We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IF THIS IS MONDAY, ‘YES, YOU CAN…’ IF IT’S TUESDAY, ‘NO, YOU CAN’T’

Confusion reigns in the Queen City, nestled on the banks of the Ohio River (and home of the United States Court of Appeals for the Sixth Circuit, a few professional sports teams, and some pretty good brewskis).

Four weeks ago, I reported that the 6th Circuit had decided in United States v. Owens that despite two contrary Circuit decisions – United States v. Tomes and United States v. Wills – a prisoner with stacked 18 USC § 924 sentences could rely on First Step Act changes in 18 USC § 924 as one of several extraordinary and compelling reasons for a compassionate release sentence reduction.

But a week ago, a different 6th Circuit panel said despite Owens, the deal is off. In a 2-1 decision, the Court ruled that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” However, if movants have some other fact that is an extraordinary and compelling reason for a sentence reduction, “they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.”

Ohio State University law professor Doug Berman, writing in his Sentencing Policy and Law blog, called “the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.”

United States v. Jarvis, Case No. 20-3912, 2021 U.S. App. LEXIS 16596 (6th Cir. June 3, 2021)

Sentencing Law and Policy, Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) (June 3, 2021)

– Thomas L. Root