In United States v. Fower, --- F.4th ---, No. 21-50007 (9th Cir. 2022), the Court held that compassionate relief is not available to defendants prior to incarceration.
After sentencing, but prior to surrender, Fower sought relief under 18 U.S.C. § 3582(c)(1)(A). The district court denied the motion, concluding that "compassionate relief is not available to a defendant not in custody."
The Ninth Circuit agreed. "[W]hen considering the text of the current iteration of the compassionate relief statute and the statute’s history, a convicted defendant must be incarcerated before he may seek such relief."
"Our holding does not mean that a district court is powerless to provide a semblance of compassionate relief in the normal exercise of its broad discretion. If the circumstances warrant, a district court may delay the imposition of sentence or extend the time to surrender to the BOP, as the district court did in this case."
