In what appears to be the first decision to squarely tackle the issue, the First Circuit held that § 1291 authorizes government appeals from grants of compassionate release.
July 22, 2023
In United States v. Rivera-Rodríguez, the First Circuit held that the government can appeal from orders granting a criminal defendant’s request for compassionate release. Although several courts of appeals have reviewed these appeals, few have addressed their jurisdiction to do so in any depth. But the issue requires some thought—as the Rivera-Rodríguez panel noted, “[t]he government has no right of appeal in criminal cases except where a statute expressly grants such a right.”
Simplifying a fair bit, in 2011, the defendant in Rivera-Rodríguez pleaded guilty and was sentenced to 240 months’ imprisonment. Nine years later, he sought compassionate release due to heightened risk of death or severe illness were he to contract COVID-19. The district court determined that the number of deaths at the defendant’s institution, combined with the defendant’s medical conditions, “qualified as extraordinary and compelling reasons justifying early release.” The government appealed.
The defendant responded by arguing that no statute authorized the government’s appeal from a compassionate-release grant. As the defendant saw things, the grant of compassionate release was a sentencing order. Neither 28 U.S.C. § 1291 nor 18 U.S.C. § 3731 permit government appeals from a sentencing decision. And no provision of 18 U.S.C. § 3742(b)—which contains four situations in which the government can appeal a sentence—applies to compassionate release.
The First Circuit rejected the premise of the defendant’s argument—that a grant of compassionate release is a sentence. Analogizing to orders reducing a sentence under Federal Rule of Criminal Procedure 35(b), the First Circuit concluded that compassionate-release orders instead modify an existing judgment (the original sentence).
So “compassionate release appealability, like appealability with respect to the disposition of virtually all other post-judgment motions, is governed by 28 U.S.C. § 1291.” (Quotation marks omitted.) “Orders resolving compassionate release motions amount to final judgments; like sentence reduction orders granted under Rule 35(b), they satisfy the preconditions established by section 1291, for entry of the order leaves nothing further to be done.” (Cleaned up.)
United States v. Rivera-Rodríguez, 2023 WL 4633508 (1st Cir. July 20, 2023), available at the First Circuit and Westlaw