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8th CIRCUIT STILL DOESN’T GET COMPASSIONATE RELEASE

By now, everyone knows that last month a divided Sentencing Commission adopted a revised USSG § 1B1.13 that, as of November 1, will govern 18 USC § 3582(c)(1)(A) sentence reduction (compassionate release) motions. The USSC was unanimous on everything except the new § 1B1.13(b)(6), which directs that – in certain circumstances – “changes in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed…”

It’s not that hard to understand, even if it is controversial. But last week, the 8th Circuit misread the amendment like a first-year law student on his way to an ‘F’. (I employ the male gender here, because as I recall law school – admittedly a long time ago – the women law students never got ‘F’s).

Rodolfo Ramirez-Menendez is doing mandatory life for an § 851-enhanced drug conviction. He filed for compassionate release, arguing that although the 8th has previously held that “a non-retroactive change in law regarding sentencing… cannot contribute to a finding of ‘extraordinary and compelling reasons’ for grant of a compassionate release motion,” that holding had been overruled by Supreme Court in last year’s Concepcion v. United States decision.

The Circuit rejected Rodolfo’s argument but then notes the pending amendment to § 1B1.13. But after quoting key provisions of § 1B1.13(b)(6), the 8th mangles it badly, saying that “[i]t thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction… but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion.”

Not quite. Proposed § 1B1.13(b)(6) plainly states that, in certain circumstances, “changes in the law… may be considered in determining whether the defendant presents an extraordinary and compelling reason.”

Sorry, 8th Circuit. To paraphrase the late Daniel Patrick Moynihan, you’re entitled to your own opinion, but not your own facts. As Ohio State University law professor Douglas Berman wrote last week, “[T[he Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circumstances.”

United States v. Rodriguez-Mendez, Case No. 22-2399, 2023 U.S.App. LEXIS 9909 (8th Cir., April 25, 2023)

Concepcion v. United States, 142 S. Ct. 2389 (Supreme Court, 2022)

Sentencing Policy and the Law, Eighth Circuit panel seemingly misreads the US Sentencing Commission’s sentence reduction guideline amendment (April 26, 2023)

Sentencing Guidelines for United States Courts, 88 FR 28254 (May 3, 2023)

– Thomas L. Root