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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

5th Circuit Endorses District Court Discretion on Compassionate Release Motions – Update for July 18, 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.

5TH CIRCUIT DERAILS DOJ EFFORT TO DELEGITIMIZE GUIDELINES

ratchet211108I suppose it is unsurprising that the Dept of Justice sees appropriate judicial discretion as a ratchet. It’s fine if a judge employs his or her flexibility to tighten the screws on a defendant, but any attempt to fashion a remedy that seeks to ameliorate harsh sentences that could not be imposed today is seen by the denizens of the US Attorney’s offices as a threat to the republic.

After the First Step Act permitted prisoners to bring so-called compassionate release motions – petitioning courts under 18 USC § 3582(c)(1)(A) to reduce sentences for extraordinary and compelling reasons – courts labored for almost five years to pound square-peg Sentencing Guideline 1B1.13 into the new round hole of defendant-initiated compassionate release motions. The old version of 1B1.13, written back in the day when only the Federal Bureau of Prisons could initiate a compassionate release request, was minimally relevant to the new regime. However, the Sentencing Commission lost its quorum a mere 11 days after First Step was signed into law, and could not promulgate a new § 1B1.13 for prisoner-brought motions.

Nearly all courts of appeal rejected DOJ demands that the old § 1B1.13 be slavishly applied to compassionate release motions, holding that commentary for motions brought by the BOP was inapplicable to motions brought by defendants and that what constituted extraordinary and compelling reasons for compassionate release motions was left to the broad discretion of district courts, limited only by the statute’s directive that rehabilitation alone was an insufficient basis for a sentence reduction.

In the absence of a guiding Sentencing Commission policy statement, appellate courts split on whether district courts could consider non-retroactive changes in the law in deciding whether extraordinary and compelling reasons existed for compassionate release. Such was a major concern. First Step changed mandatory minimum sentences for a number of drug offenses and clarified a drafting blunder in 18 USC § 924(c) – which imposes mandatory consecutive sentences for using or carrying a gun in a drug offense or crime of violence – but did not make those changes retroactive.

In some circuits, prisoners with draconian 50-year-plus sentences for 924(c) offenses that today would carry 15 years could get relief. In other places, appellate courts ruled that such reductions were impermissible because old § 1B1.13 did not permit it.

draconian170725That was the state of things until last November, when the reconstituted Sentencing Commission’s rewritten 1B1.13 became effective. The new 1B1.13 provided ample guidance as to what a district court must consider to be “extraordinary and compelling” reasons for grant of a 3582(c)(1)(A) motion, including

[i]f a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) 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, and after full consideration of the defendant’s individualized circumstances.

The USSC also added a “catch-all,” authorizing district courts to consider as extraordinary and compelling reasons “any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons [listed in 1B1.13] are similar in gravity…”

The DOJ immediately mounted a nationwide attack on the new 1B1.13, arguing (among other things) that allowing the consideration of changes in the law that made the old sentences disparately long exceeded the Commission’s legal authority and supplanted Congress’s legislative role by permitting the revision of sentences that Congress did not wish to make retroactive.

This full-throated attack on the new 1B1.13, which Congress had six months to reject but chose not to, finally got to an appellate court.

careeroffender22062Joel Jean was locked up in 2009 for a cocaine distribution crime and a § 924(c) offense. He had three prior state drug convictions, and as a result, he was classified as a Guidelines “career offender,” which came with a recommended sentencing range of 352-425 months. The district court gave him a break, sentencing him to 292 months’ imprisonment.

In the years following Joel’s conviction, a series of Supreme Court and 5th Circuit cases redefined what could be considered a qualifying offense for the “career offender” enhancement. Those held that some of Joel’s Texas convictions no longer qualified to make him a “career offender.” As a result, “it is undisputed that if he were to be sentenced today, Joel would not be classified as a career offender under § 4B1.1.”

Joel filed a compassionate release motion, arguing that non-retroactive changes in the law would result in a substantially shorter sentence today if he were sentenced today and that his post-sentencing conduct and rehabilitation weighed in favor of compassionate release.

To be sure, Joel’s rehabilitation efforts – good conduct, successful programming, and comportment that resulted in laudatory letters from BOP staff – were exceptional. The district court was impressed, granting Joel’s motion and resentencing him to time served. The government, however, was dissatisfied with the decade-length pound of flesh it had gotten from Joel. It appealed, arguing that the district court could not consider non-retroactive changes in the law and that Joel should return to prison.

Last week, the 5th Circuit rejected the government’s position, holding that a sentencing court has the “discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release.”

The Circuit ruled that “there is no textual basis [in statute] for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor” nor did appellate precedent or 1B1.13 prohibit including such factors in a compassionate release calculus.

In Concepcion v. United States, the 5th observed, the Supreme Court held that

Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence… [T]he Concepcion Court concluded that nothing limits a district court’s discretion except when expressly set forth by Congress in a statute or by the Constitution. And in the case of the FSA, though the Court noted that “Congress is not shy about placing such limits where it deems them appropriate,” Congress had not expressly limited district courts to considering only certain factors there.

The Circuit noted that Congress “has never wholly excluded the consideration of any factors. Instead, it appropriately affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand, limited only by the proscription that “rehabilitation alone was insufficient… [but] did not prohibit district courts from considering rehabilitation in conjunction with other factors.”

discretion220629

Congress adopted § 3582(c)(1)(A) due to the “need for a ‘safety valve’ with respect to situations in which a defendant’s circumstances had changed such that the length of continued incarceration no longer remained equitable,” the Court ruled: “It is within a district court’s sound discretion to hold that non-retroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation.”

United States v. Jean, Case No. 23-40463, 2024 U.S. App. LEXIS 17274 (5th Cir. July 15, 2024)

Concepcion v United States, 597 US 481 (2022)

– Thomas L. Root

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