UNITED STATES OF AMERICA v. JERRAMEY LYNDELL ROPER
No. 22-30021
United States Court of Appeals, Ninth Circuit
July 6, 2023
D.C. No. 3:12-cr-05085-BHS-1
Opinion by Judge Ezra
Argued and Submitted March 27, 2023 Seattle, Washington
FOR PUBLICATION
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit Judges, and David A. Ezra,* District Judge.
SUMMARY**
Criminal Law
Vacating the district court‘s denial of Jerramey Lyndell Roper‘s motion for a sentence reduction under
Over the decade following the imposition of Roper‘s sentence as a career offender under U.S.S.G. § 4B1.1(a), intervening case law disqualified three of his prior convictions as predicates for the career-offender enhancement. If sentenced today, Roper would not qualify as a career offender.
The panel wrote that the logic of United States v. Chen, 48 F.4th 1092 (9th Cir. 2022) (addressing post-conviction change in statutory sentencing law and holding that a district court‘s discretion in sentence modifications is limited only by an express statement from Congress), which rested on Concepcion v. United States, 142 S. Ct. 2389 (2022) (holding that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act), applies with full force when the relevant change in sentencing law is decisional. The panel wrote that considering decisional law in the extraordinary-and-compelling-reasons inquiry does not circumvent habeas, as Roper does not claim that his original sentence violated the Constitution or federal law and does not seek to correct sentencing errors.
The panel expressed no opinion as to the proper disposition of the motion on remand, holding only that the district court is not prohibited from considering the relevant changes in decisional law.
COUNSEL
Terrence Kellogg (argued), Law Office of Terrence Kellogg, Port Townsend, Washington, for Defendant-Appellant.
Tania M. Culbertson (argued) and Teal L. Miller, Assistant United States Attorneys; Nicholas W. Brown, United States Attorney, Western District of Washington; Office of the United States Attorney; Seattle, Washington; David R. Jennings, Assistant United States Attorney; Office of the United States Attorney; Tacoma, Washington; for Plaintiff-Appellee.
OPINION
EZRA, District Judge:
In this case, we must determine whether district courts may consider non-retroactive changes in post-sentencing decisional law affecting the applicable Sentencing Guidelines when assessing whether a defendant has established the “extraordinary and compelling reasons” required for sentence reduction under
I. BACKGROUND
In 2013, Roper pleaded guilty to possession of cocaine base with intent to distribute in violation of
Over the next decade, intervening case law disqualified three of Roper‘s prior convictions as predicates for the career-offender enhancement. See United States v. Valencia-Mendoza, 912 F.3d 1215, 1218-24 (9th Cir. 2019) (holding that whether a Washington state conviction qualifies as a predicate felony for the career-offender enhancement depends on the maximum sentence a defendant “actually could have received” under the Washington sentencing scheme, rather than the statutory maximum); State v. Blake, 481 P.3d 521 (Wash. 2021) (holding state statute prohibiting unlawful possession of a controlled substance unconstitutional). If sentenced today, therefore, Roper would not qualify as a career offender under U.S.S.G. § 4B1.1(a).
Roper moved for sentence reduction in 2021. Although the district court concluded that Roper‘s Guideline range would be reduced to 140 to 175 months if he were sentenced at the time of his motion, it denied relief, believing itself categorically prohibited from considering changes to sentencing law in determining whether “extraordinary and compelling reasons” warrant a reduction.
II. STANDARD OF REVIEW
We have jurisdiction over this appeal under
III. DISCUSSION
After the district court denied Roper‘s motion, we held that “Congress has only placed two limitations directly on extraordinary and compelling reasons: the requirement that district courts are bound by the Sentencing Commission‘s policy statement ... and the requirement that ‘rehabilitation alone’ is not extraordinary and compelling.” United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022) (cleaned up) (quoting
Commission the task of “describ[ing] what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples“).
The Sentencing Commission‘s current policy statement, § 1B1.13, does not apply to defendant-filed motions for sentence reduction.2 See Aruda, 993 F.3d at 801-02; Chen, 48 F.4th at 1095. The question before us is thus whether the district court‘s discretion extends to changes in decisional law impacting the advisory Sentencing Guidelines. The First, Second, and Fourth Circuits have “kept the door open to motions” for sentence reduction based on such changes. United States v. Williams, 65 F.4th 343, 348 (7th Cir. 2023); see United States v. Trenkler, 47 F.4th 42, 48 (1st Cir. 2022); United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020); United States v. McCoy, 981 F.3d 271, 288 (4th Cir. 2020). In contrast, the Sixth, Seventh, Eighth, and D.C. Circuits have found that decisional law cannot be considered an extraordinary and compelling reason for sentence reduction. See United States v. McCall, 56 F.4th 1048, 1065-66 (6th Cir. 2022) (en banc); United States v. Brock, 39 F.4th 462, 465-66 (7th Cir. 2022); United States v. Crandall, 25 F.4th 582, 586 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022); United States v. Jenkins, 50 F.4th 1185, 1200 (D.C. Cir. 2022).
A. Concepcion Informs Our View that Courts May Consider Decisional Law in the Extraordinary and Compelling Reasons Inquiry.
Chen, which addressed post-conviction change in statutory sentencing law, held that “a district court‘s discretion in sentence modifications is limited only by an express statement from Congress.” 48 F.4th at 1096 n.3. The logic of that holding, which rested on Concepcion, applies with full force when the relevant change in sentencing law is decisional.
Indeed, Concepcion expressly cited the statute now before us,
Concepcion‘s animating principle is the “venerable tradition of discretion” in sentencing and sentence-modification proceedings. Concepcion, 142 S. Ct. at 2401 n.4. The Court thus cautioned that “‘[d]rawing meaning from silence is particularly inappropriate’ in the sentencing context.” Id. at 2402 (quoting Kimbrough v. United States, 552 U.S. 85, 103 (2007)). Congress‘s silence is, if anything, more significant here than in Chen, which involved a statutory sentencing change that Congress expressly made non-retroactive.3 See 48 F.4th at 1096. Because Congress has not adopted a categorical bar to considering decisional law, we again “decline to create one now.” Id. at 1099.
B. Considering Decisional Law in the Extraordinary and Compelling Reasons Inquiry Does Not Circumvent Habeas.
The government contends that Roper cannot use a motion for sentence reduction to bring claims “about the validity of his sentence that otherwise would be barred by the collateral-attack waiver in his plea agreement.” Decisions by some of our sister Circuit courts have expressed similar concerns. See Jenkins, 50 F.4th at 1202 (holding that the habeas-channeling rule of Preiser v. Rodriguez, 411 U.S. 475 (1973), forbids “compassionate release based on legal errors at sentencing, including errors made clear through the retroactive application of intervening precedent“); Brock, 39 F.4th at 465; Crandall, 25 F.4th at 586; McCall, 56 F.4th at 1057-58. But although both a defendant-filed motion for sentence reduction and a habeas petition may each result in an inmate‘s early release from custody, the two require different showings and carry different implications about the defendant‘s original conviction and sentence. “Section 2255 grants a prisoner in custody the right ‘at any time’ to bring a motion ‘to vacate, set aside or correct the sentence’ upon the ground that the ‘sentence was imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of the maximum authorized by law....‘” United States v. Baron, 172 F.3d 1153, 1157 (9th Cir. 1999) (en banc) (quoting
Roper does not claim that his original sentence violated the Constitution or federal law. Nor does he seek “to correct sentencing errors.” Jenkins, 50 F.4th at 1201. Rather he seeks to invoke the sentencing judge‘s discretion to reduce his sentence, presenting an amalgamation of circumstances—including legal changes creating a sentencing disparity among similarly situated defendants—that he claims are extraordinary and compelling. See Trenkler, 47 F.4th at 48 (describing habeas as “a method for automatic vacatur of sentences,” and sentence reduction as an “exercise [of] leniency based on an individualized review of a defendant‘s circumstances“).
The Supreme Court‘s habeas-channeling jurisprudence “has focused on the need to ensure that state prisoners use only habeas corpus . . . remedies when they seek to invalidate the duration of their confinement—either directly through an injunction compelling speedier release or indirectly through a judicial determination that necessarily implies the unlawfulness
IV. CONCLUSION
Although Roper does not challenge the district court‘s decision that his other proffered reasons for sentence reduction do not by themselves justify granting his motion, that court should consider in the first instance whether the changes in decisional law tip the balance in Roper‘s favor. See id. (remanding for the district court to reassess the extraordinary and compelling analysis in light of all the defendant‘s proffered reasons); see also United States v. Vaughn, 62 F.4th 1071, 1073 (7th Cir. 2023) (“[A] combination of factors may move any given prisoner past [the threshold for relief], even if one factor alone does not.“). We therefore vacate and remand for the district court to consider the motion anew. We of course express no opinion as to its proper disposition, holding only that the district court is not prohibited from considering the relevant changes in decisional law.
VACATED AND REMANDED.