Federal Career Offender Enhancement, Case Law Changes

In California, at the state court level, there have been a series of changes in sentencing laws (i.e., SB 1393, SB 620, AB 136, AB 180, AB 865) as well as the classification of certain crimes as felonies as misdemeanors (i.e., Prop 64, Prop 47).  Most of the laws are not retroactive to cases in which a sentence is final and defendant cannot file a request for resentencing.  Instead, resentencing may only be initiated by the Secretary of the CDCR, the Board of Parole Hearings or the District Attorney for the county wherein defendant was sentenced.

In federal court, things are different.  Under 18 U.S.C. § 3582, a prisoner can file a motion for a sentence reduction based on “extraordinary and compelling reasons.”  18 U.S.C. § 3582(c)(1)(A)(i) (“rehabilitation alone” is not extraordinary and compelling (United States v. Chen (9th Cir. 2022) 48 F. 4th 1092, 1098)).

This article is presented to alert readers with loved ones in federal custody that the many changes in California sentencing laws may have benefits to a person sentenced in federal court to a “career-offender enhancement” based on prior state court convictions that are now subject to resentencing.

The factual background of United States v. Jerramey Lyndell Roper is important to understand first.  In 2013, he pleaded guilty to possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A) and (c)(2).  The district court applied a “career offender enhancement” under U.S.S.G. § 4B1.1(a) to the sentence because Mr. Roper had at “two or more prior felony convictions for either a crime of violence or a controlled substance offense.”  Mr. Roper had four such convictions.  Mr. Roper was then sentenced to 204 months in federal prison. 

 

Over the next ten years, intervening case law disqualified three or Roper’s prior convictions as predicates for the career-offender enhancement.  If sentenced today, Roper would not qualify as a career offender under U.S.S.G. § 4B1.1(a).

Mr. Roper therefore moved for a sentence reduction in 2021 and although the district court concluded that Roper’s federal sentencing guideline range would be reduced to 140 to 175 months if he were resentenced at the time of the motion, it denied relief, believing itself categorically prohibited from considering changes to sentencing laws in determining whether “extraordinary and compelling reasons” warrant a reduction.

Mr. Roper then appealed this ruling to the U.S. Court of Appeals for the Ninth Circuit, which agreed with Mr. Roper that resentencing should be considered.

The Ninth Circuit explained that it was guided by the First Step Act, as interpreted by Concepcion v. United States (2022) 142 S. Ct. 2389, 2404, which held “the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence.”  The Ninth Circuit acknowledged that Concepcion dealt with a different provision of law than resentencing as contemplated by Chen, supra, “we found its understanding of the district court’s broad discretion equally applicable to § 3582(c)(1)(A) motions.

The Ninth Circuit then explained that the First, Second and Fourth Circuit have “kept the door open to motions” for sentence reduction based on such changes.  United States v. Williams (7th Cir., 2023) 65 F.4th 343, 348; see United States v. Trenkier (1st Cir. 2022) 47 F.4th 42, 48; United States v. Brooker (2d Cir. 2020) 976 F.3d 228, 237-38; and United States v. McCoy (4th Cir. 2020) 981 F.3d 271, 288.  In contrast, the Sixth, Seventh, Eighth and D.C. Circuits have found that decisional law cannot be considered an extraordinary and compelling reason for sentence reduction.  See United States v. McCall (6th Cir. 2022) 56 F.4th 1048, 1065-66; United States v. Brock (7th Cir. 2022) 39 F.4th 462, 465-66; United States v. Crandall (8th Cir.) 25 F.4th 582, 586, cert. denied, 142 S. Ct. 2781; United States v. Jenkins (D.C. Cir. 2022) 50 F.4th 1185, 1200.

The Ninth Circuit then moved onto a closer look at Concepcion and Chen, noting that Chen, which addressed post-conviction changes in statutory sentencing law, held that “a district court’s discretion in sentence modifications is limited only by an express statement from Congress.” Chen, 48 F.4th at 1096. 

The logic of that holding, which rested on Concepcion, applies with full force when the relevant change in sentencing law is decisional.  Indeed, Concepcion expressly cited § 3582(c) in concluding that Congress knew how to “cabin district courts’ discretion” to determine eligibility for sentence reduction.  Concepcion, 142 S. Ct. at 2401.  However, Congress did not limit such discretion.

The Ninth Circuit therefore vacated the district court’s ruling and remanded for the district court to consider the motion anew.