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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 24-CO-295 & 24-CO-296
WILLIAM D. DAVIDSON, A.K.A. MUHAYMIN MUHAMMAD, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (1982-FEL-006288 & 1982-FEL-007489)
(Hon. Craig Iscoe, Motions Judge) (Argued September 23, 2025 Decided January 22, 2026)
Areeba Jibril, Public Defender Service, with whom Mikel-Meredith Weidman and Jaclyn Frankfurt, Public Defender Service, were on the briefs, for appellant.
Katelyn B. Benton, Assistant United States Attorney, with whom Edward R. Martin, Jr., United States Attorney at the time the brief was filed, and Chrisellen R. Kolb and Christopher Macomber, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and SHANKER, Associate Judges. 2
BLACKBURNE-RIGSBY, Chief Judge: Appellant Muhaymin Shabazz
Muhammad 1 appeals the trial court’s denial of his motion to reduce his sentence
under the Incarceration Reduction Amendment Act (IRRA), D.C. Code § 24-403.03,
which he filed on July 7, 2023. Mr. Muhammad has served forty-three years of his
sixty-five years to life sentence for a series of violent crimes he committed over a
four-week period in 1982, including first-degree murder, rape, and armed robbery,
when Mr. Muhammad was eighteen years old. Mr. Muhammad challenges the trial
court’s finding of his current dangerousness under the IRAA, particularly its reliance
on his failure to complete sex offender treatment, which the Bureau of Prisons (BOP)
never determined he needed, and the court’s reliance on his 2016 infraction for
“stalking” two female prison employees. Additionally, Mr. Muhammad contends
that the trial court erred in holding him to an elevated burden of proof to “guarantee”
his non-dangerousness as opposed to the IRAA’s preponderance of the evidence
standard. 2 For the reasons discussed below, we vacate the trial court’s decision and
remand for further proceedings consistent with this opinion.
1 Mr. Muhammad changed his name from William Davidson after his religious conversion. We refer to him by his current name. 2 Mr. Muhammad also argues that the trial court abused its discretion when it relied on factors set out in the D.C. Voluntary Sentencing Guidelines, including the nature and seriousness of the underlying offenses and principles of deterrence, in its interests of justice analysis. At oral argument, the government conceded that the 3
I. Underlying Offenses and Incarceration History
Mr. Muhammad’s actions in October and November of 1982 resulted in two
cases: (1) 1982 FEL 006288, involving the first-degree murder while armed of David
Ball on October 16, 1982, and (2) 1982 FEL 007489, involving five counts arising
from offenses committed against five victims between October 31 and November 8,
1982.3 Mr. Muhammad entered a global guilty plea resolving these two cases, which
included an Alford plea to the charge of manslaughter for the shooting and killing of
David Ball and guilty pleas for one count of first-degree murder, two counts of rape,
and one count of armed robbery. Mr. Muhammad contends that his criminal
behavior was caused by his drug use, particularly his use of PCP, noting that he had
no history of involvement in the criminal legal system prior to his arrest. Mr.
Muhammad received an aggregate sentence of sixty-five years to life.
During his forty-three years in prison, Mr. Muhammad has completed more
than 1,600 hours of educational programming, most notably drug education courses,
a drug abuse treatment program, and Narcotics Anonymous and Alcoholics
Anonymous classes. Mr. Muhammad was not referred to nor did he take any sex
trial court erred in its analysis based on our opinions in Doe v. United States, 333 A.3d 893 (D.C. 2025), and Riley v. United States, 338 A.3d 1 (D.C. 2025). 3 In 1982 FEL 007489, Mr. Muhammad was indicted on forty-five different counts for his involvement in over ten separate criminal events, including kidnapping, rape, and robbery, but those were dropped as part of his plea deal. 4
offender treatment courses; however, he was placed on a waitlist for sexual
rehabilitative training in December of 2015—although the record is unclear as to
why or how. 4 In addition to personal development courses, Mr. Muhammad also
obtained his GED and took business-related and financial courses, while maintaining
employment, at various points, in food services, mechanical work, paint shop work,
laundry services, and barbering. Mr. Muhammad also “found his faith” and built
community within his faith at a number of facilities. Using the Prisoner Assessment
Tool Targeting Estimated Risks and Needs (PATTERN), BOP determined that Mr.
Muhammad presented a “minimum” level of dangerous recidivism as of 2023.
During his forty-three years of incarceration, Mr. Muhammad has accrued
twenty-seven disciplinary infractions, the most recent of which was in 2017. Only
one of these infractions was for violence—a Level 200 fighting infraction from
1999—which Mr. Muhammad contends was for action he took in self-defense. He
4 At the evidentiary hearing, Mr. Muhammad’s counsel stated that “[Mr. Muhammad] has put himself on waitlist and has remained on that waitlist,” but she did not explain the circumstances surrounding this belated decision to seek sex offender treatment. According to Mr. Muhammad’s presentence report, he was recommended to “be under the care of a psychologist for what is clearly disturbance in his behavior that merits professional care,” and his treatment plan included that he “undergo psychological counseling” in addition to drug abuse therapy. It is unclear if Mr. Muhammad ever received this recommended psychological counseling, as it is not mentioned in his initial IRAA motion, his brief, or elsewhere in the record. 5
has never received a Level 100 infraction, which is the highest level of sanction in
the BOP.
One infraction, issued December 12, 2016, for “stalking,” involved Mr.
Muhammad’s behavior towards a female Cook Supervisor from September 7 to
October 13, 2016, during which time he filed five reports accusing her of stealing
money, not preparing his meals properly, and lying to him, while calling her
derogatory names. These reports caused the employee to feel “very upset” and that
“her safety would be in danger if [Mr. Muhammad] is released to general
population,” as characterized in the investigating officer’s report. This infraction
followed an earlier incident, in which Mr. Muhammad received “verbal counseling”
for “inappropriate emails” that he sent to a female Reentry Affairs Coordinator,
beginning on May 17, 2016, addressing her as “Dear Beloved” and informing her
how she needed to do her job. After receiving the Coordinator’s response to these
emails, Mr. Muhammad complained to another staff member, stating: “I have two
life sentences, I don’t give a damn about slapping an officer or what’s going to
happen to me.” 5 Following this incident, Mr. Muhammad received verbal
5 On a later page in the DHO Report, this line is instead quoted as: “I have two life sentences. I can give a damn about slapping an officer or what’s going to happen to me.” As the trial court and parties consistently rely on the “I don’t give a damn” version, we do so here as well. 6
counseling for “behavior exhibited around female staff which harasses, alarms, and
annoys staff.”
The Discipline Hearing Officer (DHO) Report, which followed both the
verbal counseling and the formal infraction for Mr. Muhammad’s harassment of the
Coordinator and the Cook Supervisor, respectively, concluded that “there is
sufficient evidence of a threat to the safety of staff . . . based on [Mr. Muhammad’s]
extensive history of taking hostages, rape and threatening staff, specifically female
staff.” The report also referenced Mr. Muhammad being placed in the Special
Housing Unit “for his constant behavior towards female staff.”
II. IRAA Motion Hearing
The trial court held an evidentiary hearing on Mr. Muhammad’s motion on
December 19, 2023. At the hearing, Mr. Muhammad sought to emphasize his
maturity, rehabilitation, and lack of dangerousness by referencing his long length of
imprisonment, his young age at the time of his offenses, his record of nonviolence
while incarcerated, his decades of sobriety, his faith, and his remorse for the offenses
he committed at age eighteen. He also pointed to his “minimum” PATTERN score
and a letter from an expert psychologist, Dr. Shauna Keller, confirming Mr.
Muhammad’s low risk of sexual recidivism. Mr. Muhammad connected the 7
educational programming and UNICOR employment programming he completed in
prison with his hopes of working as a barber following his release.
In discussing the 2016 “stalking” infraction during the hearing, Mr.
Muhammad’s counsel took issue with the trial court “cherry picking” Mr.
Muhammad’s conduct to find a connection between those incidents and his
underlying offenses, clarifying that there was nothing sexual in the “stalking”
incidents with staff. 6 Moreover, counsel stated that the stalking infraction was the
culmination of Mr. Muhammad filing a number of BP-29s, which are grievances
towards staff, and that “[t]hey happen to be women in this case . . . however, there’s
really no indication that it was because they were women or that they were targeted
other than that they happened to be in particular roles where [he] was having issues
or perceived injustices with them doing their job.” Counsel also noted that “female
staff in the BOP represent about 30 percent of the population” and indicated that
these situations were not the exclusive times that Mr. Muhammad had worked with
staff in the BOP, including women. Additionally, counsel reiterated that Mr.
Muhammad had received positive reviews from other staff, including his counselor
6 Mr. Muhammad also addressed the trial court’s concerns about a separate infraction for making a sexual proposal to staff, indicating that the accusation was misattributed to Mr. Muhammad, as confirmed by the reporting officer. The government did not contest this assertion. 8
at a recent facility who indicated that Mr. Muhammad was “someone that [the staff]
turned to to help resolve conflicts.”
Mr. Muhammad’s counsel argued that sex offender treatment is not
appropriate for all persons convicted of decades-old sex offenses and referenced as
support Dr. Keller’s conclusion in her report that other types of programming were
more beneficial for his current situation. Counsel also pointed out that Mr.
Muhammad’s January 2023 individualized plan, created by BOP, did not include
sex offender treatment programming as a goal.
Mr. Muhammad’s counsel also presented his reentry plan, which included
temporary and transitional housing opportunities in the District for at least a year
and a barbering program that he planned to take, as well as other vocational job
training opportunities. Mr. Muhammad was present but did not testify at the hearing.
Instead, his counsel read extensively from a letter that Mr. Muhammad wrote to the
court, in which he stated his desire to have a positive impact on his community and
engage with youth in some unspecified way.
The trial court denied Mr. Muhammad’s IRAA motion in a written order,
finding that Mr. Muhammad had not satisfied his burden of demonstrating that he is
no longer a danger to the community and that the interests of justice warrant a
sentence reduction. 9
III. Discussion
A. Standard of Review
“This court ‘review[s] the denial of an IRAA motion for abuse of discretion,
but consider[s] questions of statutory construction de novo.”’ Doe v. United States,
333 A.3d 893, 898 (D.C. 2025) (alterations in original) (citing Bishop v. United
States, 310 A.3d 629, 641 (D.C. 2024)). In reviewing for abuse of discretion, we
“must determine whether the decision maker failed to consider a relevant factor,
whether [the decision maker] relied upon an improper factor, and whether the
reasons given reasonably support the conclusion.” Id. (citation modified). “The
abuse-of-discretion standard includes review—generally described as de novo
review—to determine that the discretion was not guided by erroneous legal
conclusions.” Id. (citation modified) (quoting Welch v. United States, 319 A.3d 971,
975 (D.C. 2024)).
B. IRAA Statutory Structure
The D.C. Council enacted the IRAA in 2016 to “ensur[e] that all juvenile
offenders serving lengthy prison terms have a realistic, meaningful opportunity to
obtain release based on their diminished culpability and their maturation and
rehabilitation.” Doe, 333 A.3d at 898 (quoting Williams v. United States, 205 A.3d 10
837, 846 (D.C. 2019)). For an IRAA motion, “[t]he burden of proof is on the
movant.” See Doe, 333 A.3d at 900 (quoting Bishop, 310 A.3d at 636). Pursuant to
the IRAA, a trial court “shall reduce a term of imprisonment imposed upon a
defendant for an offense committed before the defendant’s 25th birthday” if: (1)
certain threshold requirements, including the length of time served, are met, and (2)
after considering eleven factors, the court finds that “the defendant is not a danger
to the safety of any person or the community and that the interests of justice warrant
a sentence modification.” D.C. Code § 24-403.03(a); see Doe, 333 A.3d at 899. The
eleven factors that the court “shall consider” are:
(1) The defendant’s age at the time of the offense;
(2) The history and characteristics of the defendant;
(3) Whether the defendant has substantially complied with the rules of the institution to which the defendant has been confined, and whether the defendant has completed any educational, vocational, or other program, where available;
(4) Any report or recommendation received from the United States Attorney;
(5) Whether the defendant has demonstrated maturity, rehabilitation, and a fitness to reenter society sufficient to justify a sentence reduction;
(6) Any statement, provided orally or in writing, provided pursuant to § 23-1904 or 18 U.S.C. § 3771 by a victim of the offense for which the defendant is imprisoned, or by a family member of the victim if the victim is deceased; 11
(7) Any reports of physical, mental, or psychiatric examinations of the defendant conducted by licensed health care professionals;
(8) The defendant’s family and community circumstances at the time of the offense, including any history of abuse, trauma, or involvement in the child welfare system;
(9) The extent of the defendant’s role in the offense and whether and to what extent another person was involved in the offense;
(10) The diminished culpability of juveniles and persons under age 25, as compared to that of older adults, and the hallmark features of youth, including immaturity, impetuosity, and failure to appreciate risks and consequences, which counsel against sentencing them to lengthy terms in prison, despite the brutality or cold- blooded nature of any particular crime, and the defendant’s personal circumstances that support an aging out of crime; and
(11) Any other information the court deems relevant to its decision.
D.C. Code § 24-403.03(c).
Notably, the Council amended the IRAA in 2019 to remove “the nature of the
offense” as a standalone consideration under factor two; however, the Council
emphasized that courts still “consider the facts and circumstances surrounding the
underlying offense through their review of the various factors and evidence.” Report
on Bill No. 23-0127 before the Committee on the Judiciary and Public Safety,
Council of the District of Columbia, at 18-19 (Nov. 23, 2020). This court discussed 12
the implications of this removal in Doe, which we note was decided after the trial
court’s decision in this case. 333 A.3d at 900, 906-11.
C. Lack of Sex Offender Treatment
Mr. Muhammad raises three arguments as to how he believes the trial court
abused its discretion. We address each in turn. First, Mr. Muhammad argues that
the trial court erred in finding that he was still dangerous because it based its ruling,
in large part, on his lack of sex offender treatment and discounted Dr. Keller’s expert
opinion and other evidence indicating he did not require sex offender treatment. We
agree that the trial court’s underlying reliance on Mr. Muhammad’s lack of sex
offender treatment in its evaluation of his current dangerousness was not given the
explanation it requires. We hold that, as the record stands, with only the
unchallenged expert testimony of Dr. Keller, indicating that he did not need sex
offender treatment, but that he instead benefitted from other treatment he received,
there was an insufficient basis for the trial court to find that Mr. Muhammad needed
sex offender treatment in order to prove his non-dangerousness under the IRAA
factors.
The trial court focused its inquiry on whether Mr. Muhammad had sufficiently
shown that he had sought sex offender treatment or, in the alternative, whether he
had sufficiently explained why it was not available to him at any point in his 13
incarceration. Notwithstanding the lack of evidence in the record, the trial court
concluded that Mr. Muhammad “provided no evidence that, until quite recently, he
ever sought to enroll in a sex offender program.” 7
Mr. Muhammad relies on Bishop for the proposition that a lack of
programming opportunities might excuse programming shortcomings, and
“mandate[] a different calculus”—referring to (c)(3)’s “where available” language.
Bishop, 310 A.3d at 642, n.7. Mr. Muhammad contends that a lack of evidence as
to whether the programming was unavailable to him from 1982 to 2015 should be
read in his favor that it was not available, just as it was not available from 2015 to
the present. The government, meanwhile, argues that a lack of evidence of its
unavailability should be read in favor of its presumed availability. Mr. Muhammad
further asserts that his “pre-2015 state of mind about sex offender treatment was not
relevant to [his] current dangerousness.” 8 Rather than addressing the factual
question of availability, the trial court found that both (c)(3) and (c)(5) weighed
7 The trial court did not seek to enlarge the record on this point, which it had the ability to do under Section 24-403.03(b)(2), at its discretion. Such enlargement may well have provided additional information indicating that Mr. Muhammad needed sex offender treatment and that it was made available to him, but, in its absence, we cannot speculate. 8 Mr. Muhammad is quoted in Dr. Keller’s report as professing that he “do[es]n’t need [mental health] treatment,” while claiming that he “could benefit from whatever [program] they have to offer.” 14
against release because Mr. Muhammad could “show[] no effort to enroll in sex-
offender treatment from 1982 to 2015, shortly before he was charged with stalking.”
Although Mr. Muhammad also argued that the question of the treatment’s
availability and his own efforts to enroll in it were essentially moot because he did
not require sex offender treatment in the first place, the trial court was unpersuaded
by Mr. Muhammad’s BOP individualized programming plan, PATTERN score, and
Dr. Keller’s report to the extent that they indicated that sex offender treatment was
not necessary for his rehabilitation under (c)(3) or that they demonstrated his
maturity, rehabilitation, and fitness to reenter society, under (c)(5).
“[T]he trial court [i]s under no obligation to accept [an expert’s] testimony.”
Henny v. United States, 321 A.3d 621, 631 (D.C. 2024) (citing United States v.
McNeil, 434 F.2d 502, 504 (D.C. Cir. 1970) (“The weight to be given any expert
opinion admitted in evidence . . . is exclusively for the [factfinder].”)). And “[w]here
there are two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Johnson v. United States, 232 A.3d 156, 168
(D.C. 2020) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574
(1985)). But as in Henny, the trial court’s disinclination to find that Dr. Keller’s
assessment sufficiently showed that Mr. Muhammad did not require sex offender
treatment reflects a “failure [by the court] to make sufficient findings . . . on the 15
weight given to an expert’s testimony.” Henny, 321 A.3d at 631 (internal quotation
marks omitted) (quoting A.C. v. N.W., 160 A.3d 509, 518 n.13 (D.C. 2017)).
The trial court acknowledged that Dr. Keller concluded that “participation in
sex offender-specific treatment is not warranted in Mr. Muhammad’s case,” but it
indicated its concern that Dr. Keller did not explain to the court’s satisfaction how
she came to this conclusion. While Dr. Keller’s report lays out in some detail how
she came to score Mr. Muhammad on two assessment tools, which resulted in his
receiving low recidivism scores, the trial court took issue specifically with her
conclusion that “[Mr. Muhammad’s] prominent risk factors would be better
addressed through his participation in mental health or re-entry support groups” as
opposed to sex offender-specific treatment. The court also expressed concern that
Dr. Keller was not called as a witness by either party. However, the trial court did
find that Dr. Keller’s forensic mental health evaluation of Mr. Muhammad’s risk of
recidivism “weigh[ed] slightly in favor of granting the [IRAA] motion” under factor
(c)(7), despite her absence at the evidentiary hearing. Her absence, according to the
trial court, meant that “the Court did not have the opportunity to inquire of Dr. Keller
about how she came to her conclusions that Mr. Muhammad, who was indicted on
45 charges related to the stalking and sexual assaulting of women, and especially
who again was accused of stalking two women in 2016, would [not] benefit from
this type of [sex offender] treatment.” Additionally, the trial court was concerned 16
that Dr. Keller’s conclusions were based solely on a two-hour telephone
conversation with Mr. Muhammad. 9 The trial court concluded that Dr. Keller’s
report “does not demonstrate to the Court that Mr. Muhammad would not be a danger
upon release.”
We see no support in the record for the trial court’s dangerousness finding
based on its assumption that Mr. Muhammad needed sex offender treatment. The
court made repeated comments to that effect, stating, for example, that “[s]ex
offender treatment can reduce an inmate’s likelihood of reoffending” and noting that
“Mr. Muhammad’s lack of plans for sex offender treatment, and his failure even to
recognize the need for such treatment, is not likely to provide Mr. Muhammad the
support he needs to avoid reoffending if released.” On the record before us, there is
insufficient basis to find that Mr. Muhammad needed sex offender treatment in order
to prove his non-dangerousness under the IRAA factors. See Doe, 333 A.3d at 898.
D. The 2016 “Stalking” Infraction
Mr. Muhammad next argues that the trial court erroneously relied on his 2016
stalking infraction and its surrounding circumstances in evaluating his current
9 The trial court stated that Dr. Keller’s conclusions are “based solely on a two-hour telephone conversation with Mr. Muhammad.” However, while Dr. Keller had only one two-hour conversation, the report lists fourteen document-based sources of information that Dr. Keller also reviewed in making her assessment. 17
dangerousness under (c)(3) and (c)(5). The court, he contends, “dr[e]w an
unsubstantiated analogy between the 2016 infraction and Mr. Muhammad’s
underlying convictions,” based on the name of the infraction—“stalking,” without
focusing on the benign nature of the infraction. Mr. Muhammad asserts that the
infraction was based on his repeated filing of administrative grievances and did not
relate to any sexual, violent, or physical conduct by Mr. Muhammad against staff.
The fact that this conduct was related to complaints filed by two women staff
members is, according to Mr. Muhammad, pure chance. Moreover, Mr. Muhammad
argued that this infraction occurred more than seven years ago and was accounted
for in his most recent “minimum” PATTERN score and Dr. Keller’s assessment.
We agree that the trial court incorrectly analogized this infraction to Mr.
Muhammad’s prior crimes. At the IRAA hearing, the judge observed that “when I
see stalking it seems to me in some ways similar to following somebody in a vehicle,
smashing into a vehicle and then sexually assaulting them,” before asking for
clarification concerning whether there was a sexual component to the “stalking”
infraction. Appellant’s counsel was permitted to read into the record the full
description of the infraction as detailed by the BOP, that is, “stalking another person
through repeated behaviors which harasses, alarms, or annoys the person after 18
having been previously warned to stop such conduct.” 10 Despite this clarification,
the trial court continued to perceive a connection between the infraction and Mr.
Muhammad’s convictions for rape and murder, which, it noted, began with the
stalking of victims, specifically women driving alone in D.C. In its review of the
DHO Report, the trial court paid special attention to: (1) the derogatory language
used by Mr. Muhammad in emails sent to both female staff members, (2) Mr.
Muhammad’s comment that he “do[es]n’t give a damn about slapping an officer or
what’s going to happen to me” following the first incident, (3) the extended duration
of both instances of the “stalking” behavior over the course of several months, as
opposed to deriving from a single outburst, (4) the fear of physical attack that Mr.
Muhammad’s actions instilled in the victim of the second incident, and (5) the fact
that these events occurred approximately thirty-four years into Mr. Muhammad’s
incarceration when he was about fifty-two years old. However, the trial court did
not acknowledge that the basis for the infraction was Mr. Muhammad’s repeated
filing of administrative complaints, as opposed to physically stalking or attacking
the women employees, and ultimately concluded that “Mr. Muhammad’s infraction
10 In addition to expounding on the “stalking” infraction, Mr. Muhammad’s counsel was also given the opportunity to address two other infractions that caused the trial court concern: a “sexual proposal” infraction and a “making threats of bodily harm” infraction. The trial court did not refer to these additional infractions in its opinion, nor did it question counsel’s explanations for why the infractions did not affect Mr. Muhammad’s dangerousness determination. 19
for ‘stalking,’ . . . raises significant concerns, especially in light of [his] convictions
for two rapes, one attempted rape, one first degree murder, and one armed robbery,
all of which he committed after sta[l]king the victims by driving on the beltway and
stalking women who were driving alone.” (Additionally, after discussing the
stalking infraction, the trial court noted “[f]urther” that “despite having been
convicted of raping two different women and attempting to rape another, Mr.
Muhammad has never completed any sex offender programming”; the trial court
elsewhere stated that “[t]he [c]ourt is concerned that Mr. Muhammad remains a
danger to the community due to his 2016 infraction for stalking two women and his
lack of sex offender treatment, even though he pleaded guilty to serious sex offenses
against five different women”; and the court commented at the hearing that “[the]
offenses that concern me are the infractions . . . for stalking, sexual proposals, and
threats and threatening bodily harm. Those are not Category 100 infractions, but they
are serious ones and they relate in many ways to the offenses . . . .”)
Because we are vacating and remanding on other grounds, we note that while
the trial court may permissibly consider this piece of Mr. Muhammad’s disciplinary
history in its analysis, such consideration should acknowledge the circumstances of
the infraction—a single, nonviolent, nonsexual infraction from 2016. 20
E. Standard of Proof
Finally, Mr. Muhammad argues that the trial court erroneously held him to a
heightened standard of proof to demonstrate his non-dangerousness. His argument
rests on three assertions: (1) that the trial court dismissed his “minimum” PATTERN
score because that score did not “guarantee” that he would reoffend, (2) that the trial
court dismissed Dr. Keller’s report because it was offered as a written submission
unsupported by live testimony, and (3) that the trial court dismissed Mr.
Muhammad’s letter to the court expressing his remorse because it was offered as a
written submission and not as live testimony. We are not persuaded by Mr.
Muhammad’s argument that the trial court applied an incorrect standard of proof.
Moreover, as we have now made clear in Welch, which was issued after the trial
court’s decision in this case, the correct standard under the IRAA is preponderance
of the evidence, 319 A.3d at 977, and trial courts are encouraged to expressly
acknowledge and employ this standard when making their rulings on IRAA motions.
Mr. Muhammad notes that the trial court’s opinion does not identify the
standard it is applying, which, he argues, prevents this court from presuming that the
correct standard was applied. Mr. Muhammad claims that while this court has not
decided the burden of proof by which an IRAA petitioner must establish non-
dangerousness, “there is no question that the burden is no higher than preponderance 21
of the evidence.” Mr. Muhammad bases his contention that the trial court applied a
standard higher than preponderance of the evidence on a single use of the word
“guarantee” in the trial court’s statement that “a PATTERN score is no guarantee of
how Mr. Muhammad will behave outside of prison.” The government contends this
was simply “an inartful use” that merely signifies the trial court’s reasoning that “the
PATTERN score alone (after discrediting Dr. Keller and Muhammad’s letter) did
not satisfy the defendant’s burden of establishing a lack of danger.”
In Welch, a similar question of standard of proof was presented to this court,
on the basis of the trial court’s assessment that Mr. Welch “ha[d] not reached ‘the
highest level of rehabilitation and maturity’” and on its description of his release
plan as “weak.” Welch, 319 A.3d at 977. There, as here, the trial court did not
specify the evidentiary standard it had applied, but both parties agreed that the
correct standard was preponderance of the evidence. Id. On appeal, we determined
that the trial court properly weighed the evidence and had not applied a higher
standard than preponderance of the evidence. Id.; see also Doe, 333 A.3d at 900 n.6
(“The preponderance-of-the-evidence standard is the default rule and generally
applies unless a statute specifies a different standard.” (citing Bailey v. United States,
251 A.3d 724, 729 (D.C. 2021) (per curiam) (applying a preponderance of the
evidence standard under the compassionate release statute))). Indeed, we held that
“[a]bsent any indication to the contrary, we presume that the trial judge knew the 22
proper standard of proof to apply and did in fact apply it.” Id. (quoting In re C.T.,
724 A.2d 590, 597 (D.C. 1999)).
Mr. Muhammad contends that his case is more similar to Bailey, a
compassionate release case, where we decided that the trial court had erroneously
held the petitioner to a higher standard than preponderance of the evidence. 251
A.3d at 730-31. In Bailey, as here and in Welch, the trial court did not specifically
identify the standard it was applying, and we concluded that the court had
“employ[ed] language arguably implying” that the standard was higher than
preponderance of the evidence. Id. at 730. However, what set Bailey apart was the
trial court’s repeated statements that it “must be confident” in Mr. Bailey’s non-
dangerousness, that it must “ensure that the record” demonstrated his non-
dangerousness, and that it must have “sufficient comfort” in its conclusion before
ordering his release. Id. As the trial court did not expressly articulate the controlling
standard and because no previous holding existed applying the preponderance
standard in this context, we could not “excuse [these] apparent deviations from that
standard as mere imprecisions.” Id.
The instant case is distinguishable from Bailey and more akin to Welch, where
the IRAA petitioner identified only two instances of language that he contended
demonstrated that the trial court required a higher burden of proof. Welch, 319 A.3d 23
at 977. We did not find these two instances of language that allegedly required a
higher standard to be persuasive and held that they were both “made in the context
of evaluating the evidence submitted by Mr. Welch as to specific factors, not
assessments of the weight of the evidence as a whole.” Id. Similarly, we do not find
that a single use of the word “guarantee” here is sufficient to overcome the
presumption that the trial court applied the correct standard. See Welch, 319 A.3d
at 977. Mr. Muhammad further argues that the trial court showed its reliance on a
higher burden of proof through its impermissible preference for spoken, as opposed
to written, testimony, even though the IRAA expressly permits the inclusion of
affidavits or other written material and does not require live testimony.
We are not convinced that references to outstanding questions of fact and
credibility are indicative of an elevated burden of proof. However, we note that in
considering whether Mr. Muhammad’s letter was sufficient to meet his burden of
demonstrating maturity, rehabilitation, and a fitness to reenter society, the trial court
appears to have penalized him for not testifying—after explicitly telling him he did
not need to do so—given its statement that “Mr. Muhammad’s decision not to testify
made it more difficult for the Court to assess whether his letter, which may have
been drafted or edited by others, was an accurate depiction of his feelings.” The trial
court, on remand, should consider the letter on its own terms for the information it
contains in weighing this factor. 24
IV. Conclusion
The trial court’s dangerousness finding is based on an unsubstantiated
assumption that Mr. Muhammad needed and failed to obtain sex offender treatment.
In the absence of support in the record for this assumption, we conclude that the trial
court failed to properly exercise its discretion. 11 As the government does not dispute
that this error was not harmless, we vacate and remand the case to the trial court to
reconduct its IRAA analysis consistent with this opinion. See Riley, 338 A.3d at 10;
see also Wheeler v. United States, 930 A.2d 232, 246 (D.C. 2007) (holding that
government has the burden of persuasion in harmless error analysis).
So ordered.
11 See Brooks v. United States, 993 A.2d 1090, 1093 (D.C. 2010) (“The trial court must make an informed choice drawn from a firm factual foundation.” (citation modified)). As the government conceded, we also conclude the trial court erred in its interests of justice analysis by relying on factors like the “seriousness of [Mr. Muhammad’s] offense” because they “were not only outside of what IRAA enumerates, but that run contrary to IRAA’s purpose.” Riley, 338 A.3d at 9.