Autrey v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-CO-282
VERNON J. AUTREY, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(1997-FEL-9413)
(Hon. Robert A. Salerno, Trial Judge)
(Argued November 19, 2021 Decided December 14, 2021)
Anne Keith Walton for appellant.
Paul Maneri, Public Defender Service, with whom Samia Fam and Alice
Wang, Public Defender Service, filed an amicus curiae brief for appellant.
Eric Hansford, with whom Channing D. Phillips, Acting United States
Attorney, and Chrisellen R. Kolb, John P. Mannarino, and Mark Hobel, Assistant
United States Attorneys, filed a Cross-Motion for Summary Affirmance, for
appellee.
Before GLICKMAN and DEAHL, Associate Judges, and NEBEKER, Senior
Judge.
DEAHL, Associate Judge: Appellant Vernon Autrey appeals the trial court’s
denial of his motion for compassionate release. See D.C. Code § 24-403.04; D.C.
2
Law 23-274, tit. XII, § 1203(b) (Apr. 27, 2021). Autrey, who is serving a sentence
of twenty years to life for a non-fatal shooting in 1997, sought compassionate release
on the ground that he satisfies the statute’s two core requirements: that he is both
eligible and non-dangerous. D.C. Code § 24-403.04(a). More specifically, as
concerns his eligibility, he argued that his age (45) and medical conditions (obesity,
diabetes, hyperlipidemia, hypertension, and asthma) rendered him acutely
vulnerable to severe illness or death from COVID-19 and thus constitute “[o]ther
extraordinary and compelling reasons” for a modified prison term under the statute’s
catch-all provision. D.C. Code § 24-403.04(a)(3). The United States countered that
Autrey is ineligible for compassionate release because he received two doses of the
Pfizer-BioNTech vaccine, which it maintains substantially mitigates his risk of
severe illness or death from COVID-19 notwithstanding his medical conditions.
The trial court agreed with the United States and denied Autrey’s motion,
concluding that he is ineligible for compassionate release without addressing his
dangerousness. Autrey appealed and moved for summary reversal, arguing that
vaccination status is irrelevant to eligibility for compassionate release under the
statute. In his view, his age and medical conditions place him at “high risk” for
severe illness from COVID-19 regardless of his vaccination status. He maintains
that “[i]t is the fact that the medical conditions exist—not the fact that they might be
3
mitigated by something else like the vaccine or medication or some other type of
medical care—that determines ‘extraordinary and compelling reasons’ for release.”
The Public Defender Service for the District of Columbia filed an amicus brief in
support of Autrey’s motion. It elaborated that the “history and purpose of the
[compassionate release] statute” show that “the D.C. Council has made clear that the
only question for the trial court is whether Mr. Autrey’s medical conditions make
his risk of severe illness from COVID-19 higher than those who do not suffer from
such medical conditions,” so that his vaccination status is irrelevant.
Shortly after Autrey moved for summary reversal on those grounds, this court
decided Page v. United States, 254 A.3d 1129 (D.C. 2021). Page concerned a
prisoner who had already been infected with COVID-19, and we held that the trial
court could properly take the fact of a prior infection into account as diminishing his
“risk of severe illness or death from COVID-19.” Id. at 1130. Page concluded, over
dissent, that the Council “intended for trial courts to exercise ‘appropriate discretion
to review the compelling facts of a case,’ . . . 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.’” Id. (quoting
Report on Bill No. 23-127 before the Comm. on the Judiciary & Pub. Safety, Council
of the District of Columbia, at 28-29 (Nov. 23, 2020)).
4
At Autrey’s request, we then held this appeal in abeyance pending resolution
of various petitions for en banc review, asking for reconsideration of the issue
decided in Page and its apparent implications for those who are vaccinated. When
those petitions were denied, we scheduled this matter for oral argument. At
argument, in light of Page, Autrey and amicus retreated from their initial positions
that receipt of a vaccine has no bearing on whether a prisoner has shown
“extraordinary and compelling reasons” for compassionate release based on medical
conditions that increase the prisoner’s risk of severe illness or death from COVID-
19. They now urge us to hold that the mere fact of vaccination is not, standing alone,
fatal to a prisoner’s claim that he is eligible for compassionate release.
We agree, and so it seems does the United States. Following Page’s lead, we
hold that a prisoner’s vaccination status is a relevant and permissible consideration
in determining whether a prisoner is “at risk of severe illness or death from COVID-
19.” Page, 254 A.3d at 1130. But it is not the end all, be all of that inquiry, which
requires a fact-specific analysis of the prisoner’s condition(s) and the evolving
scientific evidence regarding how effective vaccination is likely to be in the
particular case. We now elaborate on Page’s conclusion that the Council intended
for the catch-all to afford trial courts the “discretion to review the compelling facts
5
of a case” rather than bind them with rigid criteria amid an unprecedented and often
unpredictable pandemic. Id.
The compassionate release statute lists six examples of “extraordinary and
compelling reasons” for relief: two primary examples and four “other” illustrative
examples in a catch-all provision. D.C. Code § 24-403.04(a)(1)-(3). Although first
enacted as emergency legislation at the pandemic’s onset, 1 the statute mentions
COVID-19 as a basis for eligibility in only the catch-all’s “elderly age” example.
D.C. Code § 24-403.04(a)(3)(B). In addition to age and time served, the “elderly
age” example seemingly limits relief to a prisoner who “[s]uffers 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[.]”
D.C. Code § 24-403.04(a)(3)(B)(iii). The statute does not define the operative terms
“serious medical condition,” “acute vulnerability,” or “severe medical
complications.”
1
“COVID-19 Response Supplemental Emergency Amendment Act of
2020,” D.C. Act 23-286 § 305(b), 67 D.C. Reg. 4178 (Apr. 10, 2020); see also D.C.
Council, Twenty-Seventh Legislative Meeting at 47:17 to 48:26 (Apr. 7, 2020)
(statement by Councilmember Charles Allen introducing the emergency legislation),
video available at https://lims.dccouncil.us/Legislation/B23-0733;
https://perma.cc/RTD7-TRMY.
6
In passing permanent legislation eight months later, the Council reduced the
“elderly age” example’s time-served requirement, but it did not amend the statute
with different or additional examples warranting relief based on COVID-19. 2 While
the FDA had already approved Pfizer’s vaccine for emergency use, 3 the Council was
aware that the District’s judges had been extending the catch-all to prisoners whose
“circumstances increase their vulnerability to death or severe illness from COVID-
19, for example, even if they do not meet the definition of ‘elderly’ based on their
age or length of imprisonment[.]” 4 The Council’s decisions to (1) keep the number
of enumerated examples limited, (2) retain a non-exhaustive catch-all provision, (3)
leave operative terms undefined, and (4) express approval of trial court judges
extending the catch-all beyond the “elderly age” criteria despite the imminent
availability of vaccines, collectively reinforce the conclusion that the Council
intended for the catch-all’s “[o]ther extraordinary and compelling reasons” standard
2
See D.C. Law 23-274, tit. XII, § 1203(b). Although the Council passed D.C.
Law 23-274 on December 15, 2020, and the Mayor signed it on January 13, 2021, it
did not become effective until April 27, 2021, following the Congressional review
period. See D.C. Code § 1-206.02(c)(2) (2016 Repl.).
3
See FDA News Release, https://www.fda.gov/news-events/press-
announcements/fda-takes-key-action-fight-against-covid-19-issuing-emergency-
use-authorization-first-covid-19; https://perma.cc/J5WF-CJ4B (Dec. 11, 2020).
4
Report on Bill 23-127 at 27-28.
7
to remain flexible in the face of changing circumstances and evolving scientific
knowledge. 5
The past several months have shown the need for such flexibility and
underscored how hard-and-fast rules in this area can quickly become outdated.
When we decided Page in July 2021, infections and deaths attributable to COVID-
19 were near a pandemic-low in the United States: specifically, deaths hovered
around 300 per day and new detected infections were around 30,000 per day. See
Reported Cases & Deaths by Country: United States, WORLDOMETER,
www.worldometers.info/coronavirus/country/us/; https://perma.cc/6Q9G-4ZK3.
At the time, there was considerable cause for optimism about the effectiveness of
vaccines and the prospects for substantially containing COVID-19’s spread and
reducing mortality rates, leading one court to declare (just one day before we issued
Page) that “the availability of a vaccine makes it impossible to conclude that the risk
of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release”
5
See Grayson v. AT&T Corp., 15 A.3d 219, 238 (D.C. 2011) (en banc)
(“Statutory interpretation is a holistic endeavor, and, at a minimum, must account
for a statute’s full text, language as well as punctuation, structure, and subject
matter.”) (quoting Cook v. Edgewood Mgmt. Corp., 825 A.2d 939, 946 (D.C. 2003));
Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019) (“We may also look to the
legislative history to ensure that our interpretation is consistent with legislative
intent.”) (quoting Thomas v. Buckley, 176 A.3d 1277, 1281 (D.C. 2017)).
8
for those able to receive and benefit from it. United States v. Broadfield, 5 F.4th
801, 803 (7th Cir. 2021) (Easterbrook, J.); see also United States v. Lemons, 15 F.4th
747, 751 (6th Cir. 2021) (endorsing Broadfield).
Things have changed quite a bit over the past several months, making that
proclamation seem rather premature. Within weeks of Broadfield’s sweeping
declaration, COVID-19’s so-called Delta variant rampaged through the nation, and
by mid-September daily new cases and deaths had increased nearly tenfold from
their summer nadir, substantially dampening any optimism. WORLDOMETER, supra
And in recent weeks, yet another variant, Omicron, has emerged surrounded by
question marks regarding its transmissibility, severity, and how effectively current
vaccinations guard against it, with few readily available answers. 6 Just days ago,
President Biden urged all already-vaccinated Americans “who have not yet gotten
their booster shot” to “get one as soon as possible,” emphasizing the Omicron variant
6
There is some early evidence that Omicron is more transmissible than
previous strains but less likely to lead to hospitalization or death. Lynsey Chutel, et
al., Early Reports Signal Variant Is Less Severe, NY TIMES, Dec. 7, 2021, at A1
(“[T]here are early indications that Omicron may cause less serious illness than other
forms of the virus.”). It is too early to predict if that early evidence will bear out.
9
as particular cause for urgency. 7 Those developments highlight the need for courts
to be flexible in responding to the ever-changing realities on the ground.
That flexibility requires trial courts to consider “any reasonable factor[,]” not
just vaccination, in determining whether a prisoner has shown “an ‘extraordinary
and compelling’ reason warranting a sentence modification.” Page, 254 A.3d at
1130. Those factors include, at least to the extent any litigant introduces it, evidence
regarding (1) whether a prisoner is unable to benefit from a vaccine due to being
7
Press release, President Biden Announces New Actions to Protect
Americans Against the Delta and Omicron Variants as We Battle COVID-19 this
Winter (Dec. 2, 2021) www.whitehouse.gov/briefing-room/statements-releases/
2021/12/02/fact-sheet-president-biden-announces-new-actions-to-protect-
americans-against-the-delta-and-omicron-variants-as-we-battle-covid-19-this-
winter/; https://perma.cc/8Q3K-ZHJA. That announcement came on the heels of the
CDC’s recommendation that all already-vaccinated adults receive booster shots.
Media Statement, CDC Expands COVID-19 Booster Recommendations (Nov. 29,
2021) www.cdc.gov/media/releases/2021/s1129-booster-recommendations.html;
https://perma.cc/3MSA-L8L9. The CDC had previously recommended a Pfizer
booster shot six months after the second dose for adults aged 18-49 with underlying
medical conditions and adults aged 18-64 years who are at increased risk of COVID-
19 exposure and transmission because of their institutional setting, both of which
would appear to apply to Autrey. See Press Release, CDC Statement on ACIP
Booster Recommendations (Sept. 24, 2021) https://www.cdc.gov/
media/releases/2021/p0924-booster-recommendations-.html;
https://perma.cc/SDB7-GM6T Federal Bureau of Prisons, COVID-19 Vaccine
Guidance at 5-6 (Oct. 13, 2021, version 14.1) https://www.bop.gov/resources/pdfs/
covid_19_vaccine_guidance_v14_0_2021. pdf; https://perma.cc/9KP4-GA2Y. The
parties have not indicated whether Autrey has received a booster shot during the
pendency of this appeal.
10
immunocompromised, (2) whether a prisoner’s medical conditions continue to
render him acutely vulnerable to severe illness or death despite receiving some
benefit from the vaccine, which may implicate vaccine efficacy data for certain
subpopulations, (3) emerging research about “long COVID,” (4) the availability of
booster shots to the extent they are necessary to prevent severe illness or death due
to waning immunity, and (5) the rise of new virus variants to the extent they impair
the efficacy of the existing vaccines in preventing severe illness or death. In short,
trial courts must continue to “act[] independently with appropriate discretion to
review the compelling facts of a case[.]” Report on Bill No. 23-127 at 28-29. Given
how rapidly the above eligibility calculus can change, it would also be prudent for
trial courts in each compassionate release case to decide whether the prisoner has
demonstrated their non-dangerousness, regardless of any eligibility determination. 8
8
We acknowledge this runs counter to the ordinary guideline that courts
“should decide no more than we have to decide.” Tyler v. United States, 705 A.2d
270, 279 (D.C. 1997) (Schwelb, J., concurring). In this context, there is good reason
to depart from that judicial policy. Trial court determinations on a prisoner’s
dangerousness will help expedite the resolution of compassionate release motions
that are almost invariably appealed because the factors informing eligibility can
change drastically by the time of appellate consideration. To illustrate the point,
Autrey, amicus, and the United States have asked us to consider new scientific data
that has emerged since the trial court’s ruling in this case, which we discuss further
below.
11
That is not to say that a prisoner’s receipt of a vaccine is just another factor of
undifferentiated significance. The United States points us to CDC statistics which
show vaccination reduces one’s risk of hospitalization or death from COVID-19
many times over. 9 For example, at the July 2021 ebb before the spread of the Delta
variant, unvaccinated persons in Autrey’s age group were hospitalized at eight times
the rate of vaccinated persons, although that disparity fell to a factor of six by the
height of the Delta wave in September 2021. 10 Similarly, unvaccinated persons in
Autrey’s age group died at twenty-seven times and thirty-four times, respectively,
the rate of vaccinated persons. 11 Even the study that Autrey and amicus highlight
detailing the Delta outbreak at a Bureau of Prisons facility corroborates these wide
disparities: unvaccinated prisoners were hospitalized at thirteen times the rate of
9
See CDC, Rates of COVID-19 Cases and Deaths by Vaccination Status,
https://covid.cdc.gov/covid-data-tracker/#rates-by-vaccine-status;
https://perma.cc/7YY5-A44K (last accessed Dec. 6, 2021); CDC, Rates of
Laboratory-Confirmed COVID-19 Hospitalizations by Vaccination Status, https://
covid.cdc.gov/covid-data-tracker/#covidnet-hospitalizations-vaccination;
https://perma.cc/FU49-52F8 (last accessed Dec. 6, 2021).
10
See id. (showing hospitalization rates per 100,000 persons in the 30-49 age
group to be 12.78 versus 102.35 for the week ending July 3, 2021, and 4.0 versus
58.8 for the week ending September 11, 2021).
11
See Rates of COVID-19 Cases and Deaths by Vaccination Status, n.19
supra (showing death rates per 100,000 persons in the 30-49 age group to be 0.02
versus 0.54 for the week ending July 3, 2021, and 0.12 versus 4.13 for the week
ending September 11, 2021).
12
vaccinated prisoners (3 of 42 versus 1 of 185), and the sole prisoner who died was
unvaccinated. 12 The vaccines have generally, at least to date, proven extremely
effective at preventing severe illness or death.
We also do not mean to suggest that unsubstantiated claims of a vaccinated
prisoner’s residual risk of severe illness or death from COVID-19 can constitute
“[o]ther extraordinary and compelling reasons” for compassionate release. All
persons—vaccinated or not, incarcerated or not, with or without underlying medical
conditions—are at some risk of severe illness or death from COVID-19; such is our
plight. A vaccinated prisoner must show that he remains “acutely vulnerable” to
those outcomes despite being vaccinated, and he must do so by a preponderance of
the evidence. See Bailey v. United States, 251 A.3d 724, 729-30 (D.C. 2021)
(adopting preponderance standard as to dangerousness inquiry). While conclusive
statistical evidence is not needed to satisfy the preponderance standard, 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.
12
See Liesl M. Hagan, MPH et al., Outbreak of SARS-CoV-2 B.1.617.2
(Delta) Variant Infections Among Incarcerated Persons in a Federal Prison —
Texas, July–August 2021 (Sept. 24, 2021), https:// www.cdc.gov/mmwr/volumes/
70/wr/mm7038e3.htm; https://perma.cc/E2P2-PHUV.
13
Expert opinions may well be necessary. But it 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. 13
Applying the above principles to this appeal, we perceive no abuse of
discretion in the trial court’s conclusion that Autrey failed to show the “extraordinary
and compelling reasons” required for compassionate release. While Autrey has a
host of comorbidities generally increasing his risk of severe illness or death from
COVID-19, the government countered with evidence that his vaccination
substantially mitigates his risk, and Autrey presented no evidence to the contrary.
The trial court was well within its discretion in concluding that Autrey had not
carried his burden of establishing his eligibility for compassionate release. 14
13
We do not hazard a precise definition of “acute vulnerability” here, as no
party has asked us to do that. Suffice to say it requires more than an “above-average”
risk, as compared to the general population, associated with severe illness or death
from COVID-19. Webster’s Third New International Dictionary Unabridged 23
(2020) (defining “acute” as “serious, urgent, and demanding attention; intensified or
aggravated nearly to a crisis, culmination, or breaking point: extreme, severe,
critical”); see also Report on Bill No. 23-127 at 27-28 (approving of trial judges
dispensing with the age and time-served requirements of the “elderly age” example,
not the acute-vulnerability requirement).
14
Autrey argues that the trial court erred by failing to apply the
preponderance-of-the-evidence standard to its eligibility determination. We
14
However, we further note that there is no prohibition on successive motions for
compassionate release, 15 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. Should Autrey amass some evidence that the vaccine
is ineffective as to him, or more generally ineffective as to emerging variants, he
may yet prevail on a new motion for compassionate release based on such evidence.
* * *
The Superior Court’s order is affirmed.
disagree. While the trial court did not expressly invoke a preponderance standard,
and its order was issued before our decision in Bailey clarifying that as the applicable
standard, the trial court order does not employ the sort of language inconsistent with
the preponderance standard that caused us to remand in Bailey for a clarified ruling.
251 A.3d at 730-31; see also S. Hills P’ship v. Anderson, 179 A.3d 297, 299 (D.C.
2018) (“The appellant bears the burden of ‘convincing the appellate court that the
trial court erred.’”) (quoting Harvey v. United States, 385 A.2d 36, 37 (D.C. 1978)).
15
See D.C. Code § 24-403.04 (containing no prohibition on successive
motions). It appears that federal district courts have uniformly reached the same
conclusion with respect to the analogous federal statute. See, e.g., United States v.
Istre, No. 09-341, 2021 U.S. Dist. LEXIS 84971, at *2-3 (E.D. La. May 4, 2021)
(citing cases); United States v. Mendoza, No. 10-313(1) (DWF/FLN), 2019 U.S.
Dist. LEXIS 205366, at *11 (D. Minn. Nov. 26, 2019) (“Indeed, such a prohibition
would not make sense for petitions for compassionate release, which is appropriate
in a range of circumstances that may arise even after a court has previously found
that compassionate release was inappropriate.”).