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July 15, 2024
Split Fifth Circuit panel holds that "changes in the law" can be a basis for sentence reduction under § 3582(c)(1)(A)(i)
A helpful colleague made sure I did not miss a notable new panel decision from the Fifth Circuit in US v. Jean, No. 23-40463 (5th Cir. July 15, 2024) (available here). The case concerns the long-simmering question of whether "changes in the law" can provide a basis for a sentence reduction under § 3582(c)(1)(A)(i), and this appeal concerns review of a reduction granted before the new US Sentencing Commission amended guideline was applicable. Both the facts and reasoning in Jean are worth reading in full, but here are a few key passages from the majority opinion:
The question before the court is a simple one: does a sentencing court have the discretion to hold that non-retroactive changes in the law, when combined with extraordinary rehabilitation, amount to extraordinary and compelling reasons warranting compassionate release? Considering this question carefully, we answer it in the affirmative.
We explain first the discretion afforded to a sentencing court. With this discretion in mind, we conclude that there is no textual basis for creating a categorical bar against district courts considering non-retroactive changes in the law as one factor. Next, we explain that our precedent does not prevent us from reaching this outcome. Nor is this outcome inconsistent with other unpublished decisions from this court. And finally, we explain that, although the Sentencing Commission’s November 1, 2023 Amendments are not binding on appeal, the Amendments support the outcome we reach today....
In deciding the same question before us, the United States Court of Appeals for the Ninth Circuit in United States v. Chen concluded that “[t]o hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done.” 48 F.4th 1092, 1098 (9th Cir. 2022). We agree. Congress has never wholly excluded the consideration of any factors. Instead, it appropriately “affords district courts the discretion to consider a combination of ‘any’ factors particular to the case at hand.” Id....
It is within a district court’s sound discretion to hold that nonretroactive changes in the law, in conjunction with other factors such as extraordinary rehabilitation, sufficiently support a motion for compassionate release. To be clear, it is also within a district court’s sound discretion to hold, after fulsome review, that the same do not warrant compassionate release. For this court to hold otherwise would be to limit the discretion of the district courts, contrary to Supreme Court precedent and Congressional intent. We decline the United States’ invitation to impose such a limitation. And, of course, district courts are now guided by the November 1, 2023 Amendments in future cases.
The dissent authored by Judge Jerry Smith starts this way:
The kindest thing I can say about the majority’s zealous1 opinion is that it is a horrifying violation of this court’s well-respected rule of orderliness. I respectfully dissent.
July 15, 2024 at 10:13 PM | Permalink
Comments
he’d surely say “three cheers for Judge Jerry Smith”
Posted by: Anon | Jul 16, 2024 7:06:59 AM
I don't see a problem with allowing courts to consider non-retroactive changes in the law for this purpose.
Posted by: William Jockusch | Jul 16, 2024 8:52:13 AM
William: you may not see a problem with it, but a non-retroactive change in statutory penalties is the rule. So how can Congress lowering the penalty for a crime prospectively only be extraordinary and compelling to a defendant who was properly sentenced under the prior penalty regime?
Posted by: Anon | Jul 16, 2024 9:02:03 AM
And let me add: this case involved subsequent DECISIONAL law affecting how the sentence should be calculated. 2255 and AEDPA provide strict limits on how and when such claims can be brought. A miscalculated (advisory) Guidelines range is not even a cognizable error under 2255, so why should you be able to do an end-run around collateral attack limits by invoking 3582(c)(1)?
Posted by: Anon | Jul 16, 2024 9:05:12 AM
Anon: I think you (like many others) are confounding legal rules/remedies and equitable rules/remedies. When Congress makes a new (sentencing) law retroactive, as a matter of law, all legal actors are required to implement that retroactive law even if lots of equities might not justify it. Likewise, if someone has a winning 2255 claim based on clear constitutional law (eg, his appointed lawyer had a 6A conflict because he was sleeping with the prosecuton), the defendant should prevail and get his conviction vacated even if poorly behaved (or even murderous) while in prison. Certain legal rules/remedies require adjudication with a strict focus on the specifics of that rule/remedy.
In contrast, 3582(c)(1) creates an equitable remedy with broad qualifying language that is purely discretionary. A judge (based on arguments by prosecutors) could say someone qualifies for a sentence reduction based on any number of factors (or say they do not qualify on any number of factors), and then also say that they do not think the 3553(a) factors call for any sentence reduction in their discretionary judgment (or for only a small reduction or a move to home confinement). My sense is that, for most equitable remedies, the norm is that all relevant factors can and should be able to be considered as judges exercise their equitable discretion in assessing qualifying factors and exercising their sentence reduction discretion. (Eg, to play up the contrast, nobody would argue a convicted person has a stronger IAC claim in habeas because his sister was diagnosed with ALS; but that it a potentially (but not certainly) relevant fact in a 3582 proceeding.)
Of course, in our system, we think Congress can (and perhaps should) place limits on judges even when giving them broad equitable discretion. And Congress in this setting did just that through 28 USC 994(t) when it stated: "The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, 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. Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason."
Notably, Congress did not change 994(t) to say, when amending the applicable procedural parts of 3582 in the First Step Act, that it wanted more restrictions on judges' modification powers or to have the strict limits of 2255 and AEDPA applicable to 3582. If textualism is really a thing, circuit courts should not invent categorial limits on 3582(c)(1)(A) that are not actually in the text, even if you or others see good policy reasons for doing so. Bring those policy arguments to Congress and get them to put any categorical limits you seek into the text of the statute. (This is what I read SCOTUS to be stressing in its 2022 Concepcion ruling.)
Again, you might reasonably think the broad equitable remedy in 3582 is really bad policy, but Congress decided to make that remedy broadly available (subject to USSC rules) through the First Step Act. (And, notably, less than 0.3% of the federal prison population secures this remedy in recent years.) If Congress wants to limit this equitable remedy more, it can do so through statue. Circuit courts ought not do so through fiat.
Posted by: Doug B | Jul 16, 2024 9:43:28 AM
Prof. Berman -
So someone who committed a federal murder before Booker, and whose statutory range was 0 to life, and who received life because the Guidelines required it, can say that Booker is a change in law that presents an extraordinary and compelling reason? And can a defendant make that argument even if the sentencing judge expressed no concern that the Guidelines prevented him from imposing, say, a 25-year sentence?
Posted by: Anon | Jul 16, 2024 9:49:42 PM
Anon: Yes, because Congress stated expressly that only "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason," any other factors can be a lawful POSSIBLE basis for an argument that the case presents "extraordinary and compelling reasons" that warrant a sentence reduction. However, this defendant will have to show a judge just how and why this change of law (presumably combined with other factors) in his particular case presents "extraordinary and compelling reasons" that warrant a reduction AND that any reduction is "consistent with applicable policy statements issued by the Sentencing Commission" AND the judge must also "consider[] the factors set forth in section 3553(a) to the extent that they are applicable." That's what Congress set forth as the requirements in the text of § 3582, and I am eager to see court faithfully apply this text.
(Critically, not every change in law will be a compelling and extraodinary reason, most surely won't. That's surely true for so many other possible C&E factors. But we are discussing what can be a lawful argument, and the text Congress passed is the guide for that. Then individual judges in individual cases decide about the particulars in that case.)
Important point: in each case, not only must the district judge make a lot of statutory determiniations to grant a sentencing reduction, those determinations are appealable and a circuit court can certainly conclude and rule that, in a particular case, it disagrees with the district courts findings that a reduction is justified in that case. But what I do not think a circuit court could or should do is rule that, as a categorical matter, any particular factor (other than rehabilitation alone) can never be the basis for a sentence reduction. Congress clearly provided that it wanted the US Sentencing Commission, not (likely divergent) circuit courts, to set forth "what should be considered extraordinary and compelling reasons for sentence reduction."
Just like Congress did not enact text calling for circuit courts to create their own sentencing guidelines --- that is a job for the USSC --- the text of 3582 and 994 does not call for circuit courts to create their own sentencing modification rules. Congress put that responsibility in the hands of the USSC, and district judges and circuits then apply those rules in individual cases.
Posted by: Doug B | Jul 17, 2024 8:28:33 AM
Prof. Berman - when you say "not every change in law will be a compelling and extraodinary [sic] reason, most surely won't," surely you can't be saying that pairing such a non-extraordinary change in law with rehabilitation would amount to extraordinary and compelling circumstances, can you?
And how could the Booker decision be extraordinary and compelling in a case where the statute itself authorized life imprisonment, and there is no indication that the sentencing judge was bothered by his lack of discretion to impose less than life? Otherwise, any successor judge will improperly rely on his or her view of the defendant TODAY ("he's already served 25 years and he's really remorseful") to override a sentence that we know to a certainty would have been imposed even under an advisory Guidelines regime. That sounds like a per se abuse of discretion to me. But what do I know.
Posted by: Anon | Jul 17, 2024 9:19:53 AM
Anon: I think you are misframing what 3582 is all about, as it has nothing to do with unlawfulness or legal error in the initial sentence (though, of course, all sentences subject to mandatory judicial fact-finding that increased the sentence range before Booker were imposed in a manner we now considered unconstitutional). Even without any legal issues/problems with a properly imposed and entirely valid sentence (realizing legal erros can sometimes be addressed via other remedies like appeals and 2255), Congress created a distinct means for judges to reduce (entirely lawful) sentences when (and only when) a person is still serving time in prison subject to the rules in 3582.
Notably, when first created BOP and the USSC were the gatekeepers on this sentence reduction authority. But as prison populations swelled and BOP never used this authority, Congress in the First Step Act made just the USSC the gatekeeper as prisoners can now directly file sentence reduction motions. That was a policy choice to enable more judges to consider these motions, and Congress did not change the substantive limits on these motions (meaning all sorts of arguments are viable).
You may think it is very bad policy to trust judges with this broad sentence reduction authority. If so, urge Congress to put more restrictions on the authority and/or urged the USSC to write a more narrow policy statement. But that's who make the general policy --- Congress, with express delegation to the USSC. The individual circuits do not get to make up their own blanket rules even if they think it bad policy to ever allow changes in the law --- or illness of a family member or sexual abuse in prison or any other factor --- to be considered in a mix of possible factors.
Notably, you are already suggested a fact-based inquiry ("original judge not bothered by life sentece"; "25 years served") which are all relvant facts. But so are many others (eg, is defendant now 48 or 84; what happened to co-defendants; has he saved a guard's life will imprisoned, and on and on and on). The only point I am making is that it is up to Congress and/or the USSC to make the blanket policy rules here, not circuit courts.
Posted by: Doug B | Jul 17, 2024 10:27:27 AM
Prof Berman -
Respectfully, YOU are conflating the decision whether to reduce a sentence in the exercise of 3553(a) discretion with the antecedent question of whether a certain circumstance of combination of circumstances qualifies as "extraordinary and compelling." You don't get to to the 3553 step if you don't get past the E&C step. My question -- which you failed to answer in the comment just above -- is whether a judge can properly find E&C reasons based on 2 factors: Booker and extraordinary rehabilitation IF there is nothing in the sentencing transcript indicating that an advisory Guidelines system would have made a difference?
Surely, the judge cannot ask "WOULD I impose a lower sentence NOW?" That's a 3553(a) question, not an E&C reasons question. And if the judge allows his "would I impose a lower sentence now" answer to infect his E&C determination, then that kind of proves this whole thing is an unmitigated mess.
Posted by: Anon | Jul 17, 2024 10:45:48 AM
Actually, Anon, I think it is quite unclear from the statutory text whether the E&C or the 3553(a) step comes first (or they come together), but the courts have generally operated with the E&C step as if it comes first. On that front, I am confused why you keep stressing the original "sentencing transcript." Are you claiming a change in the law CAN legally be an E&C factor if (and only if?) the initial sentencing judge disliked the law of mandatory guidelines, but cannot be an E&C factor otherwise? In the end, that you keep stressing the fact seems to prove my point -- namely that not all "changes in the law" are the same, and Congress did not categorically preclude them from ever being considered in conjunction with all the other relevant facts and factors.
A judge who receives a sentence reduction motion is to ask, according to the statute that Congress passed (and recently expanded procedurally), "after considering the factors set forth in section 3553(a) to the extent that they are applicable," whether he "finds that extraordinary and compelling reasons warrant such a reduction." All I am staying is that the text Congress enacted indicated that, as a categorical matter, any and everything could possibly legally qualify as E&C other than rehabilitation alone.
Congress has also instructed the US Sentencing Commission to describe "what should be considered extraordinary and compelling reasons for sentence reduction." That indicates it is for the USSC and not the individual circuits to set up the categorical rules. Individual judges and appeals can/must apply those rules case-by-case to the facts, but the circuits do not get to make up the general rules.
(One important judge once said judging was about calling balls and strikes, not pitching and batting. Here Congress "pitched" expanded sentence reduction authority in the First Step Act, with the USSC finally getting to "bat" to devise the specific policy statement rules. Judges should apply those rules, not make up their own.)
Posted by: Doug B | Jul 17, 2024 2:22:03 PM
You are mistaken about the case law. The judge has to determine, first, if there is an E&C reason for the reduction. Even if he concludes there is (suppose the defendant is seriously ill), he still has to weigh the 3553(a) factors and decide whether the crime was so serious, etc., that release is unwarranted.
You seem to be proposing a system where, if a judge concludes that the 3553(a) factors warrant a reduction, the judge can then go searching for an E&C reason to justify doing what he wants to do. That's not how it's supposed to work, but in practice I'm sure that's going on all the time.
I keep stressing what the original transcript said because how can the mere fact that the Guidelines are now advisory be an E&C if it wouldn't have mattered to the judge who imposed the sentence? Your answer is that it only needs to matter to the judge who is evaluating the compassionate release motion. If THAT judge finds it E&C, well then it's open season. I don't think that's what Congress had in mind.
Posted by: Anon | Jul 17, 2024 2:56:35 PM
Anon: I am not "proposing" anything, I am seeking to the faithful to the text of the applciable statute. And that is what matters, the actual text of the actual statute that was lawfully enacted, not "what Congress had in mind." I have no idea "what Congress had in mind," and I am not even sure which Congress should matter to would-be Congress mind-readers: is it the 1984 version that enacted the SRA or the 2018 version that enacted the First Step Act or the 2023 version that considered and did not reject the USSC's new policy statement on sentence reduction rules?
Speaking to the text Congress actually enacted, as I said, it is textually unclear whether the E&C or the 3553(a) step comes first (or they come together). However sequenced, I agree that there needs to be both and E&C finding and 3553(a) analysis, and I noted in my prior comment that "the courts have generally operated with the E&C step as if it comes first." So that is the way the case law has developed depite (or perhaps because of) the opaque statutory text.
Critically, these motions go back to the original sentencing judge, but I assume you are imagining a situation in which that original sentencing judge is no longer available and so a new judge is considering the motion. My point is, no matter who decides the motion, the judge can only reduce a sentence if it "finds that extraordinary and compelling reasons warrant such a reduction"; in considering that issue, Congress has instructed that "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason" and that such a reduction must be "consistent with applicable policy statements issued by the Sentencing Commission."
That the defendant was sentenced under mandatory guidelines can be a factor in assessing extraordinary and compelling reasons, that the defendant is a certain age and of certain health and has been a model prisoner can be a factor, and so can everything else relevant to the myriad of possible extraordinary and compelling reasons that might possibly warrant reducing a person's prison sentence (or placing them on home confinement).
Congress said only that judge will have to "find that extraordinary and compelling reasons warrant such a reduction," and it is up to judges in individual cases to decide and explain their findings if reducing the sentence. If DOJ appeals, the appeals court can and will then review the findings, and it may be influence by the factors that you think important. But the circuit must rule based on the text of the law and only resolve that one case on appeal, since courts are not supposeed to make up laws based on what they think Congress is thinking (or make policy/laws assigned to USSC rulemaking).
Posted by: Doug B | Jul 17, 2024 3:15:17 PM
Then we should all write in to have Congress either repeal the section, except in cases of medical/age necessity, or allow for plenary review in the courts of appeals. A system that freely allows revision of sentences based upon the whim of the judge assigned is no system at all. But amazing how the professorship hated the Guidelines (the key feature of the SRA) but LOVE 3582(c)(1), which allows unfettered revision of final sentences so long as the judge is creative enough and dots the i's and crosses the t's
Posted by: Anon | Jul 17, 2024 4:16:57 PM
Anon: you can also write in to the US Sentencing Commission and urge that agency to restrict the reasons for a reduction. Notably, USSC data show that in the last fiscal year, about 60,000 people were given new federal prison sentences, whereas only 432 people got their prison sentenced reduced. And since about 180,000 people were serving time in federal prison at some point during that fiscal year, less than about 0.25% of all federal prisoners got their sentence reduced and the majority of those appear to be for age/medical/family reasons.
In other words, the data give no indication of being a free-for-all in any way, with 99.75% of prisoners not getting a reduction. If a much, much larger number/percent of sentences were being reduced, I expect we might see advocacy for reform (which should be directed to Congress and the USSC). But that's not what the data show. Judges are rejecting these motions in roughtly 9 out of every 10 cases in which they are brought, and the grants generally seem soundly based, as Congress required, on "extraordinary and compelling reasons" as found by a judge.
Meanwhile, if you read my scholarship, you will see it is quite supportive of both the SRA and sentencing guidelines in general. I criticize a lot of guidelines in their particulars for lots of reasons (and also procedural problems in their application), but I am a very big fan of bringing law to sentencing. I also am a big fan of courts being tasking with applying the law as written, not making it up based on their policy beliefs. And so I direct my concerns with the guidelines by writing letters to the USSC and not by urging circuit court to invent new (guidelines) law. When folks think the law as written makes for bad policy, you have it right that the proper response is to advocate for different policies with the appropriate policy-makers.
Posted by: Doug B | Jul 17, 2024 4:47:04 PM
My perspective on this is that I would want the judge to look at the whole picture. And if the sentence for a crime has been reduced, that's part of that picture.
Posted by: William Jockusch | Jul 17, 2024 6:03:06 PM
Mr Jockusch:
the whole point of my hypothetical is that Booker didn’t lower the penalty for the murder offense i described. The statutory penalty was zero to life. Before Booker the judge had to impose life. After, the judge has discretion to impose something less. But that doesn’t mean that the judge who originally sentence the defendant would have imposed less than life had he had the discretion to do so.
Posted by: anon | Jul 17, 2024 10:36:29 PM
And, anon, to get back to where we started, let me repeat again that 3582(c)(1) is not about correcting or fixing a legally problematic sentence (other procedures are for legal correction). Congress created 3582(c)(1) to allow for a sentence reduction based on changed circumstances and other relevant considerations, and the basic question is whether changes in the law can be part of the mix of considerations. Since rehabilitation alone is the only excluded factor based on the text Congress enacted, it seems all of other relevant considerations are possibilities as a general matter (though prisoners still need to meet the statutory criteria to have a chance at a reduction, and very few succeed).
Posted by: Doug B | Jul 18, 2024 8:48:34 AM
"Meanwhile, if you read my scholarship," I also read your posts on this blog and they all sound like "an law that allows imposition of a lower sentence is good. Any law that mandates a higher sentence is bad."
Would you be opposed to a law or rule that says subsequent non-retroactive judicial decisions can never be considered extraordinary or compelling? If not, why?
Posted by: Anon | Jul 18, 2024 9:25:44 AM
Anon: In this post at my new Substack, you can find some links to some of my writings in support of various forms of second-look sentencing: https://sentencing.substack.com/p/envisioning-a-second-look-sentencing
I favor broad second-look (re)sentencing authority because I think it sound policy that serious deprivations of liberty by the government, especially in the form of long terms of imprisonment, be reviewed and justified at various points in the future based on a wide range of potential changed circumstances. Changes in the law, both statutory changes and judicial changes, are among the potential changed circumstances that I think can be relevant to sentence reviews. Consequently, I do not support any categorical limits on what relevant factors can be considered in a second look review. (Indeed, I do not support the "rehabilitation alone" limit in current federal law, but I recognize this was a policy decision made by Congress enacted into statute that places a current legal limit on 3582 reasons.)
To be quite clear, I am not advocating for some or all non-retroactive judicial decisions to ALWAYS be considered extraordinary or compelling or even suggesting this kind of change in law is to be a strong or even significant factor in most cases. Rather, I am just stating that I would not support making any relevant (re)sentencing consideration NEVER part of the analysis. In this respect, I am treating this potential factor like all others -- eg, I would not advocate that the age or poor health of a prisoner is always a dispositive factor, but it should be eligible to be a relevant factor that can be considered along with other relevant factors.
One of many reasons I take this view is because I generally trust federal judges, when subject to reasonable legal rules and guidance about their sentencing and resentencing authority (and subject to appellate review and future USSC/Congress rule-making), to exercise their sentencing and resentencng discretion reasonably. (In service to democratic values, I would like to have juries more involved in a lot of this sentencing decision-making, but that seems to be an administrative cost that few policymakers seem eager to bear.)
Put more directly, I have not seen any examples of federal judges appearing to abuse their power under 3582 since Prez Trump signed the First Step Act into law, and the data suggest very few prisoners are getting reduced sentences. Do you have particular cases in mind where you think the 3582 power is being abused?
Posted by: Doug B | Jul 18, 2024 11:17:29 AM
The very case that started this post.
Posted by: Anon | Jul 18, 2024 12:28:22 PM
But some judges recognize that a second look doesn't always mean a reduction is in order. Rightly so!
https://www.fox10tv.com/2024/07/17/judge-declines-alter-sentences-mobile-doctors-who-got-supreme-court-victory/
Posted by: Anon | Jul 18, 2024 12:38:25 PM
