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July 11, 2022

Seventh Circuit panel refuses to reconsider its extra-textual limit on compassionate release in light of Supreme Court's Concepcion decision

In this post a few weeks ago, I highlighted key language from the Supreme Court's work in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), that should help resolve a circuit split surrounding what factors can serve as the basis for compassionate release.  As explained in that post, I believe non-retroactive changes in sentencing law can potentially provide the basis for compassion release because nothing in the text of § 3582(c)(1)(a) supports the contention that non-retroactive changes cannot ever constitute "extraordinary and compelling reasons" to allow a sentence reduction.  Though the Third, Sixth, Seventh and Eighth Circuits have held otherwise, language from Concepcion would seem to undercut extra-textual limits on sentencing or sentence-modification considerations.  Here is one of a number of passages from Concepcion stressing that all relevant sentencing information is to be part of all sentencing determinations unless expressly excluded by statute (with my emphasis added):

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.

Disappointingly, it seems the first circuit panel to consider Concepcion expressly has decided to double-down on its extra-textual limit on what may be compassionate release considerations.  The Seventh Circuit today in a short opinion in US v. King, No. 21-3196 (7th Cir. July 11, 2022) (available here), refuses to engage with the key language of Concepcion but says this:

When deciding whether “extraordinary and compelling reasons”, 18 U.S.C. §3582(c)(1)(A)(i), justify a prisoner’s compassionate release, judges must not rely on non-retroactive statutory changes or new judicial decisions.  That’s the holding of United States v Thacker, 4 F.4th 569 (7th Cir. 2021).... There’s nothing “extraordinary” about new statutes or caselaw, or a contention that the sentencing judge erred in applying the Guidelines; these are the ordinary business of the legal system, and their consequences should be addressed by direct appeal or collateral review under 28 U.S.C. § 2255.

William King, who was sentenced to 216 months’ imprisonment following his guilty plea to three heroin charges, contends that Concepcion v. United States, No. 20–1650 (U.S. June 27, 2022), requires us to abandon these decisions and hold that anything at all — factual or legal, personal or systemic, routine or unique — may be treated as “extraordinary and compelling”.  That would be hard to reconcile with the language of the statute.  Routine is the opposite of extraordinary....

Concepcion ... held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing.  We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under § 3582(c)(1)(A)....

The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions.  We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they resentence defendants.  So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

As I have explained in prior posts, Congress via statute expressly stated that just one factor could never 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 Congress can and did, through express statutory text, seek to exclude one and only one particular reason from alone serving as the basis for qualifying for a sentence reduction.  The expresio unius canon of construction — "the expression of one is the exclusion of others" — counsels that courts should not be inventing additional extra-textual categorical exclusions that Congress did not expressly state.  And Concepcion should serve as another reminder to circuit courts to stop inventing categorical limits on relevant considerations not set forth by Congress or the Constitution.

Of course, not every change in law could or should be considered “extraordinary and compelling” to provide the basis for compassionate release.   The alleged change in law cited by the defendant in King seems quite week, and I would not be so troubled if circuits were just indicating that they suspect only in rare cases might a change in law alone amount to an “extraordinary and compelling” reason.  But this new King decision reiterates the misguided notion that district judges are categorically excluded from ever considering "non-retroactive statutory changes or new judicial decisions" even though Concepcion stressed that the "only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution."  Sigh.

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July 11, 2022 at 10:38 PM | Permalink

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