United States v. David McCall, Jr.

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0274p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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UNITED STATES OF AMERICA,

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Plaintiff-Appellee, │

> No. 21-3400

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v. │

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DAVID E. MCCALL, JR., │

Defendant-Appellant. │

┘

On Petition for Rehearing En Banc.

United States District Court for the Northern District of Ohio at Cleveland;

No. 1:13-cr-00345-41—Christopher A. Boyko, District Judge.

Argued En Banc: June 8, 2022

Decided and Filed: December 22, 2022

Before: SUTTON, Chief Judge; MOORE, COLE, CLAY, GIBBONS, GRIFFIN,

KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN,

NALBANDIAN, READLER, and MURPHY, Circuit Judges.*

_________________

COUNSEL

ARGUED EN BANC: Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Akron, Ohio, for Appellant. Eric J. Feigin, UNITED STATES DEPARTMENT

OF JUSTICE, Washington, D.C., for Appellee. ON SUPPLEMENTAL BRIEF: Vanessa F.

Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant.

Rebecca Chattin Lutzko, Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE,

Cleveland, Ohio, for Appellee.

NALBANDIAN, J., delivered the opinion of the court in which SUTTON, C.J., and

GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, READLER, and MURPHY, JJ., joined.

MOORE, J. (pp. 25–36), delivered a separate dissenting opinion in which COLE, CLAY,

*

Judge White, who took senior status on June 13, 2022, and Judge Donald, who took senior status on

September 28, 2022, were in regular active service at the time that this case was heard en banc. They have

continued to participate in the decision of this case.

No. 21-3400 United States v. McCall Page 2

WHITE, STRANCH, and DONALD, JJ., joined. GIBBONS, J. (pp. 37–39), also delivered a

separate dissenting opinion.

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OPINION

_________________

NALBANDIAN, Circuit Judge. 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.

I.

David McCall served as a middleman in a sprawling drug-trafficking conspiracy. From

2011 to 2013, he supplied lower-level dealers in Cleveland with heroin and cocaine smuggled in

from Chicago and Atlanta. The United States indicted him, along with 59 of his coconspirators,

in a 196-count indictment in 2013. Faced with multiple charges, McCall struck a deal with the

government. He pleaded guilty to one count of conspiracy to possess with intent to distribute

heroin. And in exchange, the United States agreed to drop its remaining facilitation and

substantive distribution charges.

This plea proved only the latest chapter in McCall’s drug-dealing career. Beginning in

1994, McCall racked up multiple Ohio felony convictions, many of them for drug trafficking.

For sentencing purposes, these convictions cemented McCall’s status as a career offender and

raised his base-offense level from 24 to 34. A few more adjustments resulted in a Sentencing

Guidelines range of 188–235 months. The government, emphasizing McCall’s extensive

criminal history, urged the district court to sentence McCall to 235 months. McCall, for his part,

No. 21-3400 United States v. McCall Page 3

didn’t object to the career-offender classification. In the end, the district court sentenced McCall

to 235 months’ imprisonment and to four years of supervised release.

McCall served five years of that sentence before he moved for a sentence reduction under

the compassionate-release statute. That statute allows a district court to lower a defendant’s

sentence if (among other things) “extraordinary and compelling reasons” warrant a reduction.

18 U.S.C. § 3582(c)(1)(A)(i).

Two changes in law spurred McCall’s motion. First, Congress amended the

compassionate-release statute. Historically, only the Bureau of Prisons could move for a

sentence reduction. See United States v. Ruffin, 978 F.3d 1000, 1003 (6th Cir. 2020). The First

Step Act of 2018 changed this by allowing prisoners to file their own requests when the “Bureau

refused to do so.” Id. at 1003–04. Second, our en banc court decided United States v. Havis,

927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). That decision held that attempted drug-

trafficking offenses are not controlled substance offenses sufficient to trigger the career-offender

enhancement. See id. at 387; see also United States v. Cordero, 973 F.3d 603, 626 (6th Cir.

2020) (concluding that drug-conspiracy convictions do not fall within the Guidelines’ definition

of “controlled substance offense” after Havis for purposes of determining whether an individual

is a career offender).

Invoking these changes, McCall raised five “extraordinary and compelling reasons” that

he believed merited a lower sentence, three of which are relevant here. (R. 2109, Mot. For

Sentence Reduction, PageID 17033.) First, his risk of contracting COVID-19. Second, his

rehabilitative efforts in prison. And third (and most importantly), Havis’s effect on his status as

a career offender. McCall argued that had he been sentenced after Havis, most of his prior

convictions would not have qualified as predicate offenses for the career-offender enhancement.

And without that enhancement, McCall asserted his 235-month sentence stood in “stark contrast

. . . to the sentence he would likely receive . . . today.” (R. 2134, Supp. Mot., PageID 17219.)

The district court denied McCall’s petition. Although McCall mentioned the COVID-19

pandemic, he supplied no “health concern that put[] him at risk . . . .” (R. 2143, Order, PageID

17307.) As for McCall’s Havis argument, the court noted that Havis “[was] not retroactive, nor

No. 21-3400 United States v. McCall Page 4

would it support a claim on collateral relief.” (Id.) And it declined to let McCall “sidestep

normal post-conviction requirements” with a compassionate-release motion. (Id.) That left

rehabilitation, which could not support McCall’s motion on its own. See 28 U.S.C. § 994(t)

(“Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling

reason.”).

McCall appealed, arguing that a “subsequent legal clarification” could satisfy the

“extraordinary and compelling” reason requirement. (Appellant Br. at 7.)

By the time we resolved his appeal, at least five of our published decisions had

considered, albeit with some nuance and distinctions, whether a nonretroactive change in

sentencing law could support a finding of “extraordinary and compelling reasons” warranting

relief. 18 U.S.C. § 3582(c)(1)(A)(i). Four of those decisions answered no, and one decision

answered a qualified yes. Compare United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021)

(no), cert. denied, 142 S. Ct. 780 (2022), United States v. Wills, 997 F.3d 685, 688 (6th Cir.

2021) (no), United States v. Jarvis, 999 F.3d 442, 443–44 (6th Cir. 2021) (no), cert. denied,

142 S. Ct. 760 (2022), and United States v. Hunter, 12 F.4th 555, 564 (6th Cir. 2021) (no), cert.

denied, 142 S. Ct. 2771 (2022), with United States v. Owens, 996 F.3d 755, 763 (6th Cir. 2021)

(explaining that the “combination” of a nonretroactive change in sentencing and other factors

could “warrant[]” compassionate release). When it came to McCall’s appeal, a divided panel

answered yes, reversing and remanding so that the district court could consider “the actual

impact of Havis with respect to McCall’s prior state convictions.” United States v. McCall,

20 F.4th 1108, 1115 (6th Cir. 2021).

We granted en banc review to resolve the “intractable” “intra-circuit split” created by the

decision. Id. at 1116 (Kethledge, J., dissenting).

II.

We first stop to consider the history of compassionate release, along with its current

framework. Hardly a new remedy, the modern-day version of the statute dates to the Sentencing

Reform Act of 1984. Pub. L. No. 98-473, Title II, ch. II, § 212, 98 Stat. 1837. That Act marked

No. 21-3400 United States v. McCall Page 5

the culmination of a reform movement dedicated to reducing perceived uncertainty and disparity

that had been a part of federal sentencing law for decades.

The parole system was partially to blame for these problems. First established by

Congress in 1910, the system vested discretion in federal parole authorities, not judges, to decide

when a prisoner’s sentence ended. See An Act to Parole United States Prisoners, and for Other

Purposes, ch. 387, 36 Stat. 819, 819–21 (1910) (creating a federal parole system). Designed with

rehabilitation in mind, the goals of the parole system were twofold: provide “the incentive for

rehabilitation” and “the possibility of an expert determination that a prisoner had been

rehabilitated and should be released from confinement.” Kate Stith & José A. Cabranes, Fear of

Judging: Sentencing Guidelines in the Federal Courts 18 (1998); see also Mistretta v. United

States, 488 U.S. 361, 363 (1989) (“Both indeterminate sentencing and parole were based on

concepts of the offender’s possible, indeed probable, rehabilitation . . . .”).

Most agree that these goals, though noble in theory, failed in fact. Rehabilitation, long

the cornerstone of federal sentencing and the parole system, fell out of favor with scholars,

reformers, and critics of all stripes by the 1970s.1 Critiques abounded. Some blamed the parole

system’s uncertainty and indeterminacy for increasing anxiety among prisoners. See Kate Stith

& Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal

Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 227 (1993). And many faulted it for

producing “[s]erious disparities” in sentences. Mistretta, 488 U.S. at 365; see also Stith & Koh,

supra, at 227.

Congress responded with the Comprehensive Crime Control Act of 1984. A watershed

statute, it left few areas of federal criminal law untouched. Sentencing law proved no exception.

Title II of the scheme, the Sentencing Reform Act mentioned above, lived up to its name and

1

See, e.g., Mistretta, 488 U.S. at 365 (“Rehabilitation as a sound penological theory came to be questioned

and, in any event, was regarded by some as an unattainable goal for most cases.”); Francis A. Allen, The Decline of

the Rehabilitative Ideal: Penal Policy and Social Purpose (1981); Jon O. Newman et al., Parole Release

Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 828 (1975) (describing the Board of Parole’s

“abandonment of rehabilitation as a primary goal of the parole system”); Robert Martinson, What Works? –

Questions and Answers About Prison Reform, 35 Pub. Int. 22, 25 (1974) (“With few and isolated exceptions, the

rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism.” (emphasis

altered)); Norval Morris, The Future of Imprisonment 14 (1974) (“‘Rehabilitation’ . . . must cease to be a purpose of

the prison sanction.”).

No. 21-3400 United States v. McCall Page 6

represented the results of a movement determined to eliminate rehabilitative goals and

indeterminacy in sentencing. See Stith & Cabranes, supra, at 40 (describing the features of the

Sentencing Reform Act of 1984 that showed Congress’s intent to “eliminat[e] rehabilitation as a

purpose of incarceration”). To that end, the Act abolished parole and prohibited a district court

from “modify[ing] a term of imprisonment once it has been imposed . . . .” 18 U.S.C. § 3582(c).

Against this general prohibition, Congress carved out a few exceptions. The one relevant

here—which we call compassionate release—allowed a district court to lower a prisoner’s

sentence if four conditions (three substantive, one procedural) were met. On the procedural side,

the Sentencing Reform Act gave the Bureau of Prisons exclusive power to decide who could

apply for compassionate release. A court could reduce a sentence only “upon motion of the

Director of the Bureau of Prisons.” Id. § 3582(c)(1)(A) (2002) (amended 2018). So without the

Bureau of Prisons’ support, a prisoner could not obtain relief.

As for substance, the statute required a district court to make three findings. First, that

“extraordinary and compelling reasons warrant[ed]” a sentence reduction. Id. § 3582(c)(1)(A)(i).

Second, the “reduction [was] consistent with applicable policy statements issued by the

Sentencing Commission . . . .” Id. § 3582(c)(1)(A). And third, the § 3553(a) factors supported a

lower sentence. Id. As for what qualified as “extraordinary and compelling,” Congress didn’t

say. Instead, it delegated the task to the Sentencing Commission, instructing it to issue “general

policy statements . . . describ[ing] what should be considered extraordinary and compelling

reasons for a sentence reduction, including the criteria to be applied and a list of specific

examples.” 28 U.S.C. § 994(t). Consistent with the Act’s reform-oriented goals, Congress

instructed that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary

and compelling reason.” Id.

This framework stayed intact for close to 30 years. But during that time, compassionate-

release motions were rare. This slow trickle was due to the action (and inaction) of two entities.

First, the Sentencing Commission took its time issuing the “general policy statement[]” Congress

assigned to it. See id. Twenty-two years, in fact. When the policy statement finally arrived in

2006, it did little but parrot the text of the compassionate-release statute. And it wasn’t until

2007 that the Sentencing Commission added commentary describing “specific examples” of

No. 21-3400 United States v. McCall Page 7

“what should be considered extraordinary and compelling reasons” for relief. Id.; see U.S.S.G.

§ 1B1.13 cmt. n.1(A)–(D).2 Second, the Bureau of Prisons, although tasked with processing

applications and filing motions for meritorious ones, did so on rare occasion. On average, only

24 prisoners a year benefited from compassionate release. See United States v. Elias, 984 F.3d

516, 518 (6th Cir. 2021).

This brings us to the First Step Act of 2018. See Pub. L. 115-391, Title VI, 132 Stat.

5194. Sweeping in its coverage, the First Step Act made many changes to sentencing law. But it

modified only one aspect of the compassionate-release statute. Recall that under the original

version of the statute, only the Bureau of Prisons could move for compassionate release. See

18 U.S.C. § 3582(c)(1)(A) (2002) (amended 2018). The First Step Act, in a section titled

“Increasing the Use and Transparency of Compassionate Release,” eliminated this gatekeeping

role. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5239. It allowed prisoners

to move for relief when the Bureau of Prisons declined to act. See 18 U.S.C. § 3582(c)(1)(A).

Although the First Step Act altered the process for filing a compassionate-release motion,

it left the substantive requirements for obtaining relief intact. We describe this process as a

“three-step inquiry.” United States v. Jones, 980 F.3d 1098, 1101 (6th Cir. 2020); see Ruffin,

978 F.3d at 1004–05. Prisoners still must show that “extraordinary and compelling” reasons

warrant the reduction. 18 U.S.C. § 3582(c)(1)(A)(i). Courts must confirm that any sentence

reduction “is consistent with applicable policy statements issued by the Sentencing

Commission.” Id. § 3582(c)(1)(A). And defendants must persuade the district judge to grant the

motion after the court considers the § 3553(a) factors. Id.

2

The Application Notes list the following examples: (1) medical condition of the defendant, where the

defendant is suffering from “a terminal illness,” a “serious physical or medical condition,” a “serious functional or

cognitive impairment,” or the defendant is “experiencing deteriorating physical or mental health because of the

aging process,” and this condition “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”; (2) age of the

defendant, if the defendant is “at least 65 years old,” is “experiencing a serious deterioration in physical or mental

health because of the aging process,” and “has served at least 10 years or 75 percent of his or her term of

imprisonment, whichever is less”; (3) family circumstances, including the “death or incapacitation of the caregiver

of the defendant’s minor child,” 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”; and (4) “[o]ther”

“extraordinary and compelling” reasons “[a]s determined by the Director of the Bureau of Prisons.” U.S.S.G.

§ 1B1.13 cmt. n.1(A)–(D).

No. 21-3400 United States v. McCall Page 8

As of today, the Sentencing Commission has not adopted a policy statement that applies

when a “defendant (as opposed to the Bureau of Prisons) files” a motion. United States v.

McKinnie, 24 F.4th 583, 586 (6th Cir. 2022); see Jones, 980 F.3d at 1109 (holding that the

existing policy statement, found at U.S.S.G. § 1B1.13, is not applicable to defendant-filed

motions). So in practice, a district court need only consider whether extraordinary and

compelling reasons exist and whether the § 3553(a) factors support a sentence reduction. See

Jones, 980 F.3d at 1108.

With this framework in mind, we turn to the merits.

III.

The First Step Act changed compassionate release in two ways. The first change affected

the process of filing motions by “add[ing] prisoners to the list of persons who may file . . . .” See

United States v. King, 40 F.4th 594, 596 (7th Cir. 2022). The second change—an unintended

consequence of the first—affected substance. Until the Sentencing Commission updates its

policy statement to include defendant-filed motions, district courts retain discretion to define

“extraordinary and compelling” without reference to the Sentencing Commission’s guidance.

See Elias, 984 F.3d at 519–20.3

Everyone agrees the sum of these changes enhanced district courts’ discretion to grant

compassionate release. The key question is how much. McCall pushes for an approach that

would allow a district court to find that any change in federal sentencing law—even one

Congress or a court made expressly nonretroactive—can qualify as an extraordinary and

compelling reason for a sentence reduction (or a district court may at least consider it in

combination with other factors to add up to extraordinary and compelling reasons). The

government, on the other hand, advocates for a narrower reading. It contends that a district court

3

Congress has delegated to the Commission the task of “describ[ing] what should be considered

extraordinary and compelling reasons . . . .” 28 U.S.C. § 994(t). Whether the Commission could issue a new policy

statement that describes “extraordinary and compelling reasons” in a way that is inconsistent with our interpretation

of the statute’s language is a question that we need not resolve in the absence of an applicable statement. See Nat’l

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005); cf. United States v. Home

Concrete & Supply, LLC, 566 U.S. 478, 487–90 (2012) (plurality opinion); see also Ruffin, 978 F.3d at 1006–08; cf.

United States v. Riccardi, 989 F.3d 476, 485 (6th Cir. 2021) (explaining that the Commission’s commentaries do not

deserve deference unless the Guidelines are “genuinely ambiguous” (internal quotation omitted)).

No. 21-3400 United States v. McCall Page 9

cannot consider nonretroactive changes in sentencing law either alone or in combination with

other factors to find extraordinary and compelling reasons exist.

The district court sided with the government, and we do too. Consistent with the text of

the compassionate-release provision, along with the principles, structure, and history of federal

sentencing law, we hold that nonretroactive changes in sentencing law cannot be “extraordinary

and compelling reasons” that warrant relief.

IV.

Text. Our analysis starts, as it must, with the text of the compassionate-release statute.

See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). With no statutory definition of

“extraordinary and compelling reasons” to guide us, Elias, 984 F.3d at 518–20, we interpret the

phrase “in accord with the ordinary public meaning of its terms at the time of its enactment,”

Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020); see also Tanzin v. Tanvir, 141 S. Ct.

486, 491 (2020) (“Without a statutory definition, we turn to the phrase’s plain meaning at the

time of enactment.”). And to do so, we rewind the clock to the time of the Sentencing Reform

Act’s adoption, here 1984. At that time, most understood “extraordinary” to mean “most

unusual,” “far from common,” and “having little or no precedent.” Extraordinary, Webster’s

Third New International Dictionary 807 (1971). “Compelling,” for its part, referred to “forcing,

impelling, driving.” Id. at 463.

At first glance, these common-sense definitions only seem to reiterate what we already

know. Of course, an “extraordinary and compelling reason” is one that is unusual, rare, and

forceful. But in a vacuum, the phrase “extraordinary and compelling” does little to illuminate

the specific type of unique or rare reason that might justify relief. This leads us back to the

question with which we began. Does a district court’s discretion to define “extraordinary and

compelling” encompass any reason—legal or factual—it finds convincing?

Two background principles of federal sentencing law help to provide an answer. The

first is finality. “[E]ssential to the operation of our criminal justice system,” finality gives

criminal law its “deterrent effect.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality op.).

Recognizing the importance of this principle, Congress gave it statutory weight. Because a

No. 21-3400 United States v. McCall Page 10

sentence of imprisonment “constitutes a final judgment,” federal law generally prohibits a

district court from “modify[ing]” it “once it has been imposed.” 18 U.S.C. § 3582(b)–(c); see

also Dillon v. United States, 560 U.S. 817, 824 (2010). The second is nonretroactivity. Federal

sentencing law presumes that changes in sentencing law are not retroactive. McKinnie, 24 F.4th

at 587. Drawing from these two principles, the Supreme Court has explained that the “ordinary

practice is to apply new penalties to defendants not yet sentenced, while withholding that change

from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012).

Framed against this background, the text of the compassionate-release statute gives way

to a basic inference: What is “ordinary” and routine cannot also be extraordinary and compelling.

See Wills, 997 F.3d at 688. After all, prospective changes in federal sentencing law are far from

an extraordinary event. See United States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022). And

unless Congress expressly says so, those changes do not apply to “defendants already

sentenced.” Dorsey, 567 U.S. at 280. Likewise, new caselaw often gives fresh meaning to

statutes or the Sentencing Guidelines. But the Supreme Court has repeatedly reiterated that

judicial decisions announcing new rules of criminal procedure ordinarily do not provide

retroactive relief on collateral review. See Edwards v. Vannoy, 141 S. Ct. 1547, 1555 (2021).

That new statutes and caselaw apply only to “defendants not yet sentenced” is the expected

outcome in our legal system. Dorsey, 567 U.S. at 280. And what is expected cannot be

extraordinary.

What’s more, we find little compelling about the duration of a lawfully imposed

sentence. This is because such a sentence represents “the exact penalt[y] that Congress

prescribed and that a district court imposed for [a] particular violation[] of a statute.” United

States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022). That a

district court might impose a different sentence than one of its predecessors hardly seems the

kind of “forceful, impelling, [or] driving” reason that could justify compassionate release. See

Compelling, Webster’s Third New International Dictionary 463 (1971); see also United States v.

Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021); United States v. Maumau, 993 F.3d 821, 838

(10th Cir. 2021) (Tymkovich, C.J., concurring) (“[T]he imposition of a sentence that was not

No. 21-3400 United States v. McCall Page 11

only permissible but statutorily required at the time is neither an extraordinary nor a compelling

reason to now reduce that same sentence.”).

Viewed in this light, the phrase “extraordinary and compelling reasons” comes into

sharper focus. What is ordinary—the nonretroactivity of judicial precedent announcing a new

rule of criminal procedure like Havis—is not extraordinary. And what is routine—a criminal

defendant like McCall serving the duration of a lawfully imposed sentence—is not compelling.

Structure. The structure of federal sentencing law reinforces our conclusion. Viewed as

a whole, that body of law makes one thing clear: When Congress wants a change in sentencing

law to have retroactive effect, it explicitly says so. To see this reality at work, we need look no

further than the Sentencing Reform Act of 1984 and the First Step Act of 2018.

Consider the Sentencing Reform Act of 1984 first. It listed two exceptions to its general

prohibition on sentence modifications. See 18 U.S.C. § 3582(c). The first was the compassionate-

release provision. Id. § 3582(c)(1). The second allowed for the retroactive application of certain

Sentencing Guideline amendments that provide for shorter terms of imprisonment. Id.

§ 3582(c)(2); see also Dillon, 560 U.S. at 821. One of these exceptions is not like the other.

Why would the same Congress, skeptical of sentence modifications as a general rule, provide for

the retroactive application of specific changes in sentencing law in § 3582(c)(2) if the

compassionate-release exception already covered all legal developments, retroactive or not, in

§ 3582(c)(1)(A)?

The First Step Act begs a similar question. Aside from amending the compassionate-

release statute, the First Step Act reduced the penalties for certain drug crimes in § 401, limited

the stacking of mandatory minimums for certain repeat offenses in § 403, and provided for the

retroactive application of lower sentences for other drug crimes in § 404(b). See Pub. L. No.

115-391, §§ 401, 403, 404, 132 Stat. 5220–22. When it came to § 401 and § 403, Congress

expressly chose not to apply these changes to defendants sentenced before the passage of the

Act. Id. §§ 401(c), 403(b), 132 Stat. at 5220–22. To hold that these changes could still amount

to an extraordinary and compelling reason for relief “fails to grapple with congressional design,

expressed through the text of the statute, in which Congress chose not to make [certain]

No. 21-3400 United States v. McCall Page 12

sentencing amendments retroactive.” Jarvis, 999 F.3d at 444. “Why would the same Congress

that” carefully delineated between retroactive and nonretroactive changes to criminal penalties

“somehow mean to use a general sentencing statute from 1984 to unscramble that approach?”

Id. “If every defendant who received a longer sentence than the one he would receive today

became eligible for compassionate release, the balance Congress struck would come to naught.”

Id.

The same reasoning applies with “equal force here.” Hunter, 12 F.4th at 564. True,

McCall’s case involves a nonretroactive judicial decision, rather than a nonretroactive statute.

But we see no reason to take a different approach.4 So a “contrary conclusion” would allow

defendants to avoid “the principal path . . . Congress established for federal prisoners to

challenge their sentences.” Thacker, 4 F.4th at 574. That path, found in 28 U.S.C. § 2255,

“embodie[s] . . . [a] specific statutory scheme authorizing post-conviction relief . . . .” Id. And

that scheme places strict limits on post-conviction claims.

Those limits would prove fatal to McCall for two reasons. He first attacked his

conviction under § 2255 in 2016. This attack proved unsuccessful, so he would need express

authorization to bring a “second or successive” petition. See 28 U.S.C. § 2244(b). But this he

could not get. Congress permits such a motion only if it invokes a “new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court” or includes “newly

discovered evidence.” 28 U.S.C.§ 2255(h)(1)–(2). McCall presents no new “evidence” and “no

new rule of constitutional law,” making any second petition dead on arrival. But even without

these “second or successive” limits, id. § 2244(b)(1), McCall could not obtain post-conviction

relief. The Supreme Court has long held that “newly recognized rules of criminal procedure do

not normally apply in collateral review.” Ramos v. Louisiana, 140 S. Ct. 1390, 1407 (2020)

(citing Teague, 489 U.S. at 311–12). And we have similarly explained that a misapplication of

4

As we noted above, judicial decisions that change sentencing practices or criminal penalties are

presumptively nonretroactive. So like the panel below, “[w]e assume . . . that the difference between nonretroactive

[statutory changes to the First Step Act] and nonretroactive changes in sentencing law more broadly is ‘immaterial’”

to this question. McCall, 20 F.4th at 1113 n.4; cf. Hunter, 12 F.4th at 565 (“Nothing in § 3582(c) purports to change

the judicial doctrine that ‘a decision announcing a new rule of criminal procedure ordinarily does not apply

retroactively’ to final judgments.” (citing Edwards, 141 S. Ct. at 1551)).

No. 21-3400 United States v. McCall Page 13

an advisory guidelines range, including a Havis error, does not present a “cognizable” claim

under § 2255. See Bullard v. United States, 937 F.3d 654, 659, 661 (6th Cir. 2019).

McCall cannot avoid these restrictions on “post-conviction relief” by “resorting to a

request for compassionate release instead.” Crandall, 25 F.4th at 586. We assume Congress

knew of its “specific statutory scheme authorizing post-conviction relief” when it adopted the

compassionate-release statute in 1984 and amended it in 2018. Thacker, 4 F.4th at 574. And we

likewise “assume” Congress was “aware of relevant judicial precedent” limiting the retroactive

application of new rules of criminal procedure when it set the extraordinary and compelling

reasons threshold. Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1072 (2020) (quoting Merck &

Co. v. Reynolds, 559 U.S. 633, 648 (2010)). So if Congress intended the compassionate-release

statute to act as an exception to this post-conviction framework, “it would have made ‘that intent

specific.’” McKinnie, 24 F.4th at 588 (quoting Hunter, 12 F.4th at 565); see also Banister v.

Davis, 140 S. Ct. 1698, 1707 (2020). Yet we can find no such intent in the phrase “extraordinary

and compelling reasons.” This phrase “does not remotely suggest that Congress intended to

effect the monumental change of giving district courts the discretion to treat non-retroactive

precedent as a basis to alter a final judgment (and release a prisoner).” Hunter, 12 F.4th at 566.

Judge Moore questions why we’re discussing habeas because habeas and compassionate

release “serve entirely different purposes . . . .” (Moore Dissent p. 33.) She continues: “When a

court grants a habeas petition, it deems the sentence invalid. . . . By contrast, a grant of

compassionate release does not invalidate the relevant sentence; rather, it recognizes that a

holistic consideration of the defendant’s circumstances entitles them to early release . . . .”

(Moore Dissent p. 33–34.)

But arguing that an intervening change to sentencing law provides an extraordinary and

compelling reason for early release necessarily implicates the validity of the relevant sentence.

See United States v. Jenkins, 50 F.4th 1185, 1202–03 (D.C. Cir. 2022). If someone like McCall

were to prevail on his Havis claim, a court would alter the duration of his sentence because his

sentence would be different today, thereby implying the unlawfulness of his sentence as

originally imposed. See id. at 1202, 1204.

No. 21-3400 United States v. McCall Page 14

Put another way, a compassionate release petitioner argues that, although his sentence is

lawful, other unrelated factors, such as health or age, counsel in favor of early release. A habeas

petitioner argues that his sentence is unlawful. Entertaining an argument that implies a sentence

is unlawful at the threshold level of a compassionate release analysis blurs these two forms of

relief. And it is precisely because, as Judge Moore notes, habeas and compassionate release

serve different purposes, that we won’t blur these lines in a way that ignores context.

The habeas-channeling rule that we alluded to earlier supports our view. Because habeas

serves as the avenue to attack the lawfulness of confinement, “an inmate may not rely on a

generally worded statute to attack the lawfulness of his imprisonment . . . .” Jenkins, 50 F.4th at

1202; see Preiser v. Rodriguez, 411 U.S. 475, 485–86 (1973). This includes attacks seeking “a

judicial determination that necessarily implies the unlawfulness of the State’s custody.”

Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). All to say, habeas is the appropriate place to bring

challenges to the lawfulness of a sentence. And as we’ve discussed, we do not read

“extraordinary and compelling” to provide an end run around habeas.

This is not to say that “extraordinary and compelling” doesn’t have a “broad range of

meaningful application . . . .” Jenkins, 50 F.4th at 1203. Most obviously, “extraordinary and

compelling” “covers factors like those enumerated by the Sentencing Commission—health, age,

and family circumstances . . . .” Id. And “for those defendants who can show some []

‘extraordinary and compelling’ reason for a sentencing reduction,” considering other factors not

encompassed by “extraordinary and compelling” when analyzing the § 3553(a) factors is a

“superior means” for promoting fairness and case-by-case sentencing decisions “and honor[ing]

the choices Congress [or the courts] made . . . .” Jarvis, 999 F.3d at 445.

Return back to our original insight about the structure of federal sentencing law. When

Congress expects a change in sentencing law to have retroactive application, deviating from both

its principal path for post-conviction relief and general prohibition on sentence modifications, it

makes that intent clear. The term “extraordinary and compelling reasons” displays no such

intent. Without a more explicit instruction, defendants cannot use compassionate release as an

“end run around Congress’s” or courts’ retroactivity decisions. Tomes, 990 F.3d at 505.

No. 21-3400 United States v. McCall Page 15

History. What text and structure show, history confirms. Since its enactment,

compassionate release has never been understood to cover nonretroactive changes in sentencing

law.

An early prototype of the compassionate-release statute, found in the Parole Commission

and Reorganization Act (the “Parole Act”), supplies our starting point. See Pub. L. No. 94-233,

90 Stat. 219, 223 (1976). It provided that “[a]t any time upon motion of the Bureau of Prisons,

the court may reduce any minimum term to the time the defendant has served.” 18 U.S.C.

§ 4205(g) (repealed).

Broad in scope, this provision gave the Bureau of Prisons wide discretion over the who

and the why of compassionate release. See Turner v. U.S. Parole Comm’n, 810 F.2d 612, 615

(7th Cir. 1987). The Bureau of Prisons, in turn, provided two examples of circumstances

meriting use of that discretion: (1) prison-overcrowding and (2) “particularly meritorious or

unusual circumstances which could not have been reasonably foreseen by the court at the time of

sentencing,” including “an extraordinary change in an inmate’s personal or family situation or if

an inmate becomes severely ill.” Id. at 617 (quoting 28 C.F.R. § 572.40(a) (1986)). Neither of

those scenarios contemplated nonretroactive legal developments. And in practice, the few

defendants who received relief often did so because of their rehabilitative efforts. See United

States v. Banks, 428 F. Supp. 1088, 1089 (E.D. Mich. 1977) (granting reduction when the

defendant displayed “outstanding institutional adjustment,” “[h]is conduct record [was] clear,”

and his work was “uniformly competent”); cf. Turner, 810 F.2d at 615–16, 618 (recognizing the

Bureau’s role in initiating sentencing modification motions under the Parole Act).

The Sentencing Reform Act of 1984 replaced the Parole Act’s provision with a new-and-

improved compassionate-release statute. Perhaps mirroring the Bureau of Prisons’ old

regulations, the updated version limited its scope to inmates whose circumstances presented

“extraordinary” reasons for relief. 18 U.S.C. § 3582(c)(1)(A)(i). As we know, the Sentencing

Commission took close to 22 years to flesh out the contours of that requirement. Still, even

without a policy statement, the Bureau of Prisons continued to move for compassionate release

and courts continued to grant it, even if in narrow circumstances. And, for example, the only

circumstance that the Bureau’s 1998 Program Statement explicitly discusses is “the inmate’s

No. 21-3400 United States v. McCall Page 16

health.” See Fed. Bureau of Prisons, U.S. Dep’t of Justice, Change Notice No. 5050.46,

Program Statement Concerning Compassionate Release; Procedures for Implementation of

18 U.S.C. 3582(c)(1)(A) & 4205(g), 1(a)(1)(d); 4(c) (1998). To our knowledge, for at least the

first two decades of compassionate release, the “extraordinary and compelling reasons”

requirement did not encompass nonretroactive changes in sentencing law.

The next decade or so followed a similar course. The Sentencing Commission’s long-

awaited policy statement and commentary expanded on the kinds of “extraordinary and

compelling reasons” that could justify a sentence reduction. See U.S.S.G. § 1B1.13 cmt. n.1(A)–

(D). But those reasons never included nonretroactive legal developments. Instead, the growing

categories sounded in variations on a theme. The Sentencing Commission added old age, family

caretaking emergencies, and a catch-all provision for other circumstances approved by the

Bureau of Prisons. Id. § 1B1.13 cmt. n.1(B)–(D). Its policy statement also expanded on the

kinds of medical conditions that amounted to an “extraordinary and compelling” reason for

relief. Id. § 1B1.13 cmt. n.1(A). Of course, this policy statement no longer applies to defendant-

filed motions. But still, it “sheds light on the meaning of extraordinary and compelling reasons.”

Andrews, 12 F.4th at 260; see also Tomes, 990 F.3d at 503 n.1 (describing the policy statement

“as relevant, even if no longer binding”). For over thirty years, that meaning encompassed

changes in fact—like terminal illness and family emergencies—largely unforeseeable at

sentencing.

Congress, no doubt, had this meaning and practice in mind when it amended the

compassionate release statute in 2018. See Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139

S. Ct. 1881, 1890 (2019) (“It is a commonplace of statutory interpretation that Congress

legislates against the backdrop of existing law.” (internal citation and quotation marks omitted)).

Yet its amendment focused on process, not substance. See King, 40 F.4th at 596 (“The First Step

Act did not create or modify the ‘extraordinary and compelling reasons’ threshold for eligibility;

it just added prisoners to the list of persons who may file motions.”). And because Congress left

the substance of the “extraordinary and compelling reasons” requirement intact, we assume the

phrase retained “the meaning it had under the previous version of the statute.” Andrews,

12 F.4th at 260; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

No. 21-3400 United States v. McCall Page 17

Legal Texts 322 (2012) (“The clearest application of the prior-construction canon occurs with

reenactments: If a word or phrase . . . has been given a uniform interpretation by inferior courts

or the responsible agency, a later version of that act perpetuating the wording is presumed to

carry forward that interpretation.”). That meaning has never covered nonretroactive changes in

sentencing law. Indeed, nothing in the 30-odd year history of compassionate release “hint[s] that

the sort of legal developments routinely addressed by direct or collateral review [could] qualify a

person for compassionate release.” King, 40 F.4th at 595–96. And nothing in the First Step Act

of 2018 suggests Congress intended to change this substantive status quo with a process-oriented

amendment.5

***

This conclusion brings us to McCall’s appeal. He argues that our decision in Havis, his

risk of contracting COVID-19, and his rehabilitative efforts supply “extraordinary and

compelling” reasons to reduce his sentence. We disagree. Havis, a nonretroactive judicial

decision announcing a new rule of criminal procedure, cannot serve as a basis for relief. Nor,

with “vaccinations [widely] available to federal prisoners,” can McCall’s claims about the

dangers of COVID-19. McKinnie, 24 F.4th at 588. That leaves rehabilitation, which cannot by

itself justify a sentence reduction. See 28 U.S.C. 994(t). Because none of McCall’s reasons

meets the “extraordinary and compelling” threshold for relief, the district court did not err when

it denied his petition for compassionate release.

V.

McCall sees it differently. He raises a host of arguments, invoking new Supreme Court

precedent, the text of the statute, legislative history, and notions of disparity. None succeeds.

5

True, the effect of the First Step Act’s process-oriented amendment was that it gave district courts

discretion without a corresponding policy statement when evaluating defendant-filed motions. See supra p. 8. But,

practically speaking, that’s the case because “[t]he Sentencing Commission lacked a quorum from January 2019

until August 2022, so it has been unable to promulgate a policy statement that applies to such motions.” Jenkins, 50

F.4th at 1193; see supra n.3. And so it’s unlikely that this process-oriented amendment tells us anything about

Congress’s intent to change the meaning of “extraordinary and compelling” or its desire to vest more discretion in

the district courts to do so.

No. 21-3400 United States v. McCall Page 18

First, he contends that the Supreme Court’s recent decision in Concepcion v. United

States, 142 S. Ct. 2389 (2022), mandates a different result. That case considered another

provision of the First Step Act, § 404(b), which “empowers district courts to lower sentences

imposed for crack-cocaine offenses as if” certain reduced penalties “had been the law during the

original sentencing hearing.” United States v. Maxwell, 991 F.3d 685, 688 (6th Cir. 2021)

(internal citation and quotation marks omitted). The Supreme Court held that if a prisoner

qualifies for resentencing under § 404(b), a district court may consider “intervening changes of

law or fact” in deciding whether and how much to reduce the sentence. Concepcion, 142 S. Ct.

at 2404. And in doing so, the Court emphasized district courts’ historical exercise of “broad

discretion to consider all relevant information” during an initial sentencing or sentence-

modification hearing. Id. at 2398.

McCall claims Concepcion’s holding buoys his reading of the extraordinary and

compelling reason requirement, but we disagree. To start, Concepcion concerned a different and

unrelated provision of the First Step Act that explicitly applied retroactively. The decision said

nothing about the “threshold question [of] whether any given prisoner has established an

‘extraordinary and compelling’ reason for release.” King, 40 F.4th at 596; see United States v.

Beckford, No. 22-10638, 2022 WL 4372553, at *3 (11th Cir. Sept. 22, 2022); United States v.

Bledsoe, No. 22-2022, 2022 WL 3536493, at *2 (3d Cir. Aug. 18, 2022).6

Next, to the extent that Concepcion sheds any light on this case, it supports the

government’s position. Concepcion’s insight goes to what a court may consider after it finds a

defendant meets the threshold requirement for a sentence modification. If that threshold is met,

Concepcion teaches that a district court may consider any number of changes in law and fact

when exercising its discretion to grant or deny the defendant’s motion. See 142 S. Ct. at 2404;

see also id. at 2402 n.6.

6

Judges Moore and Gibbons think that Concepcion has a broader mandate. True, Concepcion articulates a

“broad and expansive view of sentencing discretion.” (Gibbons Dissent p. 37.) But, as both Judges Moore and

Gibbons acknowledge, a district court’s “discretion” is “limit[ed]” by what is “set forth by Congress in a statute or

by the Constitution.” Concepcion, 142 S. Ct. at 2400. And “the compassionate-release statute imposes just such a

limit[] in authorizing a reduced term of imprisonment only for extraordinary and compelling reasons.” Jenkins,

50 F.4th at 1200.

No. 21-3400 United States v. McCall Page 19

Our approach to compassionate release runs a parallel course. A defendant must first

satisfy the provision’s threshold requirement, showing “some [] ‘extraordinary and

compelling’ reason” justifies “a sentencing reduction.” Jarvis, 999 F.3d at 445. With that hurdle

cleared, Concepcion’s holding comes into play. A district court may “consider subsequent

developments,” legal or factual, “in deciding whether to modify the original sentence and, if so,

in deciding by how much.” Maxwell, 991 F.3d at 691; see also Jarvis, 999 F.3d at 445 (adopting

Maxwell’s approach). “We take the Supreme Court at its word that Concepcion is about the

matters that district judges may consider when they” exercise their discretion to “resentence

defendants,” not whether those defendants qualify for resentencing in the first place. King, 40

F.4th at 596.7

Second, McCall asserts that the text of the compassionate-release statute supports his

broad reading of its terms. To back up his assertion, he relies on what we call the “negative-

implication canon.” Scalia & Garner, supra, at 107. That canon stands for the idea “that the

expression of one thing (i.e., the specified exception) implies the exclusion of other things of the

same sort (i.e., other exceptions).” Caleb Nelson, Statutory Interpretation 89 (2011).

Here, McCall suggests that canon plays out as follows. Although Congress provided no

official definition of what qualifies as an “extraordinary and compelling” reason, instead

delegating the task to the Sentencing Commission, it did articulate a limit on its scope.

“Rehabilitation of the defendant alone” cannot “be considered an extraordinary and compelling

7

Judge Gibbons believes Concepcion “incorporates consideration of nonretroactive changes at the

threshold stage . . . .” (Gibbons Dissent p. 37.) And she relies on the following sentence for support: “In many

cases, a district court is prohibited from recalculating a Guidelines range in light of nonretroactive Guidelines

amendments, but the court may find those amendments to be germane when deciding whether to modify the

sentence at all . . . .” Concepcion, 142 S. Ct. at 2400. This sentence simply supports the holding of Concepcion:

intervening changes in the law can be considered if a prisoner qualifies for resentencing. Id. at 2404. It doesn’t tell

us anything about when, if at all, changes in sentencing law should be considered in the compassionate-release

context. Placing this sentence in context doesn’t lend support to Judge Gibbons’s reading either. See id. at 2400

(referencing three cases that discussed intervening changes to law in the § 3553(a) context); id. at n.6 (“A district

court cannot, however, recalculate a movant’s benchmark Guidelines range in any way other than to reflect the

retroactive application of the Fair Sentencing Act. . . . The district court may then consider postsentencing conduct

or nonretroactive changes in selecting or rejecting an appropriate sentence . . . .”); see also Bledsoe, 2022 WL

3536493, at *2 (recognizing that Concepcion “harmonizes” with the acknowledgement that “‘[i]f a prisoner

successfully shows extraordinary and compelling circumstances, the current sentencing landscape may be a

legitimate consideration for courts at the next step of the analysis when they weigh the § 3553(a) factors.’” (quoting

Andrews, 12 F.4th at 262)).

No. 21-3400 United States v. McCall Page 20

reason.” 28 U.S.C. 994(t). That Congress articulated one limit on what might be considered

“extraordinary and compelling,” McCall posits, implies the exclusion of any other limit. Put

another way, had Congress wanted to limit the use of nonretroactive changes in sentencing law,

like it did rehabilitation, it would have said so. Without such a statement, McCall finishes, our

limit on nonretroactive changes in sentencing law “is in direct conflict with the statutory text,”

which contains no “support . . . for the categorical exclusion of non-retroactive legislation or

decisions.” (Appellant Supp. Br. at 8, 11.)

As with all arguments that rely on the negative-implication canon, we approach McCall’s

with “great caution.” Scalia & Garner, supra, at 107. This is because “its application depends so

much on context.” Id. Properly understood, the canon comes into play “only when” the limit or

exception specified “can reasonably be thought to be an expression of all that shares in the grant

or prohibition involved.” Id. “[C]ommon sense often suggests when this is or is not so.” Id.;

see also Nelson, supra, at 91 (explaining that courts do not apply the negative-implication canon

“reflexively”; “[i]nstead, they think about whether the relevant statutory language really does

carry the negative implication that application of the [canon] would suggest”).

Here, context and common sense undermine McCall’s argument. Historical context

provides our first clue. Recall the reform movement that led to the Sentencing Reform Act of

1984. That movement rejected rehabilitation “as a sound penological theory” and dismissed the

idea as an “unattainable goal for most cases.” Mistretta, 488 U.S. at 365. Congress designed the

Sentencing Reform Act with this movement in mind, erecting several barriers designed to

eliminate rehabilitation’s outsized influence. It began by abolishing the parole system and

generally prohibiting sentence modifications. Against that general prohibition, Congress left a

few doors ajar. One of those doors, compassionate release, had a barrier of its

own: “Rehabilitation . . . alone” could not meet the “extraordinary and compelling” threshold.

28 U.S.C. § 994(t). This history leads us to a common-sense inquiry. Did Congress’s restriction

on rehabilitation signify an intent to exclude all other limits on what could qualify as an

“extraordinary and compelling” reason? Or did that limit simply reinforce Congress’s statutory

goal of “eliminat[ing] [] rehabilitation as a purpose of incarceration”? See Stith & Cabranes,

No. 21-3400 United States v. McCall Page 21

supra, at 40. Given the historical context of the Sentencing Reform Act, we find the latter more

likely.

Textual context also supports our holding. McCall asserts Congress placed “no textual

. . . limit”—aside from rehabilitation—on the reasons that may warrant a sentence reduction.

(Appellant Supp. Br. at 4.) But this assertion ignores the explicit textual limitations at the heart

of this appeal—that is, that the reasons be “extraordinary and compelling.” As we have

explained, there is nothing extraordinary about the ordinary operation of our legal system, which

assumes new statutes and caselaw have no retroactive effect. Thus it is the text of the

compassionate-release statute itself, rather than our “re-writing” of it, which “support[s] . . . the

categorical exclusion of non-retroactive legislation or decisions.” (Appellant Supp. Br. at 8, 11.)

So understood, Congress’s restriction on rehabilitation cannot be “an expression of all that shares

in the . . . prohibition involved.” Scalia & Garner, supra, at 107.

Third, McCall next argues that legislative history supports his vast construction of the

compassionate-release statute. But “legislative history is not the law.” Epic Sys. Corp. v. Lewis,

138 S. Ct. 1612, 1631 (2018). And even when courts consider legislative history, they do so

only when it “shed[s] a reliable light on the enacting Legislature’s understanding of otherwise

ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see

also United States v. Woods, 571 U.S. 31, 46 n.5 (2013) (“Whether or not legislative history is

ever relevant, it need not be consulted when . . . the statutory text is unambiguous.”). There is no

such ambiguity here. The text of the compassionate-release statute, informed by the principles,

history, and structure of sentencing law forecloses McCall’s argument.

But even if it did not, McCall’s recitation of legislative history does little to advance his

case. He first cites a Senate Report explaining the Senate Judiciary Committee’s view that “there

may be unusual cases . . . justified by changed circumstances,” that would permit a sentence

reduction, including: “cases of severe illness, cases in which other extraordinary and compelling

circumstances justify a reduction of an unusually long sentence, and some cases in which the

sentencing guidelines for the offense . . . have been later amended to provide a shorter term of

imprisonment.” S. Rep. No. 98-225, at 55–56 (1983).

No. 21-3400 United States v. McCall Page 22

Put in context, this portion of the Report does not interpret or reference the proposed

compassionate release statute, 18 U.S.C. § 3582. See id. These Committee comments respond

to the Parole Commission’s concerns about its diminished place within the new sentencing

regime and refer to 18 U.S.C. § 3583(c), which vests the courts with authority to determine

whether and when supervised release is appropriate. See id. at 56. To the extent that the

Committee comments here sound in compassionate-release language, the comments distinguish

“cases in which the sentencing guidelines for the offense . . . have been later amended to provide

a shorter term of imprisonment” from “extraordinary and compelling” cases. See id. at 55–56.

So the reference to guideline changes most naturally points to Congress’s other exception to its

general prohibition on sentence modifications, namely: the retroactive application of certain

sentencing guideline amendments that provide for shorter terms of imprisonment. See 18 U.S.C.

§ 3582(c)(2). And what kinds of “other extraordinary and compelling circumstances” would

justify the reduction of an “unusually long sentence”? The Committee doesn’t elaborate here.

“There being, alas, no legislative history to this legislative history, we are left with more room

for conjecture” than clarity. Am. Fin. Grp. & Consol. Subsidiaries v. United States, 678 F.3d

422, 427 (6th Cir. 2012).

McCall’s second piece of legislative history is no more illuminating. It describes

compassionate release as a “safety valve” for cases “in which the defendant’s circumstances are

so changed, such as by terminal illness, that it would be inequitable to continue [] confinement.”

S. Rep. No. 98-225, at 121. This piece of legislative history hurts, rather than helps, McCall’s

cause. The few concrete examples provided by the Senate Report—like “severe” or “terminal

illness”—have little in common with nonretroactive legal developments. S. Rep. No. 98-225, at

55, 121; see also id. at 173 (describing the compassionate-release provision as “permitting” a

“reduction of a term of imprisonment in a compelling case, such as terminal cancer”). If

anything, these examples reinforce the notion that the phrase “extraordinary and compelling

reasons” covers changes in a defendant’s personal circumstances, not changes in law. Taken

altogether, the legislative history is ambiguous at best and damaging to McCall’s case at worst.

Fourth, McCall seems to concede that nonretroactive legal developments cannot,

standing alone, qualify as an “extraordinary and compelling” reason for relief. (Appellant Supp.

No. 21-3400 United States v. McCall Page 23

Br. at 11 (quoting United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021).) But he

nonetheless argues that a new statute or judicial decision can enter the picture when used to

“illuminate the disparity as a component of the extraordinary and compelling reasons criteria,

and [can permit] the district court to consider that disparity along with other individual

circumstances.” (Appellant Supp. Br. at 13 (emphasis added).)

He’s not alone in this position. The First, Ninth, and Tenth Circuits have held that

nonretroactive legal developments can contribute to a finding of “extraordinary and compelling

reasons” when viewed “in combination” with a defendant’s “unique circumstances.” McGee,

992 F.3d at 1048; see United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022); United States

v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022). Judge Moore advocates for this approach as well.

(Moore Dissent pp. 29–30.) The Fourth Circuit’s position goes a step further. It held that a

nonretroactive statutory change, coupled with the resulting “disparity” between the sentence the

defendant received and “the sentence a defendant would receive today,” may satisfy the

“extraordinary and compelling reason” standard on its own. United States v. McCoy, 981 F.3d

271, 285 (4th Cir. 2020). Different around the edges, all three of these decisions seem to rest on

the common goals of “alleviating unfair and unnecessary sentences as judged by today’s

sentencing laws . . . and of promoting ‘individualized, case-by-case’ sentencing decisions.”

Jarvis, 999 F.3d at 445 (quoting McGee, 992 F.3d at 1047, citing McCoy, 981 F.3d at 285–86).

Although we appreciate these ends, we cannot reconcile this approach with the plain text

of the compassionate-release statute. Congress prospectively amends or updates its criminal-

penalty scheme. The nonretroactivity of judicial precedent like Havis is the rule, not the

exception. That a defendant might receive a different sentence today than he received years ago

represents the routine business of our legal system. These ordinary happenings “cannot supply

an extraordinary and compelling reason to reduce a lawful sentence whose term Congress

enacted, and the President signed, into law.” Thacker, 4 F.4th at 574; see also Crandall, 25 F.4th

at 586 (“The views of a present-day Congress, like those of a present-day sentencing judge,

about the appropriate punishment for a present-day offense do not establish an ‘extraordinary

and compelling reason’ for reducing a sentence imposed years ago.”).

No. 21-3400 United States v. McCall Page 24

And the reality is that the circuits that agree with Judge Moore’s approach “recognize that

a court may never grant compassionate release based solely on prospective sentencing changes”

because “[s]uch reasoning always runs headlong into Congress’s judgment that the unamended

statute remains appropriate for previously sentenced defendants . . . .” Jenkins, 50 F.4th at 1199;

see McGee, 992 F.3d at 1047–48 (“[T]he possibility of a district court finding the existence of

‘extraordinary and compelling reasons’ based, in part, on a defendant’s pre-First Step Act . . .

sentence . . . does not, in our view, necessarily usurp Congressional power. That said, we also

agree with the Sixth Circuit’s decision in Tomes that the fact that a defendant is serving a pre-

First Step Act mandatory life sentence . . . cannot, standing alone, serve as the basis for a

sentence reduction under § 3582(c)(1)(A).”); cf. Ruvalcaba, 26 F.4th at 27 (“[I]f a district court

were to reduce a sentence solely because . . . [a statute’s] non-retroactive amendments would

have lowered a defendant’s sentence, it might be seen as substituting its own judgment on

retroactivity for Congress’s judgment . . . .”).

Our conclusion, on the other hand, holds true in the singular and in the aggregate.

Nonretroactive legal developments, considered alone or together with other factors, cannot

amount to an “extraordinary and compelling reason” for a sentence reduction. McCall’s case

shows why. He contends that, even if Havis does not amount to an extraordinary and compelling

reason on its own, it meets the standard when combined with COVID-19 and his rehabilitative

efforts. But this line of argument falls flat. “[A]dding a legally impermissible ground to [other]

insufficient factual considerations” cannot “entitle a defendant to a sentence reduction.” Jarvis,

999 F.3d at 444; see also McKinnie, 24 F.4th at 588 (“[W]hy would combining unrelated factors,

each individually insufficient to justify a sentence reduction, amount to more than the sum of

their individual parts?”). Nonretroactive legal developments do not factor into the extraordinary

and compelling analysis. Full stop.8

VI.

For these reasons, we affirm the district court.

8

Of course, we have held that district courts remain free to consider nonretroactive changes in sentencing

law when “balancing the § 3553(a) factors” to decide whether and how much to reduce a qualifying defendant’s

sentence. See Jarvis, 999 F.3d at 445. The government is not contesting that determination here.

No. 21-3400 United States v. McCall Page 25

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, dissenting. David McCall has served more

than half of a nearly twenty-year sentence. At sentencing, the district court found that McCall’s

sentencing guideline range was 188–235 months and sentenced him to a term of imprisonment of

235 months, the top end of that range. Several years later, a decision of our en banc court made

it likely that McCall would have faced a far shorter guideline range—in McCall’s estimation, a

range of 77–96 months—if he had been sentenced after that decision. See United States v.

Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam).1 Today, the majority holds that the

district court could not consider that intervening change in law when evaluating whether McCall

had shown that “extraordinary and compelling reasons” warranted his compassionate release

under 18 U.S.C. § 3582(c)(1)(A). Because the majority’s decision rests on a cramped view of

compassionate release that cannot be reconciled with the expansive statutory scheme Congress

has adopted, I respectfully dissent.

The Supreme Court’s recent decision in Concepcion v. United States, 142 S. Ct. 2389

(2022), provides a roadmap for resolving the issue before us. In that case, the Court addressed a

similar issue in a distinct context: whether district courts could consider nonretroactive changes

in law when adjudicating motions raised under a provision of the First Step Act that allowed for

resentencing of imprisoned individuals who had been convicted of certain offenses involving

crack cocaine. Id. at 2396. The Court began its decision by noting the “longstanding tradition in

American law” that “a judge at sentencing considers the whole person before him or her ‘as an

individual.’” Id. at 2395 (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). Consistent

with that tradition, the Court observed that “[i]t 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

1

In Havis, our en banc court held that “[t]he [Sentencing] Guidelines’ definition of ‘controlled substance

offense’ does not include attempt crimes.” 927 F.3d at 387. If McCall had been sentenced after Havis, he would not

have received the career-offender enhancement that he argues increased his sentencing range from 77–96 months to

188–235 months.

No. 21-3400 United States v. McCall Page 26

restrained.” Id. at 2396. Finding that Congress “did not contravene this well-established

sentencing practice” in the First Step Act, the Court held that district courts were bound to

consider (though free to accept or reject in their discretion) nonfrivolous arguments premised on

nonretroactive intervening changes in law when adjudicating motions under the relevant

provision of the Act. Id. at 2401–05.

Although the majority questions the decision’s relevance, Maj. Op. 18, the principles

recognized in Concepcion help frame the issue presented in this case. The en banc majority

belabors the fact that the provision of the First Step Act addressed in Concepcion is different

from the one we confront here, see id., but the Court’s analysis implicated broader principles

relevant to all “initial sentencings” and “sentencing modification hearings” irrespective of the

statute authorizing the proceedings, Concepcion, 142 S. Ct. at 2399. Indeed, as Judge Gibbons’s

separate dissent observes, Concepcion speaks directly to what a district court may consider

“when deciding” both “whether to modify a sentence at all, and if so, to what extent.” Id. at

2400 (emphasis added). In line with the principles recognized in Concepcion, our review of

McCall’s request for a sentence modification must begin with the default rule that “[t]he only

limitations on [the] [district] court’s discretion to consider any relevant materials . . . in

modifying that sentence are those set forth by Congress in a statute or by the Constitution.” Id.;

see also United States v. Chen, 48 F.4th 1092, 1095–96 (9th Cir. 2022) (adopting a similar frame

of analysis); United States v. Arriola-Perez, No. 21-8072, 2022 WL 2388418, at *2 (10th Cir.

July 1, 2022); United States v. Brice, No. 21-6776, 2022 WL 3715086, at *2 (4th Cir. Aug. 29,

2022). Here, all parties agree that the only limitation relevant to McCall’s motion is supplied by

§ 3582(c)(1)(A)’s phrase “extraordinary and compelling reasons.” The issue is whether that

phrase prohibits district courts from considering nonretroactive changes in law on a case-by-case

basis.2

2

Despite its suggestion that Concepcion is inapplicable here, the majority agrees that the only possible

limitation on the district courts’ ability to consider nonretroactive changes in law when deciding whether to grant

compassionate release under § 3582(c)(1)(A) comes from the phrase “extraordinary and compelling reasons.” See

Maj. Op. 18 n.6; cf. United States v. Jenkins, 50 F.4th 1185, 1200 (D.C. Cir. 2022) (asserting that Congress limited

district courts’ discretion to award compassionate release by authorizing compassionate release only for

“extraordinary and compelling reasons”).

No. 21-3400 United States v. McCall Page 27

The majority’s detailed historical account of § 3582(c)(1)(A) and the First Step Act’s

recent amendments to the provision demonstrates the error in reading inflexible limitations into

the phrase “extraordinary and compelling reasons.” As the majority explains, § 3582(c)(1)(A)

originated with the passage of the Sentencing Reform Act of 1984, which abolished federal

parole and constrained federal courts from “modify[ing] a term of imprisonment once it has been

imposed.” Sentencing Reform Act of 1984, Pub. L. No. 98–473, Title II, ch. 2, § 212(a), 98 Stat.

1837, 1998 (enacting 18 U.S.C. § 3582(c)). Congress provided an exception to that general rule

in the form of compassionate release, allowing federal courts to reduce a sentence when

“warrant[ed]” by “extraordinary and compelling reasons[.]” 18 U.S.C. § 3582(c)(1)(A) (1984).

By design, § 3582(c)(1)(A) provides targeted relief to particular individuals whose

unique circumstances warrant a “second look at resentencing[.]” Shon Hopwood, Second Looks

& Second Chances, 41 CARDOZO L. REV. 83, 102 (2019); see also United States v. Ruffin, 978

F.3d 1000, 1005 (6th Cir. 2020) (noting the “discretionary nature of a reduction-of-sentence

decision” under § 3582(c)(1)(A)). Whereas the prior federal parole system tasked the Parole

Commission with “review[ing] every federal sentence” for evidence that the imprisoned person

had been rehabilitated before deciding whether to grant that person release from confinement,

§ 3582(c)(1)(A) allows “courts to decide, in individual cases, if ‘there is justification for

reducing a term of imprisonment.’” Hopwood, supra, at 102 (quoting S. Rep. No. 98-225, at 56

(1983)). As a result of this penological shift, “extraordinary and compelling reasons” replaced

rehabilitation as the lodestar for those empowered to decide whether to release certain

imprisoned individuals.

Congress has never provided, nor sought to provide, a comprehensive definition of

“extraordinary and compelling reasons” under § 3582(c)(1)(A). For over three decades,

Congress instead delegated the power to define the phrase to the Bureau of Prisons (“BOP”) and

the Sentencing Commission. The Sentencing Commission, for its part, was tasked with issuing

general policy statements “describ[ing] 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). Congress limited this expansive delegation in only one respect,

dictating that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary

No. 21-3400 United States v. McCall Page 28

and compelling reason” for a sentence reduction. Id. The ability to define “extraordinary and

compelling reasons” under § 3582(c)(1)(A) was otherwise left to the discretion of the Sentencing

Commission.

The Sentencing Commission has done little to advance our understanding of what is

“extraordinary and compelling” under § 3582(c)(1)(A). “Ignoring Congress’s edict for twenty-

two years, the Commission issued its first policy statement regarding compassionate release only

in 2006.” United States v. Jones, 980 F.3d 1098, 1104 (6th Cir. 2020) (citing U.S.S.G. § 1B1.13

(U.S. Sent’g Comm’n 2006)). That policy statement, as the majority observes, did little to

explicate what amounted to extraordinary and compelling reasons for a sentence reduction. See

Maj. Op. 6–7. Instead, it merely “parroted the ‘extraordinary and compelling reasons warrant [a

sentence] reduction’ language from § 3582(c)(1)(A).” Jones, 980 F.3d at 1104. The Sentencing

Commission later amended the commentary’s application notes in 2007 and 2018 to describe

certain circumstances under which “extraordinary and compelling reasons” exist. See United

States v. Brooker, 976 F.3d 228, 232–33 (2d Cir. 2020) (walking through the amendments). By

2018, the Commission’s definition of “extraordinary and compelling reasons” included “events

relating to the traditional categories of the imprisoned person’s health, age, or family

circumstances, and to clarify that such circumstances did not have to be unforeseen at the time of

sentencing.” Id. (citing U.S.S.G. § 1B1.13 nn.1, 2 (U.S. Sent’g Comm’n 2018)). Even then,

however, the Sentencing Commission did not define “criteria to be applied” when evaluating the

reasons, cf. 28 U.S.C. § 994(t), and left open the possibility that other, undefined reasons would

warrant a sentence reduction under § 3582(c)(1)(A), see Brooker, 976 F.3d at 233.3

The Sentencing Commission’s inaction left the BOP “to fill the void and create the

standards for extraordinary and compelling reasons that warrant resentencing.”

Hopwood, supra, at 103. In its original form, § 3582(c)(1)(A) allowed only the BOP’s Director

to file motions for compassionate release. Jones, 980 F.3d at 1104. The BOP rarely exercised

this power, however, and subsequent investigation revealed that the BOP did “not properly

3

The Sentencing Commission recently signaled its interest in revisiting its existing policy statement,

releasing a list of proposed policy priorities that included “[c]onsideration of possible amendments to §1B1.13 . . . to

. . . further describe what should be considered extraordinary and compelling reasons for sentence reductions under

18 U.S.C. § 3582(c)(1)(A).” Proposed Priorities for Amendment Cycle, 87 Fed. Reg. 60,438, 60,439 (Oct. 5, 2022).

No. 21-3400 United States v. McCall Page 29

manage the compassionate release program,” its “implementation of the program [was]

inconsistent and result[ed] in ad hoc decision making,” and it “ha[d] no timeliness standards for

reviewing . . . requests.” U.S. DEP’T OF JUST. OFFICE OF THE INSPECTOR GENERAL, THE FEDERAL

BUREAU OF PRISONS’ COMPASSIONATE RELEASE PROGRAM 11 (2013),

https://www.oversight.gov/sites/default/files/oig-reports/e1306.pdf. As we have observed, the

BOP’s mismanagement of the compassionate-release process had a direct and consequential

impact on imprisoned individuals by preventing them from obtaining relief under

§ 3582(c)(1)(A). See United States v. Elias, 984 F.3d 516, 518–19 (6th Cir. 2021) (remarking

that BOP rarely exercised its power to bring compassionate release motions on behalf of

imprisoned individuals); Jones, 980 F.3d at 1104 (observing that BOP approved only 6% of

5,400 compassionate-release applications received between 2013 and 2017).

In 2018, Congress moved to increase the availability of compassionate release by

reforming § 3582(c)(1)(A) in the First Step Act. The Act altered the compassionate-release

landscape by shifting power from the BOP and Sentencing Commission to the district courts in

two ways. First, the Act “ousted the BOP from its preclusive gatekeeper position” by

empowering imprisoned individuals to file motions for compassionate release without the

support of the BOP under certain circumstances. Jones, 980 F.3d at 1105. Second, until the

Sentencing Commission issues guidance for defendant-filed motions, the Act freed the district

courts to define the phrase “extraordinary and compelling” without reference to the Sentencing

Commission’s guidance. See United States v. Sherwood, 986 F.3d 951, 953 (6th Cir. 2021). The

sum of these changes was to empower district courts to “define ‘extraordinary and compelling’

on their own initiative” when evaluating motions filed directly by incarcerated persons. Elias,

984 F.3d at 519–20.

Read against this historical backdrop, there is nothing in the First Step Act or

§ 3582(c)(1)(A) that precludes a district court from finding that a nonretroactive change in law is

an “extraordinary and compelling reason” for a sentence reduction under the appropriate

circumstances. As recounted above, Congress has imposed and later removed several limitations

on the district courts’ discretion to define the phrase “extraordinary and compelling reasons”

since § 3582(c)(1)(A)’s enactment. Today, Congress imposes only one operative textual

No. 21-3400 United States v. McCall Page 30

limitation on the phrase: “[r]ehabilitation of the defendant alone” cannot constitute “an

extraordinary and compelling reason” for a sentence reduction. 28 U.S.C. § 994(t). Congress

has otherwise eschewed providing a rigid definition of the reasons that may be “extraordinary

and compelling” under § 3582(c)(1)(A), allowing the district courts to resolve in the first

instance whether a change in law, or any other relevant fact, constitutes an extraordinary and

compelling reason for a sentence reduction in the context of an imprisoned person’s unique

circumstances. Given this historical context, we should join the First, Fourth, Ninth, and Tenth

Circuits in declining to read additional limitations into § 3582(c)(1)(A). See United States v.

Ruvalcaba, 26 F.4th 14, 25–28 (1st Cir. 2022); United States v. McCoy, 981 F.3d 271, 286 (4th

Cir. 2020); Chen, 48 F.4th at 1098–1101; United States v. McGee, 992 F.3d 1035, 1047–48 (10th

Cir. 2021); see also Concepcion, 142 S. Ct. at 2402 (cautioning against “[d]rawing meaning from

silence” in the sentencing context (quoting Kimbrough v. United States, 552 U.S. 85, 103

(2007)).4

None of this is to say that nonretroactive changes in law will amount to “extraordinary

and compelling reasons” for a sentence reduction in all cases under § 3582(c)(1)(A). Indeed, the

role of a district court in resolving a motion for compassionate release filed under

§ 3582(c)(1)(A) is not to decide whether a change in law is itself extraordinary or compelling.

The district court must instead evaluate whether there are “extraordinary and compelling

reasons” to “reduce the sentence when a particular statutory change is considered in the context

of the defendant’s individualized circumstances.” Ruvalcaba, 26 F.4th at 32 (Barron, J.,

concurring). This individualized analysis will necessarily lead to different results in different

cases, just as it does in many cases arising under § 3582(c)(1)(A), as district courts work through

the particular facts raised by differently situated imprisoned individuals. Compare, e.g., United

States v. Lawrence, No. 17-20259, 2021 WL 859044, at *1 (E.D. Mich. Mar. 8, 2021) (finding

extraordinary and compelling reasons warranting release where the defendant was obese and

4

The majority’s decision puts us in conflict with these courts and further entrenches the circuit split on this

issue. See United States v. Andrews, 12 F.4th 255, 260–62 (3d Cir. 2021) (adopting the majority’s position); United

States v. Thacker, 4 F.4th 569, 573–75 (7th Cir. 2021) (same); United States v. Crandall, 25 F.4th 582, 585–86 (8th

Cir. 2022) (same); Jenkins, 50 F.4th at 1197–1200 (same). Unless and until the Supreme Court takes up the issue,

McCall and those like him who are within these jurisdictions will be prevented from having district courts consider

the totality of their circumstances when deciding whether to modify their sentences.

No. 21-3400 United States v. McCall Page 31

demonstrated that his guideline range would have been significantly lower following Havis),

with United States v. Lewis, No. CR 0:14-362-JFA, 2021 WL 4596450, at *9 (D.S.C. Oct. 6,

2021) (finding that a nonretroactive change in law did not amount to extraordinary and

compelling reasons for a sentence reduction in part because the district court would have

imposed the same sentence irrespective of the change in law).

Turning to the present case, I would hold that the district court was required to consider

each of the “extraordinary and compelling reasons” identified in McCall’s motion, including the

impact of the COVID-19 pandemic, his rehabilitation efforts since sentencing, his reentry plan,

and the fact that he would face a shorter sentencing guideline range if he were sentenced after

our decision in Havis. Of course, the district court was not required to accept McCall’s

arguments or to order a modification of his sentence. See Concepcion, 142 S. Ct. at 2405. The

district court could have found, for instance, that McCall’s relatively brief motion for

compassionate release merely identified various facts and failed to demonstrate that these factors

were extraordinary and compelling in the context of his own circumstances. Or the district court

could have reasoned that McCall’s conditions of confinement, when considered alongside the

fact that he had already served a sentence longer than recommended under the current guidelines,

warranted taking a second look at his sentence to account for the developments that had occurred

since his original sentencing. For our purposes, it would be sufficient that the district court

consider these arguments and provide a reasoned explanation for its decision. Jones, 980 F.3d at

1112–16.

The majority, by contrast, holds that the district court was precluded as a matter of law

from even considering McCall’s arguments related to our decision in Havis. The majority’s

primary argument in support of its contrary decision rests on a textual analysis of the phrase

“extraordinary and compelling reasons.” Drawing on a dictionary definition from the time of

§3582(c)(1)(A)’s adoption, the majority observes that “extraordinary and compelling reasons”

are those that are “unusual, rare, and forceful.” Maj. Op. 9. In the majority’s view, the situation

in which McCall finds himself is neither extraordinary nor compelling. Nonretroactive changes

in law, the argument goes, are not “extraordinary” because “in federal sentencing the ordinary

practice is to apply new penalties to defendants not yet sentenced, while withholding that change

No. 21-3400 United States v. McCall Page 32

from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012). And

the fact that McCall is serving a sentence imposed based on a prior interpretation of the law is

not “compelling” because the sentence was lawful at the time it was imposed. The majority’s

argument, if appealing at a superficial level, falls apart in the compassionate-release context.

As a preliminary matter, the majority’s free-floating textual analysis demonstrates the

peril of divorcing statutes from their context. Compassionate-release decisions do not exist in a

vacuum. When an imprisoned person moves for compassionate release based on their advanced

age or “deteriorating physical or mental health because of the aging process,” U.S.S.G. § 1B1.13

n.1(A)(ii)(III), (B), § 3582(c)(1)(A) does not direct the district court to decide whether aging or

its associated challenges are themselves unusual or rare. No doubt they are not, especially given

today’s aging prison population. See Daniel Litwok et al., Causes of Aging in the Federal Prison

Population and a Comparison to States, 45 Crim. Just. Rev. 129, 129 (2020) (observing that “the

population of federal inmates over the age of 50 continues to be the fastest growing age segment

among prison populations”). Rather, the district court must evaluate whether the person’s age or

health challenges, considered in the context of that person’s particular circumstances, present

extraordinary and compelling reasons to reevaluate the person’s sentence. The same is true

when an imprisoned person argues that a nonretroactive change in law supports their

compassionate-release motion. By ignoring the context in which compassionate-release

decisions are made, the majority walls itself off from the context that should guide our

interpretation of Congress’s work and substitutes its own inflexible judgment for the reasoned

discretion of the district courts.

There is an even more fundamental problem with the majority’s textual analysis: it

writes into § 3582(c)(1)(A) what Congress declined to include. “Congress has only placed two

limitations directly on extraordinary and compelling reasons: the requirement that district courts

are bound by the Sentencing Commission's policy statement, which does not apply here, and the

requirement that ‘[r]ehabilitation . . . alone’ is not extraordinary and compelling.” Chen, 48

F.4th at 1098. The majority purports to read § 3582(c)(1)(A) to impose a third limitation:

nonretroactive changes in law, whether alone or in combination with other factors, cannot be

extraordinary and compelling reasons for compassionate release. The problem, of course, is that

No. 21-3400 United States v. McCall Page 33

Congress has had more than three decades to impose such a limitation, but never has. Instead,

Congress adopted a broad and ambiguous phrase and left it to different institutions—first the

Sentencing Commission and BOP, and now the district courts—to sort out what the phrase

means in practice. Our circuit has long declined to add restrictions to Congress’s chosen text.

See, e.g., Gen. Med., P.C. v. Azar, 963 F.3d 516, 521 (6th Cir. 2020) (stating that courts “should

not add language that Congress has not included”). Today, the majority does exactly that.

To support its reading of § 3582(c)(1)(A), the majority also asserts several arguments

under the banner of what it calls the structure of federal sentencing law. According to the

majority, allowing district courts to find that nonretroactive changes in law constitute

extraordinary and compelling reasons under § 3582(c)(1)(A) would subvert Congress’s choice

not to make those changes retroactive. See Maj. Op. 11–12. As the Fourth Circuit has aptly

explained, however, “there is a significant difference between automatic vacatur and

resentencing of an entire class of sentences—with its avalanche of applications and inevitable

resentencings—and allowing for the provision of individual relief in the most grievous cases.”

McCoy, 981 F.3d at 286–87 (internal quotation marks and citation omitted); see also Chen, 48

F.4th at 1100 (same). In other words, the ability of some incarcerated individuals to access

discretionary relief in no way subverts Congress’s broader decision not to confer a broader,

automatic entitlement to all such individuals.

The majority’s second structural argument is even more problematic. For several pages,

the majority labors to explain why McCall would not be able to obtain the benefit of our Havis

decision through collateral proceedings under 28 U.S.C. § 2255. See Maj. Op. 12–14. Of

course, the issue of whether McCall is entitled to post-conviction relief is not before us. And

more to the point, McCall’s entitlement to relief under § 2255 has no bearing on whether he has

shown that extraordinary and compelling reasons warrant a sentence reduction under

§ 3582(c)(1)(A). A comparison between the two statutes illustrates the flaw in the majority’s

analysis. Although the majority groups collateral attacks and compassionate release under the

phrase “post-conviction relief,” Maj. Op. 13, the two serve entirely different purposes and are

governed by entirely different procedural and substantive rules. When a court grants a habeas

petition, it deems the sentence invalid. See Daniels v. United States, 532 U.S. 374, 379 (2001).

No. 21-3400 United States v. McCall Page 34

By contrast, a grant of compassionate release does not invalidate the relevant sentence; rather, it

recognizes that a holistic consideration of the defendant’s circumstances entitles them to early

release—a remedy that Congress specifically codified in § 3582(c)(1). Ruvalcaba, 26 F.4th at

27; McCoy, 981 F.3d at 287; United States v. Maumau, 993 F.3d 821, 837 (10th Cir. 2021);

Appellant Supp. Br. at 17–18.

The majority attempts to bridge the gap between the two forms of relief in two ways.

First, the majority posits that Congress knew of the Supreme Court’s limitations on the

retroactive application of new rules of law in post-conviction proceedings but did not clearly

abrogate them in § 3582(c)(1)(A). Maj. Op. 13. According to the majority, if Congress intended

for § 3582(c)(1)(A) to operate outside the bounds of the retroactivity rules applicable in

collateral-review proceedings, it would have made that intention clear. But there is simply no

question that motions filed under § 3582(c)(1)(A) are not subject to the retroactivity rules

applicable in collateral proceedings. That is clear from Concepcion, 142 S. Ct. 2389, a decision

that does not once address the limitations the majority suggests are applicable here. In fact, prior

to the majority’s opinion and the decisions it relies upon for this point, Congress would have had

no reason to think that it needed to distance § 3582(c)(1)(A) from the rules applicable in post-

conviction proceedings. Thus, Congress’s silence is meaningful, but not for the reasons

identified by the majority.5

Second, the majority justifies its reliance on post-conviction rules by asserting that

permitting district courts to find that a nonretroactive change in law constitutes an “extraordinary

and compelling reason” for release under § 3582(c)(1)(A) would necessarily cast doubt on the

validity of the imprisoned person’s sentence, an issue that the Supreme Court has said must be

raised through “habeas corpus (or similar state) remedies.” Wilkinson v. Dotson, 544 U.S. 74, 81

(2005). There are multiple shortcomings in this argument. To begin with, the majority once

5

The majority’s overreading of Congress’s inaction shows why “[d]rawing meaning from silence is

particularly inappropriate’ in the sentencing context, ‘for Congress has shown that it knows how to direct sentencing

practices in express terms.’” Concepcion, 142 S. Ct. at 2402 (quoting Kimbrough, 552 U.S. at 103). The majority’s

position is that Congress’s purported silence on this issue amounts to an implicit adoption of a set of strict

procedural rules developed in an entirely different area of law. Congress may have the power to make such a

dramatic change to the compassionate-release process, but nothing in § 3582(c)(1)(A)’s history or Congress’s

approach to sentencing issues suggests that it would do so through mere silence.

No. 21-3400 United States v. McCall Page 35

again misapprehends the significance of compassionate release. A finding that extraordinary and

compelling reasons exist in part due to a nonretroactive change in law does not—necessarily or

otherwise—invalidate an imprisoned person’s conviction. Rather, as in the case where the

person’s age or health are found to be extraordinary and compelling, the finding simply reflects

that an intervening event provides grounds to reconsider the length of the person’s sentence and

allows the district court to proceed to consider whether a sentence modification is in fact

warranted.

Further, the majority’s argument on this score is fatally undercut by a point it makes just

a few paragraphs later. The majority concedes, as it must, that district courts may consider

nonretroactive legal developments after finding that extraordinary and compelling reasons exist.

See Maj. Op. 14; see also Concepcion, 142 S. Ct. at 2402 n.6. The majority does not—and

cannot—explain why allowing district courts to consider nonretroactive changes in law at the

“extraordinary and compelling” stage would circumvent the post-conviction process, but

allowing them to consider those same legal developments when weighing the 18 U.S.C.

§ 3553(a) factors would not. The majority’s inability to reconcile this fundamental conflict in its

reasoning demonstrates the error in basing a decision on post-conviction rules that have no

bearing here.

Lastly, the majority offers an historical argument that is at odds with the history

recounted earlier in its decision. Based on two-page historical survey of a prior version of the

compassionate-release statute, a decision by a federal district court in Michigan from over four

decades ago, and the action (and inaction) of the BOP and Sentencing Commission discussed

earlier, the majority declares that compassionate release has never been used to reduce sentences

based on nonretroactive changes in law. Maj. Op. 15–17. To be sure, the majority and I agree

that the resolution of the issue before us should be informed by historical context and practice.

But the value of the historical record in this case is derived from its power to explain Congress’s

motivation in passing the First Step Act, not in defining the universe of extraordinary and

compelling reasons warranting compassionate release under § 3582(c)(1)(A). The majority turns

No. 21-3400 United States v. McCall Page 36

history on its head by suggesting that Congress shackled the district courts to an understanding

of compassionate release that it explicitly and emphatically repudiated in the First Step Act.6

In the end, nothing in § 3582(c)(1)(A)’s history, text, or purpose suggests that Congress

imposed an unwritten yet unyielding limitation on the district courts’ ability to find that

nonretroactive changes in law constitute extraordinary and compelling reasons for a sentence

reduction under the appropriate circumstances. I therefore decline to join the majority in

rewriting § 3582(c)(1)(A) in a way that overrides Congress’s efforts to expand access to

compassionate release, limits the ability of imprisoned individuals to present the true account of

their individual circumstances at resentencing, and breaks with the “longstanding tradition in

American law” that “a judge at sentencing considers the whole person before him or her as an

individual.” Concepcion, 142 S. Ct. at 2395 (internal quotation marks omitted). I respectfully

dissent.

6

The majority defends its historical analysis in a footnote asserting that Congress intended for the First Step

Act to alter only the procedural, not the substantive, aspects of the compassionate-release process. Maj. Op. 17 n.5.

But that point is impossible to reconcile with observations made elsewhere in the majority’s opinion. Indeed, there

is no dispute that Congress passed the First Step Act in part to increase the use of compassionate release. See id. at 7

(citing a section of the First Step Act entitled “Increasing the Use and Transparency of Compassionate Release”);

see also Jones, 980 F.3d at 1104–05. Nor is there any dispute that Congress sought to achieve that substantive end

through procedural changes to § 3582(c)(1)(A). See Maj. Op. 8 (describing the “two ways” in which the First Step

Act changed compassionate release). Lastly, “[e]veryone agrees” that the practical effect of Congress’s procedural

changes was to “enhance[] district courts’ discretion to grant compassionate release.” Id. The majority’s

inconsistency on this point is emblematic of its broader failure to appreciate how Congress has determined the

availability of compassionate release not by circumscribing the phrase “extraordinary and compelling reasons” but

by vesting discretion to define the phrase in different institutions over time.

No. 21-3400 United States v. McCall Page 37

_________________

DISSENT

_________________

JULIA SMITH GIBBONS, Circuit Judge, dissenting. At the time we heard argument in

this case, my best assessment of the law was that nonretroactive changes in sentencing law could

not constitute “extraordinary or compelling reasons” for granting compassionate release. See

United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021), cert. denied, 142 S. Ct. 2771 (2022).

In my judgment, the broad language of the Supreme Court’s recent opinion in United States v.

Concepcion, 142 S. Ct. 2389 (2022), makes adherence to that position impossible. Because the

majority opinion fails to fairly apply the scope and spirit of Concepcion, I respectfully dissent.

Although Concepcion deals with § 404(b) of the First Step Act, it very specifically

undertakes in Part II a broad and expansive view of sentencing discretion. 142 S. Ct. at 2398-

401. Concepcion warns that 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.” Id. at 2400. That “venerable tradition of discretion” applies in

full to both “initial sentencings and sentence modification proceedings.” Id. at 2401 n.4.

Following Concepcion’s instruction, we should be reluctant to manufacture our own limits on a

district court’s discretion in determining “extraordinary or compelling reasons” for

compassionate release without a clear statement from Congress.

The majority reads Concepcion more narrowly. It claims that Concepcion’s broad

statement of sentencing powers does not apply to the threshold question of whether a prisoner

has established an extraordinary and compelling reason for compassionate release. Maj. Op. at

22. In the majority’s interpretation, this broad discretion only arises in the resentencing itself,

not the threshold decision of whether “extraordinary and compelling” circumstances exist. But

such framing contradicts the language of Concepcion, which incorporates consideration of

nonretroactive changes at the threshold stage:

In many cases, a district court is prohibited from recalculating a Guidelines range

in light of nonretroactive Guidelines amendments, but the [district] court may find

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those amendments to be germane when deciding whether to modify a sentence at

all, and if so, to what extent.

Concepcion, 142 S. Ct. at 2400 (emphasis added). If a district court finds a nonretroactive

change in law “germane” to its decision to resentence the defendant, then that change is a factor

that the district court can properly consider when determining whether “extraordinary and

compelling reasons” exist for compassionate release.1

These inherent sentencing powers are the backdrop against which Congress must carve

out exceptions. However, “Congress has created only two relevant limitations that control the

district court’s reading of the [“extraordinary and compelling”] standard: One for controlling

Sentencing Commission policy statements, and the other for ‘rehabilitation . . . alone.’” United

States v. Jenkins, 50 F.4th 1185, 1210 (D.C. Cir. 2022) (Ginsburg, J., concurring in part,

dissenting in part). The majority here cites no further congressional limitation against

nonretroactive changes in sentencing law. Instead, it relies on silence. See, e.g., Maj. Op. at 19

(explaining that the Sentencing Commission’s policy statement “never included nonretroactive

legal developments”); id. (inferring that “Congress, no doubt, had this practice [of only referring

to unforeseeable circumstances for compassionate release] in mind when it amended . . . the

statute in 2018”). Silence is insufficient. “Nothing in the text and structure of the First Step Act

expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing

discretion.” Concepcion, 142 S. Ct. at 2401. The majority would have us use every possible tool

of interpretation to fashion a high bar for what constitutes “extraordinary and compelling

reasons” for compassionate release. However, such manipulation effectively circumvents the

Supreme Court’s directive of broad sentencing discretion.

At each turn, the majority is contradicted by Concepcion. It emphasizes background

principles like finality, see Maj. Op. at 11, but “[n]o one doubts the importance of finality. Here,

however, the Court interprets a statute whose very purpose is to reopen final judgments.”

1

The majority suggests that my reasoning takes this sentence out of context in the Concepcion opinion.

Maj. Op. at 23 n.7. Yet, Concepcion clearly makes a broad and undeniable statement about resentencing discretion

which the opinion does not limit to one part of the First Step Act. Concepcion’s background presumption of

discretion, in which the Court expressly includes retroactive changes in sentencing law, is not overcome by

speculating about how Congress would fill in the definition of “extraordinary and compelling reasons.”

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Concepcion, 142 S. Ct. at 2398 n.3. It advises looking to the structure and history of federal

sentencing law, see Maj. Op. at 13-20, but then fails to give weight to the broad historical

sentencing power of the judiciary which “dates back to before the founding.” Concepcion,

142 S. Ct. at 2399. And it draws interpretive meaning from congressional silence, despite a

warning against doing so “in the sentencing context, for Congress has shown that it knows how

to direct sentencing practices in express terms.” Concepcion, 142 S. Ct. at 2402 (internal

quotations and citation omitted).

When the Supreme Court speaks this broadly, we cannot ignore it. Because I see no way

to both adhere to Concepcion and join my colleagues in the majority, I respectfully dissent.