United States v. Patricia Aruda ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10245
Plaintiff-Appellee,
D.C. No.
v. 1:14-cr-00577-DKW-1
PATRICIA ARUDA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Submitted April 1, 2021 *
Pasadena, California
Filed April 8, 2021
Before: Kim McLane Wardlaw, Ronald M. Gould, and
John B. Owens, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. ARUDA
SUMMARY **
Criminal Law
The panel vacated the district court’s order denying the
defendant’s motion for compassionate release under 18
U.S.C. § 3582(c)(1)(A)(i), and remanded, in a case in which
the district court, citing U.S.S.G. § 1B1.13, determined that
the defendant’s release was unwarranted based on the 18
U.S.C. § 3553(a) factors and the danger she posed to the
community.
The panel held that the current version of § 1B1.13 is not
an “applicable policy statement[] issued by the Sentencing
Commission” for motions filed by a defendant under 18
U.S.C. § 3582(c)(1)(A).
The First Step Act of 2018 amended § 3582(c)(1)(A) to
allow for defendants, in addition to the Bureau of Prisons
Director, to file a motion, but § 1B1.13 has not since been
amended and only references motions filed by the BOP
Director. The dangerousness finding is part of the
Sentencing Commission’s policy statement in U.S.S.G.
§ 1B1.13(2), but is not statutorily required under
§ 3582(c)(1)(A)(i).
Because the district court relied on § 1B1.13, the panel
vacated the order and remanded so that the district court can
reassess the defendant’s motion under the correct legal
standard. The panel offered no views as to the merits of the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. ARUDA 3
§ 3582(c)(1)(A)(i) motion, and left it to the district court to
consider the defendant’s new allegation that she has since
contracted and recovered from COVID-19.
COUNSEL
Salina M. Kanai, Interim Federal Public Defender;
Sharron I. Rancourt, Assistant Federal Defender; Office of
the Federal Public Defender, Honolulu, Hawaii; for
Defendant-Appellant.
Kenji M. Price, United States Attorney; Marion Purcell,
Chief of Appeals; Thomas Muehleck, Assistant United
States Attorney; United States Attorney’s Office, Honolulu,
Hawaii; for Plaintiff-Appellee.
OPINION
PER CURIAM:
Patricia Aruda appeals from the district court’s order
denying her motion for compassionate release under
18 U.S.C. § 3582(c)(1)(A)(i). We hold that the current
version of U.S. Sentencing Guidelines Manual (“U.S.S.G.”)
§ 1B1.13 is not an “applicable policy statement[] issued by
the Sentencing Commission” for motions filed by a
defendant under the recently amended § 3582(c)(1)(A).
Because the district court relied on U.S.S.G. § 1B1.13, we
vacate and remand so that the district court can reassess
Aruda’s motion for compassionate release under the correct
legal standard.
4 UNITED STATES V. ARUDA
I. BACKGROUND
In 2015, Aruda pled guilty to possession with the intent
to distribute 500 grams or more of a mixture or substance
containing a detectable amount of methamphetamine in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). The district
court sentenced Aruda to 130 months’ imprisonment
followed by five years’ supervised release.
About five years later, in June 2020, Aruda filed a
motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i). Aruda argued that the high number of
COVID-19 cases at her prison facility, combined with her
particular medical conditions which increased her risk for
serious complications should she contract COVID-19,
created “extraordinary and compelling” reasons justifying
her release.
In July 2020, the district court denied Aruda’s motion for
compassionate release. As a preliminary issue, the district
court determined that U.S.S.G. § 1B1.13 is binding on
federal courts when a defendant has filed a motion under
§ 3582(c)(1)(A). At the time, district courts across the
country were split over this issue because the First Step Act
of 2018 amended § 3582(c)(1)(A) to allow for defendants,
in addition to the Bureau of Prisons (“BOP”) Director, to file
a motion, but U.S.S.G. § 1B1.13 has not since been amended
and only references motions filed by the BOP Director.
Relying on U.S.S.G. § 1B1.13 cmt. n.1(A), the district
court found that Aruda’s circumstances constituted
“extraordinary and compelling” reasons under
§ 3582(c)(1)(A). However, citing U.S.S.G. § 1B1.13, the
district court determined that Aruda’s release was
unwarranted based on the 18 U.S.C. § 3553(a) factors and
the danger she posed to the community as provided under
UNITED STATES V. ARUDA 5
18 U.S.C. § 3142(g). This dangerousness finding is not
statutorily required under 18 U.S.C. § 3582(c)(1)(A)(i), but
is part of the Sentencing Commission’s policy statement in
U.S.S.G. § 1B1.13(2).
Accordingly, the district court denied Aruda’s motion
for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A)(i).
II. STANDARD OF REVIEW
We have not yet set forth the standard of review for
sentence reduction decisions under 18 U.S.C. § 3582(c)(1).
However, “[w]e review § 3582(c)(2) sentence reduction
decisions for abuse of discretion.” United States v. Dunn,
728 F.3d 1151, 1155 (9th Cir. 2013). Likewise, we hold that
we review § 3582(c)(1) sentence reduction decisions for
abuse of discretion.
“A district court may abuse its discretion if it does not
apply the correct law or if it rests its decision on a clearly
erroneous finding of material fact.” Id. (citation omitted).
“Statutory interpretation is a question of law that we review
de novo.” United States v. Washington, 971 F.3d 856, 861
(9th Cir. 2020).
III. DISCUSSION
“A federal court generally ‘may not modify a term of
imprisonment once it has been imposed.’” Dillon v. United
States, 560 U.S. 817, 819 (2010) (quoting 18 U.S.C.
§ 3582(c)). Under 18 U.S.C. § 3582(c)(1)(A), Congress
provided an exception, sometimes known as compassionate
release, to reduce a sentence for “extraordinary and
compelling reasons.” For over thirty years, under the
original statute, only the BOP Director could file a
6 UNITED STATES V. ARUDA
§ 3582(c)(1)(A) motion for a sentence reduction on a
defendant’s behalf. However, as part of the First Step Act
of 2018, Congress amended § 3582(c)(1)(A) to also allow a
defendant to seek a reduction directly from the court,
provided that the defendant first seeks a reduction from the
BOP and that request has either been denied or 30 days have
passed. Pub. L. No. 115-391, Title VI, sec. 603(b)(1),
§ 3582, 132 Stat. 5194, 5239 (2018).
Section 3582(c)(1)(A), as amended by the First Step Act,
currently provides:
(c) Modification of an imposed term of
imprisonment.—The court may not modify
a term of imprisonment once it has been
imposed except that—
(1) in any case—
(A) the 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 to appeal a
failure of the Bureau of Prisons to
bring a motion on the defendant’s
behalf or the lapse of 30 days from the
receipt of such a request by the
warden of the defendant’s facility,
whichever is earlier, 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
UNITED STATES V. ARUDA 7
of imprisonment), after considering
the factors set forth in section
3553(a) to the extent that they are
applicable, if it finds that—
(i) extraordinary and compelling
reasons warrant such a
reduction; or
(ii) the defendant is at least 70
years of age, has served at least 30
years in prison, pursuant to a
sentence imposed under section
3559(c), for the offense or
offenses for which the defendant
is currently imprisoned, and a
determination has been made by
the Director of the Bureau of
Prisons that the defendant is not a
danger to the safety of any other
person or the community, as
provided under section 3142(g);
and that such a reduction is
consistent with applicable policy
statements issued by the
Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A) (emphases added).
Congress provided no statutory definition of
“extraordinary and compelling reasons.” Instead, Congress
stated that the Sentencing Commission, “in promulgating
general policy statements regarding the sentencing
modification provisions in section 3582(c)(1)(A) of title 18,
8 UNITED STATES V. ARUDA
shall describe what should be considered extraordinary and
compelling reasons for sentence reduction, including the
criteria to be applied and a list of specific examples.”
28 U.S.C. § 994(t); see also id. § 994(a)(2)(C).
The Sentencing Commission’s policy statement
regarding “Reduction in Term of Imprisonment Under
18 U.S.C. § 3582(c)(1)(A)” is found at U.S.S.G. § 1B1.13.
However, the Sentencing Commission has not updated
§ 1B1.13 since the First Step Act amended § 3582(c)(1)(A). 1
The current version of § 1B1.13 refers only to motions filed
by the BOP Director, and does not reference motions filed
by a defendant as now allowed under § 3582(c)(1)(A).
Section 1B1.13 provides:
Upon motion of the Director of the Bureau
of Prisons under 18 U.S.C. § 3582(c)(1)(A),
the court may reduce a term of imprisonment
(and may impose a term of supervised release
with or without conditions that does not
exceed the unserved portion of the original
term of imprisonment) if, after considering
the factors set forth in 18 U.S.C. § 3553(a), to
the extent that they are applicable, the court
determines that—
(1)(A) extraordinary and compelling reasons
warrant the reduction; or
(B) the defendant (i) is at least 70 years old;
and (ii) has served at least 30 years in prison
pursuant to a sentence imposed under
1
The Sentencing Commission currently lacks a quorum of voting
members and is therefore unable to update any Sentencing Guidelines.
UNITED STATES V. ARUDA 9
18 U.S.C. § 3559(c) for the offense or
offenses for which the defendant is
imprisoned;
(2) the defendant is not a danger to the safety
of any other person or to the community, as
provided in 18 U.S.C. § 3142(g); and
(3) the reduction is consistent with this policy
statement.
U.S.S.G. § 1B1.13 (emphasis added).
In addition, in Application Note 1, the Sentencing
Commission described four categories of “Extraordinary
and Compelling Reasons.” Id. cmt. n.1. The first three
categories concern the “Medical Condition of the
Defendant,” “Age of the Defendant,” and “Family
Circumstances.” Id. cmt. n.1(A)–(C). The fourth category
is a catch-all provision vesting the “Director of the Bureau
of Prisons” with the authority to determine “other”
extraordinary and compelling reasons. Id. cmt. n.1(D).
Further, Application Note 4 states:
4. Motion by the Director of the Bureau of
Prisons.—A reduction under this policy
statement may be granted only upon motion
by the Director of the Bureau of Prisons
pursuant to 18 U.S.C. § 3582(c)(1)(A). The
Commission encourages the Director of the
Bureau of Prisons to file such a motion if the
defendant meets any of the circumstances set
forth in Application Note 1. The court is in a
unique position to determine whether the
circumstances warrant a reduction (and, if so,
10 UNITED STATES V. ARUDA
the amount of reduction), after considering
the factors set forth in 18 U.S.C. § 3553(a)
and the criteria set forth in this policy
statement, such as the defendant’s medical
condition, the defendant’s family
circumstances, and whether the defendant is
a danger to the safety of any other person or
to the community.
Id. cmt. n.4 (emphasis added).
Following the First Step Act’s amendment of
§ 3582(c)(1)(A), district courts across the country were
initially split on whether U.S.S.G. § 1B1.13 is an “applicable
policy statement[] issued by the Sentencing Commission”
for § 3582(c)(1)(A) motions filed by a defendant rather than
the BOP Director. However, after the district court’s
decision here, five other circuits have addressed this issue
and have unanimously held that U.S.S.G. § 1B1.13 only
applies to § 3582(c)(1)(A) motions filed by the BOP
Director, and does not apply to § 3582(c)(1)(A) motions
filed by a defendant. See United States v. McGee, No. 20-
5047, 2021 WL 1168980, at *12 (10th Cir. Mar. 29, 2021);
United States v. McCoy, 981 F.3d 271, 281–84 (4th Cir.
2020); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir.
2020); United States v. Jones, 980 F.3d 1098, 1109 (6th Cir.
2020); United States v. Brooker, 976 F.3d 228, 234–37 (2d
Cir. 2020). As explained by the Fourth Circuit, “[t]here is as
of now no ‘applicable’ policy statement governing
compassionate-release motions filed by defendants under
the recently amended § 3582(c)(1)(A), and as a result,
district courts are ‘empowered . . . to consider any
extraordinary and compelling reason for release that a
defendant might raise.’” McCoy, 981 F.3d at 284 (quoting
Brooker, 976 F.3d at 230).
UNITED STATES V. ARUDA 11
Our sister circuits have reached this conclusion based on:
(1) the text of § 3582(c)(1)(A), which only requires courts to
consider “applicable” policy statements by the Sentencing
Commission; (2) the text of U.S.S.G. § 1B1.13, which
begins “[u]pon motion of the Director of the Bureau of
Prisons”; (3) the text of Application Note 4 to § 1B1.13,
which states that “[a] reduction under this policy statement
may be granted only upon motion by the Director of the
Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A)”;
(4) the text of Application Note 1(D) to § 1B1.13, which is
a catch-all provision allowing only the “Director of the
Bureau of Prisons” to determine “other” extraordinary and
compelling reasons; and (5) the legislative history of the
First Step Act’s compassionate-release amendment, which
sought to expand and expedite compassionate-release
motions because they had seldom been brought by the BOP.
See McGee, 2021 WL 1168980, at *10–12; McCoy, 981 F.3d
at 280–84; Gunn, 980 F.3d at 1180; Jones, 980 F.3d at 1109–
11; Brooker, 976 F.3d at 235–37.
We agree with the persuasive decisions of our sister
circuits and also hold that the current version of U.S.S.G.
§ 1B1.13 is not an “applicable policy statement[]” for
18 U.S.C. § 3582(c)(1)(A) motions filed by a defendant. In
other words, the Sentencing Commission has not yet issued
a policy statement “applicable” to § 3582(c)(1)(A) motions
filed by a defendant. The Sentencing Commission’s
statements in U.S.S.G. § 1B1.13 may inform a district
court’s discretion for § 3582(c)(1)(A) motions filed by a
defendant, but they are not binding. See Gunn, 980 F.3d
at 1180.
Because the district court treated U.S.S.G. § 1B1.13 as
binding, we vacate and remand so that the district court can
reassess Aruda’s motion for compassionate release under the
12 UNITED STATES V. ARUDA
standard set forth here. We offer no views as to the merits
of Aruda’s § 3582(c)(1)(A)(i) motion, and we leave it to the
district court to consider Aruda’s new allegation that she has
since contracted and recovered from COVID-19.
VACATED AND REMANDED.