UNITED STATES OF AMERICA v. DAVID E. MCCALL, JR.
No. 21-3400
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 22, 2022
Argued En Banc: June 8, 2022
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 22a0274p.06. On Petition for Rehearing En Banc. United States District Court for the Northern District of Ohio at Cleveland; No. 1:13-cr-00345-41—Christopher A. Boyko, District Judge.
Before: SUTTON, Chief Judge; MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, Circuit Judges.*
*COUNSEL
ARGUED EN BANC: Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Eric J. Feigin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON SUPPLEMENTAL BRIEF: Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Rebecca Chattin Lutzko, Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
NALBANDIAN, J., delivered the opinion of the court in which SUTTON, C.J., and GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, READLER, and MURPHY, JJ., joined. MOORE, J. (pp. 25–36), delivered a separate dissenting opinion in which COLE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined. GIBBONS, J. (pp. 37–39), also delivered a separate dissenting opinion.
NALBANDIAN, Circuit Judge. David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015. Five years into his 235-month sentence, McCall moved for compassionate release under
I.
David McCall served as a middleman in a sprawling drug-trafficking conspiracy. From 2011 to 2013, he supplied lower-level dealers in Cleveland with heroin and cocaine smuggled in from Chicago and Atlanta. The United States indicted him, along with 59 of his coconspirators, in a 196-count indictment in 2013. Faced with multiple charges, McCall struck a deal with the government. He pleaded guilty to one count of conspiracy to possess with intent to distribute heroin. And in exchange, the United States agreed to drop its remaining facilitation and substantive distribution charges.
This plea proved only the latest chapter in McCall’s drug-dealing career. Beginning in 1994, McCall racked up multiple Ohio felony convictions, many of them for drug trafficking. For sentencing purposes, these convictions cemented McCall’s
McCall served five years of that sentence before he moved for a sentence reduction under the compassionate-release statute. That statute allows a district court to lower a defendant’s sentence if (among other things) “extraordinary and compelling reasons” warrant a reduction.
Two changes in law spurred McCall’s motion. First, Congress amended the compassionate-release statute. Historically, only the Bureau of Prisons could move for a sentence reduction. See United States v. Ruffin, 978 F.3d 1000, 1003 (6th Cir. 2020). The First Step Act of 2018 changed this by allowing prisoners to file their own requests when the “Bureau refused to do so.” Id. at 1003–04. Second, our en banc court decided United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per
Invoking these changes, McCall raised five “extraordinary and compelling reasons” that he believed merited a lower sentence, three of which are relevant here. (R. 2109, Mot. For Sentence Reduction, PageID 17033.) First, his risk of contracting COVID-19. Second, his rehabilitative efforts in prison. And third (and most importantly), Havis’s effect on his status as a career offender. McCall argued that had he been sentenced after Havis, most of his prior convictions would not have qualified as predicate offenses for the career-offender enhancement. And without that enhancement, McCall asserted his 235-month sentence stood in “stark contrast . . . to the sentence he would likely receive . . . today.” (R. 2134, Supp. Mot., PageID 17219.)
The district court denied McCall’s petition. Although McCall mentioned the COVID-19 pandemic, he supplied no “health concern that put[] him at risk . . . .” (R. 2143, Order, PageID 17307.) As for McCall’s Havis argument, the court noted that Havis “[was] not retroactive, nor would it support a claim on collateral relief.” (Id.) And it declined to let McCall “sidestep normal post-conviction requirements” with a compassionate-release motion. (Id.) That left rehabilitation, which could not support McCall’s motion on its own. See
McCall appealed, arguing that a “subsequent legal clarification” could satisfy the “extraordinary and compelling” reason requirement. (Appellant Br. at 7.)
By the time we resolved his appeal, at least five of our published decisions had considered, albeit with some nuance and distinctions, whether a nonretroactive change in sentencing law could support a finding of “extraordinary and compelling reasons” warranting relief.
We granted en banc review to resolve the “intractable” “intra-circuit split” created by the decision. Id. at 1116 (Kethledge, J., dissenting).
II.
We first stop to consider the history of compassionate release, along with its current
The parole system was partially to blame for these problems. First established by Congress in 1910, the system vested discretion in federal parole authorities, not judges, to decide when a prisoner’s sentence ended. See An Act to Parole United States Prisoners, and for Other Purposes, ch. 387, 36 Stat. 819, 819–21 (1910) (creating a federal parole system). Designed with rehabilitation in mind, the goals of the parole system were twofold: provide “the incentive for rehabilitation” and “the possibility of an expert determination that a prisoner had been rehabilitated and should be released from confinement.” Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 18 (1998); see also Mistretta v. United States, 488 U.S. 361, 363 (1989) (“Both indeterminate sentencing and parole were based on concepts of the offender’s possible, indeed probable, rehabilitation . . . .“).
Most agree that these goals, though noble in theory, failed in fact. Rehabilitation, long the cornerstone of federal sentencing and the parole system, fell out of favor with scholars, reformers, and critics of all stripes by the 1970s.1 Critiques abounded. Some blamed the parole system’s uncertainty and indeterminacy for increasing anxiety among prisoners. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines, 28 Wake Forest L. Rev. 223, 227 (1993). And many faulted it for producing “[s]erious disparities” in sentences. Mistretta, 488 U.S. at 365; see also Stith & Koh, supra, at 227.
Congress responded with the Comprehensive Crime Control Act of 1984. A watershed statute, it left few areas of federal criminal law untouched. Sentencing law proved no exception. Title II of the scheme, the Sentencing Reform Act mentioned above, lived up to its name and
represented the results of a movement determined to eliminate rehabilitative goals and indeterminacy in sentencing. See Stith & Cabranes, supra, at 40 (describing the features of the Sentencing Reform Act of 1984 that showed Congress’s intent to “eliminat[e] rehabilitation as a purpose of incarceration“). To that end, the Act abolished parole and prohibited a district court from “modify[ing] a term of imprisonment once it has been imposed . . . .”
Against this general prohibition, Congress carved out a few exceptions. The one relevant here—which we call compassionate release—allowed a district court to
As for substance, the statute required a district court to make three findings. First, that “extraordinary and compelling reasons warrant[ed]” a sentence reduction.
This framework stayed intact for close to 30 years. But during that time, compassionate-release motions were rare. This slow trickle was due to the action (and inaction) of two entities. First, the Sentencing Commission took its time issuing the “general policy statement[]” Congress assigned to it. See id. Twenty-two years, in fact. When the policy statement finally arrived in 2006, it did little but parrot the text of the compassionate-release statute. And it wasn’t until 2007 that the Sentencing Commission added commentary describing “specific examples” of “what should be considered extraordinary and compelling reasons” for relief. Id.; see U.S.S.G. § 1B1.13 cmt. n.1(A)-(D).2 Second, the Bureau of Prisons, although tasked with processing applications and filing motions for meritorious ones, did so on rare occasion. On average, only 24 prisoners a year benefited from compassionate release. See United States v. Elias, 984 F.3d 516, 518 (6th Cir. 2021).
This brings us to the First Step Act of 2018. See Pub. L. 115-391, Title VI, 132 Stat. 5194. Sweeping in its coverage, the First Step Act made many changes to sentencing law. But it modified only one aspect of the compassionate-release statute. Recall that under the original version of the statute, only the Bureau of Prisons
Although the First Step Act altered the process for filing a compassionate-release motion, it left the substantive requirements for obtaining relief intact. We describe this process as a “three-step inquiry.” United States v. Jones, 980 F.3d 1098, 1101 (6th Cir. 2020); see Ruffin, 978 F.3d at 1004–05. Prisoners still must show that “extraordinary and compelling” reasons warrant the reduction.
As of today, the Sentencing Commission has not adopted a policy statement that applies when a “defendant (as opposed to the Bureau of Prisons) files” a motion. United States v. McKinnie, 24 F.4th 583, 586 (6th Cir. 2022); see Jones, 980 F.3d at 1109 (holding that the existing policy statement, found at U.S.S.G. § 1B1.13, is not applicable to defendant-filed motions). So in practice, a district court need only consider whether extraordinary and compelling reasons exist and whether the § 3553(a) factors support a sentence reduction. See Jones, 980 F.3d at 1108.
With this framework in mind, we turn to the merits.
III.
The First Step Act changed compassionate release in two ways. The first change affected the process of filing motions by “add[ing] prisoners to the list of persons who may file . . . .” See United States v. King, 40 F.4th 594, 596 (7th Cir. 2022). The second change—an unintended consequence of the first—affected substance. Until the Sentencing Commission updates its policy statement to include defendant-filed motions, district courts retain discretion to define “extraordinary and compelling” without reference to the Sentencing Commission’s guidance. See Elias, 984 F.3d at 519–20.3
Everyone agrees the sum of these changes enhanced district courts’ discretion to grant compassionate release. The key question is how much. McCall pushes for an approach that would allow a district court to find that any change in federal sentencing law—even one Congress or a court made expressly nonretroactive—can qualify as an extraordinary and compelling reason for a sentence reduction (or a district court may at least consider it in combination
cannot consider nonretroactive changes in sentencing law either alone or in combination with other factors to find extraordinary and compelling reasons exist.
The district court sided with the government, and we do too. Consistent with the text of the compassionate-release provision, along with the principles, structure, and history of federal sentencing law, we hold that nonretroactive changes in sentencing law cannot be “extraordinary and compelling reasons” that warrant relief.
IV.
Text. Our analysis starts, as it must, with the text of the compassionate-release statute. See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009). With no statutory definition of “extraordinary and compelling reasons” to guide us, Elias, 984 F.3d at 518–20, we interpret the phrase “in accord with the ordinary public meaning of its terms at the time of its enactment,” Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1738 (2020); see also Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020) (“Without a statutory definition, we turn to the phrase’s plain meaning at the time of enactment.“). And to do so, we rewind the clock to the time of the Sentencing Reform Act’s adoption, here 1984. At that time, most understood “extraordinary” to mean “most unusual,” “far from common,” and “having little or no precedent.” Extraordinary, Webster’s Third New International Dictionary 807 (1971). “Compelling,” for its part, referred to “forcing, impelling, driving.” Id. at 463.
At first glance, these common-sense definitions only seem to reiterate what we already know. Of course, an “extraordinary and compelling reason” is one that is unusual, rare, and forceful. But in a vacuum, the phrase “extraordinary and compelling” does little to illuminate the specific type of unique or rare reason that might justify relief. This leads us back to the question with which we began. Does a district court’s discretion to define “extraordinary and compelling” encompass any reason—legal or factual—it finds convincing?
Two background principles of federal sentencing law help to provide an answer. The first is finality. “[E]ssential to the operation of our criminal justice system,” finality gives criminal law its “deterrent effect.” Teague v. Lane, 489 U.S. 288, 309 (1989) (plurality op.). Recognizing the importance of this principle, Congress gave it statutory weight. Because a sentence of imprisonment “constitutes a final judgment,” federal law generally prohibits a district court from “modify[ing]” it “once it has been imposed.”
Framed against this background, the text of the compassionate-release statute gives way to a basic inference: What is “ordinary” and routine cannot also be extraordinary and compelling. See Wills, 997 F.3d at 688. After all, prospective changes
What’s more, we find little compelling about the duration of a lawfully imposed sentence. This is because such a sentence represents “the exact penalt[y] that Congress prescribed and that a district court imposed for [a] particular violation[] of a statute.” United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022). That a district court might impose a different sentence than one of its predecessors hardly seems the kind of “forceful, impelling, [or] driving” reason that could justify compassionate release. See Compelling, Webster’s Third New International Dictionary 463 (1971); see also United States v. Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021); United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring) (“[T]he 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.“).
Viewed in this light, the phrase “extraordinary and compelling reasons” comes into sharper focus. What is ordinary—the nonretroactivity of judicial precedent announcing a new rule of criminal procedure like Havis—is not extraordinary. And what is routine—a criminal defendant like McCall serving the duration of a lawfully imposed sentence—is not compelling.
Structure. The structure of federal sentencing law reinforces our conclusion. Viewed as a whole, that body of law makes one thing clear: When Congress wants a change in sentencing law to have retroactive effect, it explicitly says so. To see this reality at work, we need look no further than the Sentencing Reform Act of 1984 and the First Step Act of 2018.
Consider the Sentencing Reform Act of 1984 first. It listed two exceptions to its general prohibition on sentence modifications. See
The First Step Act begs a similar question. Aside from amending the compassionate-release statute, the First Step Act reduced the penalties for certain drug crimes in § 401, limited the stacking of mandatory minimums for certain repeat offenses in § 403, and provided for the retroactive application of lower sentences for other
The same reasoning applies with “equal force here.” Hunter, 12 F.4th at 564. True, McCall’s case involves a nonretroactive judicial decision, rather than a nonretroactive statute. But we see no reason to take a different approach.4 So a “contrary conclusion” would allow defendants to avoid “the principal path . . . Congress established for federal prisoners to challenge their sentences.” Thacker, 4 F.4th at 574. That path, found in
Those limits would prove fatal to McCall for two reasons. He first attacked his conviction under
an advisory guidelines range, including a Havis error, does not present a “cognizable” claim under
McCall cannot avoid these restrictions on “post-conviction relief” by “resorting to a request for compassionate release instead.” Crandall, 25 F.4th at 586. We assume Congress knew of its “specific statutory scheme authorizing post-conviction relief” when it adopted the compassionate-release statute in 1984 and amended it in
Judge Moore questions why we’re discussing habeas because habeas and compassionate release “serve entirely different purposes . . . .” (Moore Dissent p. 33.) She continues: “When a court grants a habeas petition, it deems the sentence invalid. . . . By contrast, a grant of compassionate release does not invalidate the relevant sentence; rather, it recognizes that a holistic consideration of the defendant’s circumstances entitles them to early release . . . .” (Moore Dissent p. 33–34.)
But arguing that an intervening change to sentencing law provides an extraordinary and compelling reason for early release necessarily implicates the validity of the relevant sentence. See United States v. Jenkins, 50 F.4th 1185, 1202–03 (D.C. Cir. 2022). If someone like McCall were to prevail on his Havis claim, a court would alter the duration of his sentence because his sentence would be different today, thereby implying the unlawfulness of his sentence as originally imposed. See id. at 1202, 1204.
Put another way, a compassionate release petitioner argues that, although his sentence is lawful, other unrelated factors, such as health or age, counsel in favor of early release. A habeas petitioner argues that his sentence is unlawful. Entertaining an argument that implies a sentence is unlawful at the threshold level of a compassionate release analysis blurs these two forms of relief. And it is precisely because, as Judge Moore notes, habeas and compassionate release serve different purposes, that we won’t blur these lines in a way that ignores context.
The habeas-channeling rule that we alluded to earlier supports our view. Because habeas serves as the avenue to attack the lawfulness of confinement, “an inmate may not rely on a generally worded statute to attack the lawfulness of his imprisonment . . . .” Jenkins, 50 F.4th at 1202; see Preiser v. Rodriguez, 411 U.S. 475, 485–86 (1973). This includes attacks seeking “a judicial determination that necessarily implies the unlawfulness of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). All to say, habeas is the appropriate place to bring challenges to the lawfulness of a sentence. And as we’ve discussed, we do not read “extraordinary and compelling” to provide an end run around habeas.
This is not to say that “extraordinary and compelling” doesn’t have a “broad range of meaningful application . . . .” Jenkins, 50 F.4th at 1203. Most obviously, “extraordinary and compelling” “covers factors like those enumerated by the Sentencing Commission—health, age, and family circumstances . . . .” Id. And “for
Return back to our original insight about the structure of federal sentencing law. When Congress expects a change in sentencing law to have retroactive application, deviating from both its principal path for post-conviction relief and general prohibition on sentence modifications, it makes that intent clear. The term “extraordinary and compelling reasons” displays no such intent. Without a more explicit instruction, defendants cannot use compassionate release as an “end run around Congress’s” or courts’ retroactivity decisions. Tomes, 990 F.3d at 505.
History. What text and structure show, history confirms. Since its enactment, compassionate release has never been understood to cover nonretroactive changes in sentencing law.
An early prototype of the compassionate-release statute, found in the Parole Commission and Reorganization Act (the “Parole Act“), supplies our starting point. See Pub. L. No. 94-233, 90 Stat. 219, 223 (1976). It provided that “[a]t any time upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served.”
Broad in scope, this provision gave the Bureau of Prisons wide discretion over the who and the why of compassionate release. See Turner v. U.S. Parole Comm’n, 810 F.2d 612, 615 (7th Cir. 1987). The Bureau of Prisons, in turn, provided two examples of circumstances meriting use of that discretion: (1) prison-overcrowding and (2) “particularly meritorious or unusual circumstances which could not have been reasonably foreseen by the court at the time of sentencing,” including “an extraordinary change in an inmate’s personal or family situation or if an inmate becomes severely ill.” Id. at 617 (quoting 28 C.F.R. § 572.40(a) (1986)). Neither of those scenarios contemplated nonretroactive legal developments. And in practice, the few defendants who received relief often did so because of their rehabilitative efforts. See United States v. Banks, 428 F. Supp. 1088, 1089 (E.D. Mich. 1977) (granting reduction when the defendant displayed “outstanding institutional adjustment,” “[his] conduct record [was] clear,” and his work was “uniformly competent“); cf. Turner, 810 F.2d at 615–16, 618 (recognizing the Bureau’s role in initiating sentencing modification motions under the Parole Act).
The Sentencing Reform Act of 1984 replaced the Parole Act’s provision with a new-and-improved compassionate-release statute. Perhaps mirroring the Bureau of Prisons’ old regulations, the updated version limited its scope to inmates whose circumstances presented “extraordinary” reasons for relief.
The next decade or so followed a similar course. The Sentencing Commission’s long-awaited policy statement and commentary expanded on the kinds of “extraordinary and compelling reasons” that could justify a sentence reduction. See U.S.S.G. § 1B1.13 cmt. n.1(A)–(D). But those reasons never included nonretroactive legal developments. Instead, the growing categories sounded in variations on a theme. The Sentencing Commission added old age, family caretaking emergencies, and a catch-all provision for other circumstances approved by the Bureau of Prisons.
Congress, no doubt, had this meaning and practice in mind when it amended the compassionate release statute in 2018. See Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (“It is a commonplace of statutory interpretation that Congress legislates against the backdrop of existing law.” (internal citation and quotation marks omitted)). Yet its amendment focused on process, not substance. See King, 40 F.4th at 596 (“The First Step Act did not create or modify the ‘extraordinary and compelling reasons’ threshold for eligibility; it just added prisoners to the list of persons who may file motions.“). And because Congress left the substance of the “extraordinary and compelling reasons” requirement intact, we assume the phrase retained “the meaning it had under the previous version of the statute.” Andrews, 12 F.4th at 260; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 322 (2012) (“The clearest application of the prior-construction canon occurs with reenactments: If a word or phrase . . . has been given a uniform interpretation by inferior courts or the responsible agency, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.“). That meaning has never covered nonretroactive changes in sentencing law. Indeed, nothing in the 30-odd year history of compassionate release “hint[s] that the sort of legal developments routinely addressed by direct or collateral review [could] qualify a person for compassionate release.” King, 40 F.4th at 595–96. And nothing in the First Step Act of 2018 suggests Congress intended to change this substantive status quo with a process-oriented amendment.5
This conclusion brings us to McCall’s appeal. He argues that our decision in Havis, his risk of contracting COVID-19, and his rehabilitative efforts supply “extraordinary and compelling” reasons to reduce his sentence. We disagree. Havis, a nonretroactive judicial decision announcing a new rule of criminal procedure, cannot serve as a basis for relief. Nor, with “vaccinations [widely] available to federal prisoners,” can McCall’s claims about the dangers of COVID-19. McKinnie, 24 F.4th at 588. That leaves rehabilitation, which cannot by itself justify a sentence reduction. See
V.
McCall sees it differently. He raises a host of arguments, invoking new Supreme Court precedent, the text of the statute, legislative history, and notions of disparity. None succeeds.
First, he contends that the Supreme Court’s recent decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), mandates a different result. That case considered another provision of the First Step Act, § 404(b), which “empowers district courts to lower sentences imposed for crack-cocaine offenses as if” certain reduced penalties “had been the law during the original sentencing hearing.” United States v. Maxwell, 991 F.3d 685, 688 (6th Cir. 2021) (internal citation and quotation marks omitted). The Supreme Court held that if a prisoner qualifies for resentencing under § 404(b), a district court may consider “intervening changes of law or fact” in deciding whether and how much to reduce the sentence. Concepcion, 142 S. Ct. at 2404. And in doing so, the Court emphasized district courts’ historical exercise of “broad discretion to consider all relevant information” during an initial sentencing or sentence-modification hearing. Id. at 2398.
McCall claims Concepcion’s holding buoys his reading of the extraordinary and compelling reason requirement, but we disagree. To start, Concepcion concerned a different and unrelated provision of the First Step Act that explicitly applied retroactively. The decision said nothing about the “threshold question [of] whether any given prisoner has established an ‘extraordinary and compelling’ reason for release.” King, 40 F.4th at 596; see United States v. Beckford, No. 22-10638, 2022 WL 4372553, at *3 (11th Cir. Sept. 22, 2022); United States v. Bledsoe, No. 22-2022, 2022 WL 3536493, at *2 (3d Cir. Aug. 18, 2022).6
Next, to the extent that Concepcion sheds any light on this case, it supports the government’s position. Concepcion’s insight goes to what a court may consider after it finds a defendant meets the threshold requirement for a sentence modification. If that threshold is met, Concepcion
Our approach to compassionate release runs a parallel course. A defendant must first satisfy the provision’s threshold requirement, showing “some [] ‘extraordinary and compelling’ reason” justifies “a sentencing reduction.” Jarvis, 999 F.3d at 445. With that hurdle cleared, Concepcion’s holding comes into play. A district court may “consider subsequent developments,” legal or factual, “in deciding whether to modify the original sentence and, if so, in deciding by how much.” Maxwell, 991 F.3d at 691; see also Jarvis, 999 F.3d at 445 (adopting Maxwell’s approach). “We take the Supreme Court at its word that Concepcion is about the matters that district judges may consider when they” exercise their discretion to “resentence defendants,” not whether those defendants qualify for resentencing in the first place. King, 40 F.4th at 596.7
Second, McCall asserts that the text of the compassionate-release statute supports his broad reading of its terms. To back up his assertion, he relies on what we call the “negative-implication canon.” Scalia & Garner, supra, at 107. That canon stands for the idea “that the expression of one thing (i.e., the specified exception) implies the exclusion of other things of the same sort (i.e., other exceptions).” Caleb Nelson, Statutory Interpretation 89 (2011).
Here, McCall suggests that canon plays out as follows. Although Congress provided no official definition of what qualifies as an “extraordinary and compelling” reason, instead delegating the task to the Sentencing Commission, it did articulate a limit on its scope. “Rehabilitation of the defendant alone” cannot “be considered an extraordinary and compelling
reason.”
As with all arguments that rely on the negative-implication canon, we approach McCall’s with “great caution.” Scalia & Garner, supra, at 107. This is because “its application depends so much on context.” Id. Properly understood, the canon comes into play “only when” the limit or exception specified “can reasonably be thought to be an expression of all that shares in the grant or prohibition involved.” Id. “[C]ommon sense often suggests when this is or is not so.” Id.; see also Nelson, supra, at 91 (explaining that courts do not apply the negative-implication canon “reflexively“; “[i]nstead, they think about whether the relevant statutory language really does carry the negative implication that application of the [canon] would suggest“).
Here, context and common sense undermine McCall’s argument. Historical context provides our first clue. Recall the reform movement that led to the Sentencing Reform Act of 1984. That movement rejected rehabilitation “as a sound penological theory” and dismissed the idea as an “unattainable goal for most cases.” Mistretta, 488 U.S. at 365. Congress designed the Sentencing Reform Act with this movement in mind, erecting several barriers designed to eliminate rehabilitation’s outsized influence. It began by abolishing the parole system and generally prohibiting sentence modifications. Against that general prohibition, Congress left a few doors ajar. One of those doors, compassionate release, had a barrier of its own: “Rehabilitation . . . alone” could not meet the “extraordinary and compelling” threshold.
supra, at 40. Given the historical context of the Sentencing Reform Act, we find the latter more likely.
Textual context also supports our holding. McCall asserts Congress placed “no textual limit“—aside from rehabilitation—on the reasons that may warrant a sentence reduction. (Appellant Supp. Br. at 4.) But this assertion ignores the explicit textual limitations at the heart of this appeal—that is, that the reasons be “extraordinary and compelling.” As we have explained, there is nothing extraordinary about the ordinary operation of our legal system, which assumes new statutes and caselaw have no retroactive effect. Thus it is the text of the compassionate-release statute itself, rather than our “re-writing” of it, which “support[s] . . . the categorical exclusion of non-retroactive legislation or decisions.” (Appellant Supp. Br. at 8, 11.) So understood, Congress‘s restriction on rehabilitation cannot be “an expression of all that shares in the . . . prohibition involved.” Scalia & Garner, supra, at 107.
Third, McCall next argues that legislative history supports his vast construction of the compassionate-release statute. But “legislative history is not the law.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018). And even when courts consider legislative history, they do so only when it “shed[s] a reliable light on the enacting Legislature‘s understanding of otherwise ambiguous terms.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005); see also United States v. Woods, 571 U.S. 31, 46 n.5 (2013) (“Whether or not legislative history is ever relevant, it need not be consulted when . . . the statutory text is unambiguous.“).
But even if it did not, McCall‘s recitation of legislative history does little to advance his case. He first cites a Senate Report explaining the Senate Judiciary Committee‘s view that “there may be unusual cases . . . justified by changed circumstances,” that would permit a sentence reduction, including: “cases of severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and some cases in which the sentencing guidelines for the offense . . . have been later amended to provide a shorter term of imprisonment.” S. Rep. No. 98-225, at 55–56 (1983).
Put in context, this portion of the Report does not interpret or reference the proposed compassionate release statute,
McCall‘s second piece of legislative history is no more illuminating. It describes compassionate release as a “safety valve” for cases “in which the defendant‘s circumstances are so changed, such as by terminal illness, that it would be inequitable to continue [] confinement.” S. Rep. No. 98-225, at 121. This piece of legislative history hurts, rather than helps, McCall‘s cause. The few concrete examples provided by the Senate Report—like “severe” or “terminal illness” have little in common with nonretroactive legal developments. S. Rep. No. 98-225, at 55, 121; see also
Fourth, McCall seems to concede that nonretroactive legal developments cannot, standing alone, qualify as an “extraordinary and compelling” reason for relief. (Appellant Supp. Br. at 11 (quoting United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021)).) But he nonetheless argues that a new statute or judicial decision can enter the picture when used to “illuminate the disparity as a component of the extraordinary and compelling reasons criteria,
He‘s not alone in this position. The First, Ninth, and Tenth Circuits have held that nonretroactive legal developments can contribute to a finding of “extraordinary and compelling reasons” when viewed “in combination” with a defendant‘s “unique circumstances.” McGee, 992 F.3d at 1048; see United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022); United States v. Ruvalcaba, 26 F.4th 14, 28 (1st Cir. 2022). Judge Moore advocates for this approach as well. (Moore Dissent pp. 29–30.) The Fourth Circuit‘s position goes a step further. It held that a nonretroactive statutory change, coupled with the resulting “disparity” between the sentence the defendant received and “the sentence a defendant would receive today,” may satisfy the “extraordinary and compelling reason” standard on its own. United States v. McCoy, 981 F.3d 271, 285 (4th Cir. 2020). Different around the edges, all three of these decisions seem to rest on the common goals of “alleviating unfair and unnecessary sentences as judged by today‘s sentencing laws . . . and of promoting ‘individualized, case-by-case’ sentencing decisions.” Jarvis, 999 F.3d at 445 (quoting McGee, 992 F.3d at 1047, citing McCoy, 981 F.3d at 285–86).
Although we appreciate these ends, we cannot reconcile this approach with the plain text of the compassionate-release statute. Congress prospectively amends or updates its criminal-penalty scheme. The nonretroactivity of judicial precedent like Havis is the rule, not the exception. That a defendant might receive a different sentence today than he received years ago represents the routine business of our legal system. These ordinary happenings “cannot supply an extraordinary and compelling reason to reduce a lawful sentence whose term Congress enacted, and the President signed, into law.” Thacker, 4 F.4th at 574; see also Crandall, 25 F.4th at 586 (“The views of a present-day Congress, like those of a present-day sentencing judge, about the appropriate punishment for a present-day offense do not establish an ‘extraordinary and compelling reason’ for reducing a sentence imposed years ago.“).
And the reality is that the circuits that agree with Judge Moore‘s approach “recognize that a court may never grant compassionate release based solely on prospective sentencing changes” because “[s]uch reasoning always runs headlong into Congress‘s judgment that the unamended statute remains appropriate for previously sentenced defendants . . . .” Jenkins, 50 F.4th at 1199; see McGee, 992 F.3d at 1047–48 (“[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 . . . sentence . . . 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 that a defendant is serving a pre-First Step Act mandatory life sentence . . . cannot, standing alone, serve as the basis for a sentence reduction under
Our conclusion, on the other hand, holds true in the singular and in the aggregate. Nonretroactive legal developments, considered alone or together with other factors, cannot amount to an “extraordinary and
VI.
For these reasons, we affirm the district court.
DISSENT
KAREN NELSON MOORE, Circuit Judge, dissenting. David McCall has served more than half of a nearly twenty-year sentence. At sentencing, the district court found that McCall‘s sentencing guideline range was 188–235 months and sentenced him to a term of imprisonment of 235 months, the top end of that range. Several years later, a decision of our en banc court made it likely that McCall would have faced a far shorter guideline range—in McCall‘s estimation, a range of 77-96 months—if he had been sentenced after that decision. See United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam).1 Today, the majority holds that the district court could not consider that intervening change in law when evaluating whether McCall had shown that “extraordinary and compelling reasons” warranted his compassionate release under
The Supreme Court‘s recent decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), provides a roadmap for resolving the issue before us. In that case, the Court addressed a similar issue in a distinct context: whether district courts could consider nonretroactive changes in law when adjudicating motions raised under a provision of the First Step Act that allowed for resentencing of imprisoned individuals who had been convicted of certain offenses involving crack cocaine. Id. at 2396. The Court began its decision by noting the “longstanding tradition in American law” that “a judge at sentencing considers the whole person before him or her ‘as an individual.‘” Id. at 2395 (quoting Koon v. United States, 518 U.S. 81, 113 (1996)). Consistent with that tradition, the Court observed that “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in
Although the majority questions the decision‘s relevance, Maj. Op. 18, the principles recognized in Concepcion help frame the issue presented in this case. The en banc majority belabors the fact that the provision of the First Step Act addressed in Concepcion is different from the one we confront here, see id., but the Court‘s analysis implicated broader principles relevant to all “initial sentencings” and “sentencing modification hearings” irrespective of the statute authorizing the proceedings, Concepcion, 142 S. Ct. at 2399. Indeed, as Judge Gibbons‘s separate dissent observes, Concepcion speaks directly to what a district court may consider “when deciding” both “whether to modify a sentence at all, and if so, to what extent.” Id. at 2400 (emphasis added). In line with the principles recognized in Concepcion, our review of McCall‘s request for a sentence modification must begin with the default rule that “[t]he only limitations on [the] [district] court‘s discretion to consider any relevant materials . . . in modifying that sentence are those set forth by Congress in a statute or by the Constitution.” Id.; see also United States v. Chen, 48 F.4th 1092, 1095–96 (9th Cir. 2022) (adopting a similar frame of analysis); United States v. Arriola-Perez, No. 21-8072, 2022 WL 2388418, at *2 (10th Cir. July 1, 2022); United States v. Brice, No. 21-6776, 2022 WL 3715086, at *2 (4th Cir. Aug. 29, 2022). Here, all parties agree that the only limitation relevant to McCall‘s motion is supplied by
The majority‘s detailed historical account of
By design,
Congress has never provided, nor sought to provide, a comprehensive definition of “extraordinary and compelling reasons” under
The Sentencing Commission has done little to advance our understanding of what is “extraordinary and compelling” under
The Sentencing Commission‘s inaction left the BOP “to fill the void and create the standards for extraordinary and compelling reasons that warrant resentencing.” Hopwood, supra, at 103. In its original form,
In 2018, Congress moved to increase the availability of compassionate release by reforming
Read against this historical backdrop, there is nothing in the First Step Act or
None of this is to say that nonretroactive changes in law will amount to “extraordinary and compelling reasons” for a sentence reduction in all cases under
Turning to the present case, I would hold that the district court was required to consider each of the “extraordinary and compelling reasons” identified in McCall‘s motion, including the impact of the COVID-19 pandemic, his rehabilitation efforts since sentencing, his reentry plan, and the fact that he would face a shorter sentencing guideline range if he were sentenced after our decision in Havis. Of course, the district court was not required to accept McCall‘s arguments or to order a modification of his sentence. See Concepcion, 142 S. Ct. at 2405. The district court could have found, for instance, that McCall‘s relatively brief motion for compassionate release merely identified various facts and failed to demonstrate that these factors were extraordinary and compelling in the context of his own circumstances. Or the district court could have reasoned that McCall‘s conditions of confinement, when considered alongside the fact that he had already served a sentence longer than recommended under the current guidelines,
The majority, by contrast, holds that the district court was precluded as a matter of law from even considering McCall‘s arguments related to our decision in Havis. The majority‘s primary argument in support of its contrary decision rests on a textual analysis of the phrase “extraordinary and compelling reasons.” Drawing on a dictionary definition from the time of
As a preliminary matter, the majority‘s free-floating textual analysis demonstrates the peril of divorcing statutes from their context. Compassionate-release decisions do not exist in a vacuum. When an imprisoned person moves for compassionate release based on their advanced age or “deteriorating physical or mental health because of the aging process,” U.S.S.G. § 1B1.13 n.1(A)(ii)(III), (B),
There is an even more fundamental problem with the majority‘s textual analysis: it writes into
To support its reading of
The majority‘s second structural argument is even more problematic. For several pages, the majority labors to explain why McCall would not be able to obtain the benefit of our Havis decision through collateral proceedings under
By contrast, a grant of compassionate release does not invalidate the relevant sentence; rather, it recognizes that a holistic consideration of the defendant‘s circumstances entitles them to early release—a remedy that Congress specifically codified in
The majority attempts to bridge the gap between the two forms of relief in two ways. First, the majority posits that Congress knew of the Supreme Court‘s limitations on the retroactive application of new rules of law in post-conviction proceedings but did not clearly abrogate them in
Second, the majority justifies its reliance on post-conviction rules by asserting that permitting district courts to find that a nonretroactive change in law constitutes an “extraordinary and compelling reason” for release under
Further, the majority‘s argument on this score is fatally undercut by a point it makes just a few paragraphs later. The majority concedes, as it must, that district courts may consider nonretroactive legal developments after finding that extraordinary and compelling reasons exist. See Maj. Op. 14; see also Concepcion, 142 S. Ct. at 2402 n.6. The majority does not—and cannot—explain why allowing district courts to consider nonretroactive changes in law at the “extraordinary and compelling” stage would circumvent the post-conviction process, but allowing them to consider those same legal developments when weighing the
Lastly, the majority offers an historical argument that is at odds with the history recounted earlier in its decision. Based on two-page historical survey of a prior version of the compassionate-release statute, a decision by a federal district court in Michigan from over four decades ago, and the action (and inaction) of the BOP and Sentencing Commission discussed earlier, the majority declares that compassionate release has never been used to reduce sentences based on nonretroactive changes in law. Maj. Op. 15–17. To be sure, the
In the end, nothing in
DISSENT
JULIA SMITH GIBBONS, Circuit Judge, dissenting. At the time we heard argument in this case, my best assessment of the law was that nonretroactive changes in sentencing law could not constitute “extraordinary or compelling reasons” for granting compassionate release. See United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021), cert. denied, 142 S. Ct. 2771 (2022). In my judgment, the broad language of the Supreme Court‘s recent opinion in United States v. Concepcion, 142 S. Ct. 2389 (2022), makes adherence to that position impossible. Because the majority opinion fails to fairly apply the scope and spirit of Concepcion, I respectfully dissent.
Although Concepcion deals with § 404(b) of the First Step Act, it very specifically undertakes in Part II a broad and expansive view of sentencing discretion. Id. at 2398-401. Concepcion warns that the “only limitations on a court‘s discretion to consider any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a
The majority reads Concepcion more narrowly. It claims that Concepcion‘s broad statement of sentencing powers does not apply to the threshold question of whether a prisoner has established an extraordinary and compelling reason for compassionate release. Maj. Op. at 22. In the majority‘s interpretation, this broad discretion only arises in the resentencing itself, not the threshold decision of whether “extraordinary and compelling” circumstances exist. But such framing contradicts the language of Concepcion, which incorporates consideration of nonretroactive changes at the threshold stage:
In many cases, a district court is prohibited from recalculating a Guidelines range in light of nonretroactive Guidelines amendments, but the [district] court may find those amendments to be germane when deciding whether to modify a sentence at all, and if so, to what extent.
Concepcion, 142 S. Ct. at 2400 (emphasis added). If a district court finds a nonretroactive change in law “germane” to its decision to resentence the defendant, then that change is a factor that the district court can properly consider when determining whether “extraordinary and compelling reasons” exist for compassionate release.1
These inherent sentencing powers are the backdrop against which Congress must carve out exceptions. However, “Congress has created only two relevant limitations that control the district court‘s reading of the [‘extraordinary and compelling‘] standard: One for controlling Sentencing Commission policy statements, and the other for ‘rehabilitation . . . alone.‘” United States v. Jenkins, 50 F.4th 1185, 1210 (D.C. Cir. 2022) (Ginsburg, J., concurring in part, dissenting in part). The majority here cites no further congressional limitation against nonretroactive changes in sentencing law. Instead, it relies on silence. See, e.g., Maj. Op. at 19 (explaining that the Sentencing Commission‘s policy statement “never included nonretroactive legal developments“);
When the Supreme Court speaks this broadly, we cannot ignore it. Because I see no way to both adhere to Concepcion and join my colleagues in the majority, I respectfully dissent.