by Matt Clarke

On April 4, 2022, the U.S. Court of Appeals for the Ninth Circuit held that a convicted and sentenced federal criminal defendant who had not yet been incarcerated was not eligible for compassionate release under 18 U.S.C. § 3582(c)(l)(A)(ii).

In October 2019, George Fower pleaded guilty in federal court to one count of wire fraud in violation of 18 U.S.C. § 1343. His victims lost over $1.2 million. In February 2020, he was sentenced to 24 months imprisonment.

Beginning in April 2020, he started seeking compassionate release by writing various officials at the federal Bureau of Prisons (BOP) about his upper respiratory issues, bronchitis and heightened susceptibility to COVID-19. In December 2020, while still not yet incarcerated, he filed a motion for compassionate release with the federal court for the Central District of California under§ 3582(c)(l)(A)(i).

The district court denied the motion, stating that Fower was ineligible for relief because he was not incarcerated and had not exhausted administrative remedies as required by the statute. Further, compassionate relief would “ill serve justice in the context of a million-dollar fraud.” Aided by Los Angeles attorneys Daniel DeMaria and Aaron Spolin of Spolin Law, he appealed.

The Ninth Circuit began by looking at the statutory text, which said a court “may reduce the term of imprisonment (and impose a term of probation or supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment).” Using the phrase “unserved portion” of a sentence implies that there must be a served portion, the Court reasoned. Thus relief cannot be available without that.

The Court noted that this is consistent with Dillon v. United States, 560 U.S. 817 (2010), which held that a similar sentencing reduction under 18 U.S.C. § 3582(c)(2) allowed only a limited adjustment to a sentence and not a plenary resentencing. In asking for “home confinement or time served,” Fower was asking for something akin to plenary resentencing.

The statute also directs a compassionate release request to be made to “the warden of the defendant’s facility.” This also was impossible in Fower’s case, prior to the designation of a facility where he is to be incarcerated. Thus the district court’s judgment was affirmed. See: United States v. Fower, 30 F.4th 823 (9th Cir. 2022).

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