In a split opinion, a majority of the federal appellate panel said one part of a 2023 U.S. Sentencing Commission policy statement expanding prisoners' access to reduced sentences went beyond the commission's powers and could not be squared with the text of the compassionate-release statute.
Among other amendments to the sentencing guidelines, the sentencing commission said a change to sentencing law that results in a gross disparity between a prisoner's sentence and their would-be sentence under the changed law can be an "extraordinary and compelling" reason for early release, provided certain additional conditions are met.
"We conclude that the commission overstepped its authority and issued a policy statement that is plainly unreasonable under the statute and in conflict with the separation of powers," said U.S. Circuit Judge Alice M. Batchelder, who was joined in the majority by U.S. Circuit Judge Chad A. Readler.
In a dissent, U.S. Circuit Judge Jane Branstetter Stranch said it was not unreasonable for the sentencing commission to find "extraordinary and compelling" the plight of prisoners serving lengthy sentences for crimes that would not be punished as severely today.
"Restricting release to those with unusually long sentences who have suffered the unfairness of a sentence no longer deemed acceptable by Congress places those eligible under [U.S. Sentencing Guidelines] § 1B1.13(b)(6) in a rare group of prisoners who have been subject to unusual conditions that set them apart both numerically and morally from their fellow prisoners," Judge Stranch said.
The Sixth Circuit on Tuesday said the commission did not have the power to say that non-retroactive changes to sentencing law could be grounds for early release.
Congress, in the compassionate release statute, had said that prisoners may be relieved of their sentences early under certain "extraordinary and compelling" circumstances, and directed the sentencing commission to define what "extraordinary and compelling" meant, the Sixth Circuit noted.
The sentencing commission, however, went beyond its authority in issuing an interpretation of "extraordinary and compelling" that would allow changes in the law to undo otherwise-final sentences issued years ago, when Congress did not make the change retroactive.
The interpretation violates the separation of powers between the executive branch and the legislative branch, which is tasked with establishing the punishment for crimes, the majority found.
The panel majority also took the commission to task for giving retroactive effect to changes in the law while exempting from retroactivity changes to the sentencing guidelines, which are promulgated by the sentencing commission.
U.S.S.G. § 1B1.13(b)(6) "is not only an unreasonable interpretation or construction of [the compassionate release statute], it amounts to a heavy-handed and unseemly power grab by the commission. After instructing courts to treat as retroactive both acts of Congress and judicial rulings, despite those branches' opting to not make their decisions retroactive, § 1B1.13(b)(6) then protects its own authority by prohibiting prisoners from relying on nonretroactive changes to its guidelines," the majority said.
The majority said that 55.5% of federal inmates are serving a sentence of 10 or more years, which would eventually enable a majority of federal inmates to satisfy the first and possibly the second conditions to seek early release under the policy statement. Prisoners serving "unusually long" sentences may be eligible for the relief if they have already served at least 10 years, the sentencing commission said.
"The net result is that § 1B1.13(b)(6) allows the commission to moonlight as Congress to reduce the sentences of the majority of federal prisoners," the majority said.
In her dissent, Judge Stranch said Congress specifically tasked the sentencing commission with explaining what counts as "extraordinary and compelling" reasons for release.
When Congress explicitly delegates interpretation of an ambiguous statute to an agency, the agency's view is owed deference, even under the U.S. Supreme Court's Loper Bright Enterprises v. Raimondo
opinion, Judge Stranch said.The opinion and dissent came in a trio of cases that were consolidated for appeal.
Jason Bricker, who was sentenced to more than 24 years in prison for an armed bank robbery in 2005, sought compassionate release based on changes in the law and won a favorable ruling from a judge in the Northern District of Ohio, who noted that if Bricker were sentenced today, his advisory sentencing range would be 70 to 87 months, or 5 years and 10 months to 7 years and 3 months.
Judges had denied the compassionate release motions of Ellis McHenry, who was serving 603 months for armed carjackings in 1993, but would be eligible for a sentence of 315 to 330 months today, and Lois Orta, who was sentenced to life in prison for distributing methamphetamine in 1998 and would be eligible for a statutory minimum of 10 years rather than life if he was sentenced today.
The Sixth Circuit reversed in Bricker's case and affirmed the judge's rulings in McHenry's and Orta's cases.
The U.S. Attorney's Office for the Northern District of Ohio, which represented the government in the McHenry and Bricker cases, declined to comment. Counsel for the other parties did not immediately respond to requests for comment.
U.S. Circuit Judges Alice M. Batchelder, Jane Branstetter Stranch and Chad A. Readler sat on the panel for the Sixth Circuit.
The federal government is represented by Andrew C. Noll of the U.S. Department of Justice's Criminal Division, Appellate Section, James Ewing and Vanessa V. Healy of the U.S. Attorney's Office for the Northern District of Ohio and Charles P. Wisdom Jr. and Elaine K. Leonard of the U.S. Attorney's Office for the Eastern District of Kentucky.
Bricker is represented by David A. O'Neil, Suzanne Zakaria, Sandy Tomasik, James Stramm and Raphael M. Vim of Debevoise & Plimpton LLP.
McHenry is represented by Christian J. Grostic of the Office of the Federal Public Defender for the Northern District of Ohio.
Orta is represented by Alex P. Treiger and Justin B. Berg of Kellogg Hansen Todd Figel & Frederick PLLC.
The cases are United States v. Jason Bricker, case number 24-3286, United States v. Ellis McHenry, case number 24-3289, and United States v. Lois Jochinto Orta, case number 24-5182, in the U.S. Court of Appeals for the Sixth Circuit.
--Editing by Kelly Duncan.
Correction: A previous version of this story included a misspelled name. The error has been corrected.
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