First Circuit Expands Grounds for Compassionate Release

In United States v. Ruvalcaba, No. 21-1064 (1st Cir. Feb. 15, 2022), the First Circuit held (1) that a district court is not bound by the Sentencing Commission’s current policy statement when adjudicating a defendant-initiated motion for compassionate release and (2) that a district court may consider the First Step Act’s non-retroactive sentencing provisions on an individualized basis to determine whether an extraordinary and compelling reason exists for compassionate release.  The First Circuit is the latest court to weigh in on a deepening circuit split that may soon come before the Supreme Court. 

The First Step Act enacted in 2018 made several important changes to federal sentencing, two of which are relevant here.  See FSA, Pub. L. No. 115-391, 132 Stat. 5194.  Previously, only the Director of the Bureau of Prisons could file a motion for compassionate release.  See 18 U.S.C. § 3582(c)(1)(A) (2012).  The FSA allowed defendants to also file such motions on their own if the BOP declined to act.  See FSA, § 603(b), 132 Stat. at 5239.   Second, the FSA reduced the mandatory penalty for drug offenses under 21 U.S.C. § 841(b)(1)(A) for defendants with prior qualifying convictions.  The minimum penalty for a conviction after two prior qualifying convictions was reduced from life to twenty-five years of incarceration.  See FSA § 401(a)(2), 132 Stat. at 5220.  The mandatory minimum for defendants with only one qualifying prior conviction was reduced from twenty to fifteen years of incarceration.  See id.  And the FSA modified the criteria for a qualifying prior offense from a “felony drug offense” to a “serious drug felony” or “serious violent felony.”  See FSA, § 401(a)(1), 132 Stat. at 5220.  The changes to the mandatory minimums under Section 401 applied only to defendants who were not yet sentenced when the FSA was enacted. 

José Ruvalcaba was convicted of a conspiracy to distribute and to possess with intent to distribute over 500 grams of methamphetamine and a conspiracy to launder money in violation of 18 U.S.C. § 1956(h) and 21 U.S.C. § 846.  When he was sentenced in 2009, Mr. Ruvalcaba had two prior felony drug offenses and faced a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) (2006).  The district court sentenced him to life imprisonment on the drug conspiracy and a concurrent 240 term of imprisonment on the money laundering conspiracy.  The judgment was affirmed on direct appeal. 

Mr. Ruvalcaba initiated a motion for compassionate release.  Under the new criteria for a qualifying prior offense, Mr. Ruvalcaba would have faced a mandatory minimum of fifteen years if he had been sentenced under the FSA, rather than the mandatory life sentence that applied at the time of sentencing.  Mr. Ruvalcaba argued that the resulting sentencing disparity was extraordinary and compelling, especially given that he was only 45 years old and had been incarcerated for 14 years on the drug conspiracy sentence.  He also argues that he suffers from medical issues that rendered him uniquely susceptible to severe illness or death should he contract COVID-19. 

The district court determined that Mr. Ruvalcaba had exhausted his administrative remedies.  But the district court rejected Mr. Ruvalcaba’s medical conditions argument, finding that the BOP could adequately manage his medical issues.  And the district court found that changes to the FSA’s sentencing regime could not be considered an extraordinary and compelling reason for compassionate release because Congress had not made those changes retroactive.  The district court also considered the Sentencing Commissions current policy statement “helpful guidance.”  On appeal, the First Circuit vacated the district court’s order and remanded. 

The compassionate release statute requires that any sentencing reduction be “consistent with applicable policy statements issued by the Sentencing Commission.”  18 U.S.C. § 3582(c)(1)(A).  The Commission issued a policy statement describing what qualifies as an extraordinary and compelling reason for a sentencing reduction in 2006, and later gave some examples in the commentary.  See U.S.S.G. § 1B1.13 (2006) and § 1B1.13 cmt. n.1 (A)-(D).  The policy statement includes four categories of extraordinary and compelling reasons:  medical conditions, age, family circumstances, and other reasons deemed appropriate by the BOP.  See id. at § 1B1.13 cmt. n.1 (A)-(D).  That policy statement is still in effect. 

The First Circuit joined most circuits to have considered the issue in holding that the current policy statement is not binding on district courts when deciding a compassionate release motion initiated by a defendant.[1]  The Court reasoned that the text of the policy statements applies only when the BOP begins a request for relief.  Additionally, the Sentencing Commission has not had a quorum for most of the time since the FSA’s enactment.  The Commission therefore has had no opportunity to update the policy statement in light of the paradigm shift Congress intended to create when it passed the FSA. 

The First Circuit also joined the Fourth and Tenth Circuits in holding that the disparity between the pre- and post-FSA mandatory minimums may constitute an extraordinary and compelling reason in individualized cases.[2]  In doing so, the First Circuit disagreed with decisions by the Third, Seventh, and Eighth Circuits, which concluded that a district court lacks the discretion to consider the FSA’s non-retroactive changes in sentencing law in determining whether extraordinary and compelling reasons exist.[3]  Two of those circuits, the Third and the Seventh, would allow consideration of that disparity, but only later when the district court weighs the 18 U.S.C. § 3553(a) factors.  The First Circuit reasoned that the only consideration Congress has expressly excluded from what constitutes an extraordinary and compelling reason is rehabilitation.  See 28 U.S.C. § 994(t).  The court emphasized that a sentencing disparity does not qualify as an extraordinary and compelling reason in a typical case, but nothing prevents a district court from considering that disparity in a grievous individual case.   

Although not directly on point, the Supreme Court subsequently issued an opinion that strongly suggests the First Circuit’s view that non-retroactive sentencing changes may constitute an extraordinary and compelling reason for compassionate release will prevail. In Concepcion v. United States, Supreme Court Docket No. 20-1650 (decided June 27, 2022), the Court noted that district courts have the discretion to consider “any relevant materials at an initial sentencing or in modifying that sentence” except as limited by statute or the Constitution. See Concepcion, slip op. at 9-10. That language suggests that district courts enjoy the same discretion in the context of compassionate release decisions.

As the First Circuit recognized, the window of time without an applicable policy statement may be closing.  President Biden recently announced a slate of nominees to the Commission that, if confirmed, would constitute a quorum.  Once the Sentencing Commission updates the policy statement, that policy will be binding on district courts.  But even when there is an updated policy statement, district courts will remain free to consider whether the FSA’s sentencing reductions constitute an extraordinary and compelling reason to grant relief in individualized cases.

[1] See United States v. Andrews, 12 F.4th 255, 259 (3d Cir. 2021); United States v. Long, 997 F.3d 342, 359 (D.C. Cir. 2021); United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021); United States v. Shkambi, 993 F.3d 388, 388 (5th Cir. 2021); United States v. McGee, 992 F.3d 1035, 1050 (10th Cir. 2021); United States v. McCoy, 981 F.3d 271, 282 (4th Cir. 2020); United States v. Jones, 980 F.3d 1098, 1101 (6th Cir. 2020); United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020); United States v. Brooker, 976 F.3d 228, 230 (2d Cir. 2020).  The Eleventh Circuit disagrees, holding that the current policy statement does apply to defendant-initiated motions.  See United States v. Bryant, 996 F.3d 1243, 1247 (11th Cit. 2021).  The Supreme Court denied certiorari on the issue during the last term.  See 142 S. Ct. 583 (2021).  

[2] See McGee, 992 F.3d at 1045-48; McCoy, 981 F.3d at 285-87. 

[3] See United States v. Crandall, 25 F.4th 582, 585-86 (8th Cir. 2022); United States v. Andrews, 12 F.4th at 261-62; United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021).  There is an intra-circuit split on the issue in the Sixth Circuit.  See United States v. McCall, 20 F.4th 1108, 1114 (6th Cir. 2021).