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The Supreme Court’s ruling in Concepcion v. US, No. 20-1650 (S. Ct. June 27, 2022) (available here), seemed to be a fairly clear direction to circuit court that it was not their job to make up non-textual limits to how district courts exercised sentencing discretion. Here are just some of the key quotes, first discussed in this post, from the Supreme Court’s opinion in Concepcion:
It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained….
Federal courts historically have exercised this broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence….
The only limitations on a court’s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution….
Because Concepcion seemingly makes plain that the “only limitation” on “the type of information a district court may consider in modifying a sentence” are those limits in the Constitution or that Congress has expressly set forth, motions for sentence reductions pursuant to § 3582(c)(1)(a) — so-called compassionate release motions — could certainly include consideration as a general matter all sorts of information about changes in laws and well as changes in fact that might justify a sentence reduction. After all, Congress has only expressly provided in statutory text that one factor could not alone serve as the basis for sentence reduction under § 3582(c)(1)(a): “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” 28 USC § 994(t).
But, today the en banc Sixth Circuit has decided to double-down on its anti-textual approach to § 3582(c)(1)(a) by stating another categorical limit on what can be considered an extraordinary and compelling reason under 3582 in US v. McCall, No. 21-3400 (6th Cir. Dec 22, 2022) (available here). The majority opinion in the split en banc ruling start and ends this way:
David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015. Five years into his 235-month sentence, McCall moved for compassionate release under 18 U.S.C. § 3582(c)(1). Although he cited several “extraordinary and compelling reasons” justifying a sentence reduction under that statute, the heart of his motion rested on our opinion in Havis. Invoking that opinion, McCall argued that if he were sentenced today, he would receive a shorter sentence than he received in 2015. The district court denied his motion, reasoning that a nonretroactive change in sentencing law could not amount to an “extraordinary and compelling” reason for a sentence reduction. We agree and affirm….
Nonretroactive legal developments do not factor into the extraordinary and compelling analysis. Full stop.
As I noted when discussing a prior Sixth Circuit panel ruling to this effect, there is absolutely nothing in the text of § 3582(c)(1)(a) that supports the contention that nonretroactive legal developments cannot ever factor into or generally constitute “extraordinary and compelling reasons” to allow a sentence reduction, either alone or in combination with other factors. The majority here, presumably based on its own sense of policy, is seemingly eager to invent an extra-textual categorical limitation on the authority Congress gave to district courts to reduce sentences. In other words, this is judicial lawmaking that is flagrantly disregarding both the statutory text enacted by Congress and the instructions of the Supreme Court in Concepcion. Full Stop.
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