FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10002
Plaintiff-Appellee,
D.C. Nos.
v. 3:81-cr-00311-RS-1
3:81-cr-00311-RS
DARREL KING,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, Chief District Judge, Presiding
Argued and Submitted January 11, 2022
San Francisco, California
Filed January 25, 2022
Before: Ronald M. Gould, Mark J. Bennett, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Gould
2 UNITED STATES V. KING
SUMMARY *
Criminal
Affirming the district court’s denial of a motion for
compassionate release filed pursuant to the First Step Act of
2018 (FSA), the panel held that inmates who committed
crimes before November 1, 1987, cannot move for
compassionate release pursuant to 18 U.S.C. § 3582(c)(1),
as amended by the FSA; these prisoners are instead subject
to the Sentencing Reform Act of 1984 and can gain
compassionate release only if the Bureau of Prisons requests
it on the prisoner’s behalf under 18 U.S.C. § 4205(g).
COUNSEL
Erik G. Babcock (argued), Law Offices of Erik G. Babcock,
Oakland, California, for Defendant-Appellant.
Matthew M. Yelovich (argued), Chief, Appellate Section,
Criminal Division; Scott D. Joiner, Assistant United States
Attorney; Stephanie M. Hinds, Acting United States
Attorney; United States Attorney’s Office, San Francisco,
California; for Plaintiff-Appellee.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KING 3
OPINION
GOULD, Circuit Judge:
Defendant-Appellant Darrel King appeals from the
district court’s denial of the motion for compassionate
release he filed pursuant to the First Step Act (FSA), Pub. L.
No. 115-391, 132 Stat. 5194 (2018). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm. Following the
decision of the Seventh Circuit in United States v. Jackson,
991 F.3d 851 (7th Cir. 2021), we hold that inmates who
committed crimes before November 1, 1987, cannot move
for compassionate release pursuant to 18 U.S.C.
§ 3582(c)(1), as amended by the FSA. These prisoners are
instead subject to the Sentencing Reform Act (SRA), Pub. L.
No. 98-473, 98 Stat. 1837 (1984) and can gain
compassionate release only if the Bureau of Prisons (BOP)
requests it on the prisoner’s behalf under 18 U.S.C.
§ 4205(g).
I. FACTUAL AND PROCEDURAL BACKGROUND
King ran a heroin distribution ring focusing on San
Francisco housing projects between 1976 and 1980.
California authorities arrested King in 1980 and charged him
with first-degree murder and firearms crimes. King was
convicted of these offenses in California state court in 1981
and was sentenced to serve twenty-seven years to life in
prison. Later that same year, King was convicted of federal
drug trafficking crimes and was sentenced to forty-five years
of incarceration in 1982. King began serving his federal
sentence in 2019 after completing his separate California
sentence. Shortly thereafter, King directly filed a motion for
compassionate release pursuant to § 3582(c)(1). His motion
urged that compassionate release was appropriate because he
is seventy-seven years old, highly vulnerable to COVID-19
4 UNITED STATES V. KING
while incarcerated in federal prison, and has a wife who is
struggling with cancer. The district court denied this motion
as procedurally improper because it had been filed by King,
and he timely appealed.
II. STANDARDS OF REVIEW
We review de novo issues of statutory construction.
United States v. Carey, 929 F.3d 1092, 1096 (9th Cir. 2019).
III. DISCUSSION
A.
District courts can modify prison sentences only in
limited circumstances set out by federal statute. See Dillon
v. United States, 560 U.S. 817, 824 (2010). Section
3582(c)(1), as amended by the FSA, allows certain inmates
to seek a form of sentence modification called
compassionate release by filing motions to that effect with
the district court. See 18 U.S.C. § 3582(c)(1); FSA
§ 603(b)(1) (adding “upon motion of the defendant” to the
statutory text). But not all prisoners are permitted to
personally file such motions for compassionate release under
the express terms of § 3582(c)(1).
From 1976 to 1984, § 4205(g) defined the procedures
through which inmates could gain compassionate release.
Under the statute, a prisoner was not allowed to directly
request compassionate release by filing a motion in district
court. Only the BOP could seek such relief on behalf of the
inmate. The SRA repealed § 4205(g) in 1984 and replaced
it with § 3582(c)(1), effective on November 1, 1987. See
SRA § 227; Sentencing Reform Amendments Act of 1985,
Pub. L. No. 99-217 § 4, 99 Stat. 1728 (1985) (finalizing the
effective date of the SRA). An amendment to the SRA
UNITED STATES V. KING 5
established that § 3582(c)(1) only applies to prisoners who
offended on or after November 1, 1987, and inmates who
committed crimes on or before October 31, 1987, remain
subject to § 4205(g) and cannot themselves file a motion for
compassionate release. See SRA § 227; Sentencing Act of
1987, Pub. L. No. 100-182 § 2(a), 101 Stat. 1266 (1987)
(inserting “shall apply only to offenses committed after the
taking effect of this chapter” into the text of § 3582(c)(1));
accord Jackson, 991 F.3d at 854. As summarized by
regulations on compassionate release, “18 U.S.C. 4205(g)
was repealed effective November 1, 1987, but remains the
controlling law for inmates whose offenses occurred prior to
that date [(called ‘old law’ prisoners)]. For inmates whose
offenses occurred on or after November 1, 1987, [(‘new law’
prisoners)], the applicable statute is 18 U.S.C.
3582(c)(1)(A).” 28 C.F.R. § 572.40 (2021).
The literal language of the pertinent statutes’ text left this
dual-regime structure in place for five years. See SRA
§ 235(b)(1)(A) (leaving Chapter 311 of 18 U.S.C., which
includes § 4205(g), in place for pre-SRA offenders “for five
years after the effective date” of SRA). But the district court
appropriately noted that this structure by renewals has since
acquired a state of permanent impermanence. In October
2020, or roughly two years after the FSA was enacted and
one month before King moved for compassionate release,
Congress kept § 4205(g) alive for the tenth time, and it now
continues to control compassionate release procedures for
pre-SRA inmates through 2022. See United States Parole
Commission Extension Act of 2020 (PCE Act), Pub. L. No.
116-519 § 4202, 134 Stat. 709, 741 (2020).
For these reasons, prisoners who, like King, stand
convicted of crimes that predate November 1, 1987, are
subject to § 4205(g) and cannot personally move a district
6 UNITED STATES V. KING
court for compassionate release. Jackson, 991 F.3d at 854.
The district court here correctly denied King’s procedurally
improper motion for compassionate release on this basis.
See id.
B.
King urges us to reach the opposite conclusion on the
ground that the phrase “in any case” within § 3582(c)(1)
defines the scope of that statute more broadly. Alternatively,
he points to extrinsic evidence including reports by the
Office of the Inspector General (OIG) and the Sentencing
Commission, letters from senators, and draft legislation
proposed after the FSA was enacted. King contends that
these materials show that the FSA implicitly repealed the
SRA’s November 1, 1987, cut-off date such that
§ 3582(c)(1) is now universally applicable. We address
these contentions below.
i.
The FSA amended § 3582(c)(1) by allowing certain
inmates to directly seek compassionate release, and this path
to relief applies “in any case.” King argues this language
indicates that all pre-November 1, 1987, offenses are now
subject to § 3582(c)(1). He is incorrect because the FSA did
not alter the two-track regime under which old law prisoners
are subject to § 4205(g) and new law inmates have access to
§ 3582(c)(1).
As explained persuasively by the Seventh Circuit, the
phrase “in any case” has been part of § 3582(c)(1) since it
became law in 1984. Jackson, 991 F.3d at 853. The FSA
also “provides that § 3582(c)(1)(A) is being amended, not
that § 3582 as a whole is being repealed and a new statute
with the same section number enacted.” Id. (citing FSA
UNITED STATES V. KING 7
§ 603(b)(1)). As a result, the FSA “did not modify the
transition language from 1984 and 1987” that limits the
scope of § 3582(c)(1) to inmates who committed their
crimes on or after November 1, 1987. Id. Notwithstanding
the FSA, § 3582(c)(1) remains unavailable to prisoners
convicted of crimes that occurred on or before October 31,
1987. Id. at 854. This conclusion not only makes sense
based on the express statutory language, but also is
reinforced when we consider Congress’ recent extension of
the applicability of § 4205(g) to these inmates through 2022.
See PCE Act § 4202; Nat’l Ass’n of Home Builders v. Defs.
of Wildlife, 551 U.S. 644, 666 (2007) (“It is a fundamental
canon of statutory construction that the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme.” (cleaned up)).
King raises another argument in support of his
contention that the “in any case” language in § 3582(c)(1)
controls its applicability. He stresses that only one part of
the FSA, specifically the subsection that amended § 3624(g),
has its own transition clause. This transition clause explains
that the FSA’s amendments to § 3624(g) “apply with respect
to offenses committed before, on, or after the date of
enactment of this Act, except that such amendments shall not
apply with respect to offenses committed before November
1, 1987.” FSA § 102(b)(3). King contends that the fact
“Congress explicitly made [an] old-law/new-law distinction
with respect to [FSA] § 102, but did not do so in § 603 [of
the FSA] and instead chose the ‘in any case’ language
[shows] that Congress did not intend an unwritten carve-out
to its reform of compassionate release.” When the Seventh
Circuit confronted a similar argument in Jackson, it
explained that the appellant there had theorized that “by
reiterating in § 102(b)(3) that § 3624—which like § 3582
was part of the [SRA]—does not apply to people whose
8 UNITED STATES V. KING
crimes predate November 1, 1987, the [FSA] made all of its
other changes universally applicable.” Jackson, 991 F.3d
at 853.
The Seventh Circuit squarely rejected that argument as a
non-sequitur, id., and we conclude likewise when faced with
this argument from King. “The ‘except’ clause in
§ 102(b)(3) is necessary to prevent the preceding language—
which declares that the [FSA’s] changes to § 3624(g) are
fully retroactive—from reaching beyond the scope of
§ 3624(g) itself, which does not apply to older offenses.” Id.
Congress has revised § 3624(g) several times since 1984,
and its amendment history establishes “that transition
language has been a routine part of these amendments, so
that each change applies to the proper set of cases. The
inclusion of transition language in § 102(b)(3) of the [FSA]
is of a kind with these earlier provisions.” Id. at 853–54.
And nothing in this transition language indicates “some
other part of the [SRA, such as § 3582(c)(1)] has suddenly
become applicable to older crimes.” Id. at 854.
ii.
King cites OIG and Sentencing Commission reports,
letters by senators, and legislation proposed after the FSA
was enacted, as evidence that § 3582(c)(1) is now
universally applicable. This extrinsic evidence is not
persuasive considering the clear statutory scheme at issue
here.
In resolving “statutory interpretation disputes, a court’s
proper starting point lies in a careful examination of the
ordinary meaning and structure of the law itself. Where, as
here, that examination yields a clear answer, judges must
stop.” Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct.
2356, 2364 (2019) (citations omitted). In such contexts, “the
UNITED STATES V. KING 9
sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according
to its terms.” Schroeder v. United States, 793 F.3d 1080,
1083 (9th Cir. 2015) (citation omitted). If federal courts
“could add to, remodel, update, or detract from old statutory
terms inspired only by extratextual sources and [their] own
imaginations, [they] would risk amending statutes outside
the legislative process . . . .” Bostock v. Clayton Cnty.,
140 S. Ct. 1731, 1738 (2020). Such extrinsic evidence may
only be considered when necessary to resolve a statutory
ambiguity. See McGirt v. Oklahoma, 140 S. Ct. 2452, 2469
(2020) (“There is no need to consult extratextual sources
when the meaning of a statute’s terms is clear. Nor may
extratextual sources overcome those terms. The only role
such materials can properly play is to help clear up[,] not
create[,] ambiguity about a statute’s original meaning.”
(cleaned up)).
Here, there is no ambiguity whatsoever within the
statutory scheme for compassionate release procedures. Nor
does King identify any. The law is clear. Section 3582 only
extends to prisoners who offended on or after November 1,
1987. See SRA § 227, as amended by § 4 of the Sentencing
Reform Amendments Act of 1985 (finalizing the effective
date of SRA) and § 2(a) of the Sentencing Act of 1987
(adding “shall apply only to offenses committed after the
taking effect of this chapter” to the statute). It is also clear
that the FSA’s revisions to § 3582(c)(1) do not apply to
§ 4205(g) and the old law inmates who are subject to it. See
FSA § 603(b)(1); Jackson, 991 F.3d at 853.
King nevertheless argues that it is absurd to read
§ 3582(c) as affording pre-November 1, 1987, offenders less
access to compassionate release than prisoners who
committed their crimes on or after this date. He claims this
10 UNITED STATES V. KING
will defeat Congress’ intent to increase use of compassionate
release as pre-November 1, 1987, offenders are more likely
to be elderly inmates who have been incarcerated for a long
time. We disagree.
Granting prisoners who committed their crimes on or
after November 1, 1987, more access to compassionate
release than prisoners who offended before this date is not
an absurdity requiring disregard of a clear statutory scheme.
Schroeder, 793 F.3d at 1083. There is a rational reason for
this cut-off date. Unlike new law inmates, old law prisoners
can still secure early release through the parole system.
While the SRA replaced parole with supervised release, this
regime change is not retroactive and parole remains
available to inmates who committed crimes on or before
October 31, 1987. See Jackson, 991 F.3d at 852–53. That
old law inmates have early release avenues beyond
compassionate release substantially undercuts King’s
position that application of § 4205(g) to pre-November 1,
1987, offenders is absurd such that the plain language of the
statutory scheme that prescribes compassionate release
procedures should not control. See Dodd v. United States,
545 U.S. 353, 359 (2005); Schroeder, 793 F.3d at 1083.
King further contends that extrinsic evidence clearly
establishes that Congress meant something other than what
it said in making § 3582(c)(1) inapplicable to old law
prisoners who committed crimes on or before October 31,
1987. We reject this argument because of the lack of any
ambiguity in the statutory terms. See McGirt, 140 S. Ct. at
2469.
In addition, King contends that his OIG and Sentencing
Commission reports, letters written by senators, and draft
legislation proposed two years after the FSA, establish that
the FSA implicitly repealed § 3582(c)(1)’s November 1,
UNITED STATES V. KING 11
1987, effective date. We reject this contention. “[R]epeals
by implication are not favored and are a rarity. Presented
with two statutes, the Court will regard each as effective—
unless Congress’ intention to repeal is clear and manifest or
the two laws are irreconcilable” in some way. Me. Cmty.
Health Options v. United States, 140 S. Ct. 1308, 1323
(2020) (cleaned up). An intent to repeal is not clear and
manifest here.
King argues that his OIG and Sentencing Commission
reports establish that “[t]he context and impetus for the new
amendments in the [FSA] had to do with the utter refusal of
the BOP over the past decades since the [SRA] to give any
real effect to the purposes of compassionate release.” The
simple answer is that Congress has extended the
applicability of § 4205(g) to old law prisoners until 2022.
See PCE Act § 4202.
Draft legislation on which King relies would make
§ 3582(c)(1) applicable in any case “involving an offense
committed before November 1, 1987.” COVID-19 Safer
Detention Act, S. 4034, 116th Cong. § 4(1)(A) (2020). But
we cannot rely upon unenacted bills to modify an existing
statute, as that is a function of Congress. Moreover, the
proposed bill post-dates the FSA by two years and cannot
possibly be evidence that the FSA implicitly made
§ 3582(c)(1) accessible to old law inmates when Congress
last spoke on the issue in 2018. The United States Supreme
Court has made this clear: “Post-enactment legislative
history (a contradiction in terms) is not a legitimate tool of
statutory interpretation [since it] by definition could have
had no effect on the congressional vote.” Bruesewitz v.
Wyeth LLC, 562 U.S. 223, 242 (2011) (cleaned up); see also
Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 117 (1980).
12 UNITED STATES V. KING
Because the statutory scheme governing compassionate
release procedures is unmistakably clear that prisoners who
offended before November 1, 1987, cannot personally move
for compassionate release under § 3582(c)(1), and there is
neither ambiguity nor absurdity in what Congress has said,
we may not consider King’s extrinsic evidence. See Food
Mktg. Inst., 139 S. Ct. at 2364. The unambiguous statutory
text controls and we go no further in deciding this case. See
id. 1
IV. CONCLUSION
King is subject to § 4205(g) and the BOP has not yet
sought compassionate release on his behalf. The judgment
of the district court correctly applied this statute.
AFFIRMED.
1
We note that we rejected several of King’s arguments in United
States v. Matta-Ballesteros, 843 F. App’x 892, 892–94 (9th Cir Feb. 12,
2021).