United States v. McGee, 20-5047

992 F.3d 1035

UNITED STATES of America, Plaintiff - Appellee,

v.Malcom Derome MCGEE, Defendant - Appellant.

Kansas Federal Public Defenders, Amicus Curiae.

No. 20-5047

United States Court of Appeals, Tenth Circuit.

March 29, 2021

Susan L. Champion (Michael S. Romano, on the briefs), Three Strikes Project, Stanford Law School, Stanford, California, appearing for Appellant.

Leena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney, with her on the brief), Office of the United States Attorney for the Northern District of Oklahoma, Tulsa, Oklahoma, appearing for Appellee.

Melody Brannon, Federal Public Defender, and Kayla Gassmann, Appellate Attorney, Office of the Federal Public Defender for the District of Kansas, Kansas City, Kansas, on the brief for Amicus Curiae.

Before MORITZ, SEYMOUR, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

In November 2000, defendant Malcom McGee was convicted by a jury of three criminal counts: (1) conspiracy to possess with intent to distribute one kilogram or more of a mixture of substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846 ; (2) causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b) ; and (3) using a communication facility to commit and facilitate the commission of a felony, in violation of 21 U.S.C. § 843(b). Because McGee had previously been convicted in the State of California of two felony drug offenses, the district court sentenced McGee to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A).

Following Congress's enactment of the First Step Act of 2018 (First Step Act) and the changes the First Step Act made to both § 841(b)(1)(A) and 18 U.S.C. § 3582(c)(1)(A), McGee filed a motion with the district court pursuant to § 3582(c)(1)(A)(i) to reduce his sentence based on "extraordinary and compelling reasons." The district court denied that motion. McGee now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 2241, we reverse and remand to the district court for further consideration of McGee's motion.

I

McGee's criminal conduct

In July 2000, McGee participated in a scheme to transport a large quantity of phencyclidine (PCP) by way of a commercial bus from California to Washington, D.C. The scheme was discovered by law enforcement officials in Tulsa, Oklahoma, when the woman transporting the PCP became ill due to the odor of the PCP. McGee was arrested in Tulsa when he attempted to take possession of the PCP from the woman.

McGee's criminal proceedings

In August 2000, a federal grand jury indicted McGee on three criminal counts: Count One, conspiracy to possess with intent to distribute one kilogram or more of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. § 846 ; Count Two, causing another person to possess with intent to distribute in excess of one kilogram of a mixture or substance containing a detectable amount of PCP, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iv), and 18 U.S.C. § 2(b) ; and Count Three, using a communication facility, i.e., a telephone, to commit and facilitate the commission of a felony (i.e., using a telephone to discuss various matters concerning the possession with intent to distribute and the distribution of PCP), in violation of 21 U.S.C. § 843(b).

The case proceeded to trial in October 2000. At the conclusion of the evidence, the jury found McGee guilty on all three counts alleged in the indictment. The district court subsequently arrested judgment as to Count One. In April 2001, the district court sentenced McGee to a term of life imprisonment on Count Two and a term of imprisonment of fifty-six years on Count Three, with the terms to run concurrently.

McGee received a life sentence on Count Two because, at the time of his federal offense, he had two prior final California felony drug convictions. See 21 U.S.C. § 841(b)(1)(A) (increasing punishment to mandatory life imprisonment if the defendant committed a violation involving a threshold amount of drugs "after two or more prior convictions for a felony drug offense have become final"). Those two prior convictions were: (1) a November 7, 1987 conviction for possession of cocaine; and (2) an April 14, 1988 conviction for possession of cocaine base with intent to sell/deliver.

McGee appealed his conviction on Count Two and his sentence on Count Three. We affirmed the conviction on Count Two, but reversed the sentence on Count Three and remanded for resentencing on that count.¹ United States v. McGee , 291 F.3d 1224, 1225 (10th Cir. 2002). On December 4, 2002, the district court resentenced McGee to a term of imprisonment of 96 months on Count Three, to run concurrently with the life sentence previously imposed on Count Two.

McGee's § 2255 motion

In December 2003, McGee filed a motion pursuant to 28 U.S.C. § 2255 to vacate or set aside his life sentence. In support, McGee noted that "[t]he state of California [had] ... adopted Proposition 47, allowing its courts to reclassify certain felony drug convictions as misdemeanors," and that, consistent with Proposition 47, "[a] California court entered a nunc pro tunc judgment reducing one of [his] prior drug convictions from a felony to a misdemeanor" (specifically, McGee's 1987 conviction for possession of cocaine was reduced to a misdemeanor). United States v. McGee , 760 F. App'x 610, 611 (10th Cir. 2019). The district court denied McGee's motion, concluding "that McGee still qualified for the life sentence as a matter of federal law because both his prior felony drug convictions had been final and applicable at the time he was sentenced under § 841." Id .

We granted McGee a COA and ultimately affirmed the district court's denial of McGee's § 2255 motion, concluding that "[t]he increased penalties under § 841 [we]re designed to discourage recidivism." Id . at 616. We noted that "[i]f a defendant committed a serious federal drug offense knowing that he had two prior felony drug convictions, and if [he] has not shown that he was factually innocent of those prior convictions or that they were legally infirm, it does not violate due process to deny resentencing even if a state legislature later graciously decreased the penalty associated with a prior offense." Id .

McGee filed a petition for writ of certiorari with the United States Supreme Court. That petition was denied. McGee v. United States , ––– U.S. ––––, 140 S. Ct. 218, 205 L.Ed.2d 124 (2019).

The relevant changes implemented by the First Step Act

Prior to December 2018, a defendant like McGee who had two prior convictions for felony drug offenses and was sentenced under § 841(b)(1)(A) was subject to mandatory life imprisonment. On December 21, 2018, Congress passed the First Step Act, Pub. L. 115-391. Of relevance here, § 401 of the First Step Act reduced the mandatory minimum sentence under § 841(b)(1)(A) from life to 25 years. Congress did not, however, make that change retroactive to all inmates, such as McGee, who were sentenced under § 841(b)(1)(A) prior to the First Step Act. Instead, § 401(c) of the First Step Act provided that the amendments effected by § 401 "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." Pub. L. No. 115-391, § 401(c), 132 Stat. 5194, 5221 (2018).

As will be discussed in greater detail below, the First Step Act also made important changes to 18 U.S.C. § 3582(c)(1)(A)(i), which is sometimes referred to as the "compassionate release" statute.

McGee's petition for reduction of sentence

On January 10, 2020, McGee filed a request with the warden of the Federal Correctional Institution in Victorville, California, asking that the warden move for a reduction of McGee's sentence pursuant to § 3582(c)(1)(A)(i). McGee received no response to his request.

On March 10, 2020, McGee filed a motion to reduce his sentence pursuant to § 3582(c)(1)(A)(i). McGee argued in his motion that the district court had authority to resentence him under § 3582(c)(1)(A)(i) for extraordinary and compelling reasons. In support, McGee argued that: (a) he received a mandatory life sentence under a provision of § 841(b)(1)(A) that was amended by § 401 of the First Step Act because Congress considered it to be unduly punitive; (b) he was serving a sentence that would be substantially lower if imposed at the time of his petition because of changes to federal statutory law and California state drug law² ; (c) his remarkable record of rehabilitation added to the determination that he presented extraordinary and compelling reasons to support a sentence reduction; and (d) if resentenced and eventually released, he had a comprehensive reentry plan in place that included support from his family.

The government opposed McGee's motion. The government acknowledged that the First Step Act authorized a defendant to "file a § 3582(c)(1)(A) motion himself" if "the Director of the Bureau of Prisons had failed to do so." Aplt. App. at 64. But the government argued that the First Step Act "did not alter the requirements for granting such a motion." Id . at 65-66. More specifically, the government argued that "in order to grant compassionate release motions, courts must still find either that an inmate is over 70 and meets the other requirements of § 3582(c)(1)(A)(ii), or that ‘extraordinary and compelling reasons warrant such a reduction,’ and that ‘such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission.’ " Id . at 66 (emphasis omitted) (quoting § 3582(c)(1)(A) ). Relatedly, the government argued that the Sentencing Commission's 2018 policy statement remained valid and that, under that policy statement, there were four circumstances that provided "extraordinary and...