mistake.” Id. at 374.

In this case, Long's motion laid out the elements for

compassionate release under the First Step Act, including the

requirement that release be "consistent with applicable policy

statements issued by the Sentencing Commission.” Mot. for

Compassionate Release at 4, United States v. Long, No. 10-cr171 (D.D.C. Sept. 4, 2020), ECF No. 347 (quoting 18 U.S.C.

§ 3582(c)(1)(A)). The motion then noted that the Commission

had addressed compassionate release in its existing policy

statement, U.S.S.G. § 1B1.13, and quoted its factors, including

that the defendant "pose[] no danger to the safety of any person

16

or the community,” Mot. for Compassionate Release, supra, at

4 (citing U.S.S.G. § 1B1.13(2)). Other than that, Long's

counsel did not mention the policy statement or advocate for

its application to his case.

That error was a mere mistake, not a strategy or tactic. The

motion simply referenced the existing policy statement, as it

was the only one to be found. But counsel never affirmatively

argued that the statement was applicable to defendant motions

under the First Step Act nor urged the district court to apply it

as controlling. In fact, Long's motion did not treat the policy

statement's dangerousness criterion as relevant because it

never addressed dangerousness at all. See App. 61–71.

Nothing in that reference to the policy provision suggests that

Long meant to mislead the district court or to strategically

induce the district court to enforce an unargued criterion

against him.

In fact, it was the government that expressly urged the

district court to apply the policy statement in spite of the First

Step Act's revisions to the compassionate release statute. Opp.

to Mot. for Compassionate Release at 7 n.1, Long, No. 10-cr171 (D.D.C. Sept. 17, 2020), ECF No. 349 ("[T]he policy

statement applies to motions filed by defendants as well.”).

And it was the government that encouraged the district court to

resolve the motion based on the policy statement's

dangerousness factor alone. See id. at 10. In other words, the

government provided the district court with all of the

ammunition it needed to deny Long's motion on the basis of

the policy statement's dangerousness criterion. Nothing in the

record remotely suggests that the outcome would have changed

if Long had omitted reciting the policy statement in his motion.

17

Finding no invited error, we apply the plain error standard

to Long's argument on appeal that U.S.S.G. § 1B1.13 is

inapplicable to his application for compassionate relief.

IV

Long argues that the district court erred in relying upon the

Sentencing Commission's pre–First Step Act policy statement

to deny his motion for compassionate release. More

specifically, he contends that the district court should not have

treated as controlling the policy statement's requirement that

release be denied if he remained "a danger to the safety of any

other person or to the community.” U.S.S.G. § 1B1.13(2).

Long reasons that Section 1B1.13 of the Sentencing Guidelines

is not an "applicable policy statement” within the meaning of

18 U.S.C. § 3582(c)(1)(A) because it predates the First Step

Act and so speaks only to motions for compassionate release

filed by the Director of the Bureau of Prisons.

Long is correct, and that error was plain.

A

1

Under the First Step Act, courts must apply any

"applicable policy statements” issued by the Sentencing

Commission. 18 U.S.C. § 3582(c)(1)(A). As seven circuit

courts have ruled, U.S.S.G. § 1B1.13 is not "applicable” to

defendant-filed motions for compassionate release under the

First Step Act. See United States v. Brooker, 976 F.3d 228, 235

(2d Cir. 2020); United States v. McCoy, 981 F.3d 271, 282 (4th

Cir. 2020); United States v. Shkambi, 993 F.3d 388, 392–393

(5th Cir. 2021); United States v. Jones, 980 F.3d 1098, 1109–

1111 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178,

1180–1181 (7th Cir. 2020); United States v. Aruda, 993 F.3d

18

797, 802 (9th Cir. 2021); United States v. McGee,

992 F.3d 1035, 1050 (10th Cir. 2021). But see United States v.

Bryant, --- F.3d ----, 2021 WL 1827158, at *1–16 (11th Cir.

May 7, 2021).

The policy statement's inapplicability is plain on its face.

By its terms, the policy statement applies only to motions for

compassionate release filed by the Bureau of Prisons, not by

defendants. See U.S.S.G. § 1B1.13 ("Upon motion of the

Director of the Bureau of Prisons under 18 U.S.C. § 3582(a)(1)

* * * .”); McCoy, 981 F.3d at 282 (Section 1B1.13's "very first

sentence constrains the entire policy statement to motions filed

solely by the [Bureau of Prisons], and not by defendants

themselves.”) (citation omitted; formatting modified).

The Sentencing Commission's accompanying

commentary drives the point home: "A reduction under this

policy statement may be granted only upon motion by the

Director of the Bureau of Prisons pursuant to 18 U.S.C.

§ 3582(c)(1)(A).” U.S.S.G. § 1B1.13, Application Note 4; see

also McCoy, 981 F.3d at 282 (Note 4 "confirm[s]” the

inapplicability of U.S.S.G. § 1B1.13's policy statement to

defendant-filed motions). And the commentary to the

Guidelines, unless it is inconsistent with the Guidelines' plain

text (which no one argues here), is authoritative. Stinson v.

United States, 508 U.S. 36, 38 (1993).

The Sentencing Commission, for its part, has never

suggested that its existing policy statement applies to defendant

motions under the First Step Act. The Commission, in fact, has

issued no policy statement applicable to the First Step Act

because it has lacked a quorum since shortly after that Act's

passage.

19

In short, if a compassionate release motion is not brought

by the Director of the Bureau of Prisons, U.S.S.G. § 1B1.13,

by its own terms, is not applicable. Brooker, 976 F.3d at 236.

2

None of the government's counterarguments succeed.

First, the government says that we should disregard the

plain language of the policy statement and hold that the policy

statement is applicable to defendant-filed motions because, in

its view, Congress did not mean to "divest[] § 1B1.13 from its

well-established role as the applicable policy statement

governing all compassionate release motions.” Gov't

Mem. 17.

That is a no go. Courts have no license under the First Step

Act to perform "quick judicial surgery on [U.S.S.G.] § 1B1.13,

* * * editing out the language” that expressly confines its

operation to motions filed by the Bureau of Prisons. McCoy,

981 F.2d at 282. There is no ambiguity in the policy

statement's scope, and "[w]e cannot replace the actual text with

speculation as to Congress' intent.” Magwood v. Patterson,

561 U.S. 320, 334 (2010).

Second, the government invokes the presumption that

Congress legislates against and preserves existing law and

background understandings. See Gov't Mem. 18–20 (citing

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–185

(1988) and United States v. Wilson, 290 F.3d 347, 356 (D.C.

Cir. 2002)).

But that canon of construction gets the government

nowhere because we would equally have to presume that

Congress was aware that the preexisting policy statement

applied exclusively to motions filed by the Bureau of Prisons.

20

The presumption that Congress knows what existing law says

means just that: Congress knows what the policy statement

says. And what it does not say.

Anyhow, the government has the order of operations

exactly backwards. The policy statements of the Sentencing

Commission are not background understandings against which

Congress legislates. They flow from and are responsive to

Congress's changes to the law. See 28 U.S.C. § 994(a)(2)(C)

(authorizing the Commission to promulgate "general policy

statements” that in its view would "further the purposes set

forth in” 18 U.S.C. § 3553(a)(2), including "the appropriate use

of * * * the sentence modification provisions set forth in”

Section 3582(c)). So under this scheme, Congress leads and

the Commission follows. Any change by Congress to the

substantive reach of the statutory sentencing scheme may

rightly be expected to result in a change to the policy statements

guiding those statutes' implementation.

Third, the government argues that "it would be absurd

* * * to conclude that Congress and the Commission intended

for the dangerousness requirement to apply or not based on

who filed the motion[.]” Gov't Mem. 20.

Hardly. To begin with, courts may not use the absurdity

canon to set aside plain text unless "the absurdity and injustice

of applying the provision to the case[] would be so monstrous

that all mankind would, without hesitation, unite in rejecting

the application.” Pirie v. Chicago Title & Trust Co., 182 U.S.

438, 452 (1901) (quoting Sturges v. Crowninshield, 17 U.S. (4.

Wheat) 122, 203 (1819) (Marshall, C.J.)); see also Stovic v.

Railroad Ret. Board, 826 F.3d 500, 505 (D.C. Cir. 2016)

(same).

No such absurdity is afoot here. For defendant motions

under the First Step Act, courts still must consider and weigh

21

the factors laid out in Section 3553(a), which include the need

"to protect the public from further crimes of the defendant” and

to ensure "adequate deterrence to criminal conduct.” 18 U.S.C.

§ 3553(a)(2)(B) & (C); see 18 U.S.C. § 3582(c)(1)(A)

(requiring courts to weigh the Section 3553 factors in

compassionate release decisions whether filed by the

government or the Bureau of Prisons). So even without the

policy statement, courts will still consider the anticipated effect

of compassionate release on crime and public safety for

defendant-filed motions as part of their weighing of relevant

considerations.

All that the pre–First Step Act policy statement did was

make that dangerousness factor a rigid precondition to release.

Surely all humankind would not recoil in horror at the prospect

of the same Congress that wished to expand access to

compassionate release also trusting courts to balance all

relevant considerations as part of a release decision, including

the ability to reduce the risk of criminality by imposing strict

supervised release conditions.

Apparently Congress would not blanch at the idea either.

When it wanted to make a lack of dangerousness an explicit

and inflexible precondition to release, it knew how to say so.

As it did in the very next provision of Section 3582(c)(1)(A).

For compassionate release motions based on the age of the

defendant (70 or more years old), and not on extraordinary or

compelling reasons, Congress has expressly proscribed courts

from ordering release unless the Director of the Bureau has

certified that "the defendant is not a danger to the safety of any

other person or the community, as provided under

[S]ection 3142(g).” 18 U.S.C. § 3582(c)(1)(A)(ii).

22

Anyhow, how absurd can Long's reading of the First Step

Act really be given that seven other circuits have already

adopted it?

B

Of course, finding error in the district court's reliance on

the U.S.S.G. § 1B1.13 policy statement is just the first step

down the road for Long. Because Long did not preserve this

argument below, we must also find that the error was "plain.”

See United States v. Terrell, 696 F.3d 1257, 1260 (D.C. Cir.

2012). With the benefit of hindsight that the district court did

not enjoy, we find reliance on the policy statement and its

dangerousness criterion to have been plain error.

The easiest case for plain error is when "a clear precedent

in the Supreme Court or this circuit establishe[s] [a decision's]

erroneous character.” Terrell, 696 F.3d at 1260. While seven

circuit court decisions go a long way, neither the Supreme

Court nor this circuit has yet spoken on the inapplicability of

the pre–First Step Act policy statement.

But that is not the universe of plain error. Even in the

absence of binding precedent, "an error can be plain if it

violates an 'absolutely clear' legal norm, 'for example, because

of the clarity of a statutory provision.'” In re Sealed Case, 573

F.3d 844, 851 (D.C. Cir. 2009) (quoting United States v.

Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)); see also United States

v. Abney, 957 F.3d 241, 252 (D.C. Cir. 2020); United States v.

Joaquin, 326 F.3d 1287, 1293 (D.C. Cir. 2003).

This case fits that bill. The plain language of the existing

policy statement is applicable only to compassionate release

motions filed by the Director of the Bureau of Prisons, and it is

facially inapplicable to those motions filed by defendants under

the later-enacted First Step Act.

23

The error is at least as plain here as it was in Sealed Case

and Joaquin. In both of those cases, we found that the relevant

statutory and Sentencing Guidelines texts, respectively, were

sufficiently clear that the district court's contrary interpretation

was plain error—even though other circuits had taken the

opposite view. See Sealed Case, 573 F.3d at 851–852;

Joaquin, 326 F.3d at 1292–1293. Here, the score in favor of

Long's interpretation is seven circuits to one.

The government points to an unpublished and nonprecedential decision of the Third Circuit in United States v.

Doe, 833 F. App'x 366 (3d Cir. 2020). But the court of appeals

in that case did not address the applicability of U.S.S.G.

§ 1B1.13 at all. Nor did the defendant there raise that issue on

appeal. See Brief for John Doe, Doe, 833 F. App'x 366 (3d

Cir. Aug. 17, 2020) (No. 20-2650), ECF No. 18. All the Third

Circuit held was that, despite the defendant's "challeng[es to]

the District Court's assessment of his danger to the community

under § 3142(g) and the sentencing factors set forth

in § 3553(a)[,]” the district court did not abuse its discretion in

denying compassionate release. Doe, 833 F. App'x at 368.2



2 At the time the government filed its memorandum in this court,

unpublished decisions in two other circuits had applied the existing

policy statement to defendant-filed motions for compassionate

release without analyzing the applicability question. Gov't Mem.

16–17 (citing United States v. Bell, 823 F. App'x 283 (5th Cir. 2020)

and United States v. Saldana, 807 F. App'x 816 (10th Cir. 2020)).

Both of those circuits have since ruled in precedential decisions that

the policy statement is not "applicable” within the meaning of the

First Step Act, 18 U.S.C. § 3582(c)(1)(A). See Shkambi, 993 F.3d

at 392–393; McGee, 992 F.3d at 1050.

24

Recently, a divided decision of the Eleventh Circuit ruled

that U.S.S.G. § 1B1.13 is applicable to defendant motions for

compassionate release. Bryant, 2021 WL 1827158, at *6. The

court reasoned that the pre–First Step Act policy statement is

"capable of being applied” to those motions, and so it must be

"applicable” within the meaning of 18 U.S.C. § 3582(c)(1)(A).

Id. at *6–7.

But that opinion's reliance on dictionary definitions of

"applicable” misses the forest for a tree. The decision ignores

all of the other words in Section 1B1.13 that already state in

plain and clear terms when the policy statement applies: "Upon

motion of the Director of the Bureau of Prisons[.]” U.S.S.G.

§ 1B1.13. As Judge Martin explained, the opinion's

"dictionary-based theory about when a policy statement may

be 'applicable' flies in the face of the statement's plain text that

tells us when it is actually 'applicable.'” Bryant, 2021 WL

1827158, at *20 (Martin, J., dissenting). In other words, this

policy statement "is capable of being applied” to Long's

motion, id. at *6, only if we take an eraser to the words that say

the opposite.

The Eleventh Circuit backhanded the policy statement's

express text as "prefatory” language that just "orients the

reader by paraphrasing the statute as it existed at the time the

policy statement was enacted.” Bryant, 2021 WL 1827158,

at *11. Not so. The opening language is not mere prologue.

Cf., e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969, 1977–1978 (2016). Quite the opposite, the policy

statement's first words—"Upon motion of the Director of the

Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A)”—set out

a rigid and indispensable condition of release: that the Bureau

of Prisons itself agrees that relief is warranted. In that way, the

beginning of the policy statement puts into effect Congress's

(now superseded) command that motions for compassionate

25

release may be filed only by the Bureau of Prisons. See United

States v. Cogdell, 154 F. App'x 162, 164 (11th Cir. 2005)

(defendant did not qualify for downward adjustment under

U.S.S.G. § 3E1.1(b) because such an adjustment could be

granted only "upon motion of the government” and the

government did not so move). To dismiss these words as inert

preface is to ignore a direct textual instruction and central

statutory feature of the compassionate release scheme prior to

the First Step Act.

That essential function of Section 1B1.13's opening words

makes stark the policy statement's inapplicability to the post–

First Step Act world where Congress took compassionate

release motions out of the Bureau of Prisons' exclusive control.

Those words likewise highlight that Section 1B1.13 does not

reflect any policy statement or policy judgment by the

Sentencing Commission about how compassionate release

decisions should be made under the First Step Act, in which a

Congress dissatisfied with the stinginess of compassionate

release grants deliberately broadened its availability.

At bottom, for a policy statement to be "applicable,” it

must, at a minimum, take account of the relevant legislation

and the congressional policy that it embodies. Section 1B1.13

does not do that. And so the problem with the Eleventh

Circuit's approach is that it asked the wrong question. The

issue here is not the meaning of "applicable,” but rather

whether the pre–First Step Act policy statement is applicable.

It plainly is not.

The district court's error, while plain, was understandable.

Long did not present the question of the policy statement's

applicability to the district court, while the government argued

that it was applicable. So the district court did not have the

benefit of adversarial briefing on the question. And at the time,

26

some district courts, including within this circuit, had reached

the same conclusion that the district court did here. See, e.g.,

United States v. Goldberg, No. 12-cr-180 (BAH), 2020 WL

1853298 (D.D.C. April 13, 2020); United States v. Alonzo, ---

F. Supp. 3d ---- , 2021 WL 327571 (E.D. Tex. Feb. 1, 2021).

But see United States v. Quinn, 467 F. Supp. 3d 824, 830 (N.D.

Cal. 2020); United States v. Beck, 425 F. Supp. 3d 573, 579

(M.D.N.C. 2019). None of the circuit courts had yet weighed

in.

The plainness of an error, however, is evaluated at the time

of appellate review, not at the time the district court ruled.

Henderson v. United States, 568 U.S. 266, 279 (2013). Under

that test, the combination of clear text and overwhelming and

vigorously reasoned authority from seven other circuits (and

the unpersuasiveness of the Eleventh Circuit's analysis) make

the error plain.

C

To survive plain error review, Long must demonstrate not

just a plain error, but also that the error affected his "substantial

rights,” Johnson, 520 U.S. at 468. Usually, an error will affect

the defendant's substantial rights if there is a "'reasonable

probability that, but for the error,' the outcome of the

proceeding would have been different.” Molina-Martinez v.

United States, 136 S. Ct. 1338, 1343 (2016) (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). In

other words, Long must show prejudice. Puckett, 556 U.S.

at 141. Long has met that task.

In Molina-Martinez, the Supreme Court held that an error

by the district court in calculating a range under the Sentencing

Guidelines, "whether or not the defendant's ultimate sentence

falls within the correct range[,] * * * can, and most often will,

be sufficient to show a reasonable probability of a different

27

outcome absent the error” and, thus, prejudice under the plain

error standard. 136 S. Ct. at 1345. This is because the

Guidelines are the "essential framework” and "lodestar” for

sentencing proceedings. Id. at 1345–1346. Because of "the

centrality of the Guidelines in the sentencing process,” the

Supreme Court concluded, the district court's misapplication

of the Guidelines to determine a sentencing range should

generally suffice to establish prejudice, even if "there is no

other evidence that the sentencing outcome would have been

different had the correct range been used.” Id. at 1346.

The showing of prejudice is even starker here than in

Molina-Martinez. While the district court in Molina-Martinez

could have departed from the miscalculated advisory

Guidelines range, United States v. Booker, 543 U.S. 220, 264

(2005), where applicable, the policy statement requires courts

to deny compassionate release unless they affirmatively find

that "the defendant is not a danger to the safety of any other

person or to the community,” U.S.S.G. § 1B1.13(2).

Cf. Dillon, 560 U.S. at 819, 828–830 (holding the Sentencing

Commission's policy statements are binding on a court

considering a motion for sentencing reduction under

§ 3582(c)(2)). In other words, the court mistakenly believed

that the policy statement's lack-of-dangerousness prerequisite

gave it no choice but to deny Long's motion, and that erroneous

premise formed both the beginning and the end of its inquiry.

In that way, the district court's mistaken application of an

otherwise mandatory Sentencing Guidelines prohibition

affected Long's sentencing outcome at least if not more

"systemic[ally]” than a discretionary-but-frequently-adopted

Guidelines range. See Molina-Martinez, 136 S. Ct. at 1346.

And as a result, the court never had an opportunity to evaluate

whether release was warranted upon a balancing of the

28

Section 3553(a) factors and consideration of release

restrictions.

The government argues that there was no prejudice

because the district court would have considered Long's

dangerousness under the Section 3553(a) balancing framework

and likely would have denied the motion on that basis.

But Section 3553(a) requires a discretionary balancing of

multiple factors, not just dangerousness. Under that provision,

courts weigh (1) the nature and circumstances of the offense

and the history and characteristics of the defendant; (2) the

need for the sentence imposed (A) to reflect the seriousness of

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

punishment; (B) to afford adequate deterrence to criminal

conduct; (C) to protect the public from further crimes of the

defendant; and (D) to provide the defendant with needed

educational or vocational training, medical care, or other

correctional treatment in the most effective manner; (3) the

kinds of sentences available; (4) the kinds of sentence and the

sentencing range established for the applicable category of

offense committed by the applicable category of defendant as

set forth in the Guidelines; (5) any pertinent policy statement

issued by the Sentencing Commission; (6) the need to avoid

unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct;

and (7) the need to provide restitution to any victims of the

offense. 18 U.S.C. § 3553(a).

Because the district court treated U.S.S.G. § 1B1.13's

dangerousness criterion as a categorical bar on relief, "the

record is silent as to what the district court might have done”

upon balancing all of those factors as an exercise of informed

discretion, Molina-Martinez, 136 S. Ct. at 1347. And the

discretion afforded by Section 3553(a) is the district court's to

29

exercise in the first instance. See United States v. Peyton, 745

F.3d 546, 557 (D.C. Cir. 2014) (noting that "[w]e are a court of

review, not of first view” and remanding to the district court

for consideration of issue it had "no occasion to address”);

Gunn, 980 F.3d at 1181 (remanding to district court for

resolution of compassionate release motion under statutory

standard after holding that U.S.S.G. § 1B1.13 is inapplicable).

See generally Pullman-Standard v. Swint, 456 U.S. 273, 291

(1982) (When a district court "has failed to make a finding

because of an erroneous view of the law, the usual rule is that

there should be a remand for further proceedings to permit the

trial court to make the missing findings.”).

Because "the record is silent as to what the district court

might have done had it considered the correct” factors, the

district court's reliance on an incorrect Guidelines policy

statement is "suffic[ient] to show an effect on [Long's]

substantial rights.” Molina-Martinez, 136 S. Ct. at 1347.

D

Finally, we hold that the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.

Under this factor, "[w]e have repeatedly opted to correct plain

sentencing errors that, if left uncorrected, would result in a

defendant serving a longer sentence.” Sealed Case, 573 F.3d

at 853.

In a similar vein, Long has sought compassionate release

asserting extraordinary and compelling circumstances for

expeditious relief. If we do not correct this error, we would

permanently close the door on any prospect of that release, and

even on the district court's discretionary consideration of all

the factors bearing on such a decision. As the Supreme Court

has explained in an analogous circumstance, the "risk of

30

unnecessary deprivation of liberty particularly undermines the

fairness, integrity, or public reputation of judicial proceedings

in the context of a plain Guidelines error because of the role the

district court plays” in applying the Guidelines "and the

relative ease of correcting the error.” Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1908 (2018). Indeed, "what

reasonable citizen wouldn't bear a rightly diminished view of

the judicial process and its integrity if courts refused to correct

obvious errors of their own devise that threaten to require

individuals to linger longer in federal prison than the law

demands?” Id. at 1908 (quoting United States v. Sabillon–

Umana, 772 F.3d 1328, 1333–1334 (10th Cir. 2014) (Gorsuch,

J.))

For all of those reasons, we vacate the judgment of the

district court and remand for consideration of Long’s

compassionate relief application under the correct legal

standard.