Eighth Circuit panel seemingly misreads the US Sentencing Commission’s sentence reduction guideline amendment

I have previously blogged here and here about the US Sentencing Commission’s decision to amend the so-called commpassionate release guideline, formally “§ 1B1.13 – Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement).”  There are lots of intricate elemens to this amendment, and one key provision concerned the authority of judges to consider “changes in the law” as a basis to satisfy the statutory requirement of finding “extraordinary and compelling reason” for a sentence reduction. 

This issue was the only one clearly dividing the new Commissioners: four Commissioners voted for a new provision — § 1B1.13(b)(6) — that expressly states that, in certain circumstances, “changes in the law … 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.”  Three other Commissioners voted againt this provision because they did not believe  the USSC should ever allow “changes in the law” to be considered in determining whether a defendant presents and “extraordinary and compelling reason” for a sentence reduction.

A helpful reader sent me an Eighth Circuit opinion, US v. Rodriguez-Mendez, No. 22-2399 (8th Cir. April 25, 2023) (available here), that seems to misread just what the USSC has done with this amendment to the reduction-in-sentence guideline.  In this case, the panel first explains that the Eighth Circuit had pervious “held that a non-retroactive change in law regarding sentencing …  cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).”  Then the panel rejects the defendant’s argument that the Supreme Court’s opinion in Concepcion v. US, 142 S. Ct. 2389 (2022), required changing that prior holding.  (I disagree with that reading of Concepcion, as explained here, but a number of courts have adopted it.)  

Then, in the last few paragraphs of this new Rodriguez-Mendez opinion, the Eighth Circuit panel mentions that the Sentencing Commission’s proposed amendment to § 1B1.13.  But after quoting key provisions of the amendment, the panel states (with my emphasis added): “It thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion.”   But this seems flatly wrong because, as noted above, the new language of § 1B1.13(b)(6) expressly states that, in certain circumstances, “changes in the law … may be considered in determining whether the defendant presents an extraordinary and compelling reason.”  In other words, the Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circucumstances.  (And, notably, the defedant in this case, Rodrigo Rodriguez-Mendez, might well meet the circumstances the Commission set forth for “change in the law” to provide the basis for a sentence reduction.)

I have argued in this post that the new amended provision of “§ 1B1.13 – Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)” could and should be seen to now overrule prior circuit rulings that changes in law cannot provide a basis for a sentence reduction.  But some may reasonably claim that the amendment to § 1B1.13 only should be given effect after November 1, 2023, which is when all the new guideline amendments will become effective.  But I do not think anyone can reasonably claim, as the Eighth Circuit panel seems to do here, that the new amended guideline serves to codify the claims of some circuits that changes in law can never provide a basis for a sentence reduction.