FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 29, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-5047
MALCOM DEROME MCGEE,
Defendant - Appellant.
--------------------------------------
KANSAS FEDERAL PUBLIC
DEFENDERS,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the Northern District of Oklahoma
(D.C. No. 4:00-CR-00105-CVE-1)
_________________________________
Susan L. Champion (Michael S. Romano, on the briefs), Three Strikes Project, Stanford
Law School, Stanford, California, appearing for Appellant.
Leena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney,
with her on the brief), Office of the United States Attorney for the Northern District of
Oklahoma, Tulsa, Oklahoma, appearing for Appellee.
Melody Brannon, Federal Public Defender, and Kayla Gassmann, Appellate Attorney,
Office of the Federal Public Defender for the District of Kansas, Kansas City, Kansas, on
the brief for Amicus Curiae.
_________________________________
Before MORITZ, SEYMOUR, and BRISCOE, Circuit Judges.
_________________________________
BRISCOE, Circuit Judge.
_________________________________
In November 2000, defendant Malcom McGee was convicted by a jury of
three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram
or more of a mixture of substance containing a detectable amount of PCP, in
violation of 21 U.S.C. § 846; (2) causing another person to possess with intent to
distribute in excess of one kilogram of a mixture or substance containing a detectable
amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C.
§ 2(b); and (3) using a communication facility to commit and facilitate the
commission of a felony, in violation of 21 U.S.C. § 843(b). Because McGee had
previously been convicted in the State of California of two felony drug offenses, the
district court sentenced McGee to a mandatory term of life imprisonment pursuant to
21 U.S.C. § 841(b)(1)(A).
Following Congress’s enactment of the First Step Act of 2018 (First Step Act)
and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C.
§ 3582(c)(1)(A), McGee filed a motion with the district court pursuant to
§ 3582(c)(1)(A)(i) to reduce his sentence based on “extraordinary and compelling
reasons.” The district court denied that motion. McGee now appeals. Exercising
jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court
for further consideration of McGee’s motion.
2
I
McGee’s criminal conduct
In July 2000, McGee participated in a scheme to transport a large quantity of
phencyclidine (PCP) by way of a commercial bus from California to Washington,
D.C. The scheme was discovered by law enforcement officials in Tulsa, Oklahoma,
when the woman transporting the PCP became ill due to the odor of the PCP. McGee
was arrested in Tulsa when he attempted to take possession of the PCP from the
woman.
McGee’s criminal proceedings
In August 2000, a federal grand jury indicted McGee on three criminal counts:
Count One, conspiracy to possess with intent to distribute one kilogram or more of a
mixture or substance containing a detectable amount of PCP, in violation of 21
U.S.C. § 846; Count Two, causing another person to possess with intent to distribute
in excess of one kilogram of a mixture or substance containing a detectable amount
of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b);
and Count Three, using a communication facility, i.e., a telephone, to commit and
facilitate the commission of a felony (i.e., using a telephone to discuss various
matters concerning the possession with intent to distribute and the distribution of
PCP), in violation of 21 U.S.C. § 843(b).
The case proceeded to trial in October 2000. At the conclusion of the
evidence, the jury found McGee guilty on all three counts alleged in the indictment.
The district court subsequently arrested judgment as to Count One. In April 2001,
3
the district court sentenced McGee to a term of life imprisonment on Count Two and
a term of imprisonment of fifty-six years on Count Three, with the terms to run
concurrently.
McGee received a life sentence on Count Two because, at the time of his
federal offense, he had two prior final California felony drug convictions. See 21
U.S.C. § 841(b)(1)(A) (increasing punishment to mandatory life imprisonment if the
defendant committed a violation involving a threshold amount of drugs “after two or
more prior convictions for a felony drug offense have become final”). Those two
prior convictions were: (1) a November 7, 1987 conviction for possession of cocaine;
and (2) an April 14, 1988 conviction for possession of cocaine base with intent to
sell/deliver.
McGee appealed his conviction on Count Two and his sentence on Count
Three. We affirmed the conviction on Count Two, but reversed the sentence on
Count Three and remanded for resentencing on that count.1 United States v. McGee,
291 F.3d 1224, 1225 (10th Cir. 2002). On December 4, 2002, the district court
resentenced McGee to a term of imprisonment of 96 months on Count Three, to run
concurrently with the life sentence previously imposed on Count Two.
1
In reversing McGee’s sentence on Count Three, we noted that “[c]ontrary to
the indictment, the revised presentence investigation report (PSI),” which the district
court adopted, “treated Count [Three] as having charged one violation for each of the
seven telephone calls Mr. McGee made to” the woman who transported the PCP. 291
F.3d at 1227.
4
McGee’s § 2255 motion
In December 2003, McGee filed a motion pursuant to 28 U.S.C. § 2255 to
vacate or set aside his life sentence. In support, McGee noted that “[t]he state of
California [had] . . . adopted Proposition 47, allowing its courts to reclassify certain
felony drug convictions as misdemeanors,” and that, consistent with Proposition 47,
“[a] California court entered a nunc pro tunc judgment reducing one of [his] prior
drug convictions from a felony to a misdemeanor” (specifically, McGee’s 1987
conviction for possession of cocaine was reduced to a misdemeanor). United States
v. McGee, 760 F. App’x 610, 611 (10th Cir. 2019). The district court denied
McGee’s motion, concluding “that McGee still qualified for the life sentence as a
matter of federal law because both his prior felony drug convictions had been final
and applicable at the time he was sentenced under § 841.” Id.
We granted McGee a COA and ultimately affirmed the district court’s denial
of McGee’s § 2255 motion, concluding that “[t]he increased penalties under § 841
[we]re designed to discourage recidivism.” Id. at 616. We noted that “[i]f a
defendant committed a serious federal drug offense knowing that he had two prior
felony drug convictions, and if [he] has not shown that he was factually innocent of
those prior convictions or that they were legally infirm, it does not violate due
process to deny resentencing even if a state legislature later graciously decreased the
penalty associated with a prior offense.” Id.
McGee filed a petition for writ of certiorari with the United States Supreme
Court. That petition was denied. McGee v. United States, 140 S. Ct. 218 (2019).
5
The relevant changes implemented by the First Step Act
Prior to December 2018, a defendant like McGee who had two prior
convictions for felony drug offenses and was sentenced under § 841(b)(1)(A) was
subject to mandatory life imprisonment. On December 21, 2018, Congress passed
the First Step Act, Pub. L. 115-391. Of relevance here, § 401 of the First Step Act
reduced the mandatory minimum sentence under § 841(b)(1)(A) from life to 25 years.
Congress did not, however, make that change retroactive to all inmates, such as
McGee, who were sentenced under § 841(b)(1)(A) prior to the First Step Act.
Instead, § 401(c) of the First Step Act provided that the amendments effected by
§ 401 “shall apply to any offense that was committed before the date of enactment of
this Act, if a sentence for the offense has not been imposed as of such date of
enactment.” Pub. L. No. 115-391, § 401(c), 132 Stat. 5194, 5221 (2018).
As will be discussed in greater detail below, the First Step Act also made
important changes to 18 U.S.C. § 3582(c)(1)(A)(i), which is sometimes referred to as
the “compassionate release” statute.
McGee’s petition for reduction of sentence
On January 10, 2020, McGee filed a request with the warden of the Federal
Correctional Institution in Victorville, California, asking that the warden move for a
reduction of McGee’s sentence pursuant to § 3582(c)(1)(A)(i). McGee received no
response to his request.
On March 10, 2020, McGee filed a motion to reduce his sentence pursuant to
§ 3582(c)(1)(A)(i). McGee argued in his motion that the district court had authority
6
to resentence him under § 3582(c)(1)(A)(i) for extraordinary and compelling reasons.
In support, McGee argued that: (a) he received a mandatory life sentence under a
provision of § 841(b)(1)(A) that was amended by § 401 of the First Step Act because
Congress considered it to be unduly punitive; (b) he was serving a sentence that
would be substantially lower if imposed at the time of his petition because of changes
to federal statutory law and California state drug law2; (c) his remarkable record of
rehabilitation added to the determination that he presented extraordinary and
compelling reasons to support a sentence reduction; and (d) if resentenced and
eventually released, he had a comprehensive reentry plan in place that included
support from his family.
The government opposed McGee’s motion. The government acknowledged
that the First Step Act authorized a defendant to “file a § 3582(c)(1)(A) motion
himself” if “the Director of the Bureau of Prisons had failed to do so.” Aplt. App. at
64. But the government argued that the First Step Act “did not alter the requirements
for granting such a motion.” Id. at 65-66. More specifically, the government argued
that “in order to grant compassionate release motions, courts must still find either
that an inmate is over 70 and meets the other requirements of § 3582(c)(1)(A)(ii), or
2
McGee specifically argued on this point: “Under changes to California’s drug
laws, enacted by the Safe Neighborhoods and Schools Act (“Proposition 47”) in
2014, Mr. McGee’s prior 1987 drug possession conviction has been retroactively
reduced to a misdemeanor by court order. Exhibit (hereafter “Ex.”) A. Under the 21
U.S.C. § 802 definition of a “serious drug felony,” this misdemeanor conviction
could not serve as a prior felony conviction for the purpose of enhancing a sentence
under 21 U.S.C. § 841.” Aplt. App. at 30.
7
that ‘extraordinary and compelling reasons warrant such a reduction,’ and that ‘such
a reduction is consistent with the applicable policy statements issued by the
Sentencing Commission.’” Id. at 66 (emphasis omitted) (quoting § 3582(c)(1)(A)).
Relatedly, the government argued that the Sentencing Commission’s 2018 policy
statement remained valid and that, under that policy statement, there were four
circumstances that provided “extraordinary and compelling reasons” for reducing a
defendant’s sentence. Id. at 66-67. The government in turn argued that McGee could
not “meet either the requirements of § 3582(c)(2)(A)(ii) or any of the circumstances
set forth as ‘extraordinary and compelling reasons’ in the relevant policy statement.”
Id. at 67-68. In particular, the government noted that the Director of the Bureau of
Prisons had not made a determination that there existed in McGee’s case any
extraordinary or compelling reason. Id. at 68-69. The government also argued that,
in any event, “a review of McGee’s circumstances show[ed] they [we]re by no means
extraordinary.” Id. at 69. In particular, the government argued that neither the First
Step Act’s change to § 841(b)(1)(A) nor California’s enactment of Proposition 47 and
the subsequent alteration of one of McGee’s convictions from felony to misdemeanor
constituted extraordinary and compelling circumstances that warranted a reduction in
his life sentence. Lastly, the government argued that McGee’s post-sentencing
rehabilitation, standing alone, could not provide an extraordinary and compelling
reason for compassionate relief in light of the Sentencing Commission’s policy
statement.
8
On April 20, 2020, the district court issued a three-page form order denying
McGee’s motion. To that form order, the district court added the following language
specific to McGee’s case:
Although defendant’s sentence would be substantially lower if
sentenced today post-First Step Act of 2018, Pub. L. 115-391, 132 Stat.
5194 (2018), Congress chose not to make § 401, the provision
applicable to defendant’s mandatory life sentence, retroactive.
Therefore, the Court finds that to utilize the “other reasons”
commentary at USSG §1B1.13, comment. (n.1(D)), to apply § 401 in
order to reduce defendant’s sentence under 18 U.S.C. § 3582(c)(1)(A),
for “extraordinary and compelling reasons,” would usurp the power
given exclusively to Congress. Further, there are no other factors cited
by defendant that correspond with the requirements specified by the
Sentencing Commission to define “extraordinary and compelling
reasons” at USSG §1B1.13, comment. (n.1), to warrant a reduction
under 18 U.S.C. § 3582(c)(1)(A).
Id. at 76.
On April 29, 2020, McGee filed a motion for reconsideration. On May 4,
2020, McGee filed a notice of appeal from the district court’s April 20, 2020
decision.
On May 7, 2020, the district court denied McGee’s motion for reconsideration,
concluding that McGee’s notice of appeal deprived it of jurisdiction.
II
McGee raises two issues on appeal. First, he argues that the district court
erred in determining that it lacked the authority to reduce his sentence. Second, he
argues that extraordinary and compelling reasons that were not fully considered by
the district court warrant a reduction of his sentence. Because we agree with McGee
that the district court misconstrued the nature of its authority under § 3582(c)(1)(A),
9
we reverse and remand to the district court so that it may consider McGee’s motion
anew. Consequently, we do not reach the second issue raised by McGee.
Standard of review
Because McGee’s arguments require us to interpret § 3582(c)(1)(A) and
related statutes and determine the scope of the district court’s authority thereunder,
we apply a de novo standard of review. See United States v. Ansberry, 976 F.3d
1108, 1126 (10th Cir. 2020); United States v. White, 765 F.3d 1240, 1245 (10th Cir.
2014); United States v. Cobb, 584 F.3d 979, 982 (10th Cir. 2009).
Section 3582(c)(1) – history and text
Before addressing McGee’s arguments on appeal, we begin by reviewing the
history of § 3582(c)(1), as well as its current text and the requirements that are
effectively imposed by that text.
“Federal courts are forbidden, as a general matter, to modify a term of
imprisonment once it has been imposed, but th[at] rule of finality is subject to a few
narrow exceptions.” Freeman v. United States, 564 U.S. 522, 526 (2011) (internal
quotation marks and citation omitted). One such exception is contained in
§ 3582(c)(1).
Prior to 2018, § 3582(c)(1) only authorized the Director of the BOP to move
for a reduction in a defendant’s sentence. In other words, from the enactment of
§ 3582(c)(1) in 1984 through late 2018, a defendant could not move for a reduction
in his or her sentence and was instead wholly dependent upon the Director of the
BOP doing so on his or her behalf.
10
Between 1984 and 2013, the Director of the BOP used the process outlined in
§ 3582(c)(1) to release an average of twenty-four inmates per year. United States v.
Rodriguez, 451 F. Supp. 3d 392, 395 (E.D. Pa. 2020) (citing Hearing on
Compassionate Release and the Conditions of Supervision Before the U.S. Sentencing
Comm’n, 2016, statement of Michael E. Horowitz, Inspector General, Dep’t of
Justice). In 2013, the Office of the Inspector General reported that the BOP
inconsistently implemented and poorly managed the compassionate release program,
resulting in overlooked eligible inmates and terminally ill inmates dying while their
requests were pending. Id.
Congress sought to address these issues by way of the First Step Act. Section
603(b) of the First Step Act, entitled “INCREASING THE USE AND
TRANSPARENCY OF COMPASSIONATE RELEASE,” modified § 3582(c)(1) to
allow a defendant to directly file a motion for compassionate release with the district
court after either exhausting administrative rights to appeal the Director of the BOP’s
failure to file such a motion or the passage of 30 days from the defendant’s
unanswered request to the warden for such relief. See 132 Stat. at 5239.
As amended by the First Step Act, § 3582(c)(1) now provides, in pertinent
part, as follows:
(c) Modification of an imposed term of imprisonment.--The court
may not modify a term of imprisonment once it has been imposed
except that—
(1) in any case—
11
(A) the court, upon motion of the Director of the Bureau of
Prisons, or upon motion of the defendant after the defendant
has fully exhausted all administrative rights to appeal a failure
of the Bureau of Prisons to bring a motion on the defendant’s
behalf or the lapse of 30 days from the receipt of such a
request by the warden of the defendant’s facility, whichever is
earlier, may reduce the term of imprisonment (and may
impose a term of probation or supervised release with or
without conditions that does not exceed the unserved portion
of the original term of imprisonment), after considering the
factors set forth in section 3553(a) to the extent that they are
applicable, if it finds that—
(i) extraordinary and compelling reasons warrant such a
reduction; . . . and that such a reduction is consistent
with applicable policy statements issued by the
Sentencing Commission . . . .
18 U.S.C. § 3582(c)(1)(A)(i).
Under the plain language of the statute, a district court may thus grant a
motion for reduction of sentence, whether filed by the Director of the BOP or a
defendant, only if three requirements are met: (1) the district court finds that
extraordinary and compelling reasons warrant such a reduction; (2) the district court
finds that such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission; and (3) the district court considers the factors set forth
in § 3553(a), to the extent that they are applicable.
The Sixth Circuit, in a recent decision, interpreted § 3582(c)(1)(A)(i) in this
same manner and, in doing so, adopted what it described as a three-step test for
“courts considering motions filed under § 3582(c)(1).” United States v. Jones, 980
F.3d 1098, 1107 (6th Cir. 2020). “At step one” of the test, the Sixth Circuit held, “a
[district] court must ‘find[]’ whether ‘extraordinary and compelling reasons warrant’
12
a sentence reduction.” Id. at 1107-08 (quoting § 3582(c)(1)(A)(i)). “At step two,”
the Sixth Circuit held, “a [district] court must ‘find[]’ whether ‘such reduction is
consistent with applicable policy statements issued by the Sentencing Commission.’”
Id. at 1108 (emphasis in original) (quoting § 3582(c)(1)(A)). “At step three,” the
Sixth Circuit held, “‘§ 3582(c)[(1)(A)] instructs a court to 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. (quoting Dillon v. United States, 560 U.S. 817, 827
(2010)). Because this three-step test is consistent with the plain language of the
statute, we adopt the test for use in this circuit.
We also agree with the Sixth Circuit that “district courts may deny
compassionate-release motions when any of the three prerequisites listed in
§ 3582(c)(1)(A) is lacking and do not need to address the others.” United States v.
Elias, 984 F.3d 516, 519 (6th Cir. 2021). But when a “district court grants a motion
for compassionate release, it must of course address all three steps.” United States v.
Navarro, 986 F.3d 668, 670 (6th Cir. 2021) (citing Elias, 984 F.2d at 519).
Did the district court err in concluding that it lacked authority to reduce
McGee’s sentence?
We now turn to McGee’s first issue on appeal. McGee argues that the district
court erred in concluding that it lacked the authority to grant relief under
§ 3582(c)(1)(A)(i) based upon the factors cited in his motion. For the reasons outlined
below, we agree with McGee and conclude that the authority afforded to the district court
13
under both steps one and two of the statutory test outlined in § 3582(c)(1)(A)(i) is greater
than the district court understood it to be.
a) The district court’s general authority at step one of the statutory test
It is apparent from the district court’s decision that it concluded its authority at
step one of the statutory test was constrained by the Sentencing Commission’s policy
statements.3 More specifically, the district court’s decision indicates that it concluded the
Sentencing Commission possessed the exclusive authority to define, through its general
policy statements, the statutory phrase “extraordinary and compelling reasons.” This, we
conclude, was an error.
Section 3582(c)(1)(A)(i), as we have discussed, requires a district court
considering a motion filed thereunder to find, at the first step of the statutory test,
whether “extraordinary and compelling reasons warrant a sentence reduction.” Id.
(quoting § 3582(c)(1)(A)(i)). But neither § 3582(c)(1)(A)(i), nor any other part of
the statute, defines the phrase “extraordinary and compelling reasons” or indicates
that the Sentencing Commission is charged with defining the phrase. That said,
Congress has, in a different statute, directed the Sentencing Commission, as part of
its statutory duties, to promulgate “general policy statements” regarding the
appropriate use of the sentence modification provisions set forth in § 3582(c). 28
3
The district court stated in its decision: “Further, there are no other factors
cited by defendant that correspond with the requirements specified by the Sentencing
Commission to define “extraordinary and compelling reasons” at U.S.S.G. § 1B1.13,
comment. (n.1), to warrant a reduction under 18 U.S.C. § 3582(c)(1)(A).” Aplt. App.
at 76.
14
U.S.C. § 994(a)(2)(C). Congress has also directed the Sentencing Commission, in
promulgating those general policy statements, to “describe what should be considered
extraordinary and compelling reasons for sentence reduction, including the criteria to
be applied and a list of specific examples.” 28 U.S.C. § 994(t). “Rehabilitation of the
defendant alone,” Congress has stated, “shall not be considered an extraordinary and
compelling reason.” Id.
The government argues in its appellate response brief that Congress, through
this statutory framework, intended “that the Sentencing Commission, not courts,
define what types of circumstances constitute ‘extraordinary and compelling reasons’
warranting compassionate release.” Aple. Br. at 17. In our view, however, the most
plausible interpretation of both § 994(t) and § 3582(c)(1)(A)(i) is that Congress
intended to afford district courts with discretion, in carrying out the first step of the
statutory test in § 3582(c)(1)(A)(i), to independently determine the existence of
“extraordinary and compelling reasons,” and for that discretion to be circumscribed
under the second step of the statutory test by requiring district courts to find that a
sentence reduction is consistent with applicable policy statements issued by the
Sentencing Commission.
Turning first to § 994(t), we note that Congress, in outlining the Sentencing
Commission’s duties, chose to employ the word “describe” rather than the word
“define.” The word “describe” is commonly defined to mean “to use words to
convey a mental image or impression of (a person, thing, scene, situation, event, etc.)
by referring to characteristic or significant qualities, features, or details.” Oxford
15
English Dictionary Online (3d ed. 2015), https://www.oed.com/view/Entry/50732
(last accessed Mar. 18, 2021). In contrast, the word “define” is commonly
understood to mean “[t]o set bounds to, to limit, restrict, confine.” Id.,
https://www.oed.com/view/Entry/48874 (last accessed Mar. 18, 2021). We presume
that Congress was aware of the difference between these two words and knowingly
chose to use the word “describe,” rather than the word “define,” in setting forth its
statutory directive to the Sentencing Commission in § 994(t). Cf. Bostock v. Clayton
Cty., 140 S. Ct. 1731, 1738 (2020) (“This Court normally interprets a statute in
accord with the ordinary public meaning of its terms at the time of its enactment.”).
Congress’s choice of the word “describe” makes sense when considered in
light of the fact that the specific duty imposed by § 994(t) is part of the Sentencing
Commission’s overarching duty to “promulgat[e] general policy statements regarding
the sentencing modification provisions in section 3582(c)(1)(A) of title 18.” 28
U.S.C. § 994(t); see 28 U.S.C. § 994(a)(2)(C). As Congress, the federal courts, and
the Department of Justice have all long recognized, “general policy statements” differ
from “substantive rules” or even “interpretative rules.” See generally 5 U.S.C. § 553
(outlining rule-making procedures that apply to substantive rules, but not to general
policy statements or interpretative rules); Christensen v. Harris Cty., 529 U.S. 576,
587 (2000) (holding that “interpretations contained in policy statements . . . do not
warrant Chevron-style deference” and instead “are ‘entitled to respect’ under [the]
decision in Skidmore”); Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979)
(distinguishing “substantive rules” from “interpretative rules” and “general
16
statements of policy”); Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d
1106, 1109 (D.C. Cir. 1993) (distinguishing “substantive rules,” “general statements
of policy” and “interpretative rules”); Attorney General’s Manual on the
Administrative Procedure Act 30 n.3 (1947) (setting forth “working definitions” of
“substantive rules,” “interpretative rules,” and “general statements of policy”). In
particular, “general statements of policy” are issued by an agency to advise the public
prospectively of the manner in which the agency intends for a discretionary power to
be exercised, and thus differ from “interpretative rules,” which are issued by an
agency to advise the public of the agency’s construction of the statutes it administers,
as well as from “substantive rules,” which have the force or effect of law. Am.
Mining Cong., 995 F.2d at 1109 (citing Attorney General’s Manual on the
Administrative Procedure Act).
Congress’s use of the word “describe” in § 994(t) is also consistent, we
conclude, with the overall framework of § 3582(c)(1)(A). If, as the government
asserts, Congress intended by way of § 994(t) to afford the Sentencing Commission
with the exclusive authority to define the phrase “extraordinary and compelling
reasons,” that would mean that district courts, in carrying out the first step of
§ 3582(c)(1)(A)’s statutory test, would have to examine the Sentencing
Commission’s general policy statements to determine the meaning of the phrase
“extraordinary and compelling reasons,” and would in turn have to, in carrying out
the second step of § 3582(c)(1)(A)(i)’s statutory test, return to those exact same
policy statements to determine whether a reduction is “consistent with” any
17
“applicable” statements. The government’s position would thus render the second
part of § 3582(c)(1)(A)’s statutory test largely, if not entirely, superfluous. If, on the
other hand, the Sentencing Commission’s description of what constitutes
“extraordinary and compelling reasons” is treated not as the equivalent of a statutory
definition, but instead as a “general policy statement,” the problem is avoided.
District courts, in carrying out the first step of § 3582(c)(1)(A)’s statutory test, decide
for themselves whether “extraordinary and compelling reasons” exist in a given case.
Then, in carrying out the second step of § 3582(c)(1)(A)’s statutory test, district
courts turn to the Sentencing Commission’s policy statements to determine whether a
reduction is “consistent with” any “applicable” policy statements, including any
descriptions given by the Sentencing Commission of what it considers to be
“extraordinary and compelling reasons.”
We therefore conclude that district courts, in applying the first part of
§ 3582(c)(1)(A)’s statutory test, have the authority to determine for themselves what
constitutes “extraordinary and compelling reasons,” but that this authority is effectively
circumscribed by the second part of the statutory test, i.e., the requirement that a district
court find that a reduction is consistent with applicable policy statements issued by the
Sentencing Commission pursuant to §§ 994(a)(2)(C) and (t). In other words, we
conclude that Congress did not, by way of § 994(t), intend for the Sentencing
Commission to exclusively define the phrase “extraordinary and compelling reasons,” but
rather for the Sentencing Commission to describe those characteristic or significant
qualities or features that typically constitute “extraordinary and compelling reasons,” and
18
for those guideposts to serve as part of the general policy statements to be considered by
district courts under the second part of the statutory test in § 3582(c)(1)(A).
b) The district court’s authority to consider McGee’s § 841(b)(1)(A) sentence
The district court also, as part of its analysis under the first step of the statutory
test, concluded that it lacked the authority to treat the First Step Act’s reduction of the
mandatory minimum sentence under § 841(b)(1)(A) from life to 25 years as an
“extraordinary and compelling reason” for purposes of § 3582(c)(1)(A)(i). The district
court stated that, because “Congress chose not to make § 401 . . . retroactive” to all
defendants previously sentenced under § 841(b)(1)(A), treating the enactment of § 401 as
a basis for reducing McGee’s sentence under § 3582(c)(1)(A)(i) “would usurp the power
given exclusively to Congress.” Aplt. App. at 76. As we shall proceed to explain, we
agree in part and disagree in part with the district court’s conclusion.
We begin by noting that Congress has not directly addressed the precise question
we now face, i.e., whether a district court considering a motion filed by a defendant under
§ 3582(c)(1)(A) may, under the first step of the statutory test, find the existence of
“extraordinary and compelling circumstances” based, at least in part, on the fact that the
First Step Act lowered the mandatory minimum sentences to be imposed under
§ 841(b)(1)(A). What we do know with certainty, however, is that Congress chose not to
make this statutory change retroactive to all defendants who were sentenced under
§ 841(b)(1)(A) prior to the First Step Act. We also know that Congress intended for
§ 3582(c)(1)(A) “to provide a ‘safety valve’ that allows for sentence reductions” to any
defendant “when there is not a specific statute that already affords relief but
19
‘extraordinary and compelling reasons’ nevertheless justify a reduction.” United States v.
McCoy, 981 F.3d 271, 287 (4th Cir. 2020) (emphasis in original). And we know that
Congress, by way of § 603(b) of the First Step Act, intended to increase the use of
sentence reductions under § 3582(c)(1)(A).
With these statutory guideposts in mind, we turn to two recent decisions, one from
the Sixth Circuit and the other from the Fourth Circuit, that provide useful analysis in
answering the question before us. In United States v. Tomes, — F.3d —, 2021 WL
868555 (6th Cir. Mar. 9, 2021), the Sixth Circuit considered a defendant’s appeal from a
district court’s denial of his motion for compassionate release under § 3582(c)(1)(A).
The defendant argued, in part, that “he should receive compassionate release because if
he were sentenced today for the same crime, he would not have gotten the sentence he
did.” Id. at *4. In support, the defendant “point[ed] out that before the First Step Act, a
violation of 21 U.S.C. § 841(b)(1)(A) (one of the statutes to which [he] pled guilty to
violating) carried a mandatory minimum sentence of twenty years if the defendant had a
prior conviction for a ‘felony drug offense.’” Id. The defendant in turn noted that
“[s]ection 401 of the First Step Act . . . amended § 841, and it now imposes a shorter
mandatory minimum of fifteen years, and only when the prior offense was a ‘serious drug
felony.’” Id. (quoting 21 U.S.C. § 841(b)(1)(A)). He “argue[d] that his prior state
convictions for dealing in cocaine and trafficking in a controlled substance d[id] not
qualify as ‘serious drug felonies,’” and that, as a result, “the mandatory floor no longer
applies to him.” Id.
20
The Sixth Circuit rejected these arguments. In doing so, the Sixth Circuit noted
that “[t]he First Step Act explicitly says that the amendment” relied on by the defendant,
i.e., § 401, “applies only where a sentence for the offense has not been imposed as of the
date of the Act’s enactment.” Id. (quotation marks and brackets omitted). Because the
defendant’s sentence was imposed prior to the First Step Act, the Sixth Circuit concluded
that § 401 was “inapplicable” to him. Id. The Sixth Circuit also stated that it “w[ould]
not render § 401(c) useless by using § 3582(c)(1)(A) as an end run around Congress’s
careful effort to limit the retroactivity of the First Step Act’s reforms.” Id. Thus, in sum,
the Sixth Circuit concluded that the mere fact of a defendant’s pre-First Step Act
mandatory minimum sentence under § 841(b)(1)(A) cannot serve as the basis for a
sentence reduction under § 3582(c)(1)(A).
In McCoy, the Fourth Circuit considered a question substantially similar to the one
we now face: whether it is permissible for district courts, at step one of § 3582(c)(1)(A)’s
test, to consider the First Step Act’s elimination of “sentence-stacking” under 18 U.S.C.
§ 924(c), even though Congress chose not to make that change retroactive to all
defendants who received stacked sentences prior to the First Step Act. McCoy, 981 F.3d
at 284-87. The Fourth Circuit concluded that it was permissible for district courts to
“treat[] as ‘extraordinary and compelling reasons’ for compassionate release the severity
of the defendants’ § 924(c) sentences and the extent of the disparity between the
defendants’ sentences and those provided for under the First Step Act.” Id. at 286. The
Fourth Circuit emphasized, however, that it was not the length of the original sentences
alone that constituted “extraordinary and compelling reasons.” Rather, the Fourth Circuit
21
noted, the judgments before it “were the product of . . . full consideration of the
defendants’ individual circumstances,” including, but not limited to, their § 924(c)
sentences. Id. Those circumstances included “the defendants’ relative youth . . . at the
time of their offenses,” the amount of time each defendant had already served on their
original sentences, the defendants’ “excellent institutional records,” and the “substantial
steps toward rehabilitation” taken by the defendants. Id.
In reaching this conclusion, the Fourth Circuit 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. “The fact that Congress chose not to make § 403
categorically retroactive,” the Fourth Circuit concluded, “does not mean that courts may
not consider that legislative change in conducting their individualized reviews of motions
for compassionate release under §3582(c)(1)(A)(i).” Id. The Fourth Circuit explained:
“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. “Indeed,” the Fourth Circuit noted, “the very purpose of
§ 3582(c)(1)(A) is to provide a ‘safety valve’ that allows for sentence reductions when
there is not a specific statute that already affords relief but ‘extraordinary and compelling
reasons’ nevertheless justify a reduction.” Id. at 287 (emphasis in original). In sum, the
Fourth Circuit concluded that it saw “nothing inconsistent about Congress’s paired First
Step Act judgments: that not all defendants convicted under § 924(c) should receive new
22
sentences, but that the courts should be empowered to relieve some defendants of those
sentences on a case-by-case basis.” Id. (emphasis in original; quotation marks omitted).
We find the Fourth Circuit’s analysis persuasive and conclude that it applies
equally to the situation presented here. The plain text of § 401(c) of the First Step Act
makes clear that Congress chose not to afford relief to all defendants who, prior to the
First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A).
But nothing in § 401(c) or any other part of the First Step Act indicates that Congress
intended to prohibit district courts, on an individualized, case-by-case basis, from
granting sentence reductions under § 3582(c)(1)(A)(i) to some of those defendants.
Indeed, as the Fourth Circuit noted in McCoy, Congress’s purpose in enacting
§ 3582(c)(1)(A) was to provide a narrow avenue for relief “when there is not a specific
statute that already affords relief but ‘extraordinary and compelling reasons’ nevertheless
justify a [sentence] reduction.” Id. at 287 (emphasis in original). Thus, the possibility of
a district court finding the existence of “extraordinary and compelling reasons” based, in
part, on a defendant’s pre-First Step Act mandatory life sentence under § 841(b)(1)(A)
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 a
defendant is serving a pre-First Step Act mandatory life sentence imposed under
§ 841(b)(1)(A) cannot, standing alone, serve as the basis for a sentence reduction under
§ 3582(c)(1)(A)(i). Instead, we conclude that it can only be the combination of such a
sentence and a defendant’s unique circumstances that constitute “extraordinary and
compelling reasons” for purposes of § 3582(c)(1)(A)(i). We make no attempt at this
23
point, however, to catalog what those unique circumstances might be. Instead, we leave
it to the district court on remand to determine whether, in McGee’s case, there are unique
circumstances that, in combination with the mandatory sentence he received under
§ 841(b)(1)(A), constitute “extraordinary and compelling reasons” for a sentence
reduction under § 3582(c)(1)(A).
c) The district court’s authority at step two of the statutory test
The district court’s decision also indicates that the district court viewed its
authority, at step two of the statutory test, as limited by the Sentencing Commission’s
most recent policy statement. In other words, the district court appears to have treated
the Sentencing Commission’s most recent policy statement as “applicable” to McGee’s
motion and in turn concluded that the reasons cited by McGee in his motion were not
“consistent with” that policy statement. Although we agree, as discussed above, that
Congress intended for the Sentencing Commission’s policy statements to serve as
guideposts for district courts under the second part of the statutory test, we conclude that
the Sentencing Commission’s most recent policy statement, which was issued prior to the
First Step Act, is not “applicable” to McGee’s motion. We therefore conclude that the
district court erred in considering itself bound by that policy statement.
As we have discussed, § 994(a)(2)(C) requires the Sentencing Commission to
promulgate “general policy statements regarding . . . the sentence modification
provisions set forth in section[] . . . 3582(c) of title 18.” 28 U.S.C. § 994(a)(2)(C).
The Sentencing Commission’s most recent policy statement regarding sentencing
reductions under § 3582(c)(1) was promulgated on November 1, 2018, slightly more
24
than one month before the enactment of the First Step Act. That policy statement
provides as follows:
Upon motion of the Director of the Bureau of Prisons under 18 U.S.C.
§ 3582(c)(1)(A), the court may reduce a term of imprisonment (and may
impose a term of supervised release with or without conditions that does
not exceed the unserved portion of the original term of imprisonment)
if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the
extent that they are applicable, the court determines that—
(1)(A) Extraordinary and compelling reasons warrant the reduction; or
(B) The defendant (i) is at least 70 years old; and (ii) has served at least
30 years in prison pursuant to a sentence imposed under 18 U.S.C.
§ 3559(c) for the offense or offenses for which the defendant is
imprisoned;
(2) The defendant is not a danger to the safety of any other person or to the
community, as provided in 18 U.S.C. § 3142(g); and
(3) The reduction is consistent with this policy statement.
U.S.S.G. § 1B1.13 (2018).
The Commentary to § 1B1.13, in obvious response to Congress’s mandate to the
Sentencing Commission in § 994(t) to “describe what should be considered extraordinary
and compelling reasons for sentence reduction,” provides as follows:
1. Extraordinary and Compelling Reasons.--Provided the defendant
meets the requirements of subdivision (2), extraordinary and compelling
reasons exist under any of the circumstances set forth below:
(A) Medical Condition of the Defendant.--
(i) The defendant is suffering from a terminal illness (i.e., a serious and
advanced illness with an end of life trajectory). A specific prognosis of
life expectancy (i.e., a probability of death within a specific time period)
is not required. Examples include metastatic solid-tumor cancer,
amyotrophic lateral sclerosis (ALS), end-stage organ disease, and
advanced dementia.
(ii) The defendant is--
(I) suffering from a serious physical or medical condition,
25
(II) suffering from a serious functional or cognitive impairment, or
(III) experiencing deteriorating physical or mental health because of the
aging process,
that substantially diminishes the ability of the defendant to provide
self-care within the environment of a correctional facility and from
which he or she is not expected to recover.
(B) Age of the Defendant.--The defendant (i) is at least 65 years old;
(ii) is experiencing a serious deterioration in physical or mental health
because of the aging process; and (iii) has served at least 10 years or 75
percent of his or her term of imprisonment, whichever is less.
(C) Family Circumstances.--
(i) The death or incapacitation of the caregiver of the defendant’s minor
child or minor children.
(ii) The incapacitation of the defendant's spouse or registered partner
when the defendant would be the only available caregiver for the spouse
or registered partner.
(D) Other Reasons.--As determined by the Director of the Bureau of
Prisons, there exists in the defendant’s case an extraordinary and
compelling reason other than, or in combination with, the reasons
described in subdivisions (A) through (C).
2. Foreseeability of Extraordinary and Compelling Reasons.--For
purposes of this policy statement, an extraordinary and compelling reason
need not have been unforeseen at the time of sentencing in order to warrant
a reduction in the term of imprisonment. Therefore, the fact that an
extraordinary and compelling reason reasonably could have been known or
anticipated by the sentencing court does not preclude consideration for a
reduction under this policy statement.
3. Rehabilitation of the Defendant.--Pursuant to 28 U.S.C. § 994(t),
rehabilitation of the defendant is not, by itself, an extraordinary and
compelling reason for purposes of this policy statement.
Id. cmt. 1-3.4
Although Congress’s enactment of the First Step Act and its amendment of
§ 3582(c)(1) should have prompted the Sentencing Commission to revise the policy
4
The remainder of the Commentary addresses the procedural aspects of the
compassionate release statute as they existed prior to the First Step Act.
26
statement set forth in § 1B1.13, the Sentencing Commission has, to date, been unable to
do so. The Sentencing Commission consists of seven voting members and, per statute,
requires four members for a quorum to amend the guidelines. 28 U.S.C. §§ 991(a)
(setting forth the number of members), 994(a) (requiring the vote of four members).
Since the First Step Act was enacted, the Commission has had only two voting members.
Thus, the Commission has been unable to comply with its statutory duty of promulgating
a post-First Step Act policy statement regarding the appropriate use of the sentence
reduction provisions of § 3582(c)(1)(A)(i).
The government argues that the Sentencing Commission’s existing policy
statement remains binding on district courts, even in cases where the defendant, rather
than the Director of the BOP, has filed a motion for sentence reduction under
§ 3582(c)(1)(A). The problem with this position, however, is at least two-fold. First, it
ignores the fact that the Sentencing Commission has failed to fulfill its statutory duty to
issue a post-First Step Act policy statement recognizing the ability of defendants to file
their own motions for sentence reductions. Second, and relatedly, it effectively undercuts
the statutory changes that Congress made in the First Step Act when it authorized
defendants to file their own motions. More specifically, treating the existing policy
statement as continuing to be applicable would effectively eliminate, in all cases
involving motions filed directly by defendants rather than the Director of the BOP, the
“Other Reasons” (i.e., “catch-all”) category that the Sentencing Commission clearly
intended to exist. This is because the “catch-all” category, as described in the Sentencing
Commission’s existing policy statement, requires a determination by the Director of the
27
BOP that extraordinary and compelling circumstances exist in a given case. But, in a
case where the defendant has moved for relief under the statute, the Director of the BOP
has necessarily not made any such determination. This is problematic and clearly
undercuts not only Congress’s intent to expand the use of compassionate release,5 but
also the Sentencing Commission’s intent to recognize a “catch-all” category of cases in
addition to those that fall within the narrow confines of the first three categories of cases.
Thus, we reject the government’s position. See generally Dorsey v. United States, 567
U.S. 260, 266 (2012) (noting that “federal sentencing statutes . . . interact[] with the
Guidelines in an important way,” and always “trump[] the Guidelines”).
We conclude instead, as have the Second, Fourth, Sixth, and Seventh Circuits, that
the Sentencing Commission’s existing policy statement is applicable only to motions for
sentence reductions filed by the Director of the BOP, and not to motions filed directly by
defendants. See McCoy, 981 F.3d at 281; United States v. Gunn, 980 F.3d 1178, 1180
(7th Cir. 2020); Jones, 980 F.3d at 1109; United States v. Brooker, 976 F.3d 228, 236 (2d
Cir. 2020). “In other words, if a compassionate release motion is not brought by the BOP
Director, Guideline § 1B1.13” would “not, by its own terms [be considered to] apply to
it.” Brooker, 976 F.3d at 236. “Because Guideline § 1B1.13 is not ‘applicable’ to
compassionate release motions brought by defendants, Application Note 1(D) cannot
5
Although Congress undoubtedly knew that there would be some time lag
between the time of the statutory changes it made with the First Step Act and the
Sentencing Commission’s issuance of a new policy statement recognizing those
changes, it surely could not have known, and did not intend, that there would be a
significant time lag, or that the Sentencing Commission would fail altogether to issue
a new policy statement.
28
constrain district courts’ discretion to consider whether any reasons are extraordinary and
compelling.” Id.
d) Conclusion
Because the district court misunderstood the extent of its authority at both steps
one and two of § 3582(c)(1)(A)’s statutory test, we reverse the district court’s decision
and remand to the district court so that it may consider McGee’s motion anew.6
III
The judgment of the district court is REVERSED and the case is REMANDED to
the district court for further proceedings consistent with this opinion.
6
For that same reason, we do not address the second issue raised by McGee in
his appeal, i.e., whether the circumstances outlined in his motion constitute
“extraordinary and compelling reasons” for reducing his sentence under
§ 3582(c)(1)(A).
29