United States v. Clarence Bonds

• Court: Court of Appeals for the Seventh Circuit
• Decided: November 21, 2024
• Docket: 24-1576
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 24-1576 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

CLARENCE BONDS, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:20-cr-00043-DRL-MGG-1 — Damon R. Leichty, Judge. ____________________

ARGUED SEPTEMBER 12, 2024 — DECIDED NOVEMBER 21, 2024 ____________________

Before HAMILTON, SCUDDER, and LEE, Circuit Judges. PER CURIAM. Clarence Bonds appeals the district court’s denial of his motion under 18 U.S.C. § 3582(c)(2) for a sen- tence reduction based on Amendment 821 to the U.S. Sentenc- ing Guidelines. On this aspect of the appeal, the panel is in full agreement and affirms, as the district court acted well within its discretion in denying Bonds’s motion. But the panel is not of one view on a second dimension of this appeal— whether the Criminal Justice Act, 18 U.S.C. § 3006A, 2 No. 24-1576

authorized the appointment of appellate counsel to represent Bonds in his effort to challenge the district court’s adverse rul- ing on his § 3582(c)(2) motion. Each member of the panel has prepared a separate opinion explaining his view on that ques- tion, including whether the question requires resolution in this appeal. I A Clarence Bonds is serving a 71-month sentence for trans- porting a firearm in interstate commerce as a felon. See 18 U.S.C. § 924(b). In 2023 he invoked 18 U.S.C. § 3582(c)(2) and sought a reduced sentence based on Amendment 821 to the Sentencing Guidelines. By its terms, Amendment 821 applies retroactively and alters how so-called “status points” are used to calculate a defendant’s criminal history category. For Bonds, Amendment 821 had the effect of reducing his criminal history category from IV to III and, in turn, his advi- sory Guidelines range from 57–71 months’ to 46–57 months’ imprisonment. Bonds asked the district court to reduce his sentence to account for his new criminal history category and accompanying advisory range modifications resulting from Amendment 821. The district court denied the motion, recognizing the ef- fects of Amendment 821 on the determination of Bonds’s criminal history category and, by extension, the revised advi- sory range, but then declining as a matter of discretion to re- duce his sentence. The court explained that a lesser sentence would not “adequately address the need for deterrence, inca- pacitation, and public protection, the overall serious nature of [his] offense, and his personal history and characteristics.” No. 24-1576 3

Among other concerns, the district court observed that Bonds’s criminal career began at age eleven and came to in- clude not only poor supervision history but also convictions for numerous violent crimes with firearms. These circum- stances, the district court concluded, counseled against reduc- ing Bonds’s sentence. Bonds now appeals that ruling. B We review the district court’s denial of Bonds’s § 3582(c)(2) motion only for abuse of discretion. See United States v. Williams, 93 F.4th 389, 392 (7th Cir. 2024). Under § 3582(c)(2), courts must consider any relevant 28 U.S.C. § 3553(a) factor when determining whether to reduce a defendant’s sentence. If the district court considered these fac- tors and “adequately explain[ed] the chosen sentence,” there is no abuse of discretion. Chavez-Meza v. United States, 585 U.S. 109, 115 (2018) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)). The district court did so here. We see no abuse of dis- cretion and affirm the court’s denial of Bonds’s motion on the merits. II The second issue before us arises under the Criminal Justice Act, 18 U.S.C. § 3006A, and more specifically, our de- cision to provisionally appoint Federal Defender Thomas Pat- ton to represent Bonds in this appeal after his appointed coun- sel in the district court moved to withdraw and suggested that we appoint new counsel for Bonds. Recognizing uncertainty surrounding our authority to appoint counsel in § 3582(c) proceedings, we asked the parties to brief whether “§ 3006A, permits a court to appoint counsel at public expense— 4 No. 24-1576

whether in an individual case or through a general order—for defendants like Bonds who are seeking a reduction of their sentences under 18 U.S.C. § 3582, including motions based on retroactive amendments to the United States Sentencing Guidelines under § 3582(c)(2).” See Order, United States v. Bonds, No. 24-1576 (7th Cir. May 14, 2024), Dkt. No. 6. Com- pare United States v. Foster, 706 F.3d 887, 888 (7th Cir. 2013) (concluding that “[t]he Criminal Justice Act does not supply the necessary permission to pay a lawyer from the public fisc” in § 3582(c)(2) proceedings), with United States v. Guerrero, 946 F.3d 983, 985 (7th Cir. 2020) (“Foster holds that district courts are not required to appoint counsel [in § 3582(c)(2) proceed- ings], but it does not prohibit them from doing so.”). The panel finds itself divided on this question. In Judge Lee’s view, given the particular circumstances of this case, the principle of judicial restraint counsels that we not reach the issue, because we can affirm the district court’s denial of Bonds’s § 3582(c)(2) motion on narrower grounds. Judge Hamilton has doubts about whether the panel should address the merits, but explains why he believes the language of the Criminal Justice Act gives federal courts discretion to make such appointments, why that view is con- sistent with the purpose of the Act and with consistent practices of courts for decades, and why it is supported by congressional acquiescence in the practice. Judge Scudder believes it appropriate to resolve the merits question, and he would hold that the plain language of § 3006A does not au- thorize appointments of counsel in § 3582(c) proceedings. No. 24-1576 5

Attached to this opinion are three separate opinions in which each judge explains his view. AFFIRMED 6 No. 24-1576

LEE, Circuit Judge, concurring. The question of whether the Criminal Justice Act, 18 U.S.C. § 3006A, permits a court to ap- point counsel for a defendant to pursue a post-judgment sen- tencing reduction motion under 18 U.S.C. § 3582(c)(2) is a dif- ficult and consequential one. And my colleagues ably set forth the two opposing views. But, as the per curiam opinion demonstrates, the case before us can be decided on much nar- rower grounds. Thus, I believe that we should affirm the de- cision of the district court and not reach the vexing statutory question for several reasons. First, we have repeatedly recognized that “in keeping with the notions of judicial restraint, federal courts should not reach out to resolve complex and controversial questions when a decision may be based on a narrower ground.” Allen v. Ferguson, 791 F.2d 611, 615 (7th Cir. 1986); see also Air Courier Conference of Am. v. Am. Postal Workers Union, AFL-CIO, 498 U.S. 517, 531 (1991) (Stevens, J., concurring in the judgment) (“Faithful adherence to the doctrine of judicial restraint pro- vides a fully adequate justification for deciding this case on the best and narrowest ground available.”). This is true even when the question is one of statutory interpretation. See United States v. UCB, Inc., 970 F.3d 835, 856 (7th Cir. 2020) (Scudder, J., concurring in the judgment). Here, the district court’s decision can be decided on the merits (as we have done). We should leave questions regarding the relationship between the CJA and § 3582(c)(2) motions for a case “where the outcome hinge[s] on the answer.” Id. Second, I am concerned that any decision on the CJA question would be advisory in nature. See Matlin v. Spin Master Corp., 979 F.3d 1177, 1181 (7th Cir. 2020) (“Article III’s ‘case or controversy’ requirement prohibits federal courts No. 24-1576 7

from issuing advisory opinions that do not affect the rights of the parties before the court.”) (citing Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). Whichever way we decide, the outcome will have no material impact on Bonds or his counsel from the Federal Public Defender’s Office. Bonds has already submitted his briefs on appeal, and his counsel has skillfully represented him at oral argument. I suppose that, because his appellate counsel was only provisionally appointed, a ruling that the CJA does not cover § 3582(c)(2) motions might preclude Bonds from benefiting from the services of court- appointed counsel when considering a motion for panel rehearing or rehearing en banc or a petition for certiorari before the Supreme Court. But this seems too tenuous a foundation upon which to build such a weighty decision. Third, typically, we are reluctant to consider issues that parties have not raised before the district court. See Consumer Fin. Prot. Bureau v. Townstone Fin., Inc., 107 F.4th 768, 777 (7th Cir. 2024) (“‘It is the general rule, of course, that a federal ap- pellate court does not consider an issue not passed upon be- low.’”) (quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)). There are various reasons for this, not the least of which is the benefit we gain from the district judge’s measured considera- tion of the contested issue. I recognize that the parties here were invited to brief the CJA issue (and both sides have per- formed their jobs admirably), and the principle of party presentation is not sacrosanct, but it is an important aspect of our “adversarial system of adjudication” that warrants due consideration. United States v. Sineneng-Smith, 590 U.S. 371, 375–76 (2020) (observing that “as a general rule, our system ‘is designed around the premise that [parties represented by competent counsel] know what is best for them, and are re- sponsible for advancing the facts and argument entitling 8 No. 24-1576

them to relief.’”) (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in the judgment)). This principle seems particularly salient here, given the traditionally limited role the government plays when questions arise regarding a defendant’s eligibility for CJA-appointed counsel. See, e.g., United States v. Wells, 879 F.3d 900, 913 (9th Cir. 2018) (noting that “[t]he prosecution is typically precluded from participating in the determination of a defendant’s eligibility for CJA-appointed counsel”); United States v. Gonzalez, 150 F.3d 1246, 1257 (10th Cir. 1998) (“[T]he CJA process is non-adversarial. It is the judge who protects the interests of the public fisc in a process that has tradition- ally been closed to the prosecution.”). Because I agree that the district court did not abuse its dis- cretion in denying Bonds’s motion, I join in affirming the de- cision below. That said, any one of the reasons discussed above should give us pause before answering the difficult and impactful question of whether the CJA allows district courts to appoint counsel for defendants who wish to pursue mo- tions under 18 U.S.C. § 3582(c)(2). Taken together, I believe judicial restraint is warranted, at least in this case, and we should leave this question for another day. No. 24-1576 9

HAMILTON, Circuit Judge, concurring. I join the per curiam opinion explaining why we affirm the denial of defendant Bonds’ petition for early release under 18 U.S.C. § 3582(c)(2). For the reasons offered in Judge Lee’s opinion, I am not con- vinced that this panel needs to decide whether the Criminal Justice Act of 1964 (CJA or “the Act”), 18 U.S.C. § 3006A, au- thorizes discretionary appointment of counsel in proceedings under § 3582(c)(2). Nevertheless, the conditional appointment of CJA counsel for Bonds in this court was designed to frame the question so that an answer might not be purely advisory. If we were to reach the question, we should hold that the CJA gave the district court and this court discretionary au- thority to appoint counsel for Bonds. Where the CJA author- izes appointment of counsel, it applies “at every stage of the proceedings,” from initial appearance through appeal, “in- cluding ancillary matters appropriate to the proceedings.” § 3006A(c). This broad language easily extends to discretion- ary appointments for petitions under § 3582(c)(2). Even if this broad language were deemed only ambiguous as applied to § 3582(c)(2), practical considerations, the pur- pose of the CJA, the history of its implementation by the courts, and a clear record of congressional acceptance all weigh in favor of continuing such appointments. To find that these appointments are not authorized by law would be a le- gal mistake and would impose disruptive burdens on courts, defendants, and prosecutors. To explain, Part I addresses the text of the CJA and its rel- evant history. Part II addresses practical considerations, stat- utory purpose, the courts’ actual practices, and congressional acquiescence. 10 No. 24-1576

I. The Text of the Criminal Justice Act The Criminal Justice Act establishes the legal framework for effective representation of indigent defendants in federal criminal cases. Counsel may be salaried employees of Federal Public Defender or Federal Community Defender offices, or private attorneys paid for particular cases. The core applica- tions of the CJA are appointments of counsel to represent de- fendants facing criminal charges at trial or in plea negotia- tions and in sentencing and direct appeals. But the statutory language extends to appointments of counsel in matters be- yond these core contexts, including “ancillary matters appro- priate to the proceedings.” 18 U.S.C. § 3006A(c). A. The Current Text The question here — whether a court has discretion under the CJA to appoint counsel in a proceeding under § 3582(c)(2) — can be answered by looking at the current text of subsec- tions (a) and (c) of § 3006A. Subsection (a) instructs all federal district courts to adopt a plan to furnish counsel for indigent defendants. Under paragraph (a)(1), each plan must provide for counsel as a matter of right to the following persons: (1) Representation shall be provided for any fi- nancially eligible person who — (A) is charged with a felony or a Class A mis- demeanor; (B) is a juvenile alleged to have committed an act of juvenile delinquency as defined in sec- tion 5031 of this title; (C) is charged with a violation of probation; No. 24-1576 11

(D) is under arrest, when such representa- tion is required by law; (E) is charged with a violation of supervised release or faces modification, reduction, or en- largement of a condition, or extension or revo- cation of a term of supervised release; (F) is subject to a mental condition hearing under chapter 313 of this title; (G) is in custody as a material witness; (H) is entitled to appointment of counsel un- der the sixth amendment to the Constitution; (I) faces loss of liberty in a case, and Federal law requires the appointment of counsel; or (J) is entitled to the appointment of counsel under section 4109 of this title. As a practical matter, the most important category of eligible defendants in paragraph (a)(1) is those charged with felonies or Class A misdemeanors, in § 3006A(a)(1)(A). Bonds falls in that broad category. Paragraph (a)(2) then authorizes discretionary appoint- ments of counsel for other categories of indigent defendants and prisoners: (2) Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be pro- vided for any financially eligible person who — 12 No. 24-1576

(A) is charged with a Class B or C misde- meanor, or an infraction for which a sentence to confinement is authorized; or (B) is seeking relief under section 2241, 2254, or 2255 of title 28. Subsection (a) thus requires or permits appointment of counsel in a wide range of cases and proceedings, and for a wide variety of indigent defendants. But absent from para- graphs (a)(1) and (a)(2) is any mention of 18 U.S.C. § 3582(c), the statute under which Bonds seeks relief. That absence raises the question whether counsel may be appointed under the Act in § 3582(c) proceedings. A closer look at the statute tells us that the better answer is yes. While paragraphs (a)(1) and (a)(2) identify categories of persons for whom appointment of counsel is either re- quired or permitted, we must turn to subsection (c) for more details on which proceedings are covered by the Act. Here is the full text of subsection (c): (c) Duration and substitution of appoint- ments. — A person for whom counsel is ap- pointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary matters appro- priate to the proceedings. If at any time after the appointment of counsel the United States mag- istrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or No. 24-1576 13

authorize payment as provided in subsection (f), as the interests of justice may dictate. If at any stage of the proceedings, including an ap- peal, the United States magistrate judge or the court finds that the person is financially unable to pay counsel whom he had retained, it may appoint counsel as provided in subsection (b) and authorize payment as provided in subsec- tion (d), as the interests of justice may dictate. The United States magistrate judge or the court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings. 18 U.S.C. § 3006A(c) (emphases added). For this case, the key language authorizes representation “at every stage of the proceedings,” from initial appearance through appeal, including “ancillary matters appropriate to the proceedings.” This language is broad enough to reach pe- titions to seek reduced sentences under § 3582(c). Section 3582(c) provides generally that a sentencing court may not modify a prison sentence after it is imposed, but with two major exceptions. The first is known as compassionate release and is authorized by § 3582(c)(1). The second, under § 3582(c)(2), allows sentence reductions on a case-by-case basis where the Sentencing Commission amends an applicable Guideline with retroactive effect. Federal Rule of Criminal Procedure 35(b) provides a third exception for defendants who provide substantial assistance after sentencing. 14 No. 24-1576

Proceedings under § 3582(c) and Rule 35(b) all fit comfort- ably under “ancillary matters appropriate to the proceed- ings.” A petition under § 3582(c) is filed in the original sen- tencing court in the docket of the original criminal case. It does not challenge the validity of the existing sentence but seeks to modify it. The Supreme Court has explained that § 3582(c)(2) authorizes a “limited adjustment to an otherwise final sentence,” not a “plenary resentencing.” Dillon v. United States, 560 U.S. 817, 826 (2010). That characterization signals that a petition is neither a new proceeding nor a collateral at- tack on the final judgment. It is instead a limited resumption of the original sentencing proceeding, which is undisputedly covered by the CJA. Section 3582(c)(2) requires a court to con- sider the § 3553(a) factors just as it did at the original sentenc- ing, showing that the proceedings build on the underlying criminal charge and sentence. 1 Whether a particular “ancillary matter” is “appropriate” to original criminal proceedings and calls for appointment of counsel will naturally vary from case to case. Factors include the similarity of the legal and factual issues involved and the relevance of the matter to the ultimate disposition of the crim- inal charge. These are the factors the Administrative Office of the United States Courts (AO) has outlined for courts consid- ering whether matters are ancillary and appropriate under

1 This view of § 3582(c) proceedings as “ancillary” is consistent with

dictionary definitions. See United States v. Garcia, 689 F.3d 362, 364 (5th Cir. 2012) (noting several dictionary definitions of “ancillary” and concluding that an ancillary proceeding must be “subordinate to or a subpart of a fed- eral criminal prosecution”). A § 3582(c)(2) proceeding is a “subpart of” a federal criminal prosecution because it resolves a statutorily authorized adjustment to the sentence imposed in the original prosecution. No. 24-1576 15

this provision. 2 See In re Berger, 498 U.S. 233, 234–35 (1991) (per curiam) (examining AO guidelines to determine attorney payment under the CJA). This approach makes sense. The re- latedness of the proceedings is a fact-specific inquiry, and the broad language of the CJA allows courts to exercise sound discretion. In addition to the “ancillary proceedings” language, sub- section (c) grants courts wide latitude to appoint counsel dur- ing “any stage of the proceedings” when a defendant be- comes indigent and a court determines that “the interests of justice may dictate.” As Judge Scudder pointed out at oral ar- gument, this provision functions as an “on/off switch” that may be flipped as a defendant’s financial circumstances change. But as a purely textual matter, this broad language— which covers “any stage of the proceedings”—gives further support for discretionary appointments of counsel for § 3582(c) proceedings “as the interests of justice so require.” B. The CJA’s Statutory Evolution The history of the “ancillary matters appropriate to the proceedings” language helps show that it covers § 3582(c) and

2 The AO explains: “In determining whether a matter is ancillary to

the proceedings, the court should consider whether the matter, or the is- sues of law or fact in the matter, arose from, or are the same as or closely related to, the facts and circumstances surrounding the principal criminal charge.” 2 CJA Guidelines § 210.20.30. It then lists six factors that courts should consider when determining whether a matter is “appropriate to the proceedings” and compensable under the CJA, including—among other things—whether the representation is “reasonably necessary” to protect a constitutional right, to contribute in some way to the defense of the principal criminal charge, or to aid in disposition of the principal crim- inal charge. Id. 16 No. 24-1576

other post-trial proceedings. The language was added in the 1970 amendments to the CJA. See Criminal Justice Act Amendments of 1970, § 1, Pub. L. No. 91-447. That was four- teen years before § 3582(c) was enacted in 1984. Those 1970 amendments were adopted in response to the so-called Oaks Report, which was requested by Congress to assess the CJA and recommend appropriate amendments. 3 1. Confirming Payment for Post-Judgment Proceedings Two of the 1970 amendments are particularly illuminat- ing. The first is Congress’ decision to impose a cap on com- pensation “[f]or representation in connection with a post-trial motion made after the entry of judgment or in a probation revocation proceeding.” Criminal Justice Act Amendments of 1970, § 1, Pub. L. No. 91-447; 18 U.S.C. § 3006A(d)(2) (1971). This amendment shows that the CJA allows appointments for post-trial motions. The amendment was a response to ad- ministrative problems in compensating counsel for post-trial proceedings. The 1964 CJA imposed a $500 maximum for all felony trial proceedings. Criminal Justice Act of 1964, § 2, Pub.

3 During the CJA’s enactment in 1964, Congress requested a report by

the Department of Justice assessing the need for a federal public defender office and reviewing “the operation of the proposals made in this legisla- tion for the adequate representation in the Federal courts for the proper defense of defendants who are financially unable to obtain adequate rep- resentation.” H.R. Rep. No. 88-1709 at 5–6 (1964). The Judicial Conference and the Department of Justice then asked Professor Dallin Oaks to assess the CJA’s function and to recommend amendments. The Oaks Report is most remembered for facilitating creation of federal public defender and community defender organizations. But as described here, it also did much more. The Oaks Report can be found at Dallin H. Oaks, The Criminal Justice Act in the Federal District Courts, https://perma.cc/UR2C-6B3B (No- vember 15, 1968). No. 24-1576 17

L. No. 88-456. Professor Oaks was concerned that payment for post-trial proceedings may exceed that threshold, requiring complicated re-opening of closed case files. Oaks Report at 251. He accordingly recommended amendment to provide “a separate ceiling of $100 for compensation vouchers for repre- sentation at posttrial motions other than those made almost immediately after the conclusion of the trial or plea.” Id. That proposal was adopted in the language quoted above, and it lives on in today’s CJA, where § 3006A(d)(2) caps compensa- tion at $1,500 for “any other representation required or au- thorized by this section.” This 1970 amendment reflected the long-accepted view that the CJA—from the outset—authorized appointment of counsel in post-trial proceedings. The Oaks Report explained that existing statutory language, which authorized appoint- ment of counsel in “every criminal case,” 18 U.S.C. § 3006A(b) (1964), already covered “any posttrial or even postappeal mo- tion in a criminal case, so long as it is not in the nature of a separate (collateral attack) proceeding.” Oaks Report at 251.4 Congress then took affirmative action to specify a

4 The government’s brief asserts that the Oaks Report “recommended

that the CJA ‘be amended so that it makes no distinction between motions before and motions after appeal.’” Gov’t Br. at 18. The passage in question actually (a) explained that post-appeal motions relating to the original criminal proceedings were already covered under the Act, (b) expressed concern that the First Circuit had misunderstood this principle in Dirring v. United States, 353 F.2d 519 (1st Cir. 1965), and then (c) suggested that if Dirring were correct, then the Act should be amended. Oaks Report at 250– 51. Moreover, Dirring itself recognized only that the CJA did not require appointment of counsel post-trial and concluded that appointment “must rest in the discretion of the district court.” 353 F.2d at 520. That view is consistent with the view expressed here. 18 No. 24-1576

compensation cap for representation in post-trial proceed- ings, showing that the question was not whether post-trial ap- pointments were authorized but only how much appointed counsel could be paid for them. 2. Authorizing Compensation in Ancillary Matters The other relevant 1970 amendment added the “ancillary matters” language that I focus upon here. It was a response to another issue that the Oaks report addressed: whether the CJA authorized payment for time spent seeking “a remedy that is technically outside the traditional scope of the criminal prosecution in order to seek realization of a right deemed sub- stantial to the defendant and essential to the adequate defense of the charge.” Oaks Report at 256. The Oaks Report referred to mandamus proceedings, petitions for habeas corpus seek- ing prompt arraignment, petitions for habeas corpus ad tes- tificandum, and time spent seeking discovery as examples of such “ancillary” proceedings. The report concluded that the Act should be construed as already covering such proceed- ings without amendment. Id. Professor Oaks reasoned: Time spent bringing a habeas corpus proceed- ing to obtain some relief necessary to defense in a criminal case should be just as compensable as time spent trying to obtain the objective in a way not involving an independent proceeding. The only test should be whether the time was spent in seeking realization of a right deemed valuable in the defense of the criminal charge for which counsel was appointed. Id. No. 24-1576 19

Notwithstanding Professor Oaks’ views about the scope of the original statutory language, Congress responded with an amendment. Rather than add to the specific lists of covered individuals or proceedings with language that would need to be updated as other statutes were amended, Congress ad- dressed the more general issue by adopting the broad lan- guage authorizing appointed counsel to act in “ancillary mat- ters appropriate to the proceedings.” 18 U.S.C. § 3006A(c). This broad language aligns with Professor Oaks’ explana- tion that the CJA authorized the appointment of counsel in any proceeding arising from the criminal charge. See Oaks Report at 250 (“Where a motion arises out of the original crim- inal case it is not a ‘new’ criminal proceeding. Where the court sees fit to appoint counsel or where counsel already ap- pointed continues to represent the defendant at any posttrial motions not in the nature of collateral attack, … counsel should be compensated under the [CJA].”). The express au- thority to appoint counsel in “ancillary matters appropriate to the proceedings” confirms that broad view. C. Case Law and Counterarguments Case law supports discretionary appointments for § 3582(c)(2) petitions. Most important, every circuit has understood that the CJA gives district courts discretion to appoint counsel to represent defendants in post-trial proceedings. See, e.g., Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965) (“After final conviction the appointment of counsel must rest in the discretion of the court.”); United States v. Fleming, 5 F.4th 189, 194 n.4 (2d Cir. 2021) (“The appointment of CJA counsel at this stage rests in the court's sole discretion.”); United States v. Curry, 488 F. App’x 616, 618 n.5 (3d Cir. 2012) (explaining that a federal defender reviewed 20 No. 24-1576

Curry’s § 3582(c)(2) motion but noting that “the District Court would not have abused its discretion by declining to appoint counsel”); United States v. Reed, 482 F. App’x 785, 786 (4th Cir. 2012) (finding no abuse of discretion in failure to appoint counsel for § 3582(c)(2) motion); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (“[T]he decision whether to appoint counsel rests in the discretion of the district court.”); United States v. Manso-Zamora, 991 F.3d 694, 697 (6th Cir. 2021) (appointing counsel for a § 3582(c)(1) motion and stating that “appointment of counsel in sentence reduction proceedings is discretionary”); United States v. Blake, 986 F.3d 756, 758 (7th Cir. 2021) (“District judges have discretion to recruit and sometimes appoint counsel for prisoners seeking post- judgment benefits.”); United States v. Meeks, 971 F.3d 830, 834 (8th Cir. 2020) (reviewing denial of counsel for abuse of discretion); United States v. Townsend, 98 F.3d 510, 513 (9th Cir. 1996) (“[T]he decision whether to appoint counsel rests in the discretion of the district court”); United States v. Olden, 296 F. App’x 671, 674 (10th Cir. 2008) (reviewing denial of counsel for abuse of discretion); United States v. Webb, 565 F.3d 789, 795 n.4 (11th Cir. 2009) (“[C]ourts have the discretion to appoint counsel.”); United States v. Lafayette, 585 F.3d 435, 437 (D.C. Cir. 2009) (appointing counsel for a pro se defendant’s § 3582(c)(2) argument). 5

5 This court has not addressed specifically the “ancillary and appro-

priate” language in precedential opinions. Judge Ripple cited it in an in- chambers opinion on the duties of appointed counsel when a client asks counsel to file a petition for certiorari, but the opinion did not address is- sues pertinent to this case. See United States v. Howell, 37 F.3d 1207, 1209 (7th Cir. 1994) (Ripple, J., in chambers). No. 24-1576 21

Those opinions do not explain their conclusions on this point, however, and the government cites several cases from other circuits to argue that § 3582(c)(2) proceedings are not “ancillary” to the original criminal proceedings. Gov’t Br. at 17, citing Miranda v. United States, 455 F.2d 402, 405 (2d Cir. 1972), supplemented, 458 F.2d 1179 (2d Cir. 1972); Whitebird, 55 F.3d at 1010; and United States v. Reddick, 53 F.3d 462, 464 (2d Cir. 1995). None offer persuasive support for the govern- ment on the point at issue here. In Miranda, the Second Circuit considered whether an ear- lier version of the CJA required appointment of counsel in fed- eral habeas proceedings under 28 U.S.C. § 2255. The court held that the Act did not require appointment of counsel for the habeas proceeding because the plain language of the stat- ute made clear that “if the interests of justice do not so require, free counsel … may be denied on a § 2255 appeal.”455 F.2d at 404, citing 18 U.S.C. § 3006A(g) (1971) (authorizing appoint- ment of counsel under 28 U.S.C. § 2255 when “the interests of justice so require”). The court went on to clarify that “collat- eral attacks on a judgment” are not “ancillary matters” under the statute and that appointment of counsel was therefore not required in federal habeas proceedings. The Miranda holding was not controversial then and is not in dispute now. At the time, subsection (g) explicitly granted courts discretion to appoint counsel in § 2255 proceedings “when the interests of justice so require.” 18 U.S.C. § 3006A(g) (1971). Since 1986, that discretion has been found in § 3006A(a)(2)(B). But Miranda said nothing about proceedings like § 3582(c) that emerge from the initial criminal charge. In fact, Miranda cited the CJA’s history to clarify that “[m]any times remedies technically outside the scope of the trial 22 No. 24-1576

proper may be necessary” to defend against the principal criminal charge, and that such proceedings are properly cov- ered as “ancillary matters.” 455 F.2d at 404–05, citing H.R. Rep. 91-1546 (1970), printed at 1970 U.S. Code Cong. & Adm. News, p. 3989. Miranda thus actually supports the view that proceedings like § 3582(c)(2) are related to the original crimi- nal charge and are “ancillary” under § 3006A(c). More recently, in Reddick and Whitebird, the Second and Fifth Circuits evaluated defendants’ arguments that the CJA gave them a statutory right to counsel in § 3582(c)(2) proceed- ings. Both courts rejected the argument based in part on the conclusion that § 3582(c)(2) proceedings were not “ancillary matters appropriate to the proceedings” that required ap- pointment of counsel. The Second Circuit in Reddick rejected the claim based in part on the “intolerable” burden this would place on CJA attorneys, who would have to stand like senti- nels “responsible in perpetuity for all former clients.” Reddick, 53 F.3d at 464. The Reddick court also relied on Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965), in which the First Circuit rejected a convicted defendant’s claim that the then-brand-new CJA required the district court to appoint counsel for his post-appeal motion for a new trial. The key point is that Miranda, Whitebird, Reddick, and Dirring all rejected claims that defendants were entitled to ap- pointment of counsel in their post-appeal challenges to their convictions or sentences. That’s not the question here, which is whether a court may appoint counsel for this § 3582(c) pro- ceeding. In fact, Reddick, Whitebird, Miranda, and Dirring all said clearly that appointment of CJA counsel in those cases was left to the court’s discretion, as I contend. See Reddick, 53 F.3d at 465 (“The provision of counsel for such motions No. 24-1576 23

should rest in the discretion of the district court.”); Whitebird, 55 F.3d at 1011 (“The appointment of counsel in these in- stances is a matter within the sound discretion of the district court.”), quoting Burrell v. United States, 332 A.2d 344, 347 (D.C. App. 1975); Miranda, 458 F.2d at 1182 n.2 (inviting coun- sel to apply for compensation under the CJA for representa- tion in a § 2255 proceeding); Dirring, 353 F.2d at 520 (“After final conviction the appointment of counsel must rest in the discretion of the court.”). To be sure, Reddick and Whitebird said that § 3582(c)(2) pro- ceedings were not “ancillary” within the meaning of § 3006A(c), but they said that in the course of holding only that appointment was not required. I do not disagree with the results of those decisions. Since they left the appointment of counsel to the discretion of the court, those portions of the opinions should be understood better in terms of the discre- tion inherent in a determination about when a particular pro- ceeding is “appropriate to the proceedings.” A different view of the statutory text is explained in Judge Scudder’s opinion, which offers two main textual arguments to reject the view expressed here. That opinion asserts first that the word “including” imposes a time limit for CJA ap- pointments (ending when a direct appeal ends) and second that my view turns § 3006A(a)(1) into surplusage. Neither ar- gument is persuasive. First, focus on the text of § 3006A(c): “A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance before the United States magistrate judge or the court through appeal, including ancillary matters appropriate to the proceedings.” Judge Scudder reads the word “including” to require that any representation 24 No. 24-1576

in an “ancillary matter” occur in the time identified in the pre- ceding phrase—initial appearance through appeal. That read- ing is plausible but not inevitable. The better reading sees “in- cluding ancillary matters appropriate to the proceedings” as modifying the subject of the sentence: “Every stage of the pro- ceedings.” This reading recognizes a broader application to proceedings even before an initial appearance and after trial and/or appeal, consistent with the statutory evolution out- lined above, and avoids odd gaps in coverage. If the statutory phrasing prohibited appointment before initial appearances and after appeal, those limits would con- flict with the rest of the statute. CJA appointments are often required before an accused’s initial appearance in court. For example, the Act requires appointments for persons “under arrest, when such representation is required by law.” § 3006A(a)(1)(D). (Think custodial interrogation and line-ups for identification.) After conviction, a defendant will need counsel in a sentencing-reduction process under Rule 35(b). In addition, appeals can sometimes last for years. Nothing in § 3582(c) prevents a defendant from seeking relief due to changed circumstances (a new illness, a pandemic, etc.) while the appeal is pending. 6 It would be at least odd to say that a court could appoint counsel for a Rule 35(b) motion or a compassionate release petition while an appeal is pending but not after it has con- cluded. The placement of the phrase “from his initial

6 I agree with Judge Scudder that a defendant may not use a § 3582(c)

petition to argue that his sentence was legally erroneous. Post at 42, citing United States v. Martin, 21 F.4th 944, 945–46 (7th Cir. 2021). That does not mean the defendant could not pursue a proper petition for compassionate release on grounds separate from his appeal. No. 24-1576 25

appearance ... through appeal” is not strong enough to re- quire these improbable consequences. In addition, no one has offered an explanation as to why Congress might have wanted to prohibit discretionary appointments for § 3582(c) petitions, let alone why it would have expressed that curious prohibition so indirectly. Such proceedings can present chal- lenging legal and factual questions. We should infer that Con- gress intended § 3582(c) to operate without swamping federal courts and prosecutors with confusing pro se petitions, leav- ing courts and defendants unable to call on the expertise and energies of federal defenders. The second textual counterargument is based on avoiding surplusage. Judge Scudder believes that my reading makes several portions of subsection (a) redundant. This argument is not persuasive, either generally or in its specifics. First, the general preference for avoiding statutory sur- plusage is not a rigid rule, and there are good reasons not to apply it here. As this court has recognized, “the presence of some redundance is rarely fatal on its own to a statutory read- ing.” Schutte v. Ciox Health, LLC, 28 F.4th 850, 862–63 (7th Cir. 2022), quoting White v. United Airlines, Inc., 987 F.3d 616, 622 (7th Cir. 2021); see also Territory of Guam v. United States, 593 U.S. 310, 320 (2021) (rejecting effort to try to “avoid surplus- age at all costs” (citation omitted)); Rimini Street, Inc. v. Oracle USA, Inc., 586 U.S. 334, 346 (2019) (“Sometimes the better overall reading of the statute contains some redundancy.”). Now-Justice Barrett observed in an opinion for this court that drafters of legal documents often consciously adopt a “belt- and-suspenders approach” to try to capture the universe. Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 465 (7th Cir. 26 No. 24-1576

2020), quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176–77 (2012). 7 This skepticism about surplusage is especially warranted in this case. First, Judge Scudder suggests that interpreting the “ancillary and appropriate” language to cover post-trial pro- ceedings would make redundant § 3006A(a)(1)(C) and (E), which require appointment of counsel when an indigent per- son is “charged with a violation of probation” or faces modi- fication or revocation of supervised release. That is not

7 An important empirical study found that drafters of legislation often

“intentionally err on the side of redundancy” as a precautionary measure and as a response to political demands. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I, 65 Stan. L. Rev. 901, 934 (2013); see also Victoria Nourse, Misreading Law, Misreading De- mocracy 92–93 (2016) (explaining how Senate rules encourage redundant statutory language); Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967–2011, 92 Tex. L. Rev. 1317, 1448, 1469 (2014) (citing evidence that “repetition (i.e., surplusage) is typically what supporting institutions and groups want from the legislative process” and arguing that the anti-sur- plusage canon is “antidemocratic in a serious way”); William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 579 (2013) (book review) (“[T]he rule against surplusage ... is especially prob- lematic because the legislative process operates under the opposite as- sumption and so that canon will often thwart legislative deals rather than enforce them.”); Brett M. Kavanaugh, The Courts and the Administrative State, 64 Case W. Rsrv. L. Rev. 711, 718 (2014) (observing that “members of Congress often want to be redundant” because they want “to make dou- bly sure about things,” so courts “should be more careful” in applying the canon); Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 812 (1983) (“[A] statute that is the product of compromise may contain redundant language as a by-product of the strains of the negotiating process.”). No. 24-1576 27

correct. The argument overlooks the difference between a mandatory appointment and judicial discretion about the pre- cise scope of the appointment. Congress could sensibly have decided to mandate appointment of counsel in many circum- stances—see § 3006A(a)(1)—and to allow for it in others, in- cluding via blanket language permitting appointment in an- cillary proceedings. The two provisions do different things. Paragraph (a)(1) reflects a legislative judgment that certain proceedings always warrant appointment of counsel. Subsec- tion (c) is drafted to reflect a little legislative humility. It rec- ognizes that Congress could not anticipate all circumstances and gives the courts discretion to address other “ancillary proceedings” where appointment of counsel would be pru- dent, depending on the facts of the case. Nothing in the lan- guage of the statute requires us to nullify this sensible legisla- tive flexibility, which we can easily read to reach the later en- actment of § 3582(c), without having required further amend- ment to the CJA itself. My reading also does not make subparagraph (a)(2)(B) re- dundant. It expressly authorizes discretionary appointments of counsel for prisoners “seeking relief under section 2241, 2254, or 2255 of title 28,” the habeas corpus statutes. Judge Scudder argues that if pursuit of a reduced sentence under § 3582(c) is an “ancillary matter appropriate to the [initial criminal] proceedings,” subsection (a)(2)(B) becomes surplus- age, apparently on the theory that a habeas corpus petition would also qualify as an “ancillary matter.” The argument has some superficial appeal, but it is not persuasive. First, it is not clear that a habeas petition would even qualify as an “ancillary” matter. Habeas petitions are not extensions of the original criminal prosecutions. They are 28 No. 24-1576

handled instead as new civil matters, and they have long been understood as “collateral” challenges to the original judg- ments. On these grounds, courts have found that habeas pro- ceedings are not “ancillary” to the original proceedings. 8 In fact, habeas petitions need not be heard in the sentenc- ing courts. Section 2254 petitions are brought by state prison- ers and are not even arguably ancillary to any prior federal proceedings. Section 2241 petitions are heard where the pris- oner is being held, regardless of where he was sentenced. On the practical side, habeas petitions provide a good ex- ample of a situation calling for legislative enactment of both belts and suspenders. Habeas petitions are filed in large num- bers and in a more or less constant flow. 9 Given these practical considerations and doubts about whether habeas petitions are “ancillary,” Congress could understandably decide that an express grant of discretionary authority to appoint counsel was a worthwhile amendment to the CJA in 1970. See Crimi- nal Justice Act Amendments of 1970, § 1, Pub. L. No. 91-447.

8 See, e.g., Miranda, 455 F.2d at 404 (explaining that “collateral attacks

upon a judgment” under § 2255 are not “ancillary”); In re Lindsey, 875 F.2d 1502, 1508 (11th Cir. 1989) (state collateral proceedings are not ancillary because term is “limited to proceedings comprehended within the action for which the appointment was made”). 9 In 2021, prisoners filed 15,354 “general” petitions for habeas corpus

in federal courts; 2022 saw 13,112; and 2023 saw 14,154. See U.S. Courts, Federal Judicial Caseload Statistics Tables 2022, Publication C-2, https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-sta- tistics-2022-tables; U.S. Courts, Federal Judicial Caseload Statistics Tables 2023, Publication C-2, https://www.uscourts.gov/statistics-reports/fed- eral-judicial-caseload-statistics-2022-tables. No. 24-1576 29

To sum up my view of the statutory text, “ancillary” and “appropriate” give courts discretion to determine when cer- tain proceedings might be “appropriate” and when counsel should be appointed. That discretionary authority does not end with a final resolution of a conviction, with or without a direct appeal. This is not to say that all or even most § 3582(c)(2) proceedings must have counsel. The answer to whether a proceeding is “appropriate” to the underlying criminal proceeding and whether appointment is prudent will depend on facts. Finally, even if this explanation of the text is not persuasive to all readers, the CJA is at the very least ambiguous as to whether a court may appoint counsel in a § 3582(c) proceeding as an exercise of its discretion. There is no express prohibition, and such an exercise of discretion is permissible under § 3006A(c). II. Practical Considerations — Purpose, Practice, and Congres- sional Acquiescence If the statutory text alone were not sufficiently persuasive, practical consequences, the purpose of the CJA, the uniform or nearly uniform practices of courts, and congressional ac- quiescence all point toward continuing to allow discretionary appointment of counsel under the CJA in § 3582(c) proceed- ings. A. Practical Consequences and Statutory Purpose The most salient practical points here are (a) that retroac- tive guideline amendments can cause § 3582(c)(2) motions to be filed in large waves that can overwhelm courts and prose- cutors, and (b) that proceedings under § 3582(c)(2) can pre- sent complex factual and legal issues for parties to litigate and courts to resolve. Our adversarial system functions much 30 No. 24-1576

better with counsel on both sides, regardless of whether the Sixth Amendment requires counsel in the particular proceed- ing. Over the last twenty years, the Sentencing Commission has issued four major retroactive amendments: Amendment 706 (the 2007 Crack Cocaine Amendment); Amendment 750 (the 2010 Fair Sentencing Act Amendment); Amendment 782 (the 2014 “Drugs Minus Two” Amendment); and – most re- cently and at issue in this appeal – Amendment 821 (modify- ing criminal history calculations). Amendment 821 was given retroactive effect on February 1, 2024. By the end of June 2024, courts had received 17,157 motions based only on that retroactive amendment. United States Sentencing Comm’n, Part A of the 2023 Criminal History Amendment Retroactivity Data Report, https://perma.cc/LQF3- RWKV (July, 2024); United States Sentencing Comm’n, Part B of the 2023 Criminal History Amendment Retroactivity Data Re- port, https://perma.cc/HMN5-V4M9 (July, 2024). The three earlier amendments produced similar waves. See, e.g., United States Sentencing Comm’n, 2014 Drug Guidelines Amendment Retroactivity Data Report, https://perma.cc/GPW8-P84Q (2021 report noting a whopping 50,998 motions filed under the 2014 Drugs Minus Two amendment). That’s why many district courts have entered standing or- ders authorizing appointment of CJA counsel to assist with smooth resolution of those motions. For example, Bonds’ counsel was appointed under the Northern District of Indi- ana’s General Order No. 2023-32, which generally appoints counsel in “all cases arising under” § 3582(c)(2) and Amend- ment 821. The order explained that “it is in the interest of ju- dicial economy that consistent procedures be followed in the No. 24-1576 31

handling of requests seeking a reconsideration of a sentence pursuant to Amendment 821.” The scope of § 3582(c)(2) proceedings can make the pres- ence of capable defense counsel very helpful to the courts and prosecutors, as well as to defendants. A defendant has a lim- ited right to develop an evidentiary record to support a § 3582(c)(2) petition. To be sure, a judge is entitled to rely on prior resolution of factual disputes when resolving motions under § 3582(c)(2). United States v. Neal, 611 F.3d 399, 401 (7th Cir. 2010). But when a judge assesses the application of retro- active amended guidelines based on facts outside the existing record, the defendant is “entitled to an opportunity to dispute contestable factual propositions that affect the sentence.” Id. at 402, citing U.S.S.G. § 6A1.3. This need for counsel arises often when judges consider defendants’ time in custody as part of the analysis under § 3582(c)(2). Commentary accompanying U.S.S.G. § 1B1.10 – the policy statement that lists retroactive amendments – spec- ifies that courts may consider “post-sentencing conduct” in deciding whether to reduce a particular defendant’s sentence. § 1B1.10 app. n. 1(B)(iii). Another policy statement provides: “When any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an ade- quate opportunity to present information to the court regard- ing that factor.” U.S.S.G. § 6A1.3. When post-sentencing con- duct is at issue, courts must give defendants an opportunity to present relevant information. See 18 U.S.C. § 3582(c)(2) (au- thorizing sentence reductions only when such a reduction is “consistent with applicable policy statements”); Neal, 611 F.3d at 402 (finding limited right to develop record regarding “ad- judicatory” facts not part of the sentencing record and not 32 No. 24-1576

“general public knowledge”). This right underscores the value of counsel in developing a factual record to assist courts in making liberty determinations. Bonds’ case illustrates the point. After Bonds sought a re- duction in his sentence, the government submitted prison dis- ciplinary logs indicating that – in its view – “So far, prison has not adequately deterred Bonds from behaving poorly.” ECF No. 33 at 10. The district court denied Bonds’ § 3582(c)(2) mo- tion in part based on this evidence. ECF No. 35 at 2. This was not error, for the reasons explained in the per curiam opinion, but it highlights the importance of developing a factual record during § 3582(c)(2) proceedings. As we explained in Neal, a defendant is “entitled to an opportunity to contest proposi- tions that affect how long he must spend in prison.” Neal, 611 F.3d at 402. Bonds did not contest the government’s version of events – but he would have faced an extraordinary uphill battle in making those arguments if he had to access prison disciplinary logs and contest the government’s interpretation of the facts without counsel. Section 3582(c)(2) provides incarcerated defendants with a unique opportunity to reduce their prison time based on up- dated Sentencing Guidelines. But to do so, they must fre- quently update the factual record with evidence not available at sentencing. This right, combined with the fact that § 3582(c)(2) motions typically come in massive waves, can overwhelm district courts without the assistance of counsel to identify and present meritorious arguments. The ability to ap- point counsel under the CJA is crucial in making this system work. It also should go without saying that such appoint- ments are consistent with the central purpose of the CJA, which is to see that defendants have effective representation No. 24-1576 33

in adversarial criminal proceedings, for the sake of the de- fendant, the court, the prosecution, and the public. B. Widespread Practice and Congressional Acquiescence For the reasons explained above, I conclude that the text of the CJA authorizes discretionary appointment of counsel in § 3582(c)(2) proceedings, though it does not require ap- pointment. At the very least, the text leaves room for reason- able minds to disagree about whether the statute authorizes such appointment. It therefore invites judicial interpretation regarding which proceedings are “ancillary,” “appropriate,” and covered by the statute. For those who consider the CJA’s text ambiguous as applied to § 3582(c)(2) proceedings, the combination of widespread practice and Congress’s long ac- ceptance of appointments in these and other post-trial pro- ceedings offers ample support for adopting the permissive in- terpretation offered here. As a general matter in statutory interpretation, courts say that “Congress is presumed to be aware of judicial interpreta- tions of its acts.” Tri-State Water Treatment, Inc. v. Bauer, 845 F.3d 350, 355 (7th Cir. 2017), citing Mississippi ex rel. Hood v. AU Optronics Corp., 571 U.S. 161, 169–70 (2014). That pre- sumption might tend toward the heroic in many situations, but it gains force in situations like this one, where every circuit has authorized the disputed practice for nearly sixty years. See cases cited above at pages 19–20. This circuit is one of those. See Blake, 986 F.3d at 758 (“District judges have discretion to recruit and sometimes appoint counsel for prisoners seeking post-judgment benefits.”). The government cites early post-amendment cases to argue that the CJA does not authorize post-trial 34 No. 24-1576

appointment of counsel, but those cases are actually consistent with the view that the Act vests courts with discretion to do so. See Burrell, 332 A.2d at 347 n.6 (finding no right to counsel in a D.C. sentence-reduction proceeding, but stating: “This decision is not meant to affect any right appointed counsel may have to claim compensation under the Criminal Justice Act for motions filed after final conviction.”); United States v. Nevarez-Diaz, 648 F. Supp. 1226, 1232 (N.D. Ind. 1986) (finding no right to counsel but citing several cases, including Miranda and Dirring, allowing for discretionary appointment). The evolution of the statute further supports this under- standing. As noted above, Congress amended the CJA in 1970 to authorize payment of counsel in post-trial proceedings. Pursuant to that authority, courts began appointing counsel in sentence-modification proceedings, including in the Su- preme Court. See, e.g., Chavez-Meza v. United States, No. 17- 5639, 585 U.S. 109, 111 (2018) (Supreme Court interpreted § 3582(c)(2) after argument from CJA counsel appointed by Supreme Court itself; docket showing order where Supreme Court appointed counsel). Congress has amended the statute several times since then, but it has not directed courts to stop this practice. See, e.g., Sentencing Act of 1987 at Section 19, Pub. L. No. 100-182; Sentencing Reform Act of 1984 at Section 223, Pub. L. No. 98-473; Criminal Justice Act Revision of 1986 at Section 102, Pub. L. 99-651. If these discretionary CJA ap- pointments were contrary to Congress’ intent, we should have seen some indication by now. Instead, we have an unusually clear record of actual con- gressional knowledge and acquiescence. Every year, the Ad- ministrative Office of the U.S. Courts—which administers the No. 24-1576 35

CJA—submits a request to Congress for judiciary-related funding, including for “defender services.” Those requests describe the work of CJA attorneys seeking sentence reduc- tions under § 3582(c)(2). See, e.g., AO, FY 2022 Congressional Budget Request 5.12, https://perma.cc/R4Z6-T4QS (“The De- fender Services program must respond to changes in the U.S. Sentencing Guidelines.”). This year is no different. The AO has submitted an appropriations request to Congress that ex- plicitly accounts for Amendment 821 and notes that the amendment could affect nearly 19,000 sentences. AO, FY 2025 Congressional Budget Request 5.12, https://perma.cc/7UDL- P2TW. The AO told Congress: “Historically, FDOs have liti- gated the vast majority of retroactive sentencing guidelines cases.” Id. In other words, Congress has known for more than fifty years that courts have interpreted the CJA to allow appoint- ment of counsel in sentence-reduction proceedings generally, and for decades in § 3582(c)(2) proceedings specifically. If Congress disapproved of this nearly universal practice, it has all the powers of the purse to force a change. It has not made any effort to do so. The statutory text does not require us to stop this widespread, sensible, and practical approach. We should not inflict this disruption on the courts, the federal de- fender community, defendants, or prosecutors. 36 No. 24-1576

SCUDDER, Circuit Judge, concurring. This appeal presents two consequential questions. On the first, I agree with my col- leagues that the district court did not abuse its discretion in denying Clarence Bonds’s motion under 28 U.S.C. § 3582(c)(2) for a reduced sentence based on Amendment 821 to the U.S. Sentencing Guidelines. The second question affects Bonds too but also carries substantial ramifications for many other fed- eral prisoners untrained in law and desiring to pursue sen- tencing reductions under § 3582(c). The question is whether the Criminal Justice Act authorizes the appointment of coun- sel to assist federal prisoners in such an effort. While it pains me to say so, the answer is no under the plain and unambig- uous language of 18 U.S.C. § 3006A(a). I The proper beginning point is procedural. Our affirming the district court’s denial of Bonds’s § 3582(c)(2) motion does not moot or otherwise obviate the need to decide the appointment-of-counsel question. The two questions are related in that they both involve and affect Clarence Bonds. But they are not so intertwined that resolving the first eliminates the need to reach and answer the second, either as a matter of law or discretion. After Bonds’s counsel in the district court withdrew, we granted outgoing counsel’s request to appoint new counsel to represent Bonds on appeal—Central District of Illinois Fed- eral Defender Thomas Patton. The appointment was provi- sional, subject to the appeal itself resolving whether the Crim- inal Justice Act authorized the appointment. So we asked the parties to brief the question, as this issue has remained unset- tled for years in our case law and is one of exceptional im- portance to federal prisoners (and the federal defender No. 24-1576 37

community), especially given the floodtide of § 3582(c) mo- tions prisoners filed during the COVID-19 pandemic and in response to retroactive amendments to the Sentencing Guide- lines. The government challenged the appointment, thereby cre- ating adversity between the parties on the question. That ad- versity remains. Nothing about the panel’s conclusion that the district court acted within its discretion in denying Bonds’s § 3582(c) motion causes the statutory question to disappear. The government remains of the view that we had no authority under the CJA to provisionally appoint Mr. Patton to repre- sent Bonds. And Bonds presses an opposing view. That leaves us with a concrete and unresolved dispute between adverse parties. Sidestepping the statutory issue because it first surfaced on appeal—when Bonds’s prior counsel withdrew, and he re- quested the appointment of new counsel—is not much an op- tion. We often decide questions that arise in the first instance on appeal. That the controversy before us arose on appeal and in response to a provisional order of the court is of no mo- ment. Do not lose the bigger picture either. How we answer the appointment-of-counsel question matters to Bonds even though we are affirming the district court’s denial of his § 3582(c) motion. Suppose Bonds wants to seek panel rehear- ing or to ask the full court to consider the merits of the district court’s denial of his motion. Surely he would want Mr. Patton to continue to represent him. And I see no reason why our provisional appointment of Mr. Patton would not allow him to represent Bonds in those rehearing proceedings. In no way is the statutory issue made moot—and definitely not as a 38 No. 24-1576

matter of subject matter jurisdiction—by our affirming the district court’s § 3582(c) merits ruling. Regardless, our own experience shows that the issue recurs time and again. It is time we review it and stop kicking the can. II A All agree that the Sixth Amendment did not provide Clarence Bonds a right to counsel to assist with his § 3582(c) sentence-reduction motion. Whether a federal court can appoint counsel in such circumstances requires construction of the Criminal Justice Act. The statute’s plain language answers the question. By its terms, the Act directs each federal district court, with the approval of the judicial council of the circuit, to create “a plan for furnishing representation for any person financially unable to obtain adequate representation in accordance with [§ 3006A].” 18 U.S.C. § 3006A(a). From there Congress authorizes appointments in two categories of circumstances—one where district courts must appoint counsel for financially qualifying defendants and the second where appointments are discretionary. The mandatory-discretionary distinction is clear from the Act’s text. Subsection (a)(1) of § 3006A states that “[r]epresentation shall be provided for any financially eligible person” fitting within one of ten enumerated circumstances— specifically, any qualifying person who: (A) is charged with a felony or a Class A misde- meanor; No. 24-1576 39

(B) is a juvenile alleged to have committed an act of juvenile delinquency as defined in section 5031 of this title; (C) is charged with a violation of probation; (D) is under arrest, when such representation is required by law; (E) is charged with a violation of supervised re- lease or faces modification, reduction, or en- largement of a condition, or extension or revo- cation of a term of supervised release; (F) is subject to a mental condition hearing un- der chapter 313 of this title; (G) is in custody as a material witness; (H) is entitled to appointment of counsel under the sixth amendment to the Constitution; (I) faces loss of liberty in a case, and Federal law requires the appointment of counsel; or (J) is entitled to the appointment of counsel un- der section 4109 of this title. Id. § 3006A(a)(1)(A)–(J). For its part, § 3006A(a)(2) authorizes—but does not require—appointments in two circumstances: Class B or C misdemeanors in which the alleged offender faces a potential custodial sentence and proceedings in which a person is seeking post-conviction relief under 18 U.S.C. §§ 2241, 2254, or 2255. We know appointments under subsection (a)(2) are discretionary because Congress provided that a court “may” appoint counsel in these circumstances if “the court 40 No. 24-1576

determines that the interests of justice so require.” Id. § 3006A(a)(2)(A)–(B). A third provision within § 3006A also informs the analy- sis. Subsection (c) provides direction on the duration and scope of the mandatory and discretionary appointments au- thorized by subsections (a)(1)–(2). Congress wrote the rele- vant language in subsection (c) this way: (c) DURATION AND SUBSTITUTION OF APPOINTMENTS.—A person for whom counsel is appointed shall be represented at every stage of the proceedings from his initial appearance be- fore the United States magistrate judge or the court through appeal, including ancillary mat- ters appropriate to the proceedings. Id. § 3006A(c). B With the pertinent statutory language on the table, a few observations are clear. First, everyone agrees that subsection (a)(1)’s listing of the ten circumstances requiring the appointment of counsel con- tains no reference to defendants seeking a reduced sentence under § 3582(c). Second, everyone likewise recognizes that the circum- stances permitting discretionary appointments under subsec- tion (a)(2) do not include § 3582(c) motions. Third, subsection (c) tells us that authorized appointments of counsel extend to “every stage of the proceedings from [a defendant’s] initial appearance … through appeal, including ancillary matters appropriate to the proceedings.” 18 U.S.C. No. 24-1576 41

§ 3006A(c) (emphasis added). This acts as a clarifying provi- sion. Many subsection (a) appointments need no clarification. Subsection (a)(1)(D), for instance, requires appointment of counsel when a person is under arrest and such representa- tion is required by law. Implicit in this provision is that the appointment lasts for as long as required by law—for exam- ple, throughout a custodial interrogation. But not all subsection (a) appointments are so self- explanatory. In those cases, subsection (c) supplies guidance on the appointment’s duration and scope. The provision begins by specifying the duration of appointments—from initial appearance through appeal. It then explains that the appointment extends to certain ancillary proceedings. But its use of the word “including” is important. That word works in tandem with the durational language immediately preceding it to limit the time period for appointed representation in such ancillary matters. Put another way, “including” is a relational term, meaning “to contain between or within.” Include, Merriam Webster’s (11th ed. 2009). It makes plain that any representation in an “ancillary matter” must relate to the durational period expressly identified in subsection (c)—the period of initial appearance through appeal. Congress, in short, did not say that authorized appointments cover the period from initial appearance through appeal and any attendant ancillary matters appropriate to an underlying proceeding. These observations combine to resolve the question pre- sented. Congress neither required the appointment of counsel in § 3582(c) proceedings under subsection (a)(1) nor author- ized it as a discretionary matter under subsection (a)(2). And, for its part, subsection (c) does not supply any supplemental 42 No. 24-1576

appointment authority over any ancillary proceedings arising after an appeal—when all § 3582(c) proceedings arise. I know of no authority authorizing a defendant to pursue a reduced sentence under § 3582(c) during the pendency of a direct ap- peal. See United States v. Martin, 21 F.4th 944, 945–46 (7th Cir. 2021) (explaining that a defendant could not “use a motion for compassionate release” under § 3582(c)(1)(A)(i) to challenge an alleged sentencing error while his direct appeal was “un- der review”). We adopted this exact construction of the CJA in United States v. Foster, 706 F.3d 887, 888 (7th Cir. 2013) (concluding that “[t]he Criminal Justice Act does not supply the necessary permission to pay a lawyer from the public fisc” in § 3582(c)(2) proceedings). And contrary to Judge Hamilton’s suggestion, no circuit has examined this issue in any detail, let alone expressly held that the CJA authorizes discretionary appointments of counsel in § 3582(c) proceedings. See Op. J. Hamilton at 19–20. I would adhere to Foster here and utilize our internal Rule 40(e) process to make clear that any contrary decisions do not reflect the law of the circuit. See, e.g., United States v. Guerrero, 946 F.3d 983, 985 (7th Cir. 2020) (“Foster holds that district courts are not required to appoint counsel [in § 3582(c)(2) proceedings], but it does not prohibit them from doing so.”) (emphasis in original)). The analysis ends there. Where, as here, statutory lan- guage answers the question, the Supreme Court has given us clear direction—stop. See, e.g., Nat'l Ass'n of Mfrs. v. Dep't of Def., 583 U.S. 109, 127 (2018); Mohamad v. Palestinian Auth., 566 U.S. 449, 458–59 (2012); Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 (2003). Absent statutory ambiguity, we have no authority to look beyond the language Congress enacted into law to No. 24-1576 43

resolve the case before us. Any different answer must come from Congress. This is the way the Constitution divided power among the three branches of government. C To his credit, Bonds in no way questions the analytical ap- proach federal courts generally take to resolving matters of statutory interpretation. He even takes care to recognize that the plain and differing language of § 3006A(a)(1)–(2) goes most of the way to resolving the question presented. But most of the way is not all the way, and Bonds, much like the ap- proach taken by Judge Hamilton, urges us to see ambiguity within the CJA and to resolve that ambiguity by resorting to the statute’s history and the doctrine of congressional acqui- escence to conclude that § 3006A(a)(1) and (c) permit discre- tionary appointments in § 3582(c) proceedings. I cannot get there. Foremost, I see no way to read subsec- tion (a)(1) as conferring discretionary appointment authority. In no uncertain terms, Congress stated that “[r]epresentation shall be provided” in ten circumstances—not one of which is a § 3582(c) proceeding. Nor do I see subsection (c) as helping Bonds. Perhaps it is somehow possible to construe a § 3582(c) motion as an “ancillary matter” to a felony criminal proceeding (within the meaning of subsection (a)(1)(A)). But see United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995) (“[A]s a matter of common sense, a motion to modify a sentence pursuant to § 3582(c)(2), which can be filed long after conviction, is too far removed to be considered ‘ancillary’ to the criminal proceeding.”). And even if we go a step further and interpret subsection (c)—through Congress’s use of the formulation 44 No. 24-1576

“ancillary matters appropriate to the proceedings”—as affording a court some degree of discretionary appointment authority, the appointment cannot extend to a proceeding arising beyond the finality of a direct appeal. We know that because Congress’s use of “including” in subsection (c) is modified by its preceding durational language—“initial appearance … through appeal.” Here, Bonds filed his § 3582(c) motion long after his direct appeal had concluded. In no way, then, can Bonds’s § 3582(c) proceeding be considered an “ancillary matter appropriate to” his original felony prosecution included in the period between his initial appearance and appeal. There is more. To accept Bonds’s and Judge Hamilton’s conclusion that subsections (a)(1) and (c) are ambiguous is to accept serious tension with the overall structure of the CJA, and, more specifically, with multiple subsection (a) appoint- ments. It is mighty odd for Congress to itemize a lengthy list of circumstances mandating the appointment of counsel, only then to use a durational provision to expand the list and make other appointments discretionary. A closer look at subsection (a) only amplifies the tension. Recall that subsection (a)(2)(B) authorizes discretionary ap- pointments in post-conviction proceedings under 28 U.S.C. §§ 2241, 2254, and 2255. If Bonds and Judge Hamilton are right that a pursuit of a reduced sentence under § 3582(c) is an “ancillary matter appropriate to the [initial criminal] pro- ceeding[],” subsection (a)(2)(B) sure seems redundant. Put an- other way, if subsections (a)(1) and (c) combine to confer the discretionary authority necessary for appointments in any post-direct appeal proceedings ancillary to the original crim- inal proceeding with no matter to when those proceedings No. 24-1576 45

occur, Congress had no need to add subsection (a)(2)(B) ha- beas appointment authority to the CJA. The same is true for subsections (a)(1)(C) & (E)—Congress would have no need to carve out appointments in proceed- ings where a defendant faces a violation of supervised release or probation because those proceedings surely relate to the defendant’s original sentencing. See 18 U.S.C. § 3006A(a)(1)(C) & (E). We should avoid interpreting the CJA that way. See Hibbs v. Winn, 542 U.S. 88, 101 (2004) (“A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or in- significant ….”) (quoting 2A Norman J. Singer, Statutes and Statutory Construction § 46.06 (rev. 6th ed. 2000)). The analysis must stop there. For better or worse—and agree or disagree with its answer—Congress has resolved the question before us. Absent ambiguity, we have no license to resort to legislative history or other tools commonly used to resolve a lack of statutory clarity. See McGirt v. Oklahoma, 591 U.S. 894, 916 (2020) (“There is no need to consult extratextual sources when the meaning of a statute’s terms is clear. Nor may extratextual sources overcome those terms.”). III Cases like this make judging hard. Congress has answered the question before us in a way that leaves courts with no au- thority to react to a federal prisoner’s § 3582(c)(2) motion by appointing counsel, no matter how meritorious the motion seems to be and no matter how ill-equipped a prisoner to rep- resent himself. Nobody made this point better than the counsel we ap- pointed on appeal to represent Bonds. Mr. Patton, a career 46 No. 24-1576

federal defender, told us with great clarity and conviction that nothing less than liberty hangs in the balance with § 3582(c) motions, with the appointment of counsel often being the dis- positive factor between some chance of sentencing relief and no chance. It makes little sense, he added, that the very same Congress that authorized such relief under § 3582(c) would have intended the Criminal Justice Act to preclude appoint- ments of counsel to assist a prisoner in those proceedings, es- pecially given the complexity of today’s federal sentencing law. Truth be told, I think Mr. Patton has the practical reality 100% right. Yet no matter how many times I read the parties’ briefs or review the Criminal Justice Act, I return to the same conclusion: the statute’s language resolves the question, no matter how much I disfavor the answer. Congress did not au- thorize the provisional appointment of Mr. Patton to repre- sent Bonds on appeal, and it is Congress alone the Constitu- tion empowers to amend the statute. That precept has been clear for 200 years. See Osborn v. Bank of United States, 22 U.S. 738, 866 (1824) (“Judicial power is never exercised for the pur- pose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.”). In my respectful view, we have no choice but to hold that the Criminal Justice Act does not permit the appointment of counsel to assist federal prisoners with the pursuit of sentence reductions under § 3582(c).