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June 3, 2021

Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a)

As blogged here last month, in US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), a split Sixth Circuit panel held that "in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied."  This seemed consistent with the Sixth Circuit's prior holding in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here),  that district courts have full discretion [currently] to determine whether an 'extraordinary and compelling' reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion."  It was also consistent with rulings from other circuits like US v. McCoy, 981 F.3d 271, 285–87 (4th Cir. 2020) and US v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021).  

But today a distinct split Sixth Circuit panel in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here),  states that "non-retroactive changes in the law [can] not serve as the
'extraordinary and compelling reasons' required for a sentence reduction."  Here is a passage from the majority opinion in Jarvis:

The text of these sentencing statutes does not permit us to treat the First Step Act’s non-retroactive amendments, whether by themselves or together with other factors, as “extraordinary and compelling” explanations for a sentencing reduction.  See Tomes, 990 F.3d at 505.  But for those defendants who can show some other “extraordinary and compelling” reason for a sentencing reduction (and we have plenty of deferential decisions on this score), they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.

Judge Clay authors a lengthy dissent in Jarvis that starts this way:

In passing the First Step Act, Congress amended 18 U.S.C. § 3582(c)(1)(a) to allow federal district courts to grant compassionate release under appropriate circumstances to those incarcerated in federal prison, even in instances where the Bureau of Prisons opts not to do so.  In accordance with this understanding of the amendment, we have found that district courts are not required to consider the policy statement in U.S.S.G. § 1B1.13 in determining what constitutes an extraordinary and compelling reason for release, thereby permitting district courts discretion in determining whether an individual defendant has demonstrated an extraordinary and compelling reason for release.  See United States v. Jones, 980 F.3d 1098, 1110–11 (6th Cir. 2020).  In line with that precedent, in United States v. Owens, 996 F.3d 755, 760 (6th Cir. 2021), we determined that a district court can consider a nonretroactive First Step Act amendment that creates a sentencing disparity in combination with other factors as the basis for an extraordinary and compelling reason for compassionate release.  The majority today ignores this binding precedent from our circuit and erroneously concludes that our previous decision in United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021), requires that we affirm the district court’s denial of compassionate release in this case.

But in fact, Tomes’ conclusion that a non-retroactive sentence amendment cannot support a motion for compassionate release amounts to dicta that we are not bound to follow. Additionally, as Owens made clear, Tomes did not foreclose the conclusion that a sentencing disparity from a non-retroactive statutory change along with other grounds for release can serve as extraordinary and compelling reasons.  See Owens, 996 F.3d at 763.  By ignoring Owens, the majority contravenes the purpose of compassionate release to grant release, based on the consideration of the defendant’s unique circumstances, to individual defendants in extraordinary situations not covered by another statute.

Apart from concerns about how it approaches circuit jurisprudence, I find the majority ruling problematic from a straight-forward application of textualism. There is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that non-retroactive changes in the law cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction, either alone or in combination with other factors.  The majority here, presumably based on its own sense of sound policy, seems to be just inventing an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences.

Notably, in its instructions to the US Sentencing Commission, Congress did provide expressly in statutory text that there was to be one factor that could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a):  "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." 28 USC § 994(t).  That textual exclusion reveals that Congress plainly knows how, in express statutory text, to exclude a particular reason from being alone the basis for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — in turn suggest that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  Moreover, the use of the word "alone" in § 994(t) further suggests that Congress wants even "debatable" factors that cannot alone be the basis for a reduction to be useable in combination with other factors.

Congress continuing approval of advisory guidelines after Booker, along with its pro-judicial-discretion reforms in the Fair Sentencing Act and the FIRST STEP Act, all suggest that our nation's legislature is now quite comfortable and confident granting federal district judges broad authority to consider how best to achieve sound, individualized sentencing justice in a careful case-by-case manner.  But, this Jarvis ruling reveals that some circuit judges seem to still be eager to concoct categorical limits on judicial sentencing discretion even though they do not appear expressly in the text. 

June 3, 2021 at 10:46 PM | Permalink

Comments

I would call disparity with what an offender would receive under some other sentencing regime "entirely ordinary", not some super-special get-out-of-prison talisman.

Posted by: Soronel Haetir | Jun 4, 2021 3:08:18 AM

Some disparities after the law changes (and at other times) surely are quite ordinary, Soronel, and judges can and should make that call on a case-by-case basis. At issue here is whether a circuit court has a sound legal basis for saying judges can NEVER find disparity due to a change in law (perhaps combined with other factors) to constitute "extraordinary and compelling reasons" for a possible sentence reduction. There is nothing in the text of the statute that supports any categorical limits on what factors can be the basis for a reduction (other than rehabilitation alone). Though the Jarvis court suggests it has a policy rationale for inventing another such categorical limit, I always thought text should come first in interpreting statutes.

Posted by: Doug B | Jun 4, 2021 12:03:35 PM

I fully agree that the text rules, I would simply say that what is ordinary cannot, by definition, be extraordinary.

Posted by: Soronel Haetir | Jun 4, 2021 12:45:49 PM

The point is what is ordinary vs extraordinary is left to the sound discretion of the district judge. You may think the disparity between a 924(c) stacked sentence of 2,000 months and modern sentencing under 924(c) is “entirely ordinary,” but hundreds of judges would disagree with you.

Posted by: Thomas Church | Jun 4, 2021 7:22:45 PM

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