United States v. McGee
992 F.3d 1035
10th Cir.2021Background:
- Malcom McGee was convicted in 2000 of PCP distribution-related offenses and sentenced to mandatory life under 21 U.S.C. § 841(b)(1)(A) because of two prior California felony drug convictions.
- After the First Step Act (Dec. 2018) reduced the § 841(b)(1)(A) mandatory term from life to 25 years but did not make that change categorically retroactive, McGee sought compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).
- McGee asked the prison warden to file; the warden did not respond, so McGee filed a § 3582(c)(1)(A) motion himself asserting the First Step Act change, California’s Proposition 47 (one prior reduced to misdemeanor), rehabilitation, and release plans as extraordinary and compelling reasons.
- The government conceded procedural filing was permitted but argued McGee could not meet the statute or the Sentencing Commission’s policy-statement criteria; it also noted no BOP determination under Application Note 1(D).
- The district court denied relief, reasoning (1) Congress declined to make § 401 retroactive so treating the First Step Act as an extraordinary-and-compelling reason would usurp Congress, and (2) the reasons McGee cited did not satisfy the Sentencing Commission’s Guideline §1B1.13 criteria.
- The Tenth Circuit reversed and remanded, holding district courts may (a) independently evaluate what qualifies as "extraordinary and compelling reasons" at step one, (b) may consider a pre–First Step Act sentence as part of an individualized inquiry (but not alone), and (c) that U.S.S.G. §1B1.13 is not binding when the defendant — not the BOP Director — files the motion.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had authority to reduce McGee’s sentence under 18 U.S.C. § 3582(c)(1)(A)(i) | McGee: District court may grant compassionate release because First Step Act, state-law change to priors, rehabilitation, and reentry plan create extraordinary and compelling reasons; he properly exhausted administrative remedies. | Gov./District Ct: First Step Act §401 is not retroactive; Sentencing Commission policy (U.S.S.G. §1B1.13) defines and limits "extraordinary and compelling reasons," and only BOP Director may trigger Application Note 1(D). | Reversed: District courts may independently determine "extraordinary and compelling reasons" at step one and consider First Step Act changes as part of an individualized showing; §1B1.13 is not binding on motions filed by defendants. |
| Whether McGee’s specific circumstances constitute "extraordinary and compelling reasons" warranting a reduction | McGee: Combination of pre–First Step Act life sentence, retroactive state reduction of a prior, exemplary rehabilitation, and release plan justify relief. | Gov: Those circumstances are not extraordinary under §1B1.13 and BOP made no determination under Application Note 1(D); allowing relief would circumvent Congress’s limited retroactivity. | Not decided: Court remanded for the district court to re-evaluate McGee’s motion under the correct legal standard. |
Key Cases Cited
- United States v. Jones, 980 F.3d 1098 (6th Cir. 2020) (adopts three-step test for § 3582(c)(1)(A) motions: extraordinary-and-compelling, consistency with policy statements, then § 3553(a) factors)
- United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) (courts may consider First Step Act sentencing changes as part of individualized compassionate-release analyses)
- United States v. Brooker, 976 F.3d 228 (2d Cir. 2020) (U.S.S.G. §1B1.13 does not constrain motions filed by defendants)
- United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020) (joins circuits recognizing §1B1.13 inapplicable to defendant-filed motions)
- Freeman v. United States, 564 U.S. 522 (2011) (general rule that courts may not modify a term of imprisonment except as authorized by statute)
- Dillon v. United States, 560 U.S. 817 (2010) (courts must consider applicable § 3553(a) factors when modifying a sentence)
- Dorsey v. United States, 567 U.S. 260 (2012) (statutes govern even where Guidelines address related matters)
- United States v. McGee, 291 F.3d 1224 (10th Cir. 2002) (McGee’s earlier appeal affirming conviction and addressing Count Three sentencing error)