Split Eleventh Circuit panel creates circuit split over compassionate relief criteria after FIRST STEP Act

May 9, 2021

I have blogged in recent months about a significant number of significant circuit rulings addressing the reach and application of the sentence modification provisions amended by the federal FIRST STEP Act. The Second Circuit back in September was the first circuit to rule in Zullo/Brooker, rightly in my view, that district courts now have broad discretion to consider “any extraordinary and compelling reason for release that a defendant might raise” to justify a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Since then, there have been somewhat similar opinions from the Fourth, Fifth, Sixth, Seventh, Ninth and Tenth Circuits generally recognizing that district courts now have broad authority after the FIRST STEP Act to determine “extraordinary and compelling” reasons that may justify a sentence reduction when an imprisoned person files a 3582(c)(1)(A) motion (see rulings linked below).

But this past Friday, a split Eleventh Circuit panel issued the first major ruling in this area that breaks with the jurisprudence developed in these other circuits. The majority opinion in US v. Bryant, No. 19-14267 (11th Cir. May 7, 2021) (available here), gets started this way:

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 18 U.S.C. § 3582(c)(1)(A), and the district court denied that motion based on the Sentencing Commission’s policy statement found at U.S.S.G. § 1B1.13. In resolving Bryant’s appeal, we must answer two questions about the relationship between Section 3582(c)(1)(A) and 1B1.13.

First, we must decide whether district courts reviewing defendant-filed motions under Section 3582(c)(1)(A) are bound by the Sentencing Commission’s policy statement. Under Section 3582(c)(1)(A), a court can reduce an otherwise final sentence for “extraordinary and compelling reasons,” as long as the reduction is “consistent with applicable policy statements issued by the Sentencing Commission.” The statute commands the Commission to publish a policy statement that defines “extraordinary and compelling reasons,” 28 U.S.C. § 994(t), and the Commission did: 1B1.13, which is entitled “Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A).” At the time, the statute required all motions to be filed by the BOP. The policy statement repeats that then-existing statutory language and, in its application notes, lists several circumstances that are “extraordinary and compelling reasons” that justify a sentence reduction.

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 1B1.13 is not an “applicable policy statement[]” for those defendant-filed motions. This is so, they say, because the policy statement, quoting the pre-existing statute’s language, begins with the following phrase: “Upon motion of the Director of the Bureau of Prisons.” Based mostly on that language, our sister circuits have held that this policy statement is not an “applicable policy statement” that binds judicial discretion as to defendant-filed motions.

We disagree with that reasoning. The statute’s procedural change does not affect the statute’s or 1B1.13’s substantive standards, specifically the definition of “extraordinary and compelling reasons.” The Commission’s standards are still capable of being applied and relevant to all Section 3582(c)(1)(A) motions, whether filed by the BOP or a defendant. And the structure of the Guidelines, our caselaw’s interpretation of “applicable policy statement,” and general canons of statutory interpretation all confirm that 1B1.13 is still an applicable policy statement for a Section 3582(c)(1)(A) motion, no matter who files it.

Second, because we conclude that 1B1.13 is an applicable policy statement, we must determine how district courts should apply that statement to motions filed under Section 3582(c)(1)(A). Bryant argues that Application Note 1(D) of 1B1.13 conflicts with the statute’s recent amendment. As a catch-all provision, Application Note 1(D) says that a court may grant a motion if, “[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 reasons described in subdivisions (A) through (C).” Bryant argues that, because the statute now allows for defendant-filed motions, we should replace “as determined by the [BOP]” with “as determined by the [court].” This alteration to the policy statement would give courts effectively unlimited discretion to grant or deny motions under Application Note 1(D).

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 Section 3582(c)(1)(A) and Application Note 1(D), we must apply both.

In short, 1B1.13 is an applicable policy statement for all Section 3582(c)(1)(A) motions, and Application Note 1(D) does not grant discretion to courts to develop “other reasons” that might justify a reduction in a defendant’s sentence. Accordingly, we affirm.

Judge Martin’s dissent gets started this way:

Today’s majority opinion 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. 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.

A few of many, many prior related posts: