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April 6, 2023

Has the US Sentencing Commission now "overruled" circuit decisions saying changes in law cannot provide a basis for 3582(c)(1)(A) sentence reduction?

Perhaps the highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission yesterday (basics here) concerns the major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)."  This "policy statement" structures the availability of what are often called "compassionate release" motions that, after the FIRST STEP Act, can be brought to sentencing courts directly by federal prisoners.  Notably, when introducting the Commission's amendments to § 1B1.13, USSC Chair Reeves stressed in his statement that the term compassionate release "is a 'misnomer'" because § 3582(c)(1)(A) sets forth a more general "sentence-reducing tool" authorizing judges "to modify sentences whenever new 'extraordinary and compelling' reasons arise."

This Reuters article (which uses the compassionate release "misnomer") provide a brief account of the new amendment to guideline § 1B1.13:

The U.S. Sentencing Commission approved new guidelines on Wednesday that will expand federal inmates' ability to qualify for compassionate release from prison.  The new policy, approved in a vote of 4-3, was part of a broader package of amendments, and represent the most sweeping criminal justice reforms the commission has enacted in more than four years....

The new compassionate release guidelines approved on Wednesday expanded the criteria for what can qualify as "extraordinary and compelling reasons" to grant compassionate release, and it will give judges more discretion to determine when a sentence reduction is warranted.  Among the new categories that could make an inmate eligible for compassionate release is if he or she becomes the victim of sexual assault by a corrections officer.

Three members of the panel opposed the final policy, saying they disagreed with a provision that could allow judges to grant compassionate release to inmates if changes to federal sentencing laws renders their prison term inequitable. The policy "makes a systemic, structural change without congressional authorization," commission member Candice Wong said.

Though there are lots of new and important elements to the new § 1B1.13, one particular issue that has generated a particularly interesting debate in the circuit courts (and before the Commission) is whether a district judge can rely on a "change in the law" to grant a 3582(c)(1)(A) sentencing reduction.  This question has deeply divided the circuits; as discussed here, the Sixth Circuit a few months ago rendered a big divided en banc ruling in US v. McCall which held, as a matter of statutory interpretation, "that nonretroactive changes in sentencing law cannot be 'extraordinary and compelling reasons' that warrant relief" pursuant to 3582(c)(1)(A). 

But now the US Sentencing Commission, which Congress in 28 U.S.C. § 994(t) expressly gave the responisbility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," has expressly decided via its new amendments to § 1B1.13 that a "change in the law" legally can and sometimes should be the basis for a 3582(c)(1)(A) sentencing reduction.  Specifically, here is the interesting policy statement provision on this issue in the new guideline (with emphasis added):

(6) UNUSUALLY LONG SENTENCES.—If 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.

In other words, the US Sentencing Commission has decided, contra to the position of the Sixth Circuit and some other circuits, that a change in law can serve as an extraordinary and compelling reason for sentence reduction, though the Commission here limits such a "law-change" reason to cases in which a defendant has already served "at least 10 years" of an "unusually long sentence" and the law change "would produce a gross disparity" in sentencing outcomes. 

Though one might well debate the wisdom and reach of how the new guideline seeks to limit when "a change in the law" can provide an extraordinary and compelling reason for sentence reduction, it is beyond debate that the US Sentencing Commission, the expert agency tasked expressly by Congress to "describe what should be considered" reasons for a 3582(c)(1)(A) sentence reduction, has now explicitly decided that at least sometimes a "change in law" CAN statutorily be a proper basis for a reduction under the statute.  In this way, I answer the question in the title of this post as "yes": the US Sentencing Commission's promulagation of this new § 1B1.13 provision serves to functionally "overrule" any and all court precedents that nonretroactive changes in law cannot be the basis for a statutory sentence reduction under 18 U.S.C § 3582(c)(1)(A).

UPDATE Thanks to some feedback from a number of helpful readers, I realized it would be useful to note that some circuits speaking to this issue expressly recognized that any court accounting of "extraordinary and compelling reason" would be only a gap-filler until the Commission amended § 1B1.13 and the Justice Department has also said as much when opposing Supreme Court review of the circuit split on this issue.  Professor Erika Zunkel's testimony to the USSC at pp. 9-13 speaks effectively to these issues at great and effective length for anyone interested in a deeper dive.

April 6, 2023 at 11:20 AM | Permalink


Q: When does a non-court overrule a court?

A: Never, unless (in some circumstances) we're talking about Congress.

Thus it was a mighty good thing that Doug put the word "overrule" in quotation marks.

And this is true even apart from the fact that judges “may vary
[from Guidelines ranges] based solely on policy considerations, including disagreements
with the Guidelines.” Kimbrough v. United States, 552 U.S. 85, 101 (2007).

Posted by: Bill Otis | Apr 6, 2023 12:19:12 PM

This is the normal work of the USSC. Every year they resolve circuit conflicts and take one side or another (or a third side).

Posted by: whatever | Apr 6, 2023 1:41:31 PM

What is different here, whatever, is that the circuit conflict here is over the interpretation of a statute (3582(c)(1)(A)), not the interpretation of a guideline. Though there is the added wrinkle that there is one statutory provision -- 994(t) -- that seems to be saying that the USSC is in charge of giving meaning to another statutory provision -- 3582(c)(1)(A).

And there are even more potental layers to these matters (eg, does the "rule of lenity" apply, are there any "constitutional doubt" arguments in some cases, do debates over doctrines on deference to agency interpretation of statutes matter). An interesting puzzle.

Posted by: Doug B | Apr 6, 2023 2:03:46 PM

Guys this is just Brand X, of course the Commission can do it.

Posted by: afpd | Apr 6, 2023 2:29:33 PM

Actually, afpd, the three Commissionsers who voted against the new § 1B1.13 amendment suggested in their statement that they thought the Commission was not legally able to include a "change in law" factor in the new guideline. It will be interesting to see if/how DOJ seeks to take up that issue in the courts. Of course, that has been DOJ's position to date, which in part accounts for the Sixth Circuit and other circuits reading (in my view mis-reading) the key text of 3582(c)(1)(A) in a limited way.

Posted by: Doug B | Apr 6, 2023 3:03:40 PM

oh, I understand that the republicans on the USSC disagree, I just think this is not an especially complicated issue given the express delegation to the USSC of authority to define "extraordinary and compelling" and pretty clear SCT precedent that an agency can, pursuant to such a delegation, interpret a statute in a manner that deviates from prior judicial interpretations. it's not as if "extraordinary and compelling" clearly excludes changes in law, and the fact that 994(t) identifies one circumstance that can't be E&C ("rehabilitation alone") is very powerful textual evidence that Congress did not intend to take any other circumstances off the table.

Posted by: afpd | Apr 6, 2023 7:42:05 PM

Let's quit beating around the bush. "Extraordinary and compelling" = whatever a left wing judge cares to do, which is going to be cut the child rapist (or whomever) a fat break because The Big Bad System Stinks given its racism, capitalism, classism, blah, blah, blah.

Posted by: Bill Otis | Apr 6, 2023 9:07:25 PM

Well stated, afpd, and don't worry about Bill since he does not even understand Booker (in general or in this context).

Posted by: Doug B | Apr 6, 2023 10:40:25 PM

@afpd 7:42:05 pm, "...and the fact that 994(t) identifies one circumstance that can't be E&C ("rehabilitation alone") is very powerful textual evidence that Congress did not intend to take any other circumstances off the table."

Absolutely excellent point, and it reminds me of something that was said in a CJA-based CLE course I took last year referring to an attorney's role given this Supreme Court makeup: "we're all textualists now."

Posted by: Jeremy Gordon | Apr 7, 2023 3:20:41 PM

Doug --

"Well stated, afpd, and don't worry about Bill since he does not even understand Booker (in general or in this context)."

Let's try this once again: How many sentencing cases did you win in federal court, and how many did I win?

Very good!

But you grade my paper?? HAHAHAHA. Academia does crack me up. I thank God in Heaven that I had an actual career in litigation before I wound up caged in the Ivory Tower.

I will concede, however, that you do a lot better in the faculty lounge, which isn't nearly as stuffy as those stultifying courts, and has lots more Che Guevara posters.

Posted by: Bill Otis | Apr 7, 2023 7:12:00 PM

Doug --

I will admit, however, that I'm now so old I can hide my own Easter eggs.

Posted by: Bill Otis | Apr 7, 2023 7:14:44 PM

Bill, did you do any litigating for DOJ or anyone else since Booker? Even if your claimed litigation record was somehow even relevant toward your apparent misunderstanding of Booker, what would be pertinent is your litigation after Booker of Booker-related sentencing issues. Based on filings as an amici in various capacities (not to mention my broader opinions expressed on this blog and in other writings), I think I can reasonably claim that my arguments regarding Booker prevailed in dozens of cases including the follow-up SCOTUS cases of Gall and Kimbrough. Indeed, as some old posts highlight, US District Judge Kopf kindly bought me some beer to celebrate that early on I understood Booker better than he did:

Because your misunderstanding of Booker should be evident to anyone who understands Booker, I thought it silly to engage on the specifics of hortatory rhetoric of "How many sentencing cases did you win in federal court, and how many did I win?" But if you really want to go there, please detail how many POST-Booker sentencing cases you won so that we might do the accounting that you seem to consider important.

To start, I have the Supreme Court cases of Gall and Kimbrough on my side of the ledger (and I am also inclined to count Rita as well since the majority's opinion in that case lifted some language from my amicus brief). But you do not need to cite post-Booker SCOTUS wins, Bill, as I am interested in any examples of you winning any sentencing cases in federal court AFTER the ruling in Booker.

Posted by: Doug B | Apr 8, 2023 9:25:13 AM

Doug --

"Bill, did you do any litigating for DOJ or anyone else since Booker?"

As much as you did as the attorney of record.

"Even if your claimed litigation record was somehow even relevant toward your apparent misunderstanding of Booker...."

What's with "claimed"? If you think I'm not telling the truth about it, you should say so directly, then document it. Or better yet, just look it up. You're a legal scholar and it's easy to find.

More broadly, I think you could just save the bandwidth by having condensed you're response to, "I'm right and you're wrong so there."

Now if you'll excuse me, it's time for the Easter egg hunt.

Posted by: Bill Otis | Apr 8, 2023 10:58:43 AM

So, to be clear, Bill, it seems you are conceding that you have won ZERO sentencing cases since Booker. Is that right? If that is right, why have you been repeatedly asserting your record of winning sentencing cases pefore Booker gives you any authority on the meaning of Booker? I have filed dozens of amicus briefs and letters on Booker-rleated issues in a wide array of federal courts. Have you filed any amicus briefs in federal court on Booker issues?

I said "claimed litigation record" because I am confused about what kind of litigation record you think gives you some particular authority on the meaning of Booker. It seems now your claims are based on your record litigating before Booker (within a system declared largely unconstitutional in Booker).

More to the point, Bill, this is not an "I'm right and you're wrong" debate over matters of opinion. Based on our prior conversations, it would be clear to any and every person knowledgeable in basic sentencing law that you do not understand the holding in Booker and its progeny.

Posted by: Doug B | Apr 8, 2023 1:12:05 PM

Doug --

"...why have you been repeatedly asserting your record of winning sentencing cases pefore Booker gives you any authority on the meaning of Booker?"

That's actually a fair question (as opposed to the next round of breast-beating), so I'll answer. A long record of winning sentencing cases, and more broadly statutory interpretation cases, suggests that I'm reasonably astute in assessing sentencing and statutory interpretation issues. Does that directly mean that my view of Booker is correct? Nope, but it makes it plausible to believe that my chances are better than those of someone without that record.

I mean, academia for all its bias is fine and I'm now part of it. But for litigating in Court, experience litigating in court is better.

"I have filed dozens of amicus briefs and letters on Booker-rleated issues in a wide array of federal courts."

Yes, well, filing is one thing and winning is another. In how many cases did you file on the winning side, and how many on the losing side? And why is your amicus brief(s) in McClinton just sitting there month after month? Because the SCOTUS Justices are just too dumb to see that Watts now has the status of Plessy?


Posted by: Bill Otis | Apr 8, 2023 3:24:38 PM

Bill, I am not sure if you count amicus filings as "experience litigating." But if you do, I have plenty (and so much more than you in the post-Booker world). Specifically, if you check out my CV (linked above) you can see an abridged list of my amicus filings since Booker. There are 40+ cases listed there, and I know I have been involved with amicus efforts in dozens more cases --- I tend only to list on my CV those amicus briefs that I have had a major role in authoring.

Among cases listed on my CV (most dealing with sentencing issues) are a couple times when I was honored to serve as court-appointed amicus on sentencing issues --- once by then-Sixth Circuit (now Chief) Judge Jeff Sutton and once by then District (now Circuit) Judge Thapar. My view prevailed in both those cases. I suspect you have a high regard, as do I, for the judgment of Chief Judge Sutton and Judge Thapar.

You can also see listed on my CV, among the nearly two-dozen SCOTUS cases, two cases in which I was honored to serve as co-counsel with notable lawyers who had been appointed by SCOTUS to represent a circuit court opinion when the SG abandoned the claim. Batted 50/50 in those (pro-government) cases: in Tapia, working with now-Judge Stephanos Bibas, we lost; in Irizarry, working with now-Dean Peter Rutledge, we prevailed. Notably, Irizarry was a 5-4 opinion with Justice Scalia on our side (in another thread, you call him a "once-in-a-century genius").

As for the many dozens of other cases in which I have filed amicus briefs, I am fairly certain I helped secure a win more often than a loss. But I certainly was on the losing side in some cases, in part because I am not afraid to take on issues that I think have long-standing problematic jurisprudence. My (repeated) failed amicus briefing on acquitted conduct serves as a good example, though I do think my initial effort a decade ago in the Jones case helped prompt the notable dissent from the denial of certiorari authored by that "once-in-a-century genius" Justice Scalia. As for why McClinton has not yet been taken up by SCOTUS, I think it is largely because Prez Trump failed to nominate Justices willing to follow here in Justice Scalia's wise path.

Posted by: Doug B | Apr 8, 2023 4:13:14 PM

Doug --

I don't doubt for a moment your legal acumen. I mean, you were good enough for Guido. But as we all know, really smart people occasionally get things wrong -- you, Scalia, and my wife (but don't tell her I said that).

Indeed, your legal acumen was such that I was disappointed to see that Biden nominated four Dems for the USSC, not one of whom is as smart as you and all of whom are more ideologically over the edge.

Posted by: Bill Otis | Apr 8, 2023 4:56:24 PM

All seven of Prez Biden's nominees to the USSC seem extremely smart and sensible to me; notably, they all voted unanimously for all but one of the USSC's recent significant eleven guideline amendments. I also assume that they all understand the basics of the landmark Booker ruling, which is more than I can fairly say for one of Prez Trump's nominees to the USSC.

Most critically, Prez Trump's failure to make confirmable USSC nominations --- even though his party controlled the Senate while he was in office --- left the USSC without the ability to effectively function for most of his term in office. I think that was a significant disservice to fedeal sentencing law (though many defense attorneys and advocates were quite pleased it worked out that way, since that paved the way for a D-controlled USSC for now).

Posted by: Doug B | Apr 8, 2023 5:07:06 PM

Bill: the red zone is for loading and unloading only. There is no parking in the white zone.

Doug: Don't start with your white zone shit again.

Posted by: Da Man | Apr 12, 2023 2:28:38 PM

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