United States v. Ruvalcaba ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1064
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ RUVALCABA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Barron, Selya, and Gelpí, Circuit Judges.
Brandon Sample, with whom Brandon Sample PLC was on brief,
for appellant.
Jennifer Zacks, Assistant United States Attorney, with whom
Nathaniel R. Mendell, Acting United States Attorney, was on brief,
for appellee.
February 15, 2022
SELYA, Circuit Judge. Presently before us is an appeal
brought by defendant-appellant José Ruvalcaba, who is serving a
life sentence for having led a drug-trafficking conspiracy. The
appeal raises questions of first impression in this circuit.
To frame those questions, we note that the defendant's
life sentence, imposed in 2009, encompassed a mandatory minimum,
see 21 U.S.C. § 841(b)(1)(A) (2006), triggered by two prior
convictions for felony drug offenses. While the defendant was
serving his sentence, Congress passed the First Step Act (FSA) in
December of 2018. See Pub. L. No. 115-391, 132 Stat. 5194. As
relevant here, the FSA reduced certain enhanced mandatory minimum
penalties (including those pursuant to section 841(b)(1)(A)) and
modified the criteria for qualifying prior offenses. See id.§ 401, 132 Stat. at 5220. At the same time, the FSA amended the
compassionate-release statute, see 18 U.S.C. § 3582(c)(1)(A), to
allow prisoners to file their own motions for compassionate
release, see FSA § 603(b), 132 Stat. at 5239.
In the wake of these changes, the defendant moved for
compassionate release under section 3582(c)(1)(A)(i), alleging
that there were extraordinary and compelling reasons for his
release. The government opposed the motion. The district court,
in an unpublished order, refused the requested relief.
On appeal, the defendant broadly contends that the
district court erred by concluding that it lacked the authority to
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reduce his sentence because the FSA's changes could not support an
extraordinary and compelling reason for compassionate release. We
have not yet spoken definitively on the extent of a district
court's discretion in determining whether extraordinary and
compelling reasons for compassionate release exist. Specifically,
we have yet to resolve whether the Sentencing Commission's current
policy statement (USSG §1B1.13) is applicable to and, thus, binding
upon district courts in adjudicating prisoner-initiated motions
for compassionate release. Nor have we yet resolved whether a
district court — when confronted with such a motion — may consider
certain of the FSA's changes that were not made retroactive to
sentences previously imposed.
After careful consideration, we hold that a district
court — when adjudicating a prisoner-initiated motion for
compassionate release — is not bound by the Sentencing Commission's
current policy statement. We further hold that such a court may
consider the FSA's non-retroactive changes in sentencing law on an
individualized basis, grounded in a defendant's particular
circumstances, to determine whether an extraordinary and
compelling reason exists for compassionate release. Accordingly,
we vacate the order of the district court and remand for further
proceedings consistent with this opinion.
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I
Our journey starts with a rehearsal of the relevant facts
and travel of the case, including a description of the pertinent
aspects of the FSA and the law pertaining to compassionate release.
The defendant led a sprawling drug-distribution and
money-laundering conspiracy in the early 2000s. After his
apprehension, the defendant was tried and found guilty of
involvement in two interlocking conspiracies: a conspiracy to
distribute and to possess with intent to distribute over 500 grams
of methamphetamine, see 21 U.S.C. § 846, and a conspiracy to
launder money, see 18 U.S.C. § 1956(h). On April 28, 2009, the
district court sentenced him to life imprisonment on the drug-
trafficking charge and to a concurrent 240-month term of immurement
on the money-laundering charge. The defendant appealed, and we
summarily affirmed. See United States v. Ruvalcaba, No. 09-1650
(1st. Cir. Jan. 7, 2010) (unpublished judgment).
The lifetime term of imprisonment reflected the enhanced
mandatory minimum penalty that Congress had prescribed for
defendants with two prior "felony drug offense[s]" pursuant to
section 841(b)(1)(A). See 21 U.S.C. § 841(b)(1)(A) (2006). At
the time of sentencing, the defendant had two earlier California
felony drug convictions: a 2001 conviction for importation, sale,
and distribution of methamphetamine and a 2001 conviction for
possession of methamphetamine.
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We fast-forward to the spring of 2020, when the defendant
moved for compassionate release under section 3582(c)(1)(A)(i), as
amended by the FSA. Two of the FSA's provisions are critically
important to the defendant's compassionate-release motion. First,
during the more than thirty years before the FSA's passage, any
motion for compassionate release had to be filed by the Director
of the federal Bureau of Prisons (BOP). See 18 U.S.C.
§ 3582(c)(1)(A) (2012). The FSA amended the statute, allowing
prisoners to file such motions on their own should the BOP decline
to act.1 See FSA § 603(b), 132 Stat. at 5239.
Second, the FSA reconfigured the sentencing landscape
through a series of revisions. Pertinently, it altered the scope
of the statutory mandatory minimum penalties imposed pursuant to
21 U.S.C. § 841(b)(1)(A). See FSA § 401, 132 Stat. at 5220-21.
This amendment reduced the mandatory minimum penalties in that
section such that a defendant who had two or more prior qualifying
convictions for drug offenses was no longer subject to a mandatory
term of life imprisonment but, rather, to an incarcerative term of
twenty-five years. See id. § 401(a)(2), 132 Stat. at 5220. For
1 As we noted in United States v. Saccoccia, 10 F.4th 1 (1st
Cir. 2021), "[s]uch motions are variously referred to as sentence-
reduction motions and compassionate-release motions." Id. at 4
n.2. In this case, as in Saccoccia, "[w]e use those terms
interchangeably." Id. In adopting this approach, we in no way
suggest that release from imprisonment is the only form of relief
contemplated under section 3582(c)(1)(A). After all, section
3582(c)(1)(A) refers to sentence reductions generally.
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a defendant with only one qualifying prior conviction, the
mandatory minimum term was reduced from twenty years to fifteen
years. See id. And as part and parcel of this series of changes,
the FSA modified the criteria for qualifying prior offenses by
replacing the term "felony drug offense" with the newly-defined
terms "serious drug felony" and "serious violent felony." Id.§ 401(a)(1), 132 Stat. at 5220.
Congress did not make these changes — found in section
401 of the FSA — applicable to all persons previously convicted
under section 841(b)(1)(A). Instead, Congress limited the
retroactivity of those amendments. Id. § 401(c), 132 Stat. at
5221 ("[Section 401], and the amendments made by this section,
shall apply to any offense that was committed before the date of
enactment of this Act, if a sentence for the offense has not been
imposed as of such date of enactment.").
Marshalling his case for compassionate release, the
defendant emphasized that had he been sentenced after the enactment
of the FSA, he would have had just one qualifying prior offense
and would have been subject to a mandatory prison term of only
fifteen years. His life sentence was so much more draconian that,
in his view, the resultant sentencing disparity was "extraordinary
and compelling." This was especially true, he added, because he
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was only forty-five years old and had been incarcerated on the
drug-trafficking conspiracy charge for fourteen of those years.2
The defendant offered an alternative ground for
compassionate release. His medical issues, he said, justified a
sentence reduction. In a supplemental motion, he added that his
medical conditions — along with the conditions of his confinement
— rendered him uniquely susceptible to severe illness or death
from COVID-19.
The district court denied the defendant's motions. As
an initial matter, the court determined that the defendant had
adequately exhausted his administrative remedies. See 18 U.S.C.
§ 3582(c)(1)(A). The court then turned to the question of whether
an extraordinary and compelling reason existed sufficient to
warrant compassionate release. Taking the first step along this
road, the court explained that although the Sentencing
Commission's current policy statement did not "directly address
the FSA's" amendments to the compassionate-release statute, it
"provide[d] helpful guidance." The court then rejected the
2The defendant argued, in the alternative, that the district
court should reduce his sentence to twenty-five years even if both
of his prior offenses continued to rank as qualifying offenses.
We note, moreover, that neither party discusses the significance,
if any, of the money-laundering sentence vis-à-vis the defendant's
quest for compassionate release. These matters — to the extent
that they are relevant — may be explored by the district court on
remand, but they have no bearing on the issues that are now before
us.
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defendant's "medical conditions" argument, reasoning that the BOP
could adequately address the defendant's medical issues and that
there was no persuasive evidence that the defendant was
particularly susceptible to the ravages of COVID-19.
Shifting its focus to the FSA's reduction of the
mandatory minimum penalties and the simultaneous modifications of
the criteria for qualifying prior offenses, the district court
disagreed that those changes could be an element of an
extraordinary and compelling reason for compassionate release. In
the court's estimation, the changes were prospective in effect
and, therefore, any ensuing disparity could not be deemed
extraordinary. To rule otherwise, the court suggested, would
result in an inappropriate judicial exception to the prospective
effect of the FSA's amendments and offend the principle that "[t]he
court may not modify a term of imprisonment once it has been
imposed." 18 U.S.C. § 3582(c).
This timely appeal followed. In it, the defendant
challenges the district court's refusal to consider the FSA's non-
retroactive changes in sentencing law as part of the "extraordinary
and compelling" calculus. He does not challenge the district
court's rejection of his plaint that his medical issues, standing
alone, warranted compassionate release.
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II
Section 3582(c)(1)(A) authorizes a court to reduce a
term of imprisonment when "extraordinary and compelling reasons
warrant such a reduction."3 A prisoner seeking such relief may
file a motion after exhausting his administrative remedies. See
18 U.S.C. § 3582(c)(1)(A); United States v. Texeira-Nieves, 23
F.4th 48, 52-53 (1st Cir. 2022). To grant the motion, the district
court must find both that the defendant has presented an
"extraordinary and compelling" reason warranting a sentence
reduction, 18 U.S.C. § 3582(c)(1)(A)(i), and that "such a
reduction is consistent with applicable policy statements issued
by the Sentencing Commission," id. § 3582(c)(1)(A). In addition,
the district court must consider any applicable section 3553(a)
factors, see id., and "determine whether, in its discretion, the
reduction . . . is warranted in whole or in part under the
particular circumstances of the case," United States v. Saccoccia,
10 F.4th 1, 4 (1st Cir. 2021) (omission in original) (quoting
Dillon v. United States, 560 U.S. 817, 827 (2010)).
3 The compassionate-release statute further provides that a
district court may grant relief to some prisoners who are at least
seventy years of age, who have served at least thirty years, and
who are not found to be "a danger to the safety of any other person
or the community." 18 U.S.C. § 3582(c)(1)(A)(ii); see United
States v. Texeira-Nieves, 23 F.4th 48, 54 n.3 (1st Cir. 2022).
This provision is not implicated here.
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We review a district court's denial of a compassionate-
release motion for abuse of discretion. See, e.g., id. at 4-5.
This standard is not monolithic and, under it, we review embedded
questions of law de novo and embedded findings of fact for clear
error. See United States v. Vélez-Andino, 12 F.4th 105, 112 (1st
Cir. 2021); Saccoccia, 10 F.4th at 5.
In the case at hand, the defendant argues that the
district court erred as a matter of law when it concluded that the
FSA's changes to the mandatory minimum penalties in section
841(b)(1)(A) and to the criteria for qualifying offenses could
never form part of the basis for granting a compassionate-release
motion. This argument raises questions of law, which engender de
novo review. See Texeira-Nieves, 23 F.4th at 55; Saccoccia, 10
F.4th at 4-5.
Our analysis proceeds in three parts. First, we address
whether the Sentencing Commission's current policy statement on
compassionate release is applicable to prisoner-initiated
motions.4 Second — after concluding that the policy statement is
presently no bar — we proceed to examine whether a district court
4 The government suggests that we need not reach this issue.
But the government also suggests that we should affirm on the
grounds that the policy statement is binding. See United States
v. Rodríguez-Peña, 470 F.3d 431, 433 (1st Cir. 2006) (per curiam)
(stating that court of appeals may affirm on any basis apparent
from the record). We address the authority of the policy statement
to explain why we cannot affirm on the alternative basis suggested
by the government.
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may permissibly consider those prospective changes on an
individualized basis to find an extraordinary and compelling
reason warranting compassionate release. Third, we briefly
address an alternative ground for affirmance advanced by the
government.
A
Section 3582(c)(1)(A) requires that a sentence reduction
be "consistent with applicable policy statements issued by the
Sentencing Commission." 18 U.S.C. § 3582(c)(1)(A). In other
words, "applicable policy statements" issued by the Sentencing
Commission are binding on courts reviewing compassionate-release
motions. See Saccoccia, 10 F.4th at 7 (citing Dillon, 560 U.S. at
826-27).
For over twenty years, this "consistency" requirement
was toothless: the Sentencing Commission did not issue any policy
statement on compassionate release until 2006. See USSG §1B1.13
(2006). This inaction persisted despite Congress's express
instruction that the Sentencing Commission "describe what should
be considered extraordinary and compelling reasons for sentence
reduction, including the criteria to be applied and a list of
specific examples." 28 U.S.C. § 994(t).
When the dam broke and a policy statement was eventually
issued, that statement mostly mirrored the then-current statutory
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language.5 See USSG §1B1.13 (2006). Later, the Sentencing
Commission identified some extraordinary and compelling reasons in
the commentary to section 1B1.13. See id. §1B1.13 cmt. n.1 (A)-
(D). At the time the FSA was enacted, this compendium included
four categories of extraordinary and compelling reasons: medical
conditions; age; family circumstances; and a catch-all for other
reasons deemed appropriate by the BOP. See id.
That list remains unchanged today. Neither the policy
statement nor the commentary — at least explicitly — say that non-
retroactive changes in sentencing law may constitute an
extraordinary and compelling reason for compassionate release. In
order to put this appeal into perspective, then, we evaluate the
effect, if any, of section 1B1.13 on the defendant's effort to
obtain compassionate release.
To perform this evaluation, our starting point is the
relevant text of both the statute and the current policy statement.
See United States v. Smith, 954 F.3d 446, 448 (1st Cir. 2020).
The statute demands that an inquiring court consider whether a
reduction is "consistent with" policy statements that are
We say "mostly" because section 1B1.13 also requires a
5
finding that the defendant is not dangerous in order to grant
compassionate release based on extraordinary and compelling
reasons. See USSG §1B1.13(2); 18 U.S.C. § 3582(c)(1)(A)(i); see
also Texeira-Nieves, 23 F.4th at 54 n.3. This requirement reflects
a mandate contained in a different provision — 18 U.S.C.
§ 3582(c)(1)(A)(ii).
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"applicable." 18 U.S.C. § 3582(c)(1)(A). But there is a rub:
section 1B1.13 was last modified in November of 2018 — before the
FSA amended the compassionate-release statute to allow for
prisoner-initiated motions. The obvious question, then, is
whether this policy statement is "applicable" to motions of a type
that did not exist when it was written. To resolve this question,
we turn principally to the language of the policy statement itself.
The text of the current policy statement makes pellucid
that it is "applicable" only to motions for compassionate release
commenced by the BOP. Section 1B1.13 starts with a description of
the condition that the compassionate-release process must be
initiated by the BOP. See USSG §1B1.13 ("Upon motion of the
Director of the Bureau of Prisons under 18 U.S.C.
§ 3582(a)(1) . . . ."). This imperative is a "direct textual
instruction" and describes a "central statutory feature of the
compassionate release scheme prior to the [FSA]." United States
v. Long, 997 F.3d 342, 358 (D.C. Cir. 2021). The policy statement
is therefore not "applicable," on a literal reading, to motions
brought by prisoners; it applies only to motions brought by the
BOP. See id. at 357 (determining that policy statement is
"facially inapplicable" to prisoner-initiated motions); United
States v. McCoy, 981 F.3d 271, 282 & n.7 (4th Cir. 2020); United
States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States
v. Brooker, 976 F.3d 228, 235-36 (2d Cir. 2020).
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The Sentencing Commission's commentary to the policy
statement reinforces this view. See USSG §1B1.13 cmt. n.1-5. Such
commentary is generally considered as authoritative (with
exceptions not applicable here). See Stinson v. United States,
508 U.S. 35, 38 (1993); see also Long, 997 F.3d at 356. The
commentary confirms that the policy statement applies only to
motions filed by the BOP. It reiterates that "[a] reduction under
this policy statement may be granted only upon motion by the
Director of the Bureau of Prisons pursuant to 18 U.S.C.
§ 3582(c)(1)(A)." USSG §1B1.13 cmt. n.4. A prisoner-initiated
motion for compassionate release cannot — by the Sentencing
Commission's own words — be brought under "th[at] policy
statement." Id.; see McCoy, 981 F.3d at 282; Brooker, 976 F.3d at
236.
To find the existing policy statement "applicable" to
prisoner-initiated motions, we would need to excise the language
referring to motions brought by the BOP. That would be major
surgery and undertaking it would be well outside our proper
interpretive province. See, e.g., Long, 997 F.3d at 356; McCoy,
981 F.3d at 282. We may not "blue pencil" unambiguous text to
divorce it from its context.6 Mass. Mut. Life Ins. Co. v. Russell,
473 U.S. 134, 141-142 (1985).
Let us be perfectly clear.
6 We do not suggest that the
current policy statement is invalid but, rather, we read it as
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Of course, the Sentencing Commission has left its policy
statement intact, without amendment, since the FSA first allowed
for prisoner-initiated motions for compassionate release. This
passivity on the Commission's part arguably might spawn an
inference that the Commission found the current policy statement
to remain responsive notwithstanding the broadening of the
compassionate-release statute. Here, however, there is no fertile
ground for any such inference. The simple fact of the matter is
that the Sentencing Commission has lacked a quorum for most of the
time that has elapsed since the FSA's passage. See Guerrant v.
United States, 142 S. Ct. 640, 640-41 (2022) (statement of
Sotomayor, J., joined by Barrett, J.); Saccoccia, 10 F.4th at 7.
Consequently, it has not had any realistic opportunity to issue a
post-FSA policy statement. Viewed against this backdrop, the
Sentencing Commission's silence does not suggest that it regards
any part of its current policy statement as applicable to prisoner-
initiated motions for compassionate release. See Long, 997 F.3d
at 355 (explaining that Sentencing Commission has "never suggested
that its existing policy statement applies to defendant motions
applicable only to a limited context — compassionate-release
motions brought by the BOP. See United States v. Jones, 980 F.3d
1098, 1111 n.19 (6th Cir. 2020); Brooker, 976 F.3d at 236. The
conclusion that the current policy statement remains valid with
respect to compassionate-release motions brought by the BOP but
not as to those brought by prisoners is not internally
inconsistent.
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under the First Step Act"); McCoy, 981 F.3d at 283 (declining to
assume what Sentencing Commission would decide following the FSA).
For these reasons, we hold that a district court is not
constrained by the existing policy statement on compassionate
release when adjudicating a motion brought by a prisoner. This
holding aligns our court with the overwhelming majority of the
courts of appeals that have decided the issue. See United States
v. Andrews, 12 F.4th 255, 259 (3rd Cir. 2021); Long, 997 F.3d at
359; United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021)
(per curiam); United States v. Shkambi, 993 F.3d 388, 392-93 (5th
Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir.
2021); McCoy, 981 F.3d at 282; United States v. Jones, 980 F.3d
1098, 1101 (6th Cir. 2020); Gunn, 980 F.3d at 1180; Brooker, 976
F.3d at 230.
We recognize that there is an outlier. A divided panel
of the Eleventh Circuit has held that the current policy statement
applies to prisoner-initiated motions. See United States v.
Bryant, 996 F.3d 1243, 1247 (11th Cir.), cert. denied, 142 S. Ct.
583 (2021). That holding, though, is based mainly on the court's
insistence that an "applicable policy statement" is merely one
that is "capable of being applied" or "relevant." Id. at 1252-
53. This tautological approach may have a certain superficial
appeal, but "there are situations in which rigid adherence to
semantic orthodoxy must yield to common sense." United States ex
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rel. Ondis v. City of Woonsocket, 587 F.3d 49, 57 (1st Cir. 2009).
Although the Bryant majority purported to analyze the phrase
"applicable policy statements" in the statutory "context and with
a view to [its] place in the overall statutory scheme," Sturgeon
v. Frost, 136 S. Ct. 1061, 1070 (2016) (quotations omitted), such
context and scheme make luminously clear that the current policy
statement cannot be "applicable" to prisoner-initiated motions.
Congress authorized the Sentencing Commission to
promulgate "general policy statements" that would "further the
purposes set forth in" 18 U.S.C. § 3553(a)(2), including "the
appropriate use of . . . the sentence modification provisions" in
section 3582(c). See 28 U.S.C. § 994(a)(2)(C). Section 603(b) of
the FSA fundamentally changed the compassionate-release mechanism.
The amendment, entitled "Increasing the Use and Transparency of
Compassionate Release," created a new regime in which — for the
first time — prisoners may seek compassionate release even when
the BOP does not deign to act on their behalf. FSA § 603(b), 132
Stat. at 5239. By empowering district courts to grant
compassionate release in response to a prisoner's own request, the
amendment effected a paradigm shift in how compassionate release
would function. Given the profound nature of this paradigm shift,
it is fair to say that the "purposes" and "appropriate use" of the
compassionate-release statute (to use the language of 28 U.S.C.
§ 994(a)(2)(C)) have swelled beyond those that inhered in the
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statute when the Sentencing Commission issued its original policy
statement. It would blink reality to assume that the Sentencing
Commission would think that the only modifications necessary to
the existing policy statement would be to disregard the references
to motions brought by the BOP.
If more were needed — and we doubt that it is —
Application Note 1(D) of the commentary cinches the matter. See
USSG §1B1.13 cmt. n.1(D). This note requires that "other"
extraordinary and compelling reasons — that is, reasons not
specifically described in the commentary — must be "determined by
the Director of the [BOP]." Id. Such a requirement is plainly a
relic of the outdated regime by which the BOP would in all cases
weigh the merits of a compassionate-release request and then file
a motion only if it judged the request worthy. To "assume that
Application Note 1(D) w[ould] survive unchanged in a post-First
Step Act world," McCoy, 981 F.3d at 283, would require throwing
reasoned analysis to the winds and replacing it with sheer
conjecture.
The government adopts a contrary stance, suggesting that
it would not be inconsistent to apply the requirement specified in
Application Note 1(D) to prisoner-initiated motions. In its
telling, the FSA's changes to the compassionate-release mechanism
are merely procedural. See Bryant, 996 F.3d at 1248, 1263-64.
This suggestion elevates hope over reason: the FSA did more than
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alter procedural aspects of the compassionate-release process. It
worked a paradigm shift, which brought about "material changes,"
expanding opportunities for compassionate release after a long
history of poor implementation and rare use.7 Brooker, 976 F.3d
at 231-34; see McGee, 992 F.3d at 1041. Seen in this real-world
context, an "applicable" policy statement, binding on courts
adjudicating motions brought by prisoners, surely would require
the Sentencing Commission's judgment on the "appropriate" use of
the compassionate-release mechanism as reconfigured by the FSA.
See Long, 997 F.3d at 359 (explaining that an "applicable" policy
statement would "take account of the relevant legislation and the
congressional policy"); McCoy, 981 F.3d at 283.
The short of it is that the Sentencing Commission's
current policy statement is not applicable to prisoner-initiated
motions for compassionate release, and the Commission has not yet
issued a policy statement applicable to such motions. The policy
statement referred to by the district court (that is, the current
policy statement) is applicable only to compassionate-release
7 The statistics tell the tale. There has been a sharp
increase in both filings and grants of compassionate-release
motions since the FSA's passage. See Brooker, 976 F.3d at 233.
For instance, the Sentencing Commission reported only twenty-four
grants of compassionate release in fiscal year 2018. See U.S.
Sent'g Comm'n, The First Step Act of 2018: One Year of
Implementation 47 & n.143 (Aug. 2020). Since the FSA was passed
in December of 2018, the number of such grants has swelled to over
4,000. See BOP, First Step Act, https://www.bop.gov/inmates/fsa
(last visited Feb. 14, 2022).
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motions brought by the BOP. We hold, therefore, that district
courts — when adjudicating prisoner-initiated motions for
compassionate release — have discretion, unconstrained by any
policy statement currently in effect, to consider whether a
prisoner's particular reasons are sufficiently extraordinary and
compelling to warrant compassionate release. See McCoy, 981 F.3d
at 284 (holding that because there is no "applicable" policy
statement, "district courts are 'empowered . . . to consider any
extraordinary and compelling reason for release that a defendant
might raise'" (quoting Brooker, 976 F.3d at 230)); Gunn 980 F.3d
at 1180 (similar).
For the sake of completeness, we hasten to add that the
absence of an applicable policy statement does not mean that a
district court's discretion when adjudicating a prisoner-initiated
motion for compassionate release is unbounded. As Judge
Easterbrook put it, the absence of applicable policy statement
does not "creat[e] a sort of Wild West in court, with every
district judge having an idiosyncratic release policy." Gunn, 980
F.3d at 1180. After all, the district court's discretion remains
circumscribed by statutory standards, which obligate the district
court to find a reason that is both "extraordinary and compelling."
18 U.S.C. § 3582(c)(1)(A)(i); see United States v. Canales-Ramos,
19 F.4th 561, 566 (1st Cir. 2021) ("[T]he 'extraordinary and
compelling' standard is logically guided by the plain meaning of
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those terms."). And, moreover, the current policy statement —
though not "applicable" — nonetheless may serve as a non-binding
reference. See Andrews, 12 F.4th at 260; Aruda, 993 F.3d at 802;
United States v. Tomes, 990 F.3d 500, 503 n.1 (6th Cir. 2021);
McCoy, 981 F.3d at 282 n.7; Gunn, 980 F.3d at 1180.
Last but not least, we recognize that the situation is
fluid. The Sentencing Commission's lack of a quorum has stymied
the Commission from issuing policy statements. See Guerrant, 142
S. Ct. at 640-41 (statement of Sotomayor, J., joined by Barrett,
J.). If and when the Sentencing Commission issues updated guidance
applicable to prisoner-initiated motions for sentence reductions
consistent with both section 3582(c)(1)(A) and the Sentencing
Commission's statutory mandate under section 994(t), district
courts addressing such motions not only will be bound by the
statutory criteria but also will be required to ensure that their
determinations of extraordinary and compelling reasons are
consistent with that guidance. See Saccoccia, 10 F.4th at 7.
Until then, however, the district courts will have to assess
prisoner-initiated motions for compassionate release primarily
through the lens of the statutory criteria, subject to review on
appeal.
B
The central question remains. That question asks
whether a district court — in the absence of an applicable policy
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statement — may permissibly consider the FSA's non-retroactive
amendments to the mandatory minimum penalties under section
841(b)(1)(A) on an individualized basis to determine whether an
extraordinary and compelling reason for compassionate release
exists in a particular case. The district court answered this
question in the negative, determining that such prospective
changes in sentencing law could never form part of the basis of an
extraordinary and compelling reason. Thus, it refused to consider
those changes at all regardless of their manifestation in the
defendant's particular circumstances (such as his relatively young
age at the time he began serving his life term and the gross
disparity between his pre-FSA mandatory sentence and his putative
post-FSA mandatory minimum). In support, the court reasoned
chiefly that any contrary conclusion would "effectively
establish[] a judicial exception to the general rule of prospective
effect of legislative enactments." We do not agree.
Although this issue is one of first impression for our
court, we do not write on a pristine page. Several courts of
appeals have addressed the issue. Three of those courts have
concluded that a district court's discretionary authority under
section 3582(c)(1)(A) does not allow consideration of the FSA's
non-retroactive changes in sentencing law in the course of
determining whether an extraordinary and compelling reason exists.
See United States v. Crandall, ___ F.4th ___, ___ (8th Cir. 2022)
- 22 -
[No. 20-3611, slip op. at 6]; Andrews, 12 F.4th at 261-62; United
States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021). Two of these
courts have suggested that such sentencing disparities may be
considered by a district court only in weighing the section 3553(a)
factors, see Andrews, 12 F.4th at 262; Thacker, 4 F.4th at 576 —
an issue that need not be reached unless and until the court first
finds that an extraordinary and compelling reason exists.
Two other courts of appeals have come to a different
conclusion. Each of those courts has concluded that there is
enough play in the joints for a district court to consider the
FSA's non-retroactive changes in sentencing law (in combination
with other factors) and find an extraordinary and compelling reason
in a particular case, without doing violence to Congress's views
on the prospective effect of the FSA's amendments. See McGee, 992
F.3d at 1045-48; McCoy, 981 F.3d at 285-87. Specifically, the
Fourth Circuit has held that a district court may permissibly treat
as an extraordinary and compelling reason the disparity between a
defendant's sentence and that provided for under the FSA's
amendments, emphasizing that such a judgment is appropriate only
after an individualized inquiry "basing relief not only on the
[FSA's] change to sentencing law . . . but also on [other]
factors." McCoy, 981 F.3d at 288. So, too, the Tenth Circuit has
held that "the fact a defendant is serving a pre-FSA mandatory
life sentence imposed under [section] 841(b)(1)(A) cannot,
- 23 -
standing alone, serve as a basis for the sentence reduction under
[section] 3582(c)(1)(A)(i)" but that "the combination of such a
sentence and a defendant's unique circumstances" may "constitute
'extraordinary and compelling reasons.'" McGee, 992 F.3d at 1048.8
Once again, our analysis begins with the text of the
relevant statutes. Section 3582(c)(1)(A)(i) requires that before
granting a sentence reduction, the district court must find an
extraordinary and compelling reason warranting relief. In the
absence of an applicable policy statement, there is only one
explicit limitation on what may comprise an extraordinary and
compelling reason. Congress has stated plainly — in a separate
statute authorizing the Sentencing Commission to issue general
policy statements — that "[r]ehabilitation . . . alone shall not
be considered an extraordinary and compelling reason." 28 U.S.C.
§ 994(t). Nowhere has Congress expressly prohibited district
courts from considering non-retroactive changes in sentencing law
like those in section 401 of the FSA. Such a prohibition cannot
8 Divided panels of the Sixth Circuit have straddled the fence
and placed that court on both sides of the decisional divide.
Compare United States v. Jarvis, 999 F.3d 442, 443-45 (6th Cir.
2021), cert. denied, 142 S. Ct. 760 (2022) (holding consideration
of non-retroactive FSA changes impermissible), with United States
v. Owens, 996 F.3d 755, 764 (6th Cir. 2021) (holding to contrary).
A panel has recently endorsed a decision that aligns the court
with the Third, Seventh, and Eighth Circuits. See United States
v. McKinnie, ___ F.4th ___, ___ (6th Cir. 2022) [No. 21-3608, slip
op. at 7] (endorsing Jarvis, not Owens, as law of circuit). But
see United States v. McCall, 20 F.4th 1108, 1114 (6th Cir. 2021)
(describing Jarvis as "creat[ing] an intra-circuit split").
- 24 -
be deduced from section 3582(c)(1)(A)'s requirement that a court
consider the section 3553(a) factors when granting a sentence
reduction. No part of this requirement suggests that a district
court is precluded from considering issues relevant to those
sentencing factors at the separate step of determining whether an
extraordinary and compelling reason exists. Were this the case,
there would have been no reason for Congress to caution that
rehabilitation — a relevant consideration in the section 3553(a)
inquiry — could not constitute an extraordinary and compelling
reason.
Nor do we see any textual basis in the FSA for a
categorical prohibition anent non-retroactive changes in
sentencing law. The provision describing the effect of the FSA's
relevant amendments limits the application of those amendments to
"apply to any offense that was committed before the date of
enactment of this Act, if a sentence for the offense has not been
imposed as of such date of enactment." See FSA § 401(c), 132 Stat.
at 5221. Neither this provision nor any other provision in the
FSA indicates that Congress meant to deny the possibility of a
sentence reduction, on a case-by-case basis, to a defendant
premised in part on the fact that he may not have been subject to
a mandatory sentence of life imprisonment had he been sentenced
after passage of the FSA. See McGee, 992 F.3d at 1047. And to
the extent (if at all) that we might be able to infer any
- 25 -
congressional understanding of the scope of "extraordinary and
compelling" derived from the Sentencing Commission's policy
statement that existed at the time Congress enacted the FSA, the
text of that policy statement offers no support for such a
categorical prohibition. After all, the catch-all provision of
the commentary to the policy statement allows the BOP to determine
other extraordinary and compelling reasons, and in no way suggests
that the Sentencing Commission intended to circumscribe the scope
of what is "extraordinary and compelling." See USSG §1B1.13 cmt.
n.1(D). This reading of the catch-all provision is consistent
with the Sentencing Commission's statutory mandate that it
"describe" (and not define) what should be considered an
"extraordinary and compelling" reason. See 28 U.S.C. § 994(t).
On the whole, given the language that Congress
deliberately chose to employ, we see no textual support for
concluding that such changes in the law may never constitute part
of a basis for an extraordinary and compelling reason. We are,
moreover, reluctant to infer that Congress intended such a
categorical and unwritten exclusion in light of its specific
statutory exclusion regarding rehabilitation. See TRW Inc. v.
Andrews, 534 U.S. 19, 28 (2001); see also Pritzker v. Yari, 42
F.3d 53, 68 (1st Cir. 1994) ("As the maxim teaches, 'expressio
unius est exclusio alterius.'").
- 26 -
Our view that a district court may consider the FSA's
prospective amendments to sentencing law as part of the
"extraordinary and compelling" calculus fits seamlessly with the
history and purpose of the compassionate-release statute. In
abolishing federal parole, Congress recognized the need for a
"safety valve" with respect to situations in which a defendant's
circumstances had changed such that the length of continued
incarceration no longer remained equitable. See S. Rep. No. 98-
225, 55-56, 121 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,
3238-39, 3304 (contemplating that circumstances may present
justifying a reduction of an "unusually long sentence"); McGee,
992 F.3d at 1046-47. To serve as a safety valve, section
3582(c)(1)(A) must encompass an individualized review of a
defendant's circumstances and permit a sentence reduction — in the
district court's sound discretion — based on any combination of
factors (including unanticipated post-sentencing developments in
the law). See Setser v. United States, 566 U.S. 231, 242-43 (2012)
("[W]hen the district court's failure to anticipate developments
that take place after the first sentencing produces unfairness to
the defendant," section 3582(c)(1)(A) "provides a mechanism for
relief." (quotations and alteration omitted)).
The court below adopted a contrary view, concluding that
the FSA's prospective changes cannot be considered in any case
- 27 -
because Congress made those changes non-retroactive. The force of
this conclusion derives largely from three arguments.
The first argument is that a district court would usurp
Congress's judgment were it to grant a sentence reduction in favor
of a defendant for whom Congress had determined retroactive relief
was inappropriate. See Crandall, ___ F.4th at ___ [No. 20-3611,
slip op. at 6]; Andrews, 12 F.4th at 261 (describing issue as
"sow[ing] conflict" with provision requiring prospective
application of the FSA's changes to section 924(c)); Thacker, 4
F.4th at 574 (positing that section 3582(c)(1)(A) "cannot be used
to effect a sentencing reduction at odds with Congress's express
determination"); United States v. Jarvis, 999 F.3d 442, 444 (6th
Cir. 2021), cert. denied, 142 S. Ct. 760 (2022) ("If every
defendant who received a longer sentence than the one he would
receive today became eligible for compassionate release, the
balance Congress struck would come to naught."). The second
argument is that by granting such relief, a district court would
offend other congressional judgments like those regarding
appropriate penalties, the limited avenues for collateral
challenges, and the rule of finality that traditionally attaches
to criminal sentences. See Crandall, ___ F.4th at ___ [No. 20-
3611, slip op. at 7]; Andrews, 12 F.4th at 261; Thacker, 4 F.4th
at 574. The third argument rests on the notion that a sentence
legally imposed cannot itself be considered "extraordinary." See
- 28 -
Crandall, ___ F.4th at ___ [No. 20-3611, slip op. at 6-7]; Andrews,
12 F.4th at 261; Thacker, 4 F.4th at 574.
These arguments, whether appraised singly or
collectively, cannot bear the weight of the district court's
conclusion. They cannot support a categorical rule that non-
retroactive changes in sentencing law, even when considered on an
individualized basis, may never support a reason for a sentence
reduction under section 3582(c)(1)(A).
To be sure, the first two arguments present a fair
concern: if a district court were to reduce a sentence solely
because one of the FSA's non-retroactive amendments would have
lowered a defendant's sentence, it might be seen as substituting
its own judgment on retroactivity for Congress's judgment and — in
the bargain — offending the rule of finality. But that critique
knocks down a straw man: we in no way suggest that the FSA's non-
retroactive amendments "simultaneously creat[ed] an extraordinary
and compelling reason for early release." Andrews, 12 F.4th at
261. There is a salient "difference between automatic vacatur and
resentencing of an entire class of sentences" on the one hand,
"and allowing for the provision of individual relief in the most
grievous cases" on the other hand. McGee, 992 F.3d at 1047
(quoting McCoy, 981 F.3d at 286-87). Congress's judgment to
prevent the former is not sullied by a district court's
determination, on a case-by-case basis, that a particular
- 29 -
defendant has presented an extraordinary and compelling reason due
to his idiosyncratic circumstances (including that his mandatory
minimum sentence under section 841(b)(1)(A) would have been
significantly shorter under the FSA). See id. As long as the
individualized circumstances, taken in the aggregate, satisfy the
"extraordinary and compelling" standard, granting relief would be
consistent with Congress's judgment that a modification of a
sentence legally imposed may be warranted when extraordinary and
compelling reasons for taking that step exist. See McCoy, 981
F.3d at 288. And conversely, this part of the compassionate-
release statute is no help to a defendant who presents only
ordinary reasons. See Saccoccia, 10 F.4th at 5 ("Words like
'extraordinary' and 'compelling,' when used by Congress in framing
a statute, must be given their plain meaning.").
The third argument furnishes an even weaker foundation
for the district court's categorical rule. The thrust of this
argument is that Congress's judgment to limit the retroactivity of
certain changes in the FSA affecting sentencing exposure can never
be considered extraordinary and compelling because "there is
nothing 'extraordinary' about leaving untouched the exact
penalties that Congress prescribed and that a district court
imposed for particular violations of a statute."9 Thacker, 4 F.4th
9 The government suggests that we have supported this view as
a matter of law. That suggestion relies on an unpublished
- 30 -
at 574. Even if this statement rings true in many situations, we
do not see how it can be stated in such absolute terms with respect
to compassionate-release motions. After all, a district court's
individualized consideration of a defendant's circumstances in
connection with a compassionate-release motion may require it to
assess interactions among a myriad of factors. Judges do not have
crystal balls, and courts cannot predict how this mix of factors
— including non-retroactive changes in sentencing law — will play
out in every case. Ultimately, then, it is within the district
court's discretion — constrained only by the statutory criteria
and any applicable policy statement — to make that assessment,
case by case.
To say more would be to paint the lily. We hold that
the district court's categorical exclusion of non-retroactive
changes in sentencing law from the "extraordinary and compelling"
calculus is neither consistent with the relevant statutory text
nor compelled by the arguments embraced by the district court.
While we agree that the mere fact of a "pre-First Step Act
mandatory life sentence imposed under [section] 841(b)(1)(A)
judgment, see United States v. De Jesús, No. 19-2210, 2020 WL
9597494, at *1 (1st. Cir. July 23, 2020) (unpublished judgment),
cert. denied, No. 20-7694, 2021 WL 1952111, at *1 (U.S. May 17,
2021) — a judgment that lacks precedential effect, see 1st Cir.
Rule 32.1. What is more, the government's suggestion misreads De
Jesús. We determined there only that the district court's denial
of relief was within its discretion given the circumstances
presented in that case.
- 31 -
cannot, standing alone, serve as the basis for a sentence reduction
under [section] 3582(c)(1)(A)(i)," McGee, 992 F.3d at 1048, that
is only part of the picture. The other part of the picture is
decisive here: it is within the district court's discretion, in
the absence of a contrary directive in an applicable policy
statement, to determine on a case-by-case basis whether such
changes in law predicated on a defendant's particular
circumstances comprise an extraordinary and compelling reason and,
thus, satisfy the standard for compassionate release under section
3582(c)(1)(A)(i). See id.; McCoy, 981 F.3d at 288.
C
The government has a fallback position. It contends
that we may still affirm the district court's decision to deny
compassionate release for a different reason. In its view, the
district court's decision ought to be upheld because the
defendant's circumstances show that compassionate release is
simply not warranted. The government notes, for example, that
apart from the mandatory minimum, the defendant had a guideline
sentencing range of life imprisonment.
The government's contention impermissibly compresses the
required analysis. The district court's error related to an issue
of law, which reflected a misunderstanding of the scope of its
discretion in determining whether an extraordinary and compelling
reason existed sufficient to warrant compassionate release. It
- 32 -
did not proceed to an individualized assessment of whether the
FSA's non-retroactive changes, coupled with the defendant's
individualized circumstances, warranted compassionate release.
Indeed, the court did not consider the defendant's individualized
circumstances at all. Nor did the court undertake a section
3553(a) analysis. See Texeira-Nieves, 23 F.4th at 52 (explaining
that appellate review is facilitated when district court proceeds
to review sentencing factors). On this record, we cannot affirm
the district court's decision as a proper exercise of its
discretion.
III
We need go no further. As a general matter, a district
court, reviewing a prisoner-initiated motion for compassionate
release in the absence of an applicable policy statement, may
consider any complex of circumstances raised by a defendant as
forming an extraordinary and compelling reason warranting relief.
It follows that a district court adjudicating such a motion may
consider the FSA's non-retroactive amendments to the scope of the
mandatory minimum penalties under section 841(b)(1)(A) on a case-
by-case basis grounded in a defendant's individualized
circumstances to find an extraordinary and compelling reason
warranting compassionate release. The court below erred by
concluding, as a matter of law, that the FSA's prospective changes
to the mandatory minimum penalties could not — even when considered
- 33 -
on an individualized basis — support a reason for compassionate
release. Accordingly, the judgment must be vacated and the matter
remanded for further proceedings consistent with this opinion. We
take no view as to the outcome of those further proceedings.
Vacated and Remanded.
— Concurring Opinion Follows —
- 34 -
BARRON, Circuit Judge, concurring. Judge Selya
convincingly explains why, under the First Step Act, a prospective
legislative change that reduces the length of a mandatory minimum
sentence for an offense can give rise -- in certain cases -- to an
"extraordinary and compelling reason" to reduce a sentence that
was imposed for that same offense prior to that change. See 18
U.S.C. § 3582(c)(1)(A)(i). I thus join his excellent opinion in
full. I write separately only to give some texture to that
conclusion by referencing a case that this Court encountered before
the First Step Act had been enacted.
The case involved Wendell Rivera-Ruperto's ("Rivera's")
unsuccessful federal constitutional challenge to the mandatory
prison sentence that he received for having been convicted of six
counts of violating 18 U.S.C. § 924(c).10 See United States v.
Rivera-Ruperto (Rivera-Ruperto I), 846 F.3d 417 (2017); United
States v. Rivera-Ruperto (Rivera-Ruperto II), 852 F.3d 1 (1st Cir.
2017); United States v. Rivera-Ruperto (Rivera-Ruperto III), 884
F.3d 25 (1st Cir. 2018) (denial of petition for rehearing en banc).
That mandatory sentence was for 130 years of imprisonment, Rivera-
Ruperto II, 852 F.3d at 5, and, as such, "could not have been
harsher save for a sentence of death," Rivera-Ruperto III, 884
F.3d at 30 (Barron, J., concurring in the denial of rehearing en
10 Rivera raised other issues on appeal that are not relevant
here.
- 35 -
banc, joined by all then-active First Circuit judges and Judge
Lipez). Yet, if Rivera were sentenced today for those same
offenses, the mandatory prison term to which he would be subject
would be a century shorter. And, that is because of an amendment
to § 924(c) that Congress made in the First Step Act itself when
it also expanded in that same statute the circumstances in which
a reduction to a previously imposed sentence could be sought for
an "extraordinary and compelling reason." See First Step Act of
2018, Pub. L. No. 115-391, 132 Stat. 5194.
To understand how the First Step Act's amendment to
§ 924(c) would bring about such a stark sentencing differential,
it helps to wind back the clock almost a decade to when Rivera was
sentenced for his § 924(c) convictions. Then, as now, § 924(c)
made it a crime for an individual to "use[] or carr[y] a firearm"
"during and in relation to any crime of violence or drug
trafficking crime" or to "possess[] a firearm" "in furtherance of
any such crime." 18 U.S.C. § 924(c)(1)(A). And then, as now, the
mandatory minimum sentence for an individual convicted of that
offense was a term of imprisonment of at least five years.11 Id.§ 924(c)(1)(A)(i).
11 The mandatory minimum increases if additional facts
relating to the the individual's use of the firearm are found by
a jury. See id. § 924(c)(1)(A)(ii)-(iii).
- 36 -
In addition, the statute provided then for a twenty-
five-year mandatory minimum sentence for any "second or subsequent
conviction" for violating § 924(c). Id. § 924(c)(1)(C). And
further, the statute provided at that time that each mandatory
twenty-five-year prison sentence was to be served consecutively,
such that the mandatory prison sentences that the statute required
to be imposed would have to be stacked one upon another, resulting
in mandatory prison sentences in some cases that could easily
exceed the span of any defendant's life.
Moreover, at the time of Rivera's convictions and
sentence, the Supreme Court had construed § 924(c) (in a sharply
divided ruling over a strong dissent) in a way that made it even
harsher than I have just described it to be. The Supreme Court
had done so by construing the "second or subsequent conviction"
phrase to encompass a follow-on § 924(c) conviction even if none
of the defendant's preceding § 924(c) convictions had become final
and even if each of those earlier convictions had been for a
violation of § 924(c) that had occurred before the defendant had
been convicted under § 924(c) even once. See Deal v. United
States, 508 U.S. 129, 136 (1993).
In consequence, Rivera was subject not only to a
mandatory prison sentence of five years for his first § 924(c)
conviction but also to a mandatory prison sentence of twenty-five
years for each of his five additional § 924(c) convictions, with
- 37 -
each of those twenty-five-year mandatory prison sentences to be
served consecutively. And that was so, notwithstanding that
Rivera -- who had no prior criminal history of any kind -- had
committed each of his six § 924(c) violations roughly
contemporaneously and before he had been convicted of committing
any of them.
Thus, although Rivera had not been convicted of
committing any crime prior to being convicted under § 924(c), and
although he was in no sense a § 924(c) recidivist -- as he had
committed no such offense after already having been punished for
violating that same statute -- he received a mandatory, greater-
than-life prison sentence for his § 924(c) convictions. In other
words, solely in consequence of the disputed way in which § 924(c)
had been construed in Deal, he was subjected to a mandatory prison
sentence that was just as harsh as the mandatory one that he would
have been subjected to if he had been a true § 924(c) recidivist
five times over or if he had an extensive criminal history before
he had committed the first such violation. See Rivera-Ruperto
III, 884 F.3d at 25-26 & n.2.
Recognizing how harsh Deal's construction of § 924(c)
was, Congress chose in the First Step Act -- while also expanding
the ability of those serving lengthy prison sentences to seek
reductions of them for an "extraordinary and compelling
reason" -- to supersede that construction. Specifically, Congress
- 38 -
amended § 924(c) so that, going forward, the twenty-five-year
mandatory minimum sentence is triggered only by a "violation of
[§ 924(c)] that occurs after a prior conviction under [§ 924(c)]
has become final." See First Step Act of 2018, Pub. L. No. 115-
391, 132 Stat. 5194.
The result is that, by virtue of the First Step Act, if
Rivera were sentenced today for his same § 924(c) convictions,
none of them would subject him to the twenty-five-year mandatory
minimum. And so, he would not be subject today to a mandatory
prison sentence for all of them that would exceed his natural life.
True, Congress did not choose in the First Step Act to
make this amendment to § 924(c)'s stacking regime retroactive.
See Pub. L. No. 115-391 § 403(b), 132 Stat. 51. But, for reasons
that Judge Selya's opinion well explains, it does not follow that
Congress in passing the First Step Act wished to foreclose every
individualized request that a prisoner sentenced under the prior
stacking regime might bring pursuant to the expanded mechanism for
seeking sentence reductions that Congress chose to make newly
available in that same statute. In fact, a case like Rivera's, in
my view, makes vivid the reason to conclude that such a request
could, in some cases, be understood to be asserting a reason for
a sentence reduction of just the "extraordinary and compelling"
kind that Congress contemplated in expanding that mechanism.
- 39 -
I say that only partly because virtually the entirety of
mandatory, 100-years-plus prison term for Rivera arose from a
construction of § 924(c) that was itself highly disputed at the
time as to whether it reflected Congress's intent, see Deal, 508
U.S. 129, 138 (Stevens, J., dissenting), and that Congress has now
superseded in the First Step Act itself. I say that also because
the stacking of multiple mandatory twenty-five-year-long prison
sentences to which he was subject -- notwithstanding his lack of
any criminal history -- resulted from a quirk in our Circuit's
case law that precluded him from benefiting from the rule that
offenses committed in a single course of conduct must be treated
as part of a single conspiracy. See Rivera-Ruperto III, 884 F.3d
at 33.
In fact, it was with these highly unusual features of
Rivera's case in mind that we observed in considering his
constitutional challenge to his no-hope sentence that "it is not
realistic to posit that the Congress that enacted § 924(c) made a
focused judgment that [every] defendant[] [convicted on multiple
counts of § 924(c)] should receive a mandatory life-without-parole
sentence" through the operation of the statute's stacking
provisions. Rivera-Ruperto III, 884 F.3d at 41. It seems to me
that the same reasons that led us to conclude that "it is pure
fiction to imagine that Congress . . . was focused on", or even
aware of, every possible offense combination that could trigger
- 40 -
the stacking requirement under the old Deal-inflected version of
§ 924(c), id. at 42, make it equally fictitious to conclude that
Congress, by not making the First Step Act amendments to § 924(c)
retroactive, meant categorically to foreclose any individualized
reconsideration of a prior sentence imposed under the old § 924(c)
stacking regime because Congress must have been of the view that
all those prior sentences were appropriate.
Congress's choice in amending § 924(c)'s stacking regime
to not reopen in categorical fashion all the core cases in which,
under Deal v. United States, it was understood to apply, see 508
U.S. at 130 (considering a case in which "six bank robberies on
six different dates" were tried all in the same case), does not
indicate to me that Congress meant to deem any challenge to the
continued incarceration of such an offender for more than a century
beyond the time that Congress now concludes is warranted an
"ordinary" or "less than compelling" one. And, a case such as
Rivera's, in which a mandatory sentence of such extreme length was
imposed under the prior stacking regime for a confluence of reasons
that no legislator could have had in mind when § 924(c) was
originally enacted, illustrates why.
I recognize that some courts have held that a
nonretroactive change in law cannot be deemed an "extraordinary
and compelling" reason for reducing a sentence without thereby
making such a legal change retroactive. See, e.g., United States
- 41 -
v. Jarvis, 999 F.3d 442, 444 (6th Cir. 2021), cert. denied, 142 S.
Ct. 760 (2022) ("That the First Step Act's amendments could amount
to an extraordinary and compelling reason . . . fails to grapple
with congressional design, expressed through the text of the
statute, in which Congress chose not to make these sentencing
amendments retroactive."); United States v. Thacker, 4 F.4th 569,
573-74 (7th Cir. 2021) ("[T]he discretionary authority conferred
by § 3582(c)(1)(A) only goes so far. It cannot be used to effect
a sentencing reduction at odds with Congress's express
determination . . . that the amendment to § 924(c)'s sentencing
structure apply only prospectively."). But, in Kimbrough v. United
States, 552 U.S. 85 (2007), the Supreme Court upheld a sentencing
judge's authority to give weight to a nonretroactive legal change
in determining a sentence's length because of the light that the
change could shed on the need for punishment, id. at 110. And,
even some of the very same courts that have construed the First
Step Act's "extraordinary and compelling reason" phrase narrowly
have themselves recognized that a related federal statute, 18
U.S.C. § 3553(a), permits a sentencing judge to give such a
nonretroactive change in the law weight in determining the proper
length of a sentence. See, e.g., United States v. Andrews, 12
F.4th 255, 262 (3d Cir. 2021) ("[T]he current sentencing landscape
may be a legitimate consideration for courts at the next step of
the analysis when they weigh the § 3553(a) factors."); Thacker, 4
- 42 -
F.4th at 576 ("Congress's changes to the statutory sentencing
scheme in § 924(c) might factor into a district court's
individualized determination of whether the § 3553(a) factors
weigh[] in favor of . . . early release."). It is thus difficult
for me to see how a concern about respecting Congress's choice to
make a statutory change nonretroactive has force here, given that
I fail to see how a court may be thought to subvert congressional
intent by considering nonretroactive changes to the law at the
"extraordinary and compelling" stage of the analysis but not while
weighing the § 3553(a) factors.
I also realize that some courts have concluded -- for
reasons of statutory text -- that because a nonretroactive change
in the law is a relatively humdrum occurrence, such a change cannot
supply an "extraordinary and compelling reason" to reduce a
sentence under the First Step Act. See, e.g., United States v.
Crandall, No. 20-3611, 2022 WL 385920, at *3 (8th Cir. Feb. 9,
2022) ("Congress from time to time prospectively increases or
decreases existing criminal penalties, so that circumstance may
not be “extraordinary” as an empirical matter."); Thacker, 4 F.4th
at 574 ("[T]here is nothing 'extraordinary' about leaving
untouched the exact penalties that Congress prescribed and that a
district court imposed for particular violations of a statute.").
But, the premise of our holding is not that a nonretroactive legal
change in and of itself can provide the "extraordinary and
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compelling reason" to reduce the sentence. It is that there may
be an "extraordinary and compelling reason" to reduce the sentence
when a particular statutory change is considered in the context of
the defendant's individualized circumstances. In my view, one
need only have a case like Rivera's in mind to recognize the
soundness -- textually and otherwise -- of that premise.
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