by Dale Chappell

Joining several other circuits, the U.S. Court of Appeals for the Tenth Circuit held that a district court has the discretion to determine whether “extraordinary and compelling reasons” exist under 18 U.S.C. § 3582(c)(1)(A)(i) when a prisoner files for compassionate release and that the outdated policy statement under the Guidelines no longer applies to such motions.

Malcom McGee was handed a mandatory life sentence in 2000 after a jury found him guilty of causing another person to possess with intent to distribute PCP. He had two prior convictions for drugs back in the late 1980s, so the Government forced the court to impose the mandatory sentence. McGee exhausted his appeals and postconviction challenges and then filed for “compassionate release” under 18 U.S.C. § 3582 in 2020. He raised several issues, including that if he were sentenced today he would not be legally eligible for the harsh automatic life sentence he received two decades ago.

The U.S. District Court for the Northern District of Oklahoma disagreed and ruled that it lacked the legal authority to grant his motion. Specifically, the court recognized that Congress reduced the mandatory life-in-prison penalty to 25 years but said Congress did not make the change retroactive to prisoners sentenced before the change, like McGee. It ruled that the policy statement in U.S. Sentencing Guideline (“USSG”) § 1B1.13 defines extraordinary and compelling reasons for compassionate release, which do not include any of the reasons McGee identified in his motion.

On appeal, McGee argued that the district court erred in determining it lacked authority to reduce his sentence, and the Tenth Circuit agreed. Prior to the First Step Act of 2018, only the Bureau of Prisons (“BOP”) could file for compassionate release and only if extraordinary and compelling reasons were found. Over the nearly 30 years that the BOP had this authority, a 2013 study showed that it “inconsistently implemented and poorly managed the compassionate release program,” resulting in prisoners who qualified for release being ignored until they died in prison.

Because of this, Congress expanded compassionate release in the First Step Act, allowing a prisoner to file a compassionate release motion if the BOP refused or failed to do so. Notably, Congress titled this provision of the Act, “Increasing the Use and Transparency of Compassionate Release.”

Since then, courts across the country have been granting reduced sentences under compassionate release to prisoners such as McGee, who received unfair sentences or convictions but no avenue to correct them. The Court discussed some of these cases and explained why McGee is entitled to consideration for compassionate release.

In McGee’s case, the district court said it was constrained by the policy statement in USSG § 1B1.13. which it said “defined” extraordinary and compelling reasons under § 3582. The district court said the U.S. Sentencing Commission (“USSC”) has the exclusive authority in determining extraordinary and compelling reasons. But that is legally incorrect, the Court said.

Acknowledging that Congress did give the USCC authority to “describe” extraordinary and compelling reasons and to provide a “list of specific examples,” the Court explained that Congress’ use of the word “describe” is not synonymous with “define,” as the district court mistakenly interpreted it. The Court reasoned: “We presume that Congress was aware of the difference between the two words and knowingly chose to use the word ‘describe,’ rather than the word ‘define,’ in setting forth its statutory directive to the [USSC].” The district court, therefore, had the authority to determine on its own whether extraordinary and compelling reasons exist in McGee’s case, regardless of the examples listed in USSG § 1B1.13, the Court ruled.

The Court also said that while Congress did not make the reduction from the mandatory life provision of 21 U.S.C. § 841(b)(1)(A) to 25 years retroactive to prisoners like McGee, this did not preclude the district court from applying it to McGee under the expanded use of compassionate release. “Congress chose not to make this statutory change retroactive to all defendants who were sentenced under § 841(b)(1)(A) prior to the First Step Act” to mandatory life in prison, the Court said. But nothing in the First Step Act prohibits district courts, “on an individualized, case-by-case basis, from granting sentence reductions under § 3582(c)(1)(A)(i) to some of those prisoners,” explained the Court.

Applying USSG § 1B1.13 to compassionate release motions by prisoners is problematic, the Court said. It ignores the fact that the USSC “has failed to fulfill its statutory duty to issue a post-First Step Act policy statement recognizing the ability of defendants to file their own motions for sentence reductions.” In fact, the Court pointed out that the USSC currently cannot do so. “Although Congress undoubtedly knew there would be some time lag between the time of the statutory changes it made with the First Step Act and the Sentencing Commission’s issuance of a new policy statement recognizing those changes, it surely could not have known, and did not intend, that there would be a significant time lag, or that the Sentencing Commission would fail altogether to issue a new policy statement.” [Writer’s note: It is estimated that the USSC will not have the required number of voting members to make the needed change until mid-2022.]

The plain language of USSG § 1B1.13 says that only the “Director of the BOP” may determine that extraordinary and compelling reasons exist for compassionate release. “This is problematic and clearly undercuts not only Congress’s intent to expand the use of compassionate release,” the Court said, “but also the [USSC’s] intent to recognize a ‘catch-all’ category of cases” falling outside the policy statement’s examples.

Thus, the Court joined the Second, Fourth, Sixth, and Seventh Circuits and held that USSG § 1B1.13 does not apply to compassionate release motions filed by prisoners.

Accordingly, the Court reversed the district court’s denial of McGee’s motion and remanded for further proceedings consistent with this opinion. See: United States v. McGee, 992 F.3d 1035 (6th Cir. 2021). 

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