The Sixth Circuit and Non-Retroactive FIRST STEP Act Considerations for 3582 Motions
Over the past few months we have covered several cases where the appellate courts have stated that extraordinary and compelling circumstances are not bound to the text of 1B1.13. This has ended up meaning that almost anything can be an extraordinary and compelling circumstance in most circuits. But the Sixth Circuit has made several holdings that call into question non-retroactive provisions of the FIRST STEP Act that many incarcerated persons have been using to get relief.
United States vs. Tomes, 990 F.3d 500
Tomes was in prison after being indicted on drug, firearm and money laundering charges. He filed for compassionate release because of COVID-19 back in 2020, citing his asthma. He also said that the law has changed since his sentencing and he would have received a lower sentence than he received a few years ago.
In denying the motion, the District Court "said that U.S.S.G. § 1B1.13 'limits the ‘extraordinary and compelling reasons’ for compassionate release' to just a few situations. And Tomes had not “identified any medical ailments that are so severe they would justify release.”
The Sixth Circuit stated in United States vs. Elias that USSG 1B1.13 was not an applicable policy statement for compassionate release motions that are brought by inmates and that courts did not need to consider it when ruling on these motions. The Sixth Circuit also stated that district courts were not bound by USSG 1B1.13 when deciding extraordinary and compelling reasons for compassionate release.
The court noted that District Court in Tomes denied the motion because the District Court believed that USSG 1B1.13 limited extraordinary and compelling circumstances for compassionate release to the four categories listed in the application notes to 1B1.13. The Sixth circuit stated that "the district court erred when it constrained itself to the § 1B1.13 factors in determining whether Tomes established 'extraordinary and compelling reasons' for a sentence modification." However because the district court also denied him because of the 3553(a) factors and because that was not an abuse of discretion, the Sixth Circuit held that the denial should be affirmed.
But regarding Tomes' 851 argument (Tomes argued that when he was sentenced he had a prior that qualified as a serious drug felony that no longer qualified and as such, his mandatory minimum should decrease). The Sixth circuit rejected this, stating that
"The First Step Act explicitly says that the amendment to which Tomes refers—§ 401—applies 'only where ‘a sentence for the offense has not been imposed as of [the] date of [the Act's] enactment...And we will not render § 401(c) useless by using § 3582(c)(1)(A) as an end run around Congress's careful effort to limit the retroactivity of the First Step Act's reforms.'"
United States vs. Willis, 991 F.3d 720
The Sixth Circuit made a similar decision in Willis. Willis pled guilty to "conspiring to distribute and possess with intent to distribute 50 grams or more of methamphetamine" and was sentenced to 240 months of imprisonment.
He filed a compassionate release motion arguing that "his prior felony drug conviction would not qualify as a “serious drug felony” under section 401 of the First Step Act of 2018, and therefore would not trigger a sentence enhancement." The court denied his motion and "pointed out that section 401 does not apply retroactively and therefore declined to find that extraordinary and compelling reasons justified a sentence reduction." Referencing Dorsey vs United States, the Sixth Circuit held that “[I]n federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” The Sixth Circuit went on to say that "What the Supreme Court views as the “ordinary practice” cannot also be an “extraordinary and compelling reason” to deviate from that practice."
The Sixth Circuit affirmed the denial of Compassionate Release relief. 991 F.3d 720
United States vs. Owens, 996 F.3d 755
Owens was convicted of several crimes surrounding a bank robbery. As relevant here, he was convicted of five counts of possession or aiding and abetting the possession of a firearm during a crime of violence. The government originally charged him with one bank robbery count and admitted that if he had agreed to cooperate then the government would have allowed him to plea to this single count. He did not and the government charged him with several more counts. The prosecutors offered a last ditch plea offer that would have required him to plead to two 924c counts. This was rejected and trial was commenced where he was found guilty and sentenced to 1260 months for th 924c convictions. The year was 2004.
"Owens's counsel argued that the First Step Act's changes to § 924(c), the fact that Owens received an effective life sentence largely as a penalty for choosing to go to trial, and Owens's remarkable rehabilitation constituted extraordinary and compelling reasons for compassionate release."
The district court denied this:
"The district court concluded that the disparity between the sentence that Owens received and the sentence that he would receive today because of the First Step Act's amendments to § 924(c) was not an 'extraordinary and compelling reason' to merit compassionate release...Congress expressly declined to make the changes to § 924(c) retroactive, and the Sixth Circuit has implicitly recognized as much...The district court did not consider Owens's evidence of rehabilitation or any other bases for a finding of extraordinary and compelling reasons, nor did the district court consider the 18 U.S.C. § 3553(a) factors."
On appeal the Sixth Circuit said that “Owens presented three factors that he asserted together warranted compassionate release [the trial penalty, the stacked 924(c)’s and his rehabilitation]. The district court here did not consider two of the factors Owens asserted and should have determined whether the combination of all three factors warranted compassionate release.” They decided to remand the case back to the district court to “mak[e] an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied[.]”
Further, the Sixth Circuit stated "Our decisions in Tomes and Wills do not foreclose this middle path. In Tomes, the defendant was left with only his First Step Act § 401 sentencing argument after the panel concluded that he had not adequately alleged health conditions that put him at increased risk of COVID-19 complications. In Wills, the defendant’s pro se motion for compassionate release raised only First Step Act §401’s changes to his sentencing statutes. As explained above, Owens presented three factors that he asserted together warranted compassionate release. In accordance with our holding that, in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied, we remand to the district court for further proceedings."
The Sixth Circuit remanded this case back to the district court.
United States vs. Jarvis, 999 F.3d 442
In 1994, Jarvis was convicted of several charges connected to a series of bank robberies. As relevant here, he was convicted of 5 924(c) charges. The court sentenced him to 85 years on is 924(c) charges [at that time, the first charge had a mandatory minimum of 5 and each subsequent charge had a mandatory minimum of 20 instead of 25].
Jarvis filed for compassionate release. "Jarvis invoked the COVID-19 pandemic and the First Step Act's amendments to § 924(c). As for the latter, he contended that, if he were sentenced for the same offenses today, he would receive a sentence of 25 years, not 40 years"
The district court denied the motion. "Among other rationales, it explained that the First Step Act's non-retroactive change to § 924(c) could not as a matter of law be an “extraordinary and compelling” reason under § 3582(c)(1)(A)(i)."
The court stated that Tomes was highly relevant here. As you will recall, Tomes health with section 401 of the FIRST STEP Act (stacked 851 relief). Here at issue was section 401 of th FIRST STEP Act (stacked 924(c) relief). The court stated that in the same way that Tomes mentioned the non-retroactivity language as to 851 relief in finding no abuse of discretion, the non-retroactivity language as to 924(c) relief doomed Jarvis: "As in Tomes, we “will not render” § 403(b) “useless by using § 3582(c)(1)(A)” to thwart Congress's retroactivity choices."
Regarding COVID and Jarvis' high blood pressure and rehabilitation working with the stacked 924(c) relief in the FIRST STEP act to create extraordinary and compelling circumstances, "The approach then contemplates that an error nonetheless occurred when the court failed to add the First Step Act's non-retroactive amendments to the extraordinary-and-compelling equation. But adding a legally impermissible ground to three insufficient factual considerations does not entitle a defendant to a sentence reduction"
The Sixth Circuit went on to determine that while 924(c) relief in the FIRST STEP Act could not constitute extraordinary and compelling circumstances, compassionate release litigants "may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors—above all with respect to the community safety factor."
Regarding the differences between Owens and Tomes, the Sixth Circuit stated that Tomes is controlling and Owens is not because "[Owens] does not dispute Tomes’s retroactivity discussion. And it does not dispute that district courts may consider the non-retroactive First Step Act amendments in applying the § 3553(a) factors once an inmate has met the threshold requirements for relief under the compassionate release statute.
Despite these shared premises, Owens does not follow Tomes’s reasoning or holding that a non-retroactive First Step Act amendment fails to amount to an “extraordinary and compelling” explanation for a sentencing reduction. But Tomes, decided before Owens, “remains controlling authority” that binds this panel. Forced to choose between conflicting precedents, we must follow the first one, Tomes."
The Sixth Circuit Affirmed the district court's ruling in Jarvis. 999 F.3d 442.
Jarvis sought a rehearing en banc and was denied. You may click here to see the court's en banc opinion.
So now what?
What is the impact of these decisions?
The Rulings by the Sixth Circuit make it clear that for now, 3582 compassionate release motions that are based on either the 851 relief or the 924c relief provisions in the FIRST STEP Act are not currently appropriate because the 924(c) relief and 851 relief were not made retroactive and that a non-retroactive statute cannot serve as extraordinary and compelling circumstances. I believe that Jarvis will seek Supreme Court certiorari. The prosecutors bring this up on almost every such case so it is reasonable that they will bring it up again until this is resolved by the court.
Will this go to the Supreme Court?
I believe so. I believe that the government will try to carve this out of the 1B1.13 analysis in other circuits where it hasn't been ruled on yet. I think that there may be a circuit split especially between the Sixth and the Tenth Circuit in McGee on this.
What should I do on my motion?
This means that 3582 motions for things like stacked 924c cases or stacked 851 cases should not be filed until either Jarvis (or someone else in the 6th circuit) takes up this issue to the Supreme Court and they rule favorably or the First Step Implementation Act of 2021 is passed. If you have a motion that is in currently then you may be well served to ask the court to hold off until we see if the Supremes grant cert on this.