The Tom Norrid Law Firm
SAMARITAN PROJECTS LLC
4415 Gladstone Blvd.
Kansas City. MO 64123-1238
417-236-1179
ALERT – November 3, 2024
U.S.S.G. 1B1.13(b)(6).
United States v. Rutherford, 2024 U.S. App. LEXIS 27740 (3d Cir. Nov, 1, 2024).
Daniel Rutherford sought a reduction of the nearly 42.5-year sentence he received for committing two armed robberies. He argues that he is eligible for compassionate release because, if he were sentenced for those crimes today, his sentence would be at least eighteen years less than the one he received. That sentencing disparity results from changes effected by the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), which, among other things, made a nonretroactive change to the penalties for violating 18 USC 924(c), the federal statute that forbids using or carrying a firearm in furtherance of drug trafficking or a crime of violence. The District Court denied Rutherford's sentence-reduction motion, holding that our precedent in United States v. Andrews, 12 F.4th 255 (3d Cir. 2021), prohibits the change to 924(c) from being a consideration when determining eligibility for compassionate release. The courts of appeals are split over whether the First Step Act's nonretroactive changes to certain mandatory minimums could be considered an extraordinary and compelling reason to grant a sentence reduction. The First, Fourth, Ninth, and Tenth Circuits said such changes could be considered, while the Sixth, Seventh, Eighth, and D.C. Circuits said they could not. We considered the issue in United States v. Andrews, 12 F.4th 255 (3d Cir. 2021), the details of which are described herein. In promulgating subsection (b)(6), the Commission agreed with the "circuits that authorize a district court to consider non-retroactive changes in the law as extraordinary and compelling circumstances[,] ... [but] only in narrowly circumscribed circumstances." 88 Fed. Reg. at 28,258. Breaking it down, the newly revised Policy Statement provides that a nonretroactive change in law "may be considered in determining whether the defendant presents an extraordinary and compelling reason" when (1) "a defendant received an unusually long sentence[,]" (2) the defendant "has served at least 10 years of the term of imprisonment," (3) an intervening law change has produced a "gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed," and (4) after the court gives "full consideration of the defendant's individualized circumstances." USSG 1B1.13(b)(6). Notably, because (b)(6) states that changes in law may (not must) be considered, judges are not required to consider a change in law when determining a prisoner's eligibility for compassionate release. Thus, (b)(6) gives judges the opportunity, but not a mandate, to consider changes in the law under the defined circumstances. Judges therefore have two levels of discretion under (b)(6): first, whether to consider a change in law when determining a prisoner's eligibility for compassionate release, and second, the usual discretion when deciding if an eligible prisoner should receive a sentence reduction after considering the 18 USC 3553(a) factors. The question of what, if any, effect (b)(6) has on our precedent is purely a legal one, and it is indeed a question of public importance — there are many people in prison whose sentences will be affected by our decision. And resolving the question will serve the interests of judicial efficiency. If we refrain from deciding it, the various district courts that are, at present, grappling with the question may reach divergent conclusions. We agree with the government that subsection (b)(6) in the amended Policy Statement, as applied to the First Step Act's modification of 924(c), conflicts with the will of Congress and thus cannot be considered in determining a prisoner's eligibility for compassionate release. Congress explicitly made the First Step Act's change to 924(c) nonretroactive. Pub. L. No. 115-391, 403(b), 132 Stat. 5194, 5222. And, in Andrews, we held that it would be inconsistent "with [the] pertinent provisions of [the First Step Act]," 28 USC 994(a), to allow the amended version of 924(c) to be considered in the compassionate release context because "Congress specifically decided that the changes to the 924(c) mandatory minimums would not apply to people who had already been sentenced." Andrews, 12 F.4th at 261. In sum, the amended Policy Statement conflicts with Andrews, and Andrews controls. Therefore, the First Step Act's change to 924(c) cannot be considered in the analysis of whether extraordinary and compelling circumstances make a prisoner eligible for compassionate release.
THE SAMARITAN PROJECT BELIEVES THIS CASE WILL GO TO THE SUPREME COURT. RUTHERFORD HAS A LOT A SUPPORT. FAMM FILED AN AMICUS. THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE ATTORNEYS FILED AN AMICUS. SENATOR CORY BOOKER FILED AN AMICUS. DICK DURBIN FILED AN AMICUS. RUTHERFORD NEEDS A QUICK GRANT OF CERT SO THAT HIS CASE CAN GET BRIEFED AND ARGUED SO THAT HE GET A DECISION BY THE END OF THE TERM. OTHERWISE EVERYONE HAS TO WAIT UNTIL NEXT YEAR, OCTOBER 2025.
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