Fifth Circuit sends denied release request back (2021)

Originally published May 3, 2021. Statements about the law were updated in October 2026; the box below gives today’s rules.

What the law says now (October 2026). A federal judge can reduce a sentence for “extraordinary and compelling” reasons (reasons that are especially unusual and convincing). You must first ask the warden in writing. You can file in court 30 days after the warden gets the request, or sooner if you finish the Bureau of Prisons’ appeals (18 U.S.C. § 3582(c)(1)(A)). The judge also weighs the sentencing factors in 18 U.S.C. § 3553(a). See who may seek compassionate release.

Changes in sentencing law. In Rutherford v. United States (May 28, 2026), the Supreme Court held that when Congress makes a sentencing change non-retroactive (meaning it does not apply to people already sentenced), such as the First Step Act’s end of “stacked” § 924(c) sentences, the gap between an old sentence and today’s sentence cannot be an “extraordinary and compelling” reason, alone or combined with other reasons. Some older posts here describe court wins on that theory; those wins are history, not today’s law.
COVID-19 and outbreaks. Today a court looks at whether the prison is affected, or at imminent risk of being affected, by an ongoing infectious disease outbreak or public health emergency, and whether the person faces a higher risk of severe illness or death that cannot be reduced in time (U.S.S.G. § 1B1.13(b)(1)(D)).
The Sentencing Commission’s policy statement. Since November 1, 2023, U.S.S.G. § 1B1.13 applies to motions filed by prisoners as well as by the Bureau of Prisons, and a reduction must be consistent with it (18 U.S.C. § 3582(c)(1)(A)). Posts from 2020–2023 that say courts were “not bound” by it describe the law before that date. Rutherford (2026) held the policy statement invalid to the extent it lets a non-retroactive change in law count as a reason.

In April 2021, the federal appeals court for the Fifth Circuit threw out a lower court’s denial of Fred Cooper’s compassionate release motion. The lower court had refused to decide whether his reasons were “extraordinary and compelling.” The appeals court sent the case back so the judge could take a fresh look.

5ht circuit compassionate release

United States v. Cooper

United States Court of Appeals for the Fifth Circuit

2021 U.S. App. LEXIS 12712

Mr. Cooper’s sentence

In 2010, a jury convicted Fred Joseph Cooper of two counts of possession with intent to distribute cocaine and cocaine base, two counts of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm by a felon.

In 2011, the district court sentenced him to 481 months in prison. That included 121 months for the drug counts, plus back-to-back sentences of 5 years for the first firearms count and 25 years for the second. He also received a total of 8 years of supervised release (supervision by a probation officer after prison).

Why he asked for release

In April 2020, Mr. Cooper filed a motion for compassionate release. He said the COVID-19 pandemic put him at greater risk of death because he was 49 and had diabetes, obesity, high blood pressure, and breathing problems.

He also pointed out that, because of changes made by the First Step Act, his sentence would be shorter if he were sentenced today.

Why the district court said no

On September 4, 2020, the district court denied his request. It noted that he had served less than 50% of his sentence. It said his age did not put him at higher COVID risk, and it could not confirm his breathing problems.

The court agreed that if Mr. Cooper were sentenced today, his sentence would be much lower: a 10-year mandatory back-to-back sentence instead of the 30 years he received. But at the time, the court said the First Step Act change is not retroactive (it doesn’t apply to older cases), so it was not an “extraordinary and compelling reason” for release.

In the end, the court said the Sentencing Commission had not defined clearly enough what counts as “compelling and extraordinary circumstances,” so it could not decide the question. It denied the motion. It said Mr. Cooper could file again if “the Fifth Circuit, or the Sentencing Commission clarifies the scope of a court’s discretion and the meaning of ‘extraordinary and compelling’ reasons for a sentence reduction under the First Step Act.”

What the Fifth Circuit decided

Mr. Cooper appealed. He argued that the district court made a legal mistake by refusing to decide whether he had an “extraordinary and compelling reason” for a shorter sentence. As the district court itself said, that question was unsettled when it denied his motion. Since then, the Fifth Circuit has resolved it in Mr. Cooper’s favor.

After reviewing other cases, the Fifth Circuit decided to vacate and remand. That means it threw out the decision and sent the case back to the lower court to decide again, using the appeals court’s rulings as a guide.

On remand, the district court has the discretion to consider how much time Mr. Cooper has served in light of any extraordinary or compelling reasons. That could open the door to a ruling in favor of release. Time will tell.

US_APP_CA5_20-20485_PUBLISHED_OPINION_FILED_20_20485_Vacated_and_Remanded

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