United States v. Cooper ( 2021 )

Case: 20-20485 Document: 00515840639 Page: 1 Date Filed: 04/28/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 28, 2021
No. 20-20485
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Fred Joseph Cooper,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-132-1
Before Owen, Chief Judge, and Clement and Higginson, Circuit
Judges.
Stephen A. Higginson:
Fred Joseph Cooper, who is currently serving a 40-year sentence for
drug-trafficking and firearms convictions, appeals the district court’s denial
without prejudice of his motion for compassionate release. At the time of the
denial, no circuit had squarely considered whether the U.S. Sentencing
Commission’s policy statement as to what constitutes “extraordinary and
compelling reasons” that may warrant a reduction in sentence remained
binding on district courts when considering a prisoner’s motion for
compassionate release under the recently enacted First Step Act. Since then,
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No. 20-20485
our court has joined the chorus of circuits holding that district courts are not
bound by that policy statement in these circumstances. See United States v.
Shkambi, No. 20-40543, 2021 WL 1291609, at *4 (5th Cir. Apr. 7, 2021). In
light of our court’s recent decision, we VACATE and REMAND.
I.
In 2010, Cooper was convicted by a jury for two counts of possession
with intent to distribute cocaine and cocaine base, two counts of possession
of a firearm in furtherance of a drug trafficking crime, and one count of
possession of a firearm by a felon. In 2011, the district court sentenced
Cooper to 481 months’ imprisonment, 1 which included 121 months’
imprisonment for the drug-possession counts and consecutive sentences of 5
years for the first firearms offense under 18 U.S.C. § 924(c)(1)(A)(i) and 25
years for the second firearms offense under § 924(c)(1)(C)(i), and a total of
8 years of supervised release. This court affirmed the district court’s
judgment. United States v. Cooper, 714 F.3d 873, 881 (5th Cir.), cert. denied,
571 U.S. 923 (2013).
In April 2020, after exhausting his administrative remedies, Cooper
filed a pro se motion for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1)(A). He asserted that he was at greater risk of death due to the
COVID-19 pandemic because he was 49 years old and had diabetes, obesity,
high blood pressure, and respiratory problems. The Federal Public
Defender’s Office (FPD), which was subsequently appointed to represent
Cooper, filed a supplemental brief. The FPD argued that Cooper’s medical
conditions in combination with the COVID-19 pandemic constitute
“extraordinary and compelling reasons” justifying a sentence reduction.
Additionally, the FPD argued that the district court should also consider the
1
The sentence was later reduced to 480 months (40 years) on Cooper’s motion.
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nonretroactive changes to § 924(c)(1) by the First Step Act because, if
Cooper were sentenced now, he would be subject to only a 10-year mandatory
minimum on the firearms offenses instead of the then-mandatory 30-year
minimum. The government opposed the motion.
On September 4, 2020, the district court denied Cooper’s motion.
The district court noted that Cooper had only served 11 years, or less than 50
percent, of his 40-year sentence. The district court then addressed Cooper’s
asserted medical conditions. While the court recognized that diabetes,
hypertension, and obesity are comorbidities in cases of COVID-19 infection,
it found that the record did not show that Cooper suffered from respiratory
problems, and that his age was “not in the age range of greatest
vulnerability.” It further noted that the Memphis Federal Correctional
Institute (FCI Memphis), where Cooper was incarcerated, had relatively few
infections, 2 and that Cooper’s medical records demonstrated that his
conditions did not limit his ability to work, carry out his daily activities, or
care for himself. With no evidence that the Bureau of Prisons (BOP) was
incapable of responding to his health risks, the district court concluded that
Cooper’s risk factors for COVID-19 alone did not provide a sufficient basis
for granting relief.
The district court next considered whether the First Step Act’s
changes to 18 U.S.C. § 924(c)(1) constitute an extraordinary and compelling
reason for a reduction in his sentence. Relevant here, § 924(c)(1)(C) was
amended to clarify that the consecutive mandatory minimum sentence of 25
2
At the time, in September 2020, the district court noted that 3 prisoners and 4
staff had tested positive for COVID-19. In December 2020, when the government filed its
appellate brief, FCI Memphis reported 44 active cases among inmates and 19 among staff.
FCI Memphis currently reports 1 active case among prisoners and 1 among staff. See
Federal Bureau of Prisons, COVID-19 (Coronavirus), https://www.bop.gov/coronavirus/
(last visited Apr. 27, 2021).
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years only applies when a defendant commits a subsequent § 924(c) violation
after a prior § 924(c) conviction has become final. First Step Act of 2018,
Pub. L. 115-391, § 403, 132 Stat 5194, 5221–22 (2018); United States v. Gomez,
960 F.3d 173, 176–77 (5th Cir. 2020). Although this amendment to § 924(c)
did not apply retroactively to Cooper’s sentence, the district court agreed
that if Cooper were sentenced today, he would be subjected to a significantly
lower sentence: a 10-year mandatory consecutive sentence (5 years for each
of Cooper’s two § 924(c) convictions), rather than the imposed 30-year
sentence (5 years for the first § 924(c) conviction and 25 years for the
second).
However, the district court then noted the unsettled caselaw as to
whether it had discretion to consider “extraordinary and compelling
reasons” not articulated by the Sentencing Commission’s corresponding
policy statement. That is, whether the prior policy statement in U.S.
Sentencing Guidelines § 1B1.13 is applicable to motions made by prisoners
like Cooper pursuant to the amended compassionate release procedures,
which were revised in a separate provision of the First Step Act, § 603(b),
132 Stat. at 5239. In light of the divergent caselaw on this issue, the district
court denied the motion without prejudice, presciently stating that Cooper
could renew his motion if, inter alia, “the Fifth Circuit, or the Sentencing
Commission clarifies the scope of a court’s discretion and the meaning of
‘extraordinary and compelling’ reasons for a sentence reduction under the
First Step Act.” Cooper timely appealed.
II.
We review the district court’s denial of Cooper’s § 3582(c)(1)(A)
motion for abuse of discretion. United States v. Thompson, 984 F.3d 431, 433
(5th Cir. 2021). “[A] court abuses its discretion if it bases its decision on an
error of law or a clearly erroneous assessment of the evidence.” United States
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v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020) (internal quotation marks and
citation omitted).
III.
Cooper principally argues that the district court legally erred in
declining to consider whether Cooper presented an “extraordinary and
compelling reason” for a sentence reduction based, in whole or in part, on
the nonretroactive sentence reduction for his § 924(c) firearms convictions.
As the district court confirmed, this issue was unsettled at the time the
district court denied Cooper’s motion. Yet, since that time, our court has
resolved it in Cooper’s favor.
Our court’s decision in Shkambi traces the history of compassionate
release to its present form. See Shkambi, 2021 WL 1291609, at *2–3. As
recently amended by the First Step Act in December 2018, the relevant
provision now states:
[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 . . . may reduce the term
of imprisonment (and may impose a term of probation or
supervised release with or without conditions that does not
exceed the unserved portion of the original term of
imprisonment), after considering the factors set forth in
section 3553(a) to the extent that they are applicable, if [the
court] 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 Commission.
18 U.S.C. § 3582(c)(1)(A)(i) (emphasis added).
Significantly, prior to the First Step Act, a district court could grant
relief under § 3582(c)(1)(A) only on a motion by the BOP; now, a defendant
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can file such motions directly in district court. 3 See Chambliss, 948 F.3d at
693 n.1; Shkambi, 2021 WL 1291609, at *3. But the First Step Act did not
alter the other requirements:
Prisoners like [Cooper] still must show “extraordinary
reasons”; they still must show that compassionate release is
consistent with applicable policy statements from the
Commission; and they still must convince the district judge to
exercise discretion to grant the motion after considering the
§ 3553(a) factors.
Shkambi, 2021 WL 1291609, at *3.
Congress has not defined what constitutes “extraordinary and
compelling reasons” for a sentence reduction and similarly did not do so in
the First Step Act. Instead, the Sentencing Commission has the authority to
“‘promulgat[e] general policy statements regarding the sentencing
modification provisions in section 3582(c)(1)(A)’ that ‘describe what should
be considered extraordinary and compelling reasons for sentence reduction,
including the criteria to be applied and a list of specific examples.’” Id.(quoting 28 U.S.C. § 994(t)) (alteration in original). The Sentencing
Commission’s current policy statement and corresponding commentary
provide four categories of “extraordinary and compelling reasons” that
could warrant a sentence reduction: (A) medical conditions; (B) age; (C)
family circumstances; and (D) “[o]ther [r]easons.” U.S. Sent’g
Guidelines Manual § 1B1.13 cmt. n.1(A)–(D) (U.S. Sent’g
Comm’n Nov. 1, 2018). The Sentencing Commission has “not yet adopted
3
A defendant may raise such a motion only if he has exhausted his administrative
rights to appeal the BOP’s failure to bring such a motion or has waited 30 days after the
warden’s receipt of the request, whichever is earlier. 18 U.S.C. § 3582(c)(1)(A)(i). Here,
it is undisputed that Cooper satisfied the administrative exhaustion requirements, and we
are satisfied that he has done so.
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a new statement to implement the [First Step Act].” Shkambi, 2021 WL
1291609, at *3.
In Shkambi, our court addressed whether this policy statement, which
applies to “motion[s] of the Director of the Bureau of Prisons,” was also an
“applicable policy statement[]” for motions filed by prisoners like Cooper.
Id. at *4. We held that it was not. 4 Id. Consequently, because § 1B1.13 is not
an “applicable policy statement” to compassionate release motions filed by
prisoners, “neither the policy statement nor the commentary to it binds a
district court addressing a prisoner’s own motion under § 3582.” Id.
Shkambi forecloses the government’s contention that § 1B1.13 applies
to Cooper’s motion for compassionate release. The district court declined
to consider whether it had discretion to deviate from the “extraordinary and
compelling reasons” articulated in § 1B1.13, including whether it could
consider the First Step Act’s nonretroactive reduced penalties for § 924(c)
convictions. Thus, as clarified in Shkambi, the district court effectively
considered that policy statement binding.
The government alternatively contends that the district court did not
rely on the § 1B1.13 policy statement, and instead relied exclusively on the
sentencing factors under 18 U.S.C. § 3553(a), which district courts are still
required to consider when either a prisoner or the BOP moves for
compassionate release. See Shkambi, 2021 WL 1291609, at *3. We disagree.
4
In reaching this decision, we joined every other circuit to have considered this
same issue. See United States v. Brooker, 976 F.3d 228, 234 (2d Cir. Sept. 25, 2020); United
States v. Jones, 980 F.3d 1098, 1111 (6th Cir. Nov. 20, 2020); United States v. Gunn, 980
F.3d 1178, 1180 (7th Cir. Nov. 20, 2020); United States v. McCoy, 981 F.3d 271, 284 (4th
Cir. Dec. 2, 2020); United States v. McGee, No. 20-5047, 2021 WL 1168980, at *12 (10th
Cir. Mar. 29, 2021). The Ninth Circuit also subsequently reached the same conclusion.
See United States v. Aruda, No. 20-10245, 2021 WL 1307884 (9th Cir. Apr. 8, 2021) (per
curiam).
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To start, the district court detailed its trepidation as to whether
§ 1B1.13 applied to Cooper’s motion, and discussed the “lively debate about
district courts’ discretion to reduce sentences under § 3582(c)(1)(A)” and
the corresponding “limited and conflicting precedents—with almost no
input from the appellate courts.” Moreover, the court’s express invitation
for Cooper to renew his motion if this court clarified the scope of its
discretion under the First Step Act’s amended procedures belies the
government’s contention that the district court concluded such
extraordinary circumstances were “unnecessary.” Cf. United States v.
Gonzalez, 819 F. App’x 283, 284 (5th Cir. 2020) (per curiam) (unpublished)
(concluding that the district court did not err in referring to § 1B1.13 because
“it relied on its own judgment in denying [the] motion” based on its “own
determination of whether extraordinary and compelling reasons warrant a
reduction of [the defendant’s] sentence”).
For similar reasons, we reject the government’s contention that the
district court relied solely on the § 3553(a) factors. Here, the district court
denied relief without prejudice based on the “uncertain landscape” and lack
of “input from the appellate courts or from the Commission itself.” Nor, as
the government contends, is this a case where, notwithstanding the existence
of extraordinary and compelling reasons, the district court nonetheless
determined that § 3553(a)’s sentencing factors militate against a sentence
reduction. 5 Cf. United States v. Ruffin, 978 F.3d 1000, 1008 (6th Cir. 2020)
5
For example, the government argues that the district court principally denied
Cooper’s motion based on the amount of time remaining in his sentence, which the
government asserts is a permissible application of the sentencing factors under 18 U.S.C.
§ 3553(a) when considering a motion for compassionate release. See United States v.
Pawlowski, 967 F.3d 327, 331 (3d Cir. 2020) (no abuse of discretion where district court
denied compassionate release when the movant had served less than two years of his 15-
year within-guidelines sentence). It is true that the district court noted that Cooper had
served over 11 years, but less than 50 percent, of his imposed 40-year sentence, and that
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(“Unlike in other cases in which a district court relied solely on that legal
ruling [of mistakenly limiting itself to the § 1B1.13’s list of extraordinary and
compelling reasons], the district court in this case alternatively denied
[defendant] relief based on a discretionary balancing of the § 3553(a)
factors.”).
Having clarified in Shkambi that the district court is not bound by
§ 1B1.13 when considering motions brought by prisoners like Cooper under
18 U.S.C. § 3582(c)(1)(A), we vacate and remand so that the district court
can reassess Cooper’s motion for compassionate release. We leave for the
district court to consider, in the first instance, whether the nonretroactive
sentencing changes to his § 924(c) convictions, either alone or in conjunction
with any other applicable considerations, constitute extraordinary and
compelling reasons for a reduction in sentence. See Al Rushaid v. Nat’l
Oilwell Varco, Inc., 757 F.3d 416, 424–25 (5th Cir. 2014) (“When a district
court fails to exercise its discretion based on a ‘misapprehension of the law’
as was the case here, this court remands the action to allow the ‘district court
to exercise [it] in the first instance.’” (alteration in original) (quoting Duffy
& McGovern Accommodation Servs. v. QCI Marine Offshore, Inc., 448 F.3d 825,
831 (5th Cir. 2006))). We offer no views as to the merits of the motion, or
Cooper’s alternative contention that the district court clearly erred in its
assessment of the record.
even reducing his § 924(c) firearms convictions from 30 years to 10 years, “he would still
be in prison until at least 2026.” But the government’s emphasis on these observations is
misplaced. The district court, on remand, has the discretion to consider the amount of
time Cooper has served in light of any applicable extraordinary or compelling reasons.
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IV.
For the foregoing reasons, the district court’s order is VACATED,
and the case is REMANDED for further proceedings consistent with this
opinion.
10