United States v. Ross Thacker

4 F.4th 569

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 15, 2021
• Docket: 20-2943
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-2943 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ROSS THACKER, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Central District of Illinois. No. 2:03-cr-20004-MMM-2 — Michael M. Mihm, Judge. ____________________

ARGUED MAY 13, 2021 — DECIDED JULY 15, 2021 ____________________

Before SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit Judges. SCUDDER, Circuit Judge. Ross Thacker is serving a 33-year federal sentence for a series of armed robberies he committed in 2002. The sentence included so-called stacked penalties— imposed to run consecutively to one another—for two convic- tions under 18 U.S.C. § 924(c) for using and carrying a firearm during two of the robberies. The first § 924(c) conviction re- sulted in a mandatory minimum sentence of 7 years, and the 2 No. 20-2943

second added a mandatory consecutive sentence of at least 25 years. In September 2020 Thacker invoked 18 U.S.C. § 3582(c)(1)(A) and sought to reduce his sentence based not only on the health risks of exposure to COVID-19 within prison, but also on the amendment Congress enacted in the First Step Act of 2018 to limit the circumstances in which mul- tiple sentences for violations of § 924(c) can be stacked. The district court denied Thacker’s motion, concluding in part that the discretion in § 3582(c)(1)(A) to reduce a sentence upon finding “extraordinary and compelling reasons” does not in- clude the authority to reduce § 924(c) sentences lawfully im- posed before the effective date of the First Step Act’s anti- stacking amendment. Federal courts across the country have—and continue to— weigh in on this question, sometimes reaching different con- clusions. We now weigh in too—and agree with the district court. Given Congress’s express decision to make the First Step Act’s change to § 924(c) apply only prospectively, we hold that the amendment, whether considered alone or in connection with other facts and circumstances, cannot consti- tute an “extraordinary and compelling” reason to authorize a sentencing reduction. So we affirm. I A Ross Thacker and a friend committed several armed rob- beries in and around Champaign, Illinois in 2002. Federal charges followed and two jury trials resulted in Thacker being convicted of two violations of 18 U.S.C. § 1951 (commercial robbery) and two accompanying violations of 18 U.S.C. No. 20-2943 3

§ 924(c) for using and carrying a firearm in furtherance of a crime of violence. The district court sentenced Thacker to 33 years and 4 months’ imprisonment and 5 years of supervised release. Seven of those 33 years came from the sentence imposed for Thacker’s first § 924(c) violation. See 18 U.S.C. § 924(c)(1)(A)(ii) (2002). A consecutive 25 years followed for the second violation of § 924(c). See id. § 924(c)(1)(C)(i) (2002). Those sentences reflected the mandatory minimum and con- secutive terms of imprisonment Congress prescribed for vio- lations of § 924(c) at the time of Thacker’s sentencing. In short, the district court had no choice but to sentence Thacker to at least 7 years for the first § 924(c) violation and then to at least 25 consecutive years for the second. We affirmed Thacker’s convictions on direct appeal. See United States v. Thacker, 206 F. App’x 580 (7th Cir. 2006). B In August 2020, after exhausting his remedies within the Bureau of Prisons, Thacker filed a pro se motion for compas- sionate release under 18 U.S.C. § 3582(c)(1)(A). Upon review- ing Thacker’s motion, the district court appointed counsel to represent him. Thacker’s counsel then submitted an amended motion. The amended motion pointed to the significance of the First Step Act’s change to § 924(c)’s penalty structure and added health-related considerations amid the COVID-19 pan- demic. Thacker explained that he suffered from Type-2 diabe- tes and hypertension and faced an increased risk of exposure to and complications from COVID-19 within the federal cor- rectional institution in Gilmer County, West Virginia, where he is serving his sentence. 4 No. 20-2943

The First Step Act of 2018 effected significant changes to aspects of federal criminal sentencing. See Pub. L. No. 115- 391, 132 Stat. 5194. For one, federal prisoners acquired the right under 18 U.S.C. § 3582(c)(1)(A) to request a reduction in their sentences. No longer do they have to persuade and de- pend on the Bureau of Prisons to bring the motion on their behalf, which rarely happened before the First Step Act. For another, Congress amended the penalties mandated by cer- tain statutes, including § 924(c). Before the Act, a second or subsequent conviction under § 924(c) mandated the imposition of a minimum sentence of 25 years to run consecutive to all other sentences, including any sentence imposed (even in the same case) for a first con- viction under § 924(c). See 18 U.S.C. § 924(c)(1)(C)(i) (2002). The First Step Act changed that. An enhanced sentence for a second or subsequent conviction under § 924(c) now applies only when the first § 924(c) conviction arises from a separate case and becomes final before the second conviction. See § 403, 132 Stat. at 5221–22. Had Ross Thacker been sentenced after the First Step Act became law, he would have faced a 14-year mandatory mini- mum—7 years for each of his two § 924(c) convictions for brandishing a firearm during an armed robbery. Instead, Thacker faced a 32-year sentence for his two § 924(c) convic- tions. That 18-year difference understandably means all the world to Thacker. The district court denied Thacker’s motion for two pri- mary reasons. First, the district court found that COVID-19 was well controlled within FCI Gilmer and otherwise that Thacker’s health conditions were being managed with medi- cation. In short, the district court concluded that Thacker’s No. 20-2943 5

health conditions did not amount to an extraordinary and compelling reason for early release. Second, and as for the First Step Act’s amendment to § 924(c), the district court observed that the amendment, by its terms, applied only prospectively and therefore that the sentencing disparity highlighted by Thacker could not serve as an extraordinary and compelling reason warranting a sen- tencing reduction. In denying Thacker’s motion, the district court lacked the benefit of our recent decision in United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020). As a result, the district court made the mistake of resting a part of its reasoning on the Sentencing Commission’s policy statement defining what may constitute an extraordinary and compelling reason for purposes of a dis- cretionary compassionate release sentencing reduction under § 3582(c)(1)(A)(i). In Gunn, we concluded that while the policy statement could serve as a guide to district courts, it was bind- ing only on compassionate release motions made by the Di- rector of the Bureau of Prisons. See id. at 1179. But that mistake is of no moment on appeal because the district court also expressly addressed Thacker’s argument on the merits, and observed that Congress, in § 403(b) of the First Step Act, expressly made the anti-stacking amendment effec- tive only prospectively. Congress’s choice, the district court concluded, meant that the sentencing disparity resulting from the amendment to § 924(c) could not constitute an extraordi- nary and compelling reason for a discretionary sentencing re- duction and early release under § 3582(c)(1)(A). Reasoning in the alternative, the district court also under- scored that, even if the First Step Act’s amendment to § 924(c) 6 No. 20-2943

were retroactive, the court would not exercise its discretion to grant Thacker early release. On this front, the district court applied the factors in 18 U.S.C. § 3553(a) and found that Thacker, in light of his offense conduct and criminal history, continued to present a danger to the community. Thacker now appeals. II Congress made plain in § 403(b) of the First Step Act that the amendment to 18 U.S.C. § 924(c) “shall apply to any of- fense that was committed before the date of the enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” By its terms, then, the First Step Act’s anti-stacking amendment applies prospectively. There is no way to read that choice as anything other than deliberate, for Congress charted a different course in other provisions of the First Step Act. Consider, for example, § 404, in which Congress permitted defendants who were sentenced before the Fair Sentencing Act of 2010 to benefit from that law’s sentencing reform—including the elimination of man- datory minimum sentences for simple possession and the in- creased threshold quantity of crack cocaine necessary to trig- ger mandatory penalties. Congress made those changes retro- active. These distinctions matter, and they are ones reserved for Congress to make. Interpreting § 403 to apply retroac- tively would unwind and disregard Congress’s clear direc- tion that the amendment apply prospectively. The district court was right to see Thacker’s motion, at least in part, as an attempted end-run around Congress’s decision in the First Step Act to give only prospective effect to its amendment of § 924(c)’s sentencing scheme. No. 20-2943 7

The compassionate release statute, § 3582(c)(1)(A), affords district courts discretion to reduce a term of imprisonment upon finding, among other requirements, “extraordinary and compelling reasons to warrant such a reduction.” If a district court finds such reasons exist, it then must weigh any of the applicable sentencing factors in 18 U.S.C. § 3553(a) in deter- mining whether to reduce a sentence. See 18 U.S.C. § 3582(c)(1)(A). Many a federal prisoner has invoked the ex- traordinary and compelling reasons provision as part of seek- ing a sentencing reduction, often citing extraordinary health circumstances involving terminal illness. See Gunn, 980 F.3d at 1179. We recently explained that, until the Sentencing Com- mission updates its policy statement to reflect prisoner-initi- ated compassionate release motions, district courts have broad discretion to determine what else may constitute “ex- traordinary and compelling reasons” warranting a sentence reduction. See id. at 1180–81. But the discretionary authority conferred by § 3582(c)(1)(A) only goes so far. It cannot be used to effect a sentencing reduction at odds with Congress’s express deter- mination embodied in § 403(b) of the First Step Act that the amendment to § 924(c)’s sentencing structure apply only pro- spectively. To conclude otherwise would allow a federal pris- oner to invoke the more general § 3582(c) to upend the clear and precise limitation Congress imposed on the effective date of the First Step Act’s amendment to § 924(c). See United States v. Jarvis, 999 F.3d 442, 2021 WL 2253235, at *2 (6th Cir. June 3, 2021). Put another way, there is nothing “extraordinary” about leaving untouched the exact penalties that Congress prescribed and that a district court imposed for particular vi- olations of a statute. See United States v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021) (Tymkovich, C.J., concurring) (“Indeed, 8 No. 20-2943

the imposition of a sentence that was not only permissible but statutorily required at the time is neither an extraordinary nor a compelling reason to now reduce that same sentence.”). We harbor broader concerns with allowing § 3582(c)(1)(A) to serve as the authority for relief from mandatory minimum sentences prescribed by Congress. We see nothing preventing the next inmate serving a mandatory minimum sentence un- der some other federal statute from requesting a sentencing reduction in the name of compassionate release on the basis that the prescribed sentence is too long, rests on a misguided view of the purposes of sentencing, reflects an outdated leg- islative choice by Congress, and the like. Rationales along those lines cannot supply an extraordinary and compelling reason to reduce a lawful sentence whose term Congress en- acted, and the President signed, into law. Any other conclu- sion offends principles of separation of powers. In making this observation, we are not saying that extraor- dinary and compelling individual circumstances, such as a terminal illness, cannot in particular cases supply the basis for a discretionary sentencing reduction of a mandatory mini- mum sentence. See Gunn, 980 F.3d at 1179. But we are saying that the discretion conferred by § 3582(c)(1)(A) does not in- clude authority to reduce a mandatory minimum sentence on the basis that the length of the sentence itself constitutes an extraordinary and compelling circumstance warranting a sen- tencing reduction. And so too do we worry that a contrary conclusion about the scope of the discretion conferred by § 3582(c)(1)(A) would allow the compassionate release statute to operate in a way that creates tension with the principal path and conditions Congress established for federal prisoners to challenge their No. 20-2943 9

sentences. That path is embodied in the specific statutory scheme authorizing post-conviction relief in 28 U.S.C. § 2255 and accompanying provisions. See Hrobowski v. United States, 904 F.3d 566, 567–68 (7th Cir. 2018). We previously affirmed Thacker’s convictions on direct appeal. And Thacker already unsuccessfully attacked his sen- tence under § 2255, so he would need express authorization to bring a second or successive request for post-conviction re- lief. See 28 U.S.C. § 2244(a). But he cannot do so, at least not on the basis of the First Step Act’s amendment to § 924(c). Congress permits a second or successive § 2255 motion only if it contains “newly discovered evidence” or relies on a “new rule of constitutional law, made retroactive to cases on collat- eral review by the Supreme Court.” 28 U.S.C. § 2255(h)(1)–(2); see Hrobowski, 904 F.3d at 568. We have already twice rejected Thacker’s attempts at a successive § 2255 appeal. See Thacker v. United States, No. 16-3530 (7th Cir. October 6, 2016); Thacker v. United States, No. 16-1191 (7th Cir. March 2, 2016). He pre- sents no new evidence nor has the Supreme Court made any such ruling with respect to the § 924(c) stacking provision. To the contrary, the Supreme Court has found no constitutional infirmity with the prior § 924(c) stacked sentencing scheme. See Deal v. United States, 508 U.S. 129, 136–37 (1993) (involving a challenge that § 924(c)(1) is facially ambiguous). In the end, our conclusion is limited. We hold only that the discretionary sentencing reduction authority conferred by § 3582(c)(1)(A) does not permit—without a district court find- ing some independent “extraordinary or compelling” rea- son—the reduction of sentences lawfully imposed before the effective date of the First Step Act’s amendment to § 924(c). Nothing about our holding precludes district courts, upon 10 No. 20-2943

exercising the discretion conferred by § 3582(c)(1)(A) and de- termining that a sentence reduction is warranted, from con- sidering the First Step Act’s amendment to § 924(c) in deter- mining the length of the warranted reduction. In fact, as other courts have persuasively explained, this may be the more ef- fective way to get at the § 924(c) sentencing disparity. See Jar- vis, 999 F.3d 442, 2021 WL 2253235, at *3. III In closing, we observe that we are not the only court to deal with this issue. In fact, it has come up across the country, and courts have come to principled and sometimes different conclusions as to whether the change to § 924(c) can constitute an extraordinary and compelling reason for compassionate release. The Fourth Circuit, on the one hand, takes the view that the sentencing disparity resulting from the anti-stacking amendment to § 924(c) may constitute an extraordinary and compelling reason for release. See United States v. McCoy, 981 F.3d 271, 285–87 (4th Cir. 2020). On the other hand, a panel of the Sixth Circuit more re- cently took the opposite view. See Jarvis, 999 F.3d 442, 2021 WL 2253235, at *3. This followed from a previous decision of the Sixth Circuit concluding that another nonretroactive change to sentencing law in the First Step Act could not, by itself, constitute an extraordinary and compelling reason for release. See United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021). To a lesser extent and with little elaboration, the Eighth Circuit seems to be on this side of the ledger too. See United States v. Loggins, 966 F.3d 891, 892–93 (8th Cir. 2020) (observ- ing that the district court did not misstate the law in finding No. 20-2943 11

“that a non-retroactive change in law did not support a find- ing of extraordinary or compelling reasons for release”). The Tenth Circuit has adopted a middle ground, deter- mining that the sentencing disparity resulting from a nonret- roactive change to sentencing law in the First Step Act may serve in combination with other rationales as an extraordi- nary and compelling reason for early release. See United States v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021); see also Maumau, 993 F.3d at 837. Another panel of the Sixth Circuit, in a decision issued before Jarvis, echoed this same approach for the change to § 924(c). See United States v. Owens, 996 F.3d 755, 764 (6th Cir. 2021). Our own court is familiar with this debate too. We heard United States v. Black, — F.3d —, 2021 WL 2283876 (7th Cir. June 4, 2021), Thacker’s appeal, and a third case, United States v. Sutton, No. 20-2876 (7th Cir. argued Apr. 27, 2021), earlier this year. All three appeals implicated, to one degree or an- other, the First Step Act’s amendment to § 924(c) and its rela- tion to a request for a compassionate release sentencing re- duction under § 3582(c)(1)(A). But whether the change to § 924(c) could constitute an extraordinary and compelling reason for release was squarely presented in only this appeal and Sutton. Black, by contrast, principally concerned whether the district court in that case should have weighed the change to § 924(c) when applying the § 3553(a) factors after the pris- oner identified serious medical concerns as an independent extraordinary and compelling reason for release. In vacating the district court’s denial of compassionate re- lease in Black, we cited with favor the views of both the Fourth and Tenth Circuits, while also observing that Congress’s changes to the statutory sentencing scheme in § 924(c) might 12 No. 20-2943

factor into a district court’s individualized determination of whether the § 3553(a) sentencing factors weighed in favor of Eural Black’s early release. See Black, — F.3d —, 2021 WL 2283876, at *3. We then remanded the case with instructions allowing the district court to consider the change to § 924(c) as part of deciding Black’s request for a sentencing reduction. Black’s broad language and express reliance on the Fourth Cir- cuit’s decision in McCoy left the opinion open to the observa- tion that we had concluded Congress’s recent amendment to § 924(c) can itself constitute an extraordinary and compelling reason justifying early release under § 3582(c)(1)(A). See id. at *5 n.3 (Kirsch, J., dissenting) (advancing this precise point). We take the opportunity here to answer squarely and de- finitively whether the change to § 924(c) can constitute an ex- traordinary and compelling reason for a sentencing reduc- tion. It cannot. The proper analysis when evaluating a motion for a dis- cretionary sentencing reduction under § 3582(c)(1)(A) based on “extraordinary and compelling” reasons proceeds in two steps. At step one, the prisoner must identify an “extraordi- nary and compelling” reason warranting a sentence reduc- tion, but that reason cannot include, whether alone or in com- bination with other factors, consideration of the First Step Act’s amendment to § 924(c). Upon a finding that the prisoner has supplied such a reason, the second step of the analysis re- quires the district court, in exercising the discretion conferred by the compassionate release statute, to consider any applica- ble sentencing factors in § 3553(a) as part of determining what sentencing reduction to award the prisoner. Before issuing this opinion, we circulated it to the full court under Circuit Rule 40(e). No judge in active service No. 20-2943 13

requested to hear this case en banc. * Accordingly, the legal framework articulated in this opinion reflects the law of the Circuit. For these reasons, we AFFIRM the district court’s denial of Thacker’s compassionate release motion.

*Circuit Judge Jackson-Akiwumi did not participate in the consideration or decision of this case.