United States v. David Long

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 8, 2021 Decided May 18, 2021

No. 20-3064

UNITED STATES OF AMERICA,
APPELLEE

v.

DAVID M. LONG, ALSO KNOWN AS DAMO,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00171-1)

Andrew B. Talai, appointed by the court, argued the cause
for appellant. With him on the appellant’s Memorandum of
Law and Fact was Jeffrey T. Green, appointed by the court.

Mark Hobel, Assistant U.S. Attorney, argued the cause for
appellee. With him on the appellee’s Memorandum of Law
and Fact were Elizabeth Trosman and John P. Mannarino,
Assistant U.S. Attorneys.

Before: MILLETT and PILLARD, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
 2

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Defendant David Long is
currently incarcerated at a federal medical penitentiary. He is
serving a 29-year sentence for violent racketeering offenses
committed over the course of three decades. He is a double
amputee and suffers from a variety of other disabling medical
conditions.

As the COVID-19 pandemic raged through the federal
prison system, Long filed a motion for compassionate release
under 18 U.S.C. § 3582(c)(1)(A). He argued that his distinct
medical susceptibility to COVID-19 and the failure of prison
officials to curb the disease’s rapid spread constituted
“extraordinary and compelling” reasons for release under that
statute.

The district court denied his motion because it believed
itself bound by a policy statement issued by the United States
Sentencing Commission that bars courts from releasing any
incarcerated defendant unless the court first finds that he “is
not a danger to the safety of any other person or to the
community[.]” See U.S. SENTENCING GUIDELINES MANUAL
(“U.S.S.G.”) § 1B1.13(2) (U.S. SENTENCING COMM’N 2018)
We, like seven other circuits, hold that this policy statement is
not applicable to compassionate release motions filed by
defendants, and so we vacate the district court’s order and
remand the case for further proceedings.

I

A

As a general rule, a federal court “may not modify a term
of imprisonment once it has been imposed.” 18 U.S.C.
 3
§ 3582(c). But this rule of finality is subject to a few narrow
exceptions. Freeman v. United States, 564 U.S. 522, 526
(2011). One of those exceptions is for compassionate release.

In 1984, Congress authorized the Director of the Bureau
of Prisons to ask courts to reduce defendants’ sentences in
unusual circumstances. Comprehensive Crime Control Act of
1984, Pub. L. No. 98-473, sec. 212, § 3582(c), 98 Stat. 1837,
1998–1999. The statute provided that a court could, “upon
motion of the Director of the Bureau of Prisons,” reduce a
defendant’s term of imprisonment when (1) “extraordinary and
compelling reasons warrant such a reduction,” (2) the
“reduction is consistent with applicable policy statements
issued by the Sentencing Commission[,]” and (3) the reduction
is appropriate “considering the factors set forth in [S]ection
3553(a) to the extent that they are applicable[.]” Id. (codified
at 18 U.S.C. § 3582(c)(1)(A)).

For more than three decades, the statute left the Director
of the Bureau of Prisons in “absolute control over this
mechanism for lenity[.]” United States v. Brooker, 976 F.3d
228, 231 (2d Cir. 2020). The Bureau “used that power so
‘sparingly’” that, as of 2013, on average only 24 defendants
were being released annually. United States v. McCoy, 981
F.3d 271, 276 (4th Cir. 2020) (first citing Brooker, 976 F.3d at
231; and then citing Department of Justice, Office of the
Inspector General, The Federal Bureau of Prisons’
Compassionate Release Program 1 (2013), https://www
.oversight.gov/sites/default/files/oig-reports/e1306.pdf).

Displeased with that desuetude, Congress put this problem
in its crosshairs in 2018 when it enacted criminal justice reform
measures in the First Step Act, Pub. L. No. 115-391, 132 Stat.
5194 (2018). See Shon Hopwood, Second Looks & Second
Chances, 41 CARDOZO L. REV. 83, 105–106 (2019). In a
 4
Section of the Act entitled “Increasing the Use and
Transparency of Compassionate Release,” First Step Act
§ 603(b), 132 Stat. at 5239, Congress made an important
change to 18 U.S.C. § 3582(c)(1). The Act removed the
Bureau of Prisons as the gatekeeper of compassionate release
and “provid[ed] that defendants now may file motions for
sentence modifications on their own behalf,” as long as they
first exhaust their remedy of applying to the Bureau of Prisons.
McCoy, 981 F.3d at 276. Any such motion for compassionate
release is generally filed with the judge that imposed the
original sentence. See United States v. Keefer, 832 F. App’x
359, 363 (6th Cir. 2020) (considering compassionate release
motion and noting the “common scenario” in which “the
district judge who sentenced the defendant is the same judge
who considers the defendant’s reduction-of-sentence motion”).

As a result, the compassionate release statute now provides
in relevant part (with the new First Step Act language
italicized):

[T]he court, upon motion of the Director of the Bureau
of Prisons, or upon motion of the defendant after the
defendant has fully exhausted all administrative
rights to appeal a failure of the Bureau of Prisons to
bring a motion on the defendant’s behalf or the lapse
of 30 days from the receipt of such a request by the
warden of the defendant’s facility, whichever is
earlier, may reduce the term of imprisonment (and
may impose a term of probation or supervised release
with or without conditions that does not exceed the
unserved portion of the original term of
imprisonment), after considering the factors set forth
in [S]ection 3553(a) to the extent that they are
applicable, if it finds that—
 5
(i) extraordinary and compelling reasons warrant
such a reduction; * * *

and that such a reduction is consistent with applicable
policy statements issued by the Sentencing
Commission[.]

18 U.S.C. § 3582(c)(1)(A) (emphasis added).

The Sentencing Commission has lacked a quorum since
early 2019, and so it has been unable to update its preexisting
policy statement concerning compassionate release to reflect
the First Step Act’s changes. See Brooker, 976 F.3d at 234;
United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020);
see also 28 U.S.C. § 992(b)(2)(B) (voting member of
Commission whose term has expired may continue to serve
until “the date on which the Congress adjourns sine die to end
the session of Congress that commences after the date on which
the member’s term expired”); U.S. Senate, Dates of Sessions of
the Congress, https://www.senate.gov/legislative/Datesof
SessionsofCongress.htm (last accessed May 3, 2021) (115th
Congress adjourned Jan. 3, 2019). As a result, the text of the
Sentencing Commission’s policy statement still limits
compassionate release to “motion[s] of the Director of the
Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A)[.]”
U.S.S.G. § 1B1.13. The Commission’s commentary is to the
same effect: “A reduction under this policy statement may be
granted only upon motion by the Director of the Bureau of
Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A).” U.S.S.G.
§ 1B1.13, Application Note 4.

In substantive terms, the policy statement governing the
Bureau of Prisons’ motions provides that a district court may
grant a motion for compassionate release, after considering the
applicable factors listed at 18 U.S.C. § 3553(a), only when it
finds both that “extraordinary and compelling reasons warrant
 6
the reduction,” and that “the defendant is not a danger to the
safety of any other person or to the community, as provided
in 18 U.S.C. § 3142(g)[.]” U.S.S.G. § 1B1.13(1)(A), (2).

B

David Long led a narcotics distribution enterprise in the
District of Columbia from the late 1980s through at least
November 2008. In May 2012, he pleaded guilty to one count
of RICO conspiracy in violation of 18 U.S.C. § 1962(d). In
connection with the plea, Long admitted to running a narcotics
enterprise in which he distributed large volumes of heroin to
street-level dealers for sale to consumers.

Long also admitted to several violent crimes as part of his
drug operations. In the summer of 1990, Long kidnapped a
young man named Anthony Morrisey and attempted to extract
a ransom from Morrisey’s family and friends. When Long
suspected that the police had been tipped off, he murdered
Morrisey.

In 2002, Long himself was targeted for murder. He
sustained significant injuries, leading to the amputation of both
legs. Long believed that Franklin Moyler was responsible, as
Moyler had demanded money from Long not long before the
attempt on his life.

In 2007, Long paid his co-defendant Rico Thomas $10,000
to kill Moyler. In the same year, Long also contracted to have
two more people murdered, Melvin Terrell and Oakley Majors.
While the hit on Moyler resulted in his death, the other two
targets survived. Terrell was paralyzed and lost his ability to
speak. He has since had an arm amputated, undergone a
lobotomy, and gone blind in one eye.
 7
The Guidelines range for Long’s RICO conspiracy
conviction would have been life imprisonment, but the
government and Long agreed to a plea under Federal Rule of
Criminal Procedure 11(c)(1)(C) under which Long would be
sentenced to 29 years in prison. The district court accepted that
agreement and imposed the 29-year sentence.

C

Long is incarcerated at the federal medical penitentiary in
Springfield, Missouri. At this point, he has served almost 13
years of his 29-year sentence. His Bureau of Prison records
indicate no disciplinary issues, and he has completed
approximately twenty educational courses during his
incarceration.

On September 4, 2020, Long moved the district court for
compassionate release under 18 U.S.C. § 3582(c)(1)(A). Long
argued that his distinct medical susceptibility to COVID-19
qualified as an extraordinary and compelling reason for the
reduction of his sentence.

The district court denied Long’s motion. The court
assumed that Long’s health conditions provided an
“extraordinary and compelling reason” for a sentence
reduction, but it nevertheless denied relief because it could not
“conclude that Long no longer poses a danger to the
community” as required by the existing Sentencing Guidelines
policy statement on compassionate release. App. 103; see also
U.S.S.G. § 1B1.13.

Long filed a timely notice of appeal. He argues that the
district court erred in relying on U.S.S.G. § 1B1.13(2) to deny
compassionate release because that Guideline is not an
“applicable policy statement[] issued by the Sentencing
Commission” for defendant-filed motions under the First Step
 8
Act. See 18 U.S.C. § 3582(c)(1)(A). Alternatively, he argues
that the district court abused its discretion in finding that he
remains a danger to the community.

II

The district court had jurisdiction under 18 U.S.C. §§ 3231
and 3582(c)(1)(A). The source of our appellate jurisdiction is
an open question in this circuit, and neither party has offered a
basis for it. Yet it is our duty to assure ourselves of jurisdiction
in every case. See Kaplan v. Central Bank of the Islamic
Republic of Iran, 896 F.3d 501, 509 (D.C. Cir. 2018).

Other courts that have heard appeals from denials of
compassionate release have not yet engaged with the
jurisdictional question at any length, although many have cited
28 U.S.C. § 1291. See, e.g., United States v. Handerhan, 789
F. App’x 924, 926 n.2 (3d Cir. 2019); United States v. Gipson,
829 F. App’x 780, 780 (9th Cir. 2020); United States v.
Rodriguez, 837 F. App’x 652, 653 (10th Cir. 2021). Others
have not addressed jurisdiction at all. See, e.g., Brooker, 976
F.3d at 234; Gunn, 980 F.3d at 1180.

In 28 U.S.C. § 1291, Congress provided the federal courts
of appeals with “jurisdiction of appeals from all final decisions
of the district courts of the United States[.]” Decisions denying
sentence reductions “are unquestionably ‘final decisions of [a]
district court’ because they close the criminal cases once
again.” United States v. Jones, 846 F.3d 366, 369 (D.C. Cir.
2017) (Williams, J.) (quoting 28 U.S.C. § 1291) (formatting
modified). So Section 1291 “obviously looks promising” as a
basis for jurisdiction. Id.

But there is a wrinkle. Another jurisdictional provision,
18 U.S.C. § 3742, allows a defendant to seek “review of an
otherwise final sentence” only in four specified circumstances:
 9
If the sentence (1) is “imposed in violation of law”; (2) is
“imposed as a result of an incorrect application of the
sentencing guidelines”; (3) exceeds the maximum fine or term
of imprisonment, probation, or supervised release under the
applicable Guideline range; or (4) is imposed “for an offense
for which there is no sentencing guideline and is plainly
unreasonable.” 18 U.S.C. § 3742(a).

A “would-be appellant cannot use” Section 1291’s “broad
grant of jurisdiction to circumvent statutory restrictions on
sentencing appeals in [Section] 3742.” Jones, 846 F.3d at 369.
So if the appeal of a denial of a sentence reduction under
Section 3582(c)(1)(A)’s compassionate release provision
constitutes a request for review of an “otherwise final
sentence” and does not fall within one of the enumerated
circumstances, Section 3742 would prohibit appellate
jurisdiction.

In Jones, though, we expressed “serious doubt” about
whether Section 3742 applies at all in the analogous context of
appeals from the denial of a motion to reduce a sentence under
the compassionate release provision’s immediate neighbor, 18
U.S.C. § 3582(c)(2). 846 F.3d at 370. That provision
authorizes sentencing courts to reduce an existing term of
imprisonment when the Sentencing Guidelines range on which
that sentence rested is later lowered by the Sentencing
Commission. 1

1
The structure of Section 3582(c)(2) closely parallels that of the
compassionate release provision, Section 3582(c)(1)(A). The former
provides: “The court may not modify a term of imprisonment once
it has been imposed except that * * * in the case of a defendant who
has been sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing
 10
Jones centered its analysis on Dillon v. United States, 560
U.S. 817 (2010). There, the Supreme Court ruled that, “[b]y
its terms, § 3582(c)(2) does not authorize a sentencing or
resentencing proceeding[,]” but instead “provides for the
‘modif[ication of] a term of imprisonment’ by giving courts the
power to ‘reduce’ an otherwise final sentence in circumstances
specified by the [Sentencing] Commission.” Id. at 825 (first
alteration in original). By distinguishing between proceedings
for the initial imposition of sentence and sentence-modification
proceedings, the Court concluded that a sentence-reduction
proceeding under Section 3582(c)(2) “does not impose a new
sentence in the usual sense.” Id. at 827.

The Supreme Court explained that Congress and the
federal rules have repeatedly addressed the modification of
already-imposed sentences separately and “apart from other
sentencing proceedings.” Dillon, 560 U.S. at 828. For
example, the jurisdictional provision, Section 3742, itself
contemplates only procedures “impos[ing]” sentences initially
or through resentencing. 18 U.S.C. § 3742(a)(1), (2) & (4); see
also id. § 3742(f) (authorizing remand to district court for
“further sentencing” if court of appeals finds error); id.
§ 3742(g) (describing procedures for district court to
“resentence” defendant upon remand); Dillon, 560 U.S. at 825
(citing Section 3742 to show that sentencing and resentencing
proceedings are distinct from sentence-modification
proceedings). Section 3742 says nothing about the “sentence

Commission pursuant to 28 U.S.C. [§] 994(o), upon motion of the
defendant or the Director of the Bureau of Prisons, or on its own
motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2).
 11
modification” procedures set out in Section 3582(c)(2) or in
any other type of post-imposition adjustment in sentences.

Similarly, Federal Rule of Criminal Procedure 43 requires
that a defendant “must be present at * * * sentencing.” FED. R.
CRIM. P. 43(a)(3); see also United States v. Garcia-Robles, 640
F.3d 159, 164 (6th Cir. 2011) (“Every circuit court to address
the issue has held that when resentencing is directed pursuant
to a general remand order, a defendant is entitled to be
present[.]”). But the same rule specifies that defendants “need
not be present” for a “proceeding involv[ing] the correction or
reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).”
FED. R. CRIM. P. 43(b).

Dillon’s doctrinal distinction between the imposition of a
sentence under Section 3742 and sentence-modification
proceedings also makes practical sense. That is because, “[b]y
definition, a sentence must already have been imposed” before
a sentence-modification rule may be invoked “and a sentence
reduction contemplated.” United States v. McAndrews, 12 F.3d
273, 277 (1st Cir. 1993). This point is evident even in Section
3582(c)’s title, which calls for the “Modification of an Imposed
Term of Imprisonment.” 18 U.S.C. § 3582(c); see also
Comprehensive Crime Control Act of 1984, Pub. L. No. 98-
473, sec. 212, § 3582(c), 98 Stat. at 1998.

For the same reasons that a sentence modification under
Section 3582(c)(2) does not fall within Section 3742’s
jurisdictional bar, neither does a compassionate release
application for modification of a sentence under
Section 3582(c)(1)(A). The same textual and logical reasons
explicated in Dillon and Jones apply with equal force to
(c)(1)(A) as they do to (c)(2). All a decision on the application
for compassionate release does is operate upon and modify—
or leave unchanged—an already-existing and already-imposed
 12
sentence. Cf. McAndrews, 12 F.3d at 277. And an order
denying a requested sentence modification leaves the
preexisting sentence untouched, and so cannot sensibly be said
to impose a final sentence. We therefore hold that Section 3742
is no obstacle to our exercise of jurisdiction under 28 U.S.C.
§ 1291 over this appeal of a denial of compassionate release.

That said, even if an appeal from the denial of a
compassionate release motion were to constitute the imposition
of a final sentence within the meaning of Section 3742, Long’s
appeal would fall within one of the allowable bases for appeal.
Section 3742(a)(2) authorizes defendants to seek appellate
review of “an otherwise final sentence if the sentence * * * was
imposed as a result of an incorrect application of the sentencing
guidelines[.]” 18 U.S.C. § 3742(a)(2). That is precisely what
Long argues here. See Long Mem. 14.

In short, the district court’s disposition of Long’s motion
for compassionate release was either a sentence-modification
ruling appealable under 28 U.S.C. § 1291, consistent with our
decision in Jones, or the imposition of a final sentence resulting
from a misapplication of the Sentencing Guidelines, providing
jurisdiction under 18 U.S.C. § 3742(a)(2).

III

A

While we have not previously established the standard of
review for decisions on compassionate release motions under
18 U.S.C. § 3582(c)(1), we have reviewed motions for
sentence reductions under Section 3582(c)(2) for an abuse of
discretion. United States v. Smith, 896 F.3d 466, 470 (D.C. Cir.
2018); United States v. Wyche, 741 F.3d 1284, 1291–1292
(D.C. Cir. 2014); see also United States v. White, 984 F.3d 76,
85 (D.C. Cir. 2020). Because of their similar character, abuse
 13
of discretion is also the appropriate standard of review in
compassionate release appeals, as numerous other circuits have
recognized. See United States v. Pawlowski, 967 F.3d 327, 330
(3d Cir. 2020); United States v. Thompson, 984 F.3d 431, 433
(5th Cir. 2021); United States v. Kimball, 988 F.3d 945, 947
(6th Cir. 2021); United States v. Saunders, 986 F.3d 1076, 1078
(7th Cir. 2021). That standard “comports with the language of
the statute,” which provides that the district court “may [not
shall] reduce the term of imprisonment.” Pawlowski, 967 F.3d
at 330 (alteration in original) (quoting United States v. Mateo,
560 F.3d 152, 154 n.2 (3d Cir. 2009)). It also reflects the
important discretion afforded the district court in the weighing
of relevant factors and its expertise in evaluating the
appropriateness of a sentence reduction given its role in
originally sentencing the individual.

But because Long seeks reversal on the basis of an
argument—the inapplicability of the existing Sentencing
Commission policy statement to his compassionate release
application—that he did not raise before the district court, we
must review the denial of his motion only for plain error. See
FED. R. CRIM. P. 52(b); Puckett v. United States, 556 U.S. 129,
135 (2009). Under plain error review, we may reverse only if
(1) the district court committed error; (2) the error is “plain”;
(3) the error affects the defendant’s “substantial rights”; and
(4) the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Taylor,
497 F.3d 673, 676 (D.C. Cir. 2007) (formatting modified)
(quoting Johnson v. United States, 520 U.S. 461, 466–467
(1997)); see United States v. Olano, 507 U.S. 725, 732 (1993).

Long argues that we should review the applicability of
U.S.S.G. § 1B1.13 de novo as a question of statutory
construction. That we cannot do. The Federal Rules of
Criminal Procedure “compel[]” the application of plain error
 14
review to unpreserved arguments in criminal appeals. Puckett,
556 U.S. at 143. As a result, we lack the discretion we possess
in civil cases “to determine what questions to consider and
resolve for the first time on appeal” through de novo review.
See Roosevelt v. E.I. Du Pont de Nemours & Co., 958 F.2d 416,
419 n.5 (D.C. Cir. 1992); see also Al Bahlul v. United States,
767 F.3d 1, 10–11 & n.7 (D.C. Cir. 2014) (en banc) (applying
plain error to statutory construction question).

B

The government argues that Long is not even entitled to
plain error review because he invited the district court to apply
U.S.S.G. § 1B1.13 to his case. The government
misunderstands the scope of the invited error doctrine.

It is settled that a defendant “may not complain about
invited error” on appeal. United States v. Brown, 892 F.3d 385,
393 (D.C. Cir. 2018). “Invited error occurs when defense
counsel induces the error” through their litigation conduct
before the district court. United States v. Lawrence, 662 F.3d
551, 557 (D.C. Cir. 2011).

But not every mistake by defense counsel is an invited
error. The invited error doctrine is an equitable doctrine that
“seeks to avoid rewarding mistakes stemming from a
defendant’s own intelligent, deliberate course of conduct in
pursuing his defense.” United States v. Bastian, 770 F.3d 212,
218 (2d Cir. 2014) (emphasis added; formatting modified).
Said another way, “‘[s]tatements amounting to invited error are
a species of waiver’ and generally evince an ‘intent’ by the
speaker to convince ‘the district court to do [something that] it
would not otherwise have done.’” United States v. Lerma, 877
F.3d 628, 632 (5th Cir. 2017) (second alteration in original)
(quoting United States v. Rodebaugh, 798 F.3d 1281, 1304
(10th Cir. 2015)).
 15
Invited error, then, involves intentional “strategic
gambit[s]” designed to induce the trial court to take a desired
action. Bastian, 770 F.3d at 219. It does not extend to every
unintentional “oversight” or innocent mistake that counsel
might make. Id.; see also United States v. Coffelt, 529 F. App’x
636, 639 n.2 (6th Cir. 2013) (“[T]his case is a far cry from a
case of gamesmanship or a tactical decision gone wrong, which
is the typical factual scenario when the invited-error doctrine is
applied.”).

We drew that same line in In re Sealed Case, 108 F.3d 372
(D.C. Cir. 1997), when we held that the invited error doctrine
did not apply where defense counsel incorrectly represented to
the court that his client was tied to the distribution of the total
quantity of drugs in the case (seven kilograms) rather than the
correct smaller number applicable to his actions (four
kilograms), id. at 373. We concluded that defense counsel’s
blunder did not amount to invited error because “it [was] not as
if counsel made a strategic decision” in telling the court that
seven kilograms was the relevant number. Id. at 374. Counsel
just misspoke due to errors in the presentencing report. See id.
at 373–374. So while the defendant “acquiesced in what he
now claims is error, * * * he did not invite it”—instead, “it was
simply a mistake.” Id. at 374.

In this case, Long’s motion laid out the elements for
compassionate release under the First Step Act, including the
requirement that release be “consistent with applicable policy
statements issued by the Sentencing Commission.” Mot. for
Compassionate Release at 4, United States v. Long, No. 10-cr-
171 (D.D.C. Sept. 4, 2020), ECF No. 347 (quoting 18 U.S.C.
§ 3582(c)(1)(A)). The motion then noted that the Commission
had addressed compassionate release in its existing policy
statement, U.S.S.G. § 1B1.13, and quoted its factors, including
that the defendant “pose[] no danger to the safety of any person
 16
or the community,” Mot. for Compassionate Release, supra, at
4 (citing U.S.S.G. § 1B1.13(2)). Other than that, Long’s
counsel did not mention the policy statement or advocate for
its application to his case.

That error was a mere mistake, not a strategy or tactic. The
motion simply referenced the existing policy statement, as it
was the only one to be found. But counsel never affirmatively
argued that the statement was applicable to defendant motions
under the First Step Act nor urged the district court to apply it
as controlling. In fact, Long’s motion did not treat the policy
statement’s dangerousness criterion as relevant because it
never addressed dangerousness at all. See App. 61–71.
Nothing in that reference to the policy provision suggests that
Long meant to mislead the district court or to strategically
induce the district court to enforce an unargued criterion
against him.

In fact, it was the government that expressly urged the
district court to apply the policy statement in spite of the First
Step Act’s revisions to the compassionate release statute. Opp.
to Mot. for Compassionate Release at 7 n.1, Long, No. 10-cr-
171 (D.D.C. Sept. 17, 2020), ECF No. 349 (“[T]he policy
statement applies to motions filed by defendants as well.”).
And it was the government that encouraged the district court to
resolve the motion based on the policy statement’s
dangerousness factor alone. See id. at 10. In other words, the
government provided the district court with all of the
ammunition it needed to deny Long’s motion on the basis of
the policy statement’s dangerousness criterion. Nothing in the
record remotely suggests that the outcome would have changed
if Long had omitted reciting the policy statement in his motion.
 17
Finding no invited error, we apply the plain error standard
to Long’s argument on appeal that U.S.S.G. § 1B1.13 is
inapplicable to his application for compassionate relief.

IV

Long argues that the district court erred in relying upon the
Sentencing Commission’s pre–First Step Act policy statement
to deny his motion for compassionate release. More
specifically, he contends that the district court should not have
treated as controlling the policy statement’s requirement that
release be denied if he remained “a danger to the safety of any
other person or to the community.” U.S.S.G. § 1B1.13(2).
Long reasons that Section 1B1.13 of the Sentencing Guidelines
is not an “applicable policy statement” within the meaning of
18 U.S.C. § 3582(c)(1)(A) because it predates the First Step
Act and so speaks only to motions for compassionate release
filed by the Director of the Bureau of Prisons.

Long is correct, and that error was plain.

A

1

Under the First Step Act, courts must apply any
“applicable policy statements” issued by the Sentencing
Commission. 18 U.S.C. § 3582(c)(1)(A). As seven circuit
courts have ruled, U.S.S.G. § 1B1.13 is not “applicable” to
defendant-filed motions for compassionate release under the
First Step Act. See United States v. Brooker, 976 F.3d 228, 235
(2d Cir. 2020); United States v. McCoy, 981 F.3d 271, 282 (4th
Cir. 2020); United States v. Shkambi, 993 F.3d 388, 392–393
(5th Cir. 2021); United States v. Jones, 980 F.3d 1098, 1109–
1111 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178,
1180–1181 (7th Cir. 2020); United States v. Aruda, 993 F.3d
 18
797, 802 (9th Cir. 2021); United States v. McGee,
992 F.3d 1035, 1050 (10th Cir. 2021). But see United States v.
Bryant, --- F.3d ----, 2021 WL 1827158, at *1–16 (11th Cir.
May 7, 2021).

The policy statement’s inapplicability is plain on its face.
By its terms, the policy statement applies only to motions for
compassionate release filed by the Bureau of Prisons, not by
defendants. See U.S.S.G. § 1B1.13 (“Upon motion of the
Director of the Bureau of Prisons under 18 U.S.C. § 3582(a)(1)
* * * .”); McCoy, 981 F.3d at 282 (Section 1B1.13’s “very first
sentence constrains the entire policy statement to motions filed
solely by the [Bureau of Prisons], and not by defendants
themselves.”) (citation omitted; formatting modified).

The Sentencing Commission’s accompanying
commentary drives the point home: “A reduction under this
policy statement may be granted only upon motion by the
Director of the Bureau of Prisons pursuant to 18 U.S.C.
§ 3582(c)(1)(A).” U.S.S.G. § 1B1.13, Application Note 4; see
also McCoy, 981 F.3d at 282 (Note 4 “confirm[s]” the
inapplicability of U.S.S.G. § 1B1.13’s policy statement to
defendant-filed motions). And the commentary to the
Guidelines, unless it is inconsistent with the Guidelines’ plain
text (which no one argues here), is authoritative. Stinson v.
United States, 508 U.S. 36, 38 (1993).

The Sentencing Commission, for its part, has never
suggested that its existing policy statement applies to defendant
motions under the First Step Act. The Commission, in fact, has
issued no policy statement applicable to the First Step Act
because it has lacked a quorum since shortly after that Act’s
passage.
 19
In short, if a compassionate release motion is not brought
by the Director of the Bureau of Prisons, U.S.S.G. § 1B1.13,
by its own terms, is not applicable. Brooker, 976 F.3d at 236.

2

None of the government’s counterarguments succeed.

First, the government says that we should disregard the
plain language of the policy statement and hold that the policy
statement is applicable to defendant-filed motions because, in
its view, Congress did not mean to “divest[] § 1B1.13 from its
well-established role as the applicable policy statement
governing all compassionate release motions.” Gov’t
Mem. 17.

That is a no go. Courts have no license under the First Step
Act to perform “quick judicial surgery on [U.S.S.G.] § 1B1.13,
* * * editing out the language” that expressly confines its
operation to motions filed by the Bureau of Prisons. McCoy,
981 F.2d at 282. There is no ambiguity in the policy
statement’s scope, and “[w]e cannot replace the actual text with
speculation as to Congress’ intent.” Magwood v. Patterson,
561 U.S. 320, 334 (2010).

Second, the government invokes the presumption that
Congress legislates against and preserves existing law and
background understandings. See Gov’t Mem. 18–20 (citing
Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–185
(1988) and United States v. Wilson, 290 F.3d 347, 356 (D.C.
Cir. 2002)).

But that canon of construction gets the government
nowhere because we would equally have to presume that
Congress was aware that the preexisting policy statement
applied exclusively to motions filed by the Bureau of Prisons.
 20
The presumption that Congress knows what existing law says
means just that: Congress knows what the policy statement
says. And what it does not say.

Anyhow, the government has the order of operations
exactly backwards. The policy statements of the Sentencing
Commission are not background understandings against which
Congress legislates. They flow from and are responsive to
Congress’s changes to the law. See 28 U.S.C. § 994(a)(2)(C)
(authorizing the Commission to promulgate “general policy
statements” that in its view would “further the purposes set
forth in” 18 U.S.C. § 3553(a)(2), including “the appropriate use
of * * * the sentence modification provisions set forth in”
Section 3582(c)). So under this scheme, Congress leads and
the Commission follows. Any change by Congress to the
substantive reach of the statutory sentencing scheme may
rightly be expected to result in a change to the policy statements
guiding those statutes’ implementation.

Third, the government argues that “it would be absurd
* * * to conclude that Congress and the Commission intended
for the dangerousness requirement to apply or not based on
who filed the motion[.]” Gov’t Mem. 20.

Hardly. To begin with, courts may not use the absurdity
canon to set aside plain text unless “the absurdity and injustice
of applying the provision to the case[] would be so monstrous
that all mankind would, without hesitation, unite in rejecting
the application.” Pirie v. Chicago Title & Trust Co., 182 U.S.
438, 452 (1901) (quoting Sturges v. Crowninshield, 17 U.S. (4.
Wheat) 122, 203 (1819) (Marshall, C.J.)); see also Stovic v.
Railroad Ret. Board, 826 F.3d 500, 505 (D.C. Cir. 2016)
(same).

No such absurdity is afoot here. For defendant motions
under the First Step Act, courts still must consider and weigh
 21
the factors laid out in Section 3553(a), which include the need
“to protect the public from further crimes of the defendant” and
to ensure “adequate deterrence to criminal conduct.” 18 U.S.C.
§ 3553(a)(2)(B) & (C); see 18 U.S.C. § 3582(c)(1)(A)
(requiring courts to weigh the Section 3553 factors in
compassionate release decisions whether filed by the
government or the Bureau of Prisons). So even without the
policy statement, courts will still consider the anticipated effect
of compassionate release on crime and public safety for
defendant-filed motions as part of their weighing of relevant
considerations.

All that the pre–First Step Act policy statement did was
make that dangerousness factor a rigid precondition to release.
Surely all humankind would not recoil in horror at the prospect
of the same Congress that wished to expand access to
compassionate release also trusting courts to balance all
relevant considerations as part of a release decision, including
the ability to reduce the risk of criminality by imposing strict
supervised release conditions.

Apparently Congress would not blanch at the idea either.
When it wanted to make a lack of dangerousness an explicit
and inflexible precondition to release, it knew how to say so.
As it did in the very next provision of Section 3582(c)(1)(A).
For compassionate release motions based on the age of the
defendant (70 or more years old), and not on extraordinary or
compelling reasons, Congress has expressly proscribed courts
from ordering release unless the Director of the Bureau has
certified that “the defendant is not a danger to the safety of any
other person or the community, as provided under
[S]ection 3142(g).” 18 U.S.C. § 3582(c)(1)(A)(ii).
 22
Anyhow, how absurd can Long’s reading of the First Step
Act really be given that seven other circuits have already
adopted it?

B

Of course, finding error in the district court’s reliance on
the U.S.S.G. § 1B1.13 policy statement is just the first step
down the road for Long. Because Long did not preserve this
argument below, we must also find that the error was “plain.”
See United States v. Terrell, 696 F.3d 1257, 1260 (D.C. Cir.
2012). With the benefit of hindsight that the district court did
not enjoy, we find reliance on the policy statement and its
dangerousness criterion to have been plain error.

The easiest case for plain error is when “a clear precedent
in the Supreme Court or this circuit establishe[s] [a decision’s]
erroneous character.” Terrell, 696 F.3d at 1260. While seven
circuit court decisions go a long way, neither the Supreme
Court nor this circuit has yet spoken on the inapplicability of
the pre–First Step Act policy statement.

But that is not the universe of plain error. Even in the
absence of binding precedent, “an error can be plain if it
violates an ‘absolutely clear’ legal norm, ‘for example, because
of the clarity of a statutory provision.’” In re Sealed Case, 573
F.3d 844, 851 (D.C. Cir. 2009) (quoting United States v.
Merlos, 8 F.3d 48, 51 (D.C. Cir. 1993)); see also United States
v. Abney, 957 F.3d 241, 252 (D.C. Cir. 2020); United States v.
Joaquin, 326 F.3d 1287, 1293 (D.C. Cir. 2003).

This case fits that bill. The plain language of the existing
policy statement is applicable only to compassionate release
motions filed by the Director of the Bureau of Prisons, and it is
facially inapplicable to those motions filed by defendants under
the later-enacted First Step Act.
 23
The error is at least as plain here as it was in Sealed Case
and Joaquin. In both of those cases, we found that the relevant
statutory and Sentencing Guidelines texts, respectively, were
sufficiently clear that the district court’s contrary interpretation
was plain error—even though other circuits had taken the
opposite view. See Sealed Case, 573 F.3d at 851–852;
Joaquin, 326 F.3d at 1292–1293. Here, the score in favor of
Long’s interpretation is seven circuits to one.

The government points to an unpublished and non-
precedential decision of the Third Circuit in United States v.
Doe, 833 F. App’x 366 (3d Cir. 2020). But the court of appeals
in that case did not address the applicability of U.S.S.G.
§ 1B1.13 at all. Nor did the defendant there raise that issue on
appeal. See Brief for John Doe, Doe, 833 F. App’x 366 (3d
Cir. Aug. 17, 2020) (No. 20-2650), ECF No. 18. All the Third
Circuit held was that, despite the defendant’s “challeng[es to]
the District Court’s assessment of his danger to the community
under § 3142(g) and the sentencing factors set forth
in § 3553(a)[,]” the district court did not abuse its discretion in
denying compassionate release. Doe, 833 F. App’x at 368. 2

2
At the time the government filed its memorandum in this court,
unpublished decisions in two other circuits had applied the existing
policy statement to defendant-filed motions for compassionate
release without analyzing the applicability question. Gov’t Mem.
16–17 (citing United States v. Bell, 823 F. App’x 283 (5th Cir. 2020)
and United States v. Saldana, 807 F. App’x 816 (10th Cir. 2020)).
Both of those circuits have since ruled in precedential decisions that
the policy statement is not “applicable” within the meaning of the
First Step Act, 18 U.S.C. § 3582(c)(1)(A). See Shkambi, 993 F.3d
at 392–393; McGee, 992 F.3d at 1050.
 24
Recently, a divided decision of the Eleventh Circuit ruled
that U.S.S.G. § 1B1.13 is applicable to defendant motions for
compassionate release. Bryant, 2021 WL 1827158, at *6. The
court reasoned that the pre–First Step Act policy statement is
“capable of being applied” to those motions, and so it must be
“applicable” within the meaning of 18 U.S.C. § 3582(c)(1)(A).
Id. at *6–7.

But that opinion’s reliance on dictionary definitions of
“applicable” misses the forest for a tree. The decision ignores
all of the other words in Section 1B1.13 that already state in
plain and clear terms when the policy statement applies: “Upon
motion of the Director of the Bureau of Prisons[.]” U.S.S.G.
§ 1B1.13. As Judge Martin explained, the opinion’s
“dictionary-based theory about when a policy statement may
be ‘applicable’ flies in the face of the statement’s plain text that
tells us when it is actually ‘applicable.’” Bryant, 2021 WL
1827158, at *20 (Martin, J., dissenting). In other words, this
policy statement “is capable of being applied” to Long’s
motion, id. at *6, only if we take an eraser to the words that say
the opposite.

The Eleventh Circuit backhanded the policy statement’s
express text as “prefatory” language that just “orients the
reader by paraphrasing the statute as it existed at the time the
policy statement was enacted.” Bryant, 2021 WL 1827158,
at *11. Not so. The opening language is not mere prologue.
Cf., e.g., Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969, 1977–1978 (2016). Quite the opposite, the policy
statement’s first words—“Upon motion of the Director of the
Bureau of Prisons under 18 U.S.C. § 3582(c)(1)(A)”—set out
a rigid and indispensable condition of release: that the Bureau
of Prisons itself agrees that relief is warranted. In that way, the
beginning of the policy statement puts into effect Congress’s
(now superseded) command that motions for compassionate
 25
release may be filed only by the Bureau of Prisons. See United
States v. Cogdell, 154 F. App’x 162, 164 (11th Cir. 2005)
(defendant did not qualify for downward adjustment under
U.S.S.G. § 3E1.1(b) because such an adjustment could be
granted only “upon motion of the government” and the
government did not so move). To dismiss these words as inert
preface is to ignore a direct textual instruction and central
statutory feature of the compassionate release scheme prior to
the First Step Act.

That essential function of Section 1B1.13’s opening words
makes stark the policy statement’s inapplicability to the post–
First Step Act world where Congress took compassionate
release motions out of the Bureau of Prisons’ exclusive control.
Those words likewise highlight that Section 1B1.13 does not
reflect any policy statement or policy judgment by the
Sentencing Commission about how compassionate release
decisions should be made under the First Step Act, in which a
Congress dissatisfied with the stinginess of compassionate
release grants deliberately broadened its availability.

At bottom, for a policy statement to be “applicable,” it
must, at a minimum, take account of the relevant legislation
and the congressional policy that it embodies. Section 1B1.13
does not do that. And so the problem with the Eleventh
Circuit’s approach is that it asked the wrong question. The
issue here is not the meaning of “applicable,” but rather
whether the pre–First Step Act policy statement is applicable.
It plainly is not.

The district court’s error, while plain, was understandable.
Long did not present the question of the policy statement’s
applicability to the district court, while the government argued
that it was applicable. So the district court did not have the
benefit of adversarial briefing on the question. And at the time,
 26
some district courts, including within this circuit, had reached
the same conclusion that the district court did here. See, e.g.,
United States v. Goldberg, No. 12-cr-180 (BAH), 2020 WL
1853298 (D.D.C. April 13, 2020); United States v. Alonzo, ---
F. Supp. 3d ---- , 2021 WL 327571 (E.D. Tex. Feb. 1, 2021).
But see United States v. Quinn, 467 F. Supp. 3d 824, 830 (N.D.
Cal. 2020); United States v. Beck, 425 F. Supp. 3d 573, 579
(M.D.N.C. 2019). None of the circuit courts had yet weighed
in.

The plainness of an error, however, is evaluated at the time
of appellate review, not at the time the district court ruled.
Henderson v. United States, 568 U.S. 266, 279 (2013). Under
that test, the combination of clear text and overwhelming and
vigorously reasoned authority from seven other circuits (and
the unpersuasiveness of the Eleventh Circuit’s analysis) make
the error plain.

C

To survive plain error review, Long must demonstrate not
just a plain error, but also that the error affected his “substantial
rights,” Johnson, 520 U.S. at 468. Usually, an error will affect
the defendant’s substantial rights if there is a “‘reasonable
probability that, but for the error,’ the outcome of the
proceeding would have been different.” Molina-Martinez v.
United States, 136 S. Ct. 1338, 1343 (2016) (quoting United
States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). In
other words, Long must show prejudice. Puckett, 556 U.S.
at 141. Long has met that task.

In Molina-Martinez, the Supreme Court held that an error
by the district court in calculating a range under the Sentencing
Guidelines, “whether or not the defendant’s ultimate sentence
falls within the correct range[,] * * * can, and most often will,
be sufficient to show a reasonable probability of a different
 27
outcome absent the error” and, thus, prejudice under the plain
error standard. 136 S. Ct. at 1345. This is because the
Guidelines are the “essential framework” and “lodestar” for
sentencing proceedings. Id. at 1345–1346. Because of “the
centrality of the Guidelines in the sentencing process,” the
Supreme Court concluded, the district court’s misapplication
of the Guidelines to determine a sentencing range should
generally suffice to establish prejudice, even if “there is no
other evidence that the sentencing outcome would have been
different had the correct range been used.” Id. at 1346.

The showing of prejudice is even starker here than in
Molina-Martinez. While the district court in Molina-Martinez
could have departed from the miscalculated advisory
Guidelines range, United States v. Booker, 543 U.S. 220, 264
(2005), where applicable, the policy statement requires courts
to deny compassionate release unless they affirmatively find
that “the defendant is not a danger to the safety of any other
person or to the community,” U.S.S.G. § 1B1.13(2).
Cf. Dillon, 560 U.S. at 819, 828–830 (holding the Sentencing
Commission’s policy statements are binding on a court
considering a motion for sentencing reduction under
§ 3582(c)(2)). In other words, the court mistakenly believed
that the policy statement’s lack-of-dangerousness prerequisite
gave it no choice but to deny Long’s motion, and that erroneous
premise formed both the beginning and the end of its inquiry.

In that way, the district court’s mistaken application of an
otherwise mandatory Sentencing Guidelines prohibition
affected Long’s sentencing outcome at least if not more
“systemic[ally]” than a discretionary-but-frequently-adopted
Guidelines range. See Molina-Martinez, 136 S. Ct. at 1346.
And as a result, the court never had an opportunity to evaluate
whether release was warranted upon a balancing of the
 28
Section 3553(a) factors and consideration of release
restrictions.

The government argues that there was no prejudice
because the district court would have considered Long’s
dangerousness under the Section 3553(a) balancing framework
and likely would have denied the motion on that basis.

But Section 3553(a) requires a discretionary balancing of
multiple factors, not just dangerousness. Under that provision,
courts weigh (1) the nature and circumstances of the offense
and the history and characteristics of the defendant; (2) the
need for the sentence imposed (A) to reflect the seriousness of
the offense, to promote respect for the law, and to provide just
punishment; (B) to afford adequate deterrence to criminal
conduct; (C) to protect the public from further crimes of the
defendant; and (D) to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner; (3) the
kinds of sentences available; (4) the kinds of sentence and the
sentencing range established for the applicable category of
offense committed by the applicable category of defendant as
set forth in the Guidelines; (5) any pertinent policy statement
issued by the Sentencing Commission; (6) the need to avoid
unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct;
and (7) the need to provide restitution to any victims of the
offense. 18 U.S.C. § 3553(a).

Because the district court treated U.S.S.G. § 1B1.13’s
dangerousness criterion as a categorical bar on relief, “the
record is silent as to what the district court might have done”
upon balancing all of those factors as an exercise of informed
discretion, Molina-Martinez, 136 S. Ct. at 1347. And the
discretion afforded by Section 3553(a) is the district court’s to
 29
exercise in the first instance. See United States v. Peyton, 745
F.3d 546, 557 (D.C. Cir. 2014) (noting that “[w]e are a court of
review, not of first view” and remanding to the district court
for consideration of issue it had “no occasion to address”);
Gunn, 980 F.3d at 1181 (remanding to district court for
resolution of compassionate release motion under statutory
standard after holding that U.S.S.G. § 1B1.13 is inapplicable).
See generally Pullman-Standard v. Swint, 456 U.S. 273, 291
(1982) (When a district court “has failed to make a finding
because of an erroneous view of the law, the usual rule is that
there should be a remand for further proceedings to permit the
trial court to make the missing findings.”).

Because “the record is silent as to what the district court
might have done had it considered the correct” factors, the
district court’s reliance on an incorrect Guidelines policy
statement is “suffic[ient] to show an effect on [Long’s]
substantial rights.” Molina-Martinez, 136 S. Ct. at 1347.

D

Finally, we hold that the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.
Under this factor, “[w]e have repeatedly opted to correct plain
sentencing errors that, if left uncorrected, would result in a
defendant serving a longer sentence.” Sealed Case, 573 F.3d
at 853.

In a similar vein, Long has sought compassionate release
asserting extraordinary and compelling circumstances for
expeditious relief. If we do not correct this error, we would
permanently close the door on any prospect of that release, and
even on the district court’s discretionary consideration of all
the factors bearing on such a decision. As the Supreme Court
has explained in an analogous circumstance, the “risk of
 30
unnecessary deprivation of liberty particularly undermines the
fairness, integrity, or public reputation of judicial proceedings
in the context of a plain Guidelines error because of the role the
district court plays” in applying the Guidelines “and the
relative ease of correcting the error.” Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1908 (2018). Indeed, “what
reasonable citizen wouldn’t bear a rightly diminished view of
the judicial process and its integrity if courts refused to correct
obvious errors of their own devise that threaten to require
individuals to linger longer in federal prison than the law
demands?” Id. at 1908 (quoting United States v. Sabillon–
Umana, 772 F.3d 1328, 1333–1334 (10th Cir. 2014) (Gorsuch,
J.)).

V

For all of those reasons, we vacate the judgment of the
district court and remand for consideration of Long’s
compassionate relief application under the correct legal
standard.

So ordered.