United States v. Facon

Citation: Not availableDocket: 21-CO-542

Court: District of Columbia Court of Appeals; January 25, 2023; District Of Columbia; State Supreme Court

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The District of Columbia Court of Appeals is reviewing the appeal in case No. 21-CO-542, where the United States is the appellant against Eugene R. Facon, the appellee. Facon was sentenced to life imprisonment without parole in 1999 for serious crimes, including armed kidnapping and sexual abuse. In December 2020, he filed a motion for compassionate release under D.C. Code 24-403.04, which allows for sentence modification if the defendant is not a danger to the community and if extraordinary and compelling medical reasons exist. The law specifies conditions under which a defendant may qualify, including advanced age or serious medical conditions.

The trial judge granted Facon's motion, finding he posed no danger and had a heightened susceptibility to severe COVID-19 complications. The government appealed, arguing that the judge erred by not requiring Facon to demonstrate ongoing acute vulnerability to COVID-19 after vaccination and by improperly determining that Facon would not pose a danger if released. The court has stayed Facon's release pending the resolution of this appeal, marking the first instance where the government has appealed a compassionate release order in this court, contrasting with previous cases where defendants appealed denials.

Facon and the Public Defender Service (PDS) contend that the appeal should be dismissed due to lack of jurisdiction, arguing that no statute permits the United States to appeal orders from the Superior Court regarding compassionate release. The United States counters that two statutes allow such appeals: D.C. Code § 23-104(d-2), which permits appeals in criminal cases concerning orders for release of convicted individuals, and D.C. Code § 11-721(a)(1), which grants jurisdiction over all final orders from the Superior Court. The government also suggests that if direct appeals are not allowed, its brief should be considered a petition for a writ of mandamus due to a sentence modification that exceeded the Superior Court’s authority under D.C. Code § 24-403.04. 

After reviewing the relevant statutes, it is concluded that D.C. Code § 11-721(a)(1) provides appellate jurisdiction in this instance, as an order for compassionate release is deemed "final." Although this statute generally does not permit government appeals in criminal cases, a compassionate release order is considered independent of the underlying prosecution, thus allowing for appeal. 

On substantive grounds, the court agrees with the government that the motion judge did not apply the appropriate legal standard from Autrey v. United States regarding Facon’s medical eligibility for release. Consequently, the order granting compassionate release is vacated and remanded to assess whether Facon proves he is acutely vulnerable to severe illness or death from COVID-19 despite vaccination. The court also finds the judge’s reasoning regarding Facon’s dangerousness to be unclear, although it does not rule out the possibility of a new assessment of his current dangerousness on remand.

Facon’s past criminal conduct is detailed, revealing a violent 1998 attack on a stranger, K.L., involving armed kidnapping, sexual assault, and robbery. Facon had been released on parole just six weeks prior and had a history of substance abuse, testing positive for cocaine shortly before and after the attack, despite having undergone treatment while incarcerated.

On July 23, 1999, Facon was sentenced to two consecutive life terms without parole for armed kidnapping and first-degree sexual abuse, along with an additional 18⅓ to 55 years for other offenses. His convictions were affirmed on direct appeal in 2008 and the denial of his first collateral challenge in 2011. In early 2020, Facon appealed the denial of a second post-conviction motion regarding the legality of his life sentences. By December 30, 2020, he had served over 22 years and sought compassionate release under D.C. Code 24-403.04, citing factors such as his age (57), lack of substance abuse since 2004, and a limited disciplinary record. He argued that his medical conditions—type 2 diabetes, obesity, hypertension, and hepatitis C—exacerbated his risk for severe COVID-19, constituting "extraordinary and compelling reasons" for early release.

The United States opposed his motion, acknowledging some medical risks but contending that Facon remained dangerous, citing the nature of his crimes, his criminal history, and past disciplinary issues, including serious infractions and a history of drug use. They also noted that his victim strongly opposed his release. On March 8, 2021, the motion judge indicated he would grant compassionate release if the appellate court remanded the case, emphasizing Facon’s heightened susceptibility to severe COVID-19 consequences, with the judge stating that the prospect of vaccination did not eliminate this risk.

The judge determined that Facon's crimes against K.L. indicated potential danger to the community, particularly due to the severity of the offenses and Facon's extensive criminal history, including heavy cocaine use. Despite these factors, the judge found sufficient evidence of Facon’s rehabilitation to grant compassionate release. Key considerations included Facon's acknowledgment of the seriousness of his crimes, his participation in Narcotics Anonymous while incarcerated, and his abstinence from drugs and alcohol since 2004. Additionally, he maintained consistent employment, completed 284 hours of educational and vocational training, and had minimal disciplinary issues in prison. The judge noted a dispute regarding Facon’s access to sex offender treatment, which he denied receiving. Facon also claimed to have found renewed religious faith and had supportive family relationships. His advanced age and poor health were cited as factors reducing the likelihood of recidivism. Ultimately, despite some hesitation due to his criminal background, the judge ruled that Facon posed no danger to the community. Subsequently, the United States sought reconsideration, highlighting Facon’s vaccination against COVID-19 as a reason to deny his release; however, the judge maintained that uncertainties regarding vaccine efficacy persisted. On April 26, 2021, the judge denied the government's motion for reconsideration. In May 2021, Facon’s post-conviction appeal was remanded, and in August 2021, the judge granted Facon compassionate release, suspending the remainder of his prison term.

The judge initially intended to impose five years of supervised probation on Facon but later amended the judgment to five years of supervised release. The judge denied the government's motion to stay this amended judgment. The United States appealed and sought to stay the amended judgment, while Facon, supported by PDS as amicus curiae, moved to dismiss the appeal due to lack of jurisdiction, claiming the government's notice of appeal was insufficient. Facon contended that the government failed to designate the final amended judgment in its notice, as required by D.C. App. Rule 3(c)(1)(B). However, the court found that this oversight did not deprive it of jurisdiction, emphasizing that a mistake in designating the judgment does not hinder appellate jurisdiction if the intent to appeal is clear and the appellee is not prejudiced. Additionally, the court noted that Rule 3 was amended to prevent dismissal for improper designation if the notice was filed after the judgment and related to an order merged into it. 

Regarding appellate jurisdiction, the court recognized that post-conviction motions for compassionate release are treated as criminal proceedings, which typically do not allow government appeals without explicit legislative authorization. However, it concluded that double jeopardy principles do not bar the government's appeal in this case, as the appeal posed no risk of successive prosecutions. Consequently, the court ruled that the government's appeal of Facon's sentence did not violate double jeopardy principles, despite Facon's claim of a legitimate expectation that his modified sentence would be final and unappealable.

A defendant cannot assume a final sentence when the government has the statutory right to appeal and has done so. Although a defendant may develop a legitimate expectation of finality once serving a sentence, Facon never started serving his modified sentence due to a stayed release order. The court examines whether D.C. Code § 23-104(d-2) or § 11-721(a)(1) permits the government to appeal an order for compassionate release. D.C. Code § 23-104 allows appeals by the United States and the District of Columbia regarding certain decisions in criminal cases, specifically permitting appeals of orders granting release. The government asserts that this provision authorizes its appeal since Facon is a convicted individual and the modified sentence equates to a release. In contrast, Facon argues that the statute does not generally allow governmental appeals of sentencing orders or compassionate release modifications, but is limited to temporary release orders (bail) pending trial, sentencing, or appeal.

The court analyzes the statutory language to determine legislative intent, prioritizing plain and unambiguous meanings. It acknowledges that even clear language may require deeper examination of legislative history to resolve ambiguities. The court finds that the government's interpretation of § 23-104(d-2) is flawed; the context of "release" in this statute relates specifically to temporary, conditional releases in Chapter 13 of Title 23, not to the judicial modification of criminal sentences, which falls under Title 24. Thus, the statute's reference to "release" pertains solely to temporary releases, not the modification of prison sentences.

D.C. Code § 24-403.04 does not support the government’s claim that D.C. Code § 23-104(d-2) allows for an appeal regarding a decision granting "release." The text of § 24-403.04 lacks the term "release" in relation to the Superior Court's authority to "modify a term of imprisonment." The section's title, referencing "motions for compassionate release," is misleading and not determinative in interpreting the statutory language. While modifications often lead to a defendant's release, they can also result in reduced sentences without complete release. Consequently, the term "release" in § 23-104(d-2) does not encompass sentence modifications under § 24-403.04, nor does it pertain to "supervised release," which is part of the original sentencing and not subject to modification by the court.

The legislative history of § 23-104(d-2) undermines the government's interpretation, as it closely mirrors the language from 18 U.S.C. § 3731, which allows government appeals from decisions granting temporary release pending trial or sentencing. The legislative intent behind the federal statute, established during the Bail Reform Act of 1984, was strictly related to temporary releases. The Council's adoption of this language suggests alignment with federal court interpretations, which define "release" as a temporary freedom from detention. There is no evidence in the legislative history of § 23-104(d-2) to suggest a different interpretation. When local law directly borrows from federal statutes, it is assumed that the local legislature adopts the judicial interpretations of those statutes.

The Omnibus Public Safety Act, specifically Report on Bill 16-247, includes testimony from D.C. Attorney General Robert J. Spagnoletti that references 18 U.S.C. § 3731. The document notes that, despite the Council not being able to consider federal court decisions made after the enactment of D.C. Code § 23-104(d-2), there have been no reported federal decisions allowing the government to appeal a compassionate release order under § 3731. The legislative intent behind the adoption of subsection (d-2) was to grant the D.C. Attorney General the same rights to appeal bail decisions as the U.S. Attorney's Office, specifically under D.C. Code § 23-1324(d), which pertains strictly to bail appeals. The U.S. Attorney's Office recognized this redundancy in correspondence to the Committee on the Judiciary, confirming no changes were recommended despite concerns raised by the Public Defender Service (PDS).

The court concludes that the government’s reliance on § 23-104(d-2) for appealing a compassionate release order is incorrect. It then examines jurisdiction under D.C. Code § 11-721(a)(1), which allows the D.C. Court of Appeals to hear appeals from final orders of the Superior Court. This jurisdiction is analogous to 28 U.S.C. § 1291 concerning federal courts. Orders regarding compassionate release, whether granted or denied, are deemed final as they resolve the issues before the court, allowing for appeals. Both D.C. and federal courts have treated such orders as final and appealable, with the D.C. statute modeled after federal law and guided by its interpretations.

A final judgment in litigation is determined by a District Court's decision that resolves the case on its merits, leaving only the execution of the judgment. There has been no prior challenge to jurisdiction in compassionate release appeals, leading to a lack of discussion on the jurisdiction's statutory source. However, appellate jurisdiction over such orders is established under 28 U.S.C. § 1291, which allows for appeals from final decisions of district courts, making it a suitable framework for compassionate release motions compared to 18 U.S.C. § 3742. The standard of review for grants and denials of compassionate release is abuse of discretion, a power conferred by § 1291. The government has appealed a decision by the district court granting compassionate release, and the appellate court affirms this decision under its jurisdiction from § 1291. Other circuits have similarly exercised appellate jurisdiction in government appeals regarding compassionate release, albeit without always clarifying their statutory basis. Despite the general principle that government appeals in criminal cases are not favored, exceptions exist for compassionate release appeals, as established by precedent cases.

Certain orders in criminal cases may be deemed sufficiently independent from the main prosecution to qualify as plenary orders, making them appealable under the final order statute, 28 U.S.C. § 1291 or D.C. Code § 11-721(a)(1). An illustrative example is an order setting a defendant’s bail, which was considered distinct enough from the prosecution to be appealable, even during ongoing prosecution. Various courts have affirmed that § 1291 provides appellate jurisdiction in criminal matters when the appeal concerns issues sufficiently separate from the underlying case. 

The Second Circuit's ruling in *United States v. Peterson* exemplifies this principle, where the government appealed a dismissal of its petition for a probation violation hearing. The court found the appeal permissible under § 1291, noting that the district court's decision did not impact the merits of Peterson’s criminal conviction. Orders that do not affect the underlying criminal case or sentence are considered collateral and thus appealable. Similarly, an order granting post-conviction compassionate release is seen as independent and collateral to the original prosecution, as it is based on new considerations regarding the prisoner’s eligibility and does not challenge the validity of the original conviction or sentence.

Facon and PDS contend that a compassionate release order under D.C. Code § 24-403.04 qualifies as a sentencing order, which would prevent the government from appealing it based on the court's ruling in Stokes. However, the court disagrees, clarifying that Stokes only addressed the government's ability to appeal an initially imposed sentence concluding a prosecution, not the appealability of independent post-conviction modifications like those under § 24-403.04. Contrary to Facon and PDS's assertion that such modifications amount to resentencing, the court highlights the significant differences between initial sentencing and sentence modification. Citing Dillon v. United States, it emphasizes that the compassionate release statute permits limited adjustments to final sentences based on specific conditions rather than a comprehensive resentencing. The court further distinguishes this process from the Incarceration Reduction Amendment Act (IRAA), which allows broad judicial review of juvenile sentences. In compassionate release hearings, the inquiry is narrower, focusing solely on the defendant's current dangerousness and eligibility for release rather than broader sentencing considerations such as deterrence and restitution. Therefore, a decision on compassionate release merely modifies the existing sentence without constituting a new sentence in the traditional sense.

Factors for determining a defendant's sentence are relevant to compassionate release only when they inform the assessment of a prisoner's current or future dangerousness. If a defendant is deemed non-dangerous and eligible for early release, concerns such as general deterrence and victim restitution should not override this finding. Unlike initial sentencing, a compassionate release order is considered an appealable collateral order. 

Facon’s medical eligibility for compassionate release is reviewed for abuse of discretion. The United States contends that the motion judge misapplied the legal standard regarding Facon’s post-vaccination eligibility, while Facon and the Public Defender Service (PDS) argue that the judge acted within discretion by considering relevant factors impacting his vulnerability to severe illness from COVID-19. The judge had initially determined that Facon met the criteria for "extraordinary and compelling reasons" due to his heightened susceptibility to severe health complications from COVID-19, even after receiving the vaccine. However, the judge's reliance on uncertainties about the vaccine’s efficacy led to the conclusion that he applied an incorrect legal standard. A remand is required for reassessment under the correct standard, as the judge acknowledged that vaccination did not fully mitigate Facon’s heightened susceptibility. There remain concerns about the Pfizer vaccine's effectiveness against COVID-19 variants and its long-term efficacy in individuals with Facon's risk factors.

The Pfizer vaccine and other treatments are not completely effective against COVID-19, leaving some risk of infection or severe complications, though the degree of reduced risk is uncertain. In the case of Facon, the judge's analysis did not align with the standard established in Autrey, which requires a vaccinated prisoner to demonstrate acute vulnerability to severe illness or death from COVID-19. "Acute vulnerability" entails a risk that is serious and demanding, exceeding an "above-average" risk compared to the general population. Consequently, the burden lies with the prisoner to prove this acute vulnerability, rather than the government needing to disprove it. Facon cannot rely solely on the potential for residual risks without providing evidence that those risks apply to him and constitute acute vulnerability despite his vaccination. The judge must evaluate specific findings regarding Facon’s risk factors and their implications for his eligibility for compassionate release as "extraordinary and compelling circumstances." The case is remanded for reconsideration of Facon’s medical eligibility under the Autrey standard.

Additionally, the United States contends that the judge misused discretion in determining that Facon posed no danger to others or the community, based on statutory factors and evidence of his rehabilitation. Facon argues that the judge acted appropriately by considering the record and relevant factors. The court has not resolved the dangerousness issue definitively and cannot make a legal determination based on the existing record, only assessing whether the judge adequately addressed the matter.

The case is remanded for a reassessment of Facon’s eligibility, specifically regarding his dangerousness, as the judge's prior ruling is deemed unclear. The necessity for an updated evaluation of Facon’s dangerousness is emphasized, as new evidence may be presented during remand. The previous judge found Facon’s violent crimes against K.L. to be severe but hesitated to classify him as dangerous, citing unclear reasoning. While the judge acknowledged Facon's past violent behavior, criminal history, and inadequate rehabilitation during imprisonment, he concluded Facon was "sufficiently rehabilitated" without adequately justifying this finding. 

The judge referenced Facon’s claims of overcoming substance abuse and participation in a Narcotics Anonymous program, yet failed to explain how these factors suggested he would not pose a danger if released. Concerns are raised about Facon’s violent actions against a stranger and the judge's insufficient consideration of allegations that Facon had refused sex offender treatment. The judge also noted Facon's limited disciplinary issues in prison and his age and health, but did not clarify how these factors supported the conclusion of rehabilitation. Additionally, the judge mentioned Facon's supportive family relationships without demonstrating their impact on his potential risk to society. Overall, the reasoning behind the initial decision lacks clarity and fails to convincingly address the risks posed by Facon’s release.

The judge failed to clarify how Facon's family background related to his rehabilitation or his willingness to accept help from them, nor did he explain how these factors would mitigate any potential danger he posed to the community. Although the judge concluded that Facon does not present a danger, the lack of explanation necessitates further scrutiny. Consequently, the previous judgment and orders granting Facon's motion for compassionate release are vacated, and the case is remanded for additional proceedings to reassess his medical eligibility and dangerousness. Both parties will have the opportunity to present updated evidence regarding these issues. The United States pointed out discrepancies in the amended judgment, particularly concerning the conditions of Facon's release and his obligation to register as a sex offender; these issues are currently moot but should be addressed if compassionate release is granted upon remand.