The battle over the Sentencing Commission’s authority to describe what is ‘extraordinary and compelling’

Andrew Graeve is currently an assistant federal public defender in Des Moines, Iowa. He has a J.D. from Vanderbilt Law School and a B.A. from Columbia University. Prior to his current role, he did civil litigation at firms in Washington, D.C. and New Orleans. He clerked for Hon. Elizabeth Erny Foote in the Western District of Louisiana.

Under 18 U.S.C. § 3582(c)(1)(A)(i), a court may reduce a sentence if, after considering the general sentencing factors of § 3553(a), the court finds that “extraordinary and compelling reasons warrant such a reduction” and that “such reduction is consistent with applicable policy statements issued by the Sentencing Commission.” The Sentencing Commission, which is charged with drafting the federal sentencing guidelines, is required in 28 U.S.C. § 994(t) to “describe what should be considered extraordinary and compelling reasons” in a policy statement. The Sentencing Commission’s authority to describe “extraordinary and compelling reasons” is limited expressly in § 994(t) only by an instruction that “rehabilitation alone” is not enough. 

Motions under § 3582(c)(1)(A)(i) are colloquially called “compassionate release” motions.¹ In 2018, U.S. Congress passed the bipartisan First Step Act to permit defendants to file motions for sentencing reductions. Soon after the statue was amended, the Sentencing Commission lost a quorum to amend the applicable policy statement at USSG § 1B1.13.² Following that, the COVID-19 pandemic hit. With the pandemic was a “flood”³ of motions seeking compassionate release of seriously ill incarcerated individuals. 

Parallel to this flood was a lighter but steady stream of motions from defendants who grounded their motions under § 3582(c)(1)(A)(i) in notions of fairness, not compassion. These motions sought reductions in long-ago-imposed sentences that are dramatically longer than sentences imposed on similar offenders today. The enormous disparities between these old and current sentences — equivalent to decades or more — are primarily due to the First Step Act’s other amendments to the sentencing statutes, specifically the act’s reductions in mandatory minimums for drug trafficking offenses and the elimination of § 924(c) stacking, which were not made retroactive. 

Can these sentencing disparities between old and current sentences due to nonretroactive changes in the law be “extraordinary and compelling”? 

While the Sentencing Commission lacked a quorum, a circuit split developed on this issue, with some appellate courts holding that an enormous disparity between old and current sentences can constitute an extraordinary and compelling reason, and others not.⁴ Relevant to those practicing in federal court in Missouri, the 8th U.S. Circuit Court of Appeals joined the “not” camp. In United States v. Crandall, the 8th Circuit Court held that § 3582(c)(1)(A)(i) “is not a freewheeling opportunity for resentencing based on prospective changes in sentencing policy or philosophy.”⁵ The 8th Circuit Court reasoned that if Congress changes the sentencing laws but does not make those changes retroactive, courts are bound to respect Congress’s “careful effort” to limit retroactivity.⁶ It held that nonretroactive changes to sentencing laws were neither “extraordinary” nor “compelling,” but rather how the system mundanely works.⁷ At the same time, however, the 8th Circuit Court noted the Sentencing Commission had not yet updated the applicable policy statement after the passage of the First Step Act, and it explained that § 3582(c)(1)(A) makes consistency with the applicable policy statement “a mandatory condition for a reduction in sentence.”⁸ 

As the appellate courts split, the government argued the circuit split should be resolved by the Sentencing Commission under § 994(t), not the U.S. Supreme Court.⁹ Congress necessarily contemplated that the commission would, as the Court has noted, make “whatever clarifying revisions to the Guidelines conflicting judicial decisions might suggest.”¹⁰ Taking that invitation, the recent quorum-ready Sentencing Commission promulgated Amendment 814, which amended the applicable policy statement at USSG § 1B1.13 to include “unusually long sentences” as the sixth of six circumstances under which “extraordinary and compelling reasons exist.” With Amendment 814, subsection 1B1.13(b)(6) now provides: 

“If a defendant received an unusually long sentence, and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.”

Amendment 814 also added a subsection (c) to § 1B1.13 to make clear that, “except as provided in subsection (b)(6),” other changes in the law should not be considered for purposes of determining whether an extraordinary and compelling reason exists. Congress did not disapprove of the amendment during its 180-day review period, and the amendment went into effect in November 2023.

So, now that the commission has spoken, the issue is resolved, right?

Well, the U.S. government would say “not so fast.” Relying on cases like Crandall, the government has now taken the position, in various filings across the country, that the commission exceeded the scope of its authority in promulgating § 1B1.13(b)(6) because subsection (b)(6) conflicts with the plain meanings of “extraordinary” and “compelling,” with the statutory sentencing scheme, and with the principle of separation of powers. 

The problem with the government’s position is that it ignores what the U.S. Supreme Court has long recognized: The Sentencing Commission is a “peculiar institution”¹¹ with “unusual explicit power”¹² and a “broad”¹³ delegation of authority. Although the delegation of authority “is not unlimited,” courts are “not free to set aside [the commission’s interpretation] simply because it would have interpreted the statute in a different manner.”¹⁴ Of course, reasonable and learned minds can differ on what “extraordinary and compelling” means. Hence, the circuit split. But no matter which side you believe has the better argument, and no matter if you believe the amendment shortchanges policy desires for finality in sentencing, courts should not wrest from the commission its congressionally mandated duty under § 994(t) to resolve this issue, unless that resolution is unreasonable. 

Here, the Sentencing Commission explained its reasoning. In its explanation for its inclusion of “unusually long sentences” in Amendment 814, the commission wrote it was persuaded by the fact that Congress had expressly excluded “rehabilitation alone” as a possible extraordinary and compelling reason but said nothing about changes in the law. The commission also pointed to legislative history from the enactment of § 3582(c)(1)(A) that suggested Congress anticipated that the statute would provide a narrow avenue for relief from “unusually long sentences.” And the commission explained how it narrowly tailored (b)(6) to ensure it applied only in rare circumstances. Subsection (b)(6) does not demand relief for every unusually long sentence, but rather indicates that discretion exists for a reduction on a case-by-case basis and only for those who have served at least a decade. 

With the Sentencing Commission’s amendment, notions of fairness, not just notions of compassion, can warrant relief for those serving unusually long sentences. That is, unless the courts determine that Congress’s delegation of broad authority to the commission to define “extraordinary and compelling” has additional bounds not stated in the text of § 994(t). 

Reprinted with permission from The Iowa Lawyer, Vol. 84 No. 3. Copyright 2024. Published by The Iowa State Bar Association. 

Editor’s note: This article has been edited for clarity, brevity, and applicability to Missouri lawyers.

Endnotes

1 The term “compassionate release” is arguably a misnomer. See, e.g., United States v. Brooker, 976 F.3d 228, 237 (2d Cir. 2020); United States v. Lara, 658 F. Supp. 3d 22, 27 (D.R.I. 2023). The statute speaks substantively only about “extraordinary” and “compelling” reasons, guidelines policy statements, and statutory sentencing factors that might warrant a sentencing “reduction.” Compassion, while a possible consideration, is not a necessary statutory consideration. 

2 See United States v. Rodriguez-Mendez, 65 F.4th 1000, 1002 (8th Cir. 2023) (noting that the commission lacked a quorum until recently). 

3 United States v. Reiter, 2021 WL 1424332, at *5 (S.D.N.Y. Apr. 15, 2021). Of those granted compassionate release in 2020, courts cited health risks associated with COVID-19 as one reason for granting relief in 71.5% of orders granting § 3582(c)(1)(A)(i) motions. Compassionate Release: The Impact of the First Step Act and COVID-19 Pandemic (March 2022), www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2022/20220310_ compassionate-release.pdf (“For more than 70 percent of Offenders Granted Relief, courts cited the offender’s heightened risk of contracting or experiencing serious illness from COVID-19, typically in relation to the offender’s preexisting health conditions or increased age.”)

4 The 1st, 4th, 9th, and 10th Circuits had held that such a gross disparity can provide an extraordinary and compelling reason. See United States v. Ruvalcaba, 26 F.4th 14, 16, 26–28 (1st Cir. 2022) (holding that non-retroactive changes in sentencing law may be considered in light of a defendant’s particular circumstances); United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022) (same); United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021) (same); United States v. McCoy, 981 F.3d 271, 285 (4th Cir. 2020) (same). The Second Circuit arguably joined the 1st, 4th, 9th, and 10th Circuits in Brooker, 976 F.3d 228; see also United States v. Watts, 2023 WL 35029, *7 (E.D.N.Y. Jan. 4, 2023) (collecting cases within the Second Circuit reducing sentences). On the other hand, the 3rd, 6th, 7th, and D.C. Circuits are in accord with the 8th Circuit on this issue. See United States v. Andrews, 12 F.4th 255, 260–62 (3d Cir. 2021), cert. denied, 142 S. Ct. 1446 (2022) (holding that non-retroactive changes in law are not permissible considerations); United States v. McCall, 56 F.4th 1048, 1061 (6th Cir. 2022) (en banc) (same); United States v. King, 40 F.4th 594, 595 (7th Cir. 2022) (same); United States v. Jenkins, 50 F.4th 1185, 1198, 1198 (D.C. Cir. 2022) (same). 

5 United States v. Crandall, 25 F.4th 582 (8th Cir. 2022). 

6 Id. at 585–86. 

7 Id. at 586. The 8th U.S. Circuit Court reasoned that it is not “extraordinary” for Congress to increase or decrease criminal penalties — they do so all the time. Id. Nor is it “compelling” when Congress modifies criminal penalties prospectively but does not disapprove of the penalties “established by the prior Congress for a different era.” Id. 

8 Id. at 584. 

9 See, e.g., Br. for the United States in Opposition to Grant of Certiorari, Jarvis v. United States, No. 21-568, 2021 WL 5864543, at *12 (U.S. Dec. 8, 2021) (“And although courts of appeals have reached different conclusions on the issue, the practical importance of the disagreement is limited, and the Sentencing Commission could promulgate a new policy statement that deprives a decision by this Court of any practical significance.”); accord Br. for Appellee United States at 51, United States v. Crandall, No. 20-3611, ECF No. 16 (8th Cir. filed Mar. 25, 2021). 

10 Braxton v. United States, 500 U.S. 344, 348 (1991). 

11 Mistretta v. United States, 488 U.S. 361 (1989). 

12 Braxton, 500 U.S. at 348. 

13 United States v. Labonte, 520 U.S. 751 (1997). 

14 Batterton v. Francis, 432 U.S. 416, 425, 428 (1977).