United States v. Jason BrickerUnited States v. Jason Bricker
COUNSEL
ARGUED: Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United States. David A. O’Neil, DEBEVOISE & PLIMPTON LLP, Washington, D.C., for Jason Bricker. Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Ellis McHenry. Alex P. Treiger, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Lois Orta. ON BRIEF: Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United States. David A. O’Neil, Suzanne Zakaria, DEBEVOISE & PLIMPTON LLP, Washington, D.C., Sandy Tomasik, James Stramm, Raphael M. Vim, DEBEVOISE & PLIMPTON LLP, New York, New York, for Jason Bricker. Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Ellis McHenry. Alex P. Treiger, Justin B. Berg, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Lois Orta. James Ewing, Vanessa V. Healy, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, Elaine K. Leonhard, UNITED STATES ATTORNEY’S OFFICE, Ft. Mitchell, Kentucky, for the United States.
BATCHELDER, J., delivered the opinion of the court in which READLER, J., concurred. STRANCH, J. (pp. 30–46), delivered a separate dissenting opinion.
ALICE M. BATCHELDER, Circuit Judge. In this consolidated appeal, we REVERSE the judgment of the district court in Bricker and AFFIRM the judgments in McHenry and Orta.
This appeal concerns three federal prisoners serving lengthy sentences. Invoking the compassionate-release statute,
To cut to the heart of this, because some recent revisions to federal sentencing law are not retroactive, old inmates are serving prison sentences that are much longer than the sentences of new inmates who committed the exact same crimes. Recognizing the unfairness, the Commission decided that the disparity was a good reason to grant these old-timers early release, or was at least a factor worth considering when deciding whether an individual old-timer had an “extraordinary and compelling reason” for early release. That is understandable and even laudable. The question is whether the Commission has the authority to do that under the law, particularly the Constitution.
To be specific, the questions in this appeal concern the separation of powers, specifically the Commission’s power to overrule a Circuit Court’s interpretation of a statute or to promulgate a policy statement that contradicts other federal statutes. The Sentencing Commission “is a peculiar institution“—a judicial-branch agency with “quasi-legislative” power—about which the Supreme Court has acknowledged that its “unique composition and responsibilities . . . give rise to serious concerns about a disruption of the appropriate balance of governmental power among the coordinate Branches.” Mistretta v. United States, 488 U.S. 361, 383-85 (1989).
Based on the analysis that follows, we conclude that the Commission overstepped its authority and issued a policy statement that is plainly unreasonable under the statute and in conflict with the separation of powers. We therefore hold that U.S.S.G. § 1B1.13(b)(6) is invalid.
I.
In 2005, Jason Bricker committed an armed bank robbery. He pleaded guilty to all charges, including brandishing a firearm during a crime of violence in violation of
In 1993, Ellis McHenry committed three armed carjackings. Following a jury conviction, the district court sentenced him to the low end of the advisory guidelines range, 63 months, plus an additional 540 months due to the statutory mandatory minimum for the three § 924(c) counts, for a total sentence of 603 months. Pursuant to subsequent, nonretroactive changes in federal sentencing law, if McHenry were sentenced today, the statutory mandatory additional sentence for the § 924(c) counts would be just 252 months, making his hypothetical current advisory range 315 to 330 months (63 to 78 months for the carjackings plus 252 months of statutory mandatory consecutive sentence for the § 924(c) counts). This is a disparity of at least 273 months (23 years) less than his actual sentence. In January 2024, having served some 354 months (almost 30 years),4 McHenry moved for compassionate release based on U.S.S.G. § 1B1.13(b)(6). The district court denied the motion. United States v. McHenry, No. 1:93 CR 84, 2024 WL 1363448, at *5 (N.D. Ohio Mar. 29, 2024) (Nugent, J.) (“Applying § 1B1.13(b)(6) to grant the relief requested, would require [this court] to either disregard the mandatory minimum entirely, or to retroactively apply a penalty structure that Congress determined should not be retroactive. It would also mean disregarding the holding in McCall, a Sixth Circuit opinion that is binding on this [c]ourt.“).
In 1998, a jury convicted Lois Orta on charges relating to distribution of over 50 pounds of methamрhetamine and the district court sentenced him to a statutory
We consolidated these three appeals for oral argument and this decision.
II.
Under the doctrines of nonretroactivity and finality, “in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012); see also Edwards v. Vannoy, 593 U.S. 255, 258 (2021) (“a new rule of criminal procedure ordinarily does not apply retroactively” to cases that are not pending in trial courts or on direct review).
“The non-retroactivity doctrine is an ordinary rule applied to all criminal defendants.” United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021);
“[A] judgment of conviction that includes [] a sentence [of imprisonment] constitutes a final judgment,”
In the meantime, many prisoners whose sentences would be much shorter if nonretroactive changes in the law were available retroactively began filing compassionate-release motions, claiming that the difference between the actual and would-be sentences was an
“extraordinary and compelling reason” for release, or at least a consideration. This led to conflicting panel opinions, and then to en banc consideration, in which the full Sixth Circuit concluded: “Nonretroactive legal developments do not factor intо the extraordinary and compelling analysis. Full stop.” United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022) (en banc). In reaching this conclusion, McCall held: (1) the phrase “extraordinary and compelling” in
McCall also included a footnote in anticipation of the Sentencing Commission’s issuing a new policy statement about “extraordinary and compelling“:
Congress has delegated to the [Sentencing] Commission the task of describing what should be considered extraordinary and compelling reasons.
28 U.S.C. § 994(t) . Whether the Commission could issue a new policy statement that describes ‘extraordinary and compelling reasons’ in a way that is inconsistent with our interpretation of the statute’s language is a question that we need not resolve in the absence of an applicable statement. See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005); cf. United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487-90 (2012) (plurality opinion).
Id. at 1054 n.3 (quotation and editorial marks omitted; certain citations omitted). So, McCall essentially envisioned the Sentencing Commission’s promulgating a policy statement with a conflicting interpretation of
Within months the Sentencing Commission promulgated a policy statement positing that a nonretroactive change in the law can be an “extraordinary and compelling” reason for release when (1) a prisoner has served at least 10 years (2) of “an unusually long sentence,” (3) there is a “gross disparity” between the actual sentence being served and a hypothetical sentence calculated using the current law, and (4) the court has given full consideration to the defendant’s individualized circumstances.9 U.S.S.G. § 1B1.13(b)(6) (eff. Nov. 1, 2023).10
These are legal and constitutional questions, so our review is de novo. United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010) (“If . . . the district court . . . concludes that it lacks the authority to reduce a defendant’s sentence under the statute, the district court’s determination that the defendant is ineligible for a sentence reduction is a question of law that is reviewed de novo.“); United States v. Henry, 983 F.3d 214, 218 (6th Cir. 2020); Hadix v. Johnson, 133 F.3d 940, 942 (6th Cir. 1998); United States v. Huguely, 569 F. App’x 360, 360 (6th Cir. 2014).
III.
According to the government, when a Circuit Court has already held that a statute is unambiguous and construed it, the Sentencing Commission (agency) cannot overrule that holding by issuing a “policy statement” that re-interprets that statute to do the opposite. This is correct.
Stated simply, the issue is whether the Sentencing Commission can overrule the Sixth Circuit in this scenario. To be sure, Congress charged the Sentencing Commission with promulgating general policy statements that “describe” what can be considered “extraordinary and compelling reasons for sentence reduction” within the meaning of
In Neal v. United States, 516 U.S. 284, 286–87 (1996), a district court sentenced Meirl Neal to 192 months in prison, which included a 120-month statutory mandatory minimum due to his distributing over 10 grams of a “mixture or substance containing a detectable amount of” LSD (specifically, 11,456 doses of LSD comprising 109.51 grams) including the weight of the blotter paper. The pertinent statute did not define the terms “mixture” nor “substance,”
Before the Supreme Court, Neal argued that the Commission could—and did—overrule the Court, so “the method approved in Chapman is no longer appropriate.” Id. at 289. The Court explained his theory:
[Neal] argues . . . that the Commission is the agency charged with interpretation of penalty statutes and expert in sentencing matters, so its construction of [the statute] should be given deference. Congress intended the Commission’s rulemaking to respond to judicial decisions in developing a coherent sentencing regime, so, [Neal] contends, deference is appropriate even though the Commission’s interpretation postdated Chapman.
Id. at 290 (citations omitted). After some discussion of the language of the revised Guideline and a frank recognition that the Commission “has no authority to override the statute,” id. at 294, the Court rejected Neal’s argument about the Commission’s authority over the Court:
[Even assuming] the Commission’s view that the dose-based method is consistent with the term ‘mixture or substance’ in the statute, [Neal] still would not prevail. The Commission’s dose-based method cannot be squared with Chapman. The Guideline does take into account some of the weight of the carrier medium . . . , but we held in Chapman that [the statute] requires the entire mixture or substance to be weighed when calculating the sentence. In these circumstances, we need not decide what, if any, deference is owed the Commission in order to reject its alleged contrary interpretation. Once we have determined a statute’s meaning, we adhere to our ruling under the doctrine of stare decisis, and we assess an agency’s later interpretation of the statute against that settled law.
Id. at 294-95 (quotation marks, editorial marks, and citations omitted). See also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 984 (2005) (“Thus, Neal established only that a рrecedent holding a statute to be unambiguous forecloses a contrary agency construction.“); United States v. Koons, 850 F.3d 973, 979 (8th Cir. 2017), aff’d, 584 U.S. 700 (2018) (“Nor can the Sentencing Commission overrule circuit precedent interpreting a statutory provision.” (quotation marks, editorial marks, and citation omitted; emphasis in original)). Therefore, once a court has determined a statute’s clear and unambiguous meaning, the Commission cannot overrule that interpretation. See United States v. Austin, 125 F.4th 688, 692 (5th Cir. 2025) (“[T]he Sentencing Commission cannot make retroactive what Congress made non-retroactive. And it certainly cannot do so through an interpretation of ‘extraordinary and compelling’ that conflicts with the plain meaning of those terms. Moreover, the Commission does not have the authority to amend the statute we construed in [prior cases].” (quotation marks and citations omitted)) (citing Neal, 516 U.S. at 290, and Koons, 850 F.3d at 979).
In McCall, 56 F.4th at 1065-66, the en banc court held that the phrase “extraordinary and compelling” in
the plain meaning of “extraordinary and compelling” against the backdrop of the “background principles” of finality and nonretroactivity and the “structure of federal sentencing law, and “confirm[ed]” that reading by considering the history and practice of compassionate release. Id. at 1055–60. True, McCall did look beyond the words “extraordinary and compelling” to reach its conclusion, but that was in
Accordingly, under Neal, the Commission cannot overrule McCall’s determination about the plain text of the statute by promulgating a contradictory policy statement. This is the point of McCall’s footnote three, in which it addressed the possibility of a future Commission policy statement by citing principally to Brand X, 545 U.S. at 982 (“A court’s prior judicial construction of a statute trumps an agency construction . . . if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.“), and United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487 (2012) (“The fact that a statute is unambiguous means that there is no gap for the agency to fill
and thus no room for agency discretion.” (quotation marks omitted)). Given McCall’s predicate holding that the statutory term “extraordinary and compelling” is unambiguous and its core holding that ordinary nonretroactive changes in the law cannot be “extraordinary,” these precedents dictate that a conflicting interpretation from the Commission could not overrule the McCall holding.
The prisoners argue that the Commission can and did overrule McCall’s interpretation because three statutes make this policy statement binding on the courts: in
But Dillon and Braxton are cases about the Commission’s authority when it interprets or reinterprets its own Guidelines (regulations); neither is about the interpretation of a statute, and neither considers, much less reconciles, Neal. These cases do not and cannot overcome Neal or establish that the Commission can overrule a court’s interpretation of an unambiguous statute. See Koons, 850 F.3d at 979 (“[T]he Sentencing Commission [cannot] overrule circuit precedent interpreting a statutory provision“); Austin, 125 F.4th at 692; see also United States v. Jean, 108 F.4th 275, 296 (5th Cir. 2024) (Smith, J., dissenting) (similar).
The prisoners also rely on Batterton v. Francis, 432 U.S. 416 (1977), to argue that “express delegation” alone is enough to empower the Commission to overrule McCall’s interpretation of the statute. In Batterton, a case arising from the Social Security Act, the Court explained:
[When] Congress . . . expressly delegate[s] to the [agency] the power to prescribe standards for determining what constitutes [a statutory term] . . . , Congress entrusts to the [agency], rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the [agency] adopts regulations with legislative effect. A reviewing court is not free to set aside those regulations simply because it would have interpreted the statute in a different manner. The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the [agency] exceeded [its] statutory authority or if the regulation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.
Id. at 425-26 (quotation marks, citations, footnotes, and paragraph break omitted). Of course, there wаs no prior judicial interpretation of the statute in Batterton, so Batterton did not have to consider or address an agency’s power to overrule an existing judicial interpretation.
More to the point, even with an express delegation of authority, the Commission does not have limitless power to define “extraordinary and compelling” to mean what it plainly does not allow, which, as recognized in McCall, 56 F.4th at 1066, includes nonretroactive changes in law. See
construction of the statute.” Id. As a corollary to that principle, Chevron recognized that if Congress had made “an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation,” then “[s]uch legislative regulations [we]re given controlling weight unless they [we]re arbitrary, capricious, or manifestly contrary to the statute.” Id. (footnote omitted).
But the Court has overruled Chevron’s core holding, explaining its flaws—as relevant here—to include:
Chevron . . . demands that courts mechanically afford binding deference to agency interpretations, including those that have been inconsistent over time. Still worse, it forces courts to do so even when a pre-existing judicial precedent holds that the statute means something else—unless the prior court happened to also say that the statute is ‘unambiguous.’ That regime is the antithesis of the time honored approach the [Administrative Procedure Act] prescribes. In fretting over the prospect of allowing a judicial interpretation of a statute to override an agency’s in a dispute before a court, Chevron turns the statutory scheme for judicial review of agency action upside down.
Loper Bright, 603 U.S. at 399 (quotation marks, editorial marks, and citations omitted); see also Mazariegos-Rodas v. Garland, 117 F.4th 860, 877 (6th Cir. 2024) (“The problem . . . is that Brand X . . . stated in no uncertain terms that the ‘principle’ of agencies effectively overruling federal courts of appeals follows from Chevron itself. And now that Chevron is overruled, the [agency] has no legal authority to disregard precedential decisions of this court.” (quotation marks, editorial marks, and citations omitted)). So, after Loper Bright, courts no longer defer to agency regulations as the authoritative (binding) interpretation of a statute. See, e.g., Seldon v. Garland, 120 F.4th 527, 531 (6th Cir. 2024) (“After Loper Bright, we may look to agency interpretations of the INA for guidance, but do not defer to the agency. . . . As to agency regulations, we must thoroughly evaluate an agency’s interpretation of an ambiguous regulation before giving any deference.” (quotation marks, editorial marks, and citations omitted)). Rather, “when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and . . . may not defer to an agency interpretation of the law simply because a statute is ambiguous.” Loper Bright, 603 U.S. at 413. And this principle extends to express delegations of authority, which are simply a difference in degree, not kind, from implicit delegations based on a
law’s silence or ambiguity. See Moctezuma-Reyes v. Garland, 124 F.4th 416, 420 (6th Cir. 2024) (explaining our role under Loper Bright when “confronted” with a statute that expressly authorizes the “agency to interpret a broad standard“); Pickens v. Hamilton-Ryker IT Sols., LLC, -- F.4th --, No. 24-5407, 2025 WL 972526, at *9 (6th Cir. Apr. 1, 2025) (explaining that even when the statute expressly delegates authority to an agency, creating some degree of deference, we must still “ensure that the agency’s action is both reasonable and reasonably explained” and “[t]hrough it all, we must decide for ourselves whether the law means what the agency says” (quotation marks omitted)) (quoting FCC v. Prometheus Radio Project, 592 U.S. 414, 423 (2021), and Loper Bright, 603 U.S. at 392). Our duty remains the same: to “independently interpret the statute and effectuate the will of Congress . . .
Therefore, Loper Bright negates the prisoners’ argument that § 1B1.13(b)(6) overrules McCall because courts must defer to an agency’s interpretation of what they view to be an ambiguous phrase, “extraordinary and compelling.”13 Not only are we bound by McCall’s views on the plain meaning of “extraordinary and compelling,” see United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017), but Courts no longer defer to agency interpretations—or a Commission policy statement—just because a statute is ambiguous. See Loper Bright, 603 U.S. at 400-01 (“Perhaps most fundamentally, . . . agencies have no special competence in resolving statutory
ambiguities. Courts do.“); see Rutherford, 120 F.4th at 379 (concluding that Loper Bright is “instructive” as “we assess the assertion that the Commission’s view of a statute should trump our own“). Instead, we must “use every tool at [our] disposal to determine the best reading of the statute.” Loper Bright, 603 U.S. at 400; see also Kentucky v. USEPA, 123 F.4th 447, 467 (6th Cir. 2024) (“[T]he EPA resolves a pure question of law when it interprets the key terms in § 7607(b)(1) (such as ‘nationally applicable’ or ‘determination’). After Loper Bright, we must review (and correct) the agency’s mistaken interpretation of those terms without giving it deference.“).
A plain reading of the compassionate-release statute conflicts with the Commission’s new policy statement. Policy statement § 1B1.13(b)(6) concludes that because a nonretroactive change in sentencing law does not apply to prisoners sentenced under the old law, the withheld benefit (i.e., the would-be lower sentence) can be an “extraordinary and compelling reason” for a sentence reduction. But rather than extraordinary, “the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” Dorsey, 567 U.S. at 280 (emphasis added). Similarly, there is nothing inherently compelling about the length of a lawful sentence. What is ordinary—the nonretroactivity of judicial precedent announcing a new rule of criminal procedure—is not extraordinary, and what is routine—a criminal defendant’s serving
The prisoners also argue that the withheld benefit (i.e., the would-be lower sentence) of nonretroactivity is an “extraordinary and compelling reason” for a sentence reduction because Black’s Law Dictionary defines extraordinary to include “out of the ordinary; exceeding the usual, average, or normal measure or degree“; defines “extraordinary circumstances” to include “extenuating circumstances“; and defines “extenuating circumstances” to include those that “render a . . . crime less . . . reprehensible than it would otherwise be,” or that call for “reduce[d] . . . punishment.” Thus, to the prisoners, “extraordinary” reasons include any reasons or circumstances “that tend to call for reduced punishment.” Bricker Br. at 35; Orta Br. at 31. Given that the very purpose of
But
The prisoners argue that even if nonretroactivity alone is not extraordinary, the necessary inquiry into “extraordinary and compelling” reasons requires the court to consider a “confluence of numerous different factors, any one of which could in isolation be deemed ‘ordinary,’ but together are extraordinary and compelling.” See, e.g., Bricker Br. at 37. “For example,” they say “it is ordinary to get old. And it is ordinary to get sick. But age or health can combine with other ‘ordinary’ factors (like serving a lawful sentence) to create a confluence of factors that . . . constitute ‘extraordinary and compelling’ circumstances.” Bricker Br. at 37-38. One of the dissents in McCall pressed this same argument unsuccessfully. See McCall, 56 F.4th at 1070-71 (Moore, J., dissenting) (contending that the question is not “whether a change in law is itself extraordinary or compelling,” but “whether there are ‘extraordinary and compelling reasons’ to reduce the sentence when a particular statutory change is considered in the context of the defendant’s individualized circumstances” (quotation marks and citations omitted)).
The principal flaw in this argument is that it presupposes that nonretroactivity is a permissible factor. It is not. As explained, § 1B1.13(b)(6)’s construction of “extraordinary and compelling” (as giving retroactive effect to nonretroactive changes in the law) conflicts with other statutes (either the nonretroactive statutory amendments or
The point to all of this is that even an express Congressional delegation of authority does not mean the Commission’s policy statement necessarily trumps a prior
IV.
The prisoners’ assertion of the Commission’s authority raises additional risks to the separation of powers beyond their effect on the judiciary. The prisoners would empower the Commission to exercise the legislative powers vested in Congress, and allow the Commission to override existing law. See Loper Bright, 603 U.S. at 415 (Thomas, J., concurring). The Sentencing Commission’s “policy statement” re-interprets the statute to give retroactive effect to nonretroactive changes in sentencing law, contrary to
Put another way, the issue is whether the Commission can ignore other statutes. The Commission has “significant discretion” in formulating the Guidelines and policy statements, Mistretta, 488 U.S. at 377, but it must act consistently with the statute’s plain language, Neal, 516 U.S. at 290 (“the Commission does not have the authority to amend [a] statute“). Moreover, the Commission cannot interpret a statute in such a way as to contradict or negate other statutes.
In United States v. LaBonte, 520 U.S. 751, 752 (1997), the Court considered
statutory phrase “maximum term authorized” to mean “the maximum term available without [applicable sentencing] enhancements,” and the Court held that “interpretation [to be] inconsistent with
We are unwilling to read
§ 994(h) as essentially rendering meaningless entire provisions of other statutes to which it expressly refers. Under respondents’ novel construction, a repeat drug or violent felon could only receive a sentence at or near the maximum allowed fordefendants who had no such prior qualifying convictions or who had never received the notice under § 851(a)(1) . Indeed, if this interpretation . . . were adopted, a sentencing court could be forbidden to impose the enhanced maximum penalty. Congress surely did not establish enhanced penalties for repeat offenders only to have the Commission render them a virtual nullity.
Id. So, the Commission cannot interpret a statute so as to contradict or negate other statutes. See also
As explained above,
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
The prisoners argue that other statutes do not—and cannot—limit
Rehabilitation alone is not the only congressionally imposed limit; it is a specific
The key point, however, is that
The prisoners argue that Congress clearly intended the analysis to account for a totality of the circumstances, meaning that nonretroactivity—like rehabilitation—would be considered among the combination of circumstances contributing to an individual prisoner‘s “extraordinary and compelling reason” for release. Recall that
V.
As demonstrated by its application in these cases, рarticularly McHenry and Orta, the intent or effect of
Start with the basics. Congress, and not the Commission, holds the “legislative responsibility for establishing minimum
“When a statute sets out a mandatory minimum sentence, a defendant convicted under that statute will generally receive a sentence at or above the mandatory minimum—but not always.” Koons, 584 U.S. at 702-03. That is, but for two specific statutory exceptions, a court may not set a sentence below the statutory minimum.
When a defendant faces a statutory minimum sentence, the district court‘s ability to depart downward below that minimum is limited to two provisions—
18 U.S.C. § 3553(e) , which allows for departures based upon the government‘s motion indicating that a defendant has provided substantial assistance in the investigation of other suspects, and18 U.S.C. § 3553(f) , which is known as the ‘safety valve’ provision. . . . [W]e [have] recognized that all of the courts that have addressed the issue have determined that these two provisions represent the exclusive means by which a district court may depart below a statutory minimum.
United States v. Stewart, 306 F.3d 295, 331 n.21 (6th Cir. 2002) (citations omitted; emphasis added) (quoted with approval in United States v. Battles, 350 F. App‘x 16, 19 (6th Cir. 2009); cited with approval in United States v. McIntosh, 484 F.3d 832, 835 (6th Cir. 2007) (“These are the exclusive means by which a court may depart below the statutory minimum.“)).
Notice that both provisions use language that expressly and unequivocally empowers a court to go below the statutory minimum based on the specifically identified conditions:
(e) Limited authority to impose a sentence below a statutory minimum. – Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as a minimum sentence so as to reflect a defendant‘s substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and
policy statements issued by the Sentencing Commission pursuant to section 994 of title 28, United States Code .(f) Limitation on applicability of statutory minimums in certain cases. – Notwithstanding any other provision of law, in the case of an offense under [certain statutes], the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under
section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make [certain] recommendation[s.]
In this light,
Also consider United States v. Goff, 6 F.3d 363, 365 (6th Cir. 1993), in which the district court found that a wheelchair-bound quadriplegic defendant had “an extraordinary physical impairment,” such that
Now suppose that five years (60 months) later, Goff moved the court for compassionate release because his being a wheelchair-bound quadriplegic was a “medical circumstance” that qualified as an “extraordinary and compelling reason” under
VI.
There is one remaining separation of powers concern inherent in the Commission‘s policy statement. Consider the Commission‘s peculiar parenthetical exception, which says: “a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason.”
According to one district court, this jerry-rigged exception makes
[T]he Commission . . . has purported to authorize individual judges to apply retroactively laws that Congress has intentionally chosen not to apply retroactively, while carving out nonretroactive changes to the Guidelines. A principled approach would either authorize compassionate release based on all nonretroactive changes in the law, or none at all. It is unprincipled and inconsistent to adopt an approach that allows compassionate release based on some, but not all, nonretroactive changes to the law.
United States v. Crandall, No. 89-cr-21, 2024 WL 945328, at *8 (N.D. Iowa Mar. 5, 2024); see also id. at *10 (“It is not for [the Commission] to use the compassionate release statute, a narrowly-tailored statute designed to provide relief when an offender has identified extraordinary and cоmpelling reasons justifying release from prison, to [have courts] arbitrarily decide whether, under today‘s standards, the sentence seems unusually long or somehow unfair.“).14
The Commission‘s decision in
McHenry and Orta, relying on
The scope of
Critically,
The Commission‘s attempt, via the
VII.
For the forgoing reasons, we hold that the Sentencing Commission‘s pоlicy guidance in
DISSENT
JANE B. STRANCH, Circuit Judge, dissenting. The majority opinion misapprehends recent Supreme Court precedent on administrative law, misconstrues this court‘s opinion in United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc), and ignores the plain language of several statutes to read constraints into a statutory scheme where none exist. Because these cases and statutes instead support holding that USSG
I. ANALYSIS
A. The Binding Nature of Sentencing Commission Policy Statements
I begin with a brief history of the Supreme Court‘s jurisprudence on deference to agencies, because the majority overlooks this essential component. The proper method for assessing deference to agency rules in cases where Congress has expressly delegated rulemaking authority to an agency is not new. It was not new after Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024). And it was not new after Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). In the early nineteenth century, the Supreme Court recognized that, when Congress chooses to expressly delegate interpretive authority, courts should defer to reasonable agency interpretations of a statute. Edward‘s Lessee v. Darby, 25 U.S. (12 Wheat.) 206, 210 (1827) (“In the construction of a doubtful and ambiguous law, the cotemporaneous construction of those who were called upon to act under the law, and were appointed to carry its provisions into effect, is entitled to very great respect.“).
By the late twentieth century there was well established doctrine regarding the appropriate deference in cases of express delegation:
Congress in [the relevant statute] expressly delegated to the [agency] the power to prescribe standards for determining what [a particular statutory term means]. In a situation of this kind, Congress entrusts to the [agency], rather than to the courts, the primary responsibility for interpreting the statutory term. In exercising that responsibility, the [agency] adopts regulations with legislative effect. A reviewing court is not free to set aside thоse regulations simply because it would have interpreted the statute in a different manner. . . . The regulation at issue in this case is therefore entitled to more than mere deference or weight. It can be set aside only if the [agency] exceeded [its] statutory authority or if the regulation is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Batterton v. Francis, 432 U.S. 416, 425-26 (1977) (citations omitted) (emphasis added).
The Supreme Court has provided a template for how to handle cases where a court has construed a statute one way, but an agency to which authority was delegated has construed it another, and the court must now determine whether the regulation is manifestly contrary to the statute. In AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000), the Ninth Circuit construed a statute by “look[ing] first to the plain language of the statute,” construing the provisions of “the entire law, including its object and policy,” and considering the history of regulation of similar policies. Id. at 876-78 (citation omitted). The court reached a conclusion and, in doing so, never asserted that the statute‘s text alone was unambiguous. Id. at 880. When the Ninth Circuit was later faced with an agency decision that construed the relevant statute in a manner contrary to Portland, it rejected the regulation. Brand X Internet Servs. v. FCC, 345 F.3d 1120, 1130-31 (9th Cir. 2003).
The Supreme Court expressly critiqued this approach on grounds that “a court‘s interpretation of a statute trumps an agency‘s under the doctrine of stare decisis only if the prior court holding ‘determined a statute‘s clear meaning.‘” Nat‘l Cable & Telecomms. Ass‘n v. Brand X Internet Servs., 545 U.S. 967, 984-85 (2005)1 (quoting Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 131 (1990)). A contrary rule, the Court explained “would produce anomalous results,” because the meaning of a statute would turn, not on the law, or the regulations, but on who interpreted the statute first: the court or the agency. Id. at 983. “Yet whether Congress has delegated to an agency the authority
What role, then, do Chevron and its subsequent demise in Loper Bright play? The legal rule announced in Chevron and eliminated in Loper Bright was not a change in either the degree of deference given to agencies, or the degree of statutory ambiguity required for deference to be given. Rather, the Chevron rule simply imported the longstanding rules and standards for express delegation into a new kind of delegation: implied delegation. Chevron, 467 U.S. at 844. Under Chevron, a court did not need to identify an express delegation to an agency before deferring to the agency. Id. at 842-43. Because a court could assume that ambiguity in a statute was “implicitly” delegation to an agency, even where Congress had expressed no desire for an agency to construe a statutory term, courts were to defer to reasonable agency construction. Id.
While Chevron was on the books, therefore, there was neither a difference in degree nor a difference in kind between the two types of delegation—express and implied. Courts treated situations where Congress had written a slightly ambiguous statute in exactly the same way they treated situations in which Congress had expressly left gaps and directed the agencies to fill them. The Court in Loper Bright overturned Chevron, holding that “an ambiguity is simply not a delegation of law-interpreting power.” Loper Bright, 144 S. Ct. at 2265 (quoting Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989)).
But while Loper Bright overruled Chevron, and significantly reduced the deference given to agencies in the implied delegation context, it did not purport to disturb pre-Chevron law for express delegation. Indeed, Loper Bright cited pre-Chevron precedent setting forth the rules for deference in the express delegation context with approval. Loper Bright, 144 S. Ct. at 2263. The Court explicitly preserved the role of an agency‘s interpretation in the express delegation context:
In a case involving an agency, of course, the statute‘s meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes “expressly delegate” to an agency the authority to give meaning to a particular statutory term. Others empower an agency to prescribe rules to “fill up the details” of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as “appropriate” or “reasonable.”
When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, fixing the boundaries of the delegated authority, and ensuring the agency has engaged in reasoned decisionmaking within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.
Id. (cleaned up). Post Loper Bright, there now exists at law an important difference in kind between the express and implied delegation contexts. In the realm of express delegation, agencies are still entitled to significant deference under the same rules in existence since the nineteenth century; in the realm of implied delegation, agencies are no longer so entitled.
This history provides a clear framework for what courts should do, in the express delegation context, when faced with an agency interpretation of a statute that courts have already construed. Ordinarily, there are many tools in a court‘s statutory interpretation toolbox—text, history, structure, background legal principles, legislative history, purpose, etc. And ordinarily, even where a statute is ambiguous, courts must still resolve the case and give that statute meaning. But in the express delegation context, courts are to use only a single tool: text. And only if the plain text unambiguously forecloses the agency‘s interpretation may courts disturb that interpretation. When governing case precedent demonstrates that the text alone is unambiguous and precludes the agency‘s interpretation, that prior precedent is binding, and courts must follow it in rejecting the agency rule. Where, however, prior precedent shows that the text is ambiguous, or resorts to reaching back into the toolbox for other interpretive tools beyond the text, Brand X teaches that such precedent cannot control the validity of a later agency construction of that same text. 545 U.S. at 984.
The majority‘s failure to understand or sometimes even acknowledge this historical framework leads the majority opinion to claim interpretive authority this court simply does not have. The genesis of the majority‘s error is in its misconstruction of Loper Bright. The opinion injudiciously interprets Loper Bright as standing for the proposition that “courts no longer defer to agency regulations as the authoritative (binding) interpretation of a statute,” even those based on expressly delegated authority. Maj. Op. at 16. But, as discussed above, Loper Bright did not disturb the Supreme Court‘s longstanding precedent requiring courts to defer in the express delegation context; it merely eliminated the implied delegation precedent.
Confusingly, the majority directly quotes the very passage from Batterton v. Francis, quoted in full above; but there the Supreme Court explained that courts must defer in the еxpress delegation context because an agency‘s interpretation of a statute it has been expressly instructed to interpret can be “set aside only if the [agency] exceeded [its] statutory authority or if the regulation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Maj. Op. at 15. (quoting Batterton, 432 U.S. at 425-26). The majority provides no explanation as to why Batterton does not apply here or why Batterton does not mean what it plainly says.
The majority compounds its initial error by positing that the difference between express and implied delegation is “a difference in degree, not kind” thereby claiming the authority to treat express delegation as diminished post-Loper Bright in the same way implied delegation has been. Maj. Op. at 16-17. But, once again, as discussed above, the difference between express and implied delegation is not and never has been a difference of degree. There has never been a time when courts applied the same type of deference in both the express and implied delegation contexts but to a greater or lesser degree. The question debated by the court in Chevron and Loper Bright was not about the degree of deference courts must give, but about what statutory circumstances merit
Turning to the relationship between our past precedent and new constructions by the agencies, the majority classifies any guideline that provides an interpretation of an ambiguous statute that is different from the one promulgated by this court as an attempt to “overrule a Circuit Court‘s interpretation of a statute.” Maj. Op. at 3, 14. But this incorrectly presumes what happens when the Commission promulgates a rule interpreting an ambiguous statute that it has been expressly delegated the authority to interpret. Indeed, the Supreme Court has explicitly rejected the majority‘s assumption that a court‘s holding is being “overruled” by such an agency action:
The dissent answers that allowing an agency to override what a court believes to be thе best interpretation of a statute makes “judicial decisions subject to reversal by executive officers.” It does not. . . . The precedent has not been “reversed” by the agency, any more than a federal court‘s interpretation of a State‘s law can be said to have been “reversed” by a state court that adopts a conflicting (yet authoritative) interpretation of state law.
Brand X, 545 U.S. at 983-84 (cleaned up).
When an agency adopts a new interpretation of a statute, a new legal landscape is formed in which a court must operate. Had there been no agency interpretation of the statute, the correct interpretive methodology would be for the court to look to the text, recognize that the text is ambiguous, recognize that the text delegates interpretive authority to the agency, recognize that the agency has not exercised that authority, and then turn to other tools of statutory interpretation. But, in the express delegation context, once an agency interpretation has been promulgated, the correct interpretive methodology would be for the court to look to the text, recognize that the text is ambiguous, and recognize that the text delegates interpretive authority to the agency, just as before. But this time, when the court looks to the agency, it will find an answer because the agency has exercised its authority, and, thus, the court will proceed no further. The new ruling does not overrule the pre-agency-action ruling or challenge its propriety when it was made; it simply recognizes an intervening change in the facts on the ground—i.e., the presence or absence of an agency rule.
Finally, the majority wrongly pulls a portion of Loper Bright out of context, quoting language in which the Supreme Court notes the evils of allowing an agency interpretation of a statute to take precedence over a prior judicial construction. Maj. Op. at 16 (citing Loper Bright, 144 S. Ct. at 2265). The majority‘s argument that any prior construction by this court must reign supreme misunderstands Loper Bright. That section of Loper Bright addresses the implied delegation context in which Congress has not expressly instructed the agency to interpret a particular term; the concern was that courts were abdicating their authority by allowing the agency determination to prevail. Loper Bright, 144 S. Ct. at 2265. In the express delegation context, there is no abdication of authority when courts acknowledge that Congress expressly instructed the agency to define the terms of the statute and interpretation of the statute by the courts must hinge on the agency‘s definitions. Id. at 2263.
In this dissent, I will follow binding Supreme Court precedent on deference, recognizing and giving effect to Congress‘s
Further, in
The Commission, in USSG
If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant‘s individualized circumstances.
B. The Role of the McCall Opinion
Both the government and the majority argue that our plain language inquiry can be resolved simply by looking to this court‘s decision in United States v. McCall,
Before the Commission‘s statement in USSG
McCall begins with an entire section on how vague “extraordinary and compelling” is as a standard. The opinion looks to the text, but concludes that it is unhelpful:
Our analysis starts, as it must, with the text of the compassionate-release statute. With no statutory definition of “extraordinary and compelling reasons” to guide us, we interpret the phrase “in accord with the ordinary public meaning of its terms at the time of its 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.” “Compelling,” for its part, referred to “forcing, impelling, driving.”
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?
McCall, 56 F.4th at 1055 (internal citations omitted) (emphasis added).
To resolve the matter, the opinion then delves into a lengthy discussion of “background principles of federal sentencing law,” congressional intent as revealed by the structure of the rest of the statute, the role of the compassionate release provision in the statute in relation to other resentencing statutes, and the history of compassionate release. Id. at 1055-60. By this circuit‘s principles of statutory interpretation, the discussion of these extra-textual factors would have been irrelevant and unnecessary if the text was unambiguous on its face. Governing principle teaches that background principles, structure, and history are irrelevant where the text itself is clear. For example, in United States v. Asgari, 940 F.3d 188 (6th Cir. 2019), we rejected an argument based on background principles explicitly because
The majority resists this conclusion by overlooking McCall‘s clear statement that the text alone is unclear in favor of a few cherry-picked quotations from McCall which, the majority asserts, constitute a holding that the text is unambiguous. Maj. Op. at 17 n.13.2 But, in context, none of these quotations assert what the majority opinion claims they do. The opinion begins with McCall‘s assertion that “there is no such ambiguity here.” Maj. Op. at 17 n.13 (quoting McCall, 56 F.4th at 1064). That phrase is drawn from this court‘s rejection of McCall‘s appeal to legislative history:
[L]egislative history is not the law. And even when courts consider legislative history, they do so only when it sheds a reliable light on the enacting Legislature‘s understanding of otherwise ambiguous terms. There is no such ambiguity here. The text of the compassionate-release statute, informed by the principles, history, and structure of sentencing law forecloses McCall‘s argument.
McCall, 56 F.4th at 1064 (cleaned up). The McCall court did not conclude that the text of the statute was unambiguous on its face. Rather, the court concluded that the text was not ambiguous after consideration of both text and other tools like “principles, history, and structure,” all of which rendered resort to such a disfavored tool as legislative history unnecessary. That conclusion was useful in the context of McCall, but, as discussed above, it is not relevant to the question of whether the agency may adopt a contrary conclusion, because it does not rest solely on unambiguous plain text.
The majority similarity quotes McCall‘s claims that “[f]ramed 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” and “[v]iewed in this light, the phrase ‘extraordinary and compelling reasons’ comes into sharper focus.” Maj. Op. at 17 n.13 (citing McCall, 56 F.4th 1055-56). But the participial phrases at the beginning of these sentences are important. The “background” against which the text was framed and the “light” in which it was viewed both integrally involved the “principles, history, and structure” of the text. McCall, 56 F.4th 1055-56. Once again, neither of
light of” other tools of statutory construction. Neither is, therefore, relevant to the purely textual inquiry we must undertake today.
Finally, the majority quotes McCall‘s assertion that “we cannot reconcile this approach with the plain text of the compassionate-release statute.” Maj. Op. at 17 n.13 (citing McCall, 56 F.4th 1065). True, this sentence references the plain text of the statute. The problem is that the “approach” McCall rejected was an interpretive approach that viewed the compassionate release statute as holding the goal of “alleviating unfair and unnecessary sentences as judged by today‘s sentencing laws.” McCall, 56 F.4th 1065 (citation omitted). Thus, we are bound by stare decisis to reject that interpretive approach. But it is entirely consistent to hold both (1) that the statute is ambiguous as to whether nonretroactive changes may be considered as part of the analysis and (2) that the goal of the statute was not to “alleviаt[e] unfair and unnecessary sentences as judged by today‘s sentencing laws.” Id. (citation omitted).
By way of analogy, Congress expressly prohibited courts from finding that rehabilitation, alone, was an “extraordinary and compelling reason.”
Despite the majority‘s attempts to stretch the McCall opinion to cover the question we must resolve today, our precedent leaves open both the question of whether the Sentencing Commission has the authority to issue a policy statement allowing courts to consider nonretroactive changes in law as an “extraordinary and compelling reason” and the underlying question of whether the text of
C. The Reasonability of USSG § 1B1.13(b)(6)
I turn now to the appropriate analysis: de novo interpretation of the statute to determine whether it unambiguously forecloses the reading put forward by
1. The Text of § 3582(c)
It is established precedent in this circuit that the terms “extraordinary and compelling” are, at least to some extent, ambiguous. As discussed above, McCall made a point of how unclear they were. McCall, 56 F.4th at 1055. Our pre-McCall precedent says the same. United States v. Hunter, 12 F.4th 555, 566 (6th Cir. 2021) (calling the phrase “vague and amorphous“). And there is evidence that the statute is ambiguous on precisely this point. Our circuit has found that judicial disagreement is evidence of ambiguity, Valent v. Comm‘r of Soc. Sec., 918 F.3d 516, 521 (6th Cir. 2019); N. Fork Coal Corp. v. Fed. Mine Safety & Health Rev. Comm‘n, 691 F.3d 735, 740 (6th Cir. 2012), as has the Supreme Court, Smiley v. Citibank (S.D.), N.A., 517 U.S. 735, 739 (1996). Prior to the Commission‘s adoption of
Viewing the text from first principles shows the impropriety of concluding that
It is not unreasonable to conclude that a prisoner meeting the qualifications required by
Just as it is ordinary to become sick, but it is extraordinary to become so ill as to satisfy
2. Reasonability in Light of Nonretroactivity
The majority argues that, even if the text of the compassionate release statute itself does not prohibit
Both of these arguments elide a key distinction between
Second, a court granting compassionate release under
3. Reasonability in Light of Mandatory Minimums
The majority next suggests, although it declines to decide, that
If a defendant presented other extraordinary and compelling reasons (e.g., age and illness), he could be resentenced with consideration of the new statutory minimums rather than the old ones even under McCall. Id. The proposition that a defendant, originally sentenced with the old minimum, would have his sentence reduced to one appropriate under the new scheme cannot, therefore, itsеlf, be problematic. See United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021) (“In making this observation, we are not saying that extraordinary and compelling individual circumstances, such as a terminal illness, cannot in particular cases supply the basis for a discretionary sentencing reduction of a mandatory minimum sentence.“). Given that our law already contemplates the use of compassionate release to resentence a defendant below the mandatory minimum, allowing specific types of circumstances to qualify as “extraordinary and compelling reasons” for that compassionate release does not make resentencing below the old minimum any more problematic.
II. CONCLUSION
Nothing in