UNITED STATES v. BASS (2021)

ORDER

The government appeals the grant of Defendant John Bass's motion for compassionate release. The district court immediately released him from his life sentence without the possibility of release for conspiracy to distribute cocaine and cocaine base and firearms murder during or in relation to a drug trafficking crime. The government moves to stay Bass's release. Bass opposes a stay, and the government replies.

“The party requesting a stay bears the burden of showing that the circumstances justify an exercise of [our] discretion.” Nken v. Holder, 556 U.S. 418, 433−34, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). We balance four factors to determine whether a stay is appropriate: (1) whether the government “has made a strong showing that [it] is likely to succeed on the merits”; (2) whether the government “will be irreparably injured absent a stay”; (3) “whether issuance of the stay will substantially injure” other interested parties; and (4) “where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987). Further, the court may consider any danger a defendant might pose to the public if released, and the government's interest in continuing custody pending a decision on the merits of the appeal. Id. at 777, 107 S.Ct. 2113. Where the government “establishes that it has a strong likelihood of success on appeal, or where, failing that, it can nonetheless demonstrate a substantial case on the merits, continued custody is permissible if the second and fourth factors in the traditional stay analysis militate against release.” Id. at 778, 107 S.Ct. 2113.

A district court may reduce a defendant's term of imprisonment after considering the applicable factors under 18 U.S.C. § 3553(a) if it finds that “extraordinary and compelling reasons warrant such a reduction”; the reduction is “consistent with applicable policy statements issued by the Sentencing Commission”; and the sentencing factors outlined in § 3553(a), to the extent they apply, support a reduction. 18 U.S.C. § 3582(c)(1)(A); see United States v. Ruffin, 978 F.3d 1000, 1004−05 (6th Cir. 2020). We review the grant of compassionate release under the deferential abuse-of-discretion standard. See United States v. Jones, 980 F.3d 1098, 1112 (6th Cir. 2020).

The statute does not define what constitutes “extraordinary and compelling reasons.” Although the Sentencing Commission defined them in a policy application note, see USSG § 1B1.13, comment. (n.1), that section applies only to motions brought by the Bureau of Prisons (“BOP”), not to defendant-filed motions. United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021). Thus, when considering defendant-filed motions for compassionate release, “district courts have full discretion” to determine what reasons are “extraordinary and compelling.” Jones, 980 F.3d at 1111. A defendant whose medical conditions increase his risk of severe illness may be able to demonstrate extraordinary and compelling reasons supporting release. See United States v. Thompson, 984 F.3d 431, 434 (5th Cir. 2021). This threshold is not met when an otherwise healthy defendant seeks compassionate release on the basis of well-controlled medical conditions and has not completed a substantial portion of his sentence. See id. 434−35. The Centers for Disease Control and Prevention, however, identifies individuals “with severe obesity, defined as having a BMI of 40 or higher[,]” regardless of age, as being at increased risk of severe illness should they contract COVID-19. United States v. Ramirez, No. 18-20676, 2021 WL 168594, at *1 (E.D. Mich. Jan. 19, 2021); see also Elias, 984 F.3d at 521 (“Relying on official guidelines from the CDC is a common practice in assessing compassionate-release motions.”). The parties do not dispute that Bass is morbidly obese. Whether morbid obesity is an extraordinary and compelling reason supporting compassionate release is questionable, but we need not resolve that issue now. Thus, we assume without deciding that the district court did not abuse its discretion in finding that Bass's morbid obesity constituted an extraordinary and compelling reason supporting his release.¹

The more challenging issue is whether the district court abused its discretion in concluding that releasing Bass early was consistent with the § 3553(a) factors. The district court set out each of these factors, which include: the “nature and circumstances” of Bass's offenses; his “history and characteristics”; the need for his sentence “to reflect the seriousness of the offense[s], to promote respect for the law, and to provide just punishment” for his offenses; “to afford adequate deterrence to criminal conduct”; the need to protect the public from Bass reoffending; to provide Bass with education, training, or medical treatment; “the kinds of sentences available”; Bass's guidelines range; and the need to avoid sentencing disparities among defendants with similar records who are found guilty of similar conduct. 18 U.S.C. § 3553(a)(1)−(6). When reviewing the grant of compassionate release, courts should also consider “the entire record, including the court's balancing of the § 3553(a) factors at the original sentencing.” See Ruffin, 978 F.3d at 1008 (citing Chavez-Meza v. United States, ––– U.S. ––––, 138 S. Ct. 1959, 1966−67, 201 L.Ed.2d 359 (2018)). Further, the record should reflect that the district court “considered the parties’ arguments and had a reasoned basis for exercising its own legal decisionmaking authority.” Id. (alterations removed) (quoting Chavez-Meza, 138 S. Ct. at 1967); see Jones, 980 F.3d at 1113. And, as at sentencing, “[t]he district court is best situated to balance the § 3553(a) factors.” Jones, 980 F.3d at 1114 (quoting United States v. Kincaid, 802 F. App'x 187, 189 (6th Cir. 2020)) (order).

Despite the heightened deference afforded the district court, there is little, if any, authority considering the scope of a district court's discretion in the context of granting compassionate release. An abuse of discretion may occur, however, if the district court “engaged in a substantively unreasonable balancing of the § 3553(a) factors.” Ruffin, 978 F.3d at 1005; cf., e.g., United States v. Boucher, 937 F.3d 702, 707−14 (6th Cir. 2019) (finding that the district court abused its discretion in downwardly varying a defendant's sentence because it assigned too little weight to relevant factors). Authority governing variances is also instructive. There, if a district court varies below the guidelines range, the extent of the deviation must be “sufficiently compelling to support the degree of the variance” and, “the farther the judge's sentence varies from the guidelines sentence the more compelling the justification based on factors in section 3553(a) must be.” Boucher, 937 F.3d at 708 (cleaned up). The government has shown a likelihood of success on appeal, notwithstanding application of the highly deferential abuse-of-discretion standard, because the district court afforded too much weight to certain sentencing factors under § 3553(a) and insufficient weight to others. See Ruffin, 978 F.3d at 1005; see also Jones, 980 F.3d at 1112 (“A district court would necessarily abuse its discretion if it based its ruling ․ on a clearly erroneous assessment of the evidence.”) (quoting Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S. 559, 563 n.2, 134 S.Ct. 1744, 188 L.Ed.2d 829 (2014)).

The district court did not set out the nature and circumstances of Bass's offense in detail because it found “no question that Bass's offenses were horrific.” This is undoubtedly correct. But the district court must still “directly confront the nature of [Bass's] individual conduct and hold him responsible for such conduct.” United States v. Robinson, 778 F.3d 515, 519 (6th Cir. 2015). Bass masterminded a drug conspiracy whose members were coerced to cooperate through violence. He personally perpetrated that violence, even going so far as to torture an organization member. The operation involved multiple family members, and Bass ultimately arranged the murder of his brother. He then personally murdered his brother's killer, not out of revenge, but to destroy evidence of his duplicity. When incarcerated, another brother continued to run his drug operation. His offense rendered him eligible for the death penalty, and the government pursued the death penalty. And, even after his twenty-two-year detention, a victim still feared him so much that he or she would not provide any identifying information in a victim statement.

The district court addressed Bass's history and characteristics, outlining how his “age and natural leadership ability led him to raise both himself and his siblings through childhood” while “experiencing unaddressed household trauma along the way” and provided context for the circumstances under which he committed his crimes. The trauma Bass suffered during his formative years is distressingly common, and the district court's consideration of it was proper. The district court, however, ignored Bass's involvement of five of his siblings in his criminal operation, one of whom he caused to be killed, which should have significantly altered the district court's calculus.

The district court found that a reduction in Bass's sentence would not undermine the seriousness of his offense or promote disrespect for the law and his time served provided just punishment for his offense. As discussed above, Bass's offenses and his underlying conduct are horrendous. The government pursued the death penalty, reflecting the seriousness of Bass's offense. A jury imposed a life sentence without the possibility of release. Even without that finding, Bass's guideline range was life. The sentencing guidelines do not define an equivalent term of months or years for a life sentence. The Sentencing Commission, however, equates a life sentence with 470 months of imprisonment. U.S. Sentencing Commission, 2019 Annual Report & Sourcebook of Federal Sentencing Statistics, app. A at 203 (“[L]ife sentences are reported as 470 months, a length consistent with the average life expectancy of federal criminal offenders given the average age of federal offenders.”). Thus, Bass has served just over half of his anticipated sentence, a substantial decrease even aside from the fact that he was never supposed to be released. Further, the district court reduced his term of supervised release (which applied only to his conspiracy charge) from five years to three years.

The district court did not fully address deterrence or protecting the public from further criminal activity from Bass. Deterrence involves dissuading both the defendant from committing further offenses and others from committing similar offenses. Certainly, the district court here considered it from the perspective of Bass, finding that his rehabilitation and PATTERN score suggest he has a lower risk of recidivism. The district court, however, failed to address the limitations of Bass's PATTERN score in light of his conduct that fell outside its quantifications. The district court also failed to consider more generally whether a substantial reduction in sentence would deter others, even though “[c]onsideration of general deterrence is particularly important where the district court varies substantially [downward] from the Guidelines.” United States v. Musgrave, 761 F.3d 602, 609 (6th Cir. 2014). Unquestionably, Bass's criminal conduct endangered the public, both those he maintained control over in the conspiracy through violence and those victimized by his large-scale drug operation. Nor was he especially young when he committed these offenses.

The district court did not address the types of sentences available, instead focusing on the disparity in sentencing among Bass's co-defendants. But the relevant disparity is not to his codefendants and, instead, to “federal defendants on a national scale.” Boucher, 937 F.3d at 712. For his conspiracy offense, Bass faced a sentence between ten years of imprisonment and life. 21 U.S.C. § 841(b)(1)(A)(ii). For his murder offense, Bass faced a death sentence, life without the possibility of release, or a term of years. 18 U.S.C. § 924(j). Bass received concurrent terms of life imprisonment, and he was not eligible for release for his murder offense. His sentencing guidelines range, even without the jury's finding, was life imprisonment, and his term of supervised release on the conspiracy charge was five years. In at least one case, another district court has found a similarly-situated defendant did not warrant a reduced sentence. See United States v. Levine, No. 20-1929, 834 Fed.Appx. 242, 242–43 (7th Cir. Jan. 21, 2021) (order) (affirming the denial of compassionate release to a 78-year-old defendant serving a life sentence, imposed about thirty years ago, for targeting his brother and other family in a triple murder-for-hire scheme). Further, the district court compared Bass to his brother, convicted in a state court of second-degree murder. But comparisons to state sentences “enhance, rather than diminish, disparities among similarly situated federal defendants” because states “may sentence defendants according to their own criteria.” Boucher, 937 F.3d at 712 (citation and internal quotation marks omitted). As a result, the district court's reduced sentence created disparity rather than avoided disparity.

The district court addressed the need to protect the public from Bass reoffending, finding that the BOP calculations suggested he had a low rate of recidivism. And it detailed the many steps Bass had taken to rehabilitate himself, including his completion of numerous educational programs, his expressions of “deep remorse and shame,” his evolution as detailed by his family members, his support of his 29-year-old son as he cared for younger siblings, his small number of disciplinary violations, and his cooperation with the government. The district court, however, did not address the victim's statement.

The government has also shown it will be harmed, given that its interest is “strongest where the remaining portion of the sentence to be served is long, and weakest where there is little of the sentence remaining to be served.” Hilton, 481 U.S. at 777, 107 S.Ct. 2113. The record established that Bass ran a large-scale conspiracy trafficking multi-kilo quantities of cocaine and crack in multiple states that he continued to operate while detained. The public has an obvious interest in combatting the harm that drug-trafficking causes, as well as murder.

Nor has Bass shown that his return to detention will cause him substantial harm. He was incarcerated on a life sentence until days ago. He was convicted by a jury, we upheld his conviction and sentence on appeal, and his collateral attacks on his sentence have been unavailing. The briefing schedule has been expedited, decreasing any harm that will result if the merits panel affirms the district court and he is again released. While presently released, Bass's conviction remains valid and is not legally or constitutionally infirm. United States v. Bass, 460 F.3d 830, 832 (6th Cir. 2006), cert. denied, 551 U.S. 1124, 127 S.Ct. 2959, 168 L.Ed.2d 280 (2007). And, notably, the district court took months to consider Bass's motion for reduction of sentence. A further, likely shorter stay will not significantly render untoward harm while we consider the merits of his appeal, particularly given the substantial decrease in COVID-19 positive inmates at his detention facility.

The motion to stay is therefore GRANTED.

The significant presence of COVID-19 in our prisons has occasioned the rapid development of our law governing prisoners’ motions for compassionate release. I recognize that this case is difficult. But ultimately, I find that I cannot agree with my colleagues because under our precedent, the district court's thorough order falls well within the broad discretion we afford to district courts in deciding these motions.

Our recent cases express a clear rule: when deciding a prisoner's motion, district courts have expansive discretion to determine whether extraordinary and compelling reasons justifying compassionate release exist. Jones, 980 F.3d at 1109; Elias, 984 F.3d at 519–20; Ruffin, 978 F.3d at 1007. We review their decisions for abuse of discretion. Jones, 980 F.3d at 1112. When granting a compassionate release motion, we require the district court to find that extraordinary and compelling reasons exist and that the factors delineated in 18 U.S.C. § 3553(a) weigh in favor of release. Elias, 984 F.3d at 519. As at sentencing, the district court “is best situated to balance the § 3553(a) factors.” Jones, 980 F.3d at 1114 (quoting United States v. Kincaid, 802 F. App'x 187, 189 (6th Cir. 2020)). A party's disagreement with how the district court conducted this balance “is not a sufficient ground for reversal.” United States v. Chambliss, 948 F.3d 691, 694 (5th Cir. 2020); see also, e.g., United States v. Austin, 825 F. App'x 324, 326–27 (6th Cir. 2020) (applying Chambliss).

The district court's thorough order correctly applied our current compassionate release law. It first determined that Bass had exhausted his administrative remedies. See United States v. Alam, 960 F.3d 831, 833 (6th Cir. 2020). Then, citing Jones and Elias, it evaluated whether Bass had articulated sufficiently extraordinary and compelling reasons justifying compassionate release, properly recognizing that USSG § 1B1.13’s list of reasons is not binding. It concluded that he had, taking into account Bass's poor health and the conditions at his prison, among other factors. It then discussed the § 3553(a) factors in detail, “recogniz[ing] both the merits of the Government's arguments and the severity of Bass's past crimes,” to hold that they weighed in favor of release. This sort of analysis is precisely what we ask of district courts in assessing these motions.

Our rule is that the district court must have had “a reasoned basis” for reducing the defendant's sentence and sufficiently explain it. Jones, 980 F.3d at 1113 (quoting Chavez-Meza v. United States, ––– U.S. ––––, 138 S. Ct. 1959, 1965–66, 201 L.Ed.2d 359 (2018)). The district court here exercised its discretion well within the bounds we have outlined. Compare the court's 26-page decision explaining the particulars of Bass's work on rehabilitation in prison to the one sentence in the “barebones form order” denying compassionate release that we recently affirmed in United States v. Navarro, No. 20-5640, 986 F.3d 668 (6th Cir. Jan. 28, 2021).

Thus, the majority and the Government are incorrect that the order's level of description of Bass's crime means that the district court abused its discretion or that it did not consider the crime's seriousness. Indeed, the order repeatedly, explicitly indicates its consideration of that § 3553(a) factor.² That is far more than we required in Navarro and other recent cases. The Government had ample opportunity to, and did, explain the details of Bass's crime in briefing and at a hearing. There is no basis in the record for concluding the district court did not review and evaluate those arguments. Similarly, the district court considered the Government's arguments about the import of Bass's life sentence and potential disparities between codefendants. Its reasoning is sound: the very existence of 18 U.S.C. § 3582(c)(1)(A)(i) necessarily contemplates modifying a sentencing decision, so the fact that Bass was given a life sentence cannot itself mean reducing that sentence is an abuse of discretion.

Ultimately, the Government simply disagrees with how the district court determined extraordinary and compelling factors and weighed the § 3553(a) factors, and that “is not a sufficient ground for reversal.” Chambliss, 948 F.3d at 694. Our cases conclude that the district court is best situated to do those tasks, and in my view, the majority decision unnecessarily infringes on the discretion our recent cases give to district courts to make compassionate release decisions. See Ruffin, 978 F.3d at 1008–09; Jones, 980 F.3d at 1115; Elias, 984 F.3d at 520–21; United States v. Montero, No. 20-3666, 842 F. App'x 1007, 1008–09 (6th Cir. Feb. 5, 2021). When juxtaposed with the expansive discretion that these cases afford to denials of compassionate release (not to mention the minimal scrutiny we applied in Navarro), I worry that the majority decision risks enshrining a double standard unduly favoring the Government's opposition to compassionate release. Our trust in the discretion of the district court must be consistent regardless of whether the district court grants or denies an incarcerated person's motion. Congress intended to “expand compassionate release,” not constrain it. Elias, 984 F.3d at 519; see also Jones, 980 F.3d at 1104–05. This is particularly important in the potentially life-or-death context of the COVID-19 pandemic. Accordingly, I respectfully dissent.

FOOTNOTES

1.   Decisions that protect inmates from an abnormal likelihood of contracting COVID-19 weigh against granting compassionate release. Even more, perhaps the BOP could eliminate any argument in favor of compassionate release by vaccinating inmates with genuinely higher vulnerability.

2.   (1) “[T]he Court recognizes both the merits of the Government's arguments and the severity of Bass's past crimes․” (2) “There is no question that Bass's offenses were horrific. For years, [his drug organization] inflicted harm on its own members and members of the community alike.” (3) “Bass's history does not excuse his crimes.” (4) “The gravity of releasing a defendant serving a life sentence is not lost on this Court.”