Sixth Circuit Announces Nonretroactive Change in Sentencing Law Is Not an ‘Extraordinary and Compelling Reason’ Warranting a Sentence Reduction under Compassionate Release Statute
by Douglas Ankney
A divided en banc U.S. Court of Appeals for the Sixth Circuit, in a 9 to 7 split, held that a nonretroactive change in sentencing law is not an “extraordinary and compelling reason” warranting a sentence reduction under the compassionate-release statute, 18 U.S.C. § 3582(c)(1).
In 2015, David McCall pleaded guilty to one count of conspiracy to possess with intent to distribute heroin. Due to McCall’s criminal history dating back to 1994 – including numerous drug-trafficking offenses – the U.S. District Court for the Northern District of Ohio determined he was a career offender, so his base-offense level increased from 24 to 34, increasing his Sentencing Guidelines range to 188-235 months. The District Court sentenced him to 235 months. After serving five years of his sentence, McCall moved for a sentence reduction under the compassionate-release statute.
The compassionate-release statute permits a District Court to reduce a lawfully imposed sentence upon a showing of “extraordinary and compelling” reasons. McCall argued, inter alia, that he demonstrated extraordinary and compelling reasons by: (1) his risk of contracting COVID-19, (2) his rehabilitative efforts while in prison, and (3) the changes in sentencing law stemming from the holding of United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc), under which he would not be deemed a career offender if sentenced today and his Sentencing Guidelines range would be reduced to 77-96 months.
The District Court denied McCall’s petition, reasoning (1) he had cited no health concern that put him at risk of contracting COVID-19, (2) Havis was neither retroactive nor would it support a claim for collateral relief, and (3) rehabilitation, by itself, is not an extraordinary and compelling reason. McCall appealed.
While McCall’s appeal was pending, five decisions published by the Sixth Circuit considered, in one form or another, whether a nonretroactive change in sentencing law could support a finding of “extraordinary and compelling reasons” warranting relief. Four of those decisions answered the question “no,” and one answered with a “qualified yes.” (See opinion for supporting citations.) After a divided panel of the Sixth Circuit answered McCall’s appeal with a “yes,” United States v. McCall, 20 F.4th 1108 (6th Cir. 2021), it granted en banc review to resolve the intra-circuit split.
The Court observed that the modern-day version of the compassionate-release statute dated back to the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Title II, ch. II, § 212, 98 Stat. 1837 (“SRA”). The SRA was “a watershed statute” that “left few areas of federal criminal law untouched.” Because “[r]ehabilitation, long the cornerstone of federal sentencing and the parole system, fell out of favor with scholars, reformers, and critics of all stripes ...,” the SRA “showed Congress’s intent to ‘eliminat[e] rehabilitation as a purpose of incarceration.’” Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts (1998). To that end, the SRA abolished parole and prohibited a District Court from “modify[ing] a term of imprisonment once it has been imposed ....” 18 U.S.C. § 3582(c).
However, Congress carved out a few exceptions to that general rule. “Compassionate release” permits District Courts to lower a prisoner’s sentence if four conditions are met: (1) the Director of the Bureau of Prisons (“Director”) moves the court for compassionate release, (2) extraordinary and compelling reasons warrant a sentence reduction, (3) the reduction is consistent with applicable policy statements issued by the Sentencing Commission, and (4) the sentencing factors of § 3553(a) support a lower sentence. § 3582(c)(1)(A). Consistent with the SRA’s goals, Congress instructed that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 U.S.C. § 994(t).
But the First Step Act of 2018, Pub. L. 115-391, Title VI, 132 Stat. 5194 (“FSA”) modified the compassionate-release statute. The FSA allowed prisoners to move the District Court for compassionate release when the Director has declined to do so. § 3582(c)(1)(A).
The remaining three conditions for compassionate release were left unchanged by the FSA, viz., factors (2) through (4) cited above. However, because the Sentencing Commission has not adopted a policy statement that applies to motions for compassionate release filed by the prisoner (as opposed to motions filed by the Director), the Court stated that District Courts need only consider factors (2) and (4), i.e., whether extraordinary and compelling reasons exist and whether the § 3553(a) factors support a sentence reduction. United States v. Jones, 980 F.3d 1098 (6th Cir. 2020).
Because nothing in the text of the compassionate-release statute defines “extraordinary and compelling reasons,” Jiminez v. Quarterman, 555 U.S. 113 (2009); United States v. Elias, 984 F.3d 516 (6th Cir. 2021), the Court interpreted the phrase to mean “in accord with the ordinary public meaning of its terms at the time of its enactment.” Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020). At the time the SRA was enacted, the Court observed that “extraordinary” meant “most unusual,” “far from common,” and “having little or no precedent.” Webster’s Third New International Dictionary (1971). “Compelling” meant “forcing, impelling, driving.” Id.
The Court determined that these commonsense definitions lead to the conclusion that an “extraordinary and compelling reason” is “one that is unusual, rare, and forceful.” But does that mean a District Court’s discretion to find “extraordinary and compelling reason” allows it to encompass any reason – legal or factual – it finds convincing?
To answer that question, the Court first considered the principle of finality. “[E]ssential to the operation of our criminal justice system,” finality gives criminal law its “deterrent effect.” Teague v. Lane, 489 U.S. 288 (1989). “Because a sentence of imprisonment ‘constitutes a final judgment,’ federal law generally prohibits a district court from ‘modifying’ it ‘once it has been imposed.’” Dillon v. United States, 560 U.S. 817 (2010).
The second consideration by the Court was nonretroactivity. Federal law presumes that changes in sentencing law are not retroactive. United States v. McKinnie, 24 F.4th 583 (6th Cir. 2022). The “ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260 (2012).
Thus, the Court held: “Nonretroactive legal developments, considered alone or together with other factors, cannot amount to an ‘extraordinary and compelling reason’ for a sentence reduction.”
Turning to the merits of McCall’s petition, the Court rejected his COVID-19 argument because vaccines are available to federal prisoners, which greatly diminishes his risk. And with regard to his Havis argument, what is considered “ordinary” (i.e., nonretroactive application of a change in sentencing law) cannot simultaneously be considered “extraordinary,” the Court reasoned. United States v. Wills, 997 F.3d 685 (6th Cir. 2021). Further, the Court found “little compelling about the duration of a lawfully imposed sentence. This is because such a sentence represents ‘the exact penalt[y] that Congress prescribed and that a district court imposed for [a] particular violation of a statute.’ United States v. Thacker, 4 F.4th 569 (7th Cir. 2021).... That a district court might impose a different sentence than one of its predecessors hardly seems the kind of ‘forceful, impelling, [or] driving’ reason that could justify compassionate release,” the Court stated.
That left only McCall’s rehabilitation argument, and “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” § 994(t).
Accordingly, the Court affirmed the District Court’s denial of McCall’s petition. See: United States v. McCall, 56 F.4th 1048 (6th Cir. 2022).
Writer’s note: The Sixth Circuit’s conclusion with regard to nonretroactive changes in the law is the opposite of the First, Ninth, and Tenth Circuits’ holdings that such legal developments may contribute to a finding of “extraordinary and compelling reasons” when viewed “in combination” with a defendant’s “unique circumstances.” United States v. Chen, 48 F.4th 1092 (9th Cir. 2022); United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022); United States v. McGee, 992 F.3d 1035 (10th Cir. 2021). Similarly, McCall reaches the opposite conclusion than the Fourth Circuit’s holding that a nonretroactive statutory change, along with the resulting “disparity” between the defendant’s original sentence and “the sentence a defendant would receive today” may – on its own – constitute an “extraordinary and compelling reason.” United States v. McCoy, 981 F.3d 271 (4th Cir. 2020).
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