Petition for Writ of Certiorari — Jerry L. Brown, Petitioner v. United States
Supreme Court briefJul 27, 2023
Ask Donna
What actually matters in this document.
Text
No.
In the Supreme Court of the United States
JERRY L. BROWN, PETITIONER,
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
NICOLE L. MASIELLO
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019
NATE NIEMAN
ATTORNEY AT LAW
329 18th Street
Rock Island, IL 61201
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
SEAN A. MIRSKI
DANA OR
MINJAE KIM
KATHRYN C. REED
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
QUESTION PRESENTED
This case presents a clear, recognized, and
intractable circuit conflict regarding an important issue
related to the implementation of the First Step Act of
2018. The First Step Act of 2018, for the first time,
permitted prisoners to move for a sentence reduction
under what is informally known as the “compassionate
release” statute, 18 U.S.C. § 3582(c)(1)(A). The Act also
made transformative reductions in the minimum
statutory penalties for certain crimes. See First Step Act,
132 Stat. 5220, § 401.2. Relevant here, the Act reduced the
mandatory minimum sentence for petitioner’s crime of
conviction from life without parole to 25 years.
To be eligible for a resentencing under
§ 3582(c)(1)(A), a prisoner must establish that
“extraordinary and compelling reasons” warrant it.
Petitioner sought resentencing on the basis of the First
Step Act’s non-retroactive change in the penalty for his
crime. The trial court denied the motion, and the Seventh
Circuit affirmed. The panel acknowledged the entrenched
4-6 circuit split, but declared itself bound by Seventh
Circuit precedent dictating that non-retroactive changes
in law categorically cannot be “extraordinary and
compelling reasons” for a resentencing. That holding was
outcome-determinative, and this case is a perfect vehicle
for resolving the conflict over this important question.
This case is an especially appropriate vehicle to
resolve this question because the law in six circuits—
including the Seventh—conflicts with a Sentencing
Commission Guideline, set to take effect on November 1,
under which petitioner is eligible for resentencing.
The question presented is:
Whether non-retroactive changes in law can be
“extraordinary and compelling reasons” warranting
resentencing under 18 U.S.C. § 3582(c)(1)(A).
(i)
RELATED PROCEEDINGS
United States District Court (C.D. Ill.):
United States v. Brown, No. 4:12-cr-40031
(Aug. 4, 2022)
United States Court of Appeals (7th Cir.):
United States v. Brown, No. 22-2465 (Apr. 28, 2023)
(ii)
TABLE OF CONTENTS
Page
Opinions Below ..................................................................... 1
Jurisdiction ........................................................................... 1
Statutory Provisions Involved ............................................ 1
Statement of the Case.......................................................... 1
Reasons for Granting the Petition ..................................... 8
I. There Is a Clear and Intractable Conflict Over
a Significant Question................................................... 8
II. The Question Presented Is Important and
Warrants Review in this Case ................................... 23
Conclusion ........................................................................... 31
Appendix A: Seventh Circuit Court of Appeals
decision (Apr. 28, 2023) .............................. 1a
Appendix B: District court text order denying
petitioner’s motion for
compassionate release
(Aug. 4, 2022) .............................................. 6a
Appendix C: 18 U.S.C. § 3582 .......................................... 8a
Appendix D: 21 U.S.C. § 841 (2012) .............................. 11a
Appendix E: 21 U.S.C. § 841 (2022) .............................. 15a
Appendix F: Amendments to the U.S.
Sentencing Guidelines Manual
(effective Nov. 1, 2023)............................. 19a
Appendix G: Sentencing Computation Data
(as of July 12, 2023) .................................. 21a
(iii)
TABLE OF AUTHORITIES
Cases
Page(s)
Concepcion v. United States,
142 S. Ct. 2389 (2022) ........................................................ 7
Dillon v. United States,
560 U.S. 817 (2010) ............................................................ 3
Graham v. Florida,
560 U.S. 48 (2010) ............................................................ 27
Jones v. Hendrix,
143 S. Ct. 1857 (2023) ...................................................... 26
United States v. Andrews,
12 F.4th 255 (3d Cir. 2021) ................................. 21, 22, 28
United States v. Arriola-Perez,
No. 21-8072, 2022 WL 2388418
(10th Cir. July 1, 2022) .................................................... 24
United States v. Brice,
No. 21-6776, 2022 WL 3715086
(4th Cir. Aug. 29, 2022) ................................................... 24
United States v. Brown,
No. 22-2465, 2023 WL 3144553
(7th Cir. Apr. 28, 2023).................................................... 25
United States v. Chen,
48 F.4th 1092 (9th Cir. 2022) .................. 7, 8, 9, 10, 11, 12
United States v. Craft,
No. 22-2708, 2023 WL 3717545
(3d Cir. May 30, 2023) ..................................................... 25
United States v. Crandall,
25 F.4th 582 (8th Cir. 2022) ...................................... 22, 28
United States v. Edmond,
No. 22-1443, 2023 WL 3736880
(6th Cir. May 31, 2023).................................................... 24
(iv)
v
Cases—Continued
Page(s)
United States v. Gaskins,
No. 22-2518, 2023 WL 3299986
(7th Cir. May 8, 2023)...................................................... 25
United States v. Hammonds,
No. 22-2406, 2023 WL 4198041
(3d Cir. June 27, 2023) .............................................. 24, 25
United States v. House,
No. 22-3129, 2023 WL 4241628
(8th Cir. June 29, 2023) ................................................... 24
United States v. Jarvis,
999 F.3d 442 (6th Cir. 2021) ............................... 18, 19, 28
United States v. Jenkins,
50 F.4th 1185 (D.C. Cir. 2022) ............ 9, 19, 20, 21, 24, 28
United States v. Johnson,
No. 21-241-CR, 2022 WL 102075
(2d Cir. Jan. 11, 2022) ....................................................... 9
United States v. King,
40 F.4th 594 (7th Cir. 2022) .............................................. 8
United States v. Ling,
No. 22-2464, 2023 WL 2674411
(7th Cir. Mar. 29, 2023) ................................................... 25
United States v. Maumau,
993 F.3d 821 (10th Cir. 2021) ............................. 14, 15, 16
United States v. McCall,
56 F.4th 1048 (6th Cir. 2022) .................................. 8, 9, 18
United States v. McCoy,
981 F.3d 271 (4th Cir. 2020) ......................... 12, 13, 19, 20
United States v. McIntosh,
No. 22-2326, 2023 WL 3409487
(7th Cir. May 12, 2023).................................................... 24
United States v. McMaryion,
64 F.4th 257 (5th Cir. 2023) ................................ 22, 24, 28
vi
Cases—Continued
Page(s)
United States v. Peoples,
41 F.4th 837 (7th Cir. 2022) .............................................. 7
United States v. Rodriguez-Mendez,
65 F.4th 1000 (8th Cir. 2023) ............................................ 9
United States v. Roper,
No. 33-30021, 2023 WL 4360600 (9th Cir.
July 6, 2023) ..................................................................... 24
United States v. Rose,
837 F. App’x 72 (2d Cir. 2021) ........................................ 23
United States v. Ruvalcaba,
26 F.4th 14 (1st Cir. 2022) .................................... 9, 13, 14
United States v. Smith Castillo,
Nos. 21-168-cr, 21-172-cr,
2022 WL 3581308 (2d Cir. Aug. 22, 2022) ..................... 24
United States v. Thacker,
4 F.4th 569 (7th Cir. 2021) .................... 1, 7, 16, 17, 18, 27
United States v. Williams,
No. 22-13150, 2023 WL 4234185
(11th Cir. June 28, 2023) ........................................... 23, 24
Statutes
18 U.S.C.
§ 3553(a) ...................................................................... 10, 11
§ 3582 .................................................................................. 1
§ 3582(b) ............................................................................. 3
§ 3582(c)(1)(A) ........................................................ 1, 3, 4, 6
§ 3582(c)(1)(A)(i) ............................................................ 7, 8
vii
Statutes—Continued
Page(s)
21 U.S.C.
§ 841 ................................................................................ 1, 4
§ 841(a)(1) ........................................................................... 6
§ 841(b) ........................................................................... 4, 6
§ 841(b)(1)(A) ................................................................. 5, 6
§ 846 .................................................................................... 6
§ 851(d)(1) ........................................................................... 4
§ 960 .................................................................................... 4
§ 960(b) ............................................................................... 4
§ 960(b)(1)(A)-(H) .............................................................. 5
28 U.S.C.
§ 994(t) .................................................................... 3, 10, 21
§ 1254(1) .............................................................................. 1
First Step Act, Pub. L. No. 115-391,
132 Stat. 5194 (2018) ................................................. 4, 5, 7
Sentencing Reform Act of 1984,
Pub. L. No. 98-473, 98 Stat. 1837 (1984) ..................... 3, 4
U.S. Sentencing Commission Authorities
U.S. Sent’g Comm’n, Compassionate Release
Data Report: Fiscal Year 2023, 2nd Quarter
(October 1, 2022, Through March 31, 2023)
(2023) ................................................................................ 25
U.S. Sent’g Guidelines Manual app. C supp.,
amend. 799 (U.S. Sent’g Comm’n 2016) .......................... 4
Other Authorities
3 Fed. Prac. & Proc. Crim. § 638.2 (5th ed.) ...................... 2
88 Fed. Reg. 28254 (May 3, 2023) ............................. 5, 6, 26
viii
Other Authorities—Continued
Page(s)
Anthony Passela, Stacking the Deck: How the
Eighth Circuit’s Decision in United States v.
Crandall Threatens the First Step Act’s Bipartisan Criminal Justice Reforms,
68 Vill. L. Rev. 97 (2023) ................................................. 22
Brief for the United States in Opposition,
Fraction v. United States (No. 22-5859) ....................... 29
Brief for the United States in Opposition,
Jarvis v. United States (No. 21-568) ................... 6, 29, 30
Charles Doyle, Cong. Rsch. Serv., R47195, Federal Compassionate Release After the First
Step Act (2022) .......................................................... 22, 23
Claire M. Griffin, An Extraordinary and Compelling Case for Judicial Discretion: Nonretroactive Sentencing Changes and Compassionate
Release, 54 U. Tol. L. Rev. 237 (2023) ........................... 22
Dawinder S. Sidhu, Sentencing Guidelines Abstention, 60 Am. Crim. L. Rev. 405 (2023) ...................... 2
Jaden Lessnick, Case Note, Uncompassionate
Incarceration: United States v. Thacker and Its
Impact on Nonretroactivity-Based Compassionate Release, U. Chi. L. Rev. Online (May 12,
2022) .................................................................................. 22
Mary Price, The United States Sentencing Commission, Compassionate Release, and Judicial
Discretion: The 2022-2023 Amendment Cycle,
35 Fed. Sent’g Rep. 175 (2023) ........................................ 2
Michael T. Hamilton, Opening the Safety Valve: A
Second Look at Compassionate Release under
the First Step Act, 90 Fordham L. Rev. 1743
(2022) ................................................................................ 22
ix
Other Authorities—Continued
Page(s)
Off. of the Inspector Gen., U.S. Dep’t of Just., The
Federal Bureau of Prisons’ Compassionate Release Program (Apr. 2013) ............................................... 4
Olivia Williams, Note, Taking the Second Step:
Section 924(c) Sentencing Disparities as an Extraordinary and Compelling Reason for Compassionate Release, 63 Wm. & Mary L. Rev.
Online 27 (2022) ............................................................... 22
Significant Federal Court Decisions,
58 Crim. L. Bull. 885 (2022) .............................................. 2
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-5a) is
unpublished but available at 2023 WL 3144553. The
minute order of the district court denying compassionate
release (App. 6a-7a) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
April 28, 2023. App. 1a. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions, 18 U.S.C. § 3582
and 21 U.S.C. § 841, are reproduced in the petition
appendix, Pet. App. 8a-18a.
STATEMENT OF THE CASE
This case presents a square and indisputable conflict
over a significant question involving the implementation
of the First Step Act of 2018: whether non-retroactive
changes in law can be among the “extraordinary and
compelling reasons” warranting a sentence reduction
under 18 U.S.C. § 3582(c)(1)(A).
In the proceedings below, the Seventh Circuit
declared itself bound by a prior panel decision that held
that non-retroactive changes in federal law cannot ever
constitute an “extraordinary and compelling” reason for
resentencing. In the earlier decision, United States v.
Thacker, 4 F.4th 569 (7th Cir. 2021), the Seventh Circuit
panel, after circulating the decision to the en banc court
under Circuit Rule 40(e), expressly rejected the position
of the Fourth and Tenth Circuits and adopted the contrary
position of the Sixth and Eighth Circuits. The same issue
resolved in Thacker was raised and resolved at each stage
of this case and was dispositive below: the Seventh Circuit
(1)
2
affirmed the denial of petitioner’s motion because the
extraordinary disparity between the mandatory
minimum for his crime when he committed it (LWOP) and
the mandatory minimum for the same crime today (25
years), categorically cannot be an “extraordinary and
compelling” reason sufficient to authorize resentencing.
There are no conceivable obstacles to resolving this
question in this Court.
This case readily satisfies all the traditional criteria
for granting review. The conflict is clear, acknowledged,
and entrenched. It has already been recognized by
multiple courts and commentators.1 Four circuits have
explicitly held that changes in criminal penalties can
constitute an “extraordinary and compelling” reason to
reduce a criminal sentence, while six circuits have held the
precise opposite. Further percolation is useless: the
arguments have been thoroughly vetted on each side, and
there is no realistic prospect that either side will relent.
The remaining circuits are simply left to pick sides—while
prisoners are left with vastly different access to
compassionate release based on the fortuity of the venue
where they happened to be criminally prosecuted.
The existing situation is intolerable. The question
presented raises legal and practical issues of surpassing
importance, and its correct disposition is critical to the
nationwide administration of federal criminal justice.
Prisoners should not be forced to serve decades more in
E.g., 3 Fed. Prac. & Proc. Crim. § 638.2 & n.16 (5th ed.) (noting
and describing the “circuit split”); Mary Price, The United States
Sentencing Commission, Compassionate Release, and Judicial
Discretion: The 2022-2023 Amendment Cycle, 35 Fed. Sent’g Rep.
175, 178 (2023) (“A complicated and multilayered circuit split has
developed.”); Significant Federal Court Decisions, 58 Crim. L.
Bull. 885, 892-93 (2022) (“[T]he federal circuits are split concerning
this issue.”); Dawinder S. Sidhu, Sentencing Guidelines Abstention,
60 Am. Crim. L. Rev. 405, 438 (2023) (noting split).
1
3
federal prison on the basis of criminal penalties Congress
has vastly reduced without even the opportunity to argue
that those changes warrant a reduction in sentence.
Prisoners in four circuits have the opportunity to have
these disparities considered by the sentencing court in a
compassionate release motion; yet in the Third, Fifth,
Sixth, Seventh, Eighth, and D.C. Circuits they are
categorically foreclosed from even that minimal
consideration. Because this case presents an optimal
vehicle for resolving this important question of federal
law, the petition should be granted.
1.a. Criminal sentences are generally final once
imposed. See Dillon v. United States, 560 U.S. 817, 824
(2010); 18 U.S.C. § 3582(b). But under one exception to
this rule, prisoners may move for a sentence reduction
under what is informally known as the “compassionate
release” statute, 18 U.S.C. § 3582(c)(1)(A), which was
enacted as part of the Sentencing Reform Act of 1984,
Pub. L. No. 98-473, tit. 2, ch. 2, 98 Stat. 1837, 1987 (1984).
As relevant here, the Act provides that a district court
“may reduce [a prisoner’s] term of imprisonment . . . after
considering the factors set forth in section 3553(a) to the
extent that they are applicable, if it finds that . . .
extraordinary and compelling reasons warrant such a
reduction.” 18 U.S.C. § 3582(c)(1)(A). If the district court
finds that “extraordinary and compelling reasons
warrant” a sentence reduction, it must also find that “such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” Id.
The Act does not define what constitutes an
“extraordinary and compelling reason[]” warranting a
sentencing reduction. Instead, Congress instructed the
Sentencing Commission to “describe what should be
considered extraordinary and compelling reasons.” 28
U.S.C. § 994(t).
4
In the original Sentencing Reform Act, motions for
“compassionate release” could be filed only by the
Director of the Bureau of Prisons. § 3582(c)(1)(A); 98 Stat.
at 1998-99. But the Bureau rarely used the process.2
In 2016, in an attempt to “encourage[] the Director of
the Bureau of Prisons to file [motions] for compassionate
release” more frequently, the Sentencing Commission
expanded the list of factors that qualify as “extraordinary
and compelling reasons” warranting compassionate
release under § 3852. U.S. Sent’g Guidelines Manual app.
C supp., amend. 799 (U.S. Sent’g Comm’n 2016).
b. Two years later, in 2018, Congress stepped in. It
enacted the First Step Act, Pub. L. No. 115-391, 132 Stat.
5194 (2018), one purpose of which was to “increas[e] the
use and transparency of compassionate release,” id. at
5239. Under the First Step Act, prisoners can file their
own motions for compassionate release, as long as they
meet certain administrative prerequisites. 18 U.S.C.
§ 3582(c)(1)(A).
The First Step Act was also intended to reduce
unnecessarily long federal sentences. As relevant here,
§ 401 of the First Step Act changed the scope and severity
of sentencing enhancements for repeat drug offenders.
The most commonly prosecuted drug offenses that
carry mandatory minimum penalties are 21 U.S.C. §§ 841
and 960. Both provisions tie mandatory minimum
penalties to the quantity and type of controlled substance
involved. See 21 U.S.C. §§ 841(b), 960(b). Under § 851 of
title 21 of the United States Code, these mandatory
minimum penalties may be enhanced if a drug offender
has a qualifying prior conviction or convictions. Id.
§ 851(d)(1).
See Off. of the Inspector Gen., U.S. Dep’t of Just., The Federal
Bureau of Prisons’ Compassionate Release Program i, 34 (Apr.
2013), https://oig.justice.gov/reports/2013/e1306.pdf.
2
5
The First Step Act modified this regime in several
ways. First, the Act both narrowed and expanded the type
of prior offenses that trigger mandatory enhanced
penalties. Pub. L. No. 115-391, § 401. Second, the Act
reduced the length of some of the enhanced penalties.
Specifically, before the First Step Act, offenders who
otherwise qualified for the ten-year mandatory minimum
penalty were subject to an enhanced mandatory minimum
penalty of 20 years if they had one qualifying prior
conviction, and a mandatory term of life imprisonment
(LWOP) if they had two qualifying prior convictions. See
21 U.S.C. §§ 841(b)(1)(A), 960(b)(1)(A)-(H). The First
Step Act reduced the 20-year mandatory minimum
penalty for offenders with one prior qualifying offense to
15 years, and the life mandatory minimum penalty for
offenders with two or more prior qualifying offenses to 25
years. Pub. L. No. 115-391, § 401.
Congress made each of these changes applicable to
pending cases, id. § 401(c), but, as relevant here, did not
make them retroactive.
c. Following the First Step Act, the Sentencing
Commission has amended the policy statement at
§ 1B1.13 of the Sentencing Guidelines—which sets forth
the Commission’s views on “extraordinary and compelling
reasons” warranting a sentence reduction—to add a new
ground called “Unusually Long Sentence.” 88 Fed. Reg.
28254, 28257 (May 3, 2023); see also Pet. App. 19a-20a
(reproducing the Guideline Amendment in relevant part).
This ground for compassionate release “permits nonretroactive changes in law . . . to be considered
extraordinary and compelling reasons warranting a
sentence reduction, but only in narrowly circumscribed
circumstances.” 88 Fed. Reg. at 28258. Specifically, (i) the
defendant must be “serving an unusually long sentence”;
(ii) the defendant must have “served at least ten years of
the sentence”; and (iii) “an intervening change in the law
6
[must] ha[ve] produced a gross disparity between the
sentence being served and the sentence likely to be
imposed at the time the motion is filed.” Id. If these three
requirements are met, the non-retroactive change in law
“can qualify as an extraordinary and compelling reason
after the court has fully considered the defendant’s
individualized circumstances.” Id. The amendment is set
to go into effect on November 1, 2023.3
2.a. Petitioner Jerry Brown was sentenced in 2014
after he was convicted of one count of conspiracy to
distribute crack cocaine. See 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846; Pet. App. 2a. Because of his prior
convictions for felony drug offenses, he faced a mandatory
minimum sentence of life in prison under the thenoperative provisions of § 841(b)(1)(A). See 21 U.S.C.
§ 841(b)(1)(A) (2012); Pet. App. 2a, 13a. The district court
imposed that sentence, plus ten years of supervised
release. Pet. App. 2a. As a result of his incarceration
during the pendency of his trial and sentencing, petitioner
has served more than 10 years toward his LWOP
sentence. Pet. App. 21a-23a (BOP time-served sheet).
b. In 2022, petitioner brought a motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A).
Pet. App. 2a. Petitioner relied primarily on the
amendment to § 841(b) enacted in the First Step Act of
2018 that non-retroactively reduced the statutory
Before the Commission promulgated its “unusually long sentence” Guideline, the Solicitor General took the position that the
Sentencing Commission could preclude courts from considering
non-retroactive changes in law. See Brief for the United States in
Opposition at 17-18, Jarvis v. United States (No. 21-568). The Solicitor General has never taken a position on the separate question of
whether the Sentencing Commission can promulgate a guideline requiring courts to permit consideration of non-retroactive changes in
law, even in circuits that have held that such consideration is precluded.
3
7
minimum sentence for an offender in petitioner’s position
from life without parole to 25 years. See Pub. L. No. 115391, § 401(a)(2)(A)(ii), 132 Stat. 5194, 5220 (2018);
Pet. App. 2a. Petitioner argued that the non-retroactive
change to § 841(b), in combination with his rehabilitative
efforts in prison, was an extraordinary and compelling
reason for a sentence reduction. Pet. App. 2a-3a.
c. The district court denied petitioner’s motion.
Pet. App. 3a. Applying controlling Seventh Circuit
precedent in United States v. Thacker, 4 F.4th 569 (7th
Cir. 2021), the court found that petitioner’s claim failed
because non-retroactive sentencing changes categorically
cannot be extraordinary and compelling reasons for
release under § 3582(c)(1)(A)(i). Pet. App. 6a-7a. The
court then held that petitioner’s motion failed because
rehabilitation standing alone cannot be an extraordinary
and compelling reason for release. Pet. App. 7a (citing
United States v. Peoples, 41 F.4th 837, 842 (7th Cir.
2022)).
d. On appeal, petitioner maintained that nonretroactive changes in criminal penalties can be grounds
for compassionate release under the First Step Act.
Pet. App. 3a. In support, he urged the Seventh Circuit to
reconsider Thacker in light of this Court’s decision in
Concepcion v. United States, 142 S. Ct. 2389 (2022), which
held that “the First Step Act allows district courts to
consider intervening changes of law or fact in exercising
their discretion to reduce a sentence pursuant to the First
Step Act.” Id. at 2404; Pet. App. 3a. He also pointed to the
division of authority between the circuits on the question
and urged the Seventh Circuit to join the opposite side of
the Circuit conflict. Pet. App. 3a.
The Seventh Circuit rejected petitioner’s argument
and affirmed. The court acknowledged the “4-3 circuit
split” and recognized that “the Ninth Circuit’s reasoning
in United States v. Chen, 48 F.4th 1092 (9th Cir. 2022),”
8
and its “rationale” are “contrary to Thacker.”
Pet. App. 3a. The court recognized that the Seventh
Circuit’s Thacker decision also conflicts with “decisions of
the First, Fourth, and Tenth Circuits” that have
“adopt[ed] similar reasoning” to the Ninth. Pet. App. 4a.
Nonetheless, the court noted that “[o]n the other side of
the split, the Third and Eighth Circuits have ruled in
alignment with Thacker.” Pet. App. 4a.
The court concluded that the existence of the circuit
conflict was not a sufficient basis to revisit Thacker.
Pet. App. 4a. The court also concluded that this Court’s
decision in Concepcion did not undermine Thacker.
Rather, quoting United States v. King, 40 F.4th 594 (7th
Cir. 2022), the panel stated: “‘[w]e take the Supreme
Court at its word that Concepcion is about the matters
that district judges may consider when they resentence
defendants . . . [and not] the threshold question whether
any given prisoner has established an “extraordinary and
compelling” reason for release.’” Pet. App. 4a-5a (quoting
King, 40 F.4th at 596).
The court “thus appl[ied] [its] precedent to
[Petitioner’s] appeal” and reiterated the Seventh Circuit’s
position that “[t]he non-retroactive sentencing changes
enacted in the First Step Act . . . cannot establish an
extraordinary and compelling [reason] for [petitioner’s]
release under § 3582(c)(1)(A)(i).” Pet. App. 5a.
REASONS FOR GRANTING THE PETITION
I.
THERE IS A CLEAR AND INTRACTABLE CONFLICT
OVER A SIGNIFICANT QUESTION
The decision below “further entrenches the circuit
split” over whether a non-retroactive change in law is
categorically ineligible for consideration as an
extraordinary and compelling reason for a sentence
reduction under § 3582(c)(1)(A). United States v. McCall,
56 F.4th 1048, 1070 n.4 (6th Cir. 2022) (en banc) (Moore,
9
J., dissenting). That conflict is at once square and
indisputable: the courts of appeals have repeatedly
recognized the conflict, rejected each other’s positions,
and fractured into two firmly opposed factions.4
The stark division over this fundamental question of
the circumstances under which relief is available under
§ 3582(c)(1)(A) is untenable. The conflict has been openly
acknowledged by courts and commentators alike, and
there is no chance it will resolve without this Court’s
intervention. See, e.g., supra note 1. Parties face
enormously disparate outcomes on requests for
compassionate release under the First Step Act based
only on where a suit is litigated. And now that the split has
reached 6-4, with two sides firmly dug in on their
respective rules, the hope of the split resolving itself has
vanished. The conflict is mature and ready for this Court’s
review.
1.a. The decision below directly conflicts with settled
law in the Ninth Circuit. In United States v. Chen, 48
F.4th 1092 (9th Cir. 2022), the Ninth Circuit confronted
the identical question presented here, and adopted the
opposite holding: “district courts may consider nonretroactive changes in sentencing law, in combination
with other factors particular to the individual defendant,
See United States v. Rodriguez-Mendez, 65 F.4th 1000, 1002 (8th
Cir. 2023) (“There is . . . a circuit split on the merits of whether a
nonretroactive change in the law—whether by statute or by guidelines amendment—can constitute an extraordinary and compelling
reason for § 3582(c)(1)(A) relief.”); United States v. Jenkins, 50
F.4th 1185, 1198 (D.C. Cir. 2022) (“The circuits have split on
whether courts may consider such intervening but expressly nonretroactive sentencing statutes.”); United States v. Chen, 48 F.4th
1092, 1096 (9th Cir. 2022) (“Other circuits are split concerning this
issue.”); United States v. Johnson, No. 21-241-CR, 2022 WL 102075,
at *1 (2d Cir. Jan. 11, 2022) (“an issue that has divided federal courts
of appeals”); United States v. Ruvalcaba, 26 F.4th 14, 24-25 (1st Cir.
2022) (“Several courts of appeals have addressed the issue.”).
4
10
when analyzing extraordinary and compelling reasons for
purposes of § 3582(c)(1)(A).” Id. at 1098. In so holding, the
Ninth Circuit “join[ed] the First, Fourth, and Tenth
circuits” in concluding that “[t]here is no textual basis for
precluding district courts from considering nonretroactive changes in sentencing law when determining
what is extraordinary and compelling.” Id.
In Chen, the defendant filed a motion for
compassionate release, arguing that the First Step Act’s
changes to stacked-sentencing laws, which reduced the
minimum sentence for a defendant in his position from 300
months to 60 months, constituted an extraordinary and
compelling reason for reducing his sentence. Id. at 1094.
The district court denied his motion on the grounds that
Congress “expressly declined to make § 403(a)
retroactive.” Id.
The Ninth Circuit reversed. The court explained that
“Congress has placed only two limitations directly on
extraordinary and compelling reasons.” Id. at 1098. First,
a sentence reduction must be “consistent with applicable
policy statements” issued by the U.S. Sentencing
Commission. 18 U.S.C. § 3553(a). Second, “[r]ehabilitation
. . . alone” cannot be extraordinary and compelling. 28
U.S.C. § 994(t). The Ninth Circuit found that “[n]either of
these rules prohibit district courts from considering
rehabilitation in combination with other factors.” Chen, 48
F.4th at 1098. Because “Congress has never acted to
wholly exclude the consideration of any one factor,” the
Ninth Circuit reasoned, “[t]o hold that district courts
cannot consider non-retroactive changes in sentencing
law would be to create a categorical bar against a
particular factor, which Congress itself has not done.” Id.
And any “categorical bar” against the consideration of a
particular factor, the court continued, “would seemingly
contravene the original intent behind the compassionate
release statute, which was created to provide the need for
11
a safety valve with respect to situations in which a
defendant’s circumstances had changed such that the
length of continued incarceration no longer remained
equitable.” Id. at 1098-99 (quotation marks omitted).
The Ninth Circuit further reasoned that the fact that
Congress had chosen to make a sentencing change nonretroactive does not mean that the change cannot
constitute an extraordinary and compelling reason under
§ 3582(c)(1)(A). The court recognized that “there is a
significant difference between automatic vacatur and
resentencing of an entire class of sentences and allowing
for the provision of individual relief in the most grievous
cases.” Id. at 1100 (cleaned up). When a change in
sentencing law is retroactive, the court explained, every
defendant sentenced under the prior law is automatically
eligible for resentencing. Id. “In contrast, allowing
defendants to petition for compassionate release, based in
part on the sentencing disparities created by [changes in
federal law], does not automatically make every
defendant [sentenced under the prior law] eligible for a
sentence reduction; the petitioning defendant still must
demonstrate that [the new] non-retroactive changes rise
to the level of ‘extraordinary and compelling’ in his
individualized circumstances.” Id. Because petitioning for
compassionate release does not automatically result in a
reduced sentence, the court concluded, allowing courts to
consider changes in federal law in the extraordinary-andcompelling analysis does not conflict with a provision’s
non-retroactivity.
The Ninth Circuit further considered and rejected
the position of the Third and Seventh Circuits that district
courts may not consider non-retroactive changes in
federal law for purposes of § 3582(c)(1)(A) but may
nevertheless consider those changes when determining
what sentencing reduction to award under § 3553(a) once
extraordinary and compelling circumstances have been
12
found. See id. at 1099-1100. The Ninth Circuit concluded
that such a distinction was unsupported: “if Congress
truly intended to bar district courts from considering
[sentencing changes] in the compassionate release
context by making the changes non-retroactive, then it is
doubtful those changes should be considered at all,
whether as extraordinary and compelling reasons or
under § 3553(a).” Id. at 1099.
b. The Seventh Circuit’s decision also squarely
conflicts with established law in the Fourth Circuit. In
United States v. McCoy, 981 F.3d 271 (4th Cir. 2020), the
defendants moved for reductions in their sentences under
§ 3582(c)(1)(A), arguing that the First Step Act’s
elimination of sentence-stacking for firearms violations
under 18 U.S.C. § 924(c)—which decreased the minimum
sentences for similarly situated defendants by decades—
constituted extraordinary and compelling grounds for
relief. Id. at 274. The district courts granted the reduction
after considering the defendants’ age at the time of the
offense, lack of prior criminal history, time-served, and
rehabilitative efforts. Id.
The Fourth Circuit affirmed. Id. The court held that
“the severity of a § 924(c) sentence, combined with the
enormous disparity between that sentence and the
sentence a defendant would receive today, can constitute
an ‘extraordinary and compelling’ reason for relief under
§ 3582(c)(1)(A).” Id. at 285. The court rejected the
government’s argument that, “by taking into account the
First Step Act’s elimination of § 924(c) sentence-stacking,
the district courts impermissibly gave that provision
retroactive effect, contrary to Congress’s direction.” Id.
at 286. Like the Ninth Circuit, the Fourth Circuit
explained that there is a “significant difference between
automatic vacatur and resentencing of an entire class of
sentences . . . and allowing for the provision of individual
relief in the most grievous cases.” Id. at 286-87. And the
13
Fourth Circuit further emphasized the “individualized
assessments” that the district courts made as to each
defendant’s sentence, as well as the fact that “the district
courts relied not only on the defendants’ § 924(c)
sentences but on full consideration of the defendants’
individual circumstances.” Id. at 286.
c. The First Circuit reached the same conclusion as
the Ninth and Fourth Circuits in United States v.
Ruvalcabra, 26 F.4th 14 (1st Cir. 2022). There, a
defendant serving a life sentence moved for
compassionate release under § 3582(c)(1)(A) on the basis
that, “had he been sentenced after the enactment of the
[First Step Act], he would have . . . been subject to a
mandatory prison term of only fifteen years.” Id. at 17.
The district court denied his motion, finding that “the
changes were prospective in effect and, therefore, any
ensuing disparity could not be deemed extraordinary.” Id.
at 18.
Like the Ninth and Fourth Circuits, the First Circuit
held that a district court may consider non-retroactive
changes in sentencing law to determine whether an
“extraordinary and compelling reason” for release exists,
so long as such a determination is “grounded in a
defendant’s particular circumstances.” Id. at 16. The
court explained that “there is only one explicit limitation
on what may comprise an extraordinary and compelling
reason”: rehabilitation alone cannot constitute an
extraordinary and compelling reason for relief. Id. at 25.
“Nowhere,” the court continued, “has Congress expressly
prohibited district courts from considering nonretroactive changes in sentencing law,” and there is no
support for such a categorical prohibition in the statutory
text. Id. Like the Ninth Circuit, the First Circuit further
found that permitting district courts to consider nonretroactive changes to sentencing law as part of the
extraordinary-and-compelling analysis “fits seamlessly
14
with the history and purpose of the compassionate-release
statute” and Congress’s efforts to create a “‘safety valve’
with respect to situations in which a defendant’s
circumstances had changed such that the length of
continued incarceration no longer remained equitable.”
Id. at 26.
The First Circuit further rejected the argument that
its holding “usurp[ed]” Congress’s judgment in making
certain sentencing changes non-retroactive. Id. at 26. The
court explained that “Congress’s judgment to prevent
[automatic vacatur and resentencing of an entire class of
sentences] is not sullied by a district court’s
determination, on a case-by-case basis, that a particular
defendant has presented an extraordinary and compelling
reason due to his idiosyncratic circumstances.” Id. at 27.
“As long as the individualized circumstances, taken in the
aggregate, satisfy the ‘extraordinary and compelling’
standard,” the First Circuit concluded, “granting relief
would be consistent with Congress’s judgment that a
modification of a sentence legally imposed may be
warranted when extraordinary and compelling reasons
for taking that step exist.” Id. at 27.
d. The Tenth Circuit’s decision in United States v.
Maumau, 993 F.3d 821 (10th Cir. 2021), aligns with that
of the Ninth, Fourth, and First Circuits. There, as in
McCoy, the defendant moved to reduce his sentence
under § 3582(c)(1), arguing that “extraordinary and
compelling reasons, including the First Step Act’s
elimination of § 924(c)’s stacking provision, justified a
reduction.” Id. at 824. The district court granted his
motion, reducing his 55-year sentence to time served, plus
three years of supervised release. Id.
The Tenth Circuit affirmed. Id. The Tenth Circuit
explained that a district court considering a § 3582(c)(1)
motion must follow a three-step test. Id. at 831. First, the
court must determine whether extraordinary and
15
compelling reasons warrant a sentence reduction. Id.
Second, the court must determine whether such a
reduction is consistent with applicable Sentencing
Commission policy statements. Id. Third, the court must
“consider any applicable § 3553(a) factors and determine
whether, in its discretion, the reduction authorized by
steps one and two is warranted in whole or in part under
the particular circumstances of the case.” Id. (cleaned up).
The Tenth Circuit further concluded that, in carrying out
step one of this three-part test, district courts “possess
the authority to determine for themselves what
constitutes ‘extraordinary and compelling reasons,’ but
that the discretion afforded to district courts in step one
of the three-part statutory test is bounded by [step two].”
Id. at 832. As such, the Tenth Circuit rejected the
government’s argument that § 3582(c)(1) “affords the
Sentencing Commission with the exclusive authority to
determine what constitutes ‘extraordinary and
compelling reasons.’” Id.; see id. at 832-34. Concluding
that the district court possessed “the authority to
determine for [itself] what constitutes ‘extraordinary and
compelling reasons,’” id. at 832, and that the Sentencing
Commission had not yet issued a policy statement
applicable to defendant-filed motions, the Tenth Circuit
affirmed the district court’s sentencing reduction, id. at
837.
Judge Tymkovich issued a concurrence “to note that
[the court’s] holding d[id] not give district courts carte
blanche to retroactively apply [sentencing amendments]
in every instance.” Id. at 838 (Tymkovich, J., concurring).
Because the district court had considered the defendant’s
“individualized
circumstances”—including
his
“extraordinarily long sentence” when compared to “the
significantly shorter sentences [his] co-defendants
received for substantially similar conduct”—Judge
Tymkovich found that the district court had “acted within
16
its broad discretion to find ‘extraordinary and compelling’
reasons for sentence reduction.” Id. He cautioned,
however, that “the imposition of a sentence that was not
only permissible but statutorily required at the time is
neither an extraordinary nor a compelling reason to now
reduce that same sentence.” Id.
2. Six circuits—the Third, Fifth, Sixth, Seventh,
Eighth, and D.C. Circuits—have expressly rejected the
view of the First, Fourth, Ninth, and Tenth Circuits.
a. The leading case in the Seventh Circuit is United
States v. Thacker, 4 F.4th 569 (7th Cir. 2021). In Thacker,
the Seventh Circuit held that “[non-retroactive changes to
sentencing law], whether considered alone or in
connection with other facts and circumstances, cannot
constitute an ‘extraordinary and compelling’ reason to
authorize a sentencing reduction.” Id. at 571. At
sentencing, the defendant had faced a 32-year minimum
sentence. Id. at 572. “Had [he] been sentenced after the
First Step Act became law,” however, “he would have
faced a 14-year mandatory minimum.” Id. The defendant
thus moved for compassionate release under
§ 3582(c)(1)(A), arguing that the magnitude of the First
Step Act’s sentencing changes for a defendant in his
circumstances, in combination with his individual health
conditions amid the COVID-19 pandemic, constituted
extraordinary and compelling reasons warranting his
release. See id. The district court denied his motion. Id.
The Seventh Circuit affirmed, holding that nonretroactive sentencing changes cannot constitute
“extraordinary and compelling” reasons for sentencing
reductions under § 3582(c)(1)(A). Id. at 576. In so holding,
the court emphasized that “there is nothing
‘extraordinary’ about leaving untouched the exact
penalties that Congress prescribed and that a district
court imposed for particular violations of a statute.” Id. at
574. The court noted that, while Congress had made the
17
relevant anti-stacking amendment prospective only, it
had made a “deliberate” choice in making other First Step
Act sentencing amendments apply retroactively. Id. at
573. The Seventh Circuit reasoned that “[t]hese
distinctions matter, and they are ones reserved for
Congress to make.” Id. The court thus concluded that
“[t]he district court was right to see [the defendant’s]
motion, at least in part, as an attempted end-run around
Congress’s decision in the First Step Act to give only
prospective effect to its [anti-stacking amendment].” Id.
Permitting such an outcome, the court determined, would
allow a prisoner “to upend the clear and precise limitation
Congress imposed.” Id. at 574.
The Seventh Circuit also expressed that it
“harbor[ed]
broader
concerns
with
allowing
§ 3582(c)(1)(A) to serve as the authority for relief from
mandatory minimum sentences prescribed by Congress.”
Id. If non-retroactive sentencing changes could establish
“extraordinary and compelling” reasons for relief, the
court reasoned, there was “nothing preventing the next
inmate serving a mandatory minimum sentence under
some other federal statute from requesting a sentencing
reduction in the name of compassionate release on the
basis that the prescribed sentence is too long, rests on a
misguided view of the purposes of sentencing, reflects an
outdated legislative choice by Congress, and the like.” Id.
The Seventh Circuit concluded that countenancing such
requests would both “offend[] principles of separation of
powers” and “create[] tension with the principal path and
conditions Congress established for federal prisoners to
challenge their sentences[—habeas relief].” Id.
In light of these considerations, the Seventh Circuit
held that, while a district court may consider nonretroactive sentencing changes “as part of determining
what sentencing reduction to award the prisoner,” such
18
changes cannot constitute reasons warranting a
sentencing reduction in the first instance. Id. at 576.
b. In United States v. Jarvis, 999 F.3d 442 (6th Cir.
2021), the Sixth Circuit applied the same rule that the
Seventh Circuit follows: a non-retroactive statutory
sentencing change cannot serve as an “extraordinary and
compelling reason” under § 3582(c)(1)(A)(i).5 Id. at 443. In
Jarvis, a defendant who had already served 26 years of a
40-year sentence moved for compassionate release under
§ 3582(c)(1)(A)(i), arguing that the First Step Act had
reduced the statutory minimum for a defendant in his
position to 25 years. Id. The district court denied his
motion, and the Sixth Circuit affirmed. Id. at 442.
Like the Seventh Circuit, the Sixth Circuit noted that
Congress’s decision not to make the subject sentencing
change retroactive was “deliberate.” Id. at 443.
Permitting defendants sentenced before the sentencing
amendment to benefit from the amendment, the court
reasoned, would render that deliberate choice “useless”:
“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. at 443-44. Like the Seventh
Circuit, the Sixth Circuit thus declined to pursue an “end
run around Congress’s careful effort to limit the
The following year, the Sixth Circuit granted en banc review to
resolve an intra-circuit split over this issue. See United States v.
McCall, 56 F.4th 1048, 1051 (2022) (en banc). Like the Jarvis panel,
the en banc court held that “[n]onretroactive legal developments,
considered alone or together with other factors, cannot amount to
an ‘extraordinary and compelling reason’ for a sentence reduction.”
Id. at 1065-66. Judge Moore, joined by Judges Cole, Clay, White,
Stranch, and Donald, dissented. Id. at 1066-74 (Moore, J., dissenting). Judge Gibbons also dissented. Id. 1074-76 (Gibbons, J., dissenting).
5
19
retroactivity of the First Step Act’s reforms.” Id. at 444
(quotation marks omitted).
Judge Clay dissented. Id. at 446 (Clay, J., dissenting).
Judge Clay argued both that the majority had ignored
binding circuit precedent, see id. at 447, and that the
majority’s reasoning “ignore[d] the individualized nature
of compassionate release,” id. at 450. Quoting the Fourth
Circuit’s reasoning in McCoy, Judge Clay emphasized the
“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.” Id. (quoting McCoy, 981 F.3d at
286-87). Judge Clay further argued that “the majority’s
fear of numerous defendants becoming eligible for
compassionate release [wa]s unwarranted,” in light of
“the significant discretion a district court has in
determining [both] whether there are extraordinary and
compelling reasons for compassionate release[ and]
whether the § 3553(a) factors support release.” Id. Judge
Clay thus concluded that “[a]llowing for a nonretroactive
amendment creating a sentencing disparity to be
considered along with a defendant’s unique circumstances
in connection with a motion for compassionate release
affords the proper deference to Congress’s decision not to
make the amendment retroactive.” Id. at 451.
c. In United States v. Jenkins, 50 F.4th 1185 (D.C.
Cir. 2022), the D.C. Circuit adopted the same rule that the
Seventh and Sixth Circuits follow: non-retroactive
changes in the law “may neither support nor contribute to
a finding that extraordinary and compelling reasons
warrant compassionate release.” Id. at 1198. In Jenkins,
the defendant moved for compassionate release under
§ 3582(c)(1)(A)(i), arguing that Congress’s narrowing of
§ 924(c)’s stacked-sentencing provision in the First Step
Act—in combination with two intervening D.C. Circuit
20
decisions under which he would have faced a lower
minimum sentence, his deteriorating health conditions,
and familial needs—constituted extraordinary and
compelling reasons warranting release. See id. at 1194.
The district court denied the motion, and the D.C. Circuit
affirmed. Id. at 1194, 1207.
The D.C. Circuit held that, because “there is nothing
remotely extraordinary about statutes applying only
prospectively,” id. at 1198, courts “should not tip the
balance by allowing courts to question whether the
original mandatory minimum sentence was simply too
long, either in absolute terms or relative to the
amendment,” id. at 1200. The court explained that this
conclusion was reinforced by separation-of-powers
considerations. Id. at 1198-99. “When Congress enacted
the original stacking provision,” the court reasoned, “it
deemed a 25-year minimum sentence to be appropriate
for all second section 924(c) offenses.” Id. at 1199. “And
by making its ameliorative amendment expressly
nonretroactive [in the First Step Act], Congress
reaffirmed that the 25-year minimum remained
appropriate for defendants already sentenced.” Id. The
D.C. Circuit thus concluded that it “would usurp these
quintessentially legislative judgments if [it] used
compassionate release as a vehicle for applying the
amendment retroactively, to previously sentenced
defendants who would not otherwise qualify for
compassionate release.” Id.
In so holding, the D.C. Circuit rejected the argument
that non-retroactive changes in the law can constitute
extraordinary and compelling reasons for a sentencing
reduction when the original sentence was of a “sheer and
unusual length” and there is a “gross disparity” between
the original sentence and the new statutory minimum. Id.
(quoting McCoy, 981 F.3d at 285-86). “Such reasoning,”
the court explained, “always runs headlong into
21
Congress’s judgment that the unamended statute
remains appropriate for previously sentenced defendants,
which is why even courts on the McCoy side of the split
recognize that a court may never grant compassionate
release based solely on prospective sentencing changes.”
Id. “[I]f those considerations do not themselves warrant
compassionate release,” the court concluded, they cannot
serve as additional reasons establishing extraordinary
and compelling circumstances. Id. at 1200.
Judge Ginsburg wrote separately, arguing that he
“would not adopt a rule that categorically precludes
consideration of a non-retroactive change in the law” in a
§ 3582(c)(1)(A)(i) analysis. Id. at 1208 (Ginsburg, J.,
concurring in part, dissenting in part, and concurring in
the judgment). “Central” to his disagreement with the
majority’s reasoning, he explained, was that the First
Step Act provides no basis for such a categorical
preclusion. Id. He reminded the majority of a
“straightforward, textualist point”: “Congress well knows
how to preclude consideration of certain factors. That is
exactly what it did when it stated that ‘[r]ehabilitation of
the defendant alone shall not be considered an
extraordinary and compelling reason.’ But that is the only
limit the Congress placed upon the term.” Id. (quoting 28
U.S.C. § 994(t)). Judge Ginsburg further disagreed that
non-retroactive sentencing changes could not be
“extraordinary” simply because they were common,
arguing that even an ordinary practice can be
extraordinary and compelling in light of “the idiosyncratic
circumstances of a particular defendant.” Id.
d. The Seventh, Sixth, and D.C. Circuits’ holdings
align with the decisions of three other circuits, all of which
have held that non-retroactive changes in federal law
cannot be among the “extraordinary and compelling
reasons” warranting a sentence reduction under
§ 3582(c)(1)(A). See United States v. Andrews, 12 F.4th
22
255, 262 (3d Cir. 2021) (“Congress’s nonretroactive
sentencing reductions are not extraordinary and
compelling reasons for purposes of § 3582(c)(1)(A).”);
United States v. McMaryion, 64 F.4th 257, 259 (5th Cir.
2023) (“[A] prisoner may not leverage non-retroactive
changes in criminal law to support a compassionate
release motion, because such changes are neither
extraordinary nor compelling.”), withdrawn and
substituted, 2023 WL 4118015 (5th Cir. June 22, 2023);
United States v. Crandall, 25 F.4th 582, 586 (8th Cir.
2022) (“[A] non-retroactive change in law, whether offered
alone or in combination with other factors, cannot
contribute to a finding of ‘extraordinary and compelling
reasons’ for a reduction in sentence under
§ 3582(c)(1)(A).”).
3. Numerous commentators have also recognized the
sharp circuit conflict over this question. See supra note 1;
Claire M. Griffin, An Extraordinary and Compelling
Case for Judicial Discretion: Nonretroactive Sentencing
Changes and Compassionate Release, 54 U. Tol. L. Rev.
237, 246-55 (2023); Michael T. Hamilton, Opening the
Safety Valve: A Second Look at Compassionate Release
under the First Step Act, 90 Fordham L. Rev. 1743, 175965 (2022); Olivia Williams, Note, Taking the Second Step:
Section 924(c) Sentencing Disparities as an
Extraordinary
and
Compelling
Reason
for
Compassionate Release, 63 Wm. & Mary L. Rev. Online
27, 44-45 (2022); Jaden Lessnick, Case Note,
Uncompassionate Incarceration: United States v.
Thacker and Its Impact on Nonretroactivity-Based
Compassionate Release, U. Chi. L. Rev. Online (May 12,
2022); Anthony Passela, Stacking the Deck: How the
Eighth Circuit’s Decision in United States v. Crandall
Threatens the First Step Act’s Bipartisan Criminal
Justice Reforms, 68 Vill. L. Rev. 97, 102-03 (2023); see also
Charles Doyle, Cong. Rsch. Serv., R47195, Federal
23
Compassionate Release After the First Step Act 4 & n.27
(2022).
*****
The conflict over whether a non-retroactive change in
law is categorically ineligible for consideration as an
extraordinary and compelling reason for a sentence
reduction under § 3582(c)(1)(A) is square and intractable.
It has generated a 6-4 circuit split. Deep division on the
issue is reflected nationwide—every circuit other than the
Second and Eleventh has weighed the arguments and
chosen a side in a published opinion.6 Neither bloc will
change enough to resolve the split; to the contrary, any
further changes are bound only to exacerbate confusion
and conflict between and within the circuits. Until this
Court intervenes, parties will continue to face disparate
chances of successful appeals depending on the circuit.
Review is urgently warranted.
II.
THE QUESTION PRESENTED IS IMPORTANT AND
WARRANTS REVIEW IN THIS CASE
1. The legal and practical importance of the question
presented is undeniable. The circuit conflict has now
reached ten circuits, with courts resolutely disagreeing
over the proper rule. And the question presented affects
thousands of federal prisoners who may have strong cases
for compassionate release. The standard for winning a
motion for resentencing under § 3582(c)(1)(A)(i) is a
critically important issue affecting every federal prisoner
in the country. It is essential that prisoners and courts
And even the two nominally unaligned circuits have unpublished
opinions on opposite sides of the conflict. Compare United States v.
Rose, 837 F. App’x 72, 73-74 (2d Cir. 2021) (a district court “may
look to . . . the mandatory minimums that the defendant would face
if being sentenced for the first time under revised guidelines or statutes”), with United States v. Williams, No. 22-13150, 2023 WL
4234185, at *3-4 (11th Cir. June 28, 2023) (no, it may not).
6
24
know whether non-retroactive changes in law are
categorically ineligible for consideration as reasons that
could make a prisoner eligible for resentencing.
As it now stands, prisoners have different access to
compassionate release based on nothing more than the
fortuity of where their criminal case happened to be
prosecuted. The circuit split is so entrenched that there is
no hope of this issue resolving itself. Each side of the split
has staked out its position, and the competing arguments
have been thoroughly examined. The question is ripe for
review.
a. The sheer number of decisions on this question
confirms the issue’s importance, and there is no genuine
dispute that the issue arises constantly in courts of
appeals nationwide. All but one of the twelve circuits with
jurisdiction over criminal cases—with the notable
exception being the First Circuit, which has held that
district courts may consider non-retroactive changes in
law when deciding compassionate release motions, see pp.
13-14, supra—have heard appeals raising this issue in the
past twelve months.7 Some circuits have decided this
question repeatedly in that time period, highlighting the
See, e.g., United States v. Smith Castillo, Nos. 21-168-cr, 21-172cr, 2022 WL 3581308, at *1 (2d Cir. Aug. 22, 2022); United States v.
Hammonds, No. 22-2406, 2023 WL 4198041, at *1 (3d Cir. June 27,
2023); United States v. Brice, No. 21-6776, 2022 WL 3715086, at *1
(4th Cir. Aug. 29, 2022); McMaryion, 64 F.4th at 259-60; United
States v. Edmond, No. 22-1443, 2023 WL 3736880, at *1 (6th Cir.
May 31, 2023); United States v. McIntosh, No. 22-2326, 2023 WL
3409487, at *1 (7th Cir. May 12, 2023); United States v. House, No.
22-3129, 2023 WL 4241628, at *1 (8th Cir. June 29, 2023); United
States v. Roper, No. 33-30021, 2023 WL 4360600, at *2 (9th Cir. July
6, 2023); United States v. Arriola-Perez, No. 21-8072, 2022 WL
2388418, at *1 (10th Cir. July 1, 2022); Williams, 2023 WL 4234185,
at *1-2; Jenkins, 50 F.4th at 1192.
7
25
confusion sown by this circuit split.8 And these numbers
represent only motions for compassionate release that are
appealed—as detailed below, district courts hear
thousands of compassionate release motions every year.
It is impossible to count how many defendants choose not
to appeal, or choose not to move for compassionate release
at all, because they are either confused by the incongruent
legal rules or because binding circuit precedent tells them
that a change in law cannot provide an extraordinary and
compelling reason for a resentencing.
b. Review is also essential because the practical
stakes are substantial. In its most recent semiannual
report, the Sentencing Commission reported over 200
compassionate release decisions in each of the first three
months of 2023, following over 4,500 compassionate
release decisions in 2022.9 The highest number of
underlying crimes for which movants have sought
compassionate release in 2023 are firearm and drugtrafficking offenses10—the very same crimes that, under
prior statutory regimes, carried exorbitantly long
mandatory minimum sentences and the very same
movants that would benefit the most from compassionate
release or resentencing today.
See, e.g., United States v. Ling, No. 22-2464, 2023 WL 2674411,
at *1 (7th Cir. Mar. 29, 2023); United States v. Brown, No. 22-2465,
2023 WL 3144553 (7th Cir. Apr. 28, 2023), at *1-2; United States v.
Gaskins, No. 22-2518, 2023 WL 3299986, at *1 (7th Cir. May 8, 2023);
Hammonds, 2023 WL 4198041, at *1; United States v. Craft, No. 222708, 2023 WL 3717545, at *1-2 (3d Cir. May 30, 2023).
8
U.S. Sent’g Comm’n, Compassionate Release Data Report: Fiscal Year 2023, 2nd Quarter (October 1, 2022, Through March 31,
2023) tbl.1 (2023), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/202305-Compassionate-Release.pdf.
9
10
Id. at tbls.8 & 9.
26
The Court’s recent holding in Jones v. Hendrix, 143
S. Ct. 1857 (2023), heightens the practical stakes of
clarifying the breadth of the “extraordinary and
compelling reasons” doorway to compassionate release. If
these words can encompass non-retroactive changes in
law, then they certainly can also encompass retroactive
changes in law, meaning that prisoners subject to
conviction under misinterpreted criminal statutes could
obtain a resentencing if the circumstances of the
misinterpretation in law are sufficiently extraordinary
and compelling (for instance, if the change in law means
that the movant is actually innocent of the underlying
crime). Especially in light of the Court’s decision in Jones,
the availability of compassionate release on the basis of
changes in law has taken on new urgency.
c. This issue is frequently recurring, nationally
important, and ripe for the Court’s review. The Court’s
denial of earlier petitions for certiorari in cases raising
similar questions is no basis to deny the present petition.
The Court routinely grants petitions on questions on
which it has denied previous petitions for certiorari. See
Wilkinson v. Garland, -- S. Ct. -- (2023) (No. 22-666);
Dupree v. Younger, 143 S. Ct. 645 (2023) (No. 22-210). The
number of recent petitions raising the question presented
establishes the issue’s undeniable significance and that
the legal issues are well-developed and ready for the
Court’s review. See, e.g., Jarvis v. United States (No. 21568); Watford v. United States (No. 21-551).
2.a. The Sentencing Commission’s Guideline—which
is set to take effect on November 1, 2023, and purports to
permit district courts to consider “unusually long
sentences” as potentially “extraordinary and compelling”
reasons for sentencing reductions, see Pet. App. 19a; 88
Fed. Reg. 28254, 28257 (May 3, 2023)—makes this Court’s
review of the question presented especially warranted.
27
Petitioner indisputably qualifies for resentencing
under the soon-to-take-effect Guideline. He has served 10
years toward his LWOP sentence. His present sentence
is not just “unusually” harsh but extraordinarily so—“the
second-harshest sentence available under [this Court’s]
precedents for any crime, and the most severe sanction
available for a nonhomicide offense.” Graham v. Florida,
560 U.S. 48, 92 (2010) (Roberts, C.J., concurring). And
there is obviously a “gross disparity between the sentence
being served” (LWOP) “and the sentence likely to be
imposed at the time the motion is filed” (25 years). Pet.
App. 19a.
Yet, the soon-to-take-effect Guideline is dead on
arrival in the Seventh Circuit. The holding in Thacker is
clear that, as a matter of statutory interpretation, the
First Step Act categorically does not permit district
courts to consider non-retroactive changes in law as
“extraordinary and compelling” reasons for sentence
reductions. See 4 F.4th at 574 (“[T]he discretion conferred
by § 3582(c)(1)(A) does not include authority to reduce a
mandatory minimum sentence on the basis that the length
of the sentence itself constitutes an extraordinary and
compelling circumstance warranting a sentencing
reduction.”).
Thus, the Guideline will do petitioner no good until
this Court intervenes. If this petition is denied, petitioner
will file an identical motion for compassionate release in
November. The district court and Seventh Circuit will be
required to deny the motion under the Seventh Circuit’s
holding that, as a statutory matter, non-retroactive
changes in law categorically cannot constitute
extraordinary and compelling reasons for resentencing.
Petitioner will then return right back to this Court.
The Commission’s Guidance is not just dead on
arrival in the Seventh Circuit; it is also dead on arrival in
the five other circuits on the long side of the split. The
28
Sixth, Eighth, and D.C. Circuits have all said that
consideration of non-retroactive changes in law is “legally
impermissible.” Jarvis, 999 F.3d at 444; Crandall, 25
F.4th at 586; Jenkins, 50 F.4th at 1200. The D.C. Circuit
has gone even further and explained that granting
compassionate release on the basis of non-retroactive
changes in law would usurp the “applicable statutory
constraints.” Jenkins, 50 F.4th at 1199. The Third Circuit
was equally categorical that “nonretroactive changes to
. . . mandatory minimums . . . cannot be a basis for
compassionate release” because “[s]uch an interpretation
would sow conflict within the statute.” Andrews, 12 F.4th
at 261. And the Fifth Circuit has held that permitting
consideration of non-retroactive changes in a
compassionate release motion would “usurp the
legislative prerogative and use 18 U.S.C. § 3582(c)(1) to
create retroactivity that Congress did not.” McMaryion,
64 F.4th at 260; see id. at 259-60.
None of the courts on the long side of the split held
that the particular circumstances of the particular
prisoner making the motion mattered to their holdings.
They instead held that, as a statutory matter, the
“extraordinary and compelling reasons” contemplated by
the statute cannot include non-retroactive changes in law.
Only this Court can settle whether the Sentencing
Commission or those six courts has the better reading of
that statutory text.
b. Resolving the question presented in the coming
Term, as the Guideline takes effect, will minimize the
confusion and disparate treatment that will arise from the
implementation of the Guideline nationwide. If the Court
concludes that non-retroactive changes in law can be
extraordinary and compelling reasons sufficient to justify
resentencing, the Guideline will be indisputably valid in
every circuit. If, in contrast, the Court concludes that nonretroactive changes in law categorically cannot be
29
extraordinary and compelling reasons sufficient to justify
resentencing, the Guideline will be unambiguously invalid
in every circuit. The Court should therefore take
advantage of this opportunity to clarify the meaning of
§ 3582(c)(1)(A).
3. The reasons the United States has advanced for
denying review of earlier petitions presenting this
question are unpersuasive and, in any event, now
inapplicable in light of the forthcoming Guideline.
The United States has previously argued that this
issue is not important enough to warrant review because
the Sentencing Commission can deprive a decision by this
Court of “any practical significance.” Brief for the United
States in Opposition at 12, Jarvis v. United States (No. 21568). Specifically, the United States has argued that the
Commission can essentially override a decision of this
Court by issuing guidance precluding consideration of
non-retroactive changes in law as “extraordinary and
compelling” reasons for resentencing. Id. at 17-20. That
argument no longer holds. Rather than preclude
consideration of non-retroactive changes in law, the
Commission specifically included non-retroactive
changes in law as a basis for resentencing. See Pet. App.
19a. As a consequence, the Guideline now sets up a direct
conflict with the law in the six circuits that have
interpreted “extraordinary and compelling reasons” to
categorically exclude non-retroactive changes in law. See
pp.16-22, supra (collecting cases).
The United States also previously argued that the
Commission’s adoption of an amendment precluding
consideration of non-retroactive changes in law could
obviate the need for this Court’s review of the question
presented entirely. Brief for the United States in
Opposition at 17-20, Jarvis v. United States (No. 21-568);
Brief for the United States in Opposition at 22-23,
Fraction v. United States (No. 22-5859) (similar). But the
30
adoption of the forthcoming Guideline nullifies that
argument as well. As the United States has previously
stated, “the Commission could not describe
‘extraordinary and compelling reasons’ to include
consideration of a factor that, as a statutory matter, may
not constitute such a reason.” Brief for the United States
in Opposition at 20, Jarvis v. United States (No. 21-568).
Again, six circuits have interpreted the words
“extraordinary and compelling reasons” to categorically
exclude non-retroactive changes in law. See pp. 16-22,
supra (collecting cases). As a result, this Court will
necessarily be called upon to determine whether the
Commission or those six courts has interpreted the
statute correctly.
The Sentencing Commission’s forthcoming Guideline
thus neither resolves this issue nor provides reason to
deny the petition. It is now clear that this Court will be
required to review this question at some point, and that,
far from lacking “practical significance,” this Court’s
decision on this issue will have enormous consequences
for tens of thousands of federal prisoners nationwide.
4. There are no obstacles to review and
determination of this case. Petitioner’s motion for
compassionate release was decided solely based on the
question presented. The district court and the court of
appeals ruled against petitioner because Seventh Circuit
precedent dictated that a change in law does not
constitute an extraordinary and compelling reason
warranting a sentence reduction. See Pet. App. 3a-5a; 6a7a. This clean presentation of a recurring, important, lifealtering issue provides the ideal vehicle for review by this
Court.
The Court should decide this important question in
this case. Waiting would be futile because the Court will
inevitably need to resolve the question presented, and to
deny review now would only delay clarity, foster further
31
confusion, and result in additional disparate treatment for
thousands of federal prisoners.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
NICOLE L. MASIELLO
ARNOLD & PORTER
KAYE SCHOLER LLP
250 West 55th Street
New York, NY 10019
NATE NIEMAN
ATTORNEY AT LAW
329 18th Street
Rock Island, IL 61201
JULY 2023
R. STANTON JONES
ANDREW T. TUTT
Counsel of Record
SEAN A. MIRSKI
DANA OR
MINJAE KIM
KATHRYN C. REED
ARNOLD & PORTER
KAYE SCHOLER LLP
601 Massachusetts Ave., NW
Washington, DC 20001
(202) 942-5000
andrew.tutt@arnoldporter.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.