Cincinnati, Ohio - Criminal defense lawyer represented defendant with a distributing a controlled substance charge.
In 2016, Harvey pleaded guilty to a charge of distributing a controlled substance under
21 U.S.C. § 841(a)(1) and (b)(1)(C). He was sentenced to 156 months’ imprisonment and three
years’ supervised release. Harvey then filed a § 2255 motion claiming ineffective assistance of
counsel. The case was reassigned to a different judge, who denied the motion. We affirmed.
Harvey v. United States, 798 F. App’x 879 (6th Cir. 2020).
On June 12, 2020, Harvey filed a motion for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A). Arguing that “[t]he ongoing coronavirus pandemic presents extraordinary and
compelling reasons where a defendant is susceptible to infection,” he cited his “chronic
bronchitis” (which had previously “required emergency intervention”) and the spread of
COVID-19 cases at the facility in which he was incarcerated at the time as justifying release. He
also noted that he was a “non-violent offender” and “had no disciplinary actions against him at
After the Government filed a response in opposition, and Harvey filed a reply, the district
court denied Harvey’s motion on September 17, 2020. The district court did not hold a hearing.
It used a one-page form order to deny Harvey’s motion. The form stated “[u]pon renewed
motion of Defendant (Dkt. 87) for a reduction in sentence under 18 U.S.C. § 3582(c)(1)(A), and
after considering the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable policy
statements issued by the Sentencing Commission, IT IS ORDERED THAT the motion is . . . .”
It then listed four check boxes labeled: (1) “GRANTED,” (2) “DEFERRED pending
supplemental briefing . . . . ,” (3) “DENIED after complete review of the motion on the merits,”
and (4) “DENIED WITHOUT PREJUDICE because Defendant has not exhausted all
administrative remedies as required in 18 U.S.C. § 3582(c)(1)(A), nor have 30 days lapsed since
receipt of Defendant’s request by the warden of Defendant’s facility.” The district court checked
Harvey timely filed a notice of appeal on September 28, 2020. About three weeks later,
on October 21, 2020, the district court filed a five-page document titled “OPINION SETTING
FORTH THE REASONS FOR DENYING DEFENDANT LAMONT HARVEY’S MOTION
No. 20-1944 United States v. Harvey Page 3
FOR COMPASSIONATE RELEASE.” The document stated that “[t]he Court is entering this
Opinion to set forth its findings and analysis in support of” the form order. In outlining the legal
standard it would apply, the district court asserted that its discretion to consider extraordinary
and compelling reasons justifying release was circumscribed by the list in USSG § 1B1.13. And
the court decided that “[a] reduction in sentence would not have been consistent with the policy
statements issued by the Sentencing Commission.” The district court also discussed Harvey and
the Government’s arguments about whether the § 3553(a) factors weighed in favor of release,
concluding (in one paragraph) that they did not. It also noted that Harvey had satisfied the
We first address the effect of the district court’s post-appeal opinion. The parties
disagree about whether we can or should take the opinion into account in determining whether
the district court sufficiently explained the denial of Harvey’s compassionate release motion.
Harvey maintains that the district court was without jurisdiction to file the opinion altogether.
Typically, “filing a notice of appeal with the district court divests the district court of
jurisdiction to act in a case, except on remedial matters unrelated to the merits of the appeal.”
Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep’t of Nat. Res., 71 F.3d 1197, 1203 (6th Cir.
1995); see also 6 Charles A. Wright et al., Federal Practice and Procedure § 1489 (3d ed. Apr.
2021 update) (“Once an appeal has been taken from the judgment, the district court no longer has
jurisdiction over the case and cannot reopen the judgment to allow an amendment to be made.”).
In other words, “expansion of a district court’s judgment [is] not permitted while an
appeal is pending.” NLRB. v. Cincinnati Bronze, Inc., 829 F.2d 585, 588 (6th Cir. 1987). We
have interpreted this rule to except certain actions taken “in aid of the appeal,” a “narrowly
defined” set that “includes issuance of an opinion that memorializes an oral ruling made days
before.” United States v. Sims, 708 F.3d 832, 834 (6th Cir. 2013) (quoting Inland Bulk Transfer
Co. v. Cummins Engine Co., 332 F.3d 1007, 1013 (6th Cir. 2003)). But we have also noted that
“appellate courts have generally prevented trial courts from developing supplemental findings
No. 20-1944 United States v. Harvey Page 4
after the notice of appeal has been filed.” Inland Bulk Transfer, 332 F.3d at 1013 (collecting
The district court’s opinion—filed 23 days after the notice of appeal and eight days after
Harvey filed his brief in this case—does not fall within an exception to the rule. There was no
oral ruling to memorialize. And even if there had been, the district court waited weeks, not days,
to provide a fuller explanation for its ruling. Given that Harvey argued on appeal precisely that
the form order was insufficient, before the district court filed its opinion, that opinion was an
“action that alter[ed] the case on appeal” and not one that “merely aid[ed] the appellate
process.” Inland Bulk Transfer, 332 F.3d at 1013 (quoting Allan Ides, The Authority of a
Federal District Court to Proceed after a Notice of Appeal Has Been Filed, 143 F.R.D. 307, 323
Moreover, the court’s opinion was not a “remedial matter unrelated to the merits of the
appeal.” Fort Gratiot Sanitary Landfill, 71 F.3d at 1203. Instead, the court used the opinion to
“set forth its findings and analysis in support of” its earlier order. See Inland Bulk Transfer,
332 F.3d at 1013 (noting that appellate courts generally prevent district courts from “developing
supplemental findings” after a party has filed a notice of appeal). So the opinion is “null and
void” because the district court did not have jurisdiction to file it, and we cannot consider it.
United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir. 1984) (quoting Keohane v. Swarco,
Inc., 320 F.2d 429, 432 (6th Cir. 1963)). This conclusion resolves the Government’s argument
that “there would be little reason to remand only for a more thorough explanation here, now that
the district court has already given one.”
We turn next to the merits of Harvey’s challenge. Harvey argues that the district court’s
form order here was insufficient and thus procedurally defective, and that the district court
abused its discretion in denying his motion. In reviewing the district court’s decision, we “must
apply the law in effect at the time [we] render[ our] decision,” Henderson v. United States,
568 U.S. 266, 276 (2013) (quoting Thorpe v. Hous. Auth. of Durham, 393 U.S. 268, 281 (1969)),
and since the district court’s September 17, 2020, order, that law has changed significantly. “For
thirty-four years, only the BOP’s Director could file motions for compassionate release,” and
“the Director seldom wielded this significant power.” United States v. Jones, 980 F.3d 1098,
No. 20-1944 United States v. Harvey Page 5
1104 (6th Cir. 2020). In an effort “to boost grants of compassionate release,” Congress passed
the First Step Act of 2018, which allows incarcerated people to file motions for compassionate
release themselves so long as they exhaust their administrative remedies or wait 30 days after the
warden’s receipt of a compassionate release request (whichever comes first). Id. at 1104–05; see
also United States v. Alam, 960 F.3d 831, 833–34 (6th Cir. 2020).
Last year, we clarified that “sentence-modification decisions pursuant to § 3582(c)(1)(A)
embody a three-step inquiry: [(1)] district courts must ‘find’ both that ‘extraordinary and
compelling reasons warrant [a sentence] reduction’ and that [(2)] ‘such a reduction is consistent
with applicable policy statements issued by the Sentencing Commission’ before [(3)] considering
all relevant sentencing factors listed in 18 U.S.C. § 3553(a).” Jones, 980 F.3d at 1101 (second
alteration in original) (footnote omitted) (quoting 18 U.S.C. § 3582(c)(1)(A)); see also United
States v. Ruffin, 978 F.3d 1000, 1004–05 (6th Cir. 2020). And we held that for purposes of the
third requirement, USSG § 1B1.13 “is not an applicable policy statement for compassionaterelease motions brought directly by inmates, and so district courts need not consider it when
ruling on those motions. United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021).
So without an applicable policy statement, district courts have significant, though not
unlimited, discretion to define “extraordinary and compelling” reasons for relief “on their own
initiative.” Elias, 984 F.3d at 519–20. And “district courts may deny compassionate-release
motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need
to address the others.” Elias, 984 F.3d at 519. No matter the basis, we review these decisions
for abuse of discretion. Jones, 980 F.3d at 1112.
In United States v. Quintanilla Navarro, we dealt with a nearly identical form order.
986 F.3d 668, 669 (6th Cir. 2021). And we affirmed. We noted that Quintanilla Navarro’s case
was conceptually simple. Id. at 671. He had been deported from the United States multiple
times; he had been convicted of a serious drug trafficking crime; and his previous run-ins with
law enforcement did nothing to deter later criminal behavior. Id. at 671–72. So we were
“satisfied that the judge considered the parties’ arguments and had a reasoned basis for
exercising his own legal decisionmaking authority.” Id. at 672 (cleaned up) (quoting ChavezMeza v. United States, 138 S. Ct. 1959, 1967 (2018)).
No. 20-1944 United States v. Harvey Page 6
Then, in United States v. Kimball, 988 F.3d 945 (6th Cir. 2021) (per curiam), we
discussed another form order denying compassionate release of nearly identical wording and
brevity to our order here and the order in Quintanilla Navarro. We identified certain facts from
our decision on Kimball’s direct appeal and statements the district court made at his
resentencing, such as that “he was the ‘undisputed kingpin and mastermind’ of a ‘massive
cocaine-trafficking conspiracy’” who had “attempt[ed] to kill witnesses.” Id. at 947 (quoting
United States v. Parker, 341 F. App’x 122, 124–25 (6th Cir. 2009)). “Based on this record,” we
stated, “the district court could reasonably have determined that releasing Kimball now would
not serve the statutory sentencing goals.” Id. That was true even though a different judge
decided Kimball’s motion than sentenced him.
Likewise for Harvey. The form order here resembles the orders we approved in
Quintanilla Navarro and Kimball. So it was not necessarily procedurally defective, as Harvey
argues. And like in Kimball, facts in the record provide a reasonable basis for the district court’s
ultimate decision to deny Harvey’s motion. Harvey admitted “that he had been selling drugs for
over a year”; the prosecutor asserted at sentencing that Harvey’s house contained “a gun” and
“ammunition”; Harvey’s plea agreement recognized four earlier drug-related convictions, and
the presentence report listed two others; and when he filed his motion for compassionate release,
he had served only about 25% of his custodial sentence. Although a different judge sentenced
Harvey than decided his motion, the same was true in Kimball, and the record here can be read to
support the district court’s conclusion that the § 3553(a) factors do not favor Harvey’s release.
Outcome: We cannot confidently say on this record that the district court “relie[d] on clearly
erroneous findings of fact, applie[d] the law improperly, or use[d] an erroneous legal standard” when weighing the § 3553(a) factors. Jones, 980 F.3d at 1112 (quoting United States v. Pembrook, 609 F.3d 381, 383 (6th Cir. 2010)). Accordingly, we affirm the district court’s order.