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Date: 09-24-2021

Case Style:

United States of America v. Scott Sherwood

Case Number: 20-4085



Plaintiff's Attorney: Michael A. Sullivan, UNITED STATES ATTORNEY’S

Defendant's Attorney:

Cincinnati, Ohio - Criminal defense Lawyer Directory


Cincinnati, Ohio - Criminal defense lawyer represented defendant with transporting visual depictions of minors engaged in sexually explicit conduct, and possessing child pornography charges.

In 2015, Sherwood pleaded guilty to transporting visual depictions of minors engaged in
sexually explicit conduct, see 18 U.S.C. § 2252(a)(1), and possessing child pornography, see
18 U.S.C. § 2252A(a)(5)(B). Following its consideration of the 18 U.S.C. § 3553(a) factors as
applicable to Sherwood, the district court imposed a below-Guidelines sentence of 108 months’
Last year, Sherwood moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A).
He asserted that the COVID-19 pandemic coupled with his age and various medical conditions
together constituted extraordinary and compelling reasons warranting a sentence reduction, and
that the § 3553(a) factors also weighed in favor of release. Acknowledging that Sherwood’s
medical conditions satisfied the “extraordinary and compelling” threshold, the government
focused its opposition on the grounds that Sherwood remained a danger to the community, and
that the § 3553(a) factors counseled against release. The district court denied Sherwood’s
motion in a two-line order: “[Sherwood] has failed to demonstrate that he is not a danger to the
community. Not only was he convicted of possession of child pornography, but he was
convicted of transportation as well.” Order, United States v. Sherwood, No. 1:14-cr-391 (N.D.
Ohio Sept. 28, 2020).
We review the district court’s denial of compassionate release for an abuse of discretion.
United States v. Jones, 980 F.3d 1098, 1112 (6th Cir. 2020). The compassionate release statute
authorizes the district court to reduce an inmate’s sentence if the court finds that “extraordinary
and compelling reasons” warrant a reduction; that a reduction is “consistent with applicable
No. 20-4085 United States v. Sherwood Page 3
policy statements issued by the Sentencing Commission” set forth in U.S.S.G. § 1B1.13; and that
the § 3553(a) factors, to the extent they apply, support a reduction. 18 U.S.C. § 3582(c)(1)(A).
Relevant here is the second step in that three-step statutory formula, § 1B1.13, which, among
other things, requires district courts to 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); see United States v. Ruffin,
978 F.3d 1000, 1005 (6th Cir. 2020). Following enactment of the First Step Act, district courts
addressing defendant-filed motions for release may now “skip step two of the § 3582(c)(1)(A)
inquiry,” meaning they need not consider § 1B1.13 when ruling on those motions. Hampton,
2021 WL 164831, at *2 (quoting Jones, 980 F.3d at 1111). And because satisfying the § 1B1.13
policy statement is no longer a requirement for defendant-filed compassionate release motions,
the policy statement’s requirement that the defendant not be a danger to the community no
longer provides an independent basis for denying compassionate release. See id. at *3. A
district court, in other words, may deny a defendant-filed motion only when it finds either that no
extraordinary and compelling reasons exist or that the § 3553(a) factors weigh against release.
See Elias, 984 F.3d at 519 (explaining that district courts may “deny compassionate-release
motions when any of the [applicable] prerequisites listed in § 3582(c)(1)(A) is lacking,” and
noting that district courts “do not need to address the others”).
Here, the district court’s two-line order relied exclusively on § 1B1.13(2) in denying
relief. While a brief order may well be sufficient for purposes of denying compassionate release,
see Hampton, 2021 WL 164831, at *3, where the order relies exclusively on an impermissible
consideration, we must vacate the order and remand the case for further consideration.
On that score, it bears noting that in weighing Sherwood’s § 3553(a) factors on remand,
the district court is permitted to consider Sherwood’s history and characteristics, including his
propensity to be a danger to the community upon release, as well as the nature and circumstances
of his offense. See 18 U.S.C. § 3553(a)(1)–(2). And we presume that the district court’s initial
balancing of the § 3553(a) factors during Sherwood’s sentencing remains an accurate assessment
as to whether those factors justify a sentence reduction, meaning Sherwood must make a
compelling case as to why the sentencing court’s § 3553(a) analysis would be different if
conducted today. See United States v. Navarro, --- F.3d ---, No. 20-5640, 2021 WL 287756, at
No. 20-4085 United States v. Sherwood Page 4
*3 (6th Cir. Jan. 28, 2021) (“[The defendant] did not argue that his personal circumstances—
beyond the COVID-19 outbreak—had changed so that the district court should weigh the
§ 3553(a) factors differently than it had at the original sentencing.”).

Outcome: But because the district court relied on § 1B1.13(2) as the sole basis for denying Sherwood compassionate release, we must remand the case so that the district court can, in the first instance, decide whether the § 3553(a) factors weigh in favor of Sherwood’s release

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