by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit joined the First, Second, and Fourth Circuits in holding that when deciding motions filed by defendants seeking a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i), U.S. District Courts may consider non-­retroactive changes in post-­sentencing decisional law affecting the applicable Sentencing Guidelines in assessing whether a defendant has established the requisite “extraordinary and compelling reasons.” (Note: Unless designated otherwise, all statutory references are to Title 18 of the U.S. Code.)

In 2013, Jerramey Lyndell Roper pleaded guilty to possession of cocaine base with intent to distribute and to possession of a firearm in furtherance of a drug trafficking offense. Because Roper had four prior convictions in Washington state that qualified as “a crime of violence or a controlled substance offense” under U.S. Sentencing Guideline (“U.S.S.G.”) § 4B1.1(a), the U.S. District Court for the Western District of Washington applied a “career-­offender enhancement” to the sentence for the drug offense, which the U.S.S.G. recommended if “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). Under the Guidelines, a “prior felony conviction” is “a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year.” U.S.S.G. § 4B1.2, cmt. n. 1. Roper had four qualifying convictions. He was sentenced to 204 months in prison.

Over the next 10 years, the Court observed that “intervening case law disqualified three of Roper’s prior convictions as predicates for the career-­offender enhancement.” United States v. Valencia-­Mendoza, 912 F.3d 1215 (9th Cir. 2019), held that whether a Washington state conviction qualifies as a predicate felony for career-­offender enhancement depends on the maximum sentence a defendant “actually could have received” under Washington’s sentencing scheme, not on the statutory maximum. In addition, State v. Blake, 481 P.3d 521 (Wash. 2021), held that the state statute prohibiting unlawful possession of a controlled substance is unconstitutional. Consequently, if Roper were sentenced today, he would not qualify as a career-­offender, and his Guideline range would be 140 to 175 months.

Roper moved for a sentence reduction under § 3582(c)(1)(A)(i), arguing that the intervening changes in the law amount to extraordinary and compelling reasons warranting relief. The District Court did not consider the changes in law – “believing itself to be categorically prohibited” from doing so and denied Roper’s motion. He timely appealed.

The Court observed “Congress has placed only two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission’s policy statement … and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling.” United States v. Chen, 48 F.4th 1092 (9th Cir. 2022). The Chen decision was guided by Concepcion v. United States, 142 S. Ct. 2389 (2022): “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act.” Concepcion identified only two “limits [on] the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence,” viz. those set forth by Congress in a statute or the Constitution.

The Sentencing Commission’s current policy statement, U.S.S.G. § 1B1.13, does not apply to motions filed by defendants seeking a sentence reduction. Chen. Therefore, the policy statement does not apply to Roper’s motion, according to the Court.

The Court explained that “Concepcion’s animating principle is the ‘venerable tradition of discretion’ in sentencing and sentencing-­modification proceedings.” Concepcion. The U.S. Supreme Court cautioned that “[d]rawing meaning from silence is particularly inappropriate in the sentencing context.” Id. The Court reasoned: “Congress’s silence is, if anything, more significant here than in Chen, which involved a statutory sentencing change that Congress expressly made non-­retroactive. Because Congress has not adopted a categorical bar to considering decisional law, we again decline to create one now.”

The Court observed that its holding is in agreement with the First, Second, and Fourth Circuits. United States v. Trenkler, 47 F.4th 42 (1st Cir. 2022); United States v. Brooker, 976 F.3d 228 (2d Cir. 2020); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). However, it acknowledged that the Sixth, Seventh, Eighth, and D.C. Circuits have “found that decisional law cannot be considered an extraordinary and compelling reason for a sentence reduction.” United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc); United States v. Brock, 39 F.4th 462 (7th Cir. 2022); United States v. Crandall, 25 F.4th 582 (8th Cir.), cert. denied, 142 S. Ct. 2781, 213 L. Ed. 2d 1018 (2022); United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022).

The Court rejected the Government’s argument that Roper could not use a motion for sentence reduction to bring claims “about the validity of his sentence that otherwise would be barred by the collateral-­attack waiver in his plea agreement.” But in collateral attacks, a petitioner is attacking the validity of his judgment by claiming the “sentence was imposed in violation of the Constitution or the laws of the United States … or that the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). “A motion for sentence reduction, on the other hand, ‘allows defendants to seek modifications even if their sentences were not imposed in violation of the Constitution or federal law,’” the Court explained. Chen. Roper neither made any claim that his sentence violated the Constitution or federal law, nor did he seek to correct any sentencing errors. The Court cautioned that it was expressing no opinion on whether the District Court should grant Roper’s motion.

Accordingly, the Court vacated the District Court’s order and remanded with instructions to consider the motion anew consistent with the Court’s opinion. See: United States v. Roper, 72 F.4th 1097 (9th Cir. 2023).  

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