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Date: 09-27-2021

Case Style:

United States of America v. John Tomes, Jr.

Case Number: 20-6056

Judge: John Baylor Nalbandian


Plaintiff's Attorney: L. Jay Gilbert, UNITED STATES ATTORNEY’S OFFICE

Defendant's Attorney:

Cincinnati, Ohio - Criminal defense Lawyer Directory


Cincinnati, Ohio - Criminal defense lawyer represented defendant with drug distribution and money laundering scheme charges, now he files for a motion for compassionate release.

John Tomes Jr. has a colorful criminal past. His most recent run-in with the law landed
him in federal prison after he got caught up in a drug distribution and money laundering scheme
in Louisville. After a grand jury indicted Tomes on drug, firearm, and money laundering
charges, Tomes pled guilty. Following this plea, the district court sentenced Tomes to twenty
years in prison. But after serving just a small fraction of his sentence, Tomes moved for
compassionate release. He says the presence of COVID-19 in prisons, coupled with his
increased susceptibility to serious illness from the virus because of chronic asthma, constitutes an
“extraordinary and compelling reason” for release. He also says the law has changed since his
sentencing, and he would receive a shorter sentence today than he received a few years ago.
The district court ordered the government to respond to Tomes’s motion. But “after
complete review” of the motion and its accompanying briefing, the court denied the motion.
(R. 250, Order at 1, PageID # 1758.) It said that U.S.S.G. § 1B1.13 “limits the ‘extraordinary
and compelling reasons’ for compassionate release” to just a few situations. (Id.) And Tomes
had not “identified any medical ailments that are so severe they would justify release.” (Id. at 2,
PageID # 1759.) Tomes had not contracted the virus; the Bureau of Prisons was taking
precautionary measures to prevent an outbreak; and Tomes did not show that the Bureau could
not treat him if he got sick. The court also rejected Tomes’s contention that his rehabilitation,
strong family support, and apparently inequitable sentence were extraordinary and compelling
reasons for release. And for good measure, the court “also considered each of the 18 U.S.C.
§ 3553(a) factors” and found that they did not favor release either. (Id.) Tomes now appeals.
We review a district court’s denial of a compassionate release motion for abuse of
discretion. United States v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020). A district court’s
consideration of a compassionate release motion embraces three criteria: extraordinary and
compelling reasons for release; the § 3553(a) factors; and any applicable policy statements.
18 U.S.C. § 3582(c)(1)(A); see United States v. Jones, 980 F.3d 1098, 1107–08 (6th Cir. 2020).
And we can affirm a district court’s denial of a compassionate release motion based on the
No. 20-6056 United States v. Tomes Page 3
defendant’s failure to meet any one of those criteria. United States v. Elias, 984 F.3d 516, 519
(6th Cir. 2021); Ruffin, 978 F.3d at 1006.
“The passage of the First Step Act in 2018 expanded access to compassionate release by
allowing inmates to bring compassionate-release motions on their own behalf.” Elias, 984 F.3d
at 518. A district court deciding a defendant’s motion for compassionate release must do three
things before granting the motion. It must determine that “extraordinary and compelling reasons
warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). Likewise, it must also find that “such a
reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
Id. § 3582(c)(1)(A). And then the court may grant the motion after considering all relevant
sentencing factors listed in 18 U.S.C. § 3553(a). Id.; see also Jones, 980 F.3d at 1108. If the
court finds that the defendant fails at any one of these three steps, it need not address the others
before denying the motion. Elias, 984 F.3d at 519. And in considering and weighing the
§ 3582(c)(1)(A) criteria, “[t]he district court has substantial discretion.” Ruffin, 978 F.3d at
At first blush, this framework seems simple enough. But one snag has beleaguered courts
since the passage of the First Step Act. Before the Act’s passage in 2018, only the Director of
the Bureau of Prisons could move a district court to modify a defendant’s sentence. Id. at 1003.
Now, though, the Act allows for defendants themselves to do so. Id. at 1003–04. Yet the Act
still prompts district courts to consider “applicable policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3582(c)(1)(A). The problem is, the Sentencing Commission has not
updated its policy statement on compassionate release motions—U.S.S.G. § 1B1.13—since
Congress passed the First Step Act. Jones, 980 F3d at 1109. So § 1B1.13 still, by its terms,
applies only “[u]pon motion of the Director of the Bureau of Prisons.” U.S.S.G. § 1B1.13. In
other words, the guideline says nothing about defendant-initiated motions. Meanwhile,
commentary to § 1B1.13 limits what constitutes “extraordinary and compelling reasons” for
release to just four situations. See U.S.S.G. § 1B1.13 cmt. n.1. So the question became whether
a district court is limited to just those four situations when determining whether a defendant
No. 20-6056 United States v. Tomes Page 4
moving for compassionate release has shown extraordinary and compelling reasons for a
sentence reduction.
We have grappled with this issue in a series of recent cases. See Ruffin, 978 F.3d at
1006; Jones, 980 F.3d at 1101; Elias, 984 F.3d at 519. And in Elias, we concluded that
Ҥ 1B1.13 is not an applicable policy statement for compassionate-release motions brought
directly by inmates, and so district courts need not consider it when ruling on those motions.”
984 F.3d at 519 (emphasis added). Thus, “district courts are not bound by § 1B1.13 in defining
extraordinary and compelling reasons for release.” Id. at 521.
This all matters here because in denying Tomes’s motion, the district court believed that
“USSG § 1B1.13 limits the ‘extraordinary and compelling reasons’ for compassionate release to”
the four categories in the guideline’s application notes. (R. 250, Order at 1, PageID # 1758.)
That is no longer true. We have now held that § 1B1.13 is not an “applicable policy statement”
for defendant-filed motions for compassionate release. Elias, 984 F.3d at 519. And so the
district court erred when it constrained itself to the § 1B1.13 factors in determining whether
Tomes established “extraordinary and compelling reasons” for a sentence modification.
That is not to say, however, that the court’s error requires reversal. We have reversed a
district court’s denial of a defendant’s compassionate release motion when the court’s reliance
on § 1B1.13 was the sole reason for its denial. See, e.g., United States v. Sherwood, 986 F.3d
951, 953 (6th Cir. 2021) (“[W]here a district court relies on [§ 1B1.13] as the sole basis for
denying relief, we must remand the case for further consideration.”); United States v. Whited,
835 F. App’x 116, 117 (6th Cir. 2021) (reversing and remanding after “district court denied relief
on the sole ground that Whited failed to prove that he was not a danger to the community, [and]
1That is not to say a district court cannot permissively consider those four categories as part of its
discretionary inquiry into whether a case presents extraordinary and compelling reasons for release. Rather, the
court may not proceed as though § 1B1.13 constrains its analysis of what constitutes extraordinary and compelling
reasons for release. See Elias, 984 F.3d at 519–20. But because district courts are free “to define ‘extraordinary and
compelling’ on their own initiative,” id., they may look to § 1B1.13 as relevant, even if no longer binding. See
United States v. Byrd, --- F. App’x ----, No. 20-20470, 2021 WL 435105, at *2 (5th Cir. Feb. 8, 2021) (per curiam)
(affirming a denial of compassionate release after a court looked to § 1B1.13 as providing “helpful guidance” but
did not treat it “as the dispositive boundary of what may be judicially determined to be extraordinary and compelling
reasons for a sentence reduction.” (quoting United States v. Gonzalez, 819 F. App’x 283, 284 (5th Cir. 2020) (per
No. 20-6056 United States v. Tomes Page 5
its decision appear[ed] to rest exclusively on § 1B1.13(2)”). In these cases, the district courts did
not reference § 3553(a) at all as an independent basis for their denial of the compassionate
release motion.
But even if a district court wrongly constrains itself to § 1B1.13 to define extraordinary
and compelling reasons for release, we can still affirm if the court uses § 3553(a) as an
independent reason to deny relief. Thus, in Ruffin, 978 F.3d at 1008, we noted that “[e]ven if
Ruffin could prove that the district court mistakenly limited itself to the commentary’s list of
extraordinary and compelling reasons, that legal conclusion would not entitle him to a reversal.”
That was because the court “alternatively denied Ruffin relief based on a discretionary balancing
of the § 3553(a) factors.” Id.; see also United States Sorrell, --- F. App’x ----, No. 20-1832,
2021 WL 807867 ------, at *2 (6th Cir. Mar. 3, 2021) (“[B]ecause the district court also explained
that it would deny relief based on its weighing of the § 3553(a) factors, its application of
§ 1B1.13 does not require reversal.”).
This all flows from the statutory scheme. Before a district court can grant a defendant’s
motion for compassionate release, it must find that the defendant satisfies all three of
§ 3582(c)(1)(A)’s prerequisites. 18 U.S.C. § 3582(c)(1)(A); see Jones, 980 F.3d at 1108. So
“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. And for that reason we have said repeatedly that we can affirm a court’s denial of a
defendant’s compassionate release motion based on the court’s consideration of the § 3553(a)
factors alone. See id.; Ruffin, 978 F.3d at 1008.
We do so here. The district court denied Tomes’s motion “after complete review” of the
motion and other briefing the court ordered. (R. 250, Order at 1, PageID # 1758.) The court
noted that it had “considered each of the 18 U.S.C. § 3553(a) factors,” and a sentence
modification “would not reflect the seriousness of the crime, deter criminal activity, or protect
the public.” (R. 250, Order at 2, PageID # 1759.) Neither did the remaining § 3553(a) factors
favor release. So even though the district court incorrectly predicted how we would come to
No. 20-6056 United States v. Tomes Page 6
understand the interplay between the First Step Act and the current § 1B1.13, it still denied
Tomes’s motion based on its alternative weighing of the § 3553(a) factors.2
We spot no abuse of discretion in the court’s doing so. Tomes and his associates dealt in
large quantities of various drugs, including methamphetamine, heroin, cocaine, and marijuana.
And Tomes did so while armed, despite his status as a felon. Likewise, Tomes laundered tens of
thousands of dollars, fruits of his illegal trade. So releasing Tomes after he served just a few
years of a twenty-year sentence would not “reflect the seriousness of the offense.” 18 U.S.C.
§ 3553(a)(2)(A). And it was not an abuse of discretion for the court to find that an armed felon
involved in a complex drug distribution scheme might still pose a danger to the public, despite
Tomes’s protestation that he has been rehabilitated. Nor was it an abuse of discretion for the
court to reason that a defendant with a rap sheet like Tomes’s might still pose a risk to the public
if he was released. And finally, it was not an abuse of discretion for the district court to note that
Tomes’s release would not deter criminal activity—indeed, quite the opposite, it could put
criminals on notice that they can commit serious crimes and serve only a few years in prison for
Tomes’s arguments to the contrary are unpersuasive. He says he has chronic asthma,
which increases his risk of serious illness from COVID-19. But Tomes “did not provide any
records in [his] motion to support that [he] has” chronic asthma. Elias, 984 F.3d at 520. All he
provided were a couple of letters from his parents. So the “district court could have denied
[Tomes’s] motion for compassionate release on this basis.” Id. Likewise, Tomes’s contention
that the BOP cannot handle COVID-19 outbreaks does not persuade us either. See Elias,
984 F.3d at 521 (“It was not an abuse of discretion for the district court to conclude that
speculation that COVID-19 could spread to FPC Alderson was insufficient to justify Elias’s
2Although the district court confined its § 3553(a) analysis to just a single paragraph, that was enough.
Indeed, we have affirmed orders with less. See United States v. Navarro, 986 F.3d 668, 669 (6th Cir. 2021)
(affirming form order denial of a compassionate release motion). And given the simplicity of the case, the district
court’s acknowledgement of Tomes’s arguments, its consideration of the § 3553(a) factors, and the intuitive reason
for the court’s denial of Tomes’s motion, “the judge’s explanation . . . fell within the scope of the lawful
professional judgment that the law confers upon the sentencing judge.” United States v. Chavez-Meza, 138 S. Ct.
1959, 1967–68 (2018).
No. 20-6056 United States v. Tomes Page 7
One last point. Tomes says he should receive compassionate release because if he were
sentenced today for the same crime, he would not have gotten the sentence he did. The district
court noted that § 3582(c)(1)(A) was not an appropriate vehicle for Tomes to attack his sentence.
Tomes says this was error. And he points out that before the First Step Act, a violation of
21 U.S.C. § 841(b)(1)(A) (one of the statutes to which Tomes pled guilty to violating) carried a
mandatory minimum sentence of twenty years if the defendant had a prior conviction for a
“felony drug offense.” See 21 U.S.C. § 841(b)(1)(A) (pre-2018 version). Section 401 of the
First Step Act, however, amended § 841, and it now imposes a shorter mandatory minimum of
fifteen years, and only when the prior offense was a “serious drug felony.” Id. (current version).
Tomes argues that his prior state convictions for dealing in cocaine and trafficking in a
controlled substance do not qualify as “serious drug felonies.” Thus, the mandatory floor no
longer applies to him, and even if it did, it is shorter now than it was when the district court
sentenced him.
Tomes’s argument fails. The First Step Act explicitly says that the amendment to which
Tomes refers—§ 401—applies “only where ‘a sentence for the offense has not been imposed as
of [the] date of [the Act’s] enactment.” United States v. Wiseman, 932 F.3d 411, 417 (6th Cir.
2019) (quoting First Step Act of 2018, Pub. L. No. 115-391, § 401(c), 132 Stat. 5221). The
district court sentenced Tomes on June 7, 2018. The First Step Act’s effective date is December
21, 2018. Wiseman, 932 F.3d at 417. Tomes’s sentence had therefore been imposed as of the
Act’s enactment, making § 401 inapplicable. Id.; see also United States v. Richardson, 948 F.3d
733, 748 (6th Cir. 2018) (“Congress has, in essence, drawn a line in the sand. Defendants
sentenced after December 21, 2018, may benefit from Congress’s amendment to
§ [841(b)(1)(A)], but defendants sentenced before that date cannot.”). And we will not render
§ 401(c) useless by using § 3582(c)(1)(A) as an end run around Congress’s careful effort to limit
the retroactivity of the First Step Act’s reforms.

Outcome: We AFFIRM the district court’s denial of Tomes’s motion for compassionate release

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