Harmless Error When the Judge Denies Relief Under §3553(a)

On November 2, 2026, the U.S. Court of Appeals for the Ninth Circuit affirmed the denial of Jason Bompane's motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). In United States v. Bompane, Nos. 26-872 & 26-876, an unpublished memorandum from a panel of Circuit Judges Milan D. Smith, Morgan Christen, and Eric D. Miller, the court reviewed the district court's order in the District of Oregon (the Honorable Karin J. Immergut). The panel said it would assume without deciding that the district court erred in finding Bompane ineligible because his sentence was not "based on" the Sentencing Guidelines, but held that any such error was harmless because the judge also declined to reduce the sentence in the exercise of discretion under 18 U.S.C. § 3553(a), citing United States v. Wilson, 8 F.4th 970, 976 (9th Cir. 2021). Read the decision (PDF).

What § 3582(c)(2) motions usually require

A reduction under § 3582(c)(2) is not automatic. The statute authorizes the court to reduce a term of imprisonment only after the Sentencing Commission has lowered the applicable guideline range and made that change retroactive, and only if the reduction is consistent with the Commission's policy statements. See 18 U.S.C. § 3582(c)(2). The operative policy statement is USSG §1B1.10. Our page on how a final sentence can be reduced collects this motion with the other § 3582 paths so they are not confused.

Eligibility often turns on whether the original sentence was "based on" a sentencing range that the Commission later lowered. In Hughes v. United States, 584 U.S. 675, 685–86 (2018), the Supreme Court explained that a sentence is "based on" a Guidelines range for § 3582(c)(2) purposes when that range was a basis for the district court's exercise of discretion in imposing the sentence.

What the Bompane panel did with harmless error

The memorandum states that Bompane argued the district court erred in deciding his sentence was not "based on" the Guidelines and that he was therefore ineligible for relief. The panel wrote that it would assume without deciding that the district court erred on eligibility.

Even with that assumption, the panel held, any error was harmless because the district court also held, "in the alternative," that a sentence reduction was not warranted under the factors in § 3553(a). The court relied on Wilson, where the Ninth Circuit had held that an error in finding a defendant ineligible for a § 3582(c)(2) reduction could be harmless when the district court still considered § 3553(a) and denied relief on that ground.

Bompane contended that a mistake at the first step of the § 3582(c)(2) analysis might skew the court's discretion at the second step. The panel answered that it had not adopted a rule that first-step error is always harmful, pointed to its discussion in Wilson, and said Bompane identified no non-speculative reason to think the district court's § 3553(a) ruling was tainted. He also pointed to cases in which the Ninth Circuit had vacated sentences despite a district judge's statement that the same sentence would have been imposed anyway. The panel distinguished those as involving initial sentencings, not § 3582(c)(2) motions, and as lacking the kind of explanation the Oregon judge gave here.

Exercising discretion after eligibility

When a court reaches the merits of a § 3582(c)(2) motion, it must consider the factors in § 3553(a) and the relevant policy statement. See USSG §1B1.10(b). How much explanation the district court must give can be brief; Chavez-Meza v. United States, 585 U.S. 109, 118 (2018), teaches that a short explanation may suffice in a modification proceeding when the same judge imposed the original sentence and the record shows a reasoned basis. Our note on explanation in sentencing modifications walks through that opinion for § 3582(c)(2) cases.

Here, Bompane argued the district court failed to address his arguments under § 3553(a)(1), § 3553(a)(2)(A), and § 3553(a)(2)(D). The memorandum says the court adopted the government's analysis and agreed with the reasons the government offered for finding that the § 3553(a) factors supported "completion of the sentence imposed," and that the cited analysis covered each factor Bompane raised. The panel cited Rita v. United States, 551 U.S. 338, 356 (2007), for the general standard that a sentencing judge must explain enough to show a reasoned basis, and United States v. Barnes, 125 F.3d 1287, 1293 (9th Cir. 1997), for how agreement with a party's specific arguments can satisfy that standard.

Standard of review

The memorandum states that the court reviews a district court's denial of a § 3582(c)(2) motion for abuse of discretion and cites United States v. Colson, 573 F.3d 915, 916 (9th Cir. 2009).

Who it affects

• Anyone in the Ninth Circuit arguing eligibility for a § 3582(c)(2) reduction. The memorandum states it is not appropriate for publication and is not precedent except as Ninth Circuit Rule 36-3 allows. It still shows how the court may resolve assumed eligibility error when the record includes a separate § 3553(a) denial.
• A person whose judge ruled on both eligibility and § 3553(a). The panel's harmless-error analysis assumes the district court actually exercised discretion under § 3553(a) and explained why it would not grant a lower term.
• A person comparing § 3582(c)(2) to other post-conviction options. Motions under § 3582(c)(2) are distinct from habeas petitions and from compassionate release under § 3582(c)(1)(A). Keep the routes separate when you read the docket or talk with counsel.