On September 25, 2020, in United States v. Zullo, the United States Court of Appeals for the Second Circuit held that restrictions on compassionate release contained in United States Sentencing Guideline 1B1.13, Application Note 1(D), no longer apply to motions for compassionate release filed by defendants under 18 U.S.C. 3852(c)(1)(A). United States Sentencing Guideline (“USSG”) 1B1.13, Note 1(D), previously granted the Bureau of Prisons the exclusive power to determine what would constitute “extraordinary and compelling” reasons to support a compassionate release. Note 1(D) also generally restricted United States District Courts to considerations of poor health, old age, and family care needs, when deciding on a compassionate release request. In Zullo, the Second Circuit held, however, that the passage in 2018 of the First Step Act freed district courts from the restrictions under Note 1(D) and permitted them to consider any “extraordinary and compelling” reasons a defendant raises in favor of compassionate release. In effect, the First Step Act favored giving more discretion to the decisionmaker to consider leniency. The First Step Act further provided defendants with the opportunity to file for compassionate release with the district court directly if the Bureau of Prisons declined to support or failed to act on a defendant’s motion.
The Zullo decision arose from an appeal by Jeremy Zullo, a federal inmate who sought compassionate release after being sentenced to a mandatory minimum sentence of 15 years in the Bureau of Prisons for a drug trafficking conspiracy he was involved in as a teenager. He argued that, when viewed through the lens of the First Step Act, his sentence was unjustly long, and the district court should have considered numerous factors in his favor in ruling on his compassionate release motion. Generally agreeing with Mr. Zullo, the Second Circuit explained that post-passage of the First Step Act, the language of USSG 1B1.13 is outdated and cannot be fully applicable to present cases, now applying only to motions made by the Bureau of Prisons, not to those made by defendants. The First Step Act “freed district courts to consider the full slate of extraordinary and compelling reasons that an imprisoned person might bring before them in motions for compassionate release.” As to Mr. Zullo specifically, the Second Circuit explained that because he did not solely rely on his rehabilitation, but also cited his age at the time of the crime and the sentencing court’s statements about the injustice of his lengthy sentence, he had presented factors that could be relevant and considered by the district court in its discretion in deciding whether to grant him a compassionate release. Critically important to inmates across the country, the Second Circuit also noted that the current COVID-19 (coronavirus) pandemic is another consideration that the district court, in its discretion, could weigh in deciding whether to grant a compassionate release. Careful not to usurp the province of the district court, in vacating the district court’s judgment and remanding Mr. Zullo’s case, the Second Circuit refrained from outright instructing the district court to grant a compassionate release to Mr. Zullo, explaining, “[w]e list these possibilities not to indicate that Zullo should be granted compassionate release, or even to suggest that they necessarily apply. . . We merely believe that the consideration of these factors and of their possible relevance . . . is best left to the sound discretion of the trial court in the first instance.”
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