United States v. Greene ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA, )
)
v. ) No. 71-cr-1913 (KBJ)
)
LAVANCE GREENE, )
)
Defendant. )
)
MEMORANDUM OPINION
In September of 1971, Defendant LaVance Greene committed a horrific crime:
he disarmed three United States marshals to assist his half-brother in making a dramatic
break from custody during a funeral furlough, and fatally shot a fourth marshal in the
course of the planned escape. See United States v. Greene, 834 F.2d 1067, 1068–69
(D.C. Cir. 1987). Greene was convicted of both local and federal crimes after a jury
trial in the U.S. District Court for the District of Columbia; in particular, the jury found
him guilty of felony murder and armed robbery in violation of two provisions of the
D.C. Code, and of rescue of a federal prisoner and the premediated murder of a federal
officer, in violation of two federal statutes. See id. A federal district judge (Hart, J.)
subsequently sentenced then-23-year-old Greene, and, upon exhausting his direct
appeals in 1973, Greene was committed to the D.C. Department of Corrections to serve
a prison term of 35 years to life. 1
1
Prior to the Sentencing Reform Act of 1984 (“the SRA”), judges in the federal system were authorized
to impose indeterminate sentences with respect to persons who were convicted of federal crimes;
consequently, the U.S. Parole Commission determined how much time a defendant would actually serve
in prison (beyond the minimum period that the district judge prescribed). See Tapia v. United States,
564 U.S. 319, 323–24 (2011). Parole was abolished in the federal criminal justice system with the
enactment of the SRA; however, federal defendants who were sentenced under the indeterminate
sentencing scheme and who remained in custody after 1987 are still entitled to parole, and the U.S.
Today, nearly five decades later, Greene is a 72-year-old prisoner with various
serious medical conditions who has filed a motion with this Court seeking
compassionate release. (See Def.’s Mot. for Compassionate Release (“Def.’s Mot.”),
ECF No. 12.) Greene has the backing of numerous officers of the United States Bureau
of Prisons (“BOP”), who have repeatedly testified during Parole Commission hearings
that Greene is a completely reformed and model inmate whom they would welcome as a
neighbor, and federal corrections officials became especially supportive of the prospect
of Greene’s release in the wake of his purportedly heroic effort to save two guards’
lives in the midst of a prison riot 32 years ago. Yet, in apparent deference to the
understandable contrary views of the U.S. Marshals Service, and presumably in the
interest of ensuring just punishment for the underlying criminal offense, the Parole
Commission has repeatedly denied Greene’s release request.
Before this Court at present is the motion for compassionate release that Greene
has filed in this Court, which his counsel has expressly submitted pursuant to section
24-403.04 of the D.C. Code. (See Def.’s Mot. at 1.) 2 The D.C. Council enacted this
compassionate release provision in April of 2020, and Greene maintains that because
the D.C. Circuit overturned his federal convictions when his case was on appeal (and
thus the only remaining crimes of conviction are his local offenses), it is the D.C. Code
that authorizes this Court to reduce his sentence and release him from federal custody.
The Government agrees with defense counsel that the D.C. Code’s compassionate
release provision is the applicable legal standard, but it argues that Greene is not
Parole Commission still reviews any such requests.
2
Page-number citations to the documents that the parties and the Court have filed refer to the page
numbers that the Court’s Electronic Filing System (“ECF”) automatically assigns.
2
entitled to release pursuant to that statute, largely due to the indisputably egregious
nature of his original offense.
After careful consideration of the parties’ submissions and for the reasons
explained below, this Court concludes that Greene’s motion must be construed as a
motion for compassionate release under federal law—i.e., as a motion for release
pursuant to 18 U.S.C. § 3582(c)(1)(A)—rather than a motion brought under the D.C.
Code, because a federal district judge’s authority to modify a sentence that was
previously imposed in federal court comes from Congress, not from the D.C. Council.
Moreover, this Court has determined that, when Greene’s motion is so construed, his
request for compassionate release must be GRANTED. Greene’s advanced age, 49
years of imprisonment to date, and current serious medical conditions unquestionably
constitute “extraordinary and compelling reasons” that justify his release despite the
abhorrent nature of his criminal offense. See 18 U.S.C. § 3582(c)(1)(A)(i); U.S. Sent’g
Guidelines Manual § 1B1.13 cmt. n.1(B) (U.S. Sent’g Comm’n 2018). Moreover, in
this Court’s view, none of the purposes of punishment set forth in section 3553(a) of
Title 18 of the U.S. Code warrant Greene’s continued incarceration under the
circumstances presented here. See 18 U.S.C. § 3582(c)(1)(A); see also United States v.
Johnson, 464 F. Supp. 3d 22, 30 (D.D.C. 2020) (explaining that “whether or not a
justified motion for compassionate release will be granted appears to turn on
Congress’s requirement that the court reassess the applicable section 3553(a) factors”
and determine whether “it is necessary to maintain the prior term of imprisonment
despite the extraordinary and compelling reasons to modify the defendant’s sentence in
order to achieve the purposes of punishment”). A separate Order consistent with this
Memorandum Opinion will follow.
3
I. BACKGROUND
Greene’s Criminal Offense
In 1971, Greene’s half-brother, Randolph, was serving a 20-year sentence for
armed bank robbery at Lewisburg Penitentiary, a federal prison in Pennsylvania. See
United States v. Greene (“Greene I”), 489 F.2d 1145, 1147, 1159 (D.C. Cir. 1973). 3
When Randolph’s father passed away, prison officials permitted him, “at his mother’s
request,” to attend his father’s funeral service in Washington, D.C., under the
supervision of four U.S. marshals. Id. Once the funeral service was underway, Greene
entered the “crowded church” with a gun and managed to disarm three of the marshals,
freeing Randolph from their custody. Id. The brothers then attempted to flee the scene,
but they encountered a fourth U.S. marshal outside of the church. See id. A gun battle
ensued, during which Greene fatally shot the marshal and accidentally shot Randolph as
well. (See id.; Def.’s Mot. at 4–5; Ex. A to Def.’s Mot., ECF No. 12-1, at 4.)
According to the Government’s account of the offense, which is apparently based
on the description of the crime that appears in Randolph’s presentence investigation
report, Greene stood over the marshal’s body as he “lay helpless on the pavement” and
shot him twice more. (See Gov’t Opp’n to Def.’s Mot. for Compassionate Release
(“Gov’t Opp’n”), ECF No. 13, at 3; see also Ex. M to Def.’s Mot., ECF No. 12-1, at
41.) Greene has forcefully contested this version of the facts both at his parole hearings
and before this Court (see Ex. M to Def.’s Mot. at 40–41; Def.’s Reply to Gov’t Opp’n
(“Def.’s Reply”), ECF No. 14, at 10); as Greene remembers the incident, both the
3
Due to the significant passage of time since Greene’s conviction and sentencing, the trial transcripts
and sentencing documents from his case are no longer available. (See Def.’s Mot. at 5.) The offense-
related facts in this Memorandum Opinion are primarily drawn from the D.C. Circuit’s decision on
Greene’s appeal of his conviction.
4
marshal and Randolph were lying on the ground at the end of the gun battle, and Greene
“looked at both of them in an effort to a[ss]ess what had happened” before helping his
brother up and running away (see Ex. M to Def.’s Mot. at 41). Greene further contends
that he was under the influence of heroin, alcohol, and marijuana at the time he
committed the offense, and was likely “experiencing a drug induced psychosis” (Ex. A
to Def.’s Mot. at 4); yet, he insists that he did not fire any additional shots at the
marshal after he fell to the ground (see Ex. M to Def.’s Mot. at 40–41; Def.’s Reply at
10).
It is undisputed that, after the shooting, Greene and Randolph commandeered a
car at gunpoint and sped away. Greene I, 489 F.2d at 1147. Multiple police officers
then pursued the brothers on a high-speed chase, and after a few miles, both brothers
were apprehended and arrested. Id.
Procedural History
About a month after these horrific events, Greene was indicted in the United
States District Court for the District of Columbia of seven D.C. Code and federal law
offenses. Specifically, he was charged with felony murder and four counts of armed
robbery in violation of D.C. Code §§ 22-2401, 2901, 3202 (1973), and of rescue of a
federal prisoner and premediated murder of a federal officer, in violation of 18 U.S.C.
§§ 752(a), 1114 (1970). Greene I, 489 F.2d at 1150, 1158; see also id. at 1160 & nn.2–
5 (statement of Chief Judge Bazelon as to why he would grant rehearing en banc).
Significantly for present purposes, the United States District Court for the District of
Columbia has authority to exercise jurisdiction over local criminal offenses that are
properly joined with federal offenses in an indictment, see District of Columbia Court
Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, § 111, 84 Stat. 473,
5
478 (codified at D.C. Code § 11-502(3)), and as a result, Greene was tried for both the
local crimes and the federal offenses at the same time, and in federal district court, see
Greene I, 489 F.2d at 1147. During the trial, Greene asserted that he was insane at the
time he committed the criminal acts, but a jury rejected this defense, and convicted him
of all charges. See United States v. Greene (“Greene II”), 834 F.2d 1067, 1069 (D.C.
Cir. 1987). Judge George Hart, Jr. then sentenced Greene to an aggregate term of 440
months to life in prison. (See Criminal Docket Sheet, ECF No. 1, at 6.) 4
In 1973, the D.C. Circuit affirmed Greene’s D.C. Code convictions, but vacated
his federal law convictions, on the grounds that (1) “there had been a ‘merger’ between
the felony murder count and the rescue felony on which it was based[,]” and (2) the
district court’s “application of the D.C. insanity burden to U.S. Code offenses raised a
serious equal protection issue” that could be avoided by vacating the federal law
convictions. Greene II, 834 F.2d at 1069–70 (synthesizing the D.C. Circuit’s holdings
with respect to Greene’s direct appeal). Because the sentence for premeditated murder
of a federal officer ran concurrently with the D.C. Code felony murder charge (see
Criminal Docket Sheet at 6), Greene’s minimum sentence was ultimately reduced only
by 20 months (see id.), leaving him with a total sentence of 35 years to life in prison
(see Ex. B to Def.’s Mot., ECF No. 12-1, at 10).
Following his appeal, Greene filed a motion under 28 U.S.C. § 2255 to set aside
his sentence for felony murder, given that the D.C. Circuit had vacated his conviction
4
Greene was sentenced to 20 years to life for felony murder; 15 years to life for armed robbery; 15
years to life for premeditated murder of a federal officer; and 20 months to 5 years for rescuing a
prisoner. (See Criminal Docket Sheet at 4, 6.) The sentences for rescue of a prisoner and one count of
armed robbery were to be served consecutively to the sentence for felony murder, while the sentences
for premeditated murder and the three remaining counts of armed robbery were to run concurrently with
the felony murder sentence. (See id. at 6.)
6
for the underlying felony. Greene II, 834 F.2d at 1070. The district court (Pratt, J.)
denied Greene’s motion, and the D.C. Circuit affirmed that denial on appeal. Id. at
1074.
Greene’s Incarceration And Parole Commission Hearings
To serve his affirmed prison sentence, Greene was initially incarcerated at
Lorton Reformatory in Virginia, a prison run by the D.C. Department of Corrections,
and he remained at that facility for approximately three decades. (Def.’s Mot. at 8.)
There is no dispute that, while at Lorton, Greene took advantage of numerous
programming and employment opportunities “in an effort to prepare for his eventual
release.” (Letter of Dr. Rosalyn Miles, Ex. I to Def.’s Mot., ECF No. 12-1, at 27.) For
instance, Greene took courses at the University of the District of Columbia Lorton
Prison College Program; became proficient in various computer, software, and office
management skills; and worked as a clerk and secretary at the prison’s medical unit.
(See id. at 27–28.)
Greene also managed to endear himself to corrections officials, when, in 1989,
he risked his own life to protect two officers during a violent prison riot. According to
a letter that one of the two officers wrote in the wake of the incident, inmates “armed
with bricks, steel rods, chairs, [and] a steel mopbucket” attempted to take control of the
facility, causing the two officers to run into a stairway, where they soon became
trapped. (See Letter of Clifford L. Fanucci, Jr. (“Fanucci Letter”), Ex. D to Def.’s
Mot., ECF No. 12-1, at 16.) As the officers heard “an untold number of residents
shouting to kill the officers” (see id.), Greene stepped in and “convince[d] the other
residents who were tr[y]ing to injure [the officers] to refrain from their violent actions”
(Def.’s Mot. at 12).
7
For these purportedly heroic and selfless acts—and also his concerted efforts to
improve himself while in prison—Greene earned the recognition and praise of
individuals both inside and outside of Lorton Reformatory, including the Director of the
D.C. Department of Corrections, former mayor Marion Barry (who was at that point a
member of the D.C. Council), and two D.C. Councilmembers. (See Letter of Director
Margaret Moore, Ex. E to Def.’s Mot., ECF No. 12-1, at 18; Letter of Marion Barry, Jr.
(“Barry Letter”), Ex. F to Def.’s Mot., ECF No. 12-1, at 20–21; Letter of
Councilmember Frank Smith, Jr. (“Smith Letter”), Ex. G to Def.’s Mot., ECF No. 12-1,
at 23; Letter of Councilmember Harry L. Thomas, Sr., Ex. H to Def.’s Mot., ECF No.
12-1, at 25.) Some of these officials even advocated for Greene’s early release,
specifically citing his rehabilitation and service to the prison community. (See, e.g.,
Barry Letter at 21 (advocating for a good time credit award); see also Smith Letter at 23
(urging the Director of the D.C. Department of Corrections to afford Greene a parole
hearing).)
In 2001, Greene was transferred from Lorton into BOP custody, where he
remains to date. (Def.’s Mot. at 8.) Greene has continued to engage in extensive
programming and educational opportunities while in the federal prison system; for
example, he has completed vocational and educational training programs in music,
culinary arts, public speaking, Spanish, criminal thinking, and drawing; has obtained
his GED; has used his own money to pay for an advanced computer training course at a
local community college; and has successfully finished various drug abuse treatment
and education programs. (See Ex. A to Def.’s Mot. at 5; Ex. M to Def.’s Mot. at 41;
Ex. O to Def.’s Mot., ECF No. 12-1, at 49–50; Ex. P to Def.’s Mot., ECF No. 12-1, at
52–53; Ex. Q to Def.’s Mot., ECF No. 12-1, at 59.) Greene has also been heavily
8
involved as a sewing machine operator and instructor at the BOP’s UNICOR Program,
where he has received exemplary performance reviews and is considered an
“outstanding” worker. (See Ex. M to Def.’s Mot. at 41; Ex. S to Def.’s Mot., ECF No.
12-1, at 66.) In addition, Greene has acted as a peacekeeper between inmates and
officers, and has thereby helped to prevent violence in the prison community. (See
Letter of Chrystal McKenzie (“McKenzie Letter”), Ex. J to Def.’s Sealed Mot., ECF
No. 9-3, at 30; Letter of Mark Cantrell (“Cantrell Letter”), Ex. K to Def.’s Sealed Mot.,
ECF No. 9-3, at 32.)
During the past seventeen years in BOP custody, Greene has appeared before the
U.S. Parole Commission at least six times. At his initial hearing in 2003, the
Commission denied Greene parole for reasons that are not entirely clear from the record
before the Court, and set a reconsideration hearing for three years later. (See Ex. C to
Gov’t Opp’n, ECF No. 13-2, at 1–3.) In 2006, the Commission again denied Greene
parole, accepting the assigned hearing examiner’s recommendation to continue further
reconsideration of the matter until 2009. (Ex. M to Def.’s Mot. at 40; Ex. N to Def.’s
Mot., ECF No. 12-1, at 45–46.) The hearing examiner acknowledged that Greene had
“been used as a resource by staff by acting as a role model for other inmates[,]” and
that Greene had “engaged in extensive assistance to the institution”; however, the
examiner ultimately concluded that the seriousness of Greene’s crime outweighed “his
positive adjustment to incarceration.” (See Ex. N to Def.’s Mot. at 45.) In the hearing
examiner’s view, Greene’s “cold blooded execution” of a law enforcement officer
exhibited a “callous disregard for human life” that rendered him a serious threat to the
community, even 35 years after he had committed that heinous act. (See id. at 46.)
9
When Greene next appeared before the Parole Commission in 2009 and 2010, the
assigned hearing examiner reached a different conclusion. During the hearings, the
examiner heard testimony from Greene’s case manager regarding Greene’s phenomenal
work record, his role as “a mentor to younger inmates[,]” and the respect that he had
consistently shown towards BOP staff. (See Ex. L to Def.’s Mot., ECF No. 12-1, at 35.)
Additionally, the institution’s captain, who had attended only one other parole hearing
in his 35 years at BOP, came to advocate on Greene’s behalf. In his testimony, the
captain stated that Greene was “an outstanding inmate who ha[d] provided considerable
cooperation and assistance to prison staff[,]” and that he showed a “genuine concern for
the safety of staff and other prisoners.” (Def.’s Mot. at 15.) Greene also read aloud a
letter that he had written to the Marshals Service in 1985 detailing his “profound
remorse and regret” for his actions, and explaining that the guns “just started firing[,]”
and that he did not mean to kill the marshal. (See Ex. L to Def.’s Mot. at 35, 37.) In
response, the Marshals Service submitted a letter to the Parole Commission opposing
Greene’s release in light of the “extremely serious” nature of his offense. (See id. at
34–35.) Based on all of the evidence presented, the hearing examiner recommended
Greene’s release, noting that he had been “a model prisoner and expresses genuine
remorse for his crime.” (See id. at 35–36.) But the Commission disagreed with the
examiner’s recommendation, and denied Greene parole yet again, citing the “brazen and
vicious” nature of Greene’s crime, and the fact that Greene had suggested that his
offense was unintentional in the letter he wrote to the Marshals Service—a
characterization that, in the Commission’s view, demonstrated Greene’s failure to
accept full responsibility for his actions. (See Ex. E to Gov’t Opp’n, ECF No. 13-3, at
1; Ex. L to Def.’s Mot. at 36–37.)
10
By the time Greene’s next hearing came around in 2015, numerous BOP officials
appeared before the Commission to provide testimony in support of his release. For
instance, three BOP officials testified that Greene frequently went out of his way to
facilitate the safety and wellbeing of the prison community. (See Ex. A to Def.’s
Sealed Mot., ECF No. 9-3, at 2–3.) Another BOP official, one who supervised Greene’s
work in the culinary unit, stated that Greene “has shown a genuine concern for the
safety and welfare of BOP personnel” and that he “was a personal recipient of
[Greene’s] concern when he experienced a medical crisis while in the institution and
[Greene] came to his aid.” (Ex. A to Def.’s Mot. at 3.) Two additional BOP officials
spoke to Greene’s “exemplary work ethic” (see id.), and out of the seven BOP officials
who testified at the hearing, two specifically voiced their support for having Greene as
their neighbor (see id.). The assigned hearing examiner also received letters from the
U.S. Marshals Service and a friend of the victim’s family urging the Commission to
deny Greene parole, while the victim’s nephew (who formerly worked as a correctional
officer himself) wrote a letter saying that he did not oppose Greene’s release. (See id.
at 2, 5.)
In addition to hearing these statements for and against Greene’s parole, the
hearing examiner also considered a recent disciplinary infraction that Greene had
incurred for throwing grits on a staff member. (See id. at 4.) However, after reviewing
all of the evidence concerning that incident and otherwise, the hearing examiner
recommended granting Greene parole due to his “obvious concern for the welfare of
others” and given the enormous respect that he had earned among BOP staff. (See id. at
6.) The hearing examiner also noted that, as a former substance abuse counselor at
Lorton Reformatory, she had “personally witnessed” Greene’s concern for others,
11
including employees such as herself. (See Ex. A to Def.’s Sealed Mot. at 6.) Yet,
notwithstanding the hearing examiner’s recommendation, Greene was again denied
parole. According to the executive reviewer’s statement of reasons, Greene’s
disciplinary infraction, along with his original offense, demonstrated that he still posed
a danger to the community and that he lacked self-control. (See Ex. A to Def.’s Mot. at
6–7.)
Greene last appeared before the Parole Commission in 2017. Consistent with its
prior decisions, the Commission denied Greene parole, this time on the ground that his
offense of conviction was extremely serious, and that, since his last parole hearing,
Greene had incurred another disciplinary infraction for possessing a dangerous weapon
and threatening correctional staff. (See Ex. F to Gov’t Opp’n, ECF No. 13-4, at 1.) 5
The record does not provide a definitive account of the circumstances underlying this
alleged disciplinary infraction, but, according to Greene, the dangerous weapon was a
“four-inch piece of plastic that he used to trace straight lines for his artwork as part of
his Pen and Ink Drawing course[,]” and that he had “reacted verbally” when the officers
took it away from him, in part because he “was forcibly kept out of his cell while the
disposal of his possessions took place.” (Def.’s Mot. at 19.) Greene’s next parole
hearing is set for September of 2022. (See Ex. B to Def.’s Mot. at 11.)
Greene’s Compassionate Release Motion
Greene is now 72 years old, and has served 49 years of his prison sentence. (Id.
at 9, 11.) On November 24, 2020, Greene’s counsel filed a motion for compassionate
5
It is not clear whether the assigned hearing examiner had recommended that the Commission deny
Greene parole, because the record does not include a summary of the 2017 hearing or the hearing
examiner’s recommendation.
12
release in this Court under D.C. Code § 24-403.04. (See Def.’s Sealed Mot. for
Compassionate Release, ECF No. 4.) D.C. Code § 24-403.04 authorizes “the court” to
modify a D.C. Code offender’s term of imprisonment under certain enumerated
circumstances, which take into account a defendant’s age, medical conditions, and time
spent in prison. See D.C. Code § 24-403.04(a). Greene argues that he is eligible for
relief under that statute given his age and number of years incarcerated, as well as his
numerous medical conditions—specifically, severe urinary incontinence (Mot. Hr’g Tr.
at 26:5–23), primary hypertension, “undiagnosed congestive heart failure[,]” “a latent
tuberculosis infection, hypermetropia (a vision condition), dermatophytosis (fungal
infections), abdominal hernia, shingles, and dermatitis resulting in distressing skin
lesions” (Def.’s Mot. at 25–28). The motion also contends that Greene is no longer a
danger to the community, as evidenced by his “minimum” rating on the standard
PATTERN risk assessment scale (see id. at 17), and the fact that numerous BOP
officials have observed his behavior and have expressed support for his release (see id.
at 14–16). Greene additionally points to the steps that he has taken in prison to
rehabilitate himself and to make amends for his crime, such as saving the lives of
correctional officers during the prison riot at Lorton Reformatory (see id. at 11), and
working with BOP staff to ensure the safety of the prison community (see id. at 15). As
for his disciplinary record, Greene stresses that not one of his infractions while in
prison resulted in physical harm to another person, and that a BOP official who is
familiar with his prison record has stated that Greene does not have a serious
disciplinary history to any meaningful extent. (See id. at 19; see also Cantrell Letter at
32.)
On December 2, 2020, this Court issued a Minute Order directing the
13
Government to respond to Greene’s motion for compassionate release. (See Min. Order
of Dec. 2, 2020). In the order, the Court also instructed the parties to address the
applicability of the federal compassionate release statute in addition to the D.C.
compassionate release statute, and to discuss Greene’s entitlement to relief under both
statutory schemes. (See id.) The Government filed an opposition to Greene’s motion
on December 9, 2020, and Greene filed a reply thereto on December 14, 2020. (See
Gov’t Opp’n at 14; see also Def.’s Reply at 17.)
In its opposition brief, the Government maintains that the D.C. compassionate
release statute is the proper statute to apply to this case, because Greene is serving time
for D.C. Code offenses; in the Government’s view, the federal compassionate release
statute does not apply to D.C. Code offenders even if they were sentenced in federal
court. (See Gov’t Opp’n at 1 n.1.) The Government additionally asserts that Greene is
not entitled to compassionate release under the D.C. compassionate release statute,
because he committed a “violent murder of an on-duty [U.S.] Marshal” and “has
minimized his role in the offense throughout the years[.]” (Id. at 2.) The Government
also emphasizes that the U.S. Marshals Service opposes Greene’s motion, and that the
Parole Commission has consistently denied Greene’s requests for release. (See id.)
In his reply, Greene also contends that this Court should apply the D.C.
compassionate release statute to his case, because, in his view, the D.C. statute’s
eligibility standards are more generous than those of the federal statute. (See Def.’s
Reply at 2–7.) Yet, he further argues that, if the Court does apply the standards set
forth in 18 U.S.C. § 3582(c)(1)(A), it should find that his advanced age, lengthy period
of incarceration, and medical ailments constitute “extraordinary and compelling
reasons” that warrant his release. (Id. at 7, 9; see also Def.’s Mot. at 26.)
14
On December 18, 2020, this Court held a hearing on Greene’s motion. (See Min.
Entry of Dec. 18, 2020.) Defense counsel waived Greene’s presence at the hearing,
both to expedite this Court’s review of Greene’s motion and also because Greene’s
urinary incontinence prevented him from sitting through a court hearing without
interruption. (Mot. Hr’g Tr. at 26:14–20.) At the end of the hearing, the Court advised
the parties that it would issue a ruling after carefully considering the full evidentiary
record and the parties’ oral and written submissions. (Id. at 44:3–9.) The Court has
now completed that review.
II. LEGAL STANDARDS
Section 3582(c)(1)(A) Of Title 18 Of The U.S. Code
As a general matter, federal courts are “forbidden . . . to modify a term of
imprisonment once it has been imposed[.]” Freeman v. United States, 564 U.S. 522,
526 (2011) (internal quotation marks and citation omitted); see also 18 U.S.C.
§ 3582(c). Section 3582(c)(1)(A) of Title 18 provides one exception to this general
rule. As amended by the First Step Act of 2018, section 3582(c)(1)(A) authorizes
federal courts to entertain a motion for a sentence reduction brought by the Director of
the BOP or by the defendant, and thereby reduce a term of imprisonment that was
previously imposed, provided that the following conditions are met.
First, in cases where a defendant moves for compassionate release under section
3582(c)(1)(A), the court can hear such a motion only “after the defendant has fully
exhausted all administrative rights to appeal a failure of the [BOP] 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[.]” 18 U.S.C. § 3582(c)(1)(A).
As this Court has explained in prior opinions, see, e.g., Johnson, 464 F. Supp. 3d at 28–
15
29, section 3582(c)(1)(A)’s exhaustion requirement is non-jurisdictional, and a court
may therefore excuse a defendant’s failure to exhaust his administrative rights “where,
among other things, the agency will almost certainly deny any relief either because it
has a preconceived position on, or lacks jurisdiction over, the matter[,]” id. at 29
(internal quotation marks and citation omitted).
Next, even if a defendant satisfies section 3582(c)(1)(A)’s exhaustion
requirement (or if the court finds that exhaustion would be futile), the defendant must
also demonstrate that he meets one of the statute’s two eligibility criteria. Under the
first prong of section 3582(c)(1)(A), a defendant may be eligible for compassionate
release if “extraordinary and compelling reasons” justify reducing his term of
imprisonment. 18 U.S.C. § 3582(c)(1)(A)(i). Congress does not specify what counts as
an “extraordinary and compelling reason[,]” see id., but it expressly delegated to the
Sentencing Commission the authority to define the circumstances that, if present, would
satisfy that standard, see 28 U.S.C. § 994(t). Accordingly, the Sentencing Commission
has identified four general categories of circumstances that qualify as “extraordinary
and compelling” reasons for release, including a defendant’s age, medical issues, family
circumstances, or “other” exceptional situations. See U.S. Sent’g Guidelines Manual
§ 1B1.13 cmt. n.1. For example, under the “Age of the Defendant” provision of section
1B1.13 of the Sentencing Guidelines Manual, extraordinary and compelling
circumstances that warrant a sentence modification exist where the defendant “(i) is at
least 65 years old; (ii) is experiencing a serious deterioration in physical or mental
health because of the aging process; and (iii) has served at least 10 years or 75 percent
of his or her term of imprisonment, whichever is less.” Id. § 1B1.13 cmt. n.1(B).
16
A defendant can also demonstrate eligibility for compassionate release under the
second prong of section 3582(c)(1)(A) (without having to establish extraordinary and
compelling circumstances) if he is “at least 70 years of age, has served at least 30 years
in prison,” and “a determination has been made by the Director of the [BOP] that the
defendant is not a danger to . . . the community[.]” 18 U.S.C. § 3582(c)(1)(A)(ii).
However, unlike the extraordinary and compelling circumstances prong, which applies
to defendants serving sentences for any crime, this provision applies only to defendants
serving mandatory life sentences for certain “serious violent felonies[.]” See id.§ 3559(c)(1); see id. § 3582(c)(1)(A)(ii) (limiting eligibility to those serving a sentence
under section 3559(c)).
Finally, even when the court determines that the defendant satisfies section
3582(c)(1)(A)’s eligibility requirements, the court may reduce the defendant’s term of
imprisonment only if it finds that a sentence reduction would not interfere with the
purposes of punishment set forth in section 3553(a). See id. § 3582(c)(1)(A). In
making this determination, the Court considers such factors as “the nature and
circumstances of the offense[,]” the “history and characteristics of the defendant[,]” and
the need “to protect the public from further crimes of the defendant[.]” Id.
§ 3553(a)(1)–(2).
Section 24-403.04 Of The D.C. Code
In April of 2020, the Council of the District of Columbia enacted a
compassionate release statute that is loosely modeled on section 3582(c)(1)(A). See
D.C. Code § 24-403.04; see also COVID-19 Response Supplemental Emergency
Amendment Act of 2020, 23d Leg., 27th Sess. (D.C. 2020) (statement of Councilmember
Allen, 48:10–48:26). Section 24-403.04 of the D.C. Code permits “the court” to modify
17
a D.C. Code offender’s term of imprisonment under certain enumerated circumstances,
which include a defendant’s age, medical conditions, and time spent in prison. See
D.C. Code § 24-403.04(a). As relevant here, D.C. Code offenders may be eligible to
have their terms of imprisonment reduced under section 24-403.04(a) if they are at least
60 years old and have served 25 years or more in prison, or if:
Other extraordinary and compelling reasons warrant such a modification,
including . . .
Elderly age, defined as a defendant who:
(i) Is 60 years of age or older;
(ii) Has served at least 20 years in prison or has served the greater of 10
years or 75% of his or her 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[.]
Id. § 24-403.04(a)(2), (3)(B).
In order to grant a defendant’s motion for compassionate release under D.C.
Code § 24-403.04, the court must determine not only that the defendant meets the
statute’s eligibility criteria, but also that the defendant is no longer a danger to 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[.]” Id. § 24-
403.04(a). 6 But, unlike the federal compassionate release statute, D.C. Code § 24-
6
Section 3142(g) lists the criteria that a court must consider in the pre-trial detention context, when it
decides “whether there are conditions of release that will reasonably assure the appearance of the
person [at trial] as required and the safety of any other person and the community[.]” 18 U.S.C.
§ 3142(g). These factors include “the nature and circumstances of the offense charged, [and] whether
the offense is a crime of violence,” “the weight of the evidence against the person[,]” “the history and
characteristics of the person[,]” and “the nature and seriousness of the danger to any person or the
community that would be posed by the person’s release.” Id. Thus, the prescribed section 3142(g)
factors are substantially similar to the factors that a federal court must consider under section 3553(a),
prior to sentencing a defendant. See id. § 3553(a); id. § 3582(a) (requiring a court to consider the
factors set forth in section 3553(a) when imposing a term of imprisonment).
18
403.04 permits courts to grant relief without first requiring the defendant to exhaust
administrative remedies. See id. § 24-403.04(b).
III. ANALYSIS
Greene’s status as a federal inmate who is presently serving time in BOP custody
solely for local offenses presents an anomalous compassionate release situation that is
unique to this jurisdiction. This is an unusual scenario because federal courts typically
lack jurisdiction over state and local offenses, but in the District of Columbia, Congress
has authorized federal district courts to exercise jurisdiction over “[a]ny offense under
any law applicable exclusively to the District of Columbia . . . [that] is joined in the
same information or indictment with any Federal offense.” D.C. Code § 11-502(3). 7
Thus, although Greene was sentenced by a federal district judge in federal district court,
his punishment is presently being carried out exclusively in relation to his D.C. Code
offenses, and such circumstances beg the threshold question of which set of legal
standards this Court can (or must) use to evaluate his release request. That is, should
this Court apply the compassionate release standards that D.C.’s local legislature
recently enacted to provide relief for D.C. Code offenders, or should the Court apply
7
This limited grant of jurisdiction over local criminal offenses stems from the unique history of the
court system in the District of Columbia, where Congress has constitutional authority to “legislate for
the District” by “defin[ing] certain crimes in the D.C. Code” and by dictating the forum in which cases
involving such crimes can be heard. See United States v. Belt, 514 F.2d 837, 843 (D.C. Cir. 1975)
(citing U.S. Const. art. I, § 8, cl. 17). Until 1970, Congress had provided the U.S. District Court for the
District of Columbia with “exclusive jurisdiction over felony offenses, even though committed in
violation of locally applicable laws[,]” meaning that “the District Court was filling the role of both a
local and federal court.” Palmore v. United States, 411 U.S. 389, 392 n.2 (1973). Congress changed
this system when it enacted the District of Columbia Court Reform and Criminal Procedure Act of
1970, which “create[d] an independent judicial system to be responsible for ‘local’ matters, and . . .
free[d] the federal courts of the District of that responsibility.” Belt, 514 F.2d at 842 (internal
quotation marks and citation omitted). However, the Act also authorizes the federal court to retain
jurisdiction over local offenses that are properly joined with a federal offense, in order to allow United
States attorneys dealing with defendants “accused of infractions which are both Federal and purely
local violations” to “handle all charges with minimal procedural difficulties[.]” United States v.
Jackson, 562 F.2d 789, 799 (D.C. Cir. 1977) (quoting H.R. Rep. No. 91-907, at 33 (1970)).
19
the compassionate release statute that Congress has included in the U.S. Code and that
would otherwise govern this Court’s ability to modify a term of imprisonment that a
federal judge previously imposed?
The parties here insist that the D.C. Code’s release provision governs defendants
like Greene, who are federal inmates serving time for exclusively D.C. Code offenses
(see Gov’t Opp’n at 1 n.1; Def.’s Reply at 2–7), but this Court concludes that the
standards that Congress has set forth in 18 U.S.C. § 3582(c)(1)(A) must apply, for the
reasons explained below. And when those standards are applied to the instant
circumstances, the Court further finds that the statutory exhaustion requirement must be
waived as futile; that Greene’s age and medical conditions qualify as extraordinary and
compelling circumstances that justify his release for the purpose of section
3582(c)(1)(A); and that the 49 years of incarceration that Greene has served to date for
his reprehensible crime are sufficient to promote the statutory goals of punishment for
the purpose of the federal compassionate release statute, such that Greene’s continued
incarceration is not required.
Federal Law, And Not The D.C. Code, Governs Greene’s Motion For
Compassionate Release
The Court’s analysis of the threshold question of which set of legal standards
applies begins—and ends—with foundational principles of federal-court jurisdiction.
To start, it is clear beyond cavil that Congress decides “what cases the federal courts
have jurisdiction to consider[,]” including “when, and under what conditions, federal
courts can hear them.” Bowles v. Russell, 551 U.S. 205, 212–13 (2007); see also
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (explaining that
federal courts “have only the power that is authorized by Article III of the Constitution
20
and the statutes enacted by Congress pursuant thereto”). Moreover, and as relevant
here, Congress has specifically authorized federal courts to exercise jurisdiction over
individuals who have been accused of violating criminal provisions of the D.C. Code
when the individual is also charged with a federal offense and the local and federal
offenses are properly joined in an indictment or information pursuant to Federal Rule of
Criminal Procedure 8(a). See D.C. Code § 11-502(3); supra note 7; see also Fed. R.
Crim. P. 8(a) (stating that an “indictment or information may charge a defendant in
separate counts with 2 or more offenses if the offenses charged . . . are of the same or
similar character, or are based on the same act or transaction”). Notably, federal courts
may also retain jurisdiction over local offenses even after the federal offenses have
“faded from the case[.]” United States v. Malenya, 736 F.3d 554, 556 (D.C. Cir. 2013)
(internal quotation marks and citation omitted) (explaining that “[d]isposition of the
federal offense after proper joinder does not withdraw power over the local offense”).
It is also well established that federal courts must apply the substantive law of
the District of Columbia that underlies a given D.C. Code offense in the context of any
such adjudication. See, e.g., Greene II, 834 F.2d at 1072 (explaining that “where a
defense of insanity is interposed to a [D.C. Code] felony murder prosecution” in federal
court, the “standard for determining sanity is the one specified for the crime of felony
murder”). But because the entire point of giving federal courts the authority to
adjudicate D.C. Code offenses was to “eliminat[e] the ‘procedural difficulties’ of trying
a single defendant for related federal and D.C. Code offenses in two courts,” United
States v. Garnett, 653 F.2d 558, 561 (D.C. Cir. 1981), the D.C. Circuit has repeatedly
held that a single set of procedural rules—the rules that govern federal courts—apply
with respect to the federal court’s adjudication of alleged criminal violations of the
21
D.C. Code, see, e.g., Belt, 514 F.2d at 844 (holding that, where a defendant is tried for
local and federal offenses in district court, “the federal forum’s evidentiary law”
governs because it “is patently not feasible for the [court] to try [such] a defendant”
under two sets of evidentiary rules); United States v. Brown, 483 F.2d 1314, 1315–17
(D.C. Cir. 1973) (holding that federal courts must apply the federal bail provisions
rather than those of the D.C. Code, even when the defendant was convicted of only
local offenses).
Against this backdrop, the Court sees nothing in the Federal Code or in the
Federal Rules of Criminal Procedure that evinces any congressional intent to require
that a different set of procedural standards apply to the D.C. Code offenders that are
prosecuted in federal court than the standards that a federal district judge must apply to
offenders who are haled into federal court as alleged violators of federal law. See
Brown, 483 F.2d at 1316 (“[T]here [is no] question but that the Federal Rules apply to
all criminal cases in the Federal Courts.”). For instance, with respect to criminal cases
brought in federal court, the U.S. Code and Federal Rules dictate matters such as
whether and under what circumstances the court can (1) accept a defendant’s guilty
plea, see 18 U.S.C. § 3438; Fed. R. Crim. P. 11; (2) order the defendant detained
pending trial, see 18 U.S.C. § 3142; Fed. R. Crim. P. 46; or (3) preside over any trial,
18 U.S.C. § 3441; Fed. R. Crim. P. 23. Moreover, if a criminal defendant is convicted
in federal court, federal law is unquestionably the source of a federal district judge’s
sentencing authority. See 18 U.S.C. § 3551; Fed. R. Crim. P. 32. In that regard, section
3551 of Title 18 of the U.S. Code plainly requires that “a defendant who has been found
guilty of an offense described in any Federal statute” must “be sentenced in accordance
with the provisions of this chapter so as to achieve the purposes [of punishment] set
22
forth in . . . section 3553(a)(2) to the extent that they are applicable in light of all the
circumstances of the case.” 18 U.S.C. § 3551(a). 8 Section 3553(a), in turn, instructs
federal judges to consider the purposes of punishment in light of various factors, such
as “the need for the sentence imposed” to “reflect the seriousness of the offense, []
promote respect for the law, and [] provide just punishment for the offense”; “to afford
adequate deterrence to criminal conduct”; “to protect the public from further crimes of
the defendant”; and “to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner[.]”
Id. § 3553(a)(2)(A)–(D).
Significantly for present purposes, federal law also establishes the circumstances
under which a federal district judge can change a sentence that the court has previously
imposed. Section 3582(c) states unequivocally that “[t]he court may not modify a term
of imprisonment once it has been imposed” except if certain specified circumstances
exist. Id. § 3582(c). This is a jurisdictional provision that allows the court to modify a
prior sentence after its imposition, and, in effect, it binds the court to make such a
sentence modification only under the conditions prescribed. See Johnson, 464 F. Supp.
3d at 27 (noting that, “absent such statutory authorization,” courts would lack the power
to modify a term of imprisonment once it has been imposed). Thus, the fact that the
D.C. Council might allow courts under that legislative body’s authority to change
sentences under various circumstances that are laid out in the D.C. Code does not, and
cannot, govern this Court’s authority to do so. Cf. Kokkonen v. Guardian Life Ins. Co.
8
For the reasons explained in note 9, infra, it is the Court’s view that the exemption in section 3551(a)
for “an Act of Congress applicable exclusively in the District of Columbia” does not compel the
conclusion that such federal standards are inapplicable under the circumstances presented here.
23
of Am., 511 U.S. 375, 377 (1994) (explaining that federal courts cannot expand the
scope of their jurisdiction “by judicial decree”). Put another way, because a term of
imprisonment that a federal court orders in any criminal case over which it has
jurisdiction qualifies as “a term of imprisonment” that was “once . . . imposed” for the
purpose of section 3582(c), any such term of imprisonment—whether it pertains to
federal law offenses, D.C. Code offenses, or both—can only be modified pursuant to
section 3582(c) of Title 18 of the U.S. Code as a jurisdictional matter. Consequently,
this Court is of the view that it really has no choice but to evaluate Greene’s request for
modification of his previously imposed 35-years-to-life sentence under that provision of
the U.S. Code. 9
In resisting the conclusion that the federal compassionate release statute governs
Greene’s request for release, both parties make arguments that are based upon a
fundamental misconception of the scope of a federal court’s jurisdiction and the nature
of section 3582(c)(1)(A)’s grant of authority. For example, the Government maintains
9
To the extent that section 3551 appears to address the sentencing of D.C. Code offenders as
distinguished from federal offenders and suggests that the chapter’s statutory sentencing provisions
(including perhaps section 3582(c)) are inapplicable to offenders accused of violating the D.C. Code,
see 18 U.S.C. § 3551(a) (referencing defendants found guilty of offenses “described in any Federal
statute, . . . other than an Act of Congress applicable exclusively in the District of Columbia”), this
Court rejects the conclusion that Congress intended for local law, instead of federal law, to provide the
authority for sentencing modifications for D.C. Code offenders such as Greene, for several reasons.
First of all, section 3551 was enacted by Congress as part of the SRA in 1984, which is long after
Greene’s conviction and sentencing, so it is not at all clear what Congress intended concerning the
sentencing of pre-SRA D.C. Code offenders like Greene, or whether any such intention could survive
constitutional scrutiny in light of the Ex Post Facto doctrine, see U.S. Const. art. I, § 9, cl. 3. The
utility of section 3551’s apparent exclusion is also manifestly limited under these circumstances,
because Greene was initially “found guilty of an offense described in a[] Federal statute,” 18 U.S.C.
§ 3551, and it was only after his sentencing that Greene’s convictions on the federal charges were
vacated. Finally, and perhaps most importantly, by its own terms, section 3551’s carveout for D.C.
Code offenders pertains simply and solely to the manner in which such offenders “shall be
sentenced[,]” id., and says nothing about whether and to what extent a federal court can alter a sentence
that it previously imposed for such offenders. And, as explained, such modifications are the sole
province of the jurisdictional prescriptions in section 3582(c). Cf. Dillon v. United States, 560 U.S.
817, 825 (2010) (concluding that Ҥ 3582(c)(2) does not authorize a sentencing or resentencing
proceeding” but rather “provides for the ‘modif[ication of] a term of imprisonment’ by giving courts
the power to ‘reduce’ an otherwise final sentence” (alteration in original)).
24
that this Court can—and should—evaluate Greene’s motion under the D.C. Code’s
compassionate release statute, because that local statute contains “broad language” that
could be construed as applicable not only to D.C. Superior Court judges, but also to any
“court that is sentencing a D.C. Code offender.” (Mot. Hr’g Tr. at 11:13–17.) But the
Government does not explain its apparent conclusion that the D.C. Council has
authority to dictate the circumstances under which a federal court can reduce a term of
imprisonment that it previously imposed on D.C. Code offenders, nor does the
Government provide any theory as to why Congress would have intended that result. 10
Moreover, there is no indication that the D.C. compassionate release statute was meant
to apply to the circumstance in which a D.C. Code offender is serving a sentence that
was previously imposed by a federal court. To the contrary, in a press release issued
after the enactment of D.C. Code § 24-403.04, the D.C. Corrections Information
Council explained that the provision “expanded the eligibility of DC Code Offenders to
apply to the Superior Court for compassionate release.” DC Corrections Information
Council, Update on Implementation of DC Code 24-403.04 Motions for Compassionate
Release, DC.gov (Aug. 27, 2020) (emphasis added). 11
10
To fully appreciate the untenable nature of the assertion that the D.C. Council can determine whether
a federal court is authorized to alter a sentence that it previously imposed upon a D.C. Code offender,
imagine that Congress had not provided any exceptions to its pronouncement in the U.S. Code that
“[t]he court may not modify a term of imprisonment once it has been imposed[.]” 18 U.S.C. § 3582(c).
In that hypothetical situation, the federal courts would plainly lack any congressional authority to
modify previously imposed sentences, but the result of the Government’s argument would be that,
contrary to federal law, federal courts could modify the sentences of individuals whom that court had
previously sentenced for violating the D.C. Code. In other words, if the Government’s view is correct,
the D.C. Council could permit (or perhaps require) federal courts to do the very thing that Congress had
forbidden them to do with respect to sentencing offenders. This Court sees nothing in the U.S. Code or
the D.C. Court Reform and Criminal Procedure Act that suggests that Congress intended to cede such
power to local authorities.
11
This statement of the D.C. Corrections Information Council is located at
https://cic.dc.gov/release/update-implementation-dc-code-24-40304-motions-compassionate-release.
25
The Government’s suggestion that, because D.C. Code offenders are
categorically ineligible for relief under section 3582(c)(1)(A) of Title 18 of the U.S.
Code, the D.C. Code’s compassionate release provision must be applicable to them even
if they were sentenced by a federal court (see Gov’t Opp’n at 1 n.1), fails simply and
solely because the Government’s contention that D.C. Code offenders are not entitled to
compassionate release under section 3582(c)(1)(A) is wrong. To sustain this view, the
Government points to a BOP regulation that represents that agency’s determination that
it “has no authority to initiate a request under [the federal compassionate release
statute] on behalf of D.C. Code offenders confined in federal institutions.” (See id.(citing 28 C.F.R. § 571.64).) But such a pronouncement cannot override, or contradict,
the plain text of section 3582(c)(1)(A), and as amended by the First Step Act, section
3582(c)(1)(A) permits federal courts to reduce a previously imposed term of
imprisonment “upon motion of the Director of the [BOP], or upon motion of the
defendant after the defendant has fully exhausted all administrative rights to appeal[.]”
18 U.S.C. § 3582(c)(1)(A) (emphasis added). Given that the defendant himself can now
bring a motion for compassionate release under section 3582(c)(1)(A) without the
BOP’s approval, the fact that the BOP has a policy that precludes the agency from
initiating a request for a sentence modification on behalf of D.C. Code offenders says
nothing about a federal court’s ability to modify the term of imprisonment that it
previously imposed on such a D.C. Code offender upon the defendant’s request. See
United States v. Hammond, No. 02-cr-294, 2020 WL 1891980, at *6 (D.D.C. Apr. 16,
2020) (“[W]hether BOP believes it possesses the power to move for compassionate
release on behalf of a particular defendant has little bearing on whether a court may
26
grant relief to a defendant under the compassionate release provision when the
defendant himself has filed such a request.”).
Greene’s argument that this Court should nevertheless apply the D.C.
compassionate release statute under the circumstances presented here fares no better.
First, Greene asserts that, because the Court has jurisdiction over his D.C. Code
offenses—and, according to the D.C. Circuit, “‘[d]efendants found guilty of violations
of the D.C. Code can only be sentenced under the D.C. Code’” (Def.’s Reply at 2
(quoting United States v. Cutchin, 956 F.2d 1216, 1219 (D.C. Cir. 1992)))—the Court
necessarily “has the power to apply the D.C. Code provisions allowing [Greene] to
modify his D.C. Code sentence” (id. at 3). But Greene reads far too much into the D.C.
Circuit opinion on which he relies. Properly understood, Cutchin stands merely for the
unremarkable proposition that federal courts must apply the applicable sentencing
guidelines and statute of conviction when determining what sentence to impose, see 956
F.2d at 1219, which, in the case of a D.C. Code offender, means applying the D.C.
Voluntary Sentencing Guidelines and the specific D.C. Code provision that the
defendant was convicted of violating, see United States v. Knight, 824 F.3d 1105, 1111
(D.C. Cir. 2016) (citing Cutchin and noting that “the federal Sentencing Guidelines do
not apply to the sentencing of D.C. offenses[,]” just as “the D.C. Voluntary Sentencing
Guidelines do not apply to the sentencing of federal offenses”). That is not a holding
that relates in any respect to whether the federal court has the power to change a term of
imprisonment that was previously and properly imposed.
Moreover, and in any event, once the defendant is sentenced, either pursuant to
federal statutes and guidelines or under the D.C. Code, the federal court has imposed a
legally enforceable consequence for the defendant’s criminal conviction, and thus, for
27
all intents and purposes, the defendant has received a federal sentence. Consequently,
the defendant can move to vacate, set aside, or correct that sentence only by filing a
motion under federal law, see McCall v. Swain, 510 F.2d 167, 185 n.53 (D.C. Cir.
1975), as Greene himself did in this case, see Greene II, 834 F.2d at 1070, and such a
defendant cannot seek relief by filing a motion under the provision of the D.C. Code
that would otherwise apply had the defendant been sentenced for the same crimes in
Superior Court, cf. United States v. Frady, 456 U.S. 152, 159–62 (1982). Stated
simply, a sentence that is imposed in federal court for a violation of the D.C. Code is no
less of a federal sentence than one that a federal court imposes for a violation of the
U.S. Code, and, for the reasons already explained, a previously imposed federal
sentence can be modified only pursuant to the federal scheme that Congress provided in
section 3582(c)(1)(A). 12
Greene’s alternative argument for applying the D.C. compassionate release
statute sounds in equity, and as such, it also has no bearing on the Court’s ability to
proceed as he proposes. In particular, Greene suggests that the Court can choose
between the potentially applicable standards (the D.C. Code or the U.S. Code) at its
discretion, and that this Court should opt to apply the D.C. Code’s compassionate
release statute to his motion, because, in his view, the D.C. Code’s standards for relief
are more favorable to a prisoner in his situation than those of the federal statute. (See
12
It is true that, for a limited number of years after Congress passed the D.C. Court Reform and
Criminal Procedure Act, federal courts were essentially required in some instances to “function[] as
[local] court[s]” when presiding over cases involving D.C. Code offenses. Belt, 514 F.2d at 843. But
that situation applied only in a narrow set of circumstances during a “transitional period” in which
federal courts “temporarily” presided over cases with indictments for exclusively D.C. Code offenses in
order to help facilitate the “transfer of jurisdiction” from federal courts to the new local court system.
See id. at 842–43. Even then, however, federal courts were not considered to be stepping into the shoes
of Superior Court judges when presiding over local offenses properly joined with federal offenses
under D.C. Code § 11-502(3). See id. at 844. Thus, to the extent that Greene suggests that this Court
must act as a local court whenever presiding over matters in his case, he is incorrect.
28
Def.’s Reply at 6–7.) For example, Greene emphasizes that the D.C. statute makes
prisoners categorically eligible for compassionate release if they are at least 60 years
old and have served at least 25 years in prison, see D.C. Code § 24-403.04(a)(2), while
the comparable provision in the federal statute provides that defendants will be eligible
if, among other things, they are at least 70 years old, and have served at least thirty
years “pursuant to a sentence imposed under section 3559(c)” of Title 18 of the U.S.
Code, 18 U.S.C. § 3582(c)(1)(A)(ii). And because Greene is not serving a sentence
imposed under section 3559(c), he contends that the only way that he can demonstrate
eligibility under the federal statute is if he can follow the statute’s alternative path and
identify extraordinary and compelling reasons that justify his release—a requirement
that he believes imposes “a stricter standard of proof than either the [D.C.] Council or
Congress intended to apply to older long-time prisoners like [himself].” (See Def.’s
Reply at 6–7.)
The primary problem with this argument is the fact that it assumes that this Court
has the authority to select the compassionate release standard that is the least onerous
for defendants, when, as has already been explained, the circumstances under which a
federal district judge can modify a previously imposed sentence are dictated by
Congress, notwithstanding any allegedly less burdensome pathway that the D.C.
Council has prescribed for the Superior Court. This Court is not aware of a legal
principle that permits a federal court to apply a different jurisdiction’s standards and
procedures if doing so would make it easier for a defendant to obtain relief, and Greene
has not pointed to any source of law that suggests as much. Furthermore, and for what
it is worth, it is not at all clear that the federal compassionate release statute, as a
whole, actually does impose substantially more onerous eligibility criteria than the D.C.
29
statute, given that the Sentencing Commission has interpreted “extraordinary and
compelling” reasons to encompass a defendant’s medical conditions, age, and family
circumstances, see U.S. Sent’g Guidelines Manual § 1B1.13 cmt. n.1, as will be
explained in a more fulsome manner below.
The bottom line is this: notwithstanding the fact that the federal district court
previously sentenced Greene for both federal and local crimes and that he is currently
being detained for the local crimes alone, federal courts derive their sentencing
authority from Congress under federal law, and, by their nature, compassionate release
statutes dictate the criteria and procedures pursuant to which a federal court can modify
a term of imprisonment that it previously imposed. Therefore, this Court is confident
that federal standards govern its determination of whether and to what extent Greene’s
previously imposed federal sentence may be modified in response to his request for
compassionate release, which means that this Court lacks authority to change Greene’s
sentence pursuant to the compassionate release standards that the D.C. Council has
adopted. Accordingly, if it is to be considered by this Court at all, Greene’s motion for
compassionate release must be construed as a motion for release under section
3582(c)(1)(A).
Given The Standards Set Forth In Section 3582(c)(1)(A), Greene’s
Motion For Compassionate Release Is Properly Before This Court,
And The Requested Modification Of His Sentence Is Warranted
As previously explained, a federal court can entertain a defendant’s motion for
compassionate release under section 3582(c)(1)(A) only if the defendant has exhausted
his administrative remedies or if the court finds that equitable considerations, such as
futility, excuse the defendant’s failure to meet the statute’s exhaustion requirement.
See supra Part II.A; see also Johnson, 464 F. Supp. 3d at 26–27, 29. After this
30
threshold requirement is satisfied, the court must then determine whether “extraordinary
and compelling reasons” exist that warrant reducing the defendant’s term of
imprisonment, see 18 U.S.C. § 3582(c)(1)(A)(i), and, if so, whether the purposes of
punishment set forth in section 3553(a) require the defendant’s continued incarceration
despite the extraordinary and compelling circumstances that would otherwise justify his
release, id. § 3852(c)(1)(A); Johnson, 464 F. Supp. 3d at 30–31.
For the reasons that follow, it is readily apparent that administrative exhaustion
would have been futile in the instant case, and that “extraordinary and compelling”
reasons for Greene’s release exist, as defined by and identified in the Sentencing
Guidelines Manual.
1. It Would Have Been Futile For Greene To Attempt To Exhaust
Administrative Remedies
To satisfy section 3582(c)(1)(A)’s exhaustion requirement, a defendant must
request that the BOP file “an agency-sponsored motion for compassionate release” on
his behalf, Johnson, 464 F. Supp. 3d at 36, and then either “exhaust[] all administrative
rights to appeal” the BOP’s failure to file such a motion, 18 U.S.C. § 3582(c)(1)(A), or
wait 30 days from the date upon which the warden first receives the defendant’s
request, “whichever is earlier,” id., before seeking relief from the court. The purpose of
this statutory requirement is to give the BOP “breathing room to take a first look at
compassionate release motions” and determine its position on a given request before the
defendant turns to the court. See United States v. Morris, No. 12-cr-154, 2020 WL
2735651, at *5 (D.D.C. May 24, 2020). Notably, however, with the First Step Act’s
amendment to section 3582(c), Congress also intended to “expand[] the use of
compassionate release by removing the BOP as a gatekeeper to judicial consideration of
31
sentence reduction motions.” United States v. Price, No. 07-cr-0152-06, 2020 WL
5909789, at *2 (D.D.C. Oct. 6, 2020). Thus, section 3582(c)(1)(A) permits a defendant
to clear the exhaustion hurdle either by fully pursuing the administrative request and
appeal process, or by merely asking the BOP to file a motion on his behalf and then
waiting 30 days before filing a motion with the court, whether or not the BOP has
responded to or denied the defendant’s request.
This Court and others have concluded that section 3582(c)(1)(A)’s exhaustion
requirement is not jurisdictional in the sense that a court is barred from hearing an
unexhausted claim. See Johnson, 464 F. Supp. 3d at 28 (collecting cases). Instead, the
requirement “is best understood” as a “claims processing rule that determines who
moves for release and when.” United States v. Jennings, No. 18-cr-17, 2020 U.S. Dist.
LEXIS 70800, at *4–5 (D.D.C. Apr. 22, 2020); see also Fort Bend Cty. v. Davis, 139 S.
Ct. 1843, 1849 (2019) (explaining that “nonjurisdictional claim-processing rules . . .
seek to promote the orderly progress of litigation by requiring that the parties take
certain procedural steps at certain specified times” (internal quotation marks and
citation omitted)). As such, a court can excuse or waive section 3582(c)(1)(A)’s
exhaustion requirement for equitable reasons, including if, for example, exhaustion
would be futile, meaning “‘completely ineffective’” and “‘not . . . lawfully and
reasonably sufficient.’” See Randolph-Sheppard Vendors of Am. v. Weinberger, 795
F.2d 90, 107 (D.C. Cir. 1986) (alteration in original) (quoting Webster’s New Collegiate
Dictionary 468 (1977)). It is also well established that “[r]esort to the administrative
process” will generally be considered futile “if the agency will almost certainly deny
any relief either because it has a preconceived position on, or lacks jurisdiction over,
the matter.” See id. Thus, courts in this district have excused a defendant’s failure to
32
exhaust his administrative remedies under section 3582(c)(1)(A) on futility grounds in
situations such as when the BOP had made clear that it would not file a compassionate
release motion on behalf of a defendant who is not presently detained in a BOP facility,
see Johnson, 464 F. Supp. 3d at 36, and when it was “highly unlikely that [the] BOP
would consent” to the defendant’s release because the government had already
expressed its opposition to the defendant’s motion, see United States v. Brown, No. 92-
cr-345, 2020 U.S. Dist. LEXIS 160789, at *11 (D.D.C. July 2, 2020).
In the instant case, there is no dispute that Greene did not exhaust his
administrative appeal rights nor did he undertake to request that the BOP file a motion
for compassionate release on his behalf. (See Gov’t Opp’n at 1 n.1; Def.’s Reply at 8.)
Instead, presumably because Greene mistakenly believed that the D.C. Code applied
and thus that exhaustion was not required, the motion for compassionate release that he
filed in this Court was the opening salvo in his quest to obtain a modification of his
sentence.
Greene’s failure to at least ask the BOP for relief would ordinarily bar his
attempt to proceed in federal court, and the Government argues as much here. (See
Mot. Hr’g Tr. at 12:18–23.) But this Court has not seen a clearer set of circumstances
warranting application of the well-established futility doctrine. Indeed, by the
Government’s own admission, it is the BOP’s long-held position that D.C. Code
offenders who have been sentenced in federal court—like Greene—are categorically
ineligible for relief under section 3582(c)(1)(A). (See Gov’t Opp’n at 1 n.1; Mot. Hr’g
Tr. at 13:16–14:10.) Consequently, the BOP would have most certainly denied
Greene’s request for the filing of a section 3582(c)(1)(A) motion. See Randolph-
Sheppard Vendors, 795 F.2d at 107. And under such circumstances, there is simply no
33
reason to require Greene to undertake the futile gesture of seeking the BOP’s
assistance, and also no point in requiring Greene to wait a month to allow the agency to
provide its negative response before filing his motion in federal court. See, e.g.,
Morris, 2020 WL 2735651, at *6 (waiving section 3582(c)(1)(A)’s exhaustion
requirement on futility grounds); see also Jennings, 2020 U.S. Dist. LEXIS 70800, at
*4–5 (same).
2. Greene’s Age, Length of Incarceration, And Age-Related
Deterioration In Health Provide Extraordinary And Compelling
Reasons For Reducing His Term of Imprisonment
With exhaustion addressed, the Court turns to the substantive standards for
modification of a previously imposed term of imprisonment under section
3582(c)(1)(A), and considers the extent to which compassionate release may be
warranted in this case. Based on the instant record, it is clear to this Court that
extraordinary and compelling circumstances warrant a reduction in Greene’s term of
imprisonment within the meaning of section 3582(c)(1)(A).
Section 1B1.13 of the Guidelines Manual—which Congress mandated, see 28
U.S.C. § 994(t), and which section 3582(c)(1)(A) specifically incorporates by
reference—establishes that the defendant’s age, or serious medical conditions, or family
circumstances can provide “extraordinary and compelling reasons” for a sentence
reduction. See U.S. Sent’g Guidelines Manual § 1B1.13 cmt. n.1. In particular, and as
relevant here, section 1B1.13 has commentary that addresses the “Age of the
Defendant” and provides that if the defendant “is at least 65 years old”; has “served at
least 10 years or 75 percent of his . . . term of imprisonment, whichever is less”; and is
“experiencing a serious deterioration in physical or mental health because of the aging
34
process[,]” then extraordinary and compelling reasons for release exist. Id. § 1B1.13
cmt. n.1(B).
Based on the factual representations in Greene’s motion and at his motion
hearing, this Court has no doubt that Greene meets those criteria: he is 72 years old, has
served 49 years in prison, and his medical records show that he suffers from a litany of
physical ailments, including hypertension, shingles, dermatitis, abdominal hernia, and
urinary incontinence. (See Ex. GG to Def.’s Mot., ECF No. 12-1, at 132.) And perhaps
most significantly, in terms of Greene’s physical deterioration, Greene’s counsel
represented that his age-related urinary incontinence has reached the point in which it
significantly disrupts his sleep and hinders his day-to-day functioning—to the extent
that he had to waive his presence at the motion hearing in this case. (See Mot. Hr’g Tr.
at 26:3–23.)
The Government does not dispute that Greene satisfies the age and time in prison
requirements of section 1B1.13, nor does it appear to challenge the representation that
Greene is experiencing a deterioration in his health. Rather, the Government argues
that Greene’s demonstrated health-related issues are not sufficiently serious, because he
does not “requir[e] a medical facility placement” (see id. at 32:16–17), and because the
BOP has classified him as a “care level 1 inmate[,]” meaning that he is “healthy or
[requires] simple chronic care” (id. at 29:10–13). But, notably, nothing in the “Age of
the Defendant” commentary mandates a showing of that sort. That is, the Sentencing
Commission does not suggest that a demonstration that a 65-plus-year-old defendant
necessitates intensive treatment because of his deteriorating health, or that he is unable
to care for himself, is required; to the contrary, a mere showing that the defendant is
35
experiencing “a serious deterioration in physical or mental health because of the aging
process” suffices. See U.S. Sent’g Guidelines Manual § 1B1.13 cmt. n.1(B). 13
Thus, in this Court’s view, and as relevant here, the commentary to guidelines
section 1B1.13 permits a fact-specific, flexible analysis of potentially extraordinary and
compelling reasons for release that turns on the defendant’s age and the particular
conditions and circumstances presented by his physical and mental health. And for
defendants who meet the threshold age requirement, medical conditions that “impair[]”
a defendant’s “basic human functions” plainly suffice. See United States v. Ebbers, 432
F. Supp. 3d 421, 429 (S.D.N.Y. 2020) (explaining that the “Age of the Defendant”
provision “applies to senior-citizen defendants who have already spent over ten years in
prison and whose physical . . . deterioration has impaired basic human functions”). So
it is here: Greene is 72 years old, has served nearly fifty years in prison, and has a
number of medical issues that are associated with the aging process and that have
significantly deteriorated his health and basic functions. Therefore, this Court finds
that Greene has presented extraordinary and compelling circumstances that warrant his
13
To the extent that the Government interprets the adjective “serious” to suggest near incapacitation, a
close reading of the commentary counsels otherwise. In the guideline commentary concerning
“Medical Condition of the Defendant[,]” see U.S. Sent’g Guidelines Manual § 1B1.13 cmt. n.1(A)(ii)—
which is listed separately from “Age of the Defendant” as an alternative basis for concluding that
“extraordinary and compelling” reasons for release exist—the Sentencing Commission explicitly
requires not only that the defendant is “suffering from a serious physical or medical condition,” or a
“serious functional or cognitive impairment,” or that the defendant is “experiencing deteriorating
physical or mental health because of the aging process,” but also that such condition “substantially
diminishes the ability of the defendant to provide self-care within the environment of a correctional
facility and from which he or she is not expected to recover[,]” see id. (emphasis added). Such
qualifying language appears nowhere in the “Age of the Defendant” discussion. And had the
Sentencing Commission intended the word “serious” alone to signify that a defendant must be
terminally ill or require significant care, then the explicitly worded additional qualification in the
“Medical Condition of the Defendant” provision would not have been necessary.
36
release under section 3582(c)(1)(A) of Title 18 and section 1B1.13 of the Guidelines
Manual.
The Purposes Of Punishment Set Forth In Section 3553(a) Do Not
Require Greene’s Continued Incarceration
The final question that Greene’s motion for compassionate release presents is
whether releasing Greene at this time, as the circumstances warrant, comports with the
purposes of punishment laid out in section 3553(a). See Johnson, 464 F. Supp. 3d at
30–31. This Court has consulted all of the relevant sentencing standards, see 18 U.S.C.
§ 3553(a)(1)–(2), and it has concluded that the almost five decades of imprisonment
that Greene has already served adequately achieves the purposes of punishment set
forth in section 3553(a), and that additional incarceration is not necessary to promote
those purposes, for several reasons.
Beginning with the “nature and circumstances” of Greene’s offense, there is no
dispute that Greene committed a grave and serious crime. Indeed, killing another
person (and especially a person who was on duty serving as a U.S. marshal) and
disarming three other federal officers while attempting to free a prisoner from custody,
is perhaps one of the most serious crimes a person can commit. But the severity of the
offense of conviction is only one aspect of the nature and circumstances analysis, and it
does not, in and of itself, demonstrate that just punishment or any of the other purposes
of punishment require more time in prison than the nearly 50 years that Greene has
served for his commission of that crime. Shortly after Greene committed the crime at
issue here, he was appropriately sentenced to a minimum of 35 years in prison to reflect
the seriousness of his actions, see id. § 3553(a)(2)(A), and he has now served
substantially more than this minimum sentence. Thus, the central question becomes
37
whether, notwithstanding the unquestionably reprehensible nature of his offense,
Greene has rehabilitated himself during the past 49 years that he has served in prison,
and whether he has been sufficiently deterred from engaging in similar conduct in the
future, such that he no longer poses a threat to society?
The record before this Court amply demonstrates that the rehabilitation,
deterrence, and incapacitation goals of the lengthy prison sentence that the court
imposed on Greene in 1972 have been satisfied. As for Greene’s rehabilitation, the
sworn testimony of the various BOP officials who have spoken on his behalf during his
Parole Commission hearings strongly supports the conclusion that Greene has reformed
himself while in prison. As described above, at Greene’s parole hearing in 2015, seven
BOP staff members (including Greene’s case manager) appeared on his behalf,
vouching for his exemplary behavior and genuine rehabilitation. (See Ex. A to Def.’s
Mot. at 2–3.) And two of those BOP officials went so far as to declare that they would
have “no problem” having Greene as their neighbor. (See id. at 3.) One former BOP
official submitted a letter to this Court in support of Greene’s motion for compassionate
release stating that Greene was “a model inmate” and that she “couldn’t be more
confident in [her] recommendation for his release.” (McKenzie Letter at 30.)
Meanwhile, another BOP official, who interacted closely with Greene for over 12 years,
wrote to the Court to explain that Greene had helped him keep peace within the prison
community, and that, in his view, Greene should have been released many years ago.
(See Cantrell Letter at 32.) Remarkably, both officers also noted that, in all their years
at BOP, not once had they spoken out in support of an inmate’s request for release.
(See McKenzie Letter at 30; Cantrell Letter at 32.)
The trust that Greene has earned among BOP officials is a testament not only to
38
his rehabilitation, but also to his present lack of dangerousness. When evaluating the
risk of releasing a defendant into the community, the Court must look beyond the
inherent dangerousness of the offense that the defendant committed, and must consider
the threat that the defendant posed at sentencing, and also the extent to which that
threat remains at the time he seeks compassionate release. See, e.g., Johnson, 464 F.
Supp. 3d at 40–41; see also United States v. Dunlap, No. 17-cr-207, 2020 WL 5231359,
at *4 (D.D.C. Sept. 2, 2020). While the transcript for Greene’s original sentencing is
unavailable, the Court has no doubt that Greene would have been considered profoundly
dangerous at the time his sentence was imposed in the early 1970s; he had disarmed
three U.S. marshals in a “crowded church,” had fatally shot a marshal, and had
“commandeered” a car at gunpoint. See Greene I, 489 F.2d at 1147. But the record
provides no reason to believe that Greene still poses that same grave risk to other
persons now after serving 49 years in prison. To the contrary, it appears that Greene
has steadfastly undertaken to serve others in his prison community during his
incarceration, as evidenced by his decision to put his own life at risk to protect the lives
of two correctional officers during a violent prison riot in 1989. (See Fanucci Letter at
16.) What is more, in the decades since that incident, Greene has routinely put the
needs and safety of BOP staff and inmates before his own, in order to help prevent
violent unrest within the prison community. (See Ex. A to Def.’s Sealed Mot. at 3.)
Indeed, it is Greene’s selfless efforts to quell danger over the years that has generated
the highly unusual level of support that he has received from the numerous correctional
officials who have consistently advocated for his release, both during his parole
hearings and with respect to the instant motion. In short, Greene’s demonstrated
dedication to ensuring the safety of inmates and officers points in only one direction
39
with respect to the Court’s evaluation of his motion for release: that he no longer
presents the significant risk of danger that his offense of conviction suggests, and that
conclusion is all the more compelling given his advanced age and medical issues, and
the fact that the BOP has determined that Greene has a minimal risk of recidivism (see
Ex. T to Def.’s Mot., ECF No. 12-1, at 68). See also, e.g., Hammond, 2020 WL
1891980, at *10 (noting that the defendant’s “advanced age and reduced mobility . . .
make it difficult to imagine that he will endanger the community”).
The fact that Greene has incurred some disciplinary infractions during his time in
prison (see Ex. U to Def.’s Mot., ECF No. 12-1, at 70–71) does not undermine this
finding. It is not unusual for inmates to receive reprimands in the prison context.
Moreover, the nature of Greene’s infractions does not raise the kinds of concerns that
might reasonably cast doubt on the conclusion that his release would not pose a danger
to society. For example, the two most serious infractions in Greene’s record are
apparently for flinging grits at a BOP official in 2011, and for verbally lashing out in
2016 after the BOP confiscated a tool that he used for artwork (a tool that the BOP
considered to be a “dangerous weapon”). (See id.; see also Def.’s Mot. at 18–19;
Cantrell Letter at 32.) These actions may well warrant disciplinary infractions within
the BOP, but they do not, on their own, indicate that Greene poses a danger to others—
especially in light of his repeated efforts to keep those in his community safe. (See
Cantrell Letter at 32 (stating that, notwithstanding Greene’s 2016 infraction, Greene
does not “have much of a disciplinary history at all within the BOP”); see also id.(explaining that, as someone who has “been in law enforcement for 30 years,” he is
40
“familiar with what it means to work with dangerous individuals”).) 14
The Government opposes the conclusion that releasing Greene at this time would
be consistent with the purposes of punishment set forth in section 3553(a), and urges
the Court to deny Greene’s motion for compassionate release for three main reasons: (1)
Greene committed an “egregious” and violent crime (see Gov’t Opp’n at 9); (2) the
Parole Commission has consistently found that Greene’s release is “not compatible with
the welfare of society” given the severity of his offense and his recent disciplinary
infractions (see id. at 11 (internal quotation marks and citation omitted)); and (3) the
U.S. Marshals Service has expressed its opposition to Greene’s release (see id. at 12).
In this Court’s view, none of these objections is persuasive.
First, as explained above, the nature and circumstances of a defendant’s offense
of conviction is just one factor in the section 3553(a) analysis, and one that this Court
has given due consideration. And to the extent the Government suggests that some
crimes are just too egregious to warrant granting a defendant’s request for
compassionate release, this Court disagrees. In enacting section 3582(c)(1)(A),
Congress clearly contemplated the possibility that defendants convicted of the most
heinous crimes would seek—and, in appropriate cases, receive—compassionate release:
subsection 3582(c)(1)(A)(ii) allows defendants who are serving life sentences for
“serious violent felonies” to request compassionate release, if they are at least 70 years
14
Greene’s other disciplinary infractions while in BOP custody include “being insolent to [a] staff
member” in 2020, “refusing to obey an order” in 2010, and “possessing an unauthorized item” and
“being unsanitary or untidy” in 2005. (See Ex. U to Def.’s Mot. at 70–71.) According to the
Government, Greene also incurred a number of violations from 1977 to 1998, during his time at Lorton
Reformatory, including possession of controlled substances and “threatening conduct[.]” (See Gov’t
Opp’n at 10.) The record provides no information about the alleged Lorton incidents, and they are of
minimal relevance given that they occurred over twenty years ago, as the Government readily conceded
at oral argument (see Mot. Hr’g Tr. at 34:12–16). And none of the more recent infractions relate to, or
are indicative of, violence or dangerousness.
41
old, have spent at least 30 years in prison, and are no longer a danger to the community,
18 U.S.C. § 3582(c)(1)(A)(ii) (expressly referencing 18 U.S.C. § 3559(c)). Thus, the
extremely serious and unspeakably violent nature of Greene’s offense of conviction is
not dispositive of his request for compassionate release.
It is also clear to this Court that, in placing so much emphasis on the horrendous
nature of Greene’s offense of conviction, the Government misunderstands the nuanced
analytical framework that Congress has provided in section 3582(c), which plainly
differentiates a sentence modification from other sentencing procedures. Under section
3582(c), the default presumption is that the court cannot modify a previously imposed
term of imprisonment, and that it can only change the sentence if the defendant presents
extraordinary and compelling reasons that warrant such a reduction. If the defendant
makes that showing, the presumption then effectively shifts in favor of his release, and
the court must determine whether any of the purposes of punishment set forth in section
3553(a) require keeping the defendant incarcerated nevertheless; that is,
notwithstanding the extraordinary and compelling circumstances that would otherwise
justify releasing him. See Johnson, 464 F. Supp. 3d at 30–31.
Notably, nothing in this analysis authorizes the court to deny a motion for
compassionate release simply and solely because the defendant’s offense of conviction
is an egregious and dangerous crime. Rather, the court must reassess the purposes of
punishment in light of the extraordinary and compelling reasons for reducing the term
of imprisonment that was previously imposed for such an egregious offense, and must
thereby evaluate, for instance, whether the defendant remains too dangerous to release,
or whether he has not yet served enough of the sentence to have been justly punished
for his offense. Here, for the reasons already discussed, the Court finds that Greene’s
42
advanced age, medical conditions, and 49 years in prison are extraordinary and
compelling reasons that justify his release, and that continued incarceration is not
necessary either to provide just punishment for the horrific crime that he committed
almost fifty years ago or to further promote his rehabilitation, nor is he likely to commit
another offense due to his age and medical issues. (See supra Part III.B.2.)
For largely the same reason, the Court also firmly rejects the Government’s
reliance on the Parole Commission’s repeated decisions to deny Greene parole. The
Parole Commission and a federal court have decidedly different aims with respect to
evaluating release requests, and they do so by applying markedly different standards.
The federal court must apply the criteria that Congress has established in section
3582(c)(1)(A), which includes the analysis of the applicable section 3553(a) factors in
the manner described above, to determine whether there are extraordinary and
compelling reasons to modify a defendant’s sentence, and, if so, whether the purposes
of punishment require rejection of the release request. By contrast, the Parole
Commission seeks to determine a defendant’s “suitability” for release based on specific
guidelines, see Daniel v. Fulwood, 766 F.3d 57, 59–60 (D.C. Cir. 2014) (citing 28
C.F.R. § 2.80), and it can refuse to grant parole if, for instance, the Commission
determines that the defendant’s offense of conviction involved “[u]nusual cruelty to the
victim” or if the defendant presents an “[u]nusual propensity to inflict unprovoked and
potentially homicidal violence, as demonstrated by the circumstances of the current
offense[,]” see 28 C.F.R. § 2.80(n)(2)(ii). This critical distinction necessarily means
that the Commission’s parole determinations carry little weight in the context of this
Court’s section 3582(c)(1)(A) analysis, and that is the case even prior to the specific
recognition that the Parole Commission’s decisions here may not have taken into
43
account Greene’s substantial efforts to keep the prison community safe. (See Ex. A to
Def.’s Mot. at 6–7; Ex. F to Gov’t Opp’n at 1; see also Ex. E to Gov’t Opp’n at 1.) 15
Finally, with respect to the Government’s contention that the U.S. Marshals
Service forcefully opposes Greene’s release, the Court again directs the Government to
the comprehensiveness of this Court’s record analysis. When a defendant presents
extraordinary and compelling reasons for his release, the Court must reassess the
applicable factors in section 3553(a) and consider all of the available evidence,
including any opposition to the defendant’s release. The letter that the Director of the
U.S. Marshals Service submitted to oppose Greene’s release is one such piece of
evidence, and the Court fully appreciates the Director’s strongly held view that
Greene’s crime warrants a life sentence. (See Ex. G to Gov’t Opp’n, ECF No. 13-5, at
1.) Yet, the sentencing court previously imposed a sentence of 35 years to life for
Greene’s horrendous crime, and Greene has now served 49 years in prison, during
which it appears that he has been fully reformed. Thus, after viewing the record as a
whole and applying the nuanced legal standards that are applicable to the consideration
of a defendant’s motion for compassionate release under section 3582(c)(1)(A), the
Court is confident that reducing Greene’s term of imprisonment is consistent with the
15
The Court is likewise unmoved by the Government’s argument that Greene’s various statements
during Parole Commission proceedings should disqualify him from compassionate release. (See Gov’t
Opp’n at 4–5 (focusing on statements that Greene made to the Parole Commission in 2009, when he
suggested that the shooting was an accident and that the guns “just started firing” (citing Ex. L to
Def.’s Mot. at 37)); see also Mot. Hr’g Tr. at 38:4–12 (noting that Greene continues to dispute the
Parole Commission’s assertion that he shot the marshal when the marshal was already on the ground).)
Greene’s characterization of his offense at a parole hearing over ten years ago says little about the
extent of his remorse today, particularly when compared with the more recent evidence in the record
attesting to Greene’s sorrowful acceptance of responsibility for his actions. (See, e.g., Ex. A to Def.’s
Mot. at 4, 6; McKenzie Letter at 30; Cantrell Letter at 32.) And while Greene continues to object to
certain details of the Commission’s account of his offense (see Ex. M to Def.’s Mot. at 40–41; Def.’s
Reply at 10), he has never implied that he did not commit the instant crime or that he does not fully
appreciate the consequences of his actions.
44
purposes of punishment set forth in section 3553(a).
IV. CONCLUSION
In extraordinary cases, federal courts may exercise their limited authority to
reduce a sentence that the court previously imposed, and they may do so only in
accordance with the specific procedures and criteria that Congress has provided in
section 3582(c)(1)(A). Applying those standards to the instant case, the Court
concludes that it must exercise its authority here. For the reasons explained fully
above, the Court finds that Greene’s advanced age, lengthy period of incarceration, and
age-related deterioration in health constitute extraordinary and compelling reasons to
reduce his sentence. And the Court further finds that, after 49 years in prison, Greene’s
continued incarceration would be greater than necessary to comply with the purposes of
punishment identified in section 3553(a). Accordingly, and as set forth in the
accompanying Order, Greene’s motion for compassionate release will be GRANTED
and his term of imprisonment will be reduced to a sentence of TIME SERVED.
DATE: February 2, 2021 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
45