UNITED STATES OF AMERICA, Plaintiff-Appellee, v. HOWARD CHEN, Defendant-Appellant.
No. 20-50333
D.C. No. 2:07-cr-00463-JFW-1
United States Court of Appeals for the Ninth Circuit
September 14, 2022
Before: Johnnie B. Rawlinson and Morgan Christen, Circuit Judges, and Gloria M. Navarro, District Judge. Opinion by Judge Navarro
OPINION
Appeal from the United States District Court for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted June 16, 2022*
Pasadena, California
Filed September 14, 2022
Criminal Law
The panel vacated the district court‘s denial of Howard Chen‘s motion for compassionate release under
The panel held that a district court may consider the First Step Act‘s non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under
COUNSEL
Joshua D. Weiss (argued) and Kathryn A. Young, Deputy Federal Public Defenders; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.
David R. Friedman (argued), Assistant United States Attorney; Bram M. Alden, Chief, Criminal Appeals Section;
OPINION
NAVARRO, District Judge:
Howard Chen appeals from the district court‘s order denying his motion for compassionate release under
I. BACKGROUND
Chen‘s case arises out of a conspiracy to traffic large quantities of MDMA between November 2006 and May 2007. After Chen negotiated to sell MDMA pills to an informant for the DEA, local law enforcement agents stopped Chen‘s car and found 831 grams of MDMA and a firearm. DEA agents later recovered MDMA pills, drug paraphernalia, and two firearms from Chen‘s house. In total, Chen possessed or distributed 13,934 grams of MDMA, and the DEA recovered around $140,000 in proceeds. Other
On November 29, 2007, a jury convicted Chen of six drug-related counts and two counts of possession of a firearm in furtherance of a drug trafficking crime in violation of
On September 2, 2020, Chen filed a motion for compassionate release under
We review
III. DISCUSSION
Section 3582(c)(1)(A) empowers either a defendant, or the Director of the Bureau of Prisons on behalf of a defendant, to file a motion to modify a term of imprisonment. When, as here, a defendant moves for compassionate release under
However, in Aruda, 993 F.3d at 801–02, this Court determined that the Sentencing Commission‘s current policy statement, which is applicable to motions filеd by the BOP Director, does not also apply to defendant-filed motions for compassionate release, and thus, there is no applicable policy statement binding the district court‘s consideration of extraordinary and compelling reasons in Chen‘s case.2 Aruda concluded that “district courts are empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.” Id. at 801. In the absence of an applicable policy statement from the Sentencing Commission, the determination of what constitutes extraordinary and compelling rеasons for
A district court‘s discretion of course has limitations and is first and foremost constrained by any express mandate from Congress. In Concepcion v. United States, the Supreme Court recently stated that “[i]t is only when Congress or the Constitution limits the scope of informatiоn that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court‘s discretion to consider information is restrained.” 142 S. Ct. 2389, 2396 (2022).3 With regard to
Other circuits are split concerning this issue. The Third, Seventh, and Eighth Circuits have ruled that district courts may not consider § 403(a)‘s non-retroactive changes, whether offered alone or in combination with other factors. United States v. Crandall, 25 F.4th 582 (8th Cir.), cert. denied, 142 S. Ct. 2781 (2022); United States v. Andrews, 12 F.4th 255 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022); United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), cert. denied, 142 S. Ct. 1363 (2022). They reached this сonclusion by reasoning that Congress explicitly made § 403(a)‘s sentencing changes non-retroactive and that
In Andrews, the Third Circuit held: “we will not construe Congress‘s nonretroactivity directive as simultaneously creating an extraordinary and compelling reason for early release.” 12 F.4th at 261. The Third Circuit further explained that convention in federal sentencing law is to treat changes as presumptively non-retroactive, so § 403(a)‘s non-retroactivity is the ordinary practice, and thus, cannot be used as an extraordinary reason fоr release. Id. Ultimately, the Third Circuit concluded that “considering the length of a statutorily mandated sentence as a reason for modifying a sentence would infringe on Congress‘s authority to set penalties.” Id. Similarly, in Thacker, the Seventh Circuit held that “the discretionary authority conferred by
Congress opted in 2018 to assign a new, less substantial, mandatory punishment for multiple violations of
§ 924(c) going forward, but it did not declare that the previous Congress—decades earlier—prescribed an inappropriate punishment under the circumstances that confronted that legislative body. To the contrary, the more recent Congress declined to change the law retroactively and left existing sentences in place.
The First, Fourth, and Tenth Circuits, on the other hand, all determined that district courts may consider § 403(a)‘s non-retroactive changes to penalty provisions, in combination with other factors, when determining whether extraordinary and compelling reasons for compassionate release exist in a particular case. United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022); United States v. Maumau, 993 F.3d 821 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020). They reach this conclusion for two primary reasons: (1) none of the statutes directly addressing “extraordinary and compelling reasons” prohibit district courts from considering non-retroactive changes in sentencing law; and (2) a sentence reduction under
The fact that Congress chose not to make § 403 of the First Step Act categorically retroactive does not mean that courts may not consider that legislative change in conducting their individualized reviews of motions for compassionate release under
§ 3582(c)(1)(A)(i) . . . [T]here is a significant difference between automatic vacatur and resentencing of an entire class of sentences . . . and allowing for the provision of individual relief in the most grievous cases.
We now join the First, Fourth, and Tenth circuits and conclude that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of
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, which does not apply here, and the requirement that “[r]ehabilitation . . . alone” is not extraordinary and compelling. Neither of these rules prohibit district courts from considering rehabilitation in combination with other factors. See
To hold that district courts cannot consider non-retroactive changes in sentencing law would be to create a categorical bar against a particular factor, which Congress itself has not done. In fact, such a categorical bar would seemingly contravene the original intеnt behind the compassionate release statute, which was created to provide the “need for a ‘safety valve’ with respect to situations in which a defendant‘s circumstances had changed such that the length of continued incarceration no longer remained equitable.” Ruvalcaba, 26 F.4th at 26 (citing S. Rep. No. 98-225, 55–56, 121 (1983); see also McCoy, 981 F.3d at 287 (“Indeed, the very purpose of
The Supreme Court‘s recent decision in Concepcion confirms that, in the context of modifying a sentence under the First Step Act, “[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court‘s discretion to consider information is restrained.” 142 S. Ct. at 2396. Since Congress has not legislated to create a third limitation on extraordinary and compelling reasons prohibiting district courts from considering non-retroactive changes in sentencing law, we decline to create one now. We instead follow our precedent in Aruda and allow district courts to consider any extraordinary and compelling reason a defendant might raise, including § 403(a)‘s non-retroactive changes in sentencing law.
The counterargument to this position is that Congress actually did limit a district court‘s ability tо consider § 403(a)‘s changes to stacked sentences by making § 403(a) non-retroactive. However, this argument does not overcome the fact that “[n]owhere has Congress expressly prohibited district courts from considering non-retroactive changes in sentencing law.” Ruvalcaba, 26 F.4th at 25. Further, § 403 itself does not address
We are not persuaded by the reasoning in Andrews and Thacker that forbids district courts from considering § 403(a)‘s changes in the extraordinary and compelling context, but nevertheless permits those same changes to be considered in the
Even more poignantly, automatic resentencing as a result of retroactive sentencing changes, which is what Congress prohibits in § 403(b), is far different from merely proffering § 403(a)‘s non-retroactive changes as an argument for extraordinary and compelling reasons under
The Government proffers several other arguments to support its position that district courts should be prohibited from considering § 403(a), none оf which prove convincing. First, the Government argues that non-retroactive changes in sentencing law cannot be “extraordinary” because the ordinary practice in federal sentencing is to make changes non-retroactive. We agree the ordinary practice in federal sentencing is to “apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012). However, by petitioning for compassionate release, § 403(a)‘s changes are not being retroactively applied to a defendant‘s case, and thus, the ordinary practice of federal sentencing law is upheld because the new
Similarly, the Government points out that § 404 of the First Step Act retroactively applied the sentencing reforms enacted in the Fair Sentencing Act of 2010 to defendants who were sentenced prior to passage of the Fair Sentencing Act. See First Step Act of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222. The Government argues that § 404 demonstrates that because Congress chose to give retroactive effect to some sentencing changes in the First Step Act, we should not infer a retroactive application of § 403(a) by allowing district courts to consider it in the extraordinary and compelling reasons analysis. However, as discussed above, permitting § 403(a)‘s changes to stacked sentences to be considered as part of the extraordinary and compelling threshold inquiry does not guarantee a particular result and is not a retroactive application of § 403(a). Therefore, such a use does not usurp congressional intent.
Finally, the Government argues that
The district court erred when it declined to consider § 403(a)‘s non-retroactive changes to
VACATED AND REMANDED.