As blogged here last month, in US v. Owens, No. 20-2139 (6th Cir. May 6, 2021) (available here), a split Sixth Circuit panel held that “in making an individualized determination about whether extraordinary and compelling reasons merit compassionate release, a district court may include, along with other factors, the disparity between a defendant’s actual sentence and the sentence that he would receive if the First Step Act applied.” This seemed consistent with the Sixth Circuit’s prior holding in US v. Jones, 20-3701 (6th Cir. Nov. 20, 2020) (available here), that district courts have full discretion [currently] to determine whether an ‘extraordinary and compelling’ reason justifies compassionate release when an imprisoned person files a § 3582(c)(1)(A) motion.” It was also consistent with rulings from other circuits like US v. McCoy, 981 F.3d 271, 285–87 (4th Cir. 2020) and US v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021).
But today a distinct split Sixth Circuit panel in US v. Jarvis, No. 20-3912 (6th Cir. June 3, 2021) (available here), states that “non-retroactive changes in the law [can] not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” Here is a passage from the majority opinion in Jarvis:
The text of these sentencing statutes does not permit us to treat the First Step Act’s non-retroactive amendments, whether by themselves or together with other factors, as “extraordinary and compelling” explanations for a sentencing reduction. See Tomes, 990 F.3d at 505. But for those defendants who can show some other “extraordinary and compelling” reason for a sentencing reduction (and we have plenty of deferential decisions on this score), they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors — above all with respect to the community safety factor.
Judge Clay authors a lengthy dissent in Jarvis that starts this way:
In passing the First Step Act, Congress amended 18 U.S.C. § 3582(c)(1)(a) to allow federal district courts to grant compassionate release under appropriate circumstances to those incarcerated in federal prison, even in instances where the Bureau of Prisons opts not to do so. In accordance with this understanding of the amendment, we have found that district courts are not required to consider the policy statement in U.S.S.G. § 1B1.13 in determining what constitutes an extraordinary and compelling reason for release, thereby permitting district courts discretion in determining whether an individual defendant has demonstrated an extraordinary and compelling reason for release. See United States v....
