by Dale Chappell

ederal courts have increasingly rejected the government’s argument that the U.S. Sentencing Commission lacked authority in implementing U.S. Sentencing Guidelines (“USSG”) § 1B1.13(b)(6). This provision, effective as of November 2023, allows courts to consider non-retroactive changes in sentencing laws when determining whether a prisoner’s sentence is unusually long and whether a reduction is warranted under 18 U.S.C. § 3582(c)(1)(A). This provision has become a key tool for individuals seeking to reduce sentences imposed under harsher, outdated Guidelines.

Several courts have rejected the government’s argument that the Sentencing Commission overstepped its authority in enacting § 1B1.13(b)(6). Among the most notable decisions is United States v. Allen, 2024 U.S. Dist. LEXIS 159380 (M.D. Fla. Sept. 5, 2024). In Allen, the Court allowed a reduction in sentence, rejecting the government’s claim that the Sentencing Commission lacked authority. This column explores reasoning from various courts, steps individuals can take to seek similar relief, and how to effectively refute the government’s position.

Background on § 1B1.13(b)(6)

USSG § 1B1.13(b)(6) provides a mechanism for prisoners serving unusually long sentences to seek reductions based on changes in sentencing law, even if those changes are not retroactive. The key factor is whether the disparity between the original sentence and what would be imposed under current law constitutes an “extraordinary and compelling reason” for sentence reduction under 18 U.S.C. § 3582(c)(1)(A). This provision has become particularly relevant for non-violent drug offenders whose sentences were enhanced by prior convictions that would not result in such harsh sentences today.

The Government’s Argument Against § 1B1.13(b)(6)

In numerous cases, the government has argued that the Sentencing Commission exceeded its statutory authority by allowing courts to consider non-retroactive changes in law. The government’s position is that 18 U.S.C. § 3582(c)(1)(A) only allows reductions for “extraordinary and compelling reasons,” which should not include non-retroactive legal changes unless expressly allowed by Congress or the courts.

The government made this argument in Allen. Allen, who had been sentenced to life imprisonment for conspiracy to distribute cocaine, sought a reduction based on changes in how prior marijuana convictions are treated. Under current law, his prior convictions would not trigger such harsh penalties, creating what Allen argued was a “gross disparity” between his original sentence and the one he would receive today.

How Courts Have Rejected the Government’s Argument

Since the implementation of § 1B1.13(b)(6) in November 2023, multiple courts have rejected the government’s claim that the Sentencing Commission lacked authority to implement this provision. These courts have consistently found that the Commission acted within its statutory authority under 28 U.S.C. § 994(a) and § 994(t), which direct the Commission to create guidelines for sentencing and define what constitutes “extraordinary and compelling reasons” for a sentence reduction.

1. In United States v. Allen, 2024 U.S. Dist. LEXIS 159380 (M.D. Fla. Sept. 5, 2024), the Court rejected the government’s argument that the Sentencing Commission lacked authority to implement § 1B1.13(b)(6). This section allows nonretroactive changes in sentencing laws to be considered as extraordinary and compelling reasons for sentence reductions. The government contended that this policy was inconsistent with congressional intent regarding retroactivity. However, the Court found that the Sentencing Commission acted within its authority and that Congress did not oppose the amendment. Applying § 1B1.13(b)(6), the Court noted that Allen’s life sentence was unusually long and that recent changes to sentencing laws would have significantly reduced his term. The Court granted Allen’s motion for a sentence reduction, lowering his sentence to 360 months based on these changes.

2. In United States v. Harper, 2024 U.S. Dist. LEXIS 41738 (N.D. Ga. Mar. 11, 2024), the Court rejected the government’s argument that the Sentencing Commission exceeded its authority by implementing § 1B1.13(b)(6). This Guideline permits consideration of nonretroactive changes in sentencing laws when determining whether an unusually long sentence constitutes an extraordinary and compelling reason for a sentence reduction. The government argued that the policy conflicts with Congress’ decisions on retroactivity and exceeds the Commission’s legislative authority. The Court disagreed, finding no inherent conflict between the statute and the policy statement and noted that Congress could have modified or rejected the policy but chose not to. Deferring to the Sentencing Commission’s guidance, the Court determined that Harper’s sentence was unusually long, making him eligible for a reduction under § 1B1.13(b)(6).

3. In United States v. Colley, 2024 U.S. Dist. LEXIS 66695 (N.D. Ga. Mar. 26, 2024), the Court rejected the government’s argument that the Sentencing Commission exceeded its authority by implementing § 1B1.13(b)(6). This Guideline allows for consideration of nonretroactive changes in sentencing laws when determining whether an unusually long sentence constitutes an extraordinary and compelling reason for a sentence reduction. The government contended that the Sentencing Commission’s policy contravened Congress’ decisions on retroactivity and overstepped legislative authority. However, the Court disagreed, emphasizing that Congress did not modify or oppose the policy before it became effective. The Court deferred to the Sentencing Commission’s authority, noting that the policy aligns with the First Step Act’s goals. As Colley’s 60-year sentence was unusually long, and recent changes in the law would have reduced his sentence significantly, the Court found these factors justified reducing his sentence to time served under § 1B1.13(b)(6).

4. In United States v. Bizzell, 2024 U.S. Dist. LEXIS 76204 (M.D. Fla. Apr. 26, 2024), the Court rejected the argument that the Sentencing Commission lacked authority to implement § 1B1.13(b)(6), which permits consideration of nonretroactive changes in sentencing laws as extraordinary and compelling reasons for sentence reduction. The Court held that the policy does not conflict with congressional intent, as Congress did not oppose or modify it before it took effect. Applying the new Guideline, the Court found that Bizzell’s 65-year sentence, largely driven by “stacking” mandatory penalties under 18 U.S.C. § 924(c), would be significantly lower today due to changes in the law. The Court concluded that this disparity justified sentence reduction under § 1B1.13(b)(6) and reduced Bizzell’s sentence to 300 months, acknowledging the gross disparity between his original sentence and current sentencing standards.

5. In United States v. Ware, 2024 U.S. Dist. LEXIS 42736 (N.D. Ga. Mar. 6, 2024), the Court rejected the government’s argument that the Sentencing Commission lacked the authority to implement § 1B1.13(b)(6), which allows courts to consider nonretroactive changes in sentencing laws as extraordinary and compelling reasons for sentence reductions. The government contended that this policy oversteps the Sentencing Commission’s authority by undermining Congress’ decisions on retroactivity. However, the Court disagreed, stating that the Sentencing Commission acted within its delegated authority. The Court found that § 1B1.13(b)(6) does not conflict with congressional intent and that Congress could have intervened if it disagreed with the policy. As a result, the Court granted Ware’s motion for compassionate release, finding that his 55-year sentence, primarily driven by mandatory penalties under § 924(c), would be much shorter under current law, thus warranting a sentence reduction.

Step for Seeking Similar Relief and Refuting the Government’s Argument

If you or someone you know is seeking a sentence reduction under § 1B1.13(b)(6) and the government raises the same argument, follow these steps to effectively refute the government’s position:

1. CITE THE STATUTORY AUTHORITY—Begin by emphasizing the statutory authority provided by 28 U.S.C. § 994(a) and § 994(t). These provisions explicitly authorize the Sentencing Commission to issue Guidelines and policy statements that courts must follow. Make clear that § 994(t) mandates the Sentencing Commission to define “extraordinary and compelling reasons” for sentence reductions, and § 1B1.13(b)(6) falls squarely within this authority.

2. USE COURT PRECEDENTS—Cite key cases such as those listed above. These cases affirm the Sentencing Commission’s authority to issue Guidelines like § 1B1.13(b)(6) and establish that courts must follow these Guidelines. Show the court that numerous federal courts have rejected the government’s argument and upheld the validity of § 1B1.13(b)(6).

3. PROVIDE EVIDENCE OF GROSS DISPARITY—To bolster your argument, provide evidence that the changes in law create a gross disparity between the sentence originally imposed and what would likely be imposed under current standards. For example, if prior minor drug offenses no longer trigger sentence enhancements under today’s law, argue that this disparity justifies relief.

4. FRAME THE ARGUMENT IN TERMS OF FAIRNESS AND PROPORTIONALITY—Courts are particularly concerned with fairness and proportionality in sentencing. Emphasize that § 1B1.13(b)(6) allows courts to address outdated sentences that are now recognized as disproportionately harsh. Argue that without this provision, individuals like you would be stuck serving sentences that no longer reflect current legal norms.

5. PRESENT STRONG LEGAL AND PERSONAL ARGUMENTS—When seeking a sentence reduction, combine legal arguments with individualized facts that support your case. Highlight your rehabilitation, good behavior, and any positive steps taken while incarcerated. Courts are more likely to grant relief when the legal argument is supported by evidence of change and progress.

Conclusion

The rejection of the government’s argument that the Sentencing Commission lacks authority to implement § 1B1.13(b)(6) represents a significant opportunity for individuals seeking relief under 18 U.S.C. § 3582(c)(1)(A). Courts across the country have affirmed that changes in sentencing laws, even if non-retroactive, can create “extraordinary and compelling reasons” for sentence reductions. By following the steps outlined here and citing key case law, you can strengthen your argument and increase your chances of obtaining a sentence reduction.  

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