United States v. McKinnie

• Decision Date: 26 January 2022
• Docket Number: No. 21-3608,21-3608
• Citation: 24 F.4th 583
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brandon MCKINNIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

24 F.4th 583

UNITED STATES of America, Plaintiff-Appellee,

v.Brandon MCKINNIE, Defendant-Appellant.

No. 21-3608

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 26, 2022

ON BRIEF: Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

Before: SILER, KETHLEDGE, and READLER, Circuit Judges.

OPINION

CHAD A. READLER, Circuit Judge.

Brandon McKinnie appeals the denial of his motion seeking a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). He believes that he presented numerous extraordinary and compelling reasons to support the reduction, including the Havis error in his original sentencing, none of which were accepted by the district court. We agree with the district court that McKinnie's arguments lack merit and therefore affirm.

BACKGROUND

Brandon McKinnie is a recidivist drug dealer. In 2011, a federal judge sentenced him to six months of imprisonment and three years of supervised release for conspiring to distribute crack cocaine. Less than two years later, McKinnie was sentenced in Ohio state court for attempted drug trafficking. And a few years after that, McKinnie returned to federal court to plead guilty to three other federal drug crimes, for which he was sentenced to 151 months’ imprisonment. In imposing that sentence, the district court, over McKinnie's objection, concluded that McKinnie was a career offender under U.S.S.G. § 4B1.1 because he had two prior convictions for controlled substance offenses: the 2011 crack cocaine conspiracy and the attempted trafficking offense. The career offender designation meant that McKinnie's Guidelines range increased from 60 to 71 months to 151 to 188 months. We dismissed McKinnie's subsequent appeal because his plea agreement waived that right.

After McKinnie's sentence became final, our en banc Court decided United States v. Havis , 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). We held there that an attempt crime is not a predicate "controlled substance offense" within the meaning of § 4B1.1. Id. at 387 ; see § 4B1.1 cmt. n.1. Invoking Havis , McKinnie petitioned for relief under 28 U.S.C. § 2255, asserting that his sentence was unlawful because attempted trafficking and drug conspiracy could not serve as the basis for his career offender sentencing enhancement. The district court, however, denied McKinnie's petition. Relying on our decision in Bullard v. United States , 937 F.3d 654 (6th Cir. 2019), the district court concluded that error in calculating the advisory Guidelines range, such as a Havis error, is not cognizable on collateral review, where relief is available only when a sentence violates the Constitution or a federal statute. As a result, although McKinnie's career offender designation was seemingly a Havis error, the district court denied collateral relief. McKinnie's subsequent appeal was dismissed for want of prosecution.

McKinnie separately moved for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A), citing the Havis error, his obesity and hypertension, and the risk of contracting COVID-19 as "extraordinary and compelling reasons to reduce his sentence." The district court denied the motion. We later vacated the district court's decision and remanded the matter so that the district court could consider McKinnie's motion with the benefit of our recent decisions addressing § 3582(c)(1)(A).

On remand, the district court again denied McKinnie's motion, concluding that McKinnie failed to provide any extraordinary and compelling reasons to reduce his sentence. In the eyes of the district court, (1) Havis error was not, as a matter of law, an extraordinary and compelling reason under § 3582(c)(1)(A) ; (2) McKinnie's vaccination against COVID-19 mitigated his risk of infection; (3) his obesity and hypertension were insufficient to grant relief; and (4) his potential rehabilitation was not an extraordinary and compelling reason to reduce his sentence. McKinnie timely appealed.

ANALYSIS

We review the denial of a motion seeking a sentence reduction under 18 U.S.C. § 3582(c)(1)(A) for abuse of discretion. United States v. Ruffin , 978 F.3d 1000, 1005 (6th Cir. 2020). "A district court abuses its discretion when it applies the incorrect legal standard, misapplies the correct legal standard, or relies upon clearly erroneous findings of fact." United States v. Moore , 582 F.3d 641, 644 (6th Cir. 2009) (quoting United States v. Pugh , 405 F.3d 390, 397 (6th Cir. 2005) ).

Federal law authorizes a district court to reduce a defendant's sentence if the court finds that (1) "extraordinary and compelling reasons" warrant a reduction, (2) a reduction is "consistent with applicable policy statements issued by the Sentencing Commission," and (3) the § 3553(a) factors, to the extent applicable, support a reduction. Ruffin , 978 F.3d at 1003 (quoting § 3582(c)(1)(A) ). Currently, no policy statement applies where a defendant (as opposed to the Bureau of Prisons) files a motion seeking a sentence reduction (sometimes known in our case law as "compassionate release"). United States v. Sherwood , 986 F.3d 951, 953 (6th Cir. 2021). A district court, therefore, must deny a defendant's motion if the defendant fails to show either that extraordinary and compelling reasons warrant a sentence reduction or that the § 3553(a) factors support a reduction. Id. at 954 ; United States v. Hampton , 985 F.3d 530, 531 (6th Cir. 2021).

1. We begin with McKinnie's claim that Havis error is an "extraordinary and compelling reason" to grant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). Recall that McKinnie's sentence was enhanced due to his prior attempted drug trafficking and drug conspiracy convictions. Yet Havis , which issued later, held that attempted trafficking offenses do not trigger the career offender enhancement. See Havis , 927 F.3d at 387 ; see also United States v. Butler , 812 F. App'x 311, 314 (6th Cir. 2020) (applying Havis to conclude that the Guidelines’ definition of "controlled substance offense" does not include drug conspiracies). McKinnie touts that development as an "extraordinary and compelling reason" justifying his release.

Guiding our review are the abundant decisions in our circuit addressing how new legal developments factor into our consideration of § 3582(c)(1)(A) motions. Start with United States v. Wills and United States v. Tomes . Both decisions rejected inmates’ claims that the First Step Act's non-retroactive amendment to statutory mandatory minimums for certain controlled substance offenses were extraordinary and compelling reasons that justified a sentence reduction under § 3582(c)(1)(A)(i). United States v. Wills , 997 F.3d 685, 688 (6th Cir. 2021) (order); United States v. Tomes , 990 F.3d 500, 505 (6th Cir. 2021). Not long thereafter, United States v. Jarvis reached the same conclusion as to the First Step Act's non-retroactive changes to 18 U.S.C. § 924(c)(1) ’s mandatory minimum. 999 F.3d 442, 443, 445 (6th Cir. 2021).

More recently, we confronted the question posed by McKinnie's appeal—whether new judicial decisions concerning the Guidelines are "extraordinary and compelling" reasons to modify an inmate's sentence. See United States v. Hunter , 12 F.4th 555 (6th Cir. 2021). Hunter concerned a prisoner who had been sentenced before the Supreme Court's decision in United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which held that the Guidelines are advisory, rather than mandatory. Hunter , 12 F.4th at 560. The district court found Booker ’s non-retroactive change in sentencing law to be a factor supporting a finding of "extraordinary and compelling reasons" justifying release. Id. at 563. We reversed. Id. Acknowledging our decisions in Jarvis , Tomes , and Wills , we explained that "[t]he fact that [a] case involves non-retroactive precedent, as opposed to statutes, is no reason to take a different approach" because "[w]e are required to follow statutes and binding precedent." Id. at 564. And in view of cases holding that Booker does not apply retroactively to final convictions, we reasoned that "[j]ust as courts cannot use § 3582(c)(1)(A) as an ‘end run around’ Congress’ retroactivity choices, courts cannot use that statute to circumvent binding precedent declaring the non-retroactive effect of new rules of criminal procedure." Id. at 565 (citation omitted). We thus instructed courts reviewing § 3582(c)(1)(A) motions to consider non-retroactive precedential developments only when weighing the § 3553(a) factors. Id. at 568–69.

That instruction applies in the Havis setting too. Federal sentencing law presumes that judicial decisions are not retroactive. Hunter , 12 F.4th at 563–64. We see no basis to upset that presumption here. Cf. Alexander v. United States , No. 19-4005, 2020 WL 6111201, at *2 (6th Cir. June 30, 2020) ("[O]ur decision in Havis is not a new rule of constitutional law that the Supreme Court has made retroactive."). And McKinnie cites no authority to the contrary. Accordingly, because Havis does not apply retroactively, a Havis error is not an extraordinary and compelling reason to modify an inmate's sentence under § 3582(c)(1)(A)(i).

True, as McKinnie notes, unlike the express non-retroactivity language in the First Step Act, there is no similar statutory provision excluding non-retroactive judicial decisions from qualifying as "extraordinary and compelling reasons" to reduce an inmate's sentence. But that fact must be balanced against the understanding that the anti-retroactivity doctrine lies at the core of federal sentencing law. Indeed, the "ordinary practice" in federal sentencing law "is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced." Dorsey v. United States , 567 U.S. 260, 280, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012). That is so because finality is "essential to the...