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First Circuit Announces Courts May Consider First Step Act’s Non-Retroactive Changes to Sentencing Law in Determining Whether ‘Extraordinary and Compelling’ Reason Exists for Compassionate Release in Prisoner-Initiated Motion

by Jacob Barrett

In a case of first impression in the
circuit, the U.S. Court of Appeals for the First Circuit held that District Courts adjudicating a prisoner-initiated motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i) are not bound by the Sentencing Commission’s current policy statement in U.S. Sentencing Guidelines Manual § 1B1.13 because that provision is applicable only to compassionate-release motions initiated by the federal Bureau of Prisons (“BOP”). The Court further held that District Courts reviewing prisoner-initiated motions may consider the First Step Act’s (“FSA”) non-retroactive changes to mandatory minimums in determining whether an extraordinary and compelling reason exists for compassionate release. 

Jose Ruvalcaba was arrested, tried, and found guilty of involvement in a conspiracy to distribute and to possess with intent to distribute over 500 grams of methamphetamine and conspiracy to launder money. In April 2009, the U.S. District Court for the District of Massachusetts sentenced him to life imprisonment on the drug-trafficking charge and to a concurrent 240-month term of immurement on the money-laundering charge. Ruvalcaba appealed, and the First Circuit summarily affirmed.

The life term was imposed pursuant to 21 U.S.C. § 841(b)(l)(A) to the enhanced mandatory minimum penalty that Congress had prescribed for defendants with two prior “felony drug offense[s].” § 841(b)(l)(A). At the time of sentencing, Ruvalcaba had two California felony drug convictions: (1) a 2001 conviction for importation, sale, and distribution of methamphetamine and (2) a 2001 conviction for possession of methamphetamine.

In December 2018, while Ruvalcaba was serving his sentence, Congress passed the FSA, which reduced some enhanced mandatory minimum penalties, including those pursuant to § 841(b)(1)(A), and modified the criteria for qualifying prior offenses. See FSA § 401. Congress also amended the compassionate-release statute, 18 U.S.C. § 3582(c)(l)(A), authorizing prisoners to file their own motions for compassionate release in the event the BOP fails to initiate a motion. FSA § 603(b).

Ruvalcaba moved for compassionate release under § 3582(c)(1)(A)(i), arguing that had he been sentenced after the enactment of the FSA, he would have had only one qualifying prior offense and would have been subject to a mandatory prison term of only 15 years. As such, he argued that the life sentence was “more draconian,” and the resultant sentencing disparity was “extraordinary and compelling.”

The Government opposed the motion. The District Court denied his motion, ruling that non-retroactive changes provided for by the FSA could not serve as an element of extraordinary and compelling reason for compassionate release because the changes are prospective only, so any resultant disparity cannot be deemed extraordinary. Ruvalcaba timely appealed, challenging the District Court’s refusal to consider the FSA’s non-retroactive changes in sentencing law as part of the “extraordinary and compelling calculus.”

On appeal, the Court observed that the First Circuit has not yet addressed the issue of whether the Sentencing Commission’s current policy statement (§ 1B1.13) applies to and is binding upon District Courts adjudicating prisoner-initiated motions for compassionate release, nor has the First Circuit addressed whether District Courts may consider non-retroactive changes made by the FSA to sentences previously imposed when deciding such motions. The Court announced: “we hold that a district court — when adjudicating a prisoner-initiated motion for compassionate release — is not bound by the Sentencing Commission’s current policy statement. We further hold that such a court may consider the FSA’s non-retroactive changes in sentencing law on an individualized basis, grounded in a defendant’s particular circumstance, to determine whether an extraordinary and compelling reason exists for compassionate release.”   

The Court began by analyzing the compassionate release provisions in question, noting that pursuant to § 3582(c)(l)(A), a court is authorized to reduce a term of imprisonment when “extraordinary and compelling reasons warrant such a reduction” and “is consistent with applicable policy statements issued by the Sentencing Commission.” Additionally, the court is required to consider any applicable § 3553(a) factors and “determine whether, in its discretion, the reduction … is warranted in whole or in part under the particular circumstances of the case.” United States v. Saccoccia, 10 F.4th 1 (1st Cir. 2021). 

The First Circuit’s primary analysis proceeded in two parts. First, the Court addressed “whether the Sentencing Commission’s current policy statement on compassionate release is applicable to prisoner-initiated motions.” Second, the Court examined “whether a district court may permissibly consider those prospective changes on an individualized basis to find an extraordinary and compelling reason warranting compassionate release.”

The Court stated that because § 3582(c)(l)(A) requires a sentence reduction to be consistent with “applicable policy statements issued by the Sentencing Commission,” such statements are binding on courts deciding compassionate-release motions. See Saccoccia. However, the current policy statement was last modified in November 2018 — before the FSA amended the compassionate-release statute authorizing prisoner-initiated motions — so the open question is whether that policy statement is applicable to a type of motion that didn’t exist when it was written.

Examining the text of the policy statement, the Court stated that it’s clear the statement applies only to compassionate release motions initiated by the BOP. In addition, the Court stated that the commentary to the policy statement further supports this conclusion, providing that a “reduction under this policy statement may be granted only upon motion by” the BOP. § 1B1.13 cmt. n. 4. Consequently, the policy statement in question is not “applicable” to prisoner-initiated motions, the Court concluded. Thus, the Court held that “district courts — when adjudicating prisoner-initiated motions for compassionate release — have discretion, unconstrained by any policy statement currently in effect, to consider whether a prisoner’s particular reasons are sufficiently extraordinary and compelling to warrant compassionate release.”

The Court then turned to the issue of whether District Courts may consider the FSA’s non-retroactive amendments to the mandatory minimums under § 841(b)(1)(A) in deciding whether an extraordinary and compelling reason exists for compassionate release. The Court explained that in the absence of a governing policy statement of the Sentencing Commission, “there is only one explicit limitation on what may compromise an extraordinary and compelling reason,” viz. “[r]ehabilitation … alone shall not be considered an extraordinary and compelling reason. 28 U.S.C. § 994(t). According to the Court, Congress hasn’t expressly prohibited non-retroactive changes in sentencing laws, and any such prohibition can’t be “deduced from section 3582(c)(1)(A)’s requirement that a court consider the section 3553(a) factors when granting a sentence reduction,” especially in light of the fact Congress expressly excluded rehabilitation as an extraordinary and compelling reason.

The Court held non-retroactive changes in sentencing laws cannot be categorically excluded from the overall extraordinary and compelling determination, explaining: “it is within the district court’s discretion, in the absence of a contrary directive in an applicable policy statement, to determine on a case-by-case basis whether such changes in law predicated on a defendant’s particular circumstances comprise an extraordinary and compelling reason and, thus, satisfy the standard for compassionate release under section 3582(c)(1)(A)(i).” The Court made it clear that non-retroactive change in a sentencing law alone is insufficient to constitute an extraordinary and compelling reason. See McGee. Thus, the court further held that the District Court erred by concluding, as a matter of law, the FSA’s prospective changes to the mandatory minimums could not be used to support a finding for compassionate release.

Accordingly, the Court vacated the District Court’s judgment and remanded for further proceedings consistent with its opinion. See: United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022). 

Editor’s note: The Court’s ruling that the Sentencing Commission’s policy statement in U.S.S.G. § 1B1.13 does not apply to prisoner-initiated compassionate release motions and thus does not constrain District Courts when adjudicating such motions aligns with the vast majority of other Courts of Appeals that have addressed this issue. See United States v. Andrews, 12 F.4th 255 (3d Cir. 2021); United States v. Long, 997 F.3d 342 (D.C. Cir. 2021); United States v. Aruda, 993 F.3d 797 (9th Cir. 2021); United States v. Shkambi, 993 F.3d 388 (5th Cir. 2021); United States v. McGee, 992 F.3d 1035 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020); United States v. Jones, 980 F.3d 1098 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020); United States v. Brooker, 976 F.3d 228 (2d Cir. 2020). 

Only a divided panel of the Eleventh Circuit has ruled otherwise in United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021), cert denied, 142 S. Ct. 583 (2021).

As to the issue of whether District Courts are permitted to consider the FSA’s non-retroactive amendments to mandatory minimums under § 841(b)(1)(A) in determining if an extraordinary and compelling reason for compassionate release exists, several other Courts of Appeals have addressed this issue and are split in their opinions. Three Courts of Appeals have concluded that District Courts’ discretionary review under § 3582(c)(1)(A) does not permit consideration of the FSA’s non-retroactive amendments in deciding whether an extraordinary and compelling reason exists. See United States v. Crandall, 25 F.4th 582 (8th Cir. 2022); United States v. Andrews, 12 F.4th 255 (3d Cir. 2021); United States v. Thacker, 4 F.4th 569 (7th Cir. 2021).

In contrast, two Courts of Appeals have come to the opposite conclusion. See United States v. McGee, 992 F.3d 1035 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020).  

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