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February 1, 2024

Two new grants of sentence reductions rejecting DOJ's arguments that change in the law an improper ground

A helpful reader made sure I saw two notable new grants of sentencing-reduction motions. I recommend the both full opinions as they covers thoughtfully the legal debate over the US Sentencing Commission's new sentence-reduction guideline. Here are links to the opinion and key snippets from the rulings:

US v. Capps, No. 1:11-cr-00108-AGF (ED Mo. Jan. 31, 2024):

the Government argues that subsection (b)(6) is an invalid exercise of the Commission’s authority.  Specifically, the Government contends that subsection (b)(6) conflicts with § 3582(c)(1)(A) because nonretroactive changes to sentencing law are neither extraordinary nor compelling.  The Government further argues that the subsection raises separation-of-powers concerns because it contradicts Congress’s deliberate choice not to make the change in sentencing law here retroactive.

The Court disagrees. “Congress is not shy about placing [sentencing modification] limits where it deems them appropriate.”  Concepcion, 597 U.S. at 494. In this case, Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. See § 3582(c)(1)(A). Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction.

The absence of any such limitation is telling. Congress could have drafted such a blanket prohibition into § 3582(c)(1)(A), as it did in 28 US.C. § 994(t) by specifying that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.”  See also Concepcion, 597 U.S. at 483 (“Congress has shown that it knows how to direct sentencing practices in express terms.”).  Congress chose not to impose a similar prohibition with respect to nonretroactive changes in the law.

Download United States v. Capps - Grant (2023.01.31) (002)

US v. Padgett, No. NO. 5:06cr13-RH (ND Fla. Jan. 30, 2024):

The government also asserts that reducing a sentence based on a statutory change that Congress did not make retroactive is inconsistent with Congress’s decision not to make the change retroactive.  Not so.  When Congress chooses not to make a change retroactive, it means the change cannot be invoked by every affected defendant.  It does not repeal § 3582(c)(1)(A)(i) or prevent an affected defendant whose circumstances are extraordinary and compelling from invoking that provision.  See Ruvalcaba, 26 F.4th at 27–28.  Congress could rationally decide to change a statute — by changing the criteria for or length of minimum mandatory sentences, for example — and not to make that change a basis for a sentence reduction in a typical case, while still allowing a reduction in extraordinary and compelling circumstances.  And indeed, that is precisely what Congress has done.  Congress has said rehabilitation alone cannot be an extraordinary and compelling reason for a sentence reduction, but Congress has imposed no other limits on those terms. Id. at 25–26.  Neither the Sentencing Commission nor the courts are obligated to read into the statute an exception Congress did not enact. Id. at 26.

Download Foey Padgett Order reducing sentence b6 is legal (002)

February 1, 2024 at 11:37 PM | Permalink


All a bunch of lawyer gymnastics. If Congress wants to make a reduction retroactive, it knows how to do it in the statute (and sometimes has). When if fails to take that step, it's hardly up to the judicial branch to re-write the statute to suit its pro-criminal tastes.

Posted by: Bill Otis | Feb 2, 2024 2:36:05 AM

C'mon--you can't trust Congress to say what it means or mean what it says. Just watch for the exciting forthcoming majority opinion in Loper Bright v. Raimondo.

To truly understand anything, you need access to the Burke Codex of Isopsephy.

I hear the Federalist Society keeps one of the few surviving copies. If you want to know what it says, you'll just have to ask one of their members. They won't tell you, but they might indulge your guesses until you get it right.

Posted by: Pabst Blue Ribbon | Feb 2, 2024 3:20:23 AM

OT, but here's something from Ohio:



Posted by: federalist | Feb 2, 2024 10:22:26 AM


Interesting point the lawyer makes.

And Jim Jordan is subpoenaing Fani WIllis over misuse of federal funds.

Posted by: federalist | Feb 2, 2024 11:27:22 AM

In the (vain) hope of keeping discussions tethered to main post (or at least sentencing):

Bill: You are right that when Congress fails to authorize across-the-board retroactivity, courts should not seek to re-write a statute to authorize across-the-board retroactivity. But, when Congress provides that the US Sentencing Commission "shall describe" when individual prisoners may be eligible for a sentencing reduction, courts also should not re-write a statute to preclude sentencing reductions according to the terms set forth by Congress and the USSC. Here the text is quite clear, but DOJ is asking the judicial branch to re-write a statute to serve its interests.

federalist: I was unaware of the Ohio case you note, though it seems to include a 10-year consecutive mandatory minimum under 18 USC 844(h). I am not sure how often or how consistently that MM gets applied by DOJ. I am sure DOJ will never tell us.

Posted by: Doug B | Feb 2, 2024 12:31:51 PM

RE: Ohio, the DOJ went to bad for a Minneapolis arsonist who actually killed someone and throw the book at this guy, and that's not even getting into the lawyers tossing Molotovs. The problem is that the DOJ is really playing with fire.

Posted by: federalist | Feb 2, 2024 12:58:30 PM

Yup. And, again, this is what we see in high-profile areas where DOJ knows there are lots of folks watching (and only a handful of comparable cases). Just think about what transpires when we are talking about guns, drugs, kiddie porn, settings in which there are thousands of cases every year and relatively few watching (or caring)...

Posted by: Doug B | Feb 2, 2024 1:48:35 PM

Doug --

One of your main concerns of late seems to have been lack of transparency by DOJ.

But hasn't that lack, such as it may be, persisted through Eric Holder, Loretta Lynch, and now for several years through Merrick Garland? And through a House of Representatives led for many years by Nancy Pelosi? And now, also for years, through a Senate Judiciary Committee led by Dick Durbin?

It would seem that the most powerful (and most liberal) folks in a position to advance what you want aren't interested. Perhaps this is because they're satisfied with the present level of transparency, where the final products (the plea agreement and the Rule 11 hearing) are already public, and where Congress, through its oversight function, can ask any additional questions it cares to (which it often does).

A fair and visible process is a good thing, as I'm sure all the folks I've mentioned would agree. A reduction in murder and the shocking number of drug overdose deaths (now easily at record levels in American history) would be a lot better. Time to make sure our priorities square with common sense.

Posted by: Bill Otis | Feb 2, 2024 3:23:11 PM

Pabst --

As I've said before, I don't know what you're drinking, but it ain't beer.

Posted by: Bill Otis | Feb 2, 2024 3:26:10 PM

Bill, I started paying close attention to DOJ sentencing policies and practices starting in about 1994, and DOJ operations in this realm have been marked by a relative lack of transparency over the full three decades that I have been paying attention. I suspect various forms of govt secrecy will always garner bipartisan support among govt insiders, and it does not surprise me that such secrecy persists for generations no matter who wields power (and I doubt DOJ is unique in this regard among govt agencies and actors). Though I am not a historian, I sumise the FBI under J Edgar Hoover and the work of Harry Anslinger were not models of transparency, and we needed Nixon's scandals just to move the sunlight needle a bit (and we still do not even have cameras in federal courts).

It seems like you are eager to respond to my concerns about the lack of DOJ transparency --- which also muffles opportunities for accountability --- by saying there are other more important priorities. But how can we expect to advance on any priories when folks like federalist are quick to call all of DOJ corrupt, and you seem disinclined even to engage his claims? Sunlight is the best disinfectant and darkness serves to foster conspiracy theories and all sort of allegations of misdeeds. Whomever is in charge and whatever their substantive priorities, greater government transparency and accountability seems to me to be an unmitigated good in service to all other priorities. But it is not, of course, cost-free to people in power --- see, eg, indictments against Prez Trump AND revelations of misdeeds by DA Fani Willis AND the cops who've been suspended for mistreating the Long Island Audit guy. I am sure there are folks who would assert that their various other "priorities" justify not seeking transparency and accountability regarding their behaviors. I am not one of those folks.

But it is quite cute, Bill, how you keep wanting to defend DOJ to me, but not to federalist. It is quite tellling, too.

Posted by: Doug B | Feb 2, 2024 4:13:27 PM

Doug, I think the academy should look in the mirror. So much academic energy has been wasted chasing out there nonsense over the years that it swallowed up all the oxygen, and the abuses by the DOJ got ignored. Let's take one example--years ago, Daryl Foster, a top civil rights attorney at Justice was caught running personal expenses through the government reimbursement process. He was never prosecuted and was allowed to keep his job. Senator Grassley dug into this issue, and he found many more examples of the DOJ going easy on its own. Where was the academy? Obviously, this lenience demonstrates a clear lack of commitment to the rule of law.

Now the DoJ is out of control. It has plainly been weaponized. And most of you guys cheerlead.

Posted by: federalist | Feb 6, 2024 12:53:01 PM

federalist, Bill alleges that the mantra of the academy is that all prosecutors "are evil." I can't speak to articles on the civil side of DOJ, but I would speculate you could find dozens of published legal academic articles criticizing DOJ's criminal work for any one providing even a partial defense of DOJ's criminal work. And one regular theme of academic criticism of our CJ system run by DOJ and other prosecutors is that they punish marginalized folks too harshly while being relatively lenient on elites. But leniency never garners all that much attention --- in the academy or elsewhere --- unless it advances an agenda (cf: Judge Jack Camp v. Brock Turner).

And that's why I keep asking if/when you'd be eager to endorse a Prez candidate pledge to reduce the footprint of an agency you call "out of control" and "weaponized." I have often here and elsewhere expressed deep concerns about how DOJ goes about its work in the criminal realm. Are you prepared to go beyond just tiresome name-calling with respect to your DOJ disaffinity? Write up some serious proposals for reform if you really think these problems are so serious. I know you tend to shrink away from --- or maybe just lack time to pursue --- my suggestion that you write up your thoughts in a rigorous way. But you clearly have strong feelings about DOJ's manny failings, so try to give them some rigorous treatment.

Posted by: Doug B | Feb 6, 2024 1:22:02 PM

Doug --

"Bill alleges that the mantra of the academy is that all prosecutors 'are evil.'"

Could you QUOTE me making that allegation?

Righhhhhhhhhhht. This is about the 300th instance of your stuffing words in my mouth.

It's quite true, as you seem to acknowledge, that academia is overwhelmingly pro-defense, and that I've said so (and will continue to say so). Does that gross imbalance concern you? Do you think a tilt toward more viewpoint diversity would be a good thing? That law schools should be less of a hotbed of anti-prosecution bias?

But to answer you directly: In fact, academia, far from condemning ALL prosecutors, would seem to be in love with quite a few -- George Gascon, Larry Krasner, Fani Willis (I don't know if they love her boyfriend too), Alvin Bragg, Kim Foxx, Eric Gonzalez, Rachel Rollins, Chesa Boudin (until the voters kicked him out), Marilyn Mosby (is she in jail yet?), Andrew Warren, Steve Descano and last (for the moment) but hardly least, Jack Smith.

Did I ever say that "the mantra of the academy" is that any of those -- a single one -- is evil? And these are the prosecutors for some of the biggest jurisdictions in the country.

You'd be better off leaving this kind of brain-dead exaggeration to Pabst and his buddies.

Posted by: Bill Otis | Feb 6, 2024 1:51:11 PM

Doug, honestly, I think you just don't see it. Remember the outrage around Sharon "Killer" Keller? All she did was take the position that judges shouldn't help lawyers perfect appeals. The academy hated her.

Posted by: federalist | Feb 6, 2024 1:56:51 PM


Posted by: federalist | Feb 6, 2024 3:01:20 PM

federalist, honestly, I think you are conflating so many disparate issues. The academy, which is disproportionately abolitionist on the death penalty, will often go after those who are not. (I have been shouted down a few times, in a few settings, because I am not a capital abolitionist.) But state death penalty actors have ZERO to do with DOJ.

Posted by: Doug B | Feb 6, 2024 4:00:08 PM

Bill, you've lampooned pro-defense arguments/positions/papers you find distateful by saying the arguments are based on claim that "evil prosecutors" are the root of the problem (or variations on that theme). It is part of your complaint that, as you put it here, academia is "overwhelmingly pro-defense" or a "hotbed of anti-prosecution bias."

That was, of course, exactly my point to federalist --- namely that, at least on the criminal law side, it is hard to see how "abuses by the DOJ" are ignored or that there is any DOJ cheerleading given the anti-DOJ/prosecution inclination of much of the academy. I apologize, Bill, if the words I used did not fairly characterize your complaints about the academy, though I think captured their spirit. And someone is missing reality if you assert the academcy is a hotbed of anti-DOJ bias while federalist asserts the academy is full of DOJ cheerleaders.

Posted by: Doug B | Feb 6, 2024 4:23:23 PM

Hey federalist, here is more for your DOJ file:

"Prosecutors Buried Evidence And Misled The Court. Ten Years Later, They Got A Slap On The Wrist." https://theintercept.com/2024/02/05/prosecutors-buried-evidence-justice-department-opr/

Posted by: Doug B | Feb 7, 2024 9:44:41 AM

I have one word Doug, repulsive. So where is academia. You guys write for a living, lol.

Posted by: federalist | Feb 7, 2024 11:54:30 AM

I could link hundreds of Brady/misconduct academic articles, federalist, possibly thousands. Here are a just few from a very quick google search:






The problem isn't the academy's cheerleading, it's the structures of prosecutorial powers, a bench (and legislative folks) historically full of former prosecutors, and DOJ apologists inside and outside the agency. Also, on the criminal side, it matters a lot that the vast majority of the folks DOJ is going after ain't the good guys.

Posted by: Doug B | Feb 7, 2024 1:34:41 PM

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