Statute: Encompasses Legal Errors Flashcards
Allowing your client to raise this argument would undermine the direct appeal and habeas systems.
I disagree your honor, for two reasons. First, the number of cases that will plausibly meet the statutory standard will be quite small. And even in those cases, defendants will not be able to make the direct appeal or habeas argument that an error entitled them to automatic relief. They will only be able to make the compassionate release argument that the totality of circumstances in their case are so extreme that a discretionary act of leniency is warranted.
And in this respect, I think it’s important to remember that Congress thought of compassionate release as a “safety valve.” So while Congress intentionally enacted a rigid, determinate sentencing system, it also intentionally provided a way to relieve the pressure on the system when that rigidity led to really extreme unwarranted results. So in Congress’s view, granting a small number of discretionary modifications in extreme circumstances does not undermine the system; it’s all part of one harmonious machine.
- I disagree, your honor. I think this argument encompasses two kinds of concerns: first, that defendants will be able to use compassionate release to get around limits on habeas or direct appeal, and second, that there will be a kind of floodgates or slippery slope problem. I’d like to address those in turn.
- First, defendants will not be able to use compassionate release to get around the limits on habeas or direct appeal, for the simple reason that the compassionate release statute does not allow defendants to raise habeas or direct appeal arguments.
- This case is a perfect example. It is effectively undisputed that an error at sentencing doubled Mr. Weller’s guidelines, resulting in five-plus-year swing between the correct low end and the erroneous low end. Thus, if compassionate release were a substitute for habeas or direct review, Mr. Weller’s victory would be assured. He would be entitled to relief.
But no one is arguing that that’s the case here. Rather, Mr. Weller has to convince a district court that, in the totality of the circumstances, this legal error is working such a grave injustice that it rises to the level of extraordinary and compelling circumstances. That’s not a habeas or direct appeal argument. That’s a compassionate release argument.
• And that leads into my second point, which is the floodgates problem. Only a small subset of extreme cases will defendants be able to plausibly raise this argument. And district courts will have broad discretion to hold that the defendant has not raised an extraordinary and compelling reason for relief.
• Furthermore, any time we’re thinking about floodgates or slippery slope arguments, it’s important to remember that Congress created a mechanism for addressing those problems: the Sentencing Commission. The Sentencing Commission is not functioning currently, but it will be in the near future, as soon as it gets a quroum. And when it is, it will study what has happened after the First Step Act. It will determine whether there really is a floodgates problem, and it will balance competing concerns to figure out the best solution. If this Court preempts the Sentencing Commission by imposing statutory limits, that will tie the Sentencing Commission’s hands and prevent it from doing the work with which Congress entrusted it.
But you’re making direct appeal/habeas arguments in your compassionate release motion, aren’t you?
No, your honor. Rather, we are referencing a legal error in making a compassionate release argument.
• I’d like to break that down a little bit. Merely referencing a legal error as part of a sentence modification argument is not improper. And we know that from Lizarraras-Chacon. There, this Court held that it was appropriate for the defendant to referencing a sentencing error in arguing for a sentence reduction under 3582(c)(2), and that it was wrong for the district court to refuse to consider those arguments. And that’s because the defendant was using the legal error to make sentence modification arguments, namely, arguments relevant to 3553(a).
• So too here. Mr. Weller is referencing a legal error at sentencing to make a compassionate release argument, not a direct appeal or collateral attack argument. Remember, the legal error here is effectively uncontested. So, if Mr. Weller were making a direct appeal or habeas argument, Mr. Weller’s victory would be assured. But that is not and has never been Mr. Weller’s position or the position of the supporting case law. Rather, Mr. Weller has to show that, under the totality of the circumstances, his sentence is egregiously, offensively unjust, and therefore extraordinary and compelling. That’s an argument that can only be made in compassionate release, not on direct appeal or habeas.
• To adapt the Fourth Circuit’s reasoning, there is a distinction between this wholesale entitlement to relief, and individualized discretionary reductions in extreme circumstances.
What’s extraordinary about having to serve a sentence that has become final?
- I’m glad your honor asked this question, but I think this point is really important. Everyone agrees - both Mr. Weller and the government, both the Fourth Circuit in McCoy and the Seventh Circuit in Thacker, everyone on all sides of the issue agree that there is nothing per se extraordinary and compelling about legal developments bearing on a defendant’s sentence.
- Where the Sixth and Seventh Circuit’s go wrong is that they end the analysis there. They say that if legal developments aren’t per se extraordinary and compelling, then they can’t be extraordinary and compelling no matter the facts of your individual case. But for any compassionate release motion, it is the individual facts of the person’s case that make the error extraordinary and compelling.
- I think analogizing to other extraordinary and compelling circumstances helps to highlight this fallacy. So, take a simple example: The Sentencing Commission says that deterioration as part of the aging process is an extraordinary and compelling reason for compassionate release. But of course, there is nothing extraordinary about aging, and there is nothing extraordinary about experiencing deterioration as part of aging. It is a normal, even universal experience past a certain age. Age-based deterioration is extraordinary because, and only because of the individual circumstances of the person’s case—the extent of their deterioration, whether they’ve been given accommodation to help them, whether they have a plan for functioning better in the community, and so forth.
- The same fallacy cropped up all the time during the pandemic. As your honors know, many people moved for compassionate release during the pandemic, often with support from the government. But some judges faced with these motions would engage in this kind of reasoning. They would say, ““there’s nothing extraordinary about having diabetes. Millions of American have diabetes. There’s nothing extraordinary about having a history of smoking. Millions of Americans have a history of smoking. There’s nothing extraordinary about having obesity. Millions of Americans are obese.”
- And of course, these courts were right. There is nothing extraordinary and compelling about having diabetes. But that reasoning just totally fails to engage in good faith with defendants’ arguments for relief, which relied not only on diabetes, but also the COVID-19 pandemic, the severity of the person’s condition, whether there was an outbreak at the person prison, vaccine availability, and so on.
- These kinds of arguments are so reductive that they are fallacious. The real question here should not be, “Is having to serve out a sentence in spite of a legal error extraordinary and compelling?” The real question her should be, “Is it possible that a situation would arise with such extreme facts that a district court would have the discretion to find that situation extraordinary and compelling?”
Isn’t there a separation of powers problem here? Aren’t we usurping Congress’s role if we second-guess its decision not to put limits on when someone can challenge their sentence?
No, your honor. I think the Fourth Circuit’s analysis in McCoy is spot on here. The Fourth Circuit basically says, Congress passed the compassionate release statute empowering judges to grant these sentence reductions. So if this Court finds that legal developments fall within your honor finds that the “extraordinary and compelling” analysis can encompass legal developments, then there’s no separation of powers problem, because the reduction is congressionally authorized.
Therefore, the separation of powers question and the statutory interpretation question really collapse into one. And to argue that there is a separation of powers problem is really to beg the question. It’s to assume that legal developments don’t fall within the statute and therefore don’t fall within congressional authorization. So that’s a long way of saying that the separation of powers angle really doesn’t move the ball forward here.
• So to say that there is a separation of powers problem begs the question. It assumes that Congress didn’t authorize courts to consider these errors. So, it assumes what it tries to prove.
• Additionally, the separation of powers concerns raised in cases like Thacker are not applicable here, because this case does not involve any retroactivity issues. In Thacker, the Seventh Circuit was concerned about overstepping when Congress made an express choice not to make the First Step Act retroactive. But here, Wei Lin merely interpreted the law that applied that Mr. Weller’s sentencing, meaning that only finality doctrines prevent him from raising this error on direct review or habeas. That matters, because 3582(c) is an express exception to finality.
Shouldn’t we assume that Congress legislated against the background of limits on habeas and direct appeal?
Absolutely, your honor. We know that Congress was thinking about the quite rigid and determine sentencing regime it was enacting, because both the text and legislative history reveal that compassionate release was intended to be an exception to that regime in the most extreme cases.
Phrased as an exception
“Safety valves”
Distinguishes nonretroactivity cases
Sure, your honor, but allowing defendants to reference legal errors in making compassionate release arguments does no violence to those limits, for a couple of reasons.
• First, these statutes place limits on when defendants are automatically entitled to relief as a result of a legal error. To adopt the Fourth Circuit’s reasoning in McCoy, there’s no conflict between cutting off automatic relief in the great majority of cases, while allowing for discretionary sentence modifications when, in certain extreme cases and under the totality of the circumstances, those legal errors contribute to a serious injustice.
• Moreover, Mr. Weller’s compassionate release motion does not subvert those limits, because he is not making arguments cognizable on direct appeal or habeas. I think that’s especially clear in this case, because it is effectively undisputed that an error at sentencing doubled Mr. Weller’s guidelines, resulting in five-plus-year swing between the correct low end and the erroneous low end. Thus, if compassionate release were a substitute for habeas or direct review, Mr. Weller’s victory would be assured. He would be entitled to relief.
• But no one is arguing that that’s the case here. Rather, Mr. Weller has to convince a district court that, in the totality of the circumstances, this legal error is working such a grave injustice that it rises to the level of extraordinary and compelling circumstances. That’s not a habeas or direct appeal argument. That’s a compassionate release argument.
Shouldn’t we enforce the more specific statute, i.e., statutes setting limits on direct review and habeas, over the more general statute, i.e., the compassionate release statute?
No, your honor. For the general/specific canon to apply, there must be a conflict between the statutes. And here, there is no conflict. To adapt the Fourth Circuit’s reasoning, there’s no conflict between cutting off automatic relief in the great majority of cases, while allowing for discretionary sentence modifications when, in certain extreme cases and under the totality of the circumstances, those legal errors contribute to a serious injustice.
• That’s especially true because the limits on direct appeal or habeas are finality doctrines, and the compassionate release statute is an express exception to finality. So that distinguishes this case from the nonretroactivity cases cited in the government’s brief.
In response to any arguments about how these facts are not E&C, so no legal errors are E&C]
Important to keep separate the legal question from the merits questions.
• District court made a legal ruling that redressible sentencing errors could never form part of the extraordinary and compelling analysis.
• If this Court adopts that ruling, then it would not matter how extreme the error was. Even an error that made years or decades worth difference could not support a compassionate release motion.
• If this Court adopts that ruling, then it would not matter whether the defendant had entered into a plea bargain with the government, or had
• Your honors are not deciding the merits of this compassionate release motion. So, the question before your honors is not whether your honors believe Mr. Weller’s circumstances are extraordinary and compelling.
• The question, instead, is whether judges are barred from considered legal errors as part of their analysis
• And of course, legal errors arise
You distinguished Lisi on the ground that Lisi talked about procedural unreasonableness. But on your logic, couldn’t someone raise procedural unreasonableness as an extraordinary and compelling reason?
Certainly a defendant could raise that argument, your honor, but there are many mechanisms to prevent unmeritorious motions from being granted.
• The most important is the one that Congress chose: the Sentencing Commission. The Sentencing Commission is not functioning currently will come back online sometime in the near future. They will study how compassionate release has played out under the First Step Act, and they will use their particular expertise to decide which circumstances courts can consider. Preempting the Sentencing Commission by categorically barring certain types of reasons is therefore both unnecessary to prevent floodgates problems, and interferes with Congress’s design in giving the Sentencing Commission power to set those limits.
• In the meantime, the statutory language, district courts’ sound discretion, and appellate court review are sufficient to filter out unmeritorious motions. There is little realistic chance that any such motion would be granted, and if it were,
• (If this court deprives district courts of discretion in this area, then there is no protection for people whose cases really are extraordinary and compelling. In that case, district courts would have no discretion to recognize legal errors even in the most compelling cases. Even when the error was extreme. Even when the person didn’t enter into a plea agreement or sign a waiver. Even when they had compelling reasons for not appealing. Even if the combination of factors in their case was compelling. No matter what, district courts would have to close their eyes to those errors.)
But the district courts are getting bombarded with these motions. We’re getting bombarded with these appeals. We need to start setting some boundaries to guide district courts’ discretion!
Hit the sentencing commission hard
And say that in the interim, courts can be trusted to implement a discretionary system without bright line rules
- I understand your honor’s concern, because of course our office has been flooded with requests too.
- But as the government is always quick to point out, Congress built in a mechanism for governing what it means for a circumstance to be extraordinary and compelling. And that’s the Sentencing Commission.
- The Sentencing Commission will eventually issue a new policy statement. And they will look at what has happened in the last few years and determine what kinds of reasons should be on the table. If things have gotten out of control, the Sentencing Commission will scale them back.
- But if this Court narrow the meaning of extraordinary and compelling, that will bind not only defendants, but the Sentencing Commission too. Your honors should not tie the Sentencing Commission’s hands on this. Your honors should wait until they’ve had a chance to weigh in.
But this isn’t a resentencing proceeding, right? That’s what Dillon says?
Agreed, your honor. But Mr. Weller isn’t seeking to relitigate the facts at sentencing. He asks for a sentence modification based on post-sentencing facts, including Wei Lin, the pandemic, his retroactive disqualification from RDAP, and other factors.
• Importantly, the Sentencing Commission has instructed courts that extraordinary and compelling reasons need not be unanticipated at the time of sentencing. So even if some of these post-sentence developments could have been anticipated at the time of sentencing, that does not disqualify them from consideration.
Without setting some limits on district courts’ discretion, aren’t we just setting ourselves up for totally desperate and bananas outcomes?
No, your honor, And I think here, some reasoning in Gazca-Ruiz is helpful.
• In adopting the abuse of discretion standard for most guidelines decisions in Gasca-Ruiz, this Court held that addressed the concern that that would give district courts too much discretion and result in disparate outcomes.
• But this Court, relying on Supreme Court precedent, reasoned that that concern should not carry the day. That’s because any serious disparities could be smoothed out by the Sentencing Commission, and other disparate outcomes were the natural result of legal standards that leave room for judgment, of which there are many.
• The same reasoning applies here. The Sentencing Commission is not functioning currently, but it will be in the near future, as soon as it gets a quroum. And when it is, it will study what has happened after the First Step Act. It will determine whether there really is a floodgates problem, and it will balance competing concerns to figure out the best solution. If this Court preempts the Sentencing Commission by imposing statutory limits, that will tie the Sentencing Commission’s hands and prevent it from doing the work with which Congress entrusted it.
Doesn’t your argument falls within the plain terms of the habeas statute?
No, your honor. The habeas statute allows defendants to challenge their custody on the ground that they are being kept in custody contrary to the laws of the United States. But Mr. Weller concedes that he is not being held in custody contrary to the laws of the United States. It is perfectly lawful to hold him in custody for the full length of his sentence.
• Rather, he is seeking a discretionary modification of a concededly valid sentence. And that kind of argument falls only within the plain terms of 3582(c)(1)(A)(i).
