McCoy, Bryant and the Potential Battle over 924(c)
A few weeks ago, a prosecutor in the 4th circuit asked for a stay on one of my 3582 cases, citing oral arguments in McCoy, No. 20-6821. My case dealt with both “stacked 924(c)’s” and also COVID-19 relief so I could not agree. But several of you asked about this case as well so I took a look at what happened on this case.
In this blog I will use “McCoy/Bryant” as the accused persons and the term “stacked 924c” to mean the pre-First Step Act Sentencing scheme for 924c cases (where a person got 5 years for the first and 25 years for subsequent 924c cases).
Procedural History and Prison Sentence
Bryant/McCoy is actually a reference to several individuals. Bryant and his codefendants were implicated in a series of armed robberies. They were charged with robbery counts and Stacked 924(c) counts. They all received sentences that included stacked 924c counts:
“But the judge’s hands were tied, and even while acknowledging the redeeming qualities in each of the three young men, it imposed prison terms of 637 months (53 years and 1 month) on Bryant, 627 months (52 years and 3 months) on Scott, and 633 months (52 years and 9 months) on Decator. Of these sentences, fully 45 years were the result of the “stacked” § 924(c) counts.”
The FIRST STEP Act and Bryant/McCoy’s Release under 3582
As many of you know, the FIRST STEP ACT of 2018 was signed into law. It included “Stacked 924(c)” relief. Now, post FIRST STEP Act, a person would receive a mandatory minimum of 5 years for the first 924(c) and a mandatory minimum of 5 years on subsequent 924(c) cases. While this portion was not explicitly retroactive, a number of individuals have successfully sought “Stacked 924(c) relief through the FIRST STEP Act’s 3582 reform which allows an incarcerated person to seek a reduction for “extraordinary and compelling circumstances.”
McCoy/Bryant sought reductions in sentence through the FIRST STEP Act’s 3582 provision. The courts considered the evidence and granted the reductions in sentence down to time served over the government’s objection. The government appealed, asking for a stay from the court’s ruling in some situations (which would put some of the formerly incarcerated people back behind bars).
What happened in the briefs?
This portion of the newsletter will cover the Briefs in the Bryant case. The arguments in the McCoy case are similar however.
The government alleged that the District Court’s Decision Violates 18 U.S.C. § 3582(c)(1)(A)
The prosecutors said that the court’s determining that McCoy/Bryant’s reasoning for relief, that stacked 924c sentences were an extraordinary and compelling circumstance, was a violation of 3582 and 1B1.13:
“Rather, the sole ground cited by the defendants for relief was the fact that they were subjected to stacked § 924(c) sentences under then-existing law when they were originally sentenced, and the law had now changed. Problematically for the defendants, nowhere in § 1B1.13 has the Sentencing Commission made any allowance for stacked § 924(c) sentences to serve as a basis for relief. This should have ended the matter. But, it did not.”
The prosecutor noted that by the court using their independent authority to grant relief here, “the district court’s decisions here were not “consistent” with Sentencing Commission policy. To the contrary, they were unabashedly and admittedly inconsistent. The district court recognized that the Commission enacted in U.S.S.G. § 1B1.13 the applicable policy statement governing this area, but felt at liberty to ignore this provision and go its own way. Congress did not permit district courts such license. Section 3582(c)(1)(A) clearly tethers the district court’s authority to the “applicable policy statements issued by the Sentencing Commission.” The district court’s decisions thus violate the clear language of § 3582(c)(1)(A) because they are inconsistent with § 1B1.13. This Court must therefore reverse.”
“And the defendants were wrong below to contend that the recent changes to § 3582 by the First Step Act allow a different result. To be sure, the First Step Act changed the procedural mechanism by which compassionate release claims could be brought before the district court. Specifically, it allowed inmates to file motions for release under § 3582(c)(1)(A) after full exhaustion, whereas before, such motions could only be filed by the BOP. See First Step Act of 2018, § 603, Pub. L. No. 115-391, 132 Stat. 5194, 5239. However, while amending the procedural avenues for relief, Congress left the substantive bases for relief unchanged. Specifically, Congress left intact the requirement that any grant of relief had to be “consistent” with Sentencing Commission policy set forth in 18 U.S.C. § 3582(c)(1)(A). Congress also left intact 28 U.S.C. § 994(t), discussed further below, which vests the Sentencing Commission with the power to determine what constitutes “extraordinary and compelling reasons.” Because the defendants’ interpretation of the First Step Act would require this Court to ignore the substantive pieces of § 3582(c)(1)(A) that were unaffected by the First Step Act, their argument must be rejected.”
Bryant/McCoy responded by stating that the 3582 gave the court the ability to go forward:
"The text of the statute was—and still is—unambiguous. It does not limit a court’s authority to specified sets of circumstances or circumscribe the extraordinary and compelling reasons upon which a court’s decision can be based. Instead, it allows a court to exercise its discretion to reduce a sentence “in any case” where “extraordinary and compelling reasons warrant such a reduction.”
"Section 1B1.13 confirms that a district court may grant a sentence reduction in any case where it determines that “extraordinary and compelling reasons warrant the reduction.” There is no mention or suggestion in the policy statement itself that the BOP’s determination of what constitutes extraordinary and compelling reasons warranting relief matters at all.
See Dorsey v. United States, 567 U.S. 260, 266 (2012) (“The [statute] . . . interacts with the Guidelines in an important way. Like other sentencing statutes, it trumps the Guidelines.”); see also United States v. Cantu-Rivera, No. H-89-204, 2019 WL 2578272 at *2 n.1 (S.D. Tex. June 24, 2019) (“Because the current version of the Guideline policy statement conflicts with the First Step Act, the newly-enacted statutory provisions must be given effect.”).
The government alleged that the District Court’s Decision Violates 28 U.S.C. §§ 994(a), (t)
The government also indicated that this decision violated 994:
“Congress went on to provide specifically that: “The Commission, in promulgating general policy statements regarding the sentencing modification provisions in section 3582(c)(1)(A) of title 18, shall 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) (emphasis added). The only limitation placed on this plenary grant of power was that rehabilitation alone could not be considered an extraordinary and compelling reason. Id.
In this way, Congress could not have been clearer: it vested the Commission wholly and exclusively with the power to determine what constitutes extraordinary and compelling circumstances. No mention was made of district courts being able to exercise this power.”
“To be sure, it does omit mention of a defendant being allowed to bring a motion himself. But, that omission does not make the policy statement inconsistent, only perhaps incomplete.”
The prosecutors also advanced the idea that the FIRST STEP Act may have changed the procedural avenues for relief but it did not give the district court the ability to create substantive bases for relief:
“But even if there is any incompleteness in § 1B1.13’s recitation of the procedural avenues for relief, that still does not grant district courts the license to legislate their own substantive bases for relief. Congress delegated to the Sentencing Commission the task of determining what is extraordinary and compelling. Nowhere in § 994(t) or § 3582(c)(1)(A) does it provide that courts can usurp the Commission’s role if a court believes the Commission has not acted promptly enough to update its regulations. And even then, an omission in the procedural avenues for relief surely does not entitle district courts the sweeping powers to engage in substantive rulemaking. In sum, even if § 1B1.13 leaves some ambiguity in the process by which relief can be obtained, lower courts cannot fill that vacuum with their own substantive policy preferences; that is the job of the Sentencing Commission.”
What does that mean? Well take a look at this, application note 1 of USSG 1B1.13:
1. Extraordinary and Compelling Reasons.—Provided the defendant meets the requirements of subdivision (2), extraordinary and compelling reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.—
(i) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.
(ii) The defendant is—
(I) suffering from a serious physical or medical condition,
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the aging process,
that substantially diminishes the ability of the defendant to provide self-care within the environment of a correctional facility and from which he or she is not expected to recover.
(B) Age of the Defendant.—The defendant (i) is at least 65 years old; (ii) is experiencing a serious deterioration in physical or mental health because of the aging process; and (iii) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.
(i) The death or incapacitation of the caregiver of the defendant's minor child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.
(D) Other Reasons.—As determined by the Director of the Bureau of Prisons, there exists in the defendant's case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).
As I listened to the oral arguments what I surmised is that the government’s argument was that since “stacked 924(c) relief” isn’t in application note 1D under other reasons AND because the BOP hasn’t added “stacked 924(c) relief that the courts can’t use it to grant 3582 relief. That is what I believe they are arguing. I do not foresee the Bureau of Prisons including that in Program statement 5050.50 in the near [or far] future.
Bryant/McCoy agree with me on this:
"But it is the government, not the defense, that asks this Court to violate § 994(t) by ignoring one of the Sentencing Commission’s proffered bases for compassionate release: extraordinary and compelling reasons “other than, or in combination with,” health, age, and family circumstances. U.S.S.G. § 1B1.13 n. 1(D). As mentioned, the BOP has never made a motion on such a basis, and, because its policy statement on the topic precludes it from doing so, it never will."
"Application Note 1(D)’s delegation of authority to the BOP to identify circumstances qualifying as extraordinary and compelling is a vestige of the pre-First Step Act regime, in which the statute and policy statement empowered only the BOP to move for compassionate release. It has no more place in the post-First Step Act world than the multiple other references in both the policy statement and the commentary to the BOP as gatekeeper, including the instruction that “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons.”"
"It is not unreasonable for Congress to conclude that not all defendants convicted under § 924(c) should receive new sentences, even while expanding the power of the courts to relieve some defendants of those sentences on a case-by-case basis.”) (citation omitted)."
The Goverment Alleged that the District Court’s Decision Violates The First Step Act And End- Runs This Court’s Precedent
“Here, notwithstanding the clear non-retroactivity of § 403 of the First Step Act, this Court’s decision in Jordan (a case where the 4th circuit stated that the stacked 924c relief was not retroactive), and the general proposition that the legislature is in charge of setting penalties for crimes and determining retroactivity, the district court nonetheless gave retroactive application to the § 924(c) changes to the defendants in this case and legislated its own penalty system for serial § 924(c) sentences that were issued before the recent First Step Act amendments. Specifically, the court noted the changes wrought by the First Step Act and concluded that “[t]he fact that Decator, if sentenced today for the same conduct, would likely receive a dramatically lower sentence than the one he is currently serving, constitutes an ‘extraordinary and compelling’ reason justifying potential sentence reduction under § 3582(c)(1)(A)(i).” JA 627. In this way, the district court end-run both Congress and this Court by usurping the Sentencing Commission’s power and then using it to grant relief in a manner directly opposed to congressional will. This requires reversal. “
The amended version of the statute reinforces this authority by allowing a court to exercise its discretion to reduce a sentence “in any case” where “extraordinary and compelling reasons warrant such a reduction.” It was always the intent of Congress that § 3582(c)(1)(A) operate as a “safety valve for modification of sentences” allowing for “later review of sentences in particularly compelling situations,” such as the reduction “of an unusually long sentence.” See S. Rep No. 98-225, at 55–56, 121 (1983). In particular, it was Congress’s intent that this authority be exercised in a manner that keeps “the sentencing power in the judiciary where it belongs.” Id. at 121 (emphasis added).
The Prosecutors Alleged that the District Court’s Decision In Effect Operates As A Form Of Judicial Clemency
The government also stated that this was an end run around clemency:
"The district court’s decision provides an end-run around that formal process. The district court took it upon itself to regard the defendants’ sentences as unjust. JA 630. The district court did this even though the original sentencing judge considered the lengthy sentences to be completely appropriate given the conduct. JA 205 (“if there is a justification . . . for the severity it exists in this case”). In this way, the district court’s action here was precisely the kind of “judicial change of heart” that this Court warned against in Goodwyn. 596 F.3d at 235. Then, expressing disagreement with her predecessor, the district court here effectively commuted the defendants’ sentences to time-served and ordered immediate release. In this way, the district court allowed the defendants to circumvent the executive branch’s clemency process to receive, in effect, the same relief they would receive if they were granted a presidential commutation."
"The amended version of the statute reinforces this authority by allowing a court to exercise its discretion to reduce a sentence “in any case” where “extraordinary and compelling reasons warrant such a reduction.” It was always the intent of Congress that § 3582(c)(1)(A) operate as a “safety valve for modification of sentences” allowing for “later review of sentences in particularly compelling situations,” such as the reduction “of an unusually long sentence.” See S. Rep No. 98-225, at 55–56, 121 (1983). In particular, it was Congress’s intent that this authority be exercised in a manner that keeps “the sentencing power in the judiciary where it belongs.” Id. at 121 (emphasis added)."
"A district court may reduce a sentence only when it determines that “extraordinary and compelling reasons” warrant such relief. The authority to do justice in such circumstances threatens no harm to the federal sentencing regime or our system of checks and balances."
"As an initial matter, contrary to the government’s assertion that “the original sentencing judge  felt strongly that the lengthy sentences were justified in this case,” see Gov’t Br. at 39, the judge repeated over and over again that, if he was “writing on a clean slate,” he would be inclined to agree with the defendants that the § 924(c) counts only required five-year terms. JA 199, 202, 209, 223. But in a pre-First Step Act, pre-Booker world, the court simply did not have that authority."
The biggest thing that I noticed during oral arguments is that to me it seemed that the court had problems squaring the government's arguments. This may or may not be true, but that is what it appeared like to me.
So what do you think, Jeremy?
I never want to give my opinion on what a court will do. So I will abstain from telling my thoughts as to what will happen next.
What are the implications of a case like this?
I surmise that the prosecutors wanted to create a blanket bar to using 3582(c)(1)(A) to seek stacked 924(c)relief. If the Fourth Circuit reverses and gives the government their wish then I believe that prosecutors in other areas could use this in their responses to 3582 motions that are based on stacked 924c cases. It would be a bar in the Fourth Circuit obviously. But I am also concerned about the Application 1D issue. If the court gives the government what they are looking for then I am afraid about what else they could argue is not explicitly in application note 1D. Covid Relief, 851 relief and things that we haven't even thought of yet.
While it may not been relevant to this discussion, there was very little about the fact that there the Sentencing Commission has been without a quorum since the beginning of 2019.