United States v. McCall

• Decision Date: 22 December 2022
• Docket Number: 21-3400
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David E. MCCALL, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

56 F.4th 1048

UNITED STATES of America, Plaintiff-Appellee,

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

No. 21-3400

United States Court of Appeals, Sixth Circuit.

Argued En Banc: June 8, 2022

Decided and Filed: December 22, 2022

ARGUED EN BANC: Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Eric J. Feigin, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON SUPPLEMENTAL BRIEF: Vanessa F. Malone, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Akron, Ohio, for Appellant. Rebecca Chattin Lutzko, Matthew B. Kall, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: SUTTON, Chief Judge; MOORE, COLE, CLAY, GIBBONS, GRIFFIN, KETHLEDGE, WHITE, STRANCH, DONALD, THAPAR, BUSH, LARSEN, NALBANDIAN, READLER, and MURPHY, Circuit Judges.^*

NALBANDIAN, J., delivered the opinion of the court in which SUTTON, C.J., and GRIFFIN, KETHLEDGE, THAPAR, BUSH, LARSEN, READLER, and MURPHY, JJ., joined. MOORE, J. (pp. 1066-74), delivered a separate dissenting opinion in which COLE, CLAY, WHITE, STRANCH, and DONALD, JJ., joined. GIBBONS, J. (pp. 1074-76), also delivered a separate dissenting opinion.

NALBANDIAN, Circuit Judge.

David McCall, a federal prisoner with a long drug-dealing career, pleaded guilty to a conspiracy charge involving heroin possession and distribution in 2015. Five years into his 235-month sentence, McCall moved for compassionate release under 18 U.S.C. § 3582(c)(1). Although he cited several "extraordinary and compelling reasons" justifying a sentence reduction under that statute, the heart of his motion rested on our opinion in Havis . Invoking that opinion, McCall argued that if he were sentenced today, he would receive a shorter sentence than he received in 2015. The district court denied his motion, reasoning that a nonretroactive change in sentencing law could not amount to an "extraordinary and compelling" reason for a sentence reduction. We agree and affirm.

I.

David McCall served as a middleman in a sprawling drug-trafficking conspiracy. From 2011 to 2013, he supplied lower-level dealers in Cleveland with heroin and cocaine smuggled in from Chicago and Atlanta. The United States indicted him, along with 59 of his coconspirators, in a 196-count indictment in 2013. Faced with multiple charges, McCall struck a deal with the government. He pleaded guilty to one count of conspiracy to possess with intent to distribute heroin. And in exchange, the United States agreed to drop its remaining facilitation and substantive distribution charges.

This plea proved only the latest chapter in McCall's drug-dealing career. Beginning in 1994, McCall racked up multiple Ohio felony convictions, many of them for drug trafficking. For sentencing purposes, these convictions cemented McCall's status as a career offender and raised his base-offense level from 24 to 34. A few more adjustments resulted in a Sentencing Guidelines range of 188–235 months. The government, emphasizing McCall's extensive criminal history, urged the district court to sentence McCall to 235 months. McCall, for his part, didn't object to the career-offender classification. In the end, the district court sentenced McCall to 235 months’ imprisonment and to four years of supervised release.

McCall served five years of that sentence before he moved for a sentence reduction under the compassionate-release statute. That statute allows a district court to lower a defendant's sentence if (among other things) "extraordinary and compelling reasons" warrant a reduction. 18 U.S.C. § 3582(c)(1)(A)(i).

Two changes in law spurred McCall's motion. First, Congress amended the compassionate-release statute. Historically, only the Bureau of Prisons could move for a sentence reduction. See United States v. Ruffin , 978 F.3d 1000, 1003 (6th Cir. 2020). The First Step Act of 2018 changed this by allowing prisoners to file their own requests when the "Bureau refused to do so." Id. at 1003–04. Second, our en banc court decided United States v. Havis , 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). That decision held that attempted drug-trafficking offenses are not controlled substance offenses sufficient to trigger the career-offender enhancement. See id. at 387 ; see also United States v. Cordero , 973 F.3d 603, 626 (6th Cir. 2020) (concluding that drug-conspiracy convictions do not fall within the Guidelines’ definition of "controlled substance offense" after Havis for purposes of determining whether an individual is a career offender).

Invoking these changes, McCall raised five "extraordinary and compelling reasons" that he believed merited a lower sentence, three of which are relevant here. (R. 2109, Mot. For Sentence Reduction, PageID 17033.) First, his risk of contracting COVID-19. Second, his rehabilitative efforts in prison. And third (and most importantly), Havis ’s effect on his status as a career offender. McCall argued that had he been sentenced after Havis , most of his prior convictions would not have qualified as predicate offenses for the career-offender enhancement. And without that enhancement, McCall asserted his 235-month sentence stood in "stark contrast ... to the sentence he would likely receive ... today." (R. 2134, Supp. Mot., PageID 17219.)

The district court denied McCall's petition. Although McCall mentioned the COVID-19 pandemic, he supplied no "health concern that put[ ] him at risk ...." (R. 2143, Order, PageID 17307.) As for McCall's Havis argument, the court noted that Havis "[was] not retroactive, nor would it support a claim on collateral relief." (Id. ) And it declined to let McCall "sidestep normal post-conviction requirements" with a compassionate-release motion. (Id. ) That left rehabilitation, which could not support McCall's motion on its own. See 28 U.S.C. § 994(t) ("Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.").

McCall appealed, arguing that a "subsequent legal clarification" could satisfy the "extraordinary and compelling" reason requirement. (Appellant Br. at 7.)

By the time we resolved his appeal, at least five of our published decisions had considered, albeit with some nuance and distinctions, whether a nonretroactive change in sentencing law could support a finding of "extraordinary and compelling reasons" warranting relief. 18 U.S.C. § 3582(c)(1)(A)(i). Four of those decisions answered no, and one decision answered a qualified yes. Compare United States v. Tomes , 990 F.3d 500, 505 (6th Cir. 2021) (no), cert. denied , ––– U.S. ––––, 142 S. Ct. 780, 211 L.Ed.2d 487 (2022), United States v. Wills , 997 F.3d 685, 688 (6th Cir. 2021) (no), United States v. Jarvis , 999 F.3d 442, 443–44 (6th Cir. 2021) (no), cert. denied , ––– U.S. ––––, 142 S. Ct. 760, 211 L.Ed.2d 476 (2022), and United States v. Hunter , 12 F.4th 555, 564 (6th Cir. 2021) (no), cert. denied , ––– U.S. ––––, 142 S. Ct. 2771, 213 L.Ed.2d 1008 (2022), with United States v. Owens , 996 F.3d 755, 763 (6th Cir. 2021) (explaining that the "combination" of a nonretroactive change in sentencing and other factors could "warrant[ ]" compassionate release). When it came to McCall's appeal, a divided panel answered yes, reversing and remanding so that the district court could consider "the actual impact of Havis with respect to McCall's prior state convictions." United States v. McCall , 20 F.4th 1108, 1115 (6th Cir. 2021).

We granted en banc review to resolve the "intractable" "intra-circuit split" created by the decision. Id. at 1116 (Kethledge, J., dissenting).

II.

We first stop to consider the history of compassionate release, along with its current framework. Hardly a new remedy, the modern-day version of the statute dates to the Sentencing Reform Act of 1984. Pub. L. No. 98-473, Title II, ch. II, § 212, 98 Stat. 1837. That Act marked the culmination of a reform movement dedicated to reducing perceived uncertainty and disparity that had been a part of federal sentencing law for decades.

The parole system was partially to blame for these problems. First established by Congress in 1910, the system vested discretion in federal parole authorities, not judges, to decide when a prisoner's sentence ended. See An Act to Parole United States Prisoners, and for Other Purposes, ch. 387, 36 Stat. 819, 819–21 (1910) (creating a federal parole system). Designed with rehabilitation in mind, the goals of the parole system were twofold: provide "the incentive for rehabilitation" and "the possibility of an expert determination that a prisoner had been rehabilitated and should be released from confinement." Kate Stith & José A. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 18 (1998); see also Mistretta v. United States , 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ("Both indeterminate sentencing and parole were based on concepts of the offender's possible, indeed probable, rehabilitation ....").

Most agree that these goals, though noble in theory, failed in fact. Rehabilitation, long the cornerstone of federal sentencing and the parole system, fell out of favor with scholars, reformers, and critics of all stripes by the 1970s.¹ Critiques abounded. Some blamed the parole system's uncertainty and indeterminacy for increasing anxiety among prisoners. See Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines , 28 Wake Forest L. Rev. 223, 227 (1993). And many faulted it for producing "[s]erious disparities" in sentences. Mistretta , 488 U.S. at 365, 109 S.Ct. 647 ; see also Stith & Koh, supra , at 227.

Congress responded with the Comprehensive Crime Control Act of 1984. A watershed statute, it left few areas of federal criminal law untouched. Sentencing law proved no exception. Title II of the scheme, the Sentencing Reform Act mentioned above, lived up to its name and represented the results of a movement determined to eliminate rehabilitative goals and indeterminacy in...