United States v. Chen

48 F.4th 1092

UNITED STATES of America, Plaintiff-Appellee,

v.Howard CHEN, Defendant-Appellant.

No. 20-50333

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 16, 2022^* Pasadena, California

Filed September 14, 2022

Joshua D. Weiss (argued) and Kathryn A. Young, Deputy Federal Public Defenders; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

David R. Friedman (argued), Assistant United States Attorney; Bram M. Alden, Chief, Criminal Appeals Section; Tracy L. Wilkison, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Johnnie B. Rawlinson and Morgan Christen, Circuit Judges, and Gloria M. Navarro,^** District Judge.

NAVARRO, District Judge:

Howard Chen appeals from the district court's order denying his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). We hold that a district court may consider the First Step Act's non-retroactive changes to sentencing law, in combination with other factors particular to the individual defendant, when determining whether extraordinary and compelling reasons exist for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). Because the district court declined to consider the First Step Act's non-retroactive changes to the mandatory minimum sentencing requirements of 18 U.S.C. § 924(c) when considering whether to reduce Chen's sentence, we vacate and remand for the district court to reassess the motion for compassionate release under the correct legal standard.

I. BACKGROUND

Chen's case arises out of a conspiracy to traffic large quantities of MDMA between November 2006 and May 2007. After Chen negotiated to sell MDMA pills to an informant for the DEA, local law enforcement agents stopped Chen's car and found 831 grams of MDMA and a firearm. DEA agents later recovered MDMA pills, drug paraphernalia, and two firearms from Chen's house. In total, Chen possessed or distributed 13,934 grams of MDMA, and the DEA recovered around $140,000 in proceeds. Other than juvenile offenses, Chen had no prior criminal history at the time of his arrest.

On November 29, 2007, a jury convicted Chen of six drug-related counts and two counts of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). At the time of Chen's sentencing in 2008, § 924(c) imposed a mandatory minimum sentence of 5 years¹ for a defendant's first § 924(c) conviction, and a mandatory minimum sentence of 25 years "in the case of a second or subsequent" § 924(c) conviction. See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 2138, 2138–39 (as amended by Pub. L. No. 105-386, 112 Stat. 3469 (1998) ). Under Deal v. United States , the Supreme Court established that the 25-year mandatory minimum enhancement for "second or subsequent" convictions applied to multiple § 924(c) counts charged in a single case, even when that case marked the first time a defendant was ever charged with a § 924(c) offense, creating what is colloquially known as the practice of " § 924(c) stacking." See Deal , 508 U.S. 129, 130–36, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). Accordingly, the district court sentenced Chen to 48 months for the six drug offenses, 60 months for his first § 924(c) conviction and a stacked 300 months for his second § 924(c) conviction, for a total of 408 months' imprisonment.

In 2018, § 403(a) of the First Step Act negated Deal by clarifying that the 25-year enhancement is triggered only by a § 924(c) conviction occurring after the initial § 924(c) conviction "has become final." See First Step Act of 2018, Pub. L. No. 115-391, § 403(a), 132 Stat. 5194, 5221–22 (codified at 18 U.S.C. § 924(c)(1)(C) ). In practice, § 403(a) of the First Step Act ended § 924(c) stacking because first-time offenders no longer receive stacked sentences for multiple § 924(c) convictions in the same proceeding. However, Congress limited the application of § 403(a) only to defendants who have not yet been sentenced for their § 924(c) convictions, which courts routinely interpret as meaning that § 403(a) is non-retroactive. Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5221–22 ("This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.").

On September 2, 2020, Chen filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Chen argued that § 403(a)'s changes to § 924(c) stacked sentencing constitute extraordinary and compelling reasons for reducing his sentence. Chen explained that, if sentenced today, his second § 924(c) conviction would only require a 60-month sentence, instead of the 300 months he received in 2008. The district court denied Chen's motion, concluding that § 403(a)'s changes cannot be considered when assessing whether a defendant has shown extraordinary and compelling reasons for purposes of § 3582(c)(1)(A) because Congress expressly declined to make § 403(a) retroactive. For reasons this opinion lays out below, we disagree.

II. STANDARD OF REVIEW

We review 18 U.S.C. § 3582(c)(1) sentence reduction decisions for abuse of discretion. United States v. Aruda , 993 F.3d 797, 799 (9th Cir. 2021). "A district court may abuse its discretion if it does not apply the correct law or if it rests its decision on a clearly erroneous finding of material fact." United States v. Dunn , 728 F.3d 1151, 1155 (9th Cir. 2013) (citation omitted). "Statutory interpretation is a question of law that we review de novo." United States v. Washington , 971 F.3d 856, 861 (9th Cir. 2020).

III. DISCUSSION

Section 3582(c)(1)(A) empowers either a defendant, or the Director of the Bureau of Prisons on behalf of a defendant, to file a motion to modify a term of imprisonment. When, as here, a defendant moves for compassionate release under § 3582(c)(1)(A), district courts may reduce his term of imprisonment if four conditions are met: (1) the defendant exhausted administrative remedies; (2) "extraordinary and compelling reasons" warrant a sentence reduction; (3) a sentence reduction is "consistent with applicable policy statements" issued by the U.S. Sentencing Commission; and (4) the district court considered the factors set forth in 18 U.S.C. § 3553(a). Our inquiry today is limited to the relationship, or lack thereof, between § 3582(c)(1)(A)'s extraordinary and compelling reasons element and the Sentencing Commission's policy statements in defendant-filed motions. Congress directed the Sentencing Commission to promulgate general policy statements to "describe what should be considered extraordinary and compelling reasons for sentence reduction." 28 U.S.C. § 994(t). For motions filed by the BOP Director, the Sentencing Commission's current policy statement limits "extraordinary and compelling reasons" to: (1) medical conditions of the defendant; (2) age of the defendant; (3) family circumstances; or (4) any other extraordinary and compelling reason as determined by the BOP Director. See U.S.S.G. § 1B1.13, cmt. n.1(A)–(D). As a result, district courts assessing motions for compassionate release brought by the BOP Director are bound by the Sentencing Commission's limited definition of "extraordinary and compelling reasons." See 18 U.S.C. § 3582(c)(1)(A).

However, in Aruda , 993 F.3d at 801–02, this Court determined that the Sentencing Commission's current policy statement, which is applicable to motions filed by the BOP Director, does not also apply to defendant-filed motions for compassionate release, and thus, there is no applicable policy statement binding the district court's consideration of extraordinary and compelling reasons in Chen's case.² Aruda concluded that "district courts are empowered ... to consider any extraordinary and compelling reason for release that a defendant might raise." Id. at 801. In the absence of an applicable policy statement from the Sentencing Commission, the determination of what constitutes extraordinary and compelling reasons for sentence reduction lies squarely within the district court's discretion. Id. The question before us is whether that discretion extends to considering § 403(a)'s changes to stacked sentencing, or whether non-retroactive changes in sentencing law present an exception to the general principal that district courts may consider "any" extraordinary and compelling reason.

A district court's discretion of course has limitations and is first and foremost constrained by any express mandate from Congress. In Concepcion v. United States , the Supreme Court recently stated that "[i]t is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court's discretion to consider information is restrained." ––– U.S. ––––, 142 S. Ct. 2389, 2396, 213 L.Ed.2d 731 (2022).³ With regard to § 3582(c)(1)(A), Congress has only twice directly addressed what can be considered "extraordinary and compelling." First, as discussed above, the definition of extraordinary and compelling is bound by applicable policy statements from the Sentencing Commission. See 18 U.S.C. § 3582(c)(1)(A) ; 28 U.S.C. § 994(t). Second, in 28 U.S.C. § 994(t), Congress explained that "[r]ehabilitation ... alone" cannot be extraordinary and compelling. Because there is no applicable policy statement governing Chen's motion, seemingly the only direct congressional limitation to a district court's discretion is the prohibition against consideration of "[r]ehabilitation ... alone." The issue now becomes whether, by making § 403(a)'s changes to stacked sentencing non-retroactive, Congress indirectly limited a district court's discretion to consider those changes when assessing extraordinary and compelling reasons.

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