United States of America v. Brandon McKinnie

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0015p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRANDON MCKINNIE,
Defendant-Appellant.
┐
│
│
│
│
│
│
│
┘
No. 21-3608
Appeal from the United States District Court for the Northern District of Ohio at Cleveland.
No. 1:16-cr-00304-2—Christopher A. Boyko, District Judge.
Decided and Filed: January 26, 2022
Before: SILER, KETHLEDGE, and READLER, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY’S OFFICE,
Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Brandon McKinnie appeals the denial of his
motion seeking a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). He believes that he
presented numerous extraordinary and compelling reasons to support the reduction, including the
Havis error in his original sentencing, none of which were accepted by the district court.
We agree with the district court that McKinnie’s arguments lack merit and therefore affirm.
>

-- 1 of 9 --

No. 21-3608 United States v. McKinnie Page 2
BACKGROUND
Brandon McKinnie is a recidivist drug dealer. In 2011, a federal judge sentenced him to
six months of imprisonment and three years of supervised release for conspiring to distribute
crack cocaine. Less than two years later, McKinnie was sentenced in Ohio state court for
attempted drug trafficking. And a few years after that, McKinnie returned to federal court to
plead guilty to three other federal drug crimes, for which he was sentenced to 151 months’
imprisonment. In imposing that sentence, the district court, over McKinnie’s objection,
concluded that McKinnie was a career offender under U.S.S.G. § 4B1.1 because he had two prior
convictions for controlled substance offenses: the 2011 crack cocaine conspiracy and the
attempted trafficking offense. The career offender designation meant that McKinnie’s
Guidelines range increased from 60 to 71 months to 151 to 188 months. We dismissed
McKinnie’s subsequent appeal because his plea agreement waived that right.
After McKinnie’s sentence became final, our en banc Court decided United States v.
Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). We held there that an attempt crime
is not a predicate “controlled substance offense” within the meaning of § 4B1.1. Id. at 387; see
§ 4B1.1 cmt. n.1. Invoking Havis, McKinnie petitioned for relief under 28 U.S.C. § 2255,
asserting that his sentence was unlawful because attempted trafficking and drug conspiracy could
not serve as the basis for his career offender sentencing enhancement. The district court,
however, denied McKinnie’s petition. Relying on our decision in Bullard v. United States, 937
F.3d 654 (6th Cir. 2019), the district court concluded that error in calculating the advisory
Guidelines range, such as a Havis error, is not cognizable on collateral review, where relief is
available only when a sentence violates the Constitution or a federal statute. As a result,
although McKinnie’s career offender designation was seemingly a Havis error, the district court
denied collateral relief. McKinnie’s subsequent appeal was dismissed for want of prosecution.
McKinnie separately moved for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A),
citing the Havis error, his obesity and hypertension, and the risk of contracting COVID-19 as
“extraordinary and compelling reasons to reduce his sentence.” The district court denied the
motion. We later vacated the district court’s decision and remanded the matter so that the district

-- 2 of 9 --

No. 21-3608 United States v. McKinnie Page 3
court could consider McKinnie’s motion with the benefit of our recent decisions addressing
§ 3582(c)(1)(A).
On remand, the district court again denied McKinnie’s motion, concluding that McKinnie
failed to provide any extraordinary and compelling reasons to reduce his sentence. In the eyes of
the district court, (1) Havis error was not, as a matter of law, an extraordinary and compelling
reason under § 3582(c)(1)(A); (2) McKinnie’s vaccination against COVID-19 mitigated his risk
of infection; (3) his obesity and hypertension were insufficient to grant relief; and (4) his
potential rehabilitation was not an extraordinary and compelling reason to reduce his sentence.
McKinnie timely appealed.
ANALYSIS
We review the denial of a motion seeking a sentence reduction under 18 U.S.C.
§ 3582(c)(1)(A) for abuse of discretion. United States v. Ruffin, 978 F.3d 1000, 1005 (6th
Cir. 2020). “A district court abuses its discretion when it applies the incorrect legal standard,
misapplies the correct legal standard, or relies upon clearly erroneous findings of fact.” United
States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009) (quoting United States v. Pugh, 405
F.3d 390, 397 (6th Cir. 2005)).
Federal law authorizes a district court to reduce a defendant’s sentence if the court finds
that (1) “extraordinary and compelling reasons” warrant a reduction, (2) a reduction is
“consistent with applicable policy statements issued by the Sentencing Commission,” and (3) the
§ 3553(a) factors, to the extent applicable, support a reduction. Ruffin, 978 F.3d at 1003 (quoting
§ 3582(c)(1)(A)). Currently, no policy statement applies where a defendant (as opposed to the
Bureau of Prisons) files a motion seeking a sentence reduction (sometimes known in our case
law as “compassionate release”). United States v. Sherwood, 986 F.3d 951, 953 (6th Cir. 2021).
A district court, therefore, must deny a defendant’s motion if the defendant fails to show either
that extraordinary and compelling reasons warrant a sentence reduction or that the § 3553(a)
factors support a reduction. Id. at 954; United States v. Hampton, 985 F.3d 530, 531 (6th Cir.
2021).

-- 3 of 9 --

No. 21-3608 United States v. McKinnie Page 4
1. We begin with McKinnie’s claim that Havis error is an “extraordinary and compelling
reason” to grant a sentence reduction under 18 U.S.C. § 3582(c)(1)(A)(i). Recall that
McKinnie’s sentence was enhanced due to his prior attempted drug trafficking and drug
conspiracy convictions. Yet Havis, which issued later, held that attempted trafficking offenses
do not trigger the career offender enhancement. See Havis, 927 F.3d at 387; see also United
States v. Butler, 812 F. App’x 311, 314 (6th Cir. 2020) (applying Havis to conclude that the
Guidelines’ definition of “controlled substance offense” does not include drug conspiracies).
McKinnie touts that development as an “extraordinary and compelling reason” justifying his
release.
Guiding our review are the abundant decisions in our circuit addressing how new legal
developments factor into our consideration of § 3582(c)(1)(A) motions. Start with United States
v. Wills and United States v. Tomes. Both decisions rejected inmates’ claims that the First Step
Act’s non-retroactive amendment to statutory mandatory minimums for certain controlled
substance offenses were extraordinary and compelling reasons that justified a sentence reduction
under § 3582(c)(1)(A)(i). United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021) (order);
United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021). Not long thereafter, United States v.
Jarvis reached the same conclusion as to the First Step Act’s non-retroactive changes to
18 U.S.C. § 924(c)(1)’s mandatory minimum. 999 F.3d 442, 443, 445 (6th Cir. 2021).
More recently, we confronted the question posed by McKinnie’s appeal—whether new
judicial decisions concerning the Guidelines are “extraordinary and compelling” reasons to
modify an inmate’s sentence. See United States v. Hunter, 12 F.4th 555 (6th Cir. 2021). Hunter
concerned a prisoner who had been sentenced before the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), which held that the Guidelines are advisory, rather than
mandatory. Hunter, 12 F.4th at 560. The district court found Booker’s non-retroactive change in
sentencing law to be a factor supporting a finding of “extraordinary and compelling reasons”
justifying release. Id. at 563. We reversed. Id. Acknowledging our decisions in Jarvis, Tomes,
and Wills, we explained that “[t]he fact that [a] case involves non-retroactive precedent, as
opposed to statutes, is no reason to take a different approach” because “[w]e are required to
follow statutes and binding precedent.” Id. at 564. And in view of cases holding that Booker

-- 4 of 9 --

No. 21-3608 United States v. McKinnie Page 5
does not apply retroactively to final convictions, we reasoned that “[j]ust as courts cannot use
§ 3582(c)(1)(A) as an ‘end run around’ Congress’ retroactivity choices, courts cannot use that
statute to circumvent binding precedent declaring the non-retroactive effect of new rules of
criminal procedure.” Id. at 565 (citation omitted). We thus instructed courts reviewing
§ 3582(c)(1)(A) motions to consider non-retroactive precedential developments only when
weighing the § 3553(a) factors. Id. at 568–69.
That instruction applies in the Havis setting too. Federal sentencing law presumes that
judicial decisions are not retroactive. Hunter, 12 F.4th at 563–64. We see no basis to upset that
presumption here. Cf. Alexander v. United States, No. 19-4005, 2020 WL 6111201, at *2 (6th
Cir. June 30, 2020) (“[O]ur decision in Havis is not a new rule of constitutional law that the
Supreme Court has made retroactive.”). And McKinnie cites no authority to the contrary.
Accordingly, because Havis does not apply retroactively, a Havis error is not an extraordinary
and compelling reason to modify an inmate’s sentence under § 3582(c)(1)(A)(i).
True, as McKinnie notes, unlike the express non-retroactivity language in the First Step
Act, there is no similar statutory provision excluding non-retroactive judicial decisions from
qualifying as “extraordinary and compelling reasons” to reduce an inmate’s sentence. But that
fact must be balanced against the understanding that the anti-retroactivity doctrine lies at the core
of federal sentencing law. Indeed, the “ordinary practice” in federal sentencing law “is to apply
new penalties to defendants not yet sentenced, while withholding that change from defendants
already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012). That is so
because finality is “essential to the operation of our criminal justice system.” Teague v. Lane,
489 U.S. 288, 309 (1989) (plurality opinion). As Justice Harlan observed a half century ago,
“[n]o one, not criminal defendants, not the judicial system, not society as a whole is benefited by
a judgment providing a man shall tentatively go to jail today, but tomorrow and every day
thereafter his continued incarceration shall be subject to fresh litigation on issues already
resolved.” Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring). Among
other grounds supporting the need for finality are the “significant . . . resources” dedicated to
prosecuting crimes, as well as the weighty interests that crime victims, the government, and the
public share in a defendant serving the full term of his lawfully imposed sentence. Cf. Edwards

-- 5 of 9 --

No. 21-3608 United States v. McKinnie Page 6
v. Vannoy, 141 S. Ct. 1547, 1554–55 (2021) (emphasizing that the finality of criminal
convictions has paramount importance). For these and other reasons, in the collateral review
setting, for example, the Supreme Court has “repeatedly stated” that judicial decisions
announcing new rules of criminal procedure “ordinarily do not apply retroactively.” Id. at 1555.
And for our part, we have colorfully described the “finality of criminal judgments and the non-
retroactivity doctrine” as “proverbial elephants in the criminal justice system.” Hunter, 12 F.4th
at 566.
Elephants are not easily displaced. As we said in Hunter, had Congress intended to
override the anti-retroactivity doctrine in the First Step Act, it would have made “that intent
specific.” Id. at 565 (quoting United States v. Noland, 517 U.S. 535, 539 (1996)). Suffice it to
say, the “vague and amorphous phrase” Congress chose—“extraordinary and compelling
reasons”—does not license district courts “to treat non-retroactive precedent as a basis to alter a
final judgment []and release a prisoner[].” Id. at 566.
2. Even if a Havis error itself is not an “extraordinary and compelling reason” justifying
a sentencing reduction, McKinnie says he can cross that threshold by combining this Havis error
with a number of other factors including his obesity and hypertension, risk of complications from
COVID-19 infection, conditions of incarceration, and good behavior while in prison. At the
outset, it bears noting that none of these grounds meets the “extraordinary and compelling” mark
needed to justify a sentence reduction. Rehabilitation, for one, is not by itself extraordinary and
compelling. See 28 U.S.C. § 994(t); Hunter, 12 F.4th at 572 (“Congress was emphatically clear
that ‘[r]ehabilitation of the defendant alone shall not be considered an extraordinary and
compelling reason.’” (citation omitted)). Nor, absent extenuating circumstances not present
here, is the COVID-19 pandemic, with COVID-19 vaccinations now available to federal
prisoners. United States v. Lemons, 15 F.4th 747, 751 (6th Cir. 2021). (McKinnie, by the way,
is fully vaccinated against COVID-19.) McKinnie’s hypertension and obesity are not new
developments; these facts were before the district court at the time of his sentencing. But facts
that existed at the time of sentencing do not constitute an extraordinary and compelling reason
warranting a subsequent sentence reduction. See id. at 750. And as McKinnie has offered no
evidence as to how these conditions have worsened since his sentencing, he fails to demonstrate

-- 6 of 9 --

No. 21-3608 United States v. McKinnie Page 7
how they justify a sentence reduction. See Hunter, 12 F.4th at 569, 571 (explaining that a
finding of extraordinary and compelling reasons “cannot be met based on a mere difference of
opinion regarding the significance of the facts that existed at sentencing”). Finally, as
mentioned, Hunter forecloses McKinnie’s argument that a non-retroactive judicial decision is an
extraordinary and compelling reason under § 3582(c)(1)(A)(i). See id. at 563–64.
Whatever shortcomings these factors may have on their own, McKinnie says their
collective force justifies a sentence reduction. But why would combining unrelated factors, each
individually insufficient to justify a sentence reduction, amount to more than the sum of their
individual parts? That is surely not the case here. None of McKinnie’s personal factors are
either extraordinary or compelling. And we have previously explained that a non-retroactive
judicial decision cannot support a finding of extraordinary and compelling circumstances
whether “offered alone or combined with other personal factors.” Id. at 568. For these reasons,
the district court acted within its discretion by declining to find that these aggregate
considerations necessitated a sentence modification. See Lemons, 15 F.4th at 749 (noting that a
“combination of grounds for release, none of which independently supports a sentence reduction,
does not collectively” permit a sentence reduction).
McKinnie contends that United States v. Owens, 996 F.3d 755 (6th Cir. 2021), compels a
different conclusion. Owens instructed the district court to consider whether an inmate’s
rehabilitation and “lengthy sentence”—when combined with the First Step Act’s statutory
changes to 18 U.S.C. § 924(c)—together amounted to an extraordinary and compelling reason
justifying release. Id. at 764. But even assuming Owens is good law, but see Jarvis, 999 F.3d
at 445–46 (concluding that Owens is not the law of the Circuit), McKinnie does not invoke new
statutory language; he invokes a new judicial decision. And Hunter, in no uncertain terms, held
that a non-retroactive judicial decision is not an “extraordinary and compelling” reason under
§ 3582(c)(1)(A)(i). 12 F.4th at 566, 568. As the law of the Circuit, we must honor that decision.
See Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019) (“[T]his circuit follows the rule that
the holding of a published panel opinion binds all later panels unless overruled or abrogated en
banc or by the Supreme Court.”).

-- 7 of 9 --

No. 21-3608 United States v. McKinnie Page 8
That leads us to our recent decision in United States v. McCall. Writing against this
settled precedential backdrop, McCall nonetheless suggested that Hunter need not be followed
because it was decided after Owens. See United States v. McCall, 20 F.4th 1108, 1112–14 (6th
Cir. 2021). That suggestion is difficult to accept when Owens did not address the question posed
in Hunter: are non-retroactive judicial decisions “extraordinary and compelling reasons” to
reduce an inmate’s sentence under § 3582(c)(1)(A)? In other words, whether one accepts Tomes
or Owens, there is no fair basis for not honoring Hunter, which ultimately resolved a question
different from that raised in the prior cases. McCall, it is fair to say, disagreed with the holding
in Hunter. But as McCall was decided after Hunter, the law of the Circuit doctrine required
McCall to follow the prior precedent. See Wright, 939 F.3d at 700. See generally United States
v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (“One panel of this court may not overrule the
decision of another panel.”). Adherence to that longstanding doctrine allows our Court to speak
with one voice, whatever that voice may say in a particular context. Any other approach would
leave district courts scrambling to assess a wave of conflicting appellate court decisions. And it
would undermine any ability for parties to rely on a consistent application of the law, concerns
that are at their apex in this criminal law setting, where substantial liberty interests are at stake.
See United States v. Cox, 871 F.3d 479, 494 (6th Cir. 2017) (Sutton, J., concurring); United
States v. Diaz-Bastardo, 929 F.2d 798, 799 (1st Cir. 1991) (Selya, J.).
Even on its own terms, McCall’s reasoning is flawed from top to bottom. One, McCall’s
reading of Owens is inconsistent with Tomes, which predates Owens, as well as numerous other
published decisions that have read Tomes in a fashion contrary to Owens. See, e.g., Jarvis,
999 F.3d at 446 (explaining that a “faithful reading of Tomes . . . leads to just one conclusion:
that it excluded non-retroactive First Step Act amendments from the category of extraordinary or
compelling reasons, whether a defendant relies on the amendments alone or combines them with
other factors”); Hunter, 12 F.4th at 564 n.4. Two, Owens jettisoned Tomes’s statutory holding
because of a purported factual difference, one that is demonstrably inaccurate. Compare McCall,
20 F.4th at 1113 (“Tomes did not discuss whether nonretroactive sentencing disparities could
support a compassionate-release motion when combined with other factors.”), with Tomes,
990 F.3d at 501, 504–05 (rejecting Tomes’s argument that his asthma, risk of COVID-19
infection, and the First Step Act’s non-retroactive changes in law constituted “extraordinary and

-- 8 of 9 --

No. 21-3608 United States v. McKinnie Page 9
compelling” reasons for relief). And three, the meaning of the statutory term “extraordinary and
compelling reasons” cannot change as facts ebb and flow from case to case. See Cochise
Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1512 (2019) (“[A] single use of
a statutory phrase must have a fixed meaning . . . .”). All things considered, “[t]he grounds on
which Owens purported to distinguish Tomes were implausible.” See McCall, 20 F.4th at 1116
(Kethledge, J., dissenting).
* * * * *
We affirm.

-- 9 of 9 --