We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
THINGS WE DIDN’T SEE COMING JUST GOT WORSE
After the First Step Act passed and prisoners could file their own 18 USC § 3582(c)(1)(A) compassionate release motions, the 2nd and 4th Circuits led the nation in agreeing that people with overly long sentences due to stacked § 924(c) convictions (for using or carrying a gun during a drug or violent crime) could get relief.
Before First Step, someone with three § 924(c) counts would get a minimum of five years added on for the first count and stacked 25-year sentences added for each of the next two counts. If Danny Doper carried a gun while selling meth three times over a three-day period, the law required that he get a mandatory 55 years added on to whatever his drug sentence might be.
First Step corrected § 924(c) to make clear that for a second § 924(c) count to carry 25 years minimum time, the second gun offense had to be committed after a conviction on the first gun offense. If convicted after the Act’s passage, Danny would still face three § 924(c) sentences of 5 years each, but 15 years was still way less than the 55 years he faced before.
Three circuits disagreed that courts could on their own find First Step’s change in § 924(c) – which Congress did not make retroactive – as an extraordinary and compelling reason for a compassionate release. But when the Sentencing Commission amended its compassionate release policy statement to add Guideline § 1B1.13(b)(6) – in November 2023, we thought it had solved the debate by specifically providing that a non-retroactive change in the law – along with some other factors (like having served 10 years and having a grossly disparate sentence) – could be a basis for a compassionate release.
We didn’t see the government’s onslaught coming. The Dept of Justice immediately argued that the new Guideline policy statement exceeded the USSC’s authority. Only the 3rd Circuit had agreed with this position until last week, when in a 2-1 opinion, the 7th held that USSG § 1B1.13(b)(6) exceeded USSC authority by effectively making First Step’s nonretroactive change in § 924(c) retroactive.
“When Congress explicitly delegates to an agency the authority to interpret a statute, the agency’s interpretation supersedes the court’s unless the agency’s interpretation exceeds the scope of authority that Congress explicitly delegated,” the Circuit said. “Here, Congress explicitly delegated to the Commission authority to interpret extraordinary and compelling under § 3582(c)(1)(A)… But because the Commission exceeded the scope of its authority, we do not defer to its policy statement and instead follow our own interpretation.”
The margin of the Commission’s defeat was razor-thin. One of the three judges dissented, and another only reluctantly became part of the 2-1 majority, saying that “the doctrines of stare decisis and precedent require that I concur in the judgment and opinion of the court.”
The 7th Circuit admitted that courts of appeal were divided on the issue, saying that “[p]erhaps the Supreme Court will eventually resolve the split, but for now we will follow our precedent and join the only other court of appeals [the 3d Circuit] to so far resolve the battle of competing interpretations.”
You can bet on it.
United States v. Black, Case No. 24-1191, 2025 U.S.App. LEXIS 5634 (7th Cir. March 11, 2025)
– Thomas L. Root