Jan 15, 2022

Introduction

    “‘[A]n aircraft hijacker ..., a terrorist who detonates a bomb ..., a second-degree murderer, [and] a rapist’ ... would all be subject to less harsh sentences” than Marion Hungerford.¹ In 2005, a federal court had no choice but to sentence Hungerford, a woman with severe borderline personality disorder and no criminal history, to 159 years in federal prison.² Although Hungerford never handled a gun, she was convicted of seven counts of using a firearm during a crime of violence under 18 U.S.C. § 924(c).³ The Ninth Circuit upheld her sentence, but not without condemning the “irrational, inhumane, and absurd” mandatory minimum sentencing scheme that left the court with no alternative.⁴

    Section 924(c) criminalizes the use of a firearm during a crime of violence or drug trafficking offense and provides harsh mandatory minimum sentences.⁵ These sentences must be served consecutively with the underlying crime and with each other.⁶ For instance, a defendant convicted of two § 924(c) violations arising from a robbery would first serve the sentence imposed for robbery.⁷ The defendant would then serve the first § 924(c) sentence, followed by the second § 924(c) sentence.⁸

    A defendant’s first § 924(c) charge carries a five-, seven-, or ten-year sentence for possessing, brandishing, or discharging a firearm, respectively.⁹ This portion of the law remains the same today; however, the First Step Act substantively changed § 924(c) for the better by limiting the potential sentence of a defendant charged with two or more counts of § 924(c) in the same indictment.¹⁰

    Before the First Step Act (FSA) passed on December 21, 2018, federal courts were required to “stack” multiple § 924(c) counts.¹¹ This meant that second and subsequent convictions, even when arising out of the same course of conduct, carried harsher penalties than the first conviction.¹² In other words, defendants with no criminal history were treated as repeat offenders and accordingly received harsher sentences. Under the prior version of § 924(c), each stacked sentence carried an additional twenty-five years; as a result, defendants faced greater-than-life sentences.¹³ Take Marion Hungerford’s sentence as an illustration of this pre-FSA sentencing scheme. Hungerford was sentenced to four years for one count of conspiracy and seven counts of robbery because all eight counts ran concurrently.¹⁴ She received five additional years—which ran consecutively—for her first § 924(c) conviction because her co-defendant carried a gun during the robberies.¹⁵ Hungerford faced six additional § 924(c) charges, and for each of these charges she received an additional twenty-five years, adding up to 155 years.¹⁶ So, 155 years of Hungerford’s total 159-year sentence were based solely on possessing a gun, which she in fact never carried.

    Congress recognized these sentencing injustices and eliminated the stacking provision of § 924(c) in the First Step Act.¹⁷ Under the new scheme, multiple § 924(c) convictions arising out of the same indictment are no longer considered “second or subsequent” to the first and thus do not carry enhanced twenty-five-year sentences.¹⁸ In other words, first time § 924(c) offenders are no longer sentenced as if they were repeat, career criminal offenders. As a result of this change, second and subsequent convictions now carry the same sentence length as the first conviction: five, seven, or ten years.¹⁹ Had Hungerford been sentenced in 2019, she would have received thirty-five years on gun charges alone (seven five-year sentences), and her total sentence would have amounted to thirty-nine years (adding an additional four years for conspiracy and robbery).²⁰ Under the new statutory scheme, Hungerford’s sentence would be 120 years less than her 2005 sentence. Of note, this significant change in law— which, in cases like Hungerford’s, results in removing over a century’s worth of time from a sentence—was not made retroactive.²¹

    Fortunately, the First Step Act did not preclude Hungerford from relief. “In an exceedingly rare turn of events,” a new prosecutor looked at Hungerford’s case, “recognized the egregious injustice that had been done,” and agreed to reduce her sentence to seven years.²² Because Hungerford had already served seven years, she was eligible for release shortly thereafter.²³ Many inmates, however, are not afforded the same extraordinary prosecutorial discretion and instead remain behind federal prison bars serving decades upon decades of time under the previous § 924(c) sentencing scheme.

    Although Congress did not retroactively apply its changes to § 924(c),²⁴ it provided a glimmer of hope to defendants sentenced under the old scheme. The First Step Act, in addition to changing § 924(c), significantly altered the compassionate release process.²⁵ In particular, Congress intended to increase the use of “compassionate release,” the process of reducing a federal inmate’s sentence based on “extraordinary and compelling reasons.”²⁶ Before December 21, 2018, wardens within the Bureau of Prisons (BOP) could file a motion for compassionate release with the courts based on certain limited factors: terminal illness, age, extenuating family circumstances, and other “extraordinary and compelling reason[s]” as “determined by the Director of the Bureau of Prisons.”²⁷ Thus, the BOP functioned as the sole gatekeeper of the release process.²⁸ Congress, aiming to “[i]ncreas[e] the use and transparency of compassionate release,” transferred this power to inmates, empowering them to petition the courts directly for release.²⁹

    Once a defendant files a motion for compassionate release, the court has the discretion to reduce the defendant’s sentence after considering the sentencing factors listed in 18 U.S.C. § 3553(a), if the court finds that “extraordinary and compelling reasons” warrant a reduction.³⁰ Importantly, one of the sentencing factors in § 3553(a) that the court must consider is “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”³¹

    This Note argues that courts are empowered to, and should, grant compassionate release based solely on the sentencing disparities created by the First Step Act—specifically, the significant changes to § 924(c)’s sentencing scheme. Recently, district courts across the country have granted motions for compassionate release based on these sentencing disparities coupled with the COVID-19 pandemic or significant rehabilitation.³² The pandemic and rehabilitation, however, are relatively minor reasons for release when compared to the injustice of defendants serving decades or centuries of time greater than what Congress now deems sufficient.³³ The First Step Act provides courts significantly more power and discretion to reduce sentences based on extraordinary and compelling reasons.³⁴

    Clearly, Congress found these unjust sentences—like Hungerford’s—extraordinary and compelling enough to warrant a fundamental change in the law. Although Congress did not apply § 924(c)’s new sentencing scheme retroactively, this does not detract from this Note’s argument. Congress likely saw a logistical nightmare with releasing each defendant whose sentence would be markedly lower under the new § 924(c) sentencing scheme, and instead intended for a slower, individualized process through the courts’ new compassionate release power.³⁵ Thus, this Note argues that district courts need not examine defendants’ rehabilitation efforts or health records when granting compassionate release motions based on sentencing disparities. It is within the district courts’ power and discretion to remedy these unjust sentences by pointing to the sentencing disparity alone.

    Part I of this Note provides background on the two relevant sections of the First Step Act: changes to the compassionate release process and changes to the § 924(c) sentencing scheme. Part II examines recent district court opinions addressing § 924(c) sentencing disparities as “extraordinary and compelling reasons” for reduced sentences. Part III argues that courts are empowered to grant compassionate release to inmates convicted of multiple § 924(c) charges under the old sentencing scheme because of the sentencing disparities the First Step Act created. Finally, the Note concludes by urging courts to take the second step Congress was unwilling to take itself.

I. The First Step Act: Creating Both the Problem and the Solution

    Because Congress did not make its changes to the § 924(c) stacking provision retroactive, defendants must seek relief from their unjust sentences through the compassionate release process. A defendant must convince a district court that it has the discretion to determine what constitutes “extraordinary and compelling” reasons for release, and that the non-retroactivity of the § 924(c) amendment alone constitutes an “extraordinary and compelling” reason for release.³⁶

A. The Redeeming Feature of the First Step Act: Compassionate Release Under 18 U.S.C. § 3582

    As part of the Sentencing Reform Act of 1984, Congress enacted compassionate release, which allows federal prisoners to request a sentence reduction based on “extraordinary and compelling” reasons.³⁷ The Act abolished federal parole;³⁸ as such, compassionate release was created as a “safety valve” to remedy the resulting injustices.³⁹ Initially, the BOP acted as the sole gatekeeper for compassionate release requests, as Congress granted the BOP “unlimited and unreviewable discretion.”⁴⁰ However, the BOP did not file for compassionate release on behalf of inmates as often as Congress had intended.⁴¹ As a result, Congress significantly altered the process in the First Step Act of 2018.⁴² The compassionate release statute, 18 U.S.C. § 3582(c)(1)(A), now allows defendants to petition the court directly for release should the BOP deny or ignore their request for release.⁴³ This change effectively strips the BOP of its gatekeeping role and empowers courts with a significant amount of discretion.⁴⁴ However, the compassionate release process is complex, and portions of the relevant law have not been updated to reflect the new amendment to § 3582.⁴⁵

    1. The Compassionate Release Statute

    Section 3582(c) is the compassionate release statute;⁴⁶ it governs the modification of an imposed sentence based on extraordinary and compelling reasons.⁴⁷ The First Step Act amended the statute, empowering district courts to consider motions filed by defendants directly rather than consider ones only filed by the BOP.⁴⁸ Now, a defendant can bring a motion whenever he or she “has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf,” or after “the lapse of 30 days from the receipt of such request by the warden of the defendant’s facility, whichever is earlier.”⁴⁹

    Once a motion is before the court, whether filed by a defendant or the BOP, § 3582(c) requires the court to consider the applicable sentencing factors set forth in 18 U.S.C. § 3553(a).⁵⁰ Two factors are particularly relevant to this Note: (1) “the need for the sentence imposed,”⁵¹ and (2) “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”⁵²

    After considering these factors, the court may reduce a sentence if it finds that (1) “extraordinary and compelling reasons warrant such a reduction”; and (2) “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”⁵³ It is the United States Sentencing Commission’s role in the amended compassionate release process that sparks controversy.⁵⁴

    2. The Sentencing Commission’s Outdated Policy Statement

    When Congress created compassionate release in § 3582(c), it mandated that the Sentencing Commission define the phrase “extraordinary and compelling.”⁵⁵ Specifically, 28 U.S.C. § 994(t) requires the Commission to complete three steps: (1) identify “what should be considered extraordinary and compelling reasons for sentence reduction” under § 3582(c); (2) include the appliable criteria; and (3) provide a list of specific examples.⁵⁶ Congress made clear, however, that the Commission should not define the defendant’s rehabilitation alone as an “extraordinary and compelling” reason for release.⁵⁷

    Before November of 2007, the Sentencing Commission simply did not comply with § 994(t).⁵⁸ Its policy statement for § 3582(c), enumerated in the sentencing guidelines at section 1B1.13, did not define “extraordinary and compelling” reasons for sentence reductions or provide the applicable criteria.⁵⁹ Instead, it recapitulated § 3852(c): it simply said that the BOP could determine what constituted “extraordinary and compelling” without providing any examples of what that could look like.⁶⁰ Thus, the BOP truly had complete discretion when making this determination as Congress and the Commission provided the BOP with no guidance.⁶¹ Nevertheless, the compassionate release process continued without the criteria and examples the Commission should have issued.

    The Sentencing Commission finally followed Congress’s directive in late 2007.⁶² The Commission provided factual criteria and examples for the BOP to consider when determining whether an inmate had “extraordinary and compelling” reasons for release.⁶³ In particular, it listed four overarching categories of “[e]xtraordinary and compelling reasons”: (1) the defendant’s medical condition (often terminal illness); (2) age; (3) family circumstances; and (4) a catch-all provision for other reasons.⁶⁴

    The catch-all provision is most important to defendants similarly situated to Marion Hungerford—defendants who were sentenced under the prior § 924(c) sentencing scheme.⁶⁵ The catch-all provision provides that “an extraordinary and compelling reason other than, or in combination with” the other three categories may be determined by the Director of the BOP.⁶⁶ Importantly, this provision and the rest of the policy statement have not been updated to reflect the First Step Act’s modifications to compassionate release.⁶⁷ The statement still functions, erroneously, under the assumption that a court can grant compassionate release only “[u]pon motion of the Director of the Bureau of Prisons.”⁶⁸

    The outdated policy statement poses a problem for defendants relying on the catch-all provision under section 1B1.13 commentary note 1(D).⁶⁹ When defendants invoke the provision advocating for their release, courts are faced with the question of whether the provision limits relief to “other” extraordinary and compelling reasons as identified by the BOP wardens.⁷⁰ In other words, may a court itself determine what constitutes extraordinary and compelling reasons for compassionate release? Nearly every court of appeals has addressed this issue and has held that the phrase “as determined by the Director of the [BOP]” is inconsistent with the First Step Act.⁷¹ As such, courts, and not the BOP, have the discretion to determine what constitutes extraordinary and compelling reasons for compassionate release.⁷²

    In reaching this conclusion, circuit courts point to legislative intent and the text of § 3582(c)(1)(A).⁷³ In United States v. Brooker, for example, the Second Circuit Court of Appeals explained that Congress did not view amending § 3582(c)(1)(A) to permit prisoner-initiated claims—“a break with over 30 years of procedure—as a minor or inconsequential change.”⁷⁴ In fact, the court noted that Congresspersons called the change “‘expand[ing],’ ‘expedit[ing], and ‘improving’ compassionate release.”⁷⁵ Therefore, the court found that the language in policy statement requiring a “motion of the Director of the [BOP]” is “precisely the requirement that the First Step Act expressly removed.”⁷⁶ Accordingly, the court determined that its discretion is defined by § 3582(c)’s text as explicitly amended by the First Step Act rather than the Sentencing Commission’s conflicting policy statement.⁷⁷

    District courts, understanding that they have the discretion to determine what constitutes “extraordinary and compelling” reasons, still hesitate to grant compassionate release to defendants who did not retroactively receive the sentence leniency of the § 924(c) amendment. This Note argues that because courts can, in their discretion, determine that sentencing disparities alone constitute an extraordinary and compelling reason for release, they should in fact do so.

B. The Harsh Realities of the First Step Act: Section 924(c) Sentencing Disparities

    On December 21, 2018, the day the First Step Act was enacted, Kenya Preston Williams was arrested in Northern Virginia.⁷⁸ A federal grand jury had indicted him on ten counts based on a string of armed convenience store robberies that occurred in 2016.⁷⁹ Williams, rather surprisingly, pled not guilty on all counts.⁸⁰ Ultimately, Williams was convicted by a jury of one count of conspiracy to commit robbery, three counts of federal robbery, three counts of felon in possession of a firearm, and three counts of brandishing a firearm during a crime of violence under § 924(c).⁸¹ In September 2019, Williams was sentenced to twenty-three years in federal prison.⁸² Two of these years are for the conspiracy, robbery, and felon-in-possession charges; these sentences run concurrently.⁸³ The remaining twenty-one years are for the § 924(c) charges, calculated under the new sentencing scheme: seven years on each count of brandishing a weapon, to run consecutively.⁸⁴

    Because Williams was sentenced after the First Step Act passed, he did not receive “stacked” § 924(c) sentences.⁸⁵ His co-defendant was not so lucky. Steven Oneil Houston participated in the same string of robberies.⁸⁶ Between August and October of 2016, Houston and Williams stole under $4,000 from 7-Eleven, Shell, and Exxon convenience stores.⁸⁷ The critical difference between the outcome of Houston’s versus Williams’s case was the criminal justice system’s timing.⁸⁸

    Houston was arrested on March 2, 2017.⁸⁹ He was indicted on seven counts: one count of conspiracy, three counts of robbery, and three counts of brandishing a firearm during a crime of violence under § 924(c).⁹⁰ Interestingly, Williams brandished the firearm during two of the three robberies—not Houston.⁹¹ Because Houston had no previous felony charges, he did not face the felon-in-possession charges that Williams did.⁹² Houston pled guilty on May 21, 2018, to two of the § 924(c) charges.⁹³ The presiding district court judge sentenced Houston three months before his co-defendant was arrested and the First Step Act passed.⁹⁴ Houston received seven years on the first § 924(c) charge and twenty-five consecutive years on the second § 924(c) charge.⁹⁵ Houston’s sentencing judge had absolutely no choice but to send Houston to federal prison for thirty-two years.⁹⁶

    The sentencing disparities created by the First Step Act’s elimination of § 924(c)’s stacking provision—and its nonretroactivity— are not hypothetical.⁹⁷ Steven Houston received a thirty-two year sentence for two counts of brandishing a weapon that Kenya Williams actually wielded.⁹⁸ Meanwhile, Kenya Williams is serving a twenty-three year prison sentence based on ten counts, three of which resulted from § 924(c) charges.⁹⁹ Williams had eight more charges than his co-defendant but was sentenced to nine less years.¹⁰⁰ The difference? The date of arrest.

    Congress explicitly made the changes to § 924(c)’s stacking provision non-retroactive.¹⁰¹ Although Congress’s intent is unclear, surely Congress cannot believe that defendants convicted of multiple § 924(c) violations and sentenced before December 21, 2018, are more dangerous or deserve more decades in prison than defendants sentenced after December 21, 2018. Such a suggestion would be absurd. Instead, Congress likely either: (1) failed to recognize the grave injustices that would result from not applying the stacking provision retroactively, or (2) believed that releasing inmates (without any individualized review) who were convicted of multiple § 924(c) charges would be a logistical nightmare. The latter is more likely.

    Of note, Congress empowered courts with broad discretion to grant compassionate release in the same Act that it declared the § 924(c) provision changes non-retroactive.¹⁰² And, Congress also required courts to consider the “need to avoid unwarranted sentence disparities” when making their compassionate release determinations.¹⁰³ Congress would not have explicitly enacted these two statutes if it did not want courts to utilize them. In fact, the BOP’s inactivity in petitioning for compassionate release motivated Congress’s transfer of power from the BOP to the courts.¹⁰⁴

    Nonetheless, in the last two years district courts have been wary of granting compassionate release based on sentencing disparities alone.¹⁰⁵ Instead, several courts have considered the disparities alongside rehabilitation, age, and COVID-19.¹⁰⁶

II. District Courts: Case Studies

    In November 2019, the Nebraska District Court granted Jerry Urkevich’s motion for compassionate release.¹⁰⁷ Between 2001 and 2003, Urkevich ran a drug operation from his home in Omaha.¹⁰⁸ Law enforcement executed several search warrants during those two years and routinely found guns in his home.¹⁰⁹ A jury convicted Urkevich of one count of conspiracy with intent to distribute meth and three counts of possession of a firearm during a drug trafficking offense.¹¹⁰ He received fifty-five years on gun charges alone, due to the old § 924(c) stacking provision.¹¹¹ The court was the first in the country to grant a motion to reduce a sentence based in part on § 924(c) sentencing disparities.¹¹² After holding that courts were empowered to determine what constitutes “extraordinary and compelling” reasons for release, the district court considered the § 3553(a) sentencing factors; specifically, the “need for the sentence imposed ... to reflect the seriousness of the offense” and the “need to avoid unwarranted sentence disparities.”¹¹³ After considering these factors, the court reduced Urkevich’s sentence to what he would have been sentenced to post-FSA.¹¹⁴ It is important to note that the court did not grant Urkevich immediate release—instead it reduced his sentence for each stacked § 924(c) count.¹¹⁵

    A few months after the Urkevich court boldly granted a sentence reduction based largely on sentencing disparities, the COVID-19 pandemic hit federal prisons—hard.¹¹⁶ A little over a year after Congress removed the BOP as the compassionate release gatekeeper, litigation flooded the courts.¹¹⁷ Many defendants started petitioning the courts directly, requesting relief based on the pandemic, rehabilitative efforts, and § 924(c) sentencing disparities.¹¹⁸

    Circuit courts are split on whether district court judges have the authority to grant compassionate release (or a reduced sentence) based on § 924(c) sentencing disparities.¹¹⁹ For example, the Fourth Circuit, in United States v. McCoy, held that “district courts permissibly treated as ‘extraordinary and compelling reasons’ ... the severity of the defendants’ § 924(c) sentences” and the disparities created by the First Step Act.¹²⁰ The court, however, emphasized the judges’ “individualized assessments of each defendant’s sentence”— including consideration of defendants’ rehabilitation and age at the time of the offense—when upholding their grants of release.¹²¹ On the other hand, the Seventh Circuit, in United States v. Thacker, answered “squarely and definitively” that changes to § 924(c) cannot “constitute and extraordinary and compelling reason for a sentencing reduction.”¹²²

    Many courts, even the ones that have held that a lack of retroactivity does not preclude the defendant from relief, avoid firmly deciding this issue by granting release based on a combination of factors. The McCoy district court, for example, granted compassionate release based on the defendant’s age at the time of his sentence, the overall length of his sentence, his impressive rehabilitative efforts, and § 924(c) sentencing disparities.¹²³ The Decator court considered the same factors before granting compassionate release.¹²⁴ In April 2020, in the midst of the COVID-19 pandemic, the District Court for the Southern District of Iowa reconsidered a motion for compassionate release.¹²⁵ The court denied the defendant’s first motion for release, which was largely based on “his draconian sentence that modern statute would prohibit if given today.”¹²⁶ The court had found that although the § 924(c) sentencing disparities did seem extraordinary and compelling, it needed an additional reason for the defendant’s release.¹²⁷ On the motion for reconsideration, the court granted release, finding that “[a] global pandemic that endangers all prisoners ... suffices.”¹²⁸

    A couple of weeks later, in May 2020, amidst the COVID-19 pandemic,¹²⁹ the District Court for the Western District of Virginia took a bold stance.¹³⁰ In United States v. Arey, after considering the defendant’s age (he was sixty-one years old) and his significant health conditions, the court found that the global pandemic did not alone create an extraordinary and compelling reason for release.¹³¹ Instead, the court held that the defendant’s lengthy sentence under the now amended § 924(c) statute alone was a sufficient reason for relief.¹³² The court heavily relied on its “independent discretion” in finding that granting release on a sentencing disparity alone is permissible, notwithstanding Congress’s decision to make the stacking provision non-retroactive.¹³³ The Fourth Circuit has not reversed Arey’s grant of release.

    This Note argues that courts should follow the Arey approach. Where the change in law to § 924(c) is new, unclear, and conflicts with other statutes (specifically, the sentencing guidelines section 1B1.13 commentary),¹³⁴ courts should use their independent discretion to correct the wrongs created by Congress. This argument is supported by legislative history, policy considerations, and the basic notions of fairness.

III. The Second Step: Section 924(c) Sentencing Disparities Alone Constitute an Extraordinary and Compelling Reason for Release

    As district courts across the country have concluded, courts are empowered under the First Step Act to determine what factors constitute extraordinary and compelling reasons for compassionate release. Courts can and should use this power to grant compassionate release to defendants whose § 924(c) convictions do not reflect the new sentencing scheme for three reasons: (1) Congress never intended for § 924(c) to require sentence stacking; (2) these defendants will always satisfy at least two of the § 3553(a) sentencing factors; and (3) incarcerating these defendants beyond the current sentencing scheme does not further any correctional goals. When a defendant initiates individualized review by petitioning the court, the presiding judge should keep these points in mind and take the step Congress did not take itself by granting compassionate release.

A. Extraordinary and Compelling: Serving a Mandatory Minimum Sentence Congress Never Intended to Create

    Congress empowered courts with significant discretion to grant compassionate release motions in the very same act Congress amended the § 924(c) stacking provision.¹³⁵ Section 403 of the FSA is titled “Clarification of [18 U.S.C. § 924(c)],” suggesting that Congress never intended for courts to stack multiple § 924(c) count sentences.¹³⁶ The Supreme Court, however, in Deal v. United States, interpreted the ambiguous language in the original § 924(c) statute to require the stacking provision.¹³⁷

    In 1993, Justice Scalia, writing for the majority, interpreted the statute as requiring district court judges to stack “second or subsequent ‘conviction[s].’”¹³⁸ Specifically, the Court held that the word “conviction” unambiguously “refer[red] to the finding of guilt by a judge or jury that necessarily precedes the entry of a final judgment of conviction.”¹³⁹ In his dissent, Justice Stevens, relying on “common sense,” interpreted the statute to mean the exact same as what Congress’s amendment to § 924(c) in the FSA provided.¹⁴⁰

    Twenty-six years later, Congress rejected Justice Scalia’s interpretation and clarified the manner in which district courts should sentence defendants with multiple § 924(c) counts.¹⁴¹ This clarification is significant. Defendants who did not retroactively receive the sentence leniency of the § 924(c) amendment are not only facing time Congress no longer deems necessary; they are also facing time Congress never believed to be necessary.

    Now that Congress has spoken and clarified its stance on the § 924(c) stacking provision, it is up to courts to correct the injustice defendants faced by being sentenced under the previously faulty interpretation. Although Congress chose not to exert its own power to make the amended § 924(c) statute retroactive, this does not mean that courts should refrain from using their power to remedy this wrong. Congress implicitly acknowledged in the title of the First Step Act that “it has just begun to rein in its past excesses.”¹⁴² The District Court for the Southern District of Iowa correctly proclaimed that “[i]n cases where it has not—perhaps out of fear it would take too much effort to make so many people whole—courts and those who appear before them should not hesitate to use their powers to right obvious wrongs.”¹⁴³

B. Section 924(c) Sentencing Disparities: Always a Match for Certain Statutory Sentencing Factors

    When courts consider a motion for compassionate release, they must determine whether the defendant presents extraordinary and compelling reasons for release by looking at certain enumerated factors when making their decisions. Congress specified in its amended compassionate release statute that courts must consider sentencing factors in § 3553(a) “to the extent that they are applicable.”¹⁴⁴ The statute lists seven broad factors.¹⁴⁵ Defendants who did not retroactively receive the sentence leniency of the § 924(c) amendment will always invoke two sentencing factors that courts must weigh when they consider compassionate release motions.

    First, each defendant who petitions the court for release or a reduced sentence based on § 924(c) sentencing disparities satisfies § 3553(a)(6): “the need to avoid unwarranted sentence disparities among [similarly situated] defendants.”¹⁴⁶ Clearly, a judge deciding a compassionate release motion for a defendant sentenced under the prior version of § 924(c) would find that this factor heavily tips in the defendant’s favor after considering the much more lenient sentences defendants receive under the present law.¹⁴⁷

    Take for instance the cases of Steven Houston and Kenya Williams: Houston was sentenced to thirty-two years for two § 924(c) charges, while Williams faced only twenty-one years for three § 924(c) charges.¹⁴⁸ Judges, however, do not need an extraordinary fact pattern like Houston’s and Williams’s for § 3553(a)(6) to apply. Any defendant convicted of two or more § 924(c) violations before December 21, 2018, will be “similarly situated” to any defendant convicted of the same offenses after December 21, 2018.¹⁴⁹

    Second, each defendant sentenced before the First Step Act passed satisfies § 3553(a)(2), which requires courts to consider the “need for the sentence imposed ... to reflect the seriousness of the offense ... and to provide just punishment for the offense.”¹⁵⁰ Because Congress never believed (or, at the very least, no longer believes) that such lengthy sentences are needed, this factor also tips in the defendant’s favor.¹⁵¹

    Of note, many of the other § 3553(a) factors are simply irrelevant to defendants petitioning for compassionate release based on § 924(c) sentencing disparities. For example, courts must consider “any pertinent policy statement ... issued by the Sentencing Commission.”¹⁵² As previously discussed, the Sentencing Commission’s compassionate release policy statement has not been updated to reflect the changes to the First Step Act and is thus not pertinent.¹⁵³ Additionally, courts must consider “the kinds of sentences available,” but the sentences that were imposed on defendants pre-First Step Act are no longer available.¹⁵⁴

    In sum, the § 3553(a) sentencing factors that a court must consider when deciding a motion for compassionate release provide ample support for a court to conclude that the § 924(c) sentencing disparities constitute an extraordinary and compelling reason for release.

C. Section 924(c) Sentencing Disparities: Never a Match for Correctional Goals or the Basic Notions of Fairness

    Courts, when determining whether to grant compassionate release due to certain sentencing disparities, should consider correctional goals. These include deterrence, incapacitation, rehabilitation, and retribution.¹⁵⁵ None of these goals are satisfied by keeping defendants in prison for decades longer than what Congress currently deems satisfactory.¹⁵⁶

    First, common sense dictates that deterrence—both specific and general—cannot justify the continued incarceration of defendants for longer than what is currently statutorily required. If we assume, for the sake of argument, that the purpose of the federal sentencing scheme is to deter crime, the elimination of the stacking provision demonstrates that the previously lengthy sentences were not necessary to deter crime. As such, there is no support for continuing to uphold a nullified and antiquated sentencing scheme as a means of deterrence. Those who possess, brandish, or discharge a firearm during multiple crimes of violence or drug trafficking offenses no longer fear the old stacking provision of § 924(c). Additionally, many defendants are likely unaware of the enhanced punishments associated with gun charges, making deterrence as a whole ineffective at lowering crime rates.¹⁵⁷

    Likewise, courts cannot rely on rehabilitation or incapacitation as justifications to deny defendants’ motions for compassionate release. Again, for the sake of argument, if we assume that the purpose of the sentencing guidelines is to rehabilitate defendants, the § 924(c) amendment suggests that defendants can be rehabilitated by serving a five-, seven-, or ten-year sentence for each § 924(c) count.¹⁵⁸ It is important to note that under the new sentencing scheme, defendants need not prove a record of rehabilitative efforts to be released after serving their time.¹⁵⁹ This suggests that rehabilitation as a general correctional goal does not justify incarcerating defendants longer than what is statutorily prescribed, no matter the individual characteristics of each defendant.¹⁶⁰

     Additionally, the § 924(c) amendment suggests that defendants only need to be incapacitated for the time currently statutorily prescribed.¹⁶¹ To reason otherwise would be logically unsound: suggesting that defendants sentenced on or before December 21, 2018, like Steven Houston, are inherently more dangerous or deserving of incapacitation than defendants sentenced after December 21, 2018, like Kenya Williams, is nonsensical.

    Finally, courts cannot rely on retribution as justification to deny a defendant’s compassionate release motion. Retribution simply refers to punishment—punishing a defendant for the wrong he has committed.¹⁶² Following the same logic above, now that the First Step Act has amended § 924(c), sentencing first-time offenders as repeat offenders is no longer considered necessary to sufficiently punish defendants.¹⁶³ Thus, it does not follow that defendants sentenced under the old scheme should receive harsher punishment.

    Putting aside all of the justifications for incarceration, judges should consider fairness. That our justice system allows for a defendant sentenced one day before a congressional vote to be sentenced decades longer than a defendant sentenced for the same crimes one day later violates all basic notions of fairness. History is repeating itself: Congress passed the Fair Sentencing Act in 2010, reducing the sentencing disparities between offenses for crack and powder cocaine, but it did not originally make the sentencing amendments retroactive.¹⁶⁴ Taking “another step toward fairness,” the United States Sentencing Commission voted to retroactively apply the new sentencing guidelines.¹⁶⁵ Here, Congress once again took a small step towards fairness, but courts now must take another step. These sentencing disparities, like those created by the Fair Sentencing Act, warrant sentence reductions.

    District courts have the discretion to grant compassionate release whenever they find extraordinary and compelling reasons for relief present.¹⁶⁶ After considering Congress’s “clarification” of the § 924(c) sentencing scheme, § 3553(a) sentencing factors, and the common penological goals, the § 924(c) sentencing disparities Congress created are alone extraordinary and compelling reasons for relief. Courts need not examine a defendant’s age, rehabilitation efforts, or the presence of a global pandemic to release defendants serving grossly unjust sentences. This Note argues that the § 924(c) sentencing disparities are a greater reason for release than a defendant’s age or an arbitrary assessment of their rehabilitative efforts.

IV. Addressing Likely Counterarguments

    Despite legislative history, sentencing factors, correctional goals, and the basic notions of fairness all pointing to the idea that courts should grant compassionate release to defendants sentenced under the old § 924(c) sentencing scheme, there are pertinent, likely counterarguments. This Part addresses and rebuts critics’ concerns.

    First, courts using their compassionate release power to grant release to defendants based solely on § 924(c) sentencing disparities are likely to be critiqued for intervening with congressional intent. Critics may argue that courts cannot in essence make retroactive a law that Congress explicitly made non-retroactive. However, as detailed above, Congress amended § 924(c) in the same act that it gave courts broad power to determine what constitutes an “extraordinary and compelling” reason for release.¹⁶⁷ Congress thus opted for an individualized review process through the courts rather than releasing every defendant sentenced under the old scheme at once.¹⁶⁸

    Second, critics may also raise concerns with courts creating uncertainty in sentencing. The goal commonly associated with determinate sentencing schemes is increasing certainty in the amount of time served.¹⁶⁹ This principle exists largely to comfort crime victims and society as a whole.¹⁷⁰ But incarcerating defendants beyond the statutorily proscribed time period in order to comfort victims is not justifiable. The criminal justice system does not regularly accommodate victims—prosecutors charge abusers with domestic violence against victims’ wishes, and judges, although sometimes taking victim impact statements into account, ultimately decide a defendant’s sentence.¹⁷¹ Defendants currently serving multiple § 924(c) sentences under the prior stacking scheme face decades of extra time compared to their peers who were sentenced under the current scheme.¹⁷² If one balances the victim’s wishes for a defendant to serve his original sentence with the 5,475 minimum additional days that the defendant must serve under the outdated law,¹⁷³ surely the scale tips in the defendant’s favor.

    Finally, critics may question whether this Note argues that any sentencing disparity should be grounds for compassionate release. Because judges often give vastly different sentences for the same crime, granting compassionate release on that ground alone would open up doors to thousands of inmates.¹⁷⁴ This Note, however, only argues that sentencing disparities created by the § 924(c) amendment warrant reduced sentences. That Congress indirectly created the § 924(c) sentencing disparities distinguishes them from ordinary sentencing disparities. Disparities created by the § 924(c) amendment are indiscriminate, unlike a judge’s consideration of an individual defendant’s personal characteristics. These distinctions draw the line between a reason for a reduced sentence and an “extraordinary and compelling” reason for a reduced sentence.

Conclusion

    Congress took the first step by clarifying the § 924(c) sentencing scheme; courts must now take the second step to right Congress’s wrongs. Steven Oneil Houston and countless other inmates sit behind federal prison bars, knowing that they were sentenced to prison time Congress itself finds excessive. Meanwhile, Kenya Williams, along with every defendant convicted of multiple § 924(c) violations and sentenced after December 21, 2018, serve decades less time under the new and more progressive scheme.

    When Kenya Williams reaches the end of his sentence, the Bureau of Prisons will not require an in-depth review of his (arbitrary) rehabilitative efforts. He will not be required to prove extraordinary or compelling reasons for release. Instead, he will be escorted out of jail without having to file a motion with the court and regardless of his conduct while in prison. Congress, as detailed in the text of the First Step Act, presumes that Williams is deserving of release. Why, then, are district courts requiring so much from defendants similarly situated to Steven Houston?

    District courts are reluctant to intrude into congressional territory, but Congress gave them an extraordinary amount of discretion.¹⁷⁵ In the same act, Congress amended § 924(c) and provided defendants sentenced under the prior version a method for individualized review.¹⁷⁶ Each defendant that petitions a court for compassionate release due to § 924(c) sentencing disparities has several § 3553(a) sentencing factors weighing in his or her favor.¹⁷⁷ Absent unusual circumstances (for instance, an inmate who has a significantly increased propensity for violence since being incarcerated), each of these defendants sentenced under the old § 924(c) scheme will have an extraordinary and compelling reason for release.

    Courts cannot count on Congress, and they cannot count on prosecutors, to fix these injustices in the criminal justice system. No one convicted of possession of a firearm during a crime of violence or a drug trafficking offense should serve more time than a terrorist or murderer,¹⁷⁸ even if they actually wielded a gun. Congress signaled an understanding of this idea by fundamentally changing the law. It is now time for courts to take the second step that Congress was not willing to take itself.

* J.D. 2022, William & Mary Law School. Thank you to the William & Mary Law Review staff for turning an overwhelming process into something attainable. I am beyond appreciative of your time and effort in editing this Note. Thank you to my family and friends, for your love and encouragement throughout the writing and publication process. Biggest thanks to my mom, Jennifer Nash, for listening to my rants on sentencing reform and for caring as deeply about the injustices in the system as I do. Your support is endless.