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.
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
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.
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,
We disagree with that reasoning. The statute’s procedural 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 usеd to be a cop. But he abused that position, flouting the 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 drug and gun offenses. The district court eventually sentenced him to 292 months imprisonment to be followed by a mandatory, consecutive 300 months.
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.
The SRA sought uniformity and honesty in sentencing. To achieve uniformity, it created the U.S. Sentencing Commission and delegated to it the power to create a comprehensive system of sentencing guidelines. See Peugh v. United States, 569 U.S. 530, 535 (2013). To achieve honesty, it abolished the parole system and prohibited courts from “modify[ing] a term of imprisonment once it ha[d] been imposed,”
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
were extraordinary and compelling. The BOP’s reticence sparked criticism. For example, a DOJ report found that the “BOP [did] not properly manage the compassionate-release program, resulting in inmates who may be eligible candidates for release not being considered.” U.S. Dep’t of Justice: The Federal Bureau of Prisons’ Compassionate Release Program 11 (Apr. 2013).
In response to the criticism, the Commission conducted an “in-depth review,” held a public hearing, and revised
child or for a spouse.
The 2016 amendment also added a clause making explicit that
It even made a direct plea to the BOP, encouraging it to file
poliсy statement is not legally binding on the [BOP]” and explained that “the new commentary [was] intended to encourage the [BOP Director] … to file a motion under
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.”
C. Procedural Background
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,”
One of those—
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
the fourth category of extraordinary and compelling reasons as any unlisted reason that the BOP puts forward. This debate has spawned two questions: (1) Is
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,
the commonsense reading of the relevant statutory text is the anchor for statutory interpretation.” Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1825 (2020) (Kavanaugh, J., dissenting) (cleaned up) (quoting W. Eskridge, Interpreting Law 33, 34–35 (2016)). As guidance for a word’s ordinary meaning, we look to many sources—dictionaries, context, cannons of interpretation, and others. See PETA v. Miami Seaquarium, 879 F.3d 1142, 1146–47 (11th Cir. 2018); FCC v. AT&T Inc., 562 U.S. 397, 404–09 (2011). Here, those sources universally establish that the commonsense reading of “applicable policy statements” includes
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,
particular person, group, or situation; having direct relevance”); Webster’s Third New International Dictionary 105 (1986).
As to the first definition: the substantive standards in
The second definition of “applicable” produces similar results:
sense: if the poliсy statement is relevant to the motion and helpful for adjudicating the motion, then it must be an “applicable” statement under the statute.
As these authorities recognize, nothing about
The process is the same for defendant-filed motions and BOP-filed motions. As an example, the Eighth Circuit recently affirmed a district court’s application of
2. Context
The context further supports our conclusion that
dissenting) (“To understand the legal issue before us, one must keep in mind both what the Guidelines are and how they work.”).
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
implementing
The policy statement is explicit that it “implements
Second,
Appendix A to see which guideline corresponds with that statute. United States v. Baldwin, 774 F.3d 711, 732 (11th Cir. 2014). A sentencing court must ask only what guideline the Commission has tied to the relevant statute; it is prohibited from looking at the “circumstances of a particular case” to determine the “applicable guideline.” United States v. Irey, 612 F.3d 1160, 1242 (11th Cir. 2010) (en banc).
After
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
F.3d 1203, 1206 (11th Cir. 2012), abrogated on other grounds by Amendment 780.5 An “applicable policy statement” has also been characterized as a policy statement “related” to, Dillon, 560 U.S. at 834 (Stevens, J., dissenting), “concerning,” United States v. Melton, 861 F.3d 1320, 1326 (11th Cir. 2017), “corresponding” with, United States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013), or “governing,” Freeman v. United States, 564 U.S. 522, 530 (2011) (plurality opinion); Dillon, 560 U.S. at 819; United States v. Colon, 707 F.3d 1255, 1258 (11th Cir. 2013), the relevant statutory provision. And in all of the Supreme Court’s and this Court’s applicable-policy-statement determinations, the statutory provision authorizing the reduction motion has always been the only consideration. Cf. McCoy, 981 F.3d at 282 (“The only policy statement that possibly could be ‘applicable’ to the defendants’ motions is … Guideline § 1B1.13.”). In other words, a court should find the “applicable” policy statement by looking at the statute it implements. For Section
3582(c)(1)(A) motions the applicable policy statement is
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
sentencing disparities and ‘establish sentencing policies and practices for the Federal criminal justice system that ... provide certainty and fairness in meeting the purposes of sentencing.’” The Guidelines, in turn, “provide uniformity, predictability, and a degree of detachment lacking in our earlier system.” Koon v. United States, 518 U.S. 81, 113 (1996). Congress also gave the Commission a “substantial role” in sentence-modification proceedings by directing it to define the circumstances that justify a reduced sentence. See Dillon, 560 U.S. at 826.
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
F.3d at 285–87; the Sixth Circuit does not, United States v. Tomes, 990 F.3d 500, 504–05 (6th Cir. 2021); the Tenth Circuit attempts a middle way, McGee, No. 20-5047, slip op. at *19–24. Some district courts might grant relief on that basis; surely, others would not. Disparity and uncertainty follow from adopting an interpretation of “applicable” that rejects
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
one that does. Here, the statute’s purpose supports our reading, even though it could not alone justify it.
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
“[w]e have even stronger cause to construe a single” use of a phrase “the same way each time it is called into play.” Ratzlaf v. United States, 510 U.S. 135, 143 (1994). We must “refuse to adopt a construction that would attribute different meanings to the same phrase in the same sentence, depending on which object it is modifying.” Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 329 (2000).
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
“reflect[s] hard-fought compromises.” Bd. of Governors of Fed. Rsrv. Sys. v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986). Here, in the FSA, Congress chose to expand who can file a Section
Congress also made these limited amendments in the knowledge that
1581 (1994) (“Congress is presumed to be knowledgeable about existing case law pertinent to any legislation it enacts.”). Before the FSA, the Commission had said that the policy statement was its effort to comply with its statutory obligation to define the circumstances that could warrant a sentence reduction under Section 3582(c)(1)(A). See
would expect the text … to say so.” Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S.Ct. 1938, 1947 (2016).
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
Here, these provisions are prologue. The prefatory part of the policy statement orients the reader by paraphrasing the statute as it existed at the time the policy statement was enacted. But the important operative provisions of the policy statement are found in the application notes. See Stinson v. United States, 508 U.S. 36, 43 (1993) (commentary and a policy statement are “legal equivalent[s]”). Those notes define “extraordinary and compelling reasons” as being medical, age, family, or “other reasons.” And they operate independently of the prefatory clause that has caused so much confusion in our sister circuits.
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.
a motion for compassionate release, … ‘the court is in a unique position to assess whether … the criteria set forth in this policy statement’” have been met. Id. To that end, Application Note 4 begins with the then-existing statutory limitations: “[a] reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to
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
at 26 n.5 (conceding that when the policy statement said that “[a] reduction under this policy statement may be granted only
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
United States, 138 S.Ct. 2067, 2074 (2018) (“[I]t’s a judge’s job only to apply, not revise or update, the terms.”).
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
from 12 U.S. Senators to Deputy Attorney General J. Rod Rosenstein and Acting Bureau of Prisons Director Dr. Thomas R. Kane (Aug. 3, 2017). By allowing defendants to file reduction motions, Congress has significantly increased the statute’s use. Pub. L. No. 115-391, § 603(b), 132 Stat. 5194, 5239 (2018) (titling the Section 3582(c)(1)(A) amendments “INCREASING THE USE AND TRANSPARENCY OF COMPASSIONATE RELEASE”). According to a recent Sentencing Commission reрort, the number of Section 3582(c)(1)(A) motions granted consistent with the
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
own applicability or, more specifically, to have limited the applicability of its operative provisions, which define the universe of extraordinary and compelling reasons that can justify a sentence reduction. To the extent the policy statement addresses its application, it says that sentencing reductions under Section 3582(c)(1)(A) must be “consistent with this policy statement.”
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
Third, our dissenting colleague argues that we are “blue-pencil[ing]” the policy statement by holding that it is “applicable” to defendant-filed motions. We disagree. We not severing anything from, or adding anything to, the policy statement. Instead, we are recognizing that district courts are bound by the Commission’s definition of “extraordinary and compelling reasons” found in
* * *
In short, we hold that
B. Section 1B1.13, Application Note 1(D)
Because we conclude that
Notes 1(A), (B), or (C), which concern medical, age, and family circumstances.
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
sentence of Application Note 4 says “A reduction under this policy statement may be granted only upon motion by the Director of the Bureau of Prisons pursuant to
The parties disagree about whether Application Note 1(D) “violates” or “is at odds” with Section 3582(c)(1)(A), аnd 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
defendant-filed reduction motion and BOP input on what reasons not expressly listed in 1B1.13 can be extraordinary and compelling.
We agree with the government. Application Note 1(D) is not at odds with the
amended
Application Note 1(D) does not conflict with
Interpretation of Legal Texts 180 (2012)); cf. Helvering v. Credit All. Co., 316 U.S. 107, 112 (1942) (“We should, of course, read the two sections as consistent rather than conflicting, if that be possible.”).
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
BOP of any role in
First, in adding a clause allowing defendants to file
Second,
This Court can and should give effect to the amended
between a defendant filing a
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
MARTIN, Circuit Judge, dissenting:
Today’s majority opinion establishes the Eleventh Circuit as the only circuit to limit an inmate’s ability to get compаssionate 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.
I. FACTUAL BACKGROUND
Thomas Bryant is currently serving a 49-year sentence for offenses that
netted him $21,600 over three years, with no identifiable
Despite the fact that Mr. Bryant may well die in prison given the length of his sentence, he has devoted significant effort to rehabilitating himself during the 22 years he already spent behind bars. He completed over 19 years of education courses, worked in UNICOR Industries for 15 years, and teaches other prisoners music theory and creative writing. A number of people support his release, including his family, his pastor, and several BOP staff members.
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
Congress enacted this reform following two damning Department of Justice
Inspector General (“DOJ IG”) reports that documented BOP’s utter failure to
administer a meaningful compassionate release program. See U.S. Dep’t of Justice
Office of the Inspector Gen., The Federal Bureau of Prisons’ Compassionate
Release Program (2013), https://oig.justice.gov/reports/2013/e1306.pdf; U.S. Dep’t
of Justice Office of the Inspector Gen., The Impact of an Aging Inmate Population
on the Federal Bureau of Prisons (2016),
https://oig.justice.gov/reports/2015/e1505.pdf. The DOJ IG found that BOP did
not set consistent criteria, did not inform prisoners
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
“extraordinary and compelling” reasons might warrant a sentence reduction. See
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.
Second, he argued that his long sentence was at least partially a form of punishment for asserting his Sixth Amendment right to trial, noting that he was subject to a sentencing enhancement as a result, and that his co-defendants who pled guilty have long been released from prison. Finally Mr. Bryant pointed to his glowing record of rehabilitation during his 22 years in prison.
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.”
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
filed by the BOP, as opposed to those filed by defendants on their own behalf. See United States v. Brooker, 976 F.3d 228, 235–36 (2d Cir. 2020); United States v. McCoy, 981 F.3d 271, 275–77, 280–84 (4th Cir. 2020); United States v. Shkambi, 993 F.3d 388, 392–93 (5th Cir. 2021); United States v. Jones, 980 F.3d 1098, 1109–11 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States v. Aruda, 993 F.3d 797, 799–802 (9th Cir. 2021) (per curiam); United States v. McGee, 992 F.3d 1035, 1048–51 (10th Cir. 2021).5 I agree. Here, I will set out why I believe this reading given by the majority of courts is the only plausible reading of the policy statement and why the majority’s interpretation is mistaken. Then I will turn to why the majority opinion’s purposivist analysis misses the mark.
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.
appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility, whichever is earlier, may reduce the term of imprisonment . . . if it finds that . . . extraordinary and compelling reasons warrant such a reduction.
18 U.S.C. § 3582(c)(1)(A)(i).
Congress specified that “[r]ehabilitation of the defendant alone shall not be
considered an extraordinary аnd 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
family circumstances, or: “[a]s determined by the Director of the Bureau of Prisons, there exists in the defendant’s case an extraordinary and compelling reason other than, or in combination with,” the specific reasons outlined in the application note. USSG § 1B1.13 app. n.1(D) (emphasis added).
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.
And here is what I think the majority gets wrong. The majority says that, even though the policy statement expressly cabins itself to motions brought by the BOP Director, it is still an “applicable” policy statement. And this has the effect of limiting federal judges from considering anything other than what the BOP considers an “extraordinary and compelling reason” justifying compassionate release. Thus, the courts are confined to the footprint made by BOP. And again, the First Step Act was meant to address BOP’s poor record on allowing compassionate release.
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 “relevant” 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. Bryаnt’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
the face of the statement’s plain text that tells us when it is actually “applicable.”6
See Shkambi, 993 F.3d at 392 (“[T]he text of the commentary confirms the limited
applicability
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
not make the statement binding. For example, it is quite common for courts to look to other provisions in a statute to determine whether a word or phrase can be interpreted to have a consistent meaning throughout and to give meaning to varying language within a statute. See In re Failla, 838 F.3d 1170, 1176–77 (11th Cir. 2016) (“The presumption of consistent usage instructs that a word or phrase is presumed to bear the same meaning throughout a text and that a material variation in terms suggests a variation in meaning.” (quotation marks omitted and alteration adopted)). Although other provisions may be “relevant,” they would not necessarily be “applicable.”
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.
The statute merely requires that courts’ decisions on compassionate release
motions be “consistent with” any applicable policy statement.
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 majority
has to blue-pencil the statement and application note to get around phrases that
explicitly address the scope оf 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
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
“[a]s determined by the Director of the Bureau of Prisons” in Application Note 1(D)? After all, if this language is merely non-operative and prefatory, then federal judges could just as easily make the determination. As the majority recognizes, at the time the Sentencing Commission promulgated that note, the only entity empowered to bring motions was the Director of the BOP. Id. at 34. That being the case, saying that the BOP Director can determine what “other reasons” are “extraordinary and compelling” puts no limit on what those reasons may be. And this characteristic is shared by the other phrases the majority finds non-operative. The language only reflected the procedure provided for by “the statute as it existеd at the time the policy statement was enacted.” Id. at 32. If we are striking any prefatory language from the policy statement and application note, shouldn’t we strike it all?
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
release statement “in the knowledge that 1B1.13 was the ‘applicable’ policy statement.” Id. at 30. But Congress also knew that the policy statement explicitly limited itself to motions filed by the BOP Director. The majority offers no reason to think that Congress intended for that policy statement to apply to the entirely new category of compassionate release motions allowed by the First Step Act.
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 criticizes 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 tо 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
The majority’s interpretation requires us to strike at least two phrases from the policy statement and accompanying application note. In contrast, the interpretation adopted by the Second, Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits “preserv[es] as much of § 1B1.13 that can be saved.” Jones, 980 F.3d at 1111. The compassionate release statute plainly offers two vehicles for compassionate release: (1) motions brought by the BOP Director and (2) motions brought by defendants. The policy statement applies only to those brought by the BOP Director, which was the only vehicle in existence when it was written. Our interpretation ought to end there.
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
Before the First Step Act, Application Note 1(D) effected no illegal sub-delegation because only BOP could file a compassionate release motion. The
Application Note merely gave BOP discretion over its own motions. But now,
reading the Application Note in line with the majority’s interpretation, BOP is
suddenly empowered to significantly restrain the universe of available “other
reasons” for defendants seeking compassionate release on their own behalf. And
Congress never gave BOP this authority. The Sentencing Commission is the only
agency that can “describe what should be considered extraordinary and compelling
reasons for sentence reduction.”
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.
C. The Majority’s Purposivist Argument Is Misplaced
The majority goes to great lengths to explain why its interpretation squares
with the 1984 Sentencing Reform Act. See Maj.
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
function over compassionate release, in fact advanced a common goal: keeping sentencing “within the province of the judiciary.” S. Rep. No. 98-225, at 54 (1983) (emphasis added). And it is hardly surprising that the First Step Act would prefer that the courts make compassionate release determinations without unnecessary intervention by BOP, given that agency’s failure to “properly manage the compassionate release program.” The Federal Bureau of Prisons’ Compassionate Release Program at 11.
Second, the First Step Act empowers defendants to seek compassionate
release not only when BOP does not act quickly enough on the defendant’s
request, but also when BOP altogether refuses tо 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
whether there are “extraordinary and compelling” reasons warranting sentence
reduction. See
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
Congress has since drastically lowered.10 A number of his co-defendants, involved in the exact same scheme, re-entered society more than a decade ago. I view this disparity as worthy of concern—and a second look under the compassionate release statute.
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.