Sixth Circuit invents another extra-textual limit on what can permit a sentence reduction under 3582(c)(1)(A), including one in contradiction of USSC guidelines
In this post earlier today, I noted and criticized the Third Circuit's work in US v. Andrews, No. 20-2768 (3d Cir. Aug. 30, 2021) (available here), for its embrace of extra-textual categorial exclusions as to what might qualify as extraordinary and compelling reasons to support a sentence-reduction motion under 18 U.S.C. § 3582(c)(1)(A). Turns out, today was a special day for this kind of extra-textual policy work by the courts, as the Sixth Circuit in US v. Hunter, No. 21-1275 (6th Cir. Aug. 30, 2021) (available here), also decided to make up rules in this context:
As explained further below, the text and structure of § 3582(c)(1)(A) limit a district court’s discretion to define “extraordinary and compelling” in two ways relevant to this case. First, non-retroactive changes in the law, whether alone or in combination with other personal factors, are not “extraordinary and compelling reasons” for a sentence reduction. Second, facts that existed when the defendant was sentenced cannot later be construed as “extraordinary and compelling” justifications for a sentence reduction.
I have explained in a number of prior posts why the "first" point made by the Hunter court is unsupported by the text of 3582(c)(1)(A) (see here) But the "second" point from the Hunter panel seems especially problematic and an especially misguided policy invention. Congress instructed, in 28 U.S.C. § 994(t), that the US Sentencing Commission "describe what should be considered extraordinary and compelling reasons for sentence reduction," and the USSC has expressly stated, in USSG §1B1.13 application note 2, that facts that existed when the defendant was sentenced can later support a finding of "compelling and extraordinary" reasons for a reduction. Here is this USSC application note in full:
2. Foreseeability of Extraordinary and Compelling Reasons. — For purposes of this policy statement, an extraordinary and compelling reason extraordinary and compelling reasons need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.
So, to review, Congress tasked the Sentencing Commission with describing how district courts should assess extraordinary and compelling reasons for a sentence reduction, and the USSC said that there is no preclusion on the consideration of facts known at the time of sentencing. But, in contravention of the instructions of Congress and the work of the USSC, this Sixth Circuit panel has decided it can and should make up its own misguided rule that facts that existed when the defendant was sentenced cannot contribute to providing extraordinary and compelling reasons for a reduction.
As I see the Hunter opinion, it really seems like the panel was troubled by a murderer getting his sentence reduced to "only" 21 years in prison. If the substantive merits of the reduction so bothered the panel, I sure wish it would have explained its concerns with a focus on how the 3553(a) factors were weighed, rather than by making up a lot of problematic law concerning what cannot serve as the basis for finding an extraordinary and compelling reason. As I have noted before, Congress set forth one (partial) express exclusion in § 994(t): "Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason." In light of this clear (and limited) statutory command, all other limits created by circuit courts appear to me to be extra-textual policy-making, not textual statutory interpretation.
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