United States v. Facon

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-CO-542
UNITED STATES, APPELLANT,
V.
EUGENE R. FACON, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(1998-FEL-002984)
(Hon. José M. López, Trial Judge)
(Argued September 22, 2022 Decided January 26, 2023)
Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M.
Graves, United States Attorney, and Chrisellen R. Kolb and Adam Braskich,
Assistant United States Attorneys, were on the brief, for appellant.
Hillary S. Smith, with whom Allanté Keels and Matt Jones were on the brief,
for appellee.
Daniel Gonen, Public Defender Service, with whom Samia Fam, Alice Wang,
Mikel-Meredith Weidman, and Paul Maneri, Public Defender Service, were on the
brief for Public Defender Service, amicus curiae, in support of appellee.
2
Before DEAHL, Associate Judge, and THOMPSON and GLICKMAN, * Senior
Judges.
GLICKMAN, Senior Judge: In 1999, the Superior Court sentenced appellee
Eugene Facon to life imprisonment without parole following his convictions for
armed kidnapping, first-degree sexual abuse while armed, and other offenses. In
December 2020, Facon filed a motion for compassionate release pursuant to D.C.
Code § 24-403.04. That statute directs a court to “modify a term of imprisonment
imposed upon a defendant” if the court determines that (1) the defendant is “not a
danger to the safety of any other person or the community,” and (2) the sentence
modification is warranted by “extraordinary and compelling reasons,” which
*
Judge Glickman was an Associate Judge at the time of argument. His status
changed to Senior Judge on December 21, 2022.
3
typically are reasons of a medical nature. 1 The defendant bears the burden of
proving each of these preconditions to relief by a preponderance of the evidence. 2
1
In pertinent part, D.C. Code § 24-403.04 provides:
(a) Notwithstanding any other provision of law, the court shall modify a term
of imprisonment imposed upon a defendant if it determines the defendant
is not a danger to the safety of any other person or the community, pursuant
to the factors to be considered in 18 U.S.C. §§ 3142(g) and 3553(a) and
evidence of the defendant’s rehabilitation while incarcerated, and:
* * *
(3) . . . [E]xtraordinary and compelling reasons warrant such a
modification, including:
(A) A debilitating medical condition involving an incurable
illness, or a debilitating injury from which the defendant will
not recover; [or]
(B) Elderly age, defined as a defendant who:
(i) Is 60 years of age or older;
(ii) Has served the lesser of 15 years or 75% of the
defendant’s sentence; and
(iii) Suffers from a chronic or serious medical condition
related to the aging process or that causes an acute
vulnerability to severe medical complications or death
as a result of COVID-19; . . . .
2
See Autrey v. United States, 264 A.3d 653, 659 (D.C. 2021); Bailey v. United
States, 251 A.3d 724, 729-30 (D.C. 2021).
4
Over the government’s opposition, the judge to whom the motion was
assigned granted the motion based on findings that Facon no longer poses a danger
to anyone and is medically eligible for early release from prison because of his
“heightened susceptibility to the extreme consequence of contracting COVID-19.”
The United States has appealed. It argues that the motion judge erred in
finding Facon medically eligible for release without requiring him to show that he
remains “acutely vulnerable” to severe illness or death from COVID-19 despite
having been vaccinated against the disease. The United States also contends the
judge abused his discretion in finding that Facon would not be “a danger to the safety
of any other person or the community” if released. We granted the government’s
motion to stay the order releasing Facon pending our resolution of its appeal.
The threshold issue we confront is the issue of our appellate jurisdiction. This
is the first government appeal of a compassionate release order to come before this
court; the compassionate release cases we have considered in the past all were
appeals by defendants from denials of relief. Facon and amicus curiae the Public
Defender Service (PDS) argue that we must dismiss the appeal for lack of
jurisdiction because no statute expressly permits the United States to appeal Superior
5
Court orders granting compassionate release. In response, the United States argues
that two statutes do authorize such government appeals: D.C. Code § 23-104(d-2),
which allows government appeals in criminal cases of orders “granting the release
of a person . . . convicted . . . of an offense,” and D.C. Code § 11-721(a)(1), which
gives this court jurisdiction over appeals of “all final orders and judgments of the
Superior Court.” Alternatively, the government argues that even if a direct appeal
of a compassionate release order is not permitted by either of those statutes, we
should treat its brief as a petition for a writ of mandamus to correct a sentence
modification that exceeded the Superior Court’s authority under D.C. Code
§ 24-403.04.
In this opinion we examine the two jurisdictional statutes on which the
government relies and conclude that D.C. Code § 11-721(a)(1) confers appellate
jurisdiction in this case. An order or judgment granting a motion for compassionate
release is “final” within the meaning of that statute. And although § 11-721(a)(1)
does not authorize government appeals in criminal cases as a general matter, a
6
compassionate release order is sufficiently independent of and collateral to the
underlying criminal prosecution to be appealable under § 11-721(a)(1). 3
On the merits, we agree with the government that the motion judge, who did
not have the benefit of this court’s subsequent decision in Autrey v. United States, 4
did not apply the proper legal standard set forth in that case in determining Facon’s
medical eligibility for release. We therefore must vacate the order granting Facon’s
compassionate release motion and remand for consideration of whether Facon has
shouldered his burden of showing he is acutely vulnerable to severe illness or death
from COVID-19 despite having been vaccinated. As to whether the judge abused
his discretion in finding that Facon is no longer dangerous, we agree with the
government that the judge’s explanation for that finding is unclear and raises serious
questions that make it less than convincing. However, we refrain from holding that
the judge erred in determining that Facon’s release will not endanger any other
person or the community, inasmuch as a new, up-to-date assessment of Facon’s
3
In view of this conclusion, we have no occasion in this opinion to address
the government’s alternative argument that we may grant mandamus relief.
4
264 A.3d 653 (D.C. 2021).
7
current dangerousness will be necessary on remand before his motion can be
granted.
I.
At Facon’s 1999 trial in Superior Court, the prosecution presented evidence
that, on an afternoon in April 1998, Facon attacked K.L., a 24-year-old woman who
was a complete stranger to him, in the parking garage at her place of work. Facon
approached K.L. from behind, demanded her car keys, slashed her hand and chest
with a 10-inch blade, and threatened to kill her if she did not get into the car with
him. When K.L. screamed for help and fought to escape, Facon grabbed her by the
hair, pulled her into the car, and slammed her head on the dashboard. He drove K.L.
to a park, raped her at knifepoint, took her money, and then left her there as he drove
off in her car. The jury convicted Facon of armed kidnapping, first-degree sexual
abuse while armed, armed carjacking, armed robbery, assault with a dangerous
weapon, and threatening to injure a person.
Facon perpetrated these crimes just six weeks after he was released on parole
following ten years in prison for two unrelated armed robberies he had committed
in 1987. Facon also had a history of substance abuse and had been using cocaine
8
daily for several years prior to his commission of those robberies. Although he
participated in substance abuse treatment while in prison, he tested positive for
cocaine use within two weeks of his release on parole and again on the day after he
attacked K.L.
On July 23, 1999, the trial judge sentenced Facon to two consecutive terms of
life imprisonment without eligibility for parole (LWOP) for armed kidnapping and
first-degree sexual abuse while armed, and an additional 18⅓ to 55 years in prison
for the other offenses of conviction. This court affirmed Facon’s convictions on
direct appeal in 2008 5 and affirmed the denial of his first collateral challenge to his
convictions (alleging ineffective assistance of trial counsel) in 2011.6 In early 2020,
Facon appealed the trial court’s denial of a second post-conviction motion, in which
he challenged the legality of his LWOP sentences. 7
5
Facon v. United States, No. 99-CF-1204, Mem. Op. & J. (D.C. Dec. 1, 2008).
6
Facon v. United States, No. 09-CO-1241, Mem. Op. & J. (D.C. Aug 4,
2011).
7
Facon v. United States, No. 20-CO-236.
9
The latter appeal was still pending on December 30, 2020, when Facon moved
in Superior Court for compassionate release pursuant to D.C. Code § 24-403.04. By
then he had served 22 years, eight months, and two days of his sentence. In support
of a finding that he was no longer dangerous, Facon cited the length of time he had
spent in prison; his age (57 at the time he filed the motion), renewed religious faith,
and strong family ties; his lack of substance or alcohol use since 2004; and his
conduct and activities during his incarceration, including his limited disciplinary
history (a total of 12 infractions in 22 years, the most recent of which was in 2011),
consistent employment, and voluntary participation in Narcotics Anonymous and
institutional programming. To establish his medical eligibility for compassionate
release, Facon argued that he had five risk factors — his age, type 2 diabetes, obesity,
hypertension, and hepatitis C — that increased his likelihood of experiencing severe
consequences from COVID-19 and therefore constituted “extraordinary and
compelling reasons” warranting his early release within the meaning of D.C. Code
§ 24-403.04(a)(3).
The United States opposed Facon’s motion. While noting that he soon would
be offered a COVID-19 vaccine, the government acknowledged that the Centers for
Disease Control and Prevention had concluded that obesity, Type 2 diabetes, and,
10
possibly, hypertension increase the risk of severe illness from COVID-19. (The
government disputed the significance of Facon’s other claimed risk factors.) But the
United States argued that Facon remained dangerous and had failed to demonstrate
otherwise. As evidence of his disqualifying dangerousness, the government
emphasized the nature and circumstances of his offenses against K.L.; his criminal
history, including the fact that he committed his crimes against K.L. within only six
weeks of his release on parole after serving ten years in prison for armed robberies;
his history of cocaine use and insufficient drug rehabilitation; his disciplinary
violations while serving time, which included not only several minor incidents (e.g.,
insolence) but also an assault with serious injury in 2002, threatening bodily harm
in 2002, possession of intoxicants in 2003 and 2004, and fighting with another
inmate in 2011; and his minimal program participation (only 284 hours in nearly 23
years, an average of less than 13 hours a year 8). The government also represented
that Facon had refused sex offender treatment (which Facon disputed). In addition,
the government reported that Facon’s victim, K.L., strongly opposed his release; she
8
The government pointed out that 170 of Facon’s programming hours were
completed in what was then the last year of his imprisonment, 2020, and that
between July 2009 and January 2020, Facon had completed only 114 hours of
programming.
11
had written a letter saying she remained scarred by the attack and deserved the peace
of mind of knowing Facon was not at liberty.
On March 8, 2021, the motion judge issued an indicative order stating he
would grant Facon’s motion for compassionate release if this court enabled him to
do so by remanding Facon’s then-pending case on appeal. 9 The judge explained that
Facon was eligible for release because of his “heightened susceptibility to the
extreme consequence of contracting COVID-19.” The possibility that Facon would
soon be vaccinated against COVID did not change that conclusion, the judge said,
because the vaccines only “diminished” but did not “extinguish[]” the chance of
severe illness.
On the main issue disputed by the government, the judge found that the nature
and circumstances of Facon’s crimes against K.L. “show[ed] his potential
dangerousness to the community” and weighed against releasing him, especially
because the “severity of the crime itself [was] among the worst.” The judge likewise
found that Facon’s previous criminal history and heavy cocaine usage, “as well as
9
See Super. Ct. Crim. R. 37.
12
the fact that 10 years in prison did so little to rehabilitate him in the past,” weighed
“heavily against his release.” But despite those indicia of dangerousness, several
considerations persuaded the judge that Facon had been “sufficiently rehabilitated”
to justify granting his motion for compassionate release.
First, the judge cited the fact that Facon “admits the seriousness of his
offenses, but notes that substance abuse was a contributing factor to his criminal
behavior.” On that score, the judge found it significant that Facon, while serving his
sentence in prison, had “voluntarily participated in a [N]arcotics [A]nonymous
program and ha[d] not used or possessed illegal drugs or alcohol since 2004.”
Second, the judge cited Facon’s maintenance in prison of “consistent employment
from food services to carpentry,” his completion of 284 hours of “coursework”
(including vocational training, life skills education, and behavioral therapy), his
“limited disciplinary infractions,” and “[t]he amount of time since any severe
disciplinary infraction.” The judge acknowledged the government’s representation
that Facon had “at least twice been offered and refused sex offender treatment,” but
noted that Facon denied having been offered such treatment. The judge did not
resolve this factual dispute. Third, the judge cited Facon’s “claims to have also
found renewed religious faith while incarcerated,” and his “close relationships with
13
family members” who “love and care for him deeply” and had come forward to offer
him their support upon his release. Lastly, the judge mentioned Facon’s “advanced
age [and] poor health,” as factors that made recidivism less likely. Taking
everything into consideration, and admittedly having “some hesitation” due to the
nature of Facon’s crimes and his history, the judge found that the “balance favors
the conclusion that [Facon] does not” pose a danger to anyone or the community.
By this time, unbeknownst to the motion judge, Facon already had received
both doses of the Pfizer COVID-19 vaccine. 10 The United States promptly moved
for reconsideration, informing the judge of Facon’s vaccination and asserting that
Facon no longer could show extraordinary and compelling reasons for his release in
light of the efficacy of the vaccine in preventing severe illness or death from COVID.
Facon opposed the motion for reconsideration. He also asked this court per Criminal
Rule 37(b) to remand his pending post-conviction appeal case to allow the Superior
Court to grant the relief it indicated it would grant if empowered to do so.
10
Facon received his second dose of the vaccine a few days before the judge
issued his indicative ruling on March 8, 2021. Prior to that ruling, neither party had
informed the motion judge that Facon had been vaccinated.
14
On April 26, 2021, the motion judge denied the government’s motion for
reconsideration. “There is still uncertainty,” the judge explained,
regarding the efficacy of the Pfizer vaccine against
variants of the COVID-19 virus, the long-term efficacy of
the vaccine, as well as how the vaccine affects individuals
with Mr. Facon’s particular risk factors. The Pfizer
vaccine, or any other available treatment or mitigation
tactics, is not 100% effective at preventing infection or
serious complications. Risk appears to remain, but it has
been reduced to an unknown degree.
In May 2021, a division of this court granted Facon’s motion to remand his
post-conviction appeal. The United States filed a motion to stay the modification of
Facon’s sentence pending its anticipated appeal of the forthcoming compassionate
release order. Facon opposed the stay. In August 2021, the motion judge granted
Facon’s motion for compassionate release by suspending the execution of the
remainder of his prison term. Although the judge initially expressed his intent to
place Facon on five years of supervised probation, the amended judgment and
commitment order thereafter issued by the judge placed Facon on five years of
supervised release instead. The judge denied the government’s stay motion.
The United States appealed and moved this court to stay the amended
judgment. Facon, joined by PDS as amicus curiae, moved to dismiss the appeal for
15
lack of jurisdiction in the absence of proper statutory authorization. We denied the
motion to dismiss, granted the government’s motion for a stay, ordered that the
appeal be expedited, and directed the parties to address the issue of our jurisdiction
in their briefs. 11
11
Facon argues that an additional reason we must dismiss the appeal for lack
jurisdiction is the deficiency of the government’s notice of appeal. When the
government filed its appeal in August 2021, D.C. App. Rule 3(c)(1)(B) required a
notice of appeal to “designate the judgment, order, or part thereof being appealed.”
Facon argues that the government failed to comply with this requirement because its
notice designated only the motion judge’s orders granting compassionate release and
denying the motion for reconsideration, without also designating the judge’s final
order — the separate amended judgment imposing sentence. This patently benign
oversight does not deprive us of jurisdiction, however, nor does it otherwise justify
dismissal of the appeal. As we have explained, Rule 3 does not demand that an
appellant “always be impeccably precise in meeting D.C. App. R. 3(a)’s requirement
to designate the judgment or order appealed from in order for jurisdiction to exist.”
Perry v. Sera, 623 A.2d 1210, 1215 (D.C. 1993). Rather, we have been guided by
the principle that “a mistake in designating the judgment appealed from should not
bar appellate jurisdiction so long as the intent to appeal the particular judgment can
be inferred and the appellee is not prejudiced or misled.” Id. (citation omitted).
Moreover, as Facon concedes, effective December 1, 2021, Rule 3 was amended to
specify that “[a]n appeal may not be dismissed . . . for failure to properly designate
the judgment if the notice of appeal was filed after entry of the judgment and
designates an order that merged into that judgment.” D.C. App. R. 3(c)(7). In the
absence of any conceivable prejudice to Facon, we decline to penalize the United
States for the omission of the amended judgment in its notice of appeal.
16
II. Appellate Jurisdiction
This and other courts appear to treat proceedings on post-conviction motions
for compassionate release from prison sentences as being criminal rather than civil
in nature, at least for some purposes. 12 That treatment implicates the oft-repeated
12
See Bailey v. United States, 251 A.3d 724, 729 n.2 (D.C. 2021) (explaining
that a prisoner seeking compassionate release has the burden of showing non-
dangerousness by a preponderance of the evidence, because while “a preponderance
standard is the default rule in civil cases, its rationale applies to criminal cases when,
like here, the legislature has placed an evidentiary burden on the defendant rather
than the government”); United States v. Long, 997 F.3d 342, 353 (D.C. Cir. 2021)
(holding that the Federal Rules of Criminal Procedure compel application of plain
error review to unpreserved arguments in compassionate release appeals).
The characterization of compassionate release proceedings as criminal
proceedings is arguably in tension with the “civil” categorization of seemingly
analogous proceedings, such as parole revocation proceedings and collateral attacks
on convictions in the nature of habeas corpus. If we viewed compassionate release
proceedings the same way — for example, as essentially a form of “judicial parole”
— the government’s right to appeal would not be in issue. See, e.g., United States
v. Robinson, 388 A.2d 469, 470 n.1 (D.C. 1978) (affirming jurisdiction to hear
government appeal from trial court order granting a D.C. Code § 23-110 motion to
correct a sentence, citing the government’s recognized right to appeal in habeas
corpus cases due to their civil nature as described in United States v. Williamson,
255 F.2d 512 (5th Cir. 1958)); Trenkler v. United States, 536 F.3d 85, 94-95 (1st
Cir. 2008) (holding that coram nobis proceedings are appealable as civil matters
even when they are ancillary to criminal proceedings, and that the government
therefore may appeal the grant of a writ of coram nobis pursuant to 28 U.S.C.
§ 1291); United States v. Marmolejo, 915 F.2d 981, 982-83 (5th Cir. 1990) (holding
that the government may appeal from supervised release revocation hearings
pursuant to 28 U.S.C. § 1291, as they partake of the same characteristics as parole
17
proposition that “the government has no right of appeal in a criminal case unless
there is express legislative authorization.” 13 Unfazed, the United States argues that
and probation revocation proceedings). However, the government has not urged us
to view compassionate release proceedings for appellate jurisdictional purposes the
same way we view collateral challenges to convictions and parole proceedings.
For all the foregoing reasons, we shall proceed on the assumption that post-
conviction compassionate release proceedings are criminal proceedings.
13
District of Columbia v. Whitley, 640 A.2d 710, 712 (D.C. 1994) (citing
United States v. Martin Linen Supply Co., 430 U.S. 564, 568 (1977)). The judicial
articulation of this constraint on appeals by the United States in criminal cases arose
out of double jeopardy concerns. See, e.g., Kepner v. United States, 195 U.S. 100,
133 (1904). Double jeopardy principles do not bar the government’s appeal in the
present case, however. See, e.g., United States v. DiFrancesco, 449 U.S. 117, 132
(1980) (“The Double Jeopardy Clause is not a complete barrier to an appeal by the
prosecution in a criminal case. ‘[W]here a Government appeal presents no threat of
successive prosecutions, the Double Jeopardy Clause is not offended.’ From this it
follows that the Government’s taking a review of respondent’s sentence does not
itself offend double jeopardy principles just because its success might deprive
respondent of the benefit of a more lenient sentence.” (quoting Martin Linen Supply
Co., 430 U.S. at 569-70) (alteration in original) (citations omitted)).
Facon has argued that he has a legitimate expectation, protected by the Double
Jeopardy Clause, that his modified sentence would be final and hence not appealable
by the government. This argument is unavailing. For one thing, a defendant cannot
expect finality in a sentence that the government is statutorily authorized to appeal
and has appealed. Herring v. United States, 169 A.3d 354, 359 (D.C. 2017) (citing
DiFrancesco, 449 U.S. at 139). Moreover, while this court has acknowledged that
a defendant may acquire a legitimate expectation of finality in a sentence when he
begins serving it, see Smith v. United States, 687 A.2d 581, 583 (D.C. 1996), Facon
never began serving his modified sentence, as the release order was stayed and Facon
has remained in prison.
18
either D.C. Code § 23-104(d-2) or D.C. Code § 11-721(a)(1) provides the
authorization it needs to appeal an order granting compassionate release. We
consider each of those statutes in turn, beginning with the more specific one.
A. D.C. Code § 23-104(d-2)
D.C. Code § 23-104 allows the United States and the District of Columbia to
appeal specified types of orders and decisions in criminal and delinquency cases.
Subsection (d-2) states:
In a criminal or delinquency case, the United States or the
District of Columbia may appeal a decision or order
entered by the trial court granting the release of a person
charged with, or convicted or adjudicated delinquent of an
offense, the denial of a motion for revocation of release,
or modification of the conditions of release.
The United States argues that the plain language of this subsection authorizes its
appeal in this case because Facon was “a person . . . convicted . . . of an offense,”
and the order modifying his sentence effectively granted his “release” from prison.
Facon and PDS argue that the government misreads the statute, and that it does not
authorize governmental appeals of sentencing orders in general, or modifications of
prison sentences under the compassionate release statute in particular. Rather, they
19
contend, the text, history, and purpose of § 23-104(d-2) reveal that the provision is
limited to “bail” orders, i.e., orders that temporarily release defendants (or juvenile
respondents) from custody pending trial, sentencing, or appeal. 14
The proper interpretation of § 23-104(d-2) is a question we decide de novo. 15
When we construe a statute, our objective “is to ascertain and give effect to
legislative intent.” 16 “We first look to see whether the statutory language at issue is
‘plain and admits of no more than one meaning.’” 17 We presumptively will give
effect to statutory language that truly “is unambiguous and does not produce an
absurd result.” 18 We recognize, however, that “even where the words of a statute
14
See D.C. Code § 23-1302 (“As used in this chapter — . . . (2) the term ‘bail
determination’ means any order by a judicial officer respecting the terms and
conditions of detention or release (including any order setting the amount of bail
bond or any other kind of security) made to assure the appearance in court of . . . (A)
any person arrested in the District of Columbia; or (B) any material witness in any
criminal proceeding in a court referred to in paragraph (1) of this section.”).
15
See Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019).
16
Grayson v. AT&T Corp., 15 A.3d 219, 237 (D.C. 2011) (en banc) (citation
omitted).
17
Facebook, 199 A.3d at 628 (quoting Peoples Drug Stores, Inc. v. District
of Columbia, 470 A.2d 751, 753 (D.C. 1983) (en banc)).
18
McNeely v. United States, 874 A.2d 371, 387 (D.C. 2005) (citation omitted).
20
have a ‘superficial clarity,’ a review of the legislative history or an in-depth
consideration of alternative constructions that could be ascribed to statutory
language may reveal ambiguities that the court must resolve.” 19 It thus is “a
fundamental canon of statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall statutory scheme.” 20
And “we may also look to the legislative history to ensure that our interpretation is
consistent with legislative intent.” 21
In this case, the government’s “plain language” reading of § 23-104(d-2) may
have a superficial appeal, but we conclude there are compelling reasons to reject it.
To begin with, the context in which the word “release” is used in § 23-104(d-2) and
elsewhere in Title 23 (“Criminal Procedure”) is not the judicial imposition or
modification of criminal sentences, a subject that is covered elsewhere, in Title 24
19
Peoples Drug Stores, 470 A.2d at 754.
20
Lopez-Ramirez v. United States, 171 A.3d 169, 172 (D.C. 2017) (citation
omitted).
21
Facebook, 199 A.3d at 628 (citation omitted).
21
of the D.C. Code (“Prisoners and Their Treatment”). 22 The primary discussion of
“release” in Title 23 is in Chapter 13, Subchapter II (“Release and Pretrial
Detention”), 23 and the term is used there solely in connection with provisions
governing the temporary, conditional release of defendants from custody pending
trial, sentencing, or direct appeal (i.e., “bail”). Thus, when § 23-104(d-2) speaks of
allowing the government to appeal an order “granting . . . release,” or the denial of
a motion for “revocation of release,” or the modification of “the conditions of
release,” the statute is naturally read as referring only to the temporary, conditional
release of defendants authorized in Chapter 13. 24
22
See, e.g., D.C. Code §§ 24-403.01 (“Sentencing, supervised release, and
good time credit for felonies committed on or after August 5, 2000”), 24-403.03
(“Modification of an imposed term of imprisonment for violations of law committed
before 25 years of age”) and 24-403.04 (“Motions for compassionate release for
individuals convicted of felony offenses”).
23
See D.C. Code tit. 23, ch. 13, subchapter II (“Release and Pretrial
Detention”), §§ 23-1321 to -1333.
24
Chapter 19 of Title 23 (“Crime Victims’ Rights”) also employs the term
“release.” It does so in connection with victims’ rights with respect to both judicial
and non-judicial proceedings. We understand that when addressing the rights of
victims to be notified of, and present, at court proceedings, Chapter 19 uses “release”
in the limited (“bail”) sense it is used in Chapter 13. For example, D.C. Code § 23-
1901(b)(4) provides that a crime victim has the general right to “[b]e present at all
court proceedings related to the offense, including the sentencing, and release,
parole, record-sealing, and post-conviction hearings,” thus distinguishing “release”
decisions from other, non-bail decisions (including sentencing and sentence-
22
D.C. Code § 24-403.04 itself lends no support to the government’s argument
that § 23-104(d-2) authorizes the present appeal as one from a decision granting
“release.” The text of § 24-403.04 does not use the word “release” in connection
with the power it grants the Superior Court to “modify a term of imprisonment.” We
do not attach significance to the fact that the section title refers to “motions for
compassionate release.” Titles often “are of limited utility” in construing statutory
language, 25 and in this case, the title is misleading. As the Second Circuit said of
the federal counterpart of § 24-403.04, “compassionate release is a misnomer. [The
statute] in fact speaks of sentence reductions.” 26 Although sentence modifications
modification decisions) that also may result in a prisoner’s discharge from custody.
See also id., §§ 23-1901(b)(7), -1902(c)(2)(E), -1904(a). It is true that Chapter 19
uses the term “release” to mean non-bail decisions when addressing non-judicial
decisions that result in a convicted defendant’s discharge from custody; for example,
D.C. Code § 23-1902(d)(2) states that “[a]fter trial, a responsible official” shall
notify a crime victim of the “[e]scape, work release, furlough, or any other form of
release from custody of the offender” (e.g., supervised release, which we discuss
further infra). See also id., §§ 23-1902(c)(2)(G), -1904(d). However, this non-bail
meaning in non-judicial proceedings is immaterial to our interpretation of D.C. Code
§ 23-104(d-2), because that statute authorizes appeals by the government only from
trial court release decisions.
25
Facebook, 199 A.3d at 629.
26
United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020) (explaining that
under the federal compassionate release statute, as under the District’s statute, the
court has discretion to grant relief short of immediate release from imprisonment).
23
granted under § 24-403.04 often do result in a defendant’s prompt release from
prison, they need not do so. Courts granting “compassionate release” motions have
exercised their discretion to “reduce but not eliminate a defendant’s prison
sentence.” 27 We thus cannot conclude that, merely by employing the term “release,”
§ 23-104(d-2) includes sentence modifications authorized by § 24-403.04.
Nor, we note, does § 23-104(d-2) appear to be referring to “supervised
release,” the fixed period of supervision a defendant is required to serve after
completing a prison sentence for a felony committed on or after August 5, 2000. 28
The Superior Court does not enter a decision or order “granting” supervised release;
the term of supervised release is imposed at the outset as part of the original
27
Id.; see also United States v. Curry, No. ELH-17-0387, 2021 U.S. Dist.
LEXIS 7016, at *26 (D. Md. Jan. 14, 2021) (“Numerous district courts in both this
Circuit and others have found that a court ‘need not choose between immediate,
unconditional release or no relief at all’ and have, accordingly, granted sentence
reductions that did not result in immediate release.” (citing cases)).
28
See D.C. Code § 24-403.01(b)(1). Appellant’s offenses were committed
prior to August 5, 2000, so the supervised release provision is inapplicable to him.
24
sentence. 29 And the court has no authority to revoke supervised release or modify
its conditions; those decisions are committed to the U.S. Parole Commission. 30
Digging further, we are persuaded that the derivation and legislative history
of § 23-104(d-2) contradict the government’s interpretation of the statute. When the
Council enacted § 23-104(d-2) in 2007, 31 it drew its text directly and virtually
verbatim from the third paragraph of 18 U.S.C. § 3731, the federal statute permitting
government appeals from certain rulings in criminal cases. That paragraph allows
the United States to appeal from, inter alia, “a decision or order, entered by a district
court of the United States, granting the release of a person charged with or convicted
of an offense, or denying a motion for revocation of, or modification of the
conditions of, a decision or order granting release.” This provision was added to
§ 3731 by the Bail Reform Act of 1984, 32 and its legislative history confirms that its
29
Id.
30
Id. §§ 24-403.01(b)(6), 24-133(c)(2).
31
Omnibus Public Safety Amendment Act of 2006, D.C. Law 16-306,
§ 224(a), 53 D.C. Reg. 8610 (effective Apr. 24, 2007).
Bail Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. I, § 205, 98 Stat.
321837 (Oct. 12, 1984).
25
purpose was only to allow the government to appeal decisions releasing defendants
temporarily pending trial, sentencing, or direct appeal. 33 And that is how the federal
courts of appeals have construed the provision. “As used in section 3731,” the
Second Circuit explained in 2005 (well before the Council imported the federal
language into § 23-104(d-2)), “the term ‘release’ refers to a temporary period when
a criminal defendant is permitted to remain free from detention while awaiting trial,
sentencing, or appeal.” 34 The Council’s adoption of § 3731’s language implies it
33
See SEN. REP. NO. 98-225, at 4 (1983) (using “release” rather than “bail” in
the provisions of “this chapter,” which includes 18 U.S.C. § 3145, to “distinguish
between money bond (i.e., ‘bail’) and conditional release (often referred to ‘release
on bail’)”; id. at 30 & n.93 (“[S]ection 3145, in conjunction with the amendment
to 18 U.S.C. 3731 would specifically authorize the government, as well as the
defendant, to seek review and appeal of release decisions. . . . The Department of
Justice urged that the government be granted specific authority to seek review of
release decisions to the same extent that such authority is given [to] defendants, and
the Committee agrees . . . as a matter of both basic fairness and sound policy,”
because of the “clear public interest in permitting review of release orders which
may be insufficient to prevent a defendant from fleeing or committing further
crimes”); H.R. REP. NO. 98-1121, at 15 & n.4 (1984) (explaining that then-current
law did not authorize the government to appeal from “bail decisions”); see also id.
at 30, 32.
34
United States v. Peterson, 394 F.3d 98, 102 (2d Cir. 2005) (holding that
§ 3731 did not authorize a government appeal from the dismissal of a probation
violation petition, because “[p]robation is a criminal sentence, not a period of release
prior to trial, sentencing, or appeal”); accord United States v. Hundley, 858 F.2d 58,
62 (2d Cir. 1988) (stating that the provision of § 3731 at issue “plainly limits appeals
by the United States to [orders] relating to the temporary release of a person charged
or convicted of an offense”). See also United States v. Chaudhry, 630 F.3d 875,
26
shared the federal courts’ interpretation of it. 35 The government points to nothing in
the legislative history of § 23-104(d-2) suggesting otherwise. 36
880-81 (9th Cir. 2011) (stating that “[t]he language of § 3731 only permits the
government to appeal bail decisions” and citing Peterson and the decisions of other
circuits that pre-date the Council’s use of § 3731’s language for § 23-104(d-2)).
35
Meiggs v. Associated Builders, Inc., , 635 (D.C. 1988) (“When a local
provision is borrowed directly from a federal statute, the Council [of the District of
Columbia] is presumed to have borrowed the judicial construction thereof as well.
This ‘local’ version takes its origin from the cardinal rule of statutory construction
that when a legislature adopts a statute that is modeled after one in effect in another
jurisdiction, the legislature is deemed to have adopted as well the judicial
constructions of the statute in the jurisdiction in which it originated.” (alteration in
original) (internal citations omitted)); see also OMNIBUS PUBLIC SAFETY ACT,
Report on Bill 16-247 before the Committee on the Judiciary, Council of the District
of Columbia, at 154 n.13 (Apr. 28, 2006) (attaching testimony from Robert J.
Spagnoletti, D.C. Attorney General, which refers to 18 U.S.C. § 3731).
Similarly, and even though the Council could not have relied on federal court
decisions rendered after it enacted § 23-104(d-2), we find it compelling that no
reported federal decision has relied on § 3731 to permit an appeal of a compassionate
release order by the government.
36
Rather, the legislative history of the statute indicates that subsection (d-2)
was adopted at the behest of the Office of the Attorney General for the sole purpose
of giving that Office the same right to appeal bail decisions that the United States
Attorney’s Office (USAO) already possessed under D.C. Code § 23-1324(d). (That
section is clearly limited to bail appeals.) The USAO itself acknowledged the
redundancy of subsection (d-2) (as far as it was concerned) in a letter from the
Special Counsel to the U.S. Attorney to the Chairperson of the Committee on the
Judiciary. Report on Bill 16-247 before the Committee on the Judiciary, supra note
35 at 368 (Apr. 28, 2006) (attaching letter from Patricia A. Riley, Special Counsel
to the USAO); see also id. at 155, 244-45 (attaching testimony and letter from Robert
J. Spagnoletti, D.C. Attorney General). To ensure that the government’s ability to
27
For these reasons, we conclude that the government’s reliance on
§ 23-104(d-2) for authorization of the instant appeal is misplaced. We turn to
consider whether we have jurisdiction over the appeal under D.C. Code
§ 11-721(a)(1).
B. D.C. Code § 11-721(a)(1)
D.C. Code § 11-721(a)(1) provides that the District of Columbia Court of
Appeals has jurisdiction of appeals from “all final orders and judgments of the
Superior Court of the District of Columbia.” This provision is based on 28 U.S.C.
§ 1291, which provides that the federal courts of appeals have jurisdiction of appeals
from “all final decisions” of the federal district courts. Under either statute, a trial
court order either denying or granting a motion for compassionate release under
appeal codified in (d-2) did not go any further than the existing appeal right in § 23-
1324, PDS suggested to the Committee that it amend § 23-1324 instead. Id. at 268,
344 (attaching letters from Avis E. Buchanan, Director, and Laura E. Hankins,
Special Counsel to the Director, PDS). But the Committee ultimately rejected PDS’s
concerns, found that the “DC Attorney General’s explanation [wa]s reasonable,” and
did not recommend any changes to the government appeal provision of the bill. Id.
at 6.
28
District of Columbia or federal law 37 is a “final” order because it disposes of the
issues in the case before the court “so that the court has nothing remaining to do.” 38
Pursuant to § 11-721(a)(1), this court routinely has exercised jurisdiction over
prisoners’ appeals from orders denying compassionate release. 39 Federal courts of
appeals likewise have held that orders denying compassionate release are final
orders appealable under 28 U.S.C. § 1291 “because they close the criminal case once
again.” 40 And the federal appellate courts that already have addressed the
37
See D.C. Code § 24-403.04(a)(3); 18 U.S.C. § 3582(c)(1)(A)(i). The
District’s compassionate release statute is also modeled on its federal counterpart,
and in construing our statute, we have looked to federal cases construing the federal
compassionate release statute for guidance. See Bailey v. United States, 251 A.3d
724, 729-30 (D.C. 2021).
38
Rolinski v. Lewis, 828 A.2d 739, 746 (D.C. 2003) (en banc) (citation
omitted); see also, e.g., Midland Asphalt Corp. v. United States, 489 U.S. 794, 798
(1989) (“For purposes of [28 U.S.C. § 1291], a final judgment is normally deemed
not to have occurred until there has been a decision by the District Court that ends
the litigation on the merits and leaves nothing for the court to do but execute the
judgment.” (internal quotation marks and citations omitted)).
39
See, e.g., Autrey v. United States, 264 A.3d 653, 654 (D.C. 2021); Page v.
United States, 254 A.3d 1129, 1129-30 (D.C. 2021); Griffin v. United States, 251
A.3d 722, 722-23 (D.C. 2021); Bailey, 251 A.3d at 728. As there has been no prior
challenge to this court’s jurisdiction in compassionate release appeals, it is
unsurprising that our decisions have not discussed the statutory source of that
jurisdiction.
United States v. Long, 997 F.3d 342, 350, 352 (D.C. Cir. 2021) (citation
40
omitted) (holding that § 1291 provides appellate jurisdiction over orders denying
29
jurisdictional issue now before us have concluded they also have jurisdiction under
28 U.S.C. § 1291 over government appeals from orders granting compassionate
release. 41 The consensus view in the federal courts is, we believe, “that § 1291,
which gives us broad authority to hear ‘appeals from all final decisions of the district
courts of the United States,’ is a better fit for compassionate release motions” than
18 U.S.C. § 3742, the statute that authorizes both defendants and the government to
appeal otherwise final sentences in four specified circumstances. 42
compassionate release and collecting cases from “many” courts of appeals reaching
the same conclusion).
41
See United States v. Ferguson, 55 F.4th 262, 267 (4th Cir. 2022) (“[W]e
review both grants and denials of compassionate release pursuant to an abuse of
discretion standard. Only § 1291 affords us the power to do that.” (citation
omitted)); United States v. Maumau, 993 F.3d 821, 824 (10th Cir. 2021) (“The
government now appeals, arguing that the district court erred in granting Maumau’s
motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the decision
of the district court.”). Other circuit courts have exercised appellate jurisdiction over
government appeals and vacated or reversed district court orders granting
compassionate release without explicitly discussing the statutory basis for doing so.
E.g., United States v. Trenkler, 47 F.4th 42, 46 (1st Cir. 2022); United States v. Bass,
17 F.4th 629, 635 (6th Cir. 2021).
42
Ferguson, 55 F.4th at 267; see also United States v. Lowe, 136 F.3d 1231,
1233 (9th Cir. 1998) (explaining that § 3742 does not authorize an appeal that
challenges a district court’s discretionary decision on a motion to reduce a sentence).
30
Thus, there appears to be ample authority supporting the government’s
position that we have jurisdiction over the present appeal under our statutory
counterpart of § 1291, D.C. Code § 11-721(a)(1). This conclusion, however,
warrants additional explanation because, in general, § 1291 does not authorize
government appeals in criminal cases. 43 Neither, as a general matter, does
§ 11-721(a)(1). This has long been settled. In Carroll v. United States, 44 the
Supreme Court — emphasizing that government appeals in criminal cases are “not
favored” 45 — held that § 1291 did not enable the government to appeal an order
suppressing crucial evidence, even though it effectively was a “final order” because
it ended the government’s ability to proceed with its prosecution. 46 Relying on that
decision, this court held in United States v. Stokes 47 that § 11-721(a)(1) did not
authorize the government to appeal a putatively unlawful criminal sentence, even
though the sentencing order concluded the prosecution and thus was a final order. 48
43
See Arizona v. Manypenny, 451 U.S. 232, 245-47 (1981).
44
354 U.S. 394 (1957).
45
Id. at 400.
46
Id. at 403-05.
47
365 A.2d 615 (D.C. 1976).
48
Id. at 617.
31
But Carroll and Stokes recognized an exception that we conclude applies to
appeals of orders granting compassionate release to prisoners under sentence. The
opinions in both cases acknowledged that “certain orders relating to a criminal case
may be found to possess sufficient independence from the main course of the
prosecution to warrant treatment as plenary orders, and thus be appealable [by the
government as well as the defendant] on the authority of” the final order statute, 28
U.S.C. § 1291 or D.C. Code § 11-721(a)(1). 49 As an example of a “sufficiently
independent” and final order that the government (or the defendant) may appeal
under § 1291, Carroll cited an order setting the amount of a defendant’s bail. 50 The
Court deemed such an order sufficiently distinct from the “main course of the
prosecution” to be appealable even though it applies while the prosecution still is in
progress.
Since Carroll, “a number of courts have ruled that section 1291 provides
appellate jurisdiction in criminal cases when the issue on appeal is sufficiently
49
Carroll, 354 U.S. at 403; see Stokes, 365 A.2d at 617.
50
354 U.S. at 403.
32
distinct from the underlying criminal proceeding.” 51 We already have cited federal
decisions involving government appeals from compassionate release grants. We
take additional guidance from the Second Circuit’s examination of the jurisdictional
issue in United States v. Peterson. In that case, the government appealed a district
court ruling dismissing its petition for a probation violation hearing. The Second
Circuit, applying the reasoning of Carroll, concluded that the appeal was authorized
by § 1291 even though it arose in a criminal case and concerned a possible
modification of the sentence Peterson then was serving. 52 The court explained this
conclusion thusly:
51
United States v. Peterson, 394 F.3d 98, 103 (2d Cir. 2005). See also 15B
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3919.2
(2d ed., 2022 update) (explaining that, for government appeals in criminal cases, the
second “largest category of appeals are supported by the general final decision
appeal jurisdiction of § 1291” and “[m]any of the appeals are rather easily explained
on the ground that the underlying district court proceedings are detached from the
criminal prosecution itself, either because the prosecution has not yet begun or
because it has finished”); id. at § 3919.8 (“Matters that seem sufficiently separate
from the central process of imposing sentence will at times be held appealable, more
likely under the general final decision provision of § 1291 than the more limited
language of § 3731.”).
52
Peterson, 394 F.3d at 103-05. Of course, if the court had concluded that
the appeal did not arise in a criminal case, there would have been no question of its
jurisdiction under § 1291.
33
The District Court’s determination that Peterson did not
violate the terms of his probation had nothing to do with
the merits of Peterson’s criminal conviction. . . . Nothing
the District Court could have done in response to the
government’s petition would in any way have affected, or
even called into question, the validity of Peterson’s
underlying conviction or the validity of the sentence
imposed by the District Court.
When a district court order has no effect on the merits of
the underlying criminal prosecution or sentence, it is ‘truly
collateral to the criminal prosecution.’ Accordingly, we
have no difficulty concluding that a district court’s
determination that a defendant has or has not violated a
condition of probation ordinarily is a decision collateral to
the main course of criminal prosecution and therefore
appealable under section 1291.[53]
Much the same analysis demonstrates that an order granting post-conviction
compassionate release to a prisoner is sufficiently independent of and “collateral to
the main course of [the] criminal prosecution” to be appealable by the United States
under §11-721(a)(1). A compassionate release order does not affect or call into
question the factual or legal “validity” of the prisoner’s criminal conviction or the
sentence that was imposed. Rather, the order is independent of and collateral to the
prosecution because it is based on new findings, at a later point in time, as to the
prisoner’s dangerousness and eligibility for compassionate release.
53
Id. at 104-05 (citation omitted).
34
Facon and PDS argue that a compassionate release order under D.C. Code
§ 24-403.04 is nonetheless a sentencing order, and that the government’s appeal of
such an order pursuant to §11-721(a)(1) therefore is foreclosed by this court’s
holding in Stokes. We do not agree. Stokes held that §11-721(a)(1) does not
authorize the government to appeal from the initially imposed sentence that
concludes the prosecution. 54 The case did not address the appealability of an
independent post-conviction order, such as an order under D.C. Code § 24-403.04,
that merely modifies a previously imposed sentence in light of conditions and events
that developed after the prosecution is over. Facon and PDS err in characterizing a
post-conviction sentence modification under the compassionate release statute as “a
54
In Stokes the United States sought to appeal the imposition of a Federal
Youth Corrections Act sentence on a defendant convicted of first-degree felony
murder. 365 A.2d at 616.
35
resentencing in all but name.” 55 In Dillon v. United States, 56 the Supreme Court
emphasized “the fundamental differences between sentencing and sentence-
modification proceedings.” 57 Like the statutory provision before the Court in Dillon,
the compassionate release statute authorizes “only a limited adjustment to an
otherwise final sentence” when specific qualifying circumstances are established. 58
55
Brief of PDS at 15 n.9 (quoting Williams v. United States, 205 A.3d 837,
849 (D.C. 2019)). Williams discussed the Incarceration Reduction Amendment Act
of 2016 (IRAA), a statute quite different from § 24-403.04 in scope and intent.
Appellate jurisdiction of government appeals from grants of sentencing relief under
the IRAA was not at issue or discussed in Williams, and we express no view on that
question in the present opinion. That said, we note that, in contrast to the
compassionate release statute, the IRAA expressly provides for plenary judicial
reconsideration of lengthy sentences imposed on juvenile offenders; it does so, we
noted, with the specific goal of “effectively converting each such sentence into one
with multiple realistic and meaningful possibilities of release while the offender still
has years of life left.” Id. Given the breadth of the mandated judicial inquiry, we
observed that “[a]lthough review under the IRAA is not denominated ‘resentencing,’
it would seem to equate to a resentencing in all but name.” Id. The same cannot be
said of proceedings on motions under the more restrictive compassionate release
statute.
56
560 U.S. 817 (2010).
57
Id. at 830 (holding retroactive amendments to federal sentencing guidelines
applied in sentence modification procedures under 28 U.S.C. § 3582(c)(2) binding
and not advisory like the sentencing guidelines are when applied during initial
sentencing).
58
Id. at 826.
36
Accordingly, the court’s inquiry in a compassionate release hearing is considerably
narrower than the inquiry in an initial sentencing or a resentencing; notably, as we
have held, a number of factors that are appropriately considered in fashioning a
defendant’s sentence, such as concerns about general deterrence, promoting respect
for the law, victim restitution, and imposing just and commensurate punishment, are
not properly considered in deciding whether to modify a previously imposed term
of imprisonment under D.C. Code § 24-403.04 because they do not bear on the
defendant’s present dangerousness or eligibility for compassionate release. 59 Thus,
such a modification is “not a plenary resentencing proceeding;” it “does not impose
a new sentence in the usual sense.” 60 Rather, “[a]ll a decision on the application for
compassionate release does is operate upon and modify—or leave unchanged—an
59
See Bailey v. United States, 251 A.3d 724, 731-33 (D.C. 2021). In Bailey
this court explained that factors appropriately considered in the initial determination
of a defendant’s sentence “are relevant to compassionate release decisions only
insofar as they inform the determination of a prisoner’s present or future
dangerousness.” Id. at 732. So, for example, “[w]here a defendant is eligible for
early release and found to be non-dangerous, there is simply no room in the statutory
scheme for concerns about general deterrence and victim restitution to trump those
determinations.” Id. See also Griffin v. United States, 251 A.3d 722, 723 (D.C.
2021).
60
Dillon, 560 U.S. at 826-27.
37
already-existing and already-imposed sentence.” 61 Therefore, we hold that, unlike
the initial sentence or a resentencing, and like the bail order discussed in Carroll, a
compassionate release order “possess[es] sufficient independence from the main
course of the prosecution to warrant treatment” as an appealable collateral order
within the purview of § 11-721(a)(1).
III. Facon’s Eligibility for Compassionate Release
We review the determination of a prisoner’s medical eligibility for
compassionate release for abuse of discretion. 62 The United States argues that the
motion judge exercised his discretion erroneously by basing his determination of
Facon’s post-vaccination eligibility for release on an incorrect legal standard. Facon
and PDS disagree; they argue that the judge did not abuse his discretion in relying
61
United States v. Long, 997 F.3d 342, 352 (D.C. Cir. 2021).
62
See Autrey v. United States, 264 A.3d 653, 659 (D.C. 2021); see also Page
v. United States, 254 A.3d 1129, 1130 (D.C. 2021) (“The legislative history shows
that the Council of the District of Columbia intended for trial courts to exercise
‘appropriate discretion to review the compelling facts of a case,’ Committee on the
Judiciary & Pub. Safety, Council of the District of Columbia, Report on Bill No. 23-
127 (‘Committee Report’) at 28-29 (Nov. 23, 2020), and thus afforded them
discretion to consider any reasonable factor that directly impacts on the
determination of whether an applicant is ‘at risk of severe illness or death from
COVID-19.’”).
38
on uncertainty as to the efficacy of vaccination to justify his ruling, and that evidence
in the record supports a finding that Facon remained acutely vulnerable to severe
illness or death from COVID-19 even after being vaccinated. We conclude that the
judge did apply an erroneous legal standard in assessing Facon’s medical eligibility,
and that a remand is required for the judge as trier of fact to reassess that issue in
light of the correct standard.
The motion judge initially concluded that Facon made the showing required
by D.C. Code § 24-403.04(a)(3)(B)(iii) — a showing that “extraordinary and
compelling reasons” warranted a modification of his sentence based on his “acute
vulnerability to severe medical complications or death as a result of COVID-19” —
because his “overall characteristics” demonstrated he had a “heightened
susceptibility to the extreme consequence of contracting COVID-19.” The judge
reasoned that the “possibility that Mr. Facon [will] receive a vaccine for COVID-19
[did] not detract from the other factors considered” because, while the “chances of
his suffering severe illness [would be] diminished, they [would] not [be]
extinguished” by vaccination. After the judge was informed that Facon had received
both doses of the Pfizer COVID-19 vaccine, he ruled that this fact did not alter his
decision because it did not eliminate Facon’s “heightened susceptibility”:
39
There is still uncertainty regarding the efficacy of the
Pfizer vaccine against variants of the COVID-19 virus, the
long-term efficacy of the vaccine, as well as how the
vaccine affects individuals with Mr. Facon’s particular
risk factors. The Pfizer vaccine, or any other available
treatment or mitigation tactics, is not 100% effective at
preventing infection or serious complications. Risk
appears to remain, but it has been reduced to an unknown
degree.
The judge’s analysis is inconsistent with the standard we subsequently
articulated in Autrey, that a vaccinated prisoner must show “that he remains ‘acutely
vulnerable’” to severe illness or death from COVID-19 “despite being vaccinated.” 63
While we did not offer a “precise definition” of “acute vulnerability,” we said in
Autrey that “it requires more than an ‘above-average’ risk, as compared to the
general population” — more, clearly, than the motion judge’s metric of “heightened
susceptibility” — since the word “acute” implies the risk must be “serious, urgent,
and demanding attention; intensified or aggravated nearly to a crisis, culmination, or
breaking point: extreme, severe, critical.” 64 The motion judge’s focus on the
uncertainty of the vaccine’s effectiveness also improperly shifted the burden to the
63
264 A.3d at 659.
Id. at 659 n.13 (quoting Webster’s Third New International Dictionary
64
Unabridged 23 (2020)).
40
government to disprove that Facon’s risk factors made him acutely vulnerable to
severe illness or death. “[I]t is the prisoner’s burden to demonstrate some acute
vulnerability to severe illness or death from COVID-19 despite being vaccinated,
not the government’s burden to disprove it, and not the trial court’s obligation to
independently research the matter.” 65 To make the necessary showing, “a prisoner
cannot rely on the mere possibility of residual risks without evidence that those risks
actually exist, apply to the prisoner, and rise to the level of an acute vulnerability”
even though the prisoner has been vaccinated. 66 And the judge therefore cannot base
a decision to grant a compassionate release motion on “the mere possibility of
residual risks.”
Rather than relying on uncertainties, the judge in the present case needed to
make particular findings regarding whether Facon’s evidence proved that his risk
factors rendered him “acutely” vulnerable to severe illness or death from COVID-19
in prison even after vaccination, so as to constitute “extraordinary and compelling
circumstances” warranting his release or other modification of his term of
65
Id. at 659.
66
Id.
41
imprisonment. On the existing record, we are not prepared to hold that only one
answer can be given to this question as a matter of law. We therefore must remand
the case for reconsideration of Facon’s medical eligibility under the legal standard
articulated in Autrey.
IV. The Issue of Facon’s Dangerousness
The United States argues that the motion judge also abused his discretion in
finding Facon is “not a danger to the safety of any other person or the community,
pursuant to the factors to be considered in 18 U.S.C. §§ 3142(g) and 3553(a) and
evidence of [his] rehabilitation while incarcerated.” 67 Facon responds that the judge
exercised his discretion properly by fully considering the record and relying only on
the relevant statutory factors. 68
Like the question of Facon’s medical eligibility for compassionate release, the
question of his current dangerousness is not one we are prepared to resolve one way
or the other as a matter of law on the existing record; the most we could say is
67
D.C. Code § 24-403.04(a).
68
See Bailey, 251 A.3d at 731-33.
42
whether the motion judge properly addressed the dangerousness issue. In light of
our conclusion that the case must be remanded anyhow for a new determination of
Facon’s eligibility, we exercise our discretion to refrain from deciding whether the
judge also erred in finding him not dangerous. Whether or not the judge did so err
when he rendered his decision in 2021, an up-to-date assessment of Facon’s
dangerousness will be necessary on remand before his motion can be granted. The
motion judge should consider any new evidence the parties introduce regarding
Facon’s present dangerousness.
That said, we think it important to add that we find the reasoning behind the
judge’s finding of non-dangerousness to be unclear, and we explain why with the
hope that the rationale for any determination of the question on remand will be more
pellucid. On the one hand, we understand the judge to have found that Facon’s
violent crimes against K.L. (“among the worst,” the judge said), his other criminal
history, and the striking fact that “10 years in prison did so little to rehabilitate him”
before he attacked K.L. right after being paroled, all “weigh[ed] heavily against his
release.” It is not clear to us why the judge nonetheless concluded — with “some
hesitation,” as he said — that Facon is “sufficiently rehabilitated” and no longer
dangerous. Although the judge recited the parties’ arguments and enumerated
43
certain facts he took into consideration in reaching that conclusion, he did not clearly
explain how those facts outweighed the evidence of Facon’s dangerousness and
actually showed that Facon was rehabilitated.
For example, the judge highlighted Facon’s claim that “substance abuse was
a contributing factor to his criminal behavior,” and that while in prison he had
participated in a Narcotics Anonymous program and had not used or possessed
illegal drugs or alcohol since 2004. But the judge did not explain why these bare
facts supported a finding that Facon would not be dangerous if he were no longer
incarcerated and under close supervision. It is not clear, and the judge did not find,
that Facon overcame his substance abuse problems in prison and would be unlikely
to relapse if drugs once again became available to him. Nor is it clear how Facon’s
substance abuse can be said to have contributed to (or otherwise mitigated) the
extremely violent crimes perpetrated against a complete stranger (kidnapping K.L.,
slashing her with a knife, and raping her) that raised the gravest concerns about his
“potential dangerousness.” In that regard, the judge gave inexplicably short shrift to
the government’s allegation that Facon had “at least twice been offered and refused
sex offender treatment” — which, if true, undercuts Facon’s claim to have used his
44
time in prison to ameliorate his dangerous propensities and supports the validity of
K.L.’s continuing fear of him.
Similarly, the judge also cited other facts about Facon’s activities while in the
highly regulated environment of prison — his “limited disciplinary infractions,”
“[t]he amount of time since any severe disciplinary infraction,” and his employment
and coursework — but did not explain why those activities supported a finding that
Facon was rehabilitated and would not endanger others if released from such an
environment. The same lack of explanation applies to the judge’s reliance on
Facon’s “advanced” age (he was 57) and health problems; it may be true as a
statistical matter that such facts correlate with a decline in violent criminal behavior,
but that does not make them reliably predictive in the individual case. Finally, the
judge cited Facon’s “close relationships” with family members who had offered him
their support upon his release. But the judge did not explain how this information
about his family said anything about Facon’s own rehabilitation and his receptivity
to help from his family, or how the family members would lessen any danger he
posed to other persons in the community.
45
In short, the judge asserted that the “balance favors the conclusion that
[Facon] does not” pose a danger, but he did not explain why that was so. If the
remand judge adheres to that conclusion, an explanation would be in order.
V.
For the foregoing reasons, we vacate the judgment and orders granting
Facon’s motion for compassionate release and remand the case for further
proceedings and a redetermination of Facon’s medical eligibility and dangerousness.
The parties should be afforded the opportunity to present updated evidence with
respect to each of those issues. 69
So ordered.
69
See Autrey, 264 A.3d at 660 (“[T]here is no prohibition on successive
motions for compassionate release, and given the ever-changing factual and
scientific underpinnings of such motions, any one judgment is likely to have little if
any preclusive effect on the next.” (footnote omitted)). The United States has noted
that the amended judgment in this case deviated from the motion judge’s ruling (in
that it would have provided for Facon to be on supervised release rather than
probation) and neglected to address Facon’s obligation to register as a sex offender.
These concerns are moot for the time being, but the Superior Court should attend to
them in the event it grants Facon’s compassionate release motion on remand.