Non-Retroactive Sentencing Changes + Other Facts Support CR Motions: McCall
In United States v. David McCall, the Sixth Circuit reversed the decision of a lower court for failing to consider non-retroactive sentencing guideline decisions as part of a compassionate release motion. The Sixth Circuit held that McCall could argue that his no-longer applicable career offender guideline plus COVID-19 and other factors warranted compassionate release.
Facts: Havis, Covid-19 and Rehabilitation = Sentence Reduction?
McCall was convicted in 2015. At the time, Sixth Circuit case law meant that he received a career offender sentencing guideline enhancement which raised his overall advisory range. By a lot.
After McCall was convicted, the Sixth Circuit decided its well-known and important decision in Havis. Remember, Havis was the first case to say inchoate “attempt” offenses could not be used as “controlled substance offense” priors that count towards the career offender guideline enhancement. Keep in mind that the Havis decision is generally not retroactive to cases that are already final.
McCall sought a compassionate release motion in June 2020. He argued essentially three different types of “extraordinary and compelling reasons” existed in his case. First, he argued that COVID-19 generally was “extraordinary and compelling” even though he did not have any particular medical vulnerabilities. Second, he said that after the Havis decision he would not be a career offender if he was resentenced today. Third, he argued that his rehabilitation and prison record also supported a finding of extraordinary and compelling reasons.
The district court denied his motion. The district court said that COVID-19 in general without any underlying medical condition was not sufficient. The district then went on to say that it COULD NOT consider the non-retroactive decision from Havis and the sentencing disparity McCall faces today. The district court then refused to consider McCall’s rehabilitation.
Decision: A Court can consider retroactive sentencing changes along with other factors when determining "Extraordinary and Compelling Circumstances."
Sixth Circuit CR case law is a complete mess right now.
This opinion does a good job of walking the careful readers through the utter minefield that is current Sixth Circuit case law. There are now approximately 4 separate published opinions in the Sixth Circuit that claim to give guidance on when you can use non-retroactive sentencing law changes to ask for compassionate release.
Thankfully, the McCall opinion came out of his side. In McCall, the Sixth Circuit held that these specific changes (i.e, the Havis decision) could be considered when determining whether extraordinary and compelling reasons were present. The panel was careful to point out that McCall could not rely solely on his no-longer applicable career offender designation. Instead, they made clear that the district court’s error was in refusing to consider the totality of his arguments along with the sentencing disparity claim.
There is a relatively biting dissent in this case that hints at what is to come. The Sixth Circuit is going to have to take up a case en banc soon to resolve this ongoing fight. If not, the Supreme Court will have to step in, because it seems that the judges at the Sixth Circuit refuse to all get on the same page about their binding precedents.
What does the McCall case mean?
In the past few months, our office had been telling many people trying to make similar arguments to McCall’s that they would need to wait until the Sixth Circuit Jarvis decision was overruled. Jarvis was a published case from June where the Sixth Circuit explicitly held that the non-retroactive changes from the First Step Act (924(c) unstacking and 851 enhancements) could NOT support a compassionate release motion.
Jarvis seemed to overrule other prior Sixth Circuit panel opinions from less than 12 months ago which had said essentially that you COULD use these changes to support a compassionate release motion. The defendant in Jarvis asked the entire Sixth Circuit to rehear his case to resolve this apparent split of the authority. The entire Sixth Circuit denied this request to hear the case en banc so the Jarvis decision stood as good law.
Now, McCall flies seemingly directly into the face of Jarvis. So what is the absolute bottom line?
If you want to use a non-retroactive change in law to support your compassionate release motion in the 6th Circuit, you should file NOW. The Sixth Circuit is almost certainly going to take this issue up soon. There is a very good chance that the Sixth Circuit will slam the door on these types of claims when they ultimately resolve this intra-circuit split with an en banc decision.