Tag Archives: (b)(6)

6th Circuit Holds Sentencing Commission Went Too Far On Compassionate Release – Update for April 28, 2025

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

6TH CIRCUIT STRAINS TO INVALIDATE COMPASSIONATE RELEASE CHANGE-IN-THE-LAW CATEGORY

dontthink220919A three-judge 6th Circuit panel took a wrecking ball to the Sentencing Commission’s compassionate release statute last week, joining the 3rd and 7th Circuits in invalidating the “extraordinary and compelling” reason that the defendant was serving years and years more than Congress now believes he deserves.

The compassionate release statute, 18 USC § 3582(c)(1)(A), allows a court to reduce a prison sentence for “extraordinary and compelling reasons.” Congress authorized the Sentencing Commission to define what constitutes an extraordinary and compelling reason, and the USSC did so in the revised USSG § 1B1.13 adopted in November 2023. The reasons included medical reasons, family circumstances, and prisoner abuse.

The “extraordinary and compelling reason” at issue in last week’s case is set out in USSG § 1B1.13(b)(6). It holds that a nonretroactive change in the law can present a reason warranting a sentence reduction if a prisoner has served at least 10 years of “an unusually long sentence,” and there is a “gross disparity” between the inmate’s sentence and the sentence that would apply if nonretroactive changes in the law since the original sentencing were given retroactive effect. Even then, it’s not automatic. Instead, § 1B1.13(b)(6) directs the court to fully consider “the defendant’s individualized circumstances.”

bunnygun190423The best example of such a sentence is where someone has been convicted of multiple 18 USC § 924(c) sentences for using a gun in drug crimes or crimes of violence. Congress intended that if Donnie Drugseller had been convicted of a § 924(c) and served his mandatory five years, only to get out and do the same thing again, the second § 924(c) would carry a minimum of 25 years. This makes perfect sense: we should learn from our experiences, and that includes Donnie learning that he shouldn’t carry a gun.

Poor drafting, however, resulted in a statute requiring that Donnie, who carried a gun while selling drugs on Monday and did it again on Tuesday, receive two “stacked” § 924(c) counts–one for each day–and be sentenced for 30 years mandatory and consecutive years. That would be five years for Monday’s gun and 25 more years for Tuesday’s.

Congress did not ever intend that, fixing its mistake in a revised § 924(c) included in the First Step Act. Now the statute does what it was always meant to do, applies the 25-year sentence only if Donnie had been convicted of a § 924(c) crime prior to committing the second one. Under the changed law, Donnie’s sentence would have been 10 years (five for Monday and five more for Tuesday).

However, for political reasons, the § 924(c) change was not made retroactive to reach sentences imposed before the First Step Act was passed. In last week’s Bricker decision, the 6th Circuit conceded that this left people like Donnie, who were sentenced before First Step,

serving prison sentences that are much longer than the sentences of new inmates who committed the exact same crimes. Recognizing the unfairness, the Commission decided that the disparity was… a factor worth considering when deciding whether an individual old-timer had an “extraordinary and compelling reason” for early release. That is understandable and even laudable. The question is whether the Commission has the authority to do that under the law, particularly the Constitution.

Back before the 2023 adoption of the new § 1B1.13, the 6th Circuit held in United States v. McCall that “the that the phrase ‘extraordinary and compelling’ in § 3582(c)(1)(A)(i) is clear and unambiguous” and that nonretroactive legal changes in the law could not be considered extraordinary and compelling reasons for a sentence reduction:

The Circuit panel held that under the Constitution’s separation of powers, the Commission lacked the “power to overrule a Circuit Court’s interpretation of a statute” or to adopt a policy statement that contradicts a federal statute: “[T]he Commission cannot overrule McCall‘s determination about the plain text of the statute by promulgating a contradictory policy statement… we conclude that the Commission overstepped its authority and issued a policy statement that is plainly unreasonable under the statute and in conflict with the separation of powers. We therefore hold that USSG § 1B1.13(b)(6) is invalid.

In her dissent, Judge Stranch vigorously disagreed, arguing that “the majority opinion misapprehends recent Supreme Court precedent on administrative law, misconstrues this court’s opinion in… McCall, and ignores the plain language of several statutes to read constraints into a statutory scheme where none exist.”

badjudge171016Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman blasted the Bricker decision as “another reminder that courts can and often will ignore textualism principles when it leads to a policy outcome that they dislike.” He notes that “the panel majority in Bricker [is] inventing much broader non-textual limits on compassionate release than did the Third Circuit in United States v. Rutherford… That ruling is the subject of a pending cert petition, and Bricker surely increases the odds that cert on this issue will be eventually granted. But… I am quite unsure whether congressional text or judicial policy preferences would ultimately prevail on this matter at SCOTUS.”

United States v. Bricker, Case No. 24-3286, 2025 U.S.App. LEXIS 9538 (6th Cir. April 22, 2025)

United States v. McCall, 56 F.4th 1048 (6th Cir. 2022)

Sentencing Law and Policy, Deepening circuit splits, divided Sixth Circuit panel decides to “look beyond” statutory text to rewrite compassionate release limits (April 24, 2025)

United States v. Rutherford, 120 F.4th 360 (3d Cir. 2024)

– Thomas L. Root

3rd Circuit ‘Lopers’ the Sentencing Commission – Update for November 4, 2024

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

WHERE THERE’S A ‘WILL’ THERE’S A ‘WON’T’

chevron230508One of our favorite Supreme Court decisions last June was Loper Bright Enterprises v. Raimondo, a case that punched Chevron deference’s ticket by holding that courts don’t have to defer to agencies’ interpretations of federal law as long as those interpretations are reasonable. Instead, Loper Bright held, courts are in the business of figuring out what statutes say, and they should not defer to a bunch of unelected bureaucrats who often have a vested interest in the interpretations they put on the laws the agencies are supposed to administer.

We saw the dark side of Loper Bright last Friday. The day after the 6th Circuit heard oral argument in a case over whether the Sentencing Commission’s guideline, USSG § 1B1.13(b)(6) – that says an extraordinary and compelling reason for a compassionate release may include an overly-long sentence that could not be imposed today because of a change in the law – exceeds the Commission’s authority.

In the First Step Act, Congress reduced the mandatory minimums for some drug offenses and refined 18 USC § 924(c) to provide that the 25-year minimum for a second § 924(c) offense could only be imposed after a prior § 924(c) conviction. Before First Step, if you carried a gun when you sold pot on Monday and then carried it again when you sold pot on Wednesday, you would get maybe 60 months for selling drugs AND a mandatory consecutive 60 months for carrying a gun on Monday AND a mandatory consecutive 300 months for Wednesday’s gun. Your two-day drug selling binge would have netted you 420 months (35 years) in prison.

retro240506For reasons more political than legal, Congress did not make the changes in drug and § 924(c) mandatory minimum sentences retroactive. But in the years since, some judges found that the fact that some people were serving impossibly long sentences that they could not have had imposed on them after First Step passed could constitute an extraordinary and compelling reason for grant of a compassionate release motion. Other Circuits, notably the 3rd, 7th and 11th, ruled that overly long sentences could not serve as extraordinary and compelling reasons for compassionate release because Congress had not made the changes to the laws that dictated those sentences retroactive.

When the Sentencing Commission finally adopted a new Guideline – § 1B1.13 – a year ago, it included as one of the defined extraordinary and compelling reasons for a compassionate release grant a case where a defendant had a disparately long sentence because of a nonretroactive change in the law. The Dept of Justice began a full-throated attack on subsection (b)(6), arguing that because First Step does not make the changes in § 924(c) retroactive, the Commission was exceeding its authority by letting people do an end run around Congress.

A 6th Circuit panel heard oral argument last week in United States v. Bricker, three consolidated cases in which the government is arguing that subsection (b)(6) exceeds the Sentencing Commission’s congressionally delegated authority. The next day, in United States v. Rutherford, a 3rd Circuit panel held that subsection (b)(6) is invalid.

The Rutherford defendant won a compassionate release after 20 years of being locked up on a 42-year sentence for two armed robberies of a doctor’s office. Citing its right under Loper Bright to ignore the Sentencing Commission’s interpretation of the extent of its authority, the Rutherford panel ruled against Mr. Rutherford based on its belief as to “the will of Congress”:

Subsection (b)(6)… as applied to the First Step Act’s modification of § 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner’s eligibility for compassionate release. Congress explicitly made the First Step Act’s change to § 924(c) nonretroactive… [I]t would be inconsistent with [the] pertinent provisions of the First Step Act… to allow the amended version of § 924(c) to be considered in the compassionate release context because Congress specifically decided that the changes to the § 924(c) mandatory minimum sentences would not apply to people who had already been sentenced.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, criticized the 3rd’s decision. “Besides the non-textual nature of divining the “will” of Congress to rule against a defendant, this holding conflates Congress’s nonretroactivity decisions in the First Step Act with its decision, in the very same Act, to expand access to compassionate release and to keep in place the broad parameters of USSC authority to set terms for compassionate release. There is nothing at all “inconsistent” with Congress saying not everyone should automatically retroactively benefit from a particular change in law and the USSC saying that judges can consider a change in law for a select few pursuing another legal remedy.”

forceofwill241104A cardinal canon of statutory construction holds that where the text of a statute is clear, that’s all that matters. But Rutherford holds in essence that what the court thinks Congress “willed” is more important than what the law Congress passed actually says.

A Fifth Circuit panel has already held that subsection (b)(6) is a legitimate exercise of Commission authority. Prof Berman believes it is “inevitable” that the issue will have to be settled by the Supreme Court.

United States v. Rutherford, Case No. 23-1904, 2024 U.S. App. LEXIS 27740 (3d Cir., November 1, 2024)

United States v. Bricker, Case No. 24-3286 (6th Cir., argument held October 31, 2024)

Sentencing Law and Policy, Based on “the will of Congress,” Third Circuit panel adheres to prior ruling limiting ground for compassionate release (November 1, 2024)

United States v. Jean, 108 F.4th 275 (5th Cir., 2024)

– Thomas L. Root