Sixth Circuit: Courts May Consider Nonretroactive Change in Law as One of Several Factors for Extraordinary and Compelling Circumstances for Compassionate Release
by Matt Clarke
The U.S. Court of Appeals for the Sixth Circuit held that the U.S. District Court for the Northern District of Ohio erred when it failed to consider a change in sentencing law announced in United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (“attempted” controlled substance offenses do not qualify as predicate offenses for purposes of the career-offender enhancement), the COVID-19 pandemic, and the rehabilitation efforts of a federal prisoner, either alone or in tandem, as factors potentially justifying compassionate release under 18 U.S.C. § 3582(c)(1)(A).
David McCall pleaded guilty to conspiracy to possess and distribute heroin in 2015 and was sentenced as a career offender to 235 months in prison. After the Bureau of Prisons (“BOP”) refused to file a motion for sentence reduction on his behalf, he filed a pro se motion for compassionate release, citing three “extraordinary and compelling circumstances” warranting his release: (1) the COVID-19 pandemic; (2) he would have received a much shorter sentence post-Havis because his prior drug trafficking and assault convictions would not have qualified as a career-criminal predicate offenses; and (3) his post-sentencing rehabilitation efforts.
With the assistance of counsel, McCall filed a supplement to his motion identifying district courts that have granted compassionate-release motions based in part on sentencing disparities in light of Havis. See United States v. Jackson, 515 F. Supp. 3d 708 (E.D. Mich. 2021); United States v. Lawrence, 2021 U.S. Dist. LEXIS 42604 (E.D. Mich. Mar. 8, 2021); United States v. Wahid, 2020 U.S. Dist. LEXIS 146851 (N.D. Ohio Aug. 14, 2020).
In a form order denying McCall’s motion, the district court stated that McCall “cites no health concern that puts him at risk in light of the pandemic,” Havis is nonretroactive and thus it could not comprise an extraordinary and compelling reason, and rehabilitation alone cannot form an extraordinary and compelling reason to grant compassionate release. McCall timely appealed, arguing the district court erred by failing to review his claim for extraordinary and compelling circumstances.
The Court stated that compassionate release may be granted when a court finds that three requirements are satisfied: (1) “extraordinary and compelling reasons warrant” a sentence reduction, United States v. Jones, 980 F.3d 1098 (6th Cir. 2020) (citing 18 U.S.C. § 3582(c)(1)(A)(i)); (2) “reduction is consistent with applicable policy statement issued by the Sentencing Commission,” Id. (citing § 3582(c)(1)(A)), but when a prisoner files the motion rather than the BOP, this step is omitted, Id.; and (3) after consideration of any applicable § 3553(a) factors, reduction authorized in the preceding requirements “is warranted in whole or in part under the particular circumstances of the case.” Jones (quoting Dillon v. United States, 560 U.S. 817 (2010)).
The Court then discussed relevant circuit precedent. It explained that in United States v. Tomes, 990 F.3d 500 (6th Cir. 2021), the Court held that because the First Step Act is nonretroactive, a prisoner cannot show extraordinary and compelling circumstances justifying release based solely on the disparity between the sentence actually received and the sentence that would have been imposed under the First Step Act. But in United States v. Owens, 996 F.3d 755 (6th Cir. 2021), the Court held that district courts “may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied.” (emphasis added)
The Court explained that Owens acknowledged that First Step Act sentence disparity alone is not sufficient to establish extraordinary and compelling reason for compassionate release, but Owens held that Tomes does not bar a “middle path” of a district court considering a First Step Act sentence disparity as one of several factors in a compassionate release determination. See Owens (collecting cases considering a sentence disparity as one of several factors in the compassionate-release context).
A month after Owens was decided, a divided panel of the Sixth Circuit in United States v. Jarvis, 999 F.3d 442 (6th Cir. 2021), rejected Owens. The Jarvis majority declared that Tomes was “controlling authority” that bound the panel,” rendering Owens a later-issued conflicting decision that must be ignored. The panel sought to clarify the issue by stating First Step Act sentencing disparities under its nonretroactive amendments could not constitute extraordinary and compelling circumstances “by themselves or together with other factors.” Jarvis. In his Jarvis dissent, Judge Clay stated that the Tomes Court rejected the significance of the sentencing disparity only after it rejected other potential extraordinary and compelling circumstances, meaning that the Tomes Court never evaluated the sentencing disparity in concert with other potential circumstances for compassionate relief.
Shortly thereafter, another panel of the Sixth Circuit in United States v. Hunter, 12 F.4th 555 (6th Cir. 2021), rejected Owens as controlling authority and, according to the Court in the present case, expanded upon Jarvis in a manner important for the current analysis: under Hunter, nonretroactive changes in the law based on United States v. Booker, U.S. 220 (2005), cannot constitute an extraordinary and compelling circumstance for a sentence reduction, either alone or in concert with other factors.
Turning to the present case, the Court concluded that the district court abused its discretion by not considering the disparity in McCall’s sentence post-Havis together with his rehabilitation efforts and COVID-19 claim. See Jones (a court abuses its discretion when it “interprets the law to bar it from granting a reduction when, in fact, it has discretion to do so”).
The Court explained that Tomes isn’t the controlling law for this case because it never discussed whether the First Step Act’s nonretroactive provisions, in concert with other factors, could constitute extraordinary and compelling circumstances. After the Tomes Court rejected the defendant’s asthma-related COVID-19 claim, it stated that the First Step Act’s nonretroactive provisions could not support a motion for compassionate release, but it never discussed whether such nonretroactive provisions in conjunction with other factors could do so, the Court explained.
It noted that two other circuits that have analyzed Tomes agree with the Owens Court that Tomes stands for the proposition that a nonretroactive sentence alone cannot be the basis for extraordinary and compelling circumstances. See United State v. McGee, 992 F.3d 1035 (10th Cir. 2021) (agreed with “the Sixth Circuit’s decision in Tomes that the fact that a defendant is serving a pre-First Step Act mandatory life sentence … cannot, standing alone, serve as the basis for a sentence reduction….”); United States v. Thacker, 4 F.4th 569 (7th Cir. 2021) (adopting the Jarvis rule but stating that Tomes held that a “nonretroactive change to sentencing law in the First Step Act could not, by itself, constitute an extraordinary and compelling reason for release”).
The Court noted that Owens was the first case within the circuit to address the present issue and explained that Jarvis, by contravening Owens, created a split within the circuit. Because Owens was decided prior to the Jarvis decision, Owens “remains controlling authority” that binds future panels, the Court declared. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985). Thus, the Court announced: “Under our precedents, a court may consider a nonretroactive change in the law as one of several factors forming extraordinary and compelling circumstances qualifying for sentence reduction under 18 U.S.C. § 3582(c)(1(A).
Consequently, the Court proceeded with its analysis in accordance with Owens. First, regarding McCall’s COVID-19 claim, the Court ruled that the district court erred by failing to consider whether any facts specific to McCall’s circumstances prevented him from receiving or benefiting from the COVID-19 vaccine. See United States v. Lemons, 15 F.4th 747 (6th Cir. 2021) (although a prisoner has access to the vaccine, he may still show extraordinary and compelling circumstances if he is “unable to receive or benefit from” it in some way) (quoting United States v. Broadfield, 5 F.4th 801 (7th Cir. 2021)).
Second, with respect to McCall’s post-Havis claim, the Court ruled that the district court erred in its belief that it was unable to rely on Havis’ effect on his sentence in considering whether extraordinary and compelling circumstances exist warranting compassionate release.
Finally, the Court observed that the district court correctly stated that rehabilitation alone could not support extraordinary and compelling circumstances, but the district court erred by applying that rule to reject McCall’s rehabilitation claim because rehabilitation was not his only claim in support of his motion—he had two others that were improperly rejected by the district court.
Thus, the Court held the district court abused its discretion by not considering McCall’s post-Havis claim together with his rehabilitation and COVID-19 claims, explaining that under Owens the district court had the authority to consider all three claims “in combination” to determine whether they constituted extraordinary and compelling reason for compassionate release.
Accordingly, the Court reversed the district court’s judgment and remanded for proceedings consistent with its opinion. See: United States v. McCall, 20 F.4th 1108 (6th Cir. 2021).
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