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Circuit Split Deepens on Using Sentence Law Changes in Compassionate Release Motions – Update for September 19, 2022

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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.

9TH CIRCUIT ALLOWS FIRST STEP CHANGE IN § 924(c) STACKING TO SUPPORT COMPASSIONATE RELEASE

In 2007, Howard Chen was busted with a distribution-sized amount of MDMA in his car. Later, the DEA found more MDMA, two guns and cash at his house.

mdma220919A jury convicted Howie of six drug-related counts and two 18 USC § 924(c) counts for possessing a gun during and in furtherance of a drug crime. He got 48 months for the drug counts, 60 more months for the first gun offense and 300 months for the second one: a total of 34 years for a fairly garden-variety non-violent drug case.

In late 2020, Howard filed a motion for sentence reduction, seeking compassionate release for – among other reasons – that the First Step Act changed 18 USC § 924(c) so that he would not have to get a minimum of 300 months for the second gun charge. Although the change was not retroactive, Howie contended that the unfairness of how the 2007 version of the statute mandated 300 months but the current statute did not was an extraordinary and compelling reason for granting him a sentence reduction.

The district court denied the compassionate release motion, holding that because Congress did not make the 18 USC § 924(c) change retroactive, it could not be an extraordinary and compelling reason for grant of compassionate release under 18 USC § 3582(c)(1)(A).

Last week, the 9th Circuit reversed, holding that a district court may consider the First Step Act’s non-retroactive changes to sentencing law – in combination with other factors particular to the individual – when finding extraordinary and compelling reasons for a sentence reduction.

circuitsplit220919Bloomberg said, “The opinion deepens a circuit split on the bipartisan 2018 reform law that has generated much litigation since then-President Donald Trump signed it.”

The 3rd, 7th, and 8th Circuits have ruled that district courts may not consider non-retroactive sentence changes made by First Step, whether offered alone or in combination with other factors, in deciding compassionate release motions. Those circuits reasoned that Congress explicitly made the sentencing changes non-retroactive and that § 3582(c)(1)(A) “should not provide a loophole to get around explicit non-retroactivity.”

For instance, the 3rd Circuit ruled, “We will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” The 7th held that “the discretionary authority conferred by § 3582(c)(1)(A)… cannot be used to effect a sentencing reduction at odds with Congress’s express determination embodied in… the First Step Act that the amendment to § 924(c)’s sentencing structure appl[ies] only prospectively.” The 8th said, “The compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”

The 3rd and 7th Circuits still allow district courts hearing compassionate release motions to consider First Step’s changes to stacked § 924(c) sentencing when analyzing § 3553(a) sentencing factors.

dontthink220919The 1st, 4rth, and 10th Circuits, on the other hand, have all held that district courts may consider First Step’s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. The Circuits have held that the statutes directly addressing “extraordinary and compelling reasons” don’t prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A)’s “extraordinary and compelling reasons” is “entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.”

The 6th Circuit swings both ways. In United States v. Jarvis, the Circuit held that the “district court, moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentence based on a nonretroactive change in the law.” But in United States v. Owens, the panel said that the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied can be considered, along with other factors, to be an extraordinary and compelling reason for a reduction.

In Howard’s case, the 9th said,

Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement, which does not apply here, and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling. Neither of these rules prohibits district courts from considering rehabilitation in combination with other factors. Indeed, Congress has never acted to wholly exclude the consideration of any one factor, but instead affords district courts the discretion to consider a combination of “any” factors particular to the case at hand… To hold that district courts cannot consider nonretroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.

United States v. Chen, Case No 20-50333 (9th Cir., September 14, 2022)

Bloomberg, Compassionate Release Gets Another Look Under First Step Act (September 14, 2022)

– Thomas L. Root

The Supremes Finally Take The 2255(e) Debate! – Update for May 16, 2022

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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.

LATE-BREAKING NEWS…

The Supreme Court granted certiorari in Jones v. Hendrix by order issued at 9:30 am on Monday, May 16.  

Could the Justices be reading my blog? Doubtful, but the certiorari may be good news for thousands of federal inmates trapped in the 10th and 11th Circuits (depending, of course, on the outcome of this case sometime next year).

SCOTUS MAY FINALLY SETTLE THE 2241 DEBATE
... but a 2255(e) ain't, depending on where you are.
… but a 2255(e) ain’t, depending on where you are.

Let’s say you were standing in front of Sunny’s Cigars with a gun and two prior convictions, one for selling drugs and the other for manslaughter. If the Feds picked you up, you would have been sentenced to a minimum 15 years under 18 U.S.C. § 924(e), the Armed Career Criminal Act.

After the U.S. Supreme Court (generally known by the shorthand “SCOTUS“) ruled in Borden v. United States that a crime committed through recklessness was not a “crime of violence” predicate for ACCA, you would want to file with your sentencing court to get the ACCA sentencing enhancement thrown out.

The Borden ruling was not a constitutional ruling, but instead just an interpretation of a statute. That meant that you could not file a second-or-successive 28 U.S.C. § 2255 motion, because 28 U.S.C.  § 2244(b) limits successive § 2255s to newly discovered evidence or decisions on constitutionality. However, 28 U.S.C. § 2255(e) – known as the “saving clause,” lets you file a traditional 28 U.S.C. § 2241 habeas corpus motion attacking the ACCA sentence where a § 2255 would be inadequate to address the issue.

Or at least it would let you file a § 2241 petition if you’re locked up in, say, Kentucky (in the 6th Circuit). A § 2241 habeas corpus petition is filed in the federal district in which you’re located at the time you file. If you were at FCI Manchester, you’d file in the Eastern District of Kentucky. Go a few miles east of there to do your time in Beckley, West Virginia, for example, and you’d be filing in the Southern District of West Virginia (4th Circuit). Fourth Circuit precedent forecloses you from using a § 2241 petition as a workaround.

gunknot181009Writing in SCOTUSBlog last week, John Elwood noted that Ham v. Breckon, a 4th Circuit decision, and Jones v. Hendrix, an 8th Circuit decision, both asked the same question, and both have been “relisted” by the Supreme Court.

A “relist” is a petition for certiorari that is scheduled to be decided at the Supreme Court’s regular Friday conference, but is “relisted” to be considered further at a subsequent conference. A “relisted” petition is statistically more likely to have review granted by the Court, and that is even more likely where there are two relisted petitions asking the same question.

This is important, because two circuits – the 10th and 11th – don’t permit § 2241 petitions even where the movant is challenging guilt or innocence. A SCOTUS decision on Ham or Jones would not only settle whether a movant could challenge a statutory sentencing enhancement using a § 2241 petition under the “saving clause,” but would address the circuit split between the two outlier circuits (the 10th and 11th) and everyone else on whether guilt and innocence could be challenged as well.

circuitsplit220516Elwood thinks that, while the Court has ducked the issue in the past, it will grant review this time. He wrote, “The government — which generally is a pretty successful respondent as well as a successful petitioner — admits that there is a circuit split on the issue. It would have a hard time saying otherwise, since the government itself petitioned for Supreme Court review on this very issue a couple years back in the much-relisted United States v. Wheeler, before a vehicle problem arose (the prisoner… was released from prison) that apparently persuaded the Supreme Court to deny review in that case.”

Ham v. Breckon, Case No 21-763 (pending certiorari)

Jones v. Hendrix, Case No 21-857 (certiorari granted)

SCOTUSBlog, Challenges to administrative action and retroactive relief for prisoners (May 11, 2022)

– Thomas L. Root