In United States v. Tomes, the Sixth Circuit affirmed a district court’s denial of compassionate release. While the district court erred in concluding its finding of extraordinary and compelling reasons was constrained by U.S.S.G. § 1B1.13, the district court also denied Tomes’ motion based on the § 3553(a) factors. Relying on this alternative basis, the Sixth Circuit found no abuse of discretion and affirmed.

The Circuit went on to address other arguments raised by Mr. Tomes. Specifically, he argued he has chronic asthma, the BOP was ill-equipped to handle COVID-19 outbreaks, and if he were sentenced today he would not have received the same amount of prison time. The Circuit quickly disposed of Mr. Tomes’ first two arguments – finding he did not provide records to establish his chronic asthma and it was not an abuse of discretion for the court to find the condition of the BOP speculative.

The Sixth Circuit addressed the last argument in more detail. Mr. Tomes’ argued that after the First Step Act the mandatory minimum was reduced and it now only applies when the prior offense was a “serious drug felony.” Mr. Tomes further argued his prior convictions did not meet the definition of “serious drug felony” and therefore if he were sentenced today, he would not have been facing the same prison time.

The Circuit rejected Mr. Tomes’ argument because Congress was explicit in § 401 of the First Step Act (the section which made the relevant modifications) that the amendments were not retroactive.  While there is an argument this last section of the opinion is dicta, it raises interesting questions. Would a district court abuse its discretion if it found extraordinary and compelling reasons based upon a non-retroactive change in a statute? Would the Circuit reach a different conclusion if the extraordinary and compelling reason was based on a similar sentencing disparity argument but relying on a changed interpretation of the guidelines, instead of a non-retractive amendment? Stay tuned.