United States v. Jason Jarvis

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0126p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

┐
UNITED STATES OF AMERICA,
│
Plaintiff-Appellee, │
> No. 20-3912
│
v. │
│
JASON J. JARVIS, │
Defendant-Appellant. │
┘

Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:94-cr-00068-4—Christopher A. Boyko, District Judge.

Decided and Filed: June 3, 2021

Before: SUTTON, Chief Judge; CLAY and McKEAGUE, Circuit Judges.
_________________

COUNSEL

ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Justin Seabury Gould, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellee.

SUTTON, C.J., delivered the opinion of the court in which McKEAGUE, J., joined.
CLAY, J. (pp. 9–16), delivered a separate dissenting opinion.
_________________

OPINION
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SUTTON, Chief Judge. A jury found Jason Jarvis guilty of committing a series of bank
robberies. He now seeks a reduced sentence. The district court denied his motion for
compassionate release, concluding that non-retroactive changes in the law could not serve as the
“extraordinary and compelling reasons” required for a sentence reduction. We agree and affirm.
 No. 20-3912 United States v. Jarvis Page 2

In 1994, a federal grand jury indicted Jarvis on a slew of offenses connected with a string
of bank robberies. A jury found him guilty of four counts of armed bank robbery, one count of
conspiracy to commit the same, and five counts of using a firearm in furtherance of a crime of
violence. See 18 U.S.C. §§ 2113, 371, 924(c).

In sentencing Jarvis, the district court determined that his first firearm conviction under
§ 924(c) generated a statutory minimum sentence of five years and that his other four § 924(c)
convictions counted as repeat offenses, each subject to a statutory minimum of 20 years (to be
imposed consecutively). 18 U.S.C. § 924(c)(1) (1994). The court sentenced Jarvis to 85 years
on his § 924(c) convictions and to 11 years on his other convictions, generating a total sentence
of 96 years.

In 2014, the Supreme Court decided Rosemond v. United States, 572 U.S. 65 (2014).
Rosemond clarified the proof required for the intent element of aiding-and-abetting liability
under § 924(c). To satisfy the element, a defendant must have “advance knowledge” that a
firearm would be used in the crime. Rosemond, 572 U.S. at 78. In Rosemond’s aftermath, Jarvis
successfully moved to have three of his § 924(c) convictions vacated for insufficient evidence of
advance knowledge. See Fed. R. Crim. P. 60(b). The district court resentenced Jarvis to 40
years: 5 for his first § 924(c) conviction, 20 for his second, and 15 for his bank robbery and
conspiracy convictions.

In 2018, Congress enacted the First Step Act. See Pub. L. No. 115-391, 132 Stat. 5194.
Relevant here, the Act amended § 924(c), limiting the kinds of firearm convictions that would
count as repeat offenses. First Step Act, § 403(a); see United States v. Richardson, 948 F.3d
733, 744–45 (6th Cir. 2020). Were Jarvis sentenced today under these changes, his second
§ 924(c) conviction would generate a statutory minimum of 5 years rather than 20 years. But
Congress expressly chose not to apply this change to defendants sentenced before the passage of
the Act. First Step Act, § 403(b); see Richardson, 948 F.3d at 745–46, 753.
 No. 20-3912 United States v. Jarvis Page 3

Even so, Jarvis moved for a sentence reduction under what has come to be known as the
“compassionate release” statute. See 18 U.S.C. § 3582(c)(1)(A)(i). That statute allows district
courts to lower a defendant’s sentence if, among other requirements, “extraordinary and
compelling reasons” support a reduction. Id. If such reasons exist, the district court then
considers the § 3553(a) factors in determining what kind of reduction to grant. Id.; United States
v. Ruffin, 978 F.3d 1000, 1005 (6th Cir. 2020). In bringing the motion, Jarvis invoked the
COVID-19 pandemic and the First Step Act’s amendments to § 924(c). As for the latter, he
contended that, if he were sentenced for the same offenses today, he would receive a sentence of
25 years, not 40 years. Having served 26 years already, he asked the district court to release him.

The district court denied the motion. Among other rationales, it explained that the First
Step Act’s non-retroactive change to § 924(c) could not as a matter of law be an “extraordinary
and compelling” reason under § 3582(c)(1)(A)(i). R.580 at 6–7. Jarvis appeals that ruling and a
few other aspects of the order.

A recent decision all but resolves this appeal in favor of the government. In United
States v. Tomes, we held that a similar, non-retroactive statutory change in the First Step Act
could not serve as an “extraordinary and compelling reason” under § 3582(c)(1)(A)(i). 990 F.3d
500, 505 (6th Cir. 2021).

The provision at issue in Tomes, § 401 of the First Step Act, reduced the penalties for
certain drug crimes. Id. When it came to § 401’s retroactivity, Congress struck a deliberate
balance: “This section, and the amendments made by this section, 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.” First Step Act, § 401(c). Permitting defendants
sentenced before the Act to benefit from § 401, we reasoned, would render § 401(c) useless.
Tomes, 990 F.3d at 505. Tomes establishes that the sentence-reduction statute, § 3582(c)(1)(A),
does not give district courts a license to “end run around Congress’s careful effort to limit the
retroactivity of the First Step Act’s reforms.” Id.; see 1 U.S.C. § 109; cf. United States v.
Blewett, 746 F.3d 647, 656–58 (6th Cir. 2013).
 No. 20-3912 United States v. Jarvis Page 4

That principle applies with identical force here. As it did for § 401 of the First Step
Act, Congress explained that § 403 of the Act (which amended § 924(c)) “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.” First Step Act, § 403(b). The same
non-retroactivity language in the same Act means the same result. As in Tomes, we “will not
render” § 403(b) “useless by using § 3582(c)(1)(A)” to thwart Congress’s retroactivity choices.
990 F.3d at 505.

Jarvis argues that, even if the First Step Act’s amendments do not amount to an
extraordinary and compelling reason on their own, they meet the standard when combined with
three other considerations: COVID-19, his high blood pressure, and his rehabilitative efforts.
His approach assumes that the district court did not err when it reasoned that these three
considerations in combination did not rise to the level of extraordinary and compelling. See
United States v. Loggins, 966 F.3d 891, 893 (8th Cir. 2020). The approach then contemplates
that an error nonetheless occurred when the court failed to add the First Step Act’s
non-retroactive amendments to the extraordinary-and-compelling equation. But adding a legally
impermissible ground to three insufficient factual considerations does not entitle a defendant to a
sentence reduction.

Jarvis insists that Tomes’s First Step Act discussion amounts to dicta. We do not see
why. That analysis was central to its reasoning, the key point indeed of its reasoning. Ask this
question: Would Tomes have come out differently if sentencing law required the district court to
consider the First Step Act amendments in deciding whether extraordinary circumstances had
been shown? Yes is the only answer we can discern from reading the opinion. That the First
Step Act’s amendments could amount to an extraordinary and compelling reason, Tomes
reasoned, fails to grapple with congressional design, expressed through the text of the statute, in
which Congress chose not to make these sentencing amendments retroactive. 990 F.3d at 505.
Why would the same Congress that specifically decided to make these sentencing reductions
non-retroactive in 2018 somehow mean to use a general sentencing statute from 1984 to
unscramble that approach? If every defendant who received a longer sentence than the one he
would receive today became eligible for compassionate release, the balance Congress struck
 No. 20-3912 United States v. Jarvis Page 5

would come to naught. See id.; see also United States v. Maumau, 993 F.3d 821, 838 (10th Cir.
2021) (Tymkovich, C.J., concurring) (“Indeed, 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.”).

We appreciate that the Fourth Circuit disagrees with us, and that the Tenth Circuit
disagrees in part with us. The Fourth Circuit held that the First Step Act’s changes to § 924(c),
plus the resulting “disparity” between the sentence a defendant received and “the sentence a
defendant would receive today,” may amount to “extraordinary and compelling reasons.” United
States v. McCoy, 981 F.3d 271, 285–87 (4th Cir. 2020). The Tenth Circuit reasoned that the
First Step Act’s non-retroactive amendments may satisfy the standard when “combin[ed]” with
“a defendant’s unique circumstances.” United States v. McGee, 992 F.3d 1035, 1048 (10th Cir.
2021).

The first answer to this line of argument is that Tomes binds us. McCoy and McGee do
not.

The second answer is that McCoy and McGee seem to rest on the goals of alleviating
unfair and unnecessary sentences as judged by today’s sentencing laws, McCoy, 981 F.3d at
285–86, and of promoting “individualized, case-by-case” sentencing decisions, McGee, 992 F.3d
at 1047. We have no quarrel with these ends. But there happens to be a superior means for
achieving them, one that accounts for these fairness concerns and honors the choices Congress
made through the laws it enacted.

In United States v. Maxwell, 991 F.3d 685, 688 (6th Cir. 2021), we considered how a
different non-retroactive legal change (our intervening case law about the Guidelines) interacted
with a different sentencing reduction statute (§ 404(b) of the First Step Act). The district court,
we reasoned, could not rely on a non-retroactive sentencing law change in calculating the
guidelines sentencing range, but it could consider that change in selecting an appropriate
sentence under the § 3553(a) factors. The text of the sentencing statute drove the first point
home: “It ask[ed] the court to sentence Maxwell ‘as if’ the crack-cocaine sentencing range had
been reduced under the Fair Sentencing Act of 2010, not as if other changes had been made to
 No. 20-3912 United States v. Jarvis Page 6

sentencing law in the intervening years.” Maxwell, 991 F.3d at 689. The text of § 3553(a) drove
the second point home: It called for district courts to consider, among other factors, the need to
“reflect the seriousness of the offense” and the need to “protect the public from further crimes of
the defendant”—considerations that brought to the fore “up-to-date notions about the risk of
recidivism” reflected by current sentencing law. Maxwell, 991 F.3d at 691.

An analogous approach works here. The text of these sentencing statutes does not permit
us to treat the First Step Act’s non-retroactive amendments, whether by themselves or together
with other factors, as “extraordinary and compelling” explanations for a sentencing reduction.
See Tomes, 990 F.3d at 505. But for those defendants who can show some other “extraordinary
and compelling” reason for a sentencing reduction (and we have plenty of deferential decisions
on this score), they may ask the district court to consider sentencing law changes like this one in
balancing the § 3553(a) factors—above all with respect to the community safety factor.

That leaves one last development, a recently decided case of our court: United States v.
Owens, No. 20-2139, 2021 WL 1811538 (6th Cir. May 6, 2021). Owens, in one sense, shares
many premises of today’s decision. It does not dispute that the same rule for
compassionate-release motions should apply to § 401 and § 403 of the First Step Act. See
Owens, No. 20-2139, 2021 WL 1811538 at *4 n.3. It does not dispute Tomes’s retroactivity
discussion. And it does not dispute that district courts may consider the non-retroactive First
Step Act amendments in applying the § 3553(a) factors once an inmate has met the threshold
requirements for relief under the compassionate release statute.

Despite these shared premises, Owens does not follow Tomes’s reasoning or holding that
a non-retroactive First Step Act amendment fails to amount to an “extraordinary and compelling”
explanation for a sentencing reduction. But Tomes, decided before Owens, “remains controlling
authority” that binds this panel. Salmi v. Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th
Cir. 1985). Forced to choose between conflicting precedents, we must follow the first one,
Tomes.

We appreciate that Owens and our colleague in dissent today interpret this part of Tomes
as dicta. Owens, for example, claims that Tomes held only that a defendant may not rely on a
 No. 20-3912 United States v. Jarvis Page 7

non-retroactive amendment alone when trying to establish extraordinary and compelling reasons.
Owens, No. 20-2139, 2021 WL 1811538 at *4. But that is inaccurate. The defendant in Tomes
added his First Step Act arguments to his contention that his “rehabilitation, strong family
support, and apparently inequitable sentence were extraordinary and compelling reasons for
release.” 990 F.3d at 502. The defendant in Tomes in fact presented five reasons for granting
relief. Id. at 501–02. A faithful reading of Tomes, we respectfully submit, leads to just one
conclusion: that it excluded non-retroactive First Step Act amendments from the category of
extraordinary or compelling reasons, whether a defendant relies on the amendments alone or
combines them with other factors.

As a practical matter, we wonder if a defendant has ever invoked the First Step Act
amendments alone to establish extraordinary or compelling reasons for a sentencing reduction,
particularly during COVID. No doubt, “never,“ “ever,” and “always” are words usually best
removed from lawyers’ and judges’ vocabulary. But we think any such instance would be rare.
Even the one case that might seem to fit the bill, United States v. Wills, No. 20-6142, 2021 WL
1940430 (6th Cir. May 14, 2021), does not. In his handwritten request for relief, it turns out,
Wills urged the district court to grant relief not just because he would have received a shorter
sentence today, but also because it would allow him to “return to my family . . . [and be able to]
reside with my father . . . [after having] learned a marketable skill [involving]
industrial sewer . . . [and permit me to] resume taking financial responsibility for my child.” No.
2:16-CR-055, 2020 WL 5800922 (E.D. Tenn. Sept. 28, 2020), R.1011 at 1-2 (No. 20-6142).
Owens, in short, runs the risk of distinguishing Tomes into a null set, one that would not even
include Tomes himself.

One last point. After the district court entered its order in this case, we explained that
courts considering compassionate release motions do not have to follow the Sentencing
Commission’s policy statement in U.S.S.G. § 1B1.13, a policy statement that
“limits . . . ‘extraordinary and compelling reasons’ . . . to just four situations.” Tomes, 990 F.3d
at 502; see United States v. Elias, 984 F.3d 516, 519–20 (6th Cir. 2021). They instead “have
discretion to define ‘extraordinary and compelling’” circumstances. Elias, 984 F.3d at 519–20.
Jarvis claims that the district court mistakenly believed it had to stick to the policy statement
 No. 20-3912 United States v. Jarvis Page 8

when determining whether “extraordinary and compelling reasons” exist. Not so. The district
court noted that the policy statement was “outdated” and simply looked to it for “guidance,”
R.580 at 7, an approach we approved in Tomes. See 990 F.3d at 503 n.1. The district court,
moreover, correctly concluded that it lacked the authority to reduce Jarvis’s sentenced based on a
non-retroactive change in the law—not because of the Sentencing Commission’s policy
statement but because of the relevant statutory texts.

We affirm.
 No. 20-3912 United States v. Jarvis Page 9

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DISSENT
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CLAY, Circuit Judge, dissenting. In passing the First Step Act, Congress amended
18 U.S.C. § 3582(c)(1)(a) to allow federal district courts to grant compassionate release under
appropriate circumstances to those incarcerated in federal prison, even in instances where the
Bureau of Prisons opts not to do so. In accordance with this understanding of the amendment,
we have found that district courts are not required to consider the policy statement in U.S.S.G.
§ 1B1.13 in determining what constitutes an extraordinary and compelling reason for release,
thereby permitting district courts discretion in determining whether an individual defendant has
demonstrated an extraordinary and compelling reason for release. See United States v. Jones,
980 F.3d 1098, 1110–11 (6th Cir. 2020). In line with that precedent, in United States v. Owens,
996 F.3d 755, 760 (6th Cir. 2021), we determined that a district court can consider a non-
retroactive First Step Act amendment that creates a sentencing disparity in combination with
other factors as the basis for an extraordinary and compelling reason for compassionate release.

The majority today ignores this binding precedent from our circuit and erroneously
concludes that our previous decision in United States v. Tomes, 990 F.3d 500, 505 (6th Cir.
2021), requires that we affirm the district court’s denial of compassionate release in this case.
But in fact, Tomes’ conclusion that a non-retroactive sentence amendment cannot support a
motion for compassionate release amounts to dicta that we are not bound to follow.
Additionally, as Owens made clear, Tomes did not foreclose the conclusion that a sentencing
disparity from a non-retroactive statutory change along with other grounds for release can serve
as extraordinary and compelling reasons. See Owens, 996 F.3d at 763. By ignoring Owens, the
majority contravenes the purpose of compassionate release to grant release, based on the
consideration of the defendant’s unique circumstances, to individual defendants in extraordinary
situations not covered by another statute. Accordingly, I would reverse and remand this case so
that the district court can consider in the first instance whether the combination of Defendant
Jason Jarvis’ health conditions in light of the risk from COVID-19 and the sentence disparity
 No. 20-3912 United States v. Jarvis Page 10

based on the First Step Act’s amendment to 18 U.S.C. § 924(c) provide extraordinary and
compelling reasons for release.

Contrary to the majority opinion’s contention, we are bound in the present case by our
recent decision in Owens. In that case, the district court had denied Owens’ motion for
compassionate release because “the disparity between the sentence that Owens received and the
sentence that he would receive today because of the First Step Act’s amendments to § 924(c) was
not an extraordinary and compelling reason to merit compassionate release.”1 Owens, 996 F.3d
at 758 (internal quotations and citation omitted). Reversing and remanding the district court’s
order, we held that “in making an individualized determination about whether extraordinary and
compelling reasons merit compassionate release, a district court may include, along with other
factors, the disparity between a defendant’s actual sentence and the sentence that he would
receive if the First Step Act applied.” Id. at 760. We distinguished our prior decisions in Tomes
and United States v. Wills, No. 20-6142, 2021 WL 1940430, at *2 (6th Cir. May 14, 2021),2
because those opinions “considered whether the impact of a reduction in the applicable
mandatory-minimum sentence in a different provision of the First Step Act, § 401, was sufficient
by itself to constitute an extraordinary and compelling reason for compassionate release under
§ 3582(c)(1)(A).”3 Id.

We then proceeded to adopt the position taken in United States v. McGee, in which the
Tenth Circuit held that a district court could find 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)” in combination with “a defendant’s unique circumstances that constitute

1
The district court in Owens reasoned that because “Congress expressly declined to make the changes to
§ 924(c) retroactive, and the Sixth Circuit has implicitly recognized as much,” it would “circumvent congressional
intent and guidance from the Circuit Court to consider the First Step Act’s changes to § 924(c) as an extraordinary
and compelling reason.” Owens, 996 F.3d at 758 (internal quotations and citations omitted).
2
In his motion for compassionate release, Wills’ only argument as to extraordinary and compelling reasons
for release was that “under section 401 of the First Step Act, he would not be subject to a 20-year mandatory
minimum sentence because his prior felony drug conviction would not qualify as a ‘serious drug felony’ and
therefore would not trigger the sentence enhancement.” Wills, 2021 WL 1940430, at *2.
3
As the majority correctly notes, the basis of the distinction was not the particular First Step Act
amendment at issue but rather the fact that the Court in Wills and Tomes considered whether the sentence disparity
based on the non-retroactive First Step Act amendment on its own was an extraordinary and compelling reason for
release. See Majority Op. at 6; Owens, 996 F.3d at 760 n.3.
 No. 20-3912 United States v. Jarvis Page 11

‘extraordinary and compelling reasons’ for purposes of § 3582(c)(1)(A)(i).” United States v.
McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021); see Owens, 996 F.3d at 761. Although the
First Step Act amendments at issue in McGee and Owens did not apply retroactively, we noted
that “there is nothing in § 401(c) or any other part of the First Step Act that 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 defendants who would be
eligible for a lower sentence under current law. Owens, 996 F.3d at 761 (internal quotations
omitted) (quoting McGee, 992 F.3d at 1047). And as the Tenth Circuit stated in McGee,
“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.” 992 F.3d at 1047 (cleaned up); see Owens, 996 F.3d
at 761.

Our decision in Owens applies squarely in the present case. In support of his motion for
compassionate release, Jarvis argued that he should receive a sentence reduction based on his
health conditions of high blood pressure and bronchitis, BOP’s poor handling of the COVID-19
pandemic, and the sentencing disparity created by the amendment to § 924(c) under § 403 of the
First Step Act. Although the district court purportedly considered these factors in combination
with each other in denying Jarvis compassionate release, it held unilaterally that “a disparity
based on a change in sentencing law cannot serve as ‘extraordinary and compelling reasons’
under § 3582(c)(1)(A)” to support compassionate release, reasoning that “[f]acts like the First
Step amendments” were “too general to satisfy this individualized analysis” and that Congress
could have applied these amendments retroactively but chose not to do so. (R. 580, Op & Order
at PageID # 1612–13.) The district court’s conclusion on this issue is contrary to Owens’
holding that a sentence disparity pursuant to a non-retroactive First Step Act amendment can be
considered along with other factors as extraordinary and compelling reasons for release,
warranting reversal and remand of Jarvis’ case to the district court. See Owens, 996 F.3d at 760.

Ignoring our precedent in Owens, the majority opinion incorrectly applies dicta from
Tomes to affirm the district court in the present case. In Tomes, we affirmed the district court’s
denial of compassionate release because the district court’s consideration of the relevant
 No. 20-3912 United States v. Jarvis Page 12

18 U.S.C. § 3553(a) factors—namely the seriousness of the crime, deterrence, and protecting the
public—did not constitute an abuse of discretion. 990 F.3d at 504. Only after reaching this
conclusion did we reject Tomes’ argument that he should receive compassionate release based
on § 401 of the First Step Act—under which his prior drug convictions would no longer trigger a
twenty-year mandatory minimum sentence. Id. at 505. We reasoned that the relevant
amendment explicitly does not apply retroactively, and, given that Tomes was sentenced before
the effective date of the amendment, he could not use § 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.

In considering the binding effect of published panel opinions on future panels, we have
previously indicated that “the holding of a published panel opinion binds all later panels,” but
dicta is not binding. Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019). In Wright, we
noted that the following principles were relevant to determining whether a court’s conclusion is a
holding or dictum: (1) “[t]he decision of the issue must contribute to the judgment: whether and
why the court affirms, reverses, vacates, or remands,” such as “[a] legal conclusion that is
necessary to the judgment” or “one sufficient to support the judgment but not strictly necessary
in light of an independent and equally sufficient conclusion;” (2) “the court intended to rest the
judgment (if necessary) on its conclusion about the issue;” and (3) “the court considered the
issue and consciously reached a conclusion about it.” Id. at 701–02 (emphasis in original).

The conclusion in Tomes regarding whether § 401 of the First Step Act could be a ground
for compassionate release is dicta because it was not necessary for the judgment. In Tomes, we
did not need to discuss whether extraordinary and compelling reasons for release existed because
we found that the district court’s analysis of the § 3553(a) factors supported the judgment below.
See 990 F.3d at 504; see also United States v. Ruffin, 978 F.3d 1000, 1006 (6th Cir. 2020)
(noting that “the district court denied Ruffin’s motion under all three statutory requirements” for
compassionate release but finding that “we may affirm the denial of relief based on the third
discretionary rationale alone”—the district court’s balancing of the § 3553(a) factors). This
conclusion was also not independently sufficient to support the judgment, given that Tomes
raised other extraordinary and compelling reasons in support of his motion for compassionate
release. See Tomes, 990 F.3d at 504 (citing his “chronic asthma, which increases his risk of
 No. 20-3912 United States v. Jarvis Page 13

serious illness from COVID-19,” as a ground for compassionate release). And we only briefly
considered the argument based on the First Step Act amendment under § 401 as an afterthought
at the end of the opinion after already relying on the district court’s § 3553(a) analysis to support
affirming its judgment. See id. at 505.

In contrast, Owens’ holding that district courts can consider a sentence disparity resulting
from a non-retroactive First Step Act amendment along with other factors as an extraordinary
and compelling reason for release is “controlling authority” that “[a] panel of this Court cannot
overrule.” Salmi v. Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985). Unlike in
Tomes, in Owens, the only basis that the district court offered in denying the motion of
compassionate release was that “the disparity between the sentence that Owens received and the
sentence that he would receive today because of the First Step Act’s amendments to § 924(c) was
not an extraordinary and compelling reason to merit compassionate release.” 996 F.3d at 758
(internal quotations and citation omitted). As a result, our holding in Owens regarding the
consideration of First Step Act amendments at compassionate release was necessary to reverse
and remand the district court’s denial of compassionate release, was intended to be the basis for
the judgment, and—as evident in the Court’s thorough analysis of the issue—was considered by
this Court in coming to a “conscious” conclusion. Wright, 939 F.3d at 700; see also Owens,
996 F.3d at 759–64.

Additionally, nothing in Tomes precludes a district court from considering a sentencing
disparity due to a statutory amendment along with other grounds for release. The majority
incorrectly assumes that this Court in Tomes considered all of the reasons that Tomes raised for
release in combination with each other based on him having presented them all to the district
court in support of his motion for compassionate release. See Majority Op. at 7. But, after
affirming the district court’s analysis of the § 3553(a) factors and before even reaching the First
Step Act amendment argument, we rejected Tomes’ contentions that “he has chronic asthma,
which increases his risk of serious illness from COVID-19”—having failed to “provide any
records” to support this diagnosis—and that “the BOP cannot handle COVID-19 outbreaks.”
Tomes, 990 F.3d at 505. We then indicated, as “[o]ne last point,” that “§ 3582(c)(1)(A) was not
an appropriate vehicle for Tomes to attack his sentence”—without mentioning whether
 No. 20-3912 United States v. Jarvis Page 14

sentencing disparities could be considered in combination with other individual circumstances on
compassionate release. Id.; see also McGee, 992 F.3d at 1048 (“[W]e 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).”). Accordingly, Tomes cannot be read to foreclose
the consideration of an applicable First Step Act amendment along with other factors as
extraordinary and compelling reasons for release.

The majority’s contention that the approach applied in Owens contravenes the “balance
Congress struck” in making the First Step Act amendments non-retroactive ignores the
individualized nature of compassionate release. Majority Op. at 4–5. As the Fourth Circuit
noted in its decision in United States v. McCoy, “there is a significant difference between
automatic vacatur and resentencing of an entire class of sentences – with its avalanche of
applications and inevitable resentencings – and allowing for the provision of individual relief in
the most grievous cases.” 981 F.3d 271, 286–87 (4th Cir. 2020) (internal quotations and
citations omitted). In holding in McCoy 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,” the Fourth Circuit specifically emphasized that these
determinations were “the product of individualized assessments of each defendant’s sentence.”
Id. at 286. And given the significant discretion a district court has in determining whether there
are extraordinary and compelling reasons for compassionate release—as well as whether the
§ 3553(a) factors support release—the majority’s fear of numerous defendants becoming eligible
for compassionate release is unwarranted. See Majority Op. at 4–5. Allowing for a non-
retroactive 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. See McGee, 992 F.3d
at 1047 (“[T]he possibility of a district court finding the existence of ‘extraordinary and
compelling reasons’ based, in part, on a defendant’s pre-First Step Act mandatory life sentence
under § 841(b)(1)(A) does not, in our view, necessarily usurp Congressional power.”). This
 No. 20-3912 United States v. Jarvis Page 15

approach also acknowledges the role of compassionate release to consider individual
circumstances in determining whether a sentence reduction is appropriate.

The majority also attempts to overcome the shortcomings in its argument by offering the
alternative that a district court could consider a nonretroactive change in sentencing law in its
analysis of the § 3553(a) factors, citing to our decision in United States v. Maxwell, 991 F.3d 685
(6th Cir. 2021), as presenting an analogous situation to the instant case. See Majority Op. at 5–6.
However, in Maxwell, we determined that, in considering a motion for sentence reduction under
§ 404(b) of the First Step Act, a district court was not required to recalculate a defendant’s
Guidelines range based on changes in the law following the imposition of the sentence other than
the amended sentencing range under the Fair Sentencing Act of 2010. 991 F.3d at 689. We
reasoned that this provision only “expressly permitted” the district court to resentence the
defendant “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the
covered offense was committed,” as opposed to obligating the district court to perform a plenary
resentencing. Id. at 688–89 (internal citations and quotations omitted); see also 18 U.S.C.
§ 3582(c)(1)(B) (“The court may not modify a term of imprisonment once it has been imposed
except that . . . the court may modify an imposed term of imprisonment to the extent otherwise
expressly permitted by the statute . . . .”). Only then did we find that a district court can consider
intervening legal changes “in balancing the § 3553(a) factors and in deciding whether to modify
the original sentence.” Maxwell, 991 F.3d at 692.

In contrast we have explicitly held that, in evaluating compassionate release motions
under 18 U.S.C. § 3582(c)(1)(A), district courts “have full discretion to define ‘extraordinary and
compelling’ without consulting the policy statement § 1B1.13” for purposes of determining
whether extraordinary and compelling reasons support the defendant’s release. Jones, 980 F.3d
at 1111. Unlike the provision at issue in Maxwell, now that district courts do not need to
consider § 1B1.13, the compassionate release statute provides for no further limitation on the
scope of “extraordinary and compelling” reasons for release. See 18 U.S.C. § 3582(c)(1)(A)(i).
Additionally, that a district court can consider a non-retroactive sentencing amendment in its
balancing of the § 3553(a) factors on a compassionate release motion does not help defendants
similarly situated to Jarvis. Any ability of the district court to consider these sentencing
 No. 20-3912 United States v. Jarvis Page 16

disparities under § 3553(a) will not be relevant to defendants if they cannot first demonstrate
extraordinary and compelling reasons for release. See United States v. Elias, 984 F.3d 516, 520
(6th Cir. 2021) (finding that “[t]he district court could have denied Elias’s motion for
compassionate release” on the basis that she had not demonstrated an extraordinary and
compelling reason for release). The majority’s proposed alternative fails to take into account the
district court’s discretion under § 3582(c)(1)(A)(i) and does not provide proper redress to
defendants like Jarvis, whose other proffered reasons for release were not extraordinary and
compelling, in the district court’s view, to even reach the § 3553(a) prong of the compassionate
release test.

Ultimately, we are bound in the present case by our previous holding in Owens that a
district court can consider a sentencing disparity created by a non-retroactive sentencing
amendment as an extraordinary and compelling reason for release in combination with other
factors. The majority’s reliance on dicta from Tomes is an impermissible attempt to overrule
Owens, which “remains controlling authority unless an inconsistent decision of the United States
Supreme Court requires modification of the decision or this Court sitting en banc overrules the
prior decision.” Salmi, 774 F.2d at 689. And the relevant dicta from Tomes can only be read to
indicate that a non-retroactive First Step Act amendment creating a sentencing disparity cannot
alone serve as the basis for an extraordinary and compelling reason for release. Owens’ holding
that a non-retroactive sentencing amendment can be considered along with other grounds for
release is not only consistent with Tomes but also comports with the goal of compassionate
release to allow sentence reductions for those individual defendants presenting unique and
extraordinary circumstances.

For the foregoing reasons, I respectfully dissent and would reverse the district court’s
order denying compassionate release and remand the case for further proceedings.