Has the US Sentencing Commission now “overruled” circuit decisions saying changes in law cannot provide a basis for 3582(c)(1)(A) sentence reduction?

Perhaps the highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission yesterday (basics here) concerns the major revision of § 1B1.13 setting terms for a “Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A).”  This “policy statement” structures the availability of what are often called “compassionate release” motions that, after the FIRST STEP Act, can be brought to sentencing courts directly by federal prisoners.  Notably, when introducting the Commission’s amendments to § 1B1.13, USSC Chair Reeves stressed in his statement that the term compassionate release “is a ‘misnomer'” because § 3582(c)(1)(A) sets forth a more general “sentence-reducing tool” authorizing judges “to modify sentences whenever new ‘extraordinary and compelling’ reasons arise.”

This Reuters article (which uses the compassionate release “misnomer”) provide a brief account of the new amendment to guideline § 1B1.13:

The U.S. Sentencing Commission approved new guidelines on Wednesday that will expand federal inmates’ ability to qualify for compassionate release from prison.  The new policy, approved in a vote of 4-3, was part of a broader package of amendments, and represent the most sweeping criminal justice reforms the commission has enacted in more than four years….

The new compassionate release guidelines approved on Wednesday expanded the criteria for what can qualify as “extraordinary and compelling reasons” to grant compassionate release, and it will give judges more discretion to determine when a sentence reduction is warranted.  Among the new categories that could make an inmate eligible for compassionate release is if he or she becomes the victim of sexual assault by a corrections officer.

Three members of the panel opposed the final policy, saying they disagreed with a provision that could allow judges to grant compassionate release to inmates if changes to federal sentencing laws renders their prison term inequitable. The policy “makes a systemic, structural change without congressional authorization,” commission member Candice Wong said.

Though there are lots of new and important elements to the new § 1B1.13, one particular issue that has generated a particularly interesting debate in the circuit courts (and before the Commission) is whether a district judge can rely on a “change in the law” to grant a 3582(c)(1)(A) sentencing reduction.  This question has deeply divided the circuits; as discussed here, the Sixth Circuit a few months ago rendered a big divided en banc ruling in US v. McCall which held, as a matter of statutory interpretation, “that nonretroactive changes in sentencing law cannot be ‘extraordinary and compelling reasons’ that warrant relief” pursuant to 3582(c)(1)(A). 

But now the US Sentencing Commission, which Congress in 28 U.S.C. § 994(t) expressly gave the responisbility to “describe what should be considered extraordinary and compelling reasons for sentence reduction,” has expressly decided via its new amendments to § 1B1.13 that a “change in the law” legally can and sometimes should be the basis for a 3582(c)(1)(A) sentencing reduction.  Specifically, here is the interesting policy statement provision on this issue in the new guideline (with emphasis added):

(6) UNUSUALLY LONG SENTENCES.—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.

In other words, the US Sentencing Commission has decided, contra to the position of the Sixth Circuit and some other circuits, that a change in law can serve as an extraordinary and compelling reason for sentence reduction, though the Commission here limits such a “law-change” reason to cases in which a defendant has already served “at least 10 years” of an “unusually long sentence” and the law change “would produce a gross disparity” in sentencing outcomes. 

Though one might well debate the wisdom and reach of how the new guideline seeks to limit when “a change in the law” can provide an extraordinary and compelling reason for sentence reduction, it is beyond debate that the US Sentencing Commission, the expert agency tasked expressly by Congress to “describe what should be considered” reasons for a 3582(c)(1)(A) sentence reduction, has now explicitly decided that at least sometimes a “change in law” CAN statutorily be a proper basis for a reduction under the statute.  In this way, I answer the question in the title of this post as “yes”: the US Sentencing Commission’s promulagation of this new § 1B1.13 provision serves to functionally “overrule” any and all court precedents that nonretroactive changes in law cannot be the basis for a statutory sentence reduction under 18 U.S.C § 3582(c)(1)(A).

UPDATE:  Thanks to some feedback from a number of helpful readers, I realized it would be useful to note that some circuits speaking to this issue expressly recognized that any court accounting of “extraordinary and compelling reason” would be only a gap-filler until the Commission amended § 1B1.13 and the Justice Department has also said as much when opposing Supreme Court review of the circuit split on this issue.  Professor Erika Zunkel’s testimony to the USSC at pp. 9-13 speaks effectively to these issues at great and effective length for anyone interested in a deeper dive.