*Kenneth Wyatt II
I. What is “Extraordinary and Compelling”?
For almost five decades, people incarcerated in federal prisons have faced barriers to early release from their sentences.[1] However, in 2018, Congress passed the First Step Act (FSA). The FSA, among other things, amended the U.S. Code’s compassionate release statute,[2] granting courts the ability to act on a motion for compassionate release filed by an incarcerated person.[3] Prior to the passing of the FSA, federal courts were only permitted to alter a defendant’s sentence upon a motion from the Director of the Federal Bureau of Prisons.[4] Now, a district court may modify a defendant’s term of imprisonment if:
(1) [T]he defendant [has] 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).[5]
Congress directed the Sentencing Commission to promulgate general policy statements governing what constitutes extraordinary and compelling reasons for sentence reduction.[6] The Sentencing Commission provided a policy statement limiting “extraordinary and compelling reasons” for motions filed by the Bureau of Prisons (BOP) Director to those dealing with the incarcerated person’s medical conditions, age, family circumstances, or any other reason the BOP Director deems appropriate.[7] However, the Commission has no current policy statement pertaining to motions filed directly by incarcerated people under § 3582(c)(1)(A).[8] Several circuits agree that the Sentencing Commission’s current policy statement is not binding on district courts for prisoner-initiated motions.[9] However, there is still disagreement on the application of the phrase “extraordinary and compelling.”[10]
II. The Creation of Sentence “Stacking”
Prior to the FSA, any person charged with possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c) received a mandatory minimum sentence of five years for their first conviction and twenty-five years for every subsequent conviction.[11] The U.S. Supreme Court interpreted this to mean that the twenty-five year mandatory minimum enhancement for subsequent convictions applied to multiple § 924(c) counts charged in a single proceeding, even when the defendant had no prior § 924(c) convictions.[12] This application of the law created what is now known as “924(c) stacking.”[13]
In an effort to eliminate 924(c) stacking, Congress clarified the twenty-five year enhancement rule in § 403(a) of the FSA, triggering it only by conviction of a § 924(c) charge that occurs after the initial § 924(c) conviction is final.[14] While § 403(a) nearly eliminated sentence stacking, Congress limited its application to “defendants who have not yet been sentenced for their 924(c) convictions.”[15] As a result, courts have interpreted § 403(a) as non-retroactive.[16]
To date, Congress has not addressed district courts’ discretion to consider § 403(a) in motions for compassionate release.[17] This lack of direction by Congress, has created dissonance amongst the courts.[18]
III. The Split Amongst the Courts
The Third, Seventh, and Eighth Circuits have all held that district courts cannot consider § 403(a)’s non-retroactive changes, reasoning that these changes would allow § 3582(c)(1)(A) to provide a loophole to circumvent non-retroactivity.[19]
Alternatively, the First, Fourth, Ninth, and Tenth Circuits have determined that district courts may consider § 403(a)’s non-retroactive changes in combination with other factors presented by an incarcerated person.[20] These Circuits effectively allow district courts to consider an incarcerated person’s stacked charges as an extraordinary and compelling reason, so long as they present another factor that may warrant compassionate release.[21] The Circuits have provided two reasons for this conclusion:
(1) None of the statutes directly addressing “extraordinary and compelling reasons” prohibit district courts from considering non-retroactive changes in sentence 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.[22]
IV. Self-Imposed Judicial Limitations
Congress has placed only two express limitations on extraordinary and compelling reasons warranting release: (1) that the district courts are bound by the Sentencing Commission’s Policy Statements[23] and (2) that “[r]ehabilitation . . . alone” is not extraordinary and compelling.[24] In the absence of any additional limits to the scope of information a district court may consider when modifying a sentence under the FSA, the district court’s discretion is not restrained in any further way.[25] While Congress did make § 403(a) non-retroactive,[26] it has not expressly prohibited district courts from considering non-retroactive changes in sentencing law in combination with other factors particular to each incarcerated individual.[27] Any limitations by the courts are self-imposed and belie the statute’s original intent.[28] These self-imposed limitations created disparities in time served amongst incarcerated people throughout the country. With the current circuit split, an individual may serve the entirety of their excessive sentence,[29] while another may receive compassionate release solely based on the location of their incarceration.[30]
V. The Necessary Resolution
The Supreme Court must address this issue to resolve the Circuit split. The Court should decide the split in favor of considering § 403(a)’s changes in combination with other factors when assessing a defendant’s petition for compassionate relief. This approach will combat the unduly harsh sentencing caused by the initial interpretation of 18 U.S.C. § 924(c).[31] Failure by the Supreme Court to address this split will further the discrepancy in the law’s application resulting in the continued incarceration of people whose sentences are no longer equitable.[32]
*Kenneth Wyatt II is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review and a member of the Royal Graham Shannonhouse III Honor Society. He also serves as a law scholar for Professor Meyerson and as a fellow in the school’s Legal Writing Center. Kenneth interned with Judge Grimm at the United States District Court for the District of Maryland this past summer and looks forward to being a summer associate at DLA Piper during the upcoming summer of 2023.
[1]See Sentencing Reform Act, Pub. L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (1984) (codified as amended in sections of 18 and 28 U.S.C.).
[2] 18 U.S.C.A. § 3582(c)(1)(A).
[3] See id.; see also Pub. L. 115-391, 132 Stat. 5239 (2018).
[4] Sentencing Reform Act, supra note 1.
[5] § 3582(c)(1)(A); see United States v. Chen, 48 F.4th 1092, 1094–95 (9th Cir. 2022).
[6] 28 U.S.C.A. § 994(t) (West 2006).
[7] U.S.S.G. § 1B1.13, cmt. n.1(A)–(D).
[8] See United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020) (“t]here is as of now no ‘applicable’ policy statement governing compassionate-release motions filed by defendants under the recently amended § 3582 (c)(1)(A), and as a result, district courts are ‘empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.’”) (quoting United States v. Brooker, 976 F.3d 228, 230 (2nd Cir. 2020)).
[9] United States v. Aruda, 993 F.3d 797, 801 (9th Cir. 2021) (explaining that the 2nd, 4th, 6th, 7th, 9th, and 10th Circuits “have unanimously held that U.S.S.G. § 1B1.13 only applies to § 3582(c)(1)(A) motions filed by the BOP Director, and does not apply to § 3582(c)(1)(A) motions filed by a defendant.”).
[10] See discussion infra Section III.
[11] See 18 U.S.C.A. § 924(c); see also United States v. Deal, 508 U.S. 129, 130–36 (1993).
[12] See Deal, 508 U.S. at 130–36.
[13] See id.; see also Chen, 48 F.4th at 1094.
[14] See First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (codified at 18 U.S.C. § 924(c)(1)(C)).
[15] Chen, 48 F.4th at 1094; see also First Step Act of 2018, supra note 13.
[16]Chen, 48 F.4th at 1094; see also First Step Act of 2018, supra note 13. Retroactivity makes the entire class of defendants automatically eligible for relief. Instead, § 3582(c)(1)(A) only makes “defendants who can meet the heightened standard of ‘extraordinary and compelling reasons’” eligible for relief. McCoy, 981 F.3d at 287.
[17] See supra note 6–8 and accompanying text.
[18] See supra note 6–8 and accompanying text.
[19] See United States v. Andrews, 12 F.4th 255, 261 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (“[W]e will not construe Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” “[C]onsidering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress’s authority to set penalties.”); United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022) (“[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 embodied in § 403(b) of the First Step Act that the amendment to § 924(c)’s sentencing structure apply only prospectively.”); United States v. Crandall, 25 F.4th 582, 586 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022) (“[T]he compassionate release statute is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”); see also See Chen, 48 F.4th at 1096.
[20] See id. at 1100 (holding that a petition for compassionate release “does not retroactively apply § 403(a)’s sentencing changes . . . allowing courts to consider § 403(a)’s changes in the extraordinary and compelling analysis does not conflict with § 403(b)’s non-retroactivity provision.”); United States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022) (“Nowhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law. . . . [N]o provision in the First Step Act indicates ‘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 the passage of the FSA.”) McCoy, 981 F.3d at 285–86 (“[C]ourts legitimately may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as dramatically longer than necessary or fair.”); United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021) (holding that the defendant’s age at the time of sentencing, the length of his stacked sentences under § 924(c), the First Step Act’s elimination of sentence stacking under § 924(c), and the significant difference in the sentence received and that which would have been received if the defendant was sentenced today were a combination of factors that created extraordinary and compelling reasons for release).
[21] Id.
[22] See Chen, 48 F.4th at 1097; see also supra note 15 and accompanying text (explaining how § 3582(c)(1)(A) differs from a retroactive change in law).
[23] U.S.S.G. § 1B1.13, cmt. n.1 (A)–(D); see also supra note 6 and accompanying text. This limitation only applies when the BOP Director files the motion.
[24] See 18 U.S.C. § 3582(c)(1)(A) (2018); 28 U.S.C.A. § 994(t) (West 2006).
[25] See Concepcion v. United States, 142 S. Ct. 2389, 2396 (2022).
[26] See supra notes 14–15 and accompanying text.
[27] Ruvalcaba, 26 F.4th at 25; see also First Step Act of 2018, supra note 13.
[28] See 18 U.S.C.A. § 3582(c)(1)(A); see also McCoy, 981 F.3d at 287 (“[T]he very purpose of § 3582(c)(1)(A) is to provide a ‘safety valve’ that allows for sentence reductions when there is not a specific statute that already afford relief but ‘extraordinary and compelling reasons’ nevertheless justify a reduction.”).
[29] See supra notes 11–17 and accompanying text.
[30] See discussion supra III.
[31] See supra notes 12–14 and accompanying text.
[32] See United States v. Ruvalcaba, 26 F.4th 14, 25 (1st Cir. 2022) (“No provision in the First Step Act indicates ‘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 the passage of the FSA.”).
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