United States v. McCall

20 F.4th 1108

UNITED STATES of America, Plaintiff-Appellee,

v.David E. MCCALL, Jr., Defendant-Appellant.

No. 21-3400

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 17, 2021

ON BRIEF: Vanessa Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: MOORE, KETHLEDGE, and DONALD, Circuit Judges.

MOORE, J., delivered the opinion of the court in which DONALD, J., joined. KETHLEDGE, J. (pp. –––– – ––––), delivered a separate dissenting opinion.

KAREN NELSON MOORE, Circuit Judge.

David McCall, who pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015, moved for compassionate release. He cited three "extraordinary and compelling circumstances" warranting his release: the COVID-19 pandemic, his rehabilitation efforts, and the fact that, under this court's decision in United States v. Havis , he would have received a much shorter sentence. The district court acted as if it could not consider these factors, either alone or in tandem. Because our binding precedent says otherwise, we REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

In 2013, the United States indicted David McCall and many others in connection with a heroin-distribution conspiracy. R. 35 (Superseding Indictment) (Page ID #411–601). McCall pleaded guilty to conspiracy to possess with intent to distribute and to distribute heroin, and the government dismissed its remaining possession, distribution, and facilitation charges. R. 1150 (Plea Agreement at 3) (Page ID #8507). Based on the drug quantities involved, McCall's base offense level would have been 24, but his status as a career offender increased his base offense level to 34. R. 1605 (Sent'g Tr. at 8–9) (Page ID #12724–25).

The district court sentenced McCall to 235 months in prison. R. 1501 (Judgment at 2) (Page ID #11944). Had McCall not been a career offender, his guidelines range would have been lower. McCall Br. at 4 (claiming a guidelines range of 77–96 months); Gov't Br. at 14 n.2 (claiming a guidelines range of 151–188 months). After McCall's sentencing, we held in United States v. Havis that "attempted" controlled substance offenses do not qualify as predicate offenses for the purpose of the Sentencing Guidelines' career-offender enhancement. 927 F.3d 382, 386–87 (6th Cir. 2019) (en banc) (per curiam). As a result, a district court cannot use an attempted controlled substance crime as a qualifier for a career-offender sentencing enhancement. Id. at 387. We subsequently applied Havis 's conclusion to convictions for conspiracy to distribute controlled substances. See United States v. Cordero , 973 F.3d 603, 626 (6th Cir. 2020).

In June 2020, McCall requested that the Bureau of Prisons ("BOP") file a motion for compassionate release or sentence reduction on his behalf. R. 2109-1 (Ex. A to Mot. for Compass. Release) (Page ID #17037). The BOP denied the request, id. , and McCall filed a pro se motion for sentence reduction under 18 U.S.C. § 3582(c)(1)(A), R. 2109 (Mot. for Compass. Release) (Page ID #17031–34). McCall's motion provided five "extraordinary and compelling circumstances" supporting his motion that fell into three buckets: that COVID-19 presents "[d]eadly consequences" to "people with and without underlying medical conditions," that his prior convictions for drug trafficking and assault no longer qualify as predicate offenses for career-offender status post- Havis , and that he has rehabilitated himself. Id. at 3 (Page ID #17033).

McCall filed a supplement to the motion through counsel, identifying a number of district courts that had granted compassionate-release motions in part based on sentencing disparities in light of Havis. R. 2134 (Supp. to Mot. for Compass. Release at 5–8) (Page ID #17215–18) (citing United States v. Jackson , 515 F. Supp. 3d 708, 712–14 (E.D. Mich. 2021) ; United States v. Lawrence , No. 17-20259, 2021 WL 859044, at *1 (E.D. Mich. Mar. 8, 2021) ; and United States v. Wahid , No. 1:14-cr-00214, 2020 WL 4734409, at *2–3 (N.D. Ohio Aug. 14, 2020) ). The supplement explained that the 18 U.S.C. § 3553(a) factors also favored granting compassionate release. Id. at 9–10 (Page ID #17219–20).

The United States opposed McCall's motion. The government said that McCall raised "generalized fears of contracting COVID-19, without more," which it argued were insufficient to constitute "extraordinary and compelling reasons" for the purpose of compassionate release. R. 2141 (Gov't Resp. Opposing Compass. Release at 12) (Page ID #17286) (quoting United States v. Bothra , No. 20-1364, 2020 WL 2611545, at *2 (6th Cir. May 21, 2020) (order)). The government also argued that "[p]ost-[s]entence legal developments [i.e. Havis ] are not extraordinary," and that McCall's claimed rehabilitation could not on its own satisfy the requirement that McCall show extraordinary and compelling reasons to grant his release. Id. at 15 (Page ID #17289). Additionally, the government claimed that the § 3553(a) factors favor denying the motion, because McCall "poses a danger to the community" due to his criminal history. Id. at 13 (Page ID #17287).

The district court denied McCall's motion in a form order, finding that he failed to show an extraordinary and compelling reason to reduce his sentence. R. 2143 (Dist. Ct. Denial at 2) (Page ID #17307). The district court rejected McCall's discussion of COVID-19, saying that McCall "cites no health concern that puts him at risk in light of the pandemic." Id. The district court brushed away Havis 's effect, saying that the decision is nonretroactive and so could not comprise an extraordinary and compelling reason. Id. And the court rejected on statutory grounds McCall's remaining argument of rehabilitation, saying that rehabilitation alone cannot form an extraordinary and compelling reason to grant compassionate release. Id. (citing 28 U.S.C. § 994(t) ).

McCall timely appealed the district court's denial. R. 2153 (Notice of Appeal) (Page ID #17410). The district court had jurisdiction to consider McCall's compassionate-release motion under 18 U.S.C. § 3582(c)(1)(A). We have jurisdiction under 28 U.S.C. § 1291.

II. ANALYSIS

"We review a district court's denial of compassionate release for abuse of discretion." United States v. Jones , 980 F.3d 1098, 1112 (6th Cir. 2020). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, applies the law improperly, or uses an erroneous legal standard." United States v. Pembrook , 609 F.3d 381, 383 (6th Cir. 2010). " ‘A court might abuse its discretion, for example, if it misreads the meaning of the extraordinary-reason requirement,’ or ‘if it interprets the law to bar it from granting a reduction when, in fact, it has discretion to do so.’ " Jones , 980 F.3d at 1112 (quoting United States v. Keefer , 832 F. App'x 359, 363 (6th Cir. 2020) ).

Title 18 U.S.C. § 3582(c)(1)(A) allows courts, when "warrant[ed]" by "extraordinary and compelling reasons[,]" to reduce an incarcerated person's sentence. Jones , 980 F.3d at 1104. This is known as "compassionate release," and although it has existed since 1984, courts "rarely considered" motions until 2018 because "a court [could] grant relief only " on the BOP's motion. United States v. Ruffin , 978 F.3d 1000, 1003 (6th Cir. 2020). In 2018, the First Step Act revised § 3582, allowing incarcerated persons to file compassionate-release motions in federal court without BOP approval so long as they either exhausted the BOP's administrative process, or requested compassionate release from their warden and then waited thirty days. Jones , 980 F.3d at 1105.¹ This procedural change, paired with COVID-19's devastating surge through our nation's prisons, has caused a sharp increase in both filings and grants of compassionate-release motions. Id.

A court may grant compassionate release when it finds three requirements are satisfied. First, the court must "find[ ]" that "extraordinary and compelling reasons warrant" a sentence reduction. Jones , 980 F.3d at 1107–08 (citing 18 U.S.C. § 3582(c)(1)(A)(i) ). Second, the court must "find[ ]" that "such a reduction is consistent with applicable policy statements issued by the Sentencing Commission." Id. at 1108 (citing 18 U.S.C. § 3582(c)(1)(A) ). When an incarcerated person, rather than the BOP, files a compassionate-release motion, the court omits this second step. Id. at 1108, 1111 ; see also United States v. Owens , 996 F.3d 755, 759 n.2 (6th Cir. 2021). Third, the court must "consider any applicable § 3553(a) factors and determine whether, in its discretion, the reduction authorized by [steps one and two] is warranted in whole or in part under the particular circumstances of the case." Jones , 980 F.3d at 1108 (quoting Dillon v. United States , 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) ). "[D]istrict courts may deny compassionate-release motions when any of the three prerequisites listed in § 3582(c)(1)(A) is lacking and do not need to address the others." United States v. Elias , 984 F.3d 516, 519 (6th Cir. 2021). And even if a district court finds all the requirements satisfied, it still may deny compassionate release, because "the compassionate release decision is discretionary, not mandatory." Jones , 980 F.3d at 1106.

There is one other relevant provision of the First Step Act. The Act reduced some federal crimes' mandatory-minimum sentences. See Owens , 996 F.3d at 759 ; United States v. Wills , 997 F.3d 685, 688 (6th Cir. 2021) (order).² But Congress applied those changes only 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." First Step Act, Pub. L. 115-391, Title IV, §§ 401(c), 403(b).³ Individuals sentenced before the First Step Act's enactment are...