Ninth Circuit panel holds non-retroactive sentencing changes can be considered in compassionate release motions

Weighing in on an issue that has split circuits, a Ninth Circuit panel today in US v. Chen, No. 20-50333 (9th Cir. Sept. 14, 2022) (available here), held 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 defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  The Chen opinion explains how "other circuits are split concerning this issue," but ultimately decides to "join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A)."  Here is a portion of the panel's explanation for its ruling:

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 “[r]ehabilitation . . . alone” is not extraordinary and compelling.... 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. In fact, such a categorical bar would seemingly contravene the original intent behind the compassionate release statute, which was created to provide 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.” Ruvalcaba, 26 F.4th at 26 (citing S. Rep. No. 98225, 55–56, 121 (1983)....

The Supreme Court’s recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.” 142 S. Ct. at 2396.  Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now....

Through § 3582(c)(1)(A) and § 994(t), Congress has demonstrated that it can, and will, directly limit what constitutes extraordinary and compelling reasons.  It is therefore hard to reconcile the argument that we should infer a categorical bar on extraordinary and compelling reasons with Congress’s prior decisions not to create such stark limitations on a district court’s discretion.