United States of America v. Rodrigo Rodriguez-Mendez

United States Court of Appeals
For the Eighth Circuit
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No. 22-2399
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Rodrigo Rodriguez-Mendez
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: January 12, 2023
Filed: April 25, 2023
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Before SMITH, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
In 2002, a jury convicted Rodrigo Rodriguez-Mendez of drug-related crimes,
including conspiracy to distribute 500 grams or more of methamphetamine. Based
on prior felony drug convictions, the district court imposed a mandatory life sentence
on the conspiracy count. See 21 U.S.C. § 841(b)(1)(A) (2002); United States v.
Rodriguez-Mendez, 336 F.3d 692 (8th Cir. 2003). In the First Step Act, Congress
eliminated mandatory life sentences for this offense. First Step Act of 2018, Pub. L.

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No. 115-391, § 401(a)(2), 132 Stat. 5194, 5220. However, Congress did not make
§ 401(a) sentence reductions retroactively available to persons who were convicted
and sentenced before the First Step Act’s enactment. § 401(c).
Rodriguez-Mendez moved to reduce his sentence under 18 U.S.C.
§ 3582(c)(1)(A), commonly known as a motion for compassionate release. This
statute was amended by the First Step Act to permit a defendant to file the motion.
First Step Act § 603(b)(1). It provides that the sentencing court “may reduce the term
of imprisonment . . . if it finds that (i) extraordinary and compelling reasons warrant
such a reduction.” The district court1 denied the motion, concluding that
§ 3582(c)(1)(A) relief is foreclosed by United States v. Crandall, 25 F.4th 582 (8th
Cir. 2022). In Crandall, we held that a non-retroactive change in law regarding
sentencing, such as § 401(a)(2) of the First Step Act, “whether offered alone or in
combination with other factors, cannot contribute to a finding of ‘extraordinary and
compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A).” Id. at 586.
Rodriguez-Mendez appeals. He concedes Crandall is otherwise controlling but
argues it is contrary to a Supreme Court decision issued after the district court ruled,
Concepcion v. United States, 142 S. Ct. 2389 (2022). Thus, the issue is whether this
appeal falls within a limited exception to our prior-panel rule -- when “an intervening
expression of the Supreme Court is inconsistent with those previous opinions.”
Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). We conclude Concepcion did
not overrule our prior decision in Crandall. Accordingly, we affirm.
1The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
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I.
“A federal court generally ‘may not modify a term of imprisonment once it has
been imposed’ [unless] Congress has provided an exception to that rule.” Dillon v.
United States, 560 U.S. 817, 819 (2010), quoting 18 U.S.C. § 3582(c); see United
States v. Addonizio, 442 U.S. 178, 189 & n.16 (1979).
Section 3582(c), part of the Sentencing Reform Act of 1984, codified two new
exceptions to this general rule, described by the Senate Judiciary Committee as
“safety valves.” S. Rep. No. 98-225, at 121 (1983). First, § 3582(c)(2) authorizes the
sentencing court to reduce a term of imprisonment based on a guidelines range
subsequently lowered by the Sentencing Commission, “if such a reduction is
consistent with applicable policy statements issued by the Sentencing Commission.”
In 28 U.S.C. § 994(u), Congress directed the Commission to “specify in what
circumstances and by what amount the sentences of prisoners serving terms of
imprisonment for [a particular] offense may be reduced.” This includes the power “to
decide whether and to what extent [Commission] amendments reducing sentences
will be given retroactive effect.” Braxton v. United States, 500 U.S. 344, 348 (1991).
The implementing policy statement provides that the court may reduce a sentence
only if the defendant’s guideline range has been reduced in a retroactive amendment.
USSG § 1B1.10(a)(1), (d). “A court’s power under § 3582(c)(2) thus depends in the
first instance on the Commission’s decision not just to amend the Guidelines but to
make the amendment retroactive.” Dillon, 560 U.S. at 826.
Second, § 3582(c)(1)(A), the provision here at issue, authorized the sentencing
court, upon motion of the Director of the Bureau of Prisons, to reduce a sentence of
imprisonment if it finds that, as relevant here, “extraordinary and compelling reasons
warrant such a reduction . . . and that such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” In 28 U.S.C. § 994(t),
Congress directed the Commission to define “what should be considered
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extraordinary and compelling reasons for [a] sentence reduction.” Some years later,
the Commission published its substantive definition in USSG § 1B1.13.
In Application Note 1 to § 1B1.13, the Commission defined four categories of
circumstances that meet the statutory requirement of “extraordinary and compelling
reasons” in § 3582(c)(1)(A) -- the defendant’s medical condition, age, family
circumstances, and a fourth catch-all category, “Other Reasons -- [a]s determined by
the Director of the Bureau of Prisons.” This Guideline has not been amended since
the First Step Act was enacted in December 2018 -- until recently, the Sentencing
Commission lacked a quorum to amend the Guidelines. Because § 1B1.13,
particularly the catch-all in Application Note 1(D), was drafted when only the
Director of the Bureau of Prisons could file § 3582(c)(1)(A) motions, some circuits
have held that § 1B1.13 is no longer an “applicable policy statement,” leaving courts
free to determine what circumstances constitute “extraordinary and compelling
reasons.” See United States v. Long, 997 F.3d 342, 355 (D.C. Cir. 2021); United
States v. Aruda, 993 F.3d 797, 801 (9th Cir. 2021); United States v. McCoy, 981 F.3d
271, 284 (4th Cir. 2020). A divided panel of the Eleventh Circuit disagreed, noting
that “the substantive standards in 1B1.13 are clearly capable of being applied to
defendant-filed reduction motions.” United States v. Bryant, 996 F.3d 1243, 1253
(11th Cir. 2021). We noted this issue without taking a position in Crandall,
commenting that “the statute . . . makes consistency with an applicable policy
statement a mandatory condition for a reduction in sentence,” and the First Step Act
simply made a “procedural change” by allowing defendants to file motions for
§ 3582(c)(1)(A) relief. 25 F.4th at 584 (alteration in original). The Sentencing
Commission’s recently published proposed amendment to § 1B1.13 (discussed
below) should resolve any doubt it continues to be an “applicable policy statement.”
There is also a circuit split on the merits of whether a nonretroactive change in
the law -- whether by statute or by guidelines amendment -- can constitute an
extraordinary and compelling reason for § 3582(c)(1)(A) relief. The Sixth Circuit,
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resolving conflicting panel decisions on this issue, explained that background
principles of federal sentencing law -- finality and nonretroactivity -- bring the
meaning of “extraordinary and compelling reasons” into sharper focus:
What is ordinary -- the nonretroactivity of judicial precedent announcing
a new rule of criminal procedure [] -- is not extraordinary. And what is
routine -- a criminal defendant . . . serving the duration of a lawfully
imposed sentence -- is not compelling.
United States v. McCall, 56 F.4th 1048, 1056 (6th Cir. 2022) (en banc); accord
United States v. Andrews, 12 F.4th 255, 260-61 (3d Cir. 2021); United States v.
Thacker, 4 F.4th 569, 576 (7th Cir. 2021); United States v. Maumau, 993 F.3d 821,
838 (10th Cir. 2021) (Tymkovich, C.J., concurring). Crandall sided with these
circuits, concluding that a non-retroactive change in sentencing law “cannot
contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in
sentence under § 3582(c)(1)(A).” 25 F.4th at 586.
II.
Rodriguez-Mendez argues that Concepcion implicitly overruled our decision
in Crandall. Therefore, he concludes, the disparity between the mandatory life
sentence initially imposed and the lower sentence he could have received if § 401 of
the First Step Act had been in place at his initial sentencing can be an “extraordinary
and compelling reason” warranting § 3582(c)(1)(A) relief. The argument ignores a
critical difference between this case and Concepcion -- the two cases involved
different exceptions to the general rule that a federal court may not modify a term of
imprisonment once it has been imposed. Rodriguez-Mendez moved for a reduced
sentence under § 3582(c)(1)(A), not under § 404(b) of the First Step Act.
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In Concepcion, the defendant sought a reduced sentence under § 404(b) of the
First Step Act, which authorizes the district court that imposed a sentence for certain
covered offenses to “impose a reduced sentence . . . as if sections 2 and 3 of the Fair
Sentencing Act of 2010 . . . were in effect at the time the covered offense was
committed.” 142 S. Ct. at 2397 (quotation omitted). It was undisputed that
Concepcion committed a covered offense and therefore was eligible for § 404(b)
relief. Id.; see generally United States v. Hoskins, 973 F.3d 918, 921 (8th Cir. 2020).
Thus, the issue in Concepcion was whether the district court abused its § 404(b)
discretion in denying relief because it could not consider intervening changes of law
or fact after the initial sentencing. The First Circuit affirmed; the Supreme Court
granted a writ of certiorari to resolve a circuit split on this issue. Concepcion, 142 S.
Ct. at 2398. The Court reversed, concluding that the broad discretion of federal
courts “to consider all relevant information at an initial sentencing hearing . . . also
carries forward to later proceedings that may modify an original sentence.” Id.
Rodriguez-Mendez argues the Supreme Court’s reasoning in Concepcion
applies to his motion for a sentence reduction under § 3582(c)(1)(A). However, the
issue on this appeal is whether Rodriguez-Mendez is eligible for a sentence reduction
under § 3582(c)(1)(A). To be eligible for relief under § 404(b) of the First Step Act,
the defendant must have committed a “covered offense.” But Congress in the
Sentencing Reform Act enacted more stringent limitations on eligibility for the
“safety valve” exceptions to criminal judgment finality in § 3582(c). The statute
established a two-step inquiry. Before deciding whether and how to exercise its
discretion to reduce a sentence, the district court must first determine whether a
reduction is consistent with USSG § 1B1.10, for a § 3582(c)(2) reduction, or with
§ 1B1.13, for a § 3582(c)(1)(A) reduction. See Dillon, 560 U.S. at 826. The
Supreme Court in Concepcion acknowledged the statutory limitations on § 3582(c)
sentence modification proceedings, noting that “Congress expressly cabined district
courts’ discretion by requiring courts to abide by the Sentencing Commission’s policy
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statements” in deciding whether to grant compassionate release relief under
§ 3582(c)(1)(A). 142 S. Ct. at 2401.
Like other circuits that have considered the issue, we conclude that
“Concepcion does not bear on the threshold question whether any given prisoner has
established an ‘extraordinary and compelling reason’ for release.” United States v.
Peoples, 41 F.4th 837, 842 (7th Cir. 2022) (quotation omitted); accord United States
v. Jenkins, 50 F.4th 1185, 1200 (D.C. Cir. 2022); United States v. Bledsoe, No.
22-2022, 2022 WL 3536493, at *2 (3d Cir. Aug. 18, 2022). Concepcion concerned
what district judges may consider in exercising their discretion to grant or deny a
sentence reduction. No doubt the Court’s reasoning would apply when a motion for
compassionate release establishes an extraordinary and compelling reason for relief
other than a nonretroactive change in the law, such as the defendant’s medical
condition, age, or family circumstances, and the court is exercising its discretion to
grant relief. But “Concepcion is irrelevant to the threshold question” of whether
Rodriguez-Mendez has shown an “extraordinary and compelling reason” for
§ 3582(c)(1)(A) relief. United States v. King, 40 F.4th 594, 596 (7th Cir. 2022).
The Sentencing Commission’s proposed amendment to § 1B1.13, unless
rejected by Congress, will “implement the First Step Act’s relevant provisions.” The
amendment moves the list of extraordinary and compelling reasons from the
Commentary to the Guideline itself, with significant changes. Two proposed changes
directly address the issue on appeal.
(b)(6) UNUSUALLY LONG SENTENCES. If a defendant
received an unusually long sentence and has served at
least 10 years of the term of imprisonment, a change in the
law (other than an amendment to the Guidelines Manual
that has not been made retroactive) may be considered in
determining whether the defendant presents an
extraordinary and compelling reason . . . .
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(c) LIMITATION ON CHANGES IN LAW. Except as provided in
subsection (b)(6), a change in the law (including an amendment
to the Guidelines Manual that has not been made retroactive)
shall not be considered for purposes of determining whether an
extraordinary and compelling reason exists under this policy
statement. However, if a defendant otherwise establishes that
extraordinary and compelling reasons warrant a sentence
reduction . . . a change in the law (including an amendment to the
Guidelines Manual that has not been made retroactive) may be
considered for purposes of determining the extent of any such
reduction.2
It thus appears that the Commission proposes to adopt (or to express more clearly)
that nonretroactive changes in sentencing law may not establish eligibility for a
§ 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered
in exercising a court’s discretion whether to grant compassionate release relief to an
eligible defendant, consistent with the Supreme Court’s decision in Concepcion.
For these reasons, we conclude that Crandall remains controlling Eighth Circuit
law that is binding on our panel. Accord United States v. Berglund, No. 21-3213,
2023 WL 1978867 (8th Cir. Feb. 14, 2023) (unpublished). The judgment of the
district court is affirmed.
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2United States Sentencing Commission, “Adopted Amendments (Effective
November 1, 2023),” https://www.ussc.gov/guidelines/amendments/adopted-
amendments-effective-November-1-2023.
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