Published on: Friday, March 17, 2023

Under 18 U.S.C. § 3582(c)(1)(A), a court is authorized to grant a reduction in sentence, commonly referred to as “compassionate release,” if three requirements are met. First, the offender must exhaust administrative remedies in BOP. Second, the offender must demonstrate “extraordinary and compelling reasons” for a sentence reduction. Third, the court must find that relief is warranted under the section 3553(a) sentencing factors (the statute also provides that a reduction must be consistent with “applicable policy statements issued by the Sentencing Commission”).  Before the First Step Act, only the Director of the BOP was authorized to file a motion seeking compassionate release on the offender's behalf, which rarely occurred. The First Step Act allows a federal prisoner to file a compassionare release motion directly in federal court, after exhausting administrative remedies. The compassionate release landscape has been rapidly evovling ever since.

Judge Easterbook for the Seventh Circuit recently highlighted the circuit split over whether a prisoner’s reasons for compassionate release should be considered cumulatively or individually in isolation. United States v. Vaughn, No. 22-2427 (7th Cir. March 15, 2023) (holding “no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does no”).  Though the court affirmed the denial of compassionate release for Mr. Vaughn, Judge Easterbrook’s reasoning about why courts must consider circumstances cumulatively, may be helpful to our clients:

Vaughn maintains that his arguments collectively identify “extraordinary and compelling reasons” even if none of them does so independently. At least two circuits have held that it is permissible to consider reasons jointly as well as severally. United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021). But one has gone the other way, remarking: “[W]hy would combining unrelated factors, each individually insufficient to justify a sentence reduction, amount to more than the sum of their  individual parts?” United States v. McKinnie, 24 F.4th 583, 588 (6th Cir. 2022). See also United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022).

The Sixth Circuit’s rhetorical question has some intuitive appeal. Often 0 + 0 = 0. But not always. One persistent error in legal analysis is to ask whether a piece of evidence “by itself” passes some threshold—to put evidence in compartments and ask whether each compartment suffices. But when one court of appeals asked whether Fact A showed probable cause for an arrest, then whether Fact B did so, whether Fact C did so, and so forth, the Supreme Court reversed in a sharp opinion reminding all judges that evidence should not be compartmentalized.

        [T]he [court of appeals] viewed each fact “in isolation, rather than as a factor in the totality of the circumstances.” This was “mistaken in light of our precedents.” The “totality of the circumstances” requires courts          to consider “the whole picture.” Our precedents recognize that the whole is often greater than the sum of its parts—especially when the parts are viewed in isolation. Instead of considering the facts as a whole,              the [court of appeals] took them one by one. … The totality-of-the-circumstances test “precludes this sort of divide-and-conquer analysis.”

District of Columbia v. Wesby, 138 S. Ct. 577, 588 (2018) (internal citations omitted). Similarly, we have held that in employment-discrimination cases a district court must consider the evidence as a whole, rather than sorting facts into boxes and asking whether each suffices.

       Evidence must be considered as a whole, rather than asking whether any particular piece of evidence proves the case by itself—or whether just the “direct” evidence does so, or the “indirect” evidence. Evidence is           evidence. Relevant evidence must be considered and irrelevant evidence disregarded, but no evidence should be treated differently from other evidence because it can be labeled “direct” or “indirect.” … Instead,           all evidence belongs in a single pile and must be evaluated as a whole.

Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765–66 (7th Cir.2016). If we conceive of “extraordinary and compelling reasons” as those differentiating one prisoner’s situation from 99% of other prisoners, it is easy to see how Circumstance X could be true of only 10% of prisoners, Circumstance Y of 10%, and Circumstance Z of 10%—each insufficient to meet the threshold, but if they are independent then collectively enough to place the applicant among only 0.1% of all federal prisoners. We do not say here that 99% is the threshold for “extraordinary and compelling reasons”; in the absence of guidance from the Sentencing Commission, identifying the threshold is committed to the discretion of district judges, with deferential appellate review. See United States v. Gunn, 980 F.3d 1178 (7thCir. 2020). Our point, rather, is that no matter how the threshold is defined, a combination of factors may move any given prisoner past it, even if one factor alone does not. This leads us to disagree with the Sixth Circuit’s approach.

This does not help Vaughn in the end, however, because the discretion to evaluate multiple circumstances resides principally in the district courts.