by Douglas Ankney

On an issue upon which the circuits are split, the U.S. Court of Appeals for the Ninth Circuit held that district courts may consider the First Step Act’s (“FSA”) non-retroactive changes to sentencing law, in conjunction with other factors specific to the individual defendant, when deciding whether extraordinary and compelling reasons exist for sentence reduction for compassionate release under 18 U.S.C. § 3582(c)(1)(A).

In 2007, a jury convicted Howard Chen of six felony drug offenses and two counts of possession of a firearm in furtherance of drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). Other than juvenile offenses, Chen had no prior criminal history.

At the time of Chen’s sentencing, § 924(c) imposed a mandatory minimum sentence of five years for the first conviction and a mandatory minimum sentence of 25 years “in the case of a second or subsequent conviction.” In United States v. Deal, 508 U.S. 129 (1993), the U.S. Supreme Court had established that the 25-year mandatory minimum for “second or subsequent” convictions applied to multiple § 924(c) counts charged in a single case even when the defendant had never previously been charged with a previous § 924(c) offense. This practice became known as “stacking.” The district court sentenced Chen to 60 months on his first § 924(c) conviction, a stacked 300 months for the second § 924(c) conviction, and 48 months on the six drug offenses for an aggregate sentence of 408 months in prison.

In 2018, § 403(a) of the First Step Act nullified Deal by clarifying that the 25-year enhancement is triggered only by a second or subsequent § 924(c) conviction occurring after the initial § 924(c) conviction “has become final.” While this eliminated the practice of stacking sentences on first time offenders with multiple § 924(c) convictions in the same proceeding, Congress limited the application of § 403(a) only to defendants who had not yet been sentenced for their § 924(c) convictions at the time of the FSA’s enactment.

In September 2020, Chen moved for compassionate release under § 3582(c)(1)(A). He argued that § 403(a)’s changes to § 924(c) constitute extraordinary and compelling reasons for reducing his sentence, viz., if he were sentenced today, his second § 924(c) conviction would require only a 60-month sentence rather than the 300-month sentence he actually received. The U.S. District Court for the Central District of California denied Chen’s motion, reasoning that § 403(a)’s changes cannot be considered when assessing whether a defendant has shown extraordinary and compelling reasons under § 3582(c)(1)(A) because Congress expressly declined to make § 403(a) retroactive. Chen appealed.

The Ninth Circuit observed that § 3582(c)(1)(A) empowers either a defendant, or the Director of the Bureau of Prisons (“Director”) on the defendant’s behalf, to file a motion to modify a term of imprisonment. If the defendant files the motion, district courts may reduce a term of imprisonment if: (1) the defendant exhausted administrative remedies, (2) extraordinary and compelling reasons warrant a sentence reduction, (3) a sentence reduction is “consistent with applicable policy statements” issued by the U.S. Sentencing Commission, and (4) the district court considered the factors set forth in 18 U.S.C. § 3553(a).

The Court explained that the legal question at issue in the current case involves the interplay between Factors (2) and (3) with respect to defendant-filed motions for compassionate release under § 3582(c)(1)(A). It stated that Congress directed the Sentencing Commission to issue general policy statements to “describe what should be considered extraordinary and compelling reasons for sentence reduction.” 28 U.S.C. § 994(t). However, to date, the Commission has not issued any such policy statements.

In contrast, the Commission has promulgated policy statements describing what constitutes extraordinary and compelling reasons for sentence reduction with respect to Director-initiated motions for compassionate release. See U.S.S.G. § 1B1.13, cmt. n.1(A) – (D). The Ninth Circuit, however, has ruled that the Director-initiated policy statements do not apply to defendant-initiated motions. United States v. Aruda, 993 F.3d 797 (9th Cir. 2021). Consequently, the Court stated that “there is no applicable policy statements binding the district court’s consideration of extraordinary and compelling reasons” in the present case, and in the absence of governing policy statements, what constitutes extraordinary and compelling reasons lies squarely with the district court’s discretion. Id.

In resolving the present case, the Court stated that the question is whether such discretion “extends to considering § 403(a)’s changes to stacked sentencing, or whether non-retroactive changes in sentencing law present an exception to the general principle that district courts may consider ‘any’ extraordinary and compelling reason.”

The principal constraint on a district court’s discretion is express mandates from Congress. See Concepcion v. United States, 142 S. Ct. 2389 (2022). The Concepcion Court instructed: “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained.”

The Court explained that Congress has directly addressed what can be considered extraordinary and compelling for purposes of § 3582(c)(1)(A) only twice: (1) applicable policy statements from the Sentencing Commission, which have thus far only addressed Director-initiated motions for compassionate release and (2) in 28 U.S.C. § 994(t) Congress expressly stated that “[r]ehabilitation … alone” does not constitute an extraordinary and compelling reason. The Court stated that the question now is whether Congress indirectly limited district courts’ discretion by making changes to stacked sentencing non-retroactive.

The Court observed that the Third, Seventh, and Eighth Circuits have addressed this question and ruled that district courts may not consider § 403(a)’s non-retroactive changes, in conjunction with other factors, in determining whether extraordinary and compelling reasons exist for compassionate release, reasoning that Congress expressly made those sentencing changes non-retroactive and that § 3582(c)(1)(A) should not serve as a loophole to circumvent the explicit non-retroactivity. United States v. Crandall, 25 F.4th 582 (8th Cir. 2022), cert. denied, 142 S. Ct. 2781 (2022); United States v. Andrews, 12 F.4th 255 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022); United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022).

In contrast, the First, Fourth, and Tenth Circuits have all reached the opposite conclusion. United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022); United States v. Maumau, 993 F.3d 821 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). According to the Court, their conclusion is based primarily on two rationales: “(1) none of the statutes directly addressing ‘extraordinary and compelling reasons’ prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under § 3582(c)(1)(A) based on extraordinary and compelling reasons is entirely different from automatic eligibility for resentencing as a result of a retroactive change in sentencing law.” (There’s an intra-circuit split within the Sixth Circuit. Compare United States v. Jarvis, 999 F.3d 442 (6th Cir. 2021), cert. denied, 142 S. Ct. 760 (2022), with United States v. Owens, 996 F.3d 755 (6th Cir. 2021).)

The Court examined all six of the foregoing cases and ultimately determined that it is unpersuaded by the reasoning of the Third, Seventh, and Eighth Circuits. On the other hand, it was swayed by what the First, Fourth, and Tenth Circuits had to say on the issue. In particular, the Court was moved by the First Circuit’s textual analysis of § 3582(c)(1)(A) and the First Step Act in reaching its conclusion that there is no textual basis for assuming that § 403(b) imposes a categorical prohibition on considering non-retroactive changes under § 3582(c)(1)(A). Ruvalcaba. In addition, the First Circuit declined to infer that Congress intended to categorially bar consideration of non-retroactive changes to sentencing law in the absence of any written and explicit exclusion. Id.

In light of the foregoing analysis, the Court announced that it is joining the First, Fourth, and Tenth Circuits and held that “district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of § 3582(c)(1)(A).” It explained: “By not restricting the district courts’ ability to consider nonretroactive changes in sentencing law as an extraordinary and compelling reason under § 3582(c)(1)(A), Congress itself has left that possibility open.” Thus, the Court held that the district court erred by declining to consider § 403(a)’s non-retroactive changes to § 924(c) stacked sentencing in considering Chen’s motion for compassionate release.

Accordingly, the Court vacated the district court’s ruling and remanded to the court to reassess Chen’s motion consistent with its opinion. See: United States v. Chen, 48 F.4th 1092 (9th Cir. 2022). 

Editor’s note: Anyone with an interest in this topic is encouraged to read the Court’s full opinion. The Court examines the opinions of all six Courts of Appeals that have addressed this issue in significantly greater detail than is possible in this summary of the Court’s opinion.

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