Compassionate Release Should Be Expanded After Sentencing Case

Thousands of inmates sentenced under the Armed Career Criminal Act are now serving prison terms the US Supreme Court says are unconstitutional. Unfortunately, those inmates sentenced under ACCA may have only one remedy available to them: compassionate release.

Compassionate release allows a sentencing judge to reduce a defendant’s sentence up to time served if the defendant can demonstrate extraordinary and compelling circumstances warranting such a reduction.

The US Sentencing Commission should seek Congressional authority to implement emergency amendments to the US Sentencing Guidelines encouraging courts to reduce ACCA sentences when warranted.

Occasions Inquiry

The Supreme Court held June 21 in Erlinger v. United States that a jury—and not a judge—must determine a critical fact before a court may enhance a defendant’s sentence under the ACCA. Under that law, a defendant is subject to a mandatory minimum term of 15 years’ imprisonment up to a maximum of life if the defendant is found to have had at least three prior qualifying convictions that occurred on different occasions.

This latter finding—the so-called occasions inquiry—that the court held only a jury may determine (or a defendant admit) to invoke ACCA’s severe sentencing scheme.

Until now, every circuit court of appeals has affirmed the practice of allowing judges alone to engage in the occasions inquiry. Erlinger places into doubt the validity of every ACCA-enhanced sentence currently being served by an estimated 5,270 inmates. These sentences are often more than triple in length than what the inmate otherwise would have received.

Our criminal justice system shouldn’t tolerate a moment longer the warehousing of thousands of inmates—most who are young Black men—to decades of unnecessary and unconstitutional time in over-crowded and antiquated facilities at a cost well over $1 billion. This is especially the case where, as here, the government agrees with the court that juries, not judges, must determine the occasions inquiry.

Constitutional Violation

In 2017, Paul Erlinger was charged with a single count of being a felon in possession of approximately 20 firearms in violation of 18 U.S.C. § 922(g)(1). A section 922(g)(1) violation provides for no minimum term of imprisonment and a maximum term of 10 years. About seven months later, due to Erlinger’s significant criminal history, the government charged him with an additional count of violating 18 U.S.C. § 922(e), or ACCA. Erlinger thereafter opted to plead guilty.

In 2022, after his initial sentence was vacated on ineffective assistance of counsel grounds, Erlinger was finally resentenced. The government cited Erlinger’s five prior burglary convictions to meet the ACCA requirements, which the district court judge found occurred on separate occasions.

At the resentencing hearing, prior to applying ACCA, the district court found Erlinger’s advisory sentencing range was just 51 to 63 months. The district court stated on the record that “a sentence of 60 months would be appropriate in this case.” However, its hands were tied by ACCA, and so Erlinger was sentenced to the mandatory minimum180 months’ imprisonment.

The sentence was affirmed on appeal, and the Supreme Court vacated it. Writing for the majority, Justice Neil Gorsuch found that the Fifth and Sixth Amendments require a jury, not a judge, to determine whether predicate offenses occurred on different occasions as ACCA requires.

Compassionate Release

Since 2010, an estimated 5,270 defendants have been sentenced under ACCA to an average of 191 months’ imprisonment—far greater than the average sentence of just 53 months imposed on federal defendants overall. Given the length of their sentences, the great majority of ACCA defendants sentenced since 2010 are still serving time, and at significant cost.

Unfortunately, most of these defendants have few options for redress. If they are one of the very small number with appeals pending, they may be able to convince an appellate court to vacate their sentence and remand for resentencing.

Other than that, the only viable avenue for relief is compassionate release.

Last November, the Sentencing Commission updated and expanded the criteria courts are to consider when determining motions for compassionate release. One concerns the length of a defendant’s sentence.

Where a defendant is serving an “unusually long” sentence, and has served at least ten years of it, then a judge may consider a change in the law “in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.”

As noted above, the average sentence for ACCA defendants is many times greater than what they otherwise would have received. Thus, with Erlinger providing a “change in the law,” the “unusually long” and “gross disparity” criteria would seem to be easily met. But that still leaves the 10-year requirement. Defendants such as Erlinger, who has only served 81 months, can’t presently meet this requirement.

Still, there is no reason for Erlinger to continue serving at least another 39 months in custody for an unconstitutional sentence. The Sentencing Commission should amend this criterion to not categorically preclude relief to defendants like Erlinger.

We urge the Sentencing Commission to immediately seek from Congress emergency amendment authority to address this ACCA predicament. The Commission should remove the 10-year requirement before seeking compassionate release based on a change in law at least for those serving ACCA-enhanced sentences.

Even if a judge decides not to reduce an ACCA inmates’ sentence to time-served, a lesser sentence could result in a defendant’s transfer to a low security federal prison, which are not as overcrowded, are less costly to taxpayers, and provide a greater focus on programming opportunities to prepare for release.

The case is Erlinger v. United States, US, No. 23-370, decided 6/21/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Alan Ellis is a criminal defense lawyer and was previously president of the National Association of Criminal Defense Lawyers.

Mark H. Allenbaugh is a co-founder and chief research officer at SentencingStats.com, and sentencing and mitigation consultant to the Law Offices of Alan Ellis. He was previously staff attorney at the US Sentencing Commission.

Maureen Baird is partner at Baird Perdue & Associates, Expert Prison Consultants. She was warden of USP Marion, Illinois for more than 27 years.

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