UNITED STATES OF AMERICA v. THOMAS BRYANT, JR.
No. 19-14267
United States Court of Appeals, Eleventh Circuit
May 7, 2021
Before MARTIN, LUCK, and BRASHER, Circuit Judges.
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-14267
________________________
D.C. Docket No. 4:97-cr-00182-JRH-BKE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS BRYANT, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(May 7, 2021)
Before MARTIN, LUCK, and BRASHER, Circuit Judges.
BRASHER, Circuit Judge:
Thomas Bryant is a corrupt former police officer who was sentenced to prison for running drugs and guns. He filed a motion seeking a reduction in his sentence under
First, we must decide whether district courts reviewing defendant-filed motions under
So far, so good. But after Congress changed the statute to allow defendants to file motions in addition to the BOP, several of our sister circuits have held that
We disagree with that reasoning. The statute’s рrocedural change does not affect the statute’s or
Second, because we conclude that
But we cannot do that. Application Note 1(D) is not inconsistent with the procedural change in the statute that allows defendants to file motions. Because we can apply both the amended
In short,
I. BACKGROUND
A. Factual Background
Thomas Bryant used to be a cop. But he abused that position, flouting thе law that he had vowed to uphold. For years, Bryant worked with other officers to help traffic cocaine. Armed and in uniform—often in police vehicles—they acted as the cocaine couriers’ personal security detail. Bryant also sold cocaine and stolen guns himself. And he passed along confidential police information to the cocaine gang.
But duplicity begets duplicity. Soon enough, one of the informed became an informant and turned on his fellow criminals. A jury convicted Bryant of multiple
B. Statutory Background
In 2018, Congress passed and the President signed the First Step Act. Bryant brought his motion to reduce his sentence under that Act. To understand the FSA, we look first to the history of federal sentencing.
For a long time, sentencing judges had nearly unbridled discretion, bound only by statutory minimums or maximums. United States v. Irey, 612 F.3d 1160, 1180–81 (11th Cir. 2010) (en banc); see also Dorszynski v. United States, 418 U.S. 424, 431 (1974) (“[O]nce it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.”). Parole boards also had discretion to release a prisoner after he had served as little as one third of his sentence, see, e.g., Barber v. Thomas, 560 U.S. 474, 482 (2010), obscuring at sentencing the actual amount of time that the defendant would serve. Cf. Setser v. United States, 566 U.S. 231, 248 (2012) (Breyer, J., dissenting) (explaining the system as involving “a parole commission and a judge trying to second-guess each other about the time an offender will actually serve in prison”). That system spawned drastic disparities and uncertainty in sentencing, which drove Congress to pass the Sentencing Reform Act of 1984. See Irey, 612 F.3d at 1180–81.
Nonetheless, the SRA provided three narrow exceptions to that general prohibition on sentence modification, one of which is relevant here. See United States v. Denson, 963 F.3d 1080, 1086 (11th Cir. 2020).
The only boundary the SRA placed on the Commission’s definition was that “[r]ehabilitation … alone shall not be considered an extraordinary and compelling reason.”
It took the Commission over twenty years to publish its substantive definition of “extraordinary and compelling reasons.”
But the Commission’s twenty-year delay mattered little because
In response to the criticism, the Commission conducted an “in-depth review,” held a public hearing, and revised
The 2016 amendment also added a clause making explicit that
It even made a direct plea to the BOP, encouraging it to file
Most recently, the FSA expanded who could file a motion for a reduction of sentence. The statute initially read “the court, upon motion of the Director of the Bureau of Prisons, may reduce the term of imprisonment.”
Post-FSA, Bryant filed a
II. STANDARD OF REVIEW
We review de novo both determinations about a defendant’s eligibility for a
III. DISCUSSION
Finality is “essential to the operation of our criminal justice system.” Teague v. Lane, 489 U.S. 288, 309 (1989). “Deterrence depends upon [it.] … Rehabilitation demands [it.] … [And it] benefits the victim by helping [her] put the trauma of the crime and prosecution behind [her].” Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1325 (11th Cir. 2017) (cleaned up). That is why courts are generally forbidden from altering a sentence once it becomes final. United States v. Jones, 962 F.3d 1290, 1297 (11th Cir. 2020). But as a “congressional act of lenity,”
The answer to whether the Commission’s definition of “extraordinary and compelling reasons” binds district courts is clear. Indeed, both the Supreme Court and this Court have held that Congress’s consistent-with requirement makes the relevant policy statements binding on district courts. See Dillon v. United States, 560 U.S. 817, 826–27 (2010); United States v. Colon, 707 F.3d 1255, 1262 (11th Cir. 2013). But parts of the current policy statement are in tension with the FSA. For example, the policy statement still opens with the prefatory clause “[u]pon motion of the Director of the Bureau of Prisons under
Bryant’s main argument is about Application Note 1(D). But several of our sister circuits have concluded that
A. “Applicable Policy Statement” Under
We interpret a statute based on the ordinary meaning of its text when it was enacted. Wis. Cent. Ltd. v. United States, 138 S.Ct. 2067, 2074 (2018) (“[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary, contemporary, common meaning ... at the time Congress enacted the statute.’”). In other words, “for hard cases as well as easy ones,
1. The dictionary definition of “applicable”
We will start with the dictionary. AT&T, 562 U.S. at 404 (discussing use of dictionaries in determining meaning). “Applicable” has two main dictionary definitions. One definition is “capable of being applied.” Applicable, Black’s Law Dictionary (11th ed. 2019); Webster’s Third New International Dictionary 105 (1986). The other definition is “relating to” or “relevant.” Jones, 980 F.3d at 1109 (defining “applicable” as “‘relevant’ or ‘appropriate’” (quoting United States v. Ruffin, 978 F.3d 1000, 1007 (6th Cir. 2020))); applicable, Black’s Law Dictionary (11th ed. 2019) (“2. (Of a rule, regulation, law, etc.) affecting or relating to a
As to the first definition: the substantive standards in
As these authorities recognize, nothing about
2. Context
The context further supports our conclusion that
There are two important contextual factors here: the Commission’s statutory role in defining “extraordinary and compelling reasons” and the way courts use the Guidelines every day.
First, to curtail judicial discretion, the statute specifically directs the Commission to adopt a policy statement that defines “extraordinary and compelling reasons.” As we have previously explained, “[t]he Act not only gives the Commission authority to issue policy statements governing sentence reductions, it actually requires the Commission to issue them.” United States v. Colon, 707 F.3d 1255, 1259 (11th Cir. 2013). The reason Congress requires them is that it “made [the policy statement] binding on courts by providing that a sentence may be reduced … only where doing so is consistent with the Commission’s policy statements.”
There is no question that
The policy statement is explicit that it “implements
Second,
After a court determines the applicable guideline, it uses that guideline to determine the “applicable guideline range.”
So, consistent with the structure of the Guidelines as a whole and with the Commission’s choices about how to structure its policy statements, an applicable policy statement for a sentence reduction is the one that corresponds with the reduction motion’s authorizing statute. For this reason, this Court has described the applicable policy statement when evaluating a sentence reduction as “[t]he Commission’s policy statement on” the relevant statute. United States v. Glover, 686
3. Statutory purpose
The statute’s purpose also supports our reading. As between two competing interpretations, we must favor the “textually permissible interpretation that furthers rather than obstructs” the statute’s purposes. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 4, at 63 (2012)). Interpreting
The SRA’s purpose was to limit discretion and to bring certainty and uniformity to sentencing. See, e.g., United States v. Booker, 543 U.S. 220, 264 (2005); see also United States v. Irey, 612 F.3d 1160, 1181 (11th Cir. 2010) (en banc) (“[L]imiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike.” (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005))). To achieve that aim, Congress created the Sentencing Commission and delegated to it the authority to create the Sentencing Guidelines. United States v. Harris, 876 F.2d 1502, 1505 (11th Cir. 1989) (“Congress’[s] aim in creating the Sentencing Commission was to reduce the
Interpreting
Bryant’s motion here proves our point. His main argument is that his sentence is now unjust because of a recent, non-retroactive sentencing change. In essence, he argues that a congressional decision to make a sentencing change prospective-only creates an extraordinary and compelling reason that allows district courts to apply that change retroactively. The Fourth Circuit accepts that argument, McCoy, 981
Of course, “purpose … cannot be used to contradict the text or to supplement it.” Bellitto v. Snipes, 935 F.3d 1192, 1201 (11th Cir. 2019) (quoting Scalia & Garner, Reading Law §2, at 57). We must not “engage in purpose-driven statutory interpretation,” Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1347 (11th Cir. 2014) (internal quotation marks and citation omitted), or “the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different [guideline] that achieves the same purpose,” Rapanos v. United States, 547 U.S. 715, 755 (2006). But a statute’s purpose, which itself must be derived from the text, is a constituent of meaning and can be helpful in understanding the “ordinary, contemporary, common meaning” of the statute’s language. United States v. Haun, 494 F.3d 1006, 1009 (11th Cir. 2007) (quoting Perrin v. United States, 444 U.S. 37, 42 (1979)). If the text could be read more than one way when considered in a vacuum, a statute’s purpose may reveal which reading is correct. And a textually permissible interpretation that does not frustrate a statute’s purpose is preferred over
4. Other considerations
Last, other general canons of statutory interpretation also bolster the understanding of
First and most obviously,
Second, we presume that the same words will be interpreted the same way in the same statute. Even if a particular case makes “a bifurcated construction of [a] word [tempting], in the long run, experience teaches that strict adherence to the … requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980). Resisting the temptation to interpret the same word differently makes sense because we presume that Congress’s “inclusion … of [that] language is intentional and purposeful.” United States v. Perez, 366 F.3d 1178, 1182 (11th Cir. 2004). And
Applying these principles, we should not interpret “applicable policy statement” in a way that gives “extraordinary and compelling”—which is only used in the statute once—different meanings depending on who files a motion. Cf. Shkambi, No. 20-40543, slip op. at *8–9 (“It’s true that application note 1 defines ‘extraordinary and compelling reasons’ by articulating four categories of reasons that could warrant a sentence reduction.”). “In all but the most unusual situations, a single use of a statutory phrase must have a fixed meaning.” Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S.Ct. 1507, 1512 (2019). And this case does not present one of those “most unusual situations.” On the contrary, nothing in the statute, policy statement, or common sense suggests that “what should be considered extraordinary and compelling reasons for [a] sentence reduction,”
Third, when interpreting statutes, what Congress chose not to change can be as important as what it chose to change. We recognize that a statute’s text often
Congress also made these limited amendments in the knowledge that
5. Our Sister Circuits’ Errors
Despite the ordinary meaning of the word “applicable,” the normal way in which courts identify applicable sentencing guidelines, and the drumbeat of authority that
First, our sister circuits have misinterpreted the prefatory phrase of
Similarly, the repetition of this phrase in Application Note 4 performs a prefatory, not operative function. Indeed, none of Application Note 4 has an operative effect; it is merely the Commission’s suggestion to the BOP to file more motions.
It is telling that our sister circuits can give these clauses an operative meaning only by retconning them. It is “a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary meaning at the time” of enactment. Oliveira, 139 S.Ct. at 539 (cleaned up). But our sister circuits expressly interpret
Second, our sister circuits make several purposivist points. They note that the Commission lacks a quorum and expect it to change the policy statement when it can. Brooker, 976 F.3d at 234; McCoy, 981 F.3d at 282–84 & n.6; Jones, 980 F.3d at 1111 n.20; Gunn, 980 F.3d at 1180–81; Aruda, No. 20-10245, slip op. at *8 & n.1; Maumau, No. 20-4056, slip op. at *26 (premising its refusal to recognize
There is always a lag time between a statutory change and guideline amendments. Amendments cannot take effect until six months after they are submitted to Congress. Dorsey v. United States, 567 U.S. 260, 293 n.2 (2012) (Scalia, J., dissenting) (quoting
We are also not convinced that our interpretation frustrates Congress’s goal of broadening the reach of Section 3582(c)(1)(A). In enacting the FSA, congressional critics of the existing law did not argue that
6. Our Dissenting Colleague’s Arguments
Our dissenting colleague sees things differently for reasons that we find unconvincing. We have addressed most of these points already. But there are three that warrant emphasis.
First, although our dissenting colleague quibbles with our definition of “applicable,” she offers no alternative definition of her own. Instead, our dissenting colleague says that the policy statement tells us when it is applicable. The circularity of that position notwithstanding, we do not read the policy statement the same way. As explained above, we do not understand the policy statement to have limited its
Second, as already addressed above, our dissenting colleague’s reading of the policy statement ignores the mandate that we must interpret the statement based on the ordinary meaning of its text when it was enacted. Wis. Cent. Ltd., 138 S.Ct. at 2074. Specifically, our dissenting colleague argues that the prefatory phrases can no longer be interpreted as prefatory phrases because they could, now, be interpreted as operative in light of the FSA’s changes. But if they were prefatory when
* * *
In short, we hold that
B. Section 1B1.13, Application Note 1(D)
Because we conclude that
Application Note 1(D) states, “Other Reasons.—As determined by the Director of the [BOP], there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with, the reasons described in subdivisions (A) through (C).” Bryant’s main argument is that the FSA preempts this application note because it conditions the “other reasons” that can be extraordinary and compelling on a BOP determination. That conflict, according to Bryant, should be resolved by striking the first clause of the sentence, allowing district courts to define the “other reasons” mentioned in Application Note 1(D). Accordingly, he argues that we should remand for the district court to consider whether his reasons—primarily, the purported unfairness of his sentence—are extraordinary and compelling.
Policy statements and commentary in the Guidelines are not binding on federal courts if they “violate[] … a federal statute.” Stinson v. United States, 508 U.S. 36, 38, 45 (1993). If a policy statement “is at odds” with a federal statute, it must “bow to the specific directives of Congress,” and the conflicting portion “must give way” to the statutory directive. United States v. LaBonte, 520 U.S. 751, 757 (1997). When Congress amended Section 3582(c)(1)(A) to allow defendants to file those motions, it rendered some of
The parties disagree about whether Appliсation Note 1(D) “violates” or “is at odds” with Section 3582(c)(1)(A), and if so, what portion “must give way.” LaBonte, 520 U.S. at 757; Stinson, 508 U.S. at 38. Bryant argues that Application Note 1(D) conflicts with the amended statute because the purpose of the amendment was to expand the use of Section 3582(c)(1)(A) by removing the BOP from its gatekeeper role and by allowing federal courts to grant relief even if the BOP disagreed. His solution is to strike only the phrase “[a]s determined by the Director of the [BOP],” ultimately granting courts the ability to determine “other reasons.”
The government agrees that the FSA removed the BOP’s exclusive authority over filing Section 3582(c)(1)(A) motions. But there the agreement ends. The government responds that the FSA did not change the Commission’s definition of extraordinary and compelling nor did it shift authority from the Commission to the courts to define that phrase. In the government’s view, by changing only who could file a reduction motion, the FSA simply expanded defendants’ access to the courts. The government concludes that there is no inherent incompatibility between a
We agree with the government. Application Note 1(D) is not at odds with the
amended
Application Note 1(D) does not conflict with
Additionally, Application Note 1(D) is consistent with Congress’s purpose in
passing the FSA. As in all cases of statutory interpretation, “the purpose must be
derived from the text.” Scalia & Garner, Reading Law § 2, at 56; see United States
v. Tigua, 963 F.3d 1138, 1142 (11th Cir. 2020). As we have already explained, the
FSA did not give courts the freedom to define “extraordinary and compelling
reasons.” It expanded access to the courts for adjudicating motions under existing
criteria. In other words, the policy problem that the FSA aimed to solve was not the
courts’ inability to identify new grounds for relief; rather, the problem was that the
BOP was not filing reduction motions for defendants who qualified under the already
existing grounds for relief—the Commission’s criteria set forth in 1B1.13. Allowing
defendants to file
It is true that Application Note 1(D) allows the BOP some input in
First, in adding a clause allowing defendants to file
Second,
This Court can and should give effect to the amended
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.
appellant[] simply stating that an issue exists, without further argument or discussion, constitutes abandonment of that issue and precludes our considering the issue on appeal.”). Because no party has “plainly and prominently raised” the sub-delegation issue, “for instance by devoting a discrete section of his argument to that claim,” it has not been adequately briefed. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (cleaned up). We cannot evaluate the merits of that administrative law issue in this appeal. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“If an argument is not fully briefed ... to the Circuit Court, evaluating its merits would be improper.”); see also Sapuppo, 739 F.3d at 682 (“Abandonment of an issue can also occur when passing references appear in the argument section of an opening brief, particularly when the references are mere ‘background’ to the appellant’s main arguments or when they are ‘buried’ within those arguments.”).
United States v. Thomas Bryant
MARTIN, Circuit Judge, dissenting
Today’s majority оpinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons (“BOP”). Our precedent now allows no independent or individualized consideration by a federal judge as plainly intended by the First Step Act. And this limitation on compassionate release is based on an outdated policy statement from a Sentencing Commission that has lacked a quorum since the First Step Act became law.1 The problems that arise from the majority’s reliance on the outdated policy statement are compounded by the majority’s express decision to strike (or ignore) language from the policy statement. Sadly, this result reinstates the exact problem the First Step Act was intended to remedy: compassionate release decisions had been left under the control of a government agency that showed no interest in properly administering it. With all respect due, I dissent.
Thomas Bryant is currently serving a 49-year sentence for offenses that
netted him $21,600 over three years, with no identifiable victims associated.2 Mr.
Bryant, who still has more than a quarter of a century to serve on this sentence,
would be in his eighties by the time he is released. Meanwhile, those of his co-defendants who pled guilty all re-entered society by 2008. Also of note, Mr.
Bryant’s lengthy sentence is the result of the government’s decision to “stack” his
firearm offenses. By this I mean, it charged two
II. STATUTORY BACKGROUND
In 2018, Congress enacted the First Step Act which, among other things,
transformed the process of moving for and adjudicating compassionate release
motions. Before passage of the Act, it was only the BOP Director who had
authority to file a motion seeking reduction of a prisoner’s sentence, and only
“extraordinary and compelling reasons” could “warrant such a reduction.” 18
U.S.C. § 3582(c)(1)(A)(i) (2012). Upon passage of the Act, federal district judges
now have authority to reduce a sentence that is no longer dependent on BOP’s
decision to ask for it. The Act now allows courts to consider motions filed by
defendants themselves, once that defendant has exhausted his administrative
remedies or after “the lapse of 30 days from the receipt of such a request by the
warden of the defendant’s facility, whichever is earlier.” First Step Act, Pub. L.
No. 115-391, § 603, 132 Stat. 5194, 5239 (codified at
The First Step Act took away BOP’s solitary control over this gatekeeping function but left the Sentencing Commission with the authority to describe what
III. PROCEDURAL BACKGROUND
In August 2019, Mr. Bryant first filed an administrative remedy with the warden of his prison seeking compassionate release. When the warden did not respond within 30 days, Mr. Bryant filed a motion for compassionate release. He argued that three grounds, in combination, constituted “extraordinary and compelling reasons” for a reduction of his sentence. First, Mr. Bryant argued that if he were sentenced today, his sentence would be considerably shorter because the First Step Act did away with the long consecutive sentence for stacked § 924(c) charges and specified that “stacking” would not be allowed in cases like his.
The government opposed Mr. Bryant’s motion, saying his stated reasons did not qualify him for compassionate release. Under the government’s reading of United States Sentencing Guidelines § 1B1.13 Application Note 1(D) (“Application Note 1(D)”), the District Court was only allowed to entertain a defendant-filed compassionate release motion based on those extraordinary and compelling reasons enumerated in the policy statement of the Guidelines. But the government made no argument on the merits of whether Mr. Bryant’s reasons were “extraordinary and compelling.” In a one-page order, the District Court denied Mr. Bryant’s motion “for the reasons stated in the Government’s response in opposition” to the motion. Mr. Bryant timely appealed.
IV. DISCUSSION
Each of the seven circuits that has considered the issue4 has held that the policy statement we consider here applies only to compassionate release motions
A. The Policy Statement Plainly Applies Only to Compassionate Release Motions Filed by the BOP Director
The First Step Act changed the provisions governing compassionate release of prisoners, as relevant to this appeal, to say the following:
[T]he court, upon motion of the Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully exhausted all administrative rights to
my two colleagues in the majority are the only federal appellate court judges in the country to interpret the policy statement in the way they do here.
18 U.S.C. § 3582(c)(1)(A)(i).
Cоngress specified that “[r]ehabilitation of the defendant alone shall not be
considered an extraordinary and compelling reason,” but it otherwise asked the
Sentencing Commission to “describe what should be considered extraordinary and
compelling reasons for sentence reduction.”
The only policy statement the Sentencing Commission has issued that describes “extraordinary and compelling” states, in relevant part:
Upon motion of the Director of the Bureau of Prisons
under
USSG § 1B1.13(1)(A) (emphasis added). Then there is an application note following this policy statement that specifies “extraordinary and compelling reasons” exist when a defendant presents one of a set of medical, age-related, or
By its express terms, the policy statement applies only to motions brought
by the Director of the BOP. See Brooker, 976 F.3d at 235 (“Turning to the text of
Guideline § 1B1.13, it is manifest that its language is clearly outdated and cannot
be fully applicable.” (emphasis added)); Jones, 980 F.3d at 1109 (“Examining the
four corners of § 1B1.13 alone, it becomes immediately apparent that the policy
statement does not wholly survive the First Step Act’s promulgation.” (emphasis
added)). Under the First Step Act defendants can now bring compassionate release
motions on their own behalf, but it did not take away the BOP Director’s
longstanding ability to file these motions as well.
In arriving at its ruling that the policy statement is “applicable” to even defendant-filed motions for compassionate release the majority relies primarily on dictionary definitions of the word “applicable.” The majority says the policy statement is “applicable” because that means it is “capable of being applied” and “rеlevant” to Mr. Bryant’s motion. Maj. Op. at 15–18. And because the majority believes the § 1B1.13 policy statement applies to defendant-filed motions like Mr. Bryant’s, courts are not allowed to decide, independent of the criteria set forth by BOP, whether extraordinary and compelling reasons exist.
This interpretation fails to persuade for several reasons. First, the majority’s dictionary-based theory about when a policy statement may be “applicable” flies in
Second, the majority’s definitional argument proves too much, and at the same time, too little. Under the majority’s theory, any policy statement (on any subject) that is “capable of being applied” would be “applicable,” without regard to the Sentencing Commission’s purpose in promulgating the policy to begin with. For example, assume the Commission issues a policy statement tomorrow, saying it “applied only to motions filed by the BOP director,” and also explicitly saying that courts are to adjudicate what counts as “extraordinary and compelling” for defendant-filed motions independently of the views of the BOP director. Under the majority’s theory, because even this policy statement is still “capable of being applied” to motions filed by defendants, judges would still be confined to the BOP criteria. Also, the fact that a policy statement may offer “relevant” guidance does
Third, in advancing its definitional argument, the majority asserts that “[t]here is no question that 1B1.13 is the policy statement the Commission adopted to comply with th[e] statutory mandate.” Maj. Op. at 20. But again, the fact that the policy statement applies to some compassionate release motions doesn’t mean it applies to them all.7 And it is worth remembering that, even absent a policy statement, federal judges have authority to adjudicate whether a defendant has offered “extraordinary and compelling” reasons warranting a sentence reduction.
There is also the matter of fidelity to the text. I find it noteworthy that in insisting the policy statement is “applicable” to Mr. Bryant’s motion, the mаjority has to blue-pencil the statement and application note to get around phrases that explicitly address the scope of the statement’s applicability. Most obviously, there is the phrase “[u]pon motion of the Director of the Bureau of Prisons.” USSG § 1B1.13. And the application note also specifies that “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons.” USSG § 1B1.13 app. n.4 (emphasis added). Yet even in the face of these phrases, the majority tells us the limitations of the policy statement also apply to motions filed not by the BOP, but by the inmates.
The majority says its application of the policy statement to motions other than those filed by the Bureau of Prisons is okay because the phrases confining it to BOP motions are merely non-operative “prefatory phrases.” Maj. Op. at 31–34. There are at least two errors with this analysis. First, turnabout is fair play. If these two phrases that conflict with the majority’s interpretation can be dismissed as non-operative, prefatory phrases, then why isn’t the same true of the phrase
Second, even if these phrases could have been characterized as prefatory before enactment of the First Step Act, that characterization doesn’t work now that the First Step Act is law. These phrases no longer “paraphras[e] the statute.” Id. At least, not the whole statute. Instead, the phrases still parallel the language in the provision that empowers BOP to file compassionate release motions. And it is to that version of the statute that this statement applies. The majority opinion turns a blind eye to the impact of the First Step Act on the language of the policy statement. It says that Congress changed the language of the compassionate
In saying that the Commission could not possibly have intended to “distinguish[] between a BOP-filed motion and some other kind of motion that did not exist when the policy statement was adopted,” the majority engages in the same type of “purposivist” analysis it critiсizes our sister circuits for engaging in. See id. at 35–36. While of course the “purpose and context” of a statute or regulation remain relevant to our interpretive task, purpose and context cannot override the plain text of the statement. See id. at 26–27, 19.8 See Bostock v. Clayton County, 590 U.S. __, 140 S. Ct. 1731, 1737 (2020) (“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.”).
B. The Majority’s Interpretation Results in an Unlawful Sub-Delegation of Authority to BOP
The majority’s interpretation also turns a lawful application note into an
unlawful one. Congress delegated the authority to determine the meaning of
“extraordinary and compelling reasons” to the Sentencing Commission, not BOP.
See
The majority says that “no party has raised” the issue of illegal sub-delegation in this case. Maj. Op. at 43–44 n.6. In so saying, the majority ignores Mr. Bryant’s initial brief, which explicitly raised this argument. Appellant’s Br. at 39–41. The majority’s failure to address this issue cannot properly be blamed on Mr. Bryant.
The majority goes to great lengths to explain why its interpretation squares with the 1984 Sentencing Reform Act. See Maj. Op. at 24–27. But it does not explain the large regard it gives the purpose of this 1984 statute, in contrast with the little regard it gives to the purpose of the much more recent First Step Act. After all, it is the First Step Act that gave rise to the interpretive questions Mr. Bryant’s case presents to us today. And even though we face questions brought on by enactment of the First Step Act, the majority explicitly criticizes our sister circuits for supporting their textualist analysis with a discussion of its purpose. Id. at 34. Nevertheless, the majority does the exact same thing, except it supports its analysis with a discussion of the purpose of the 1984 Act.
The majority characterizes the changes that the First Step Act brought to the compassionate release system as a rather minor procedural amendment. Id. at 3–4. But that ignores the transformational intent and purpose of the First Step Act, the “most meaningful criminal-justice reform at the federal level in decades.” Brief of the American Conservative Union Foundation Nolan Center for Justice; the Cato Institute; Arthur Rizer; R Street Institute; and Brett Tolman as Amici Curiae Supporting Appellant and Reversal at 4.
First, the majority ignores that the Sentencing Reform Act, in abolishing the federal parole system, and the First Step Act, in eliminating BOP’s gatekeeping
Second, the First Step Act empowers defendants to seеk compassionate
release not only when BOP does not act quickly enough on the defendant’s
request, but also when BOP altogether refuses to act. See
To the extent the majority shares the government’s policy concerns about granting district courts “unfettered discretion” and fears about inconsistent sentence reduction outcomes, those concerns are vastly overstated. Judges are not given “unfettered” discretion. To the contrary, they are charged with finding
The majority opinion is also noteworthy in that it expresses concerns about disparities in sentencing only as to sentences being reduced too much. When a court becomes too “compassionate” toward criminal defendants the issue of disparity then warrants attention. As Mr. Bryant rightfully points out, the government, and today, the majority opinion, express no concerns “about arbitrary outcomes and unwarranted sentencing disparities created by federal prosecutors.” And Mr. Bryant’s case presents a powerful example of how the amended compassionate release statute could be applied to correct patent disparities among defendants who engaged in the same conduct. Mr. Bryant was sentenced to a term just shy of five decades—a term that far exceeded those of his co-conspirators who pled guilty—in part because he exercised his Sixth Amendment right to trial and because he was subject to a mandatory penalty for “stacked” firearm offenses that
Mr. Bryant has already served decades in prison. Even with the knowledge that he may never be allowed to re-enter society, he has devoted significant efforts to rehabilitate himself. The majority opinion defies the text of the First Step Act and the policy statement and undermines the monumental efforts Congress undertook to transform compassionate release. I fear the majority opinion today sets our Court on a path, alone among Courts of Appeal, that will deprive Mr. Bryant and thousands like him in the states of Georgia, Florida, and Alabama of access to compassionate release.
For these reasons, I dissent.