Third Circuit invents some extra-textual limits on what might permit a sentence reduction under 3582(c)(1)(A)

Over the last year, the federal circuits have started issuing various opinions concerning what factors may serve as the basis for compassion release in the wake of the FIRST STEP Act allowing courts to consider sentence-reduction motions under 18 U.S.C. § 3582(c)(1)(A) without awaiting a motion by the Bureau of Prisons.  Of course, Congress long ago expressly instructed, in 28 U.S.C. § 994(t), that the US Sentencing  Commission "shall describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples."  But the Commission has not had a quorum in the nearly three years since the FIRST STEP Act became law, so courts have had to figure out these matters on their own for now.

Given the statutory text enacted by Congress in 1984 and in 2018, I think the first big circuit ruling in this space had it right.  Specifically, the Second Circuit in September 2020 was the first circuit to rule in Zullo/Brooker, quite rightly in my view, that district courts now have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" to justify a sentence reduction under 3582(c)(1)(A).  That seemed right because Congress nowhere placed in the statutory text any categorical limits on what kinds of factors could qualify as "extraordinary and compelling."  Congress did set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."  But this clear statutory command always led me to conclude that (1) any other factor could possibly be considered an extraordinary and compelling reason, and also (2) that rehabilitation of the defendant combined with other factors could be considered an extraordinary and compelling reason.

I provide this backstory to explain why I am troubled by part of the Third Circuit's work today in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here).  The very first sentence of the Andrews ruling has a Kafka-esque "only in America" quality to it: "Eric Andrews is serving a 312-year sentence for committing a series of armed robberies when he was nineteen."  That a person at age 19 can get a 312-year sentence for a series of robberies strikes me as quite extraordinary and quite compelling, but the district court did not see matters that way.  Specifically, as described by the panel opinion, the district court decided that "the duration of Andrews’s sentence and the nonretroactive changes to mandatory minimums could not be extraordinary and compelling as a matter of law."  Of course, there is no statutory text enacted by Congress that sets forth this "as a matter of law."  But the Third Circuit panel here blesses the extra-textual notion that courts can and should invent some new categorial exclusions "as a matter of law" regarding what might qualify as extraordinary and compelling.  Sigh.

Here is some of the Third Circuit panel discussion (with some cites and parentheticals removed):

We begin with the length of Andrews’s sentence.  The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.  “[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular violations of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). “Indeed, the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.” United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring).  Moreover, considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties. See Gore v. United States, 357 U.S. 386, 393 (1958) (“Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, these are peculiarly questions of legislative policy.” (citation omitted)).

The nonretroactive changes to the § 924(c) mandatory minimums also cannot be a basis for compassionate release.  In passing the First Step Act, Congress specifically decided that the changes to the § 924(c) mandatory minimums would not apply to people who had already been sentenced.  See First Step Act § 403(b).  That is conventional: “[I]n federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.”  Dorsey v. United States, 567 U.S. 260, 280 (2012).  “What the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary and compelling reason’ to deviate from that practice.” United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021).  Interpreting the First Step Act, we must “bear[] in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 320 (2014)... And when interpreting statutes, we work to “fit, if possible, all parts” into a “harmonious whole.” Brown & Williamson, 529 U.S. at 133 (internal quotation marks omitted) (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)).  Thus, we will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.  Such an interpretation would sow conflict within the statute.

This ruling and others like it seem to me to have the framing wrong.  Sure, a lawfully imposed sentence, even one based on now-reduced mandatory minimums, will not and should not alone  always qualify in every single case as the sole basis for compassionate release.  (This is what making a change retroactive will do "as a matter of law," namely make every sentence imposed based on that law always eligible for a reduction in every single case.)  Defendants in these compassionate release cases are not arguing that a lawful, now-changed sentence serves as the sole basis for a reduction in all cases, rather they are just saying such facts can and should be considered by judges along with other factors in assessing whether there are extraordinary and compelling reasons for sentence reduction.  Since Congress has not expressly stated that these are improper factors, they can only become unlawful if and when judges start making up extra-textual limits on application of statutory law here.

A few of many, many prior related posts:

• Compassionate release after FIRST STEP: Should many thousands of ill and elderly federal inmates now be seeking reduced imprisonment in court?
• New District Court ruling confirms that "any extraordinary and compelling reasons" can now provide basis for reducing imprisonment under 3582(c)(1)(A)
• Another thoughtful and thorough opinion finds statutory reform among "extraordinary and compelling reasons" for reducing sentence under 3582(c)(1)(A) 
• A dozen new grants of federal sentence reductions using § 3582(c)(1)(A), including another based on stacking/disparity/trial penalty concerns 
• Second Circuit panel rules unanimously that district courts have broad discretion to consider "any extraordinary and compelling reason for release that a defendant might raise" 
• Sixth Circuit panel rules "courts have full discretion" to determine extraordinary and compelling reasons for 3582(c)(1)(A) motions
• Seventh Circuit panel says old guideline does not limit potential "extraordinary and compelling reasons" for 3582(c)(1)(A) motions after FIRST STEP Act 
• Fourth Circuit becomes the fourth circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act
• Tenth Circuit becomes the latest circuit to embrace a robust view of sentence reduction authority under 3582(c)(1)(A) after FIRST STEP Act 
• Tenth Circuit issues another notable ruling on federal compassionate release authority after the FIRST STEP Act
• Fifth Circuit latest to issue notable ruling on federal compassionate release authority after the FIRST STEP Act
• Ninth Circuit provides yet another ruling on post-FIRST STEP Act federal compassionate release authority 
• Split Sixth Circuit panel further muddles what grounds can contribute to basis for sentence reduction under § 3582(c)(1)(a) 
• Amicus brief stresses congressional text does not preclude legal change as basis for 3582(c)(1)(a) sentence reduction