Ninth Circuit Holds that District Courts May Consider FIRST STEP Act's Non-Retroactive Changes in Compassionate Release Motions: Chen

United States v. Chen, No. 20-50333 (9th Cir. 2022)

In 2007, Chen was convicted of six drug-related counts and two counts of possession of a firearm, in violation of 18 U.S.C. 924(c). In 2008, at the time Chen was sentenced, 924(c) required imposition of mandatory minimum 5 years for a defendant’s first 924(c) conviction, and a mandatory minimum consecutive sentence of 25 years for “a second or subsequent” 924(c) conviction. Under this statutory scheme, Chen was sentenced to 48 months for the six drug offenses, 60 months on his first 924(c) conviction, and 300 months on his second 924(c), resulting in a total term of 408 months imprisonment.

When Congress passed the First Step Act of 2018 into law, it altered the statutory penalties for “stacked” 924(c) convictions-no longer requiring a mandatory minimum 25 years for second or subsequent 924(c) convictions if the first conviction had not yet become “final.” The First Step Act also changed 18 U.S.C. 3582(c)(1)(A) to allow defendants to bring motions for reductions in sentence, commonly known as a motion for compassionate release.

After passage of the First Step Act, a split among circuit courts has risen regarding whether the non-retroactive changes made by the First Step Act, such as the unstacking of 924(c) convictions, qualifies as “extraordinary and compelling circumstances” that can be brought in a 3582(c)(1)(A) motion.

In 2020, Chen filed his 3582(c)(1)(A) motion for compassionate release and argued that the changes to 924(c) stacking constituted a cognizable claim for reducing his sentence. If Chen were sentenced today, his second 924(c) would require only a 60-month sentence, instead of the 25 years he received in 2008.

The district court denied Chen’s motion, concluding that the non-retroactive changes made by the First Step Act cannot be considered when assessing whether a defendant has shown extraordinary and compelling reasons for a reduction in sentence under 3582(c)(1)(A). Chen appealed the district court’s decision to the Ninth Circuit.

The Ninth Circuit noted the deep split concerning this issue. The Third, Seventh, and Eighth Circuits have ruled that district courts may not consider these non-retroactive changes, whether alone or in combination with other factors, in a compassionate release motion. On the other hand, the First, Fourth, and Tenth Circuits have expressly held that these changes made by the First Step Act, in combination with other factors, may constitute extraordinary and compelling circumstances warranting a reduction in sentence.

The Ninth Circuit joined the First, Fourth, and Tenth Circuits and concluded that district courts may consider non-retroactive changes in sentencing law, in combination with other factors particular to the individual defendant, when analyzing extraordinary and compelling reasons for purposes of 18 U.S.C. 3582(c)(1)(A). Because the district court refused to consider Chen’s non-retroactive amendment argument, judgment of the district court was vacated and the case remanded for reconsideration consistent with the Ninth Circuit’s opinion.