United States v. Daniel Rutherford

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 23-1904

_______________

UNITED STATES OF AMERICA

v.

DANIEL RUTHERFORD

a/k/a SQUEAKY,

Appellant

_______________

On Appeal from the United States District Court

For the Eastern District of Pennsylvania

(D.C. No. 2-05-cr-00126-001)

District Judge: Honorable John M. Younge

_______________

Argued

June 27, 2024

Before: JORDAN, SMITH, Circuit Judges

and BUMB, Chief District Judge *.

(Filed: November 1, 2024)

_______________

Justin Berg [ARGUED]

Geoffrey Block

Alex Treiger

Kellogg Hansen Todd Figel & Frederick

1615 M Street NW – Suite 400

Washington, DC 20036

Counsel for Appellant

Salvatore L. Astolfi

Robert A. Zauzmer [ARGUED]

Office of United States Attorney

615 Chestnut Street – Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

David A. O’Neil

Debevoise & Plimpton

801 Pennsylvania Avenue NW – Suite 500

Washington, DC 20004

Counsel for Amicus Appellants National

Association of Criminal Defense Lawyers,

FAMM, and Federal Public & Community

Defender Organization of the Third Circuit

*

Honorable Renée Marie Bumb, Chief Judge of the

United States District Court for the District of New Jersey,

sitting by designation.

2

Amy M. Saharia

Danielle Sochaczevski

Jonathan E. Spratley

Williams & Connolly

680 Maine Avenue SW

Washington, DC 20024

Counsel for Amicus Appellants Cory Booker,

and Dick Durbin

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Daniel Rutherford seeks a reduction of the nearly 42.5-

year sentence he received for committing two armed robberies.

He argues that he is eligible for compassionate release because,

if he were sentenced for those crimes today, his sentence would

be at least eighteen years less than the one he received. That

sentencing disparity results from changes effected by the First

Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), which,

among other things, made a nonretroactive change to the

penalties for violating 18 U.S.C. § 924(c), the federal statute

that forbids using or carrying a firearm in furtherance of drug

trafficking or a crime of violence. The District Court denied

Rutherford’s sentence-reduction motion, holding that our

precedent in United States v. Andrews, 12 F.4th 255 (3d Cir.

2021), prohibits the change to § 924(c) from being a

consideration when determining eligibility for compassionate

release.

3

After the Court denied Rutherford’s motion, the United

States Sentencing Commission amended its policy statement

on compassionate release. It said, for the first time, that courts

could consider nonretroactive changes in law, like the

amendment to § 924(c), when making a decision about a

prisoner’s eligibility for compassionate release. Rutherford

now argues that we must be guided by the Commission’s

policy statement, notwithstanding our Andrews precedent and

the nonretroactive character of the statutory change. In

Andrews, however, we held that allowing prisoners to be

eligible for compassionate release because of the First Step

Act’s change to § 924(c) would conflict with Congressional

intent on nonretroactivity. That conclusion remains true.

Accordingly, we will affirm the District Court’s order denying

Rutherford’s compassionate-release motion.

I. BACKGROUND

A. Legal Background

1. The Sentencing Reform Act of 1984 and

the Creation of the Sentencing

Commission

Prior to 1984, courts and parole officers shared

responsibility for federal criminal sentencing. Mistretta v.

United States, 488 U.S. 361, 363-66 (1989). Courts had “wide

discretion” to impose sentences, but parole officers had

“almost absolute discretion” in deciding whether “to release a

prisoner before the expiration of the sentence imposed by the

judge.” Id. at 363-65. In that “indeterminate-sentence

system,” id. at 365, there were “significant sentencing

disparities among similarly situated offenders” in the actual

4

length of time prisoners served before being released, Peugh v.

United States, 569 U.S. 530, 535 (2013).

Public concern about such disparities prompted

Congress to overhaul the federal sentencing system, which it

did in the Sentencing Reform Act of 1984 (the “Act”). Pub. L.

No. 98-473, § 211, 98 Stat. 1837, 1987 (codified as amended

at 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991-998). The

Act created the United States Sentencing Commission, 1 the

fundamental purpose of which is, as statutorily defined, to

“establish sentencing policies and practices for the Federal

criminal justice system[.]” 28 U.S.C. § 991(b)(1). Those

policies and practices are supposed to meet three goals: (1) be

in accordance with the purposes of sentencing, 2 (2) “provide

certainty and fairness,” by “avoiding unwarranted sentencing

1

The Commission is an independent agency in the

federal judicial branch consisting of seven voting members and

one nonvoting member. 28 U.S.C. § 991(a). The members are

nominated by the President and confirmed by the Senate. Id.

At least three of the members must be federal judges, and no

more than four of the members can be members of the same

political party. Id.

2

The purposes of sentencing are “(A) to reflect the

seriousness of the offense, to promote respect for the law, and

to provide just punishment for the offense; (B) to afford

adequate deterrence to criminal conduct; (C) to protect the

public from further crimes of the defendant; and (D) to provide

the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most

effective manner[.]” 18 U.S.C. § 3553(a)(2).

5

disparities among defendants with similar records who have

been found guilty of similar criminal conduct while

maintaining sufficient flexibility to permit individualized

sentences when warranted[,]” and (3) “reflect, to the extent

practicable, advancement in knowledge of human behavior as

it relates to the criminal justice process[.]” Id.

The Commission fulfills its purpose by promulgating

sentencing guidelines and policy statements. Id. § 994(a).

Guidelines are used by sentencing courts to calculate “the

sentence to be imposed in a criminal case[.]” Id. § 994(a)(1).

Policy statements, on the other hand, more broadly “regard[]

application of the guidelines or any other aspect of sentencing

or sentence implementation[,]” including “the sentence

modification provisions[.]” Id. § 994(a)(2). Guidelines and

policy statements are promulgated when there is an

“affirmative vote of at least four members” of the

Commission. 3 Id. § 994(a).

3

“To amend the [g]uidelines, the Commission first must

follow a notice-and-comment rulemaking process. Next, the

Commission must notify Congress of the proposed revisions to

the [g]uidelines. If, after 180 days, Congress does not

disapprove or modify the proposed amendments, they then take

effect.” United States v. Adair, 38 F.4th 341, 356 (3d Cir.

2022) (citations omitted).

While “[a]mendments to policy statements … may be

promulgated and put into effect at any time[,] … the

Commission … endeavor[s] to include amendments to policy

statements … in any submission of guideline amendments to

Congress and put them into effect on the same … date as any

guideline amendments issued in the same year.” U.S. Sent’g

6

2. Compassionate Release

The Act “eliminated parole in the federal system[,]”

Peugh, 569 U.S. at 535, and emphasized that “‘[a] judgment of

conviction that includes [a sentence of imprisonment]

constitutes a final judgment’ and may not be modified by a

district court except in limited circumstances[,]” Dillon v.

United States, 560 U.S. 817, 824 (2010) (second alteration in

original) (quoting 18 U.S.C. § 3582(b)). One of those

circumstances is set forth in 18 U.S.C. § 3582(c)(1)(A)(i),

which, with a related subsection, is commonly known as the

“compassionate release statute.” 4 That statute allows a

sentencing court to reduce the sentence of a prisoner if

“extraordinary and compelling reasons warrant such a

Comm’n, Rules of Practice & Procedure § 4.1 (2016),

www.ussc.gov/about/rules-practice-and-procedure

[https://perma.cc/BHV7-3BDS]. And, although it is not

required by statute, “the Commission will endeavor to provide,

to the extent practicable, … opportunities for public input on

proposed policy statements … considered in conjunction with

guideline amendments.” Id. § 4.3.

4

Section 3582(c)(1)(A)(ii) is another part of the

compassionate release statute and is applicable to defendants

serving a mandatory life sentence. It is not relevant to this case.

The two other circumstances in which a district court

may modify a sentence are when another statute or Federal

Rule of Criminal Procedure 35 permits a sentence

modification, § 3582(c)(1)(B), or when a defendant has been

sentenced to a term of imprisonment based on a sentencing

range that was subsequently lowered by the Commission and

certain other requirements are met, § 3582(c)(2).

7

reduction” and the reduction is consistent with both the

Commission’s policy statements and the sentencing factors set

forth in 18 U.S.C. § 3553(a). 5 A sentencing court must first

conclude, as a matter of law, that a prisoner is eligible for a

sentence reduction before it decides whether he qualifies for a

reduction. The two concepts – eligibility and qualification –

sound similar, but they are distinct. We have explained that

“whether any given prisoner has established an extraordinary

and compelling reason for release” is a “threshold question”

that determines a prisoner’s eligibility for compassionate

release. United States v. Stewart, 86 F.4th 532, 535 (3d Cir.

2023) (internal quotation marks omitted). After a prisoner

“clears the threshold eligibility hurdle” of showing

“extraordinary and compelling reasons,” sentencing courts are

then permitted “to exercise broad discretion” to determine

whether and to what extent the prisoner warrants, or, in other

words, is qualified for, a sentence reduction. Id.

5

Those factors are:

(1) the nature and circumstances of the offense

and the history and characteristics of the

defendant; (2) [the purposes of sentencing listed

supra note 2]; (3) the kinds of sentences

available; (4) the kinds of sentence and the

sentencing range … ; (5) any pertinent policy

statement … [;] (6) the need to avoid

unwarranted sentence disparities among

defendants with similar records who have been

found guilty of similar conduct; and (7) the need

to provide restitution to any victims of the

offense.

18 U.S.C. § 3553(a).

8

Congress did not define the phrase “extraordinary and

compelling reasons” in the compassionate release statute.

Instead, it instructed the Commission to define it. 28 U.S.C.

§ 994(t) (“The Commission, in promulgating general policy

statements regarding the sentencing modification provisions

… shall describe what should be considered extraordinary and

compelling reasons for sentence reduction, including the

criteria to be applied and a list of specific examples.”).

Congress placed only one limitation on the Commission’s

authority to define the phrase – namely, “[r]ehabilitation of the

defendant alone shall not be considered an extraordinary and

compelling reason.” Id.

In 2007, the Commission tackled the definitional

challenge. It amended a policy statement, § 1B1.13 (the

“Policy Statement” or the “Statement’), to provide examples of

“extraordinary or compelling reasons” that would allow a

prisoner to be eligible for a sentence reduction. The examples

include certain medical conditions, severe physical or mental

decline, and the death or incapacitation of the primary

caregiver of a prisoner’s child. U.S.S.G. Supp. App. C, amend.

698 (2007). The Policy Statement also includes a catch-all

provision that allows for “an extraordinary and compelling

reason other than, or in combination with” the examples, “[a]s

determined” by the Bureau of Prisons (the “BOP”). Id. In

2016, the Commission added two more examples of

extraordinary and compelling reasons related to the age and

health of the prisoner. U.S.S.G. Supp. App. C, amend. 799

(2016).

Traditionally, only the BOP was authorized to file a

compassionate release motion on behalf of a prisoner;

9

prisoners could not file such motions themselves. 6 That

changed in 2018 with passage of the First Step Act, which

reduced mandatory minimum sentences for certain drug crimes

and opened the door for prisoners to file compassionate-release

motions themselves, after they have exhausted administrative

remedies through the prison system. Pub. L. No. 115-391,

§§ 401, 603(b), 132 Stat. 5194, 5220-21, 5239.

Until the First Step Act was enacted, the Policy

Statement defining “extraordinary and compelling reasons”

was widely understood to apply only to motions filed by the

BOP. U.S.S.G. Supp. App. C, amend. 799 (2016). That was

the view of nearly every U.S. Court of Appeals that considered

the issue. See Andrews, 12 F.4th at 259 (holding that the Policy

Statement at the time of the First Step Act’s enactment was

“not applicable” to prisoner-initiated motions, collecting cases

from the Second, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth,

and D.C. Circuits holding the same, and citing to a contrary

Eleventh Circuit decision). From 2019 to 2022, due to a lack

of a quorum, the Commission did not update the Policy

Statement to specify the circumstances that could support a

prisoner’s compassionate release motion. 88 Fed. Reg. 28,254,

28,256 (May 3, 2023). The timing of the Commission’s

incapacity was particularly unfortunate because it coincided

with the COVID-19 pandemic. That left courts to determine

what circumstances qualified as extraordinary and compelling

6

The BOP “used this power sparingly, to say the least.”

United States v. Brooker, 976 F.3d 228, 231 (2d Cir. 2020)

(summarizing a report finding that, “on average, only 24

incarcerated people per year were released on BOP motion”).

10

reasons for prisoner-initiated compassionate-release motions,

and there was not uniform agreement.

Relevant here, the courts of appeals are split over

whether the First Step Act’s nonretroactive changes to certain

mandatory minimums could be considered an extraordinary

and compelling reason to grant a sentence reduction. The First,

Fourth, Ninth, and Tenth Circuits said such changes could be

considered, while the Sixth, Seventh, Eighth, and D.C. Circuits

said they could not. 7 We considered the issue in United States

7

Compare United States v. Ruvalcaba, 26 F.4th 14, 24

(1st Cir. 2022) (holding nonretroactive law changes to be an

extraordinary and compelling reason), United States v. McCoy,

981 F.3d 271, 287-88 (4th Cir. 2020) (same), United States v.

Chen, 48 F.4th 1092, 1094-95 (9th Cir. 2022) (same), and

United States v. McGee, 992 F.3d 1035, 1047 (10th Cir. 2021)

(same), with United States v. McCall, 56 F.4th 1048, 1055 (6th

Cir. 2022) (en banc) (declining to consider them extraordinary

and compelling), United States v. Thacker, 4 F.4th 569, 573-

74 (7th Cir. 2021) (same), United States v. Crandall, 25 F.4th

582, 585 (8th Cir. 2022) (same), and United States v. Jenkins,

50 F.4th 1185, 1198-99 (D.C. Cir. 2022).

The Fifth Circuit issued a precedential opinion saying it

could not consider the changes, United States v. McMaryion,

64 F.4th 257, 259 (5th Cir. 2023), but it later withdrew that

opinion and issued a not precedential one holding the same.

United States v. McMaryion, 2023 WL 4118015, at *1-2 (5th

Cir. June 22, 2023). Ultimately, in United States v. Jean, that

court decided that it could indeed consider the changes. 108

F.4th 275, 281 (5th Cir. 2024).

11

v. Andrews, 12 F.4th 255 (3d Cir. 2021), the details of which

are described herein (see infra Section II.A.).

3. The 2023 Amendment to the Policy

Statement

In April 2023, the Sentencing Commission, by then re-

constituted with a quorum, amended the Policy Statement to

define “extraordinary and compelling reasons” for prisoner-

filed motions for compassionate release. 88 Fed. Reg. 28,254.

It issued the amendment in “respon[se] to [the] circuit split

concerning when, if ever, non-retroactive changes in law may

be considered as extraordinary and compelling reasons within

the meaning of section 3582(c)(1)(A).” 8 Id. at 28,258.

The amended Policy Statement provides that, as a

general matter, a law change cannot be considered an

extraordinary and compelling reason to grant compassionate

release: “[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.” U.S.S.G. § 1B1.13(c). But the Statement provides

an exception to that rule. Through the following new

8

The amendment also included updates to the

traditional extraordinary and compelling reasons provisions –

those for medical circumstances, the age of the prisoner, and

family circumstances – and added a new basis for relief for

prisoners who were victims of abuse while in prison. 88 Fed.

Reg. at 28,257-58. Those updates are not at issue in this

appeal.

12

provision, § 1B1.13(b)(6) (hereinafter “(b)(6)”), the

Commission explained that nonretroactive changes in law can

be considered if certain conditions are met:

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,

but only where such change would produce a

gross disparity between the sentence being

served and the sentence likely to be imposed at

the time the motion is filed, and after full

consideration of the defendant’s individualized

circumstances.

U.S.S.G. § 1B1.13(b)(6).

In promulgating subsection (b)(6), the Commission

agreed with the “circuits that authorize a district court to

consider non-retroactive changes in the law as extraordinary

and compelling circumstances[,] … [but] only in narrowly

circumscribed circumstances.” 88 Fed. Reg. at 28,258.

Breaking it down, the newly revised Policy Statement provides

that a nonretroactive change in law “may be considered in

determining whether the defendant presents an extraordinary

and compelling reason” when (1) “a defendant received an

unusually long sentence[,]” (2) the defendant “has served at

least 10 years of the term of imprisonment,” (3) an intervening

law change has produced a “gross disparity between the

sentence being served and the sentence likely to be imposed at

13

the time the motion is filed,” and (4) after the court gives “full

consideration of the defendant’s individualized

circumstances.” U.S.S.G. § 1B1.13(b)(6).

Notably, because (b)(6) states that changes in law may

(not must) be considered, judges are not required to consider a

change in law when determining a prisoner’s eligibility for

compassionate release. Thus, (b)(6) gives judges the

opportunity, but not a mandate, to consider changes in the law

under the defined circumstances. Judges therefore have two

levels of discretion under (b)(6): first, whether to consider a

change in law when determining a prisoner’s eligibility for

compassionate release, and second, the usual discretion when

deciding if an eligible prisoner should receive a sentence

reduction after considering the § 3553(a) factors. 9

The amended Policy Statement went into effect on

November 1, 2023, 88 Fed. Reg. at 28,254, but not without

controversy. The Commission adopted the amendment by a 4-

3 vote. See April 5, 2023 United States Sentencing

Commission Public Meeting Transcript at 82, available at

https://www.ussc.gov/sites/default/files/pdf/amendment-

9

Since one of the § 3553(a) factors that a court must

consider when deciding whether to grant a sentence reduction

is “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct[,]” 18 U.S.C. § 3553(a)(6), the amended

Policy Statement allows sentencing courts to consider sentence

disparities both in making the threshold eligibility

determination and in deciding whether to grant compassionate

release.

14

process/public-hearings-and-

meetings/20230405/20230405_transcript.pdf

[https://perma.cc/E9W7-KB6N]. The three dissenting

members delivered a joint statement opposing the amendment

because, in their view, the Policy Statement “goes further than

the Commission’s legal authority extends[,]” “make[s] a

seismic structural change to our criminal justice system

without congressional authorization or directive[,]” and causes

“separation of powers problem[s.]” Id. at 60-61. They said,

Today’s amendment allows compassionate

release to be the vehicle for retroactively

applying the very reductions that Congress has

said by statute should not apply retroactively. To

be sure, it doesn’t do so automatically, but it

makes any nonretroactive change in law

potential grounds for re-sentencing once the

defendant has served ten years. In practical

effect, it provides a second look to revisit duly

imposed criminal sentences at the ten-year mark

based on intervening legal developments that

Congress did not wish to make retroactive.

Id.

The Department of Justice also opposed the change,

saying, “[T]he Department has taken the position … that

Section 3582(c)(1)(A)(i) does not authorize sentence

reductions based on nonretroactive changes in sentencing law.

In particular, the Department has repeatedly argued in

litigation that the fact that a change in sentencing law is not

retroactive is not ‘extraordinary’ within the meaning of the

statute. … The Commission’s proposal thus conflicts with the

15

Department’s interpretation [of] Section 3582(c)(2).”

Department of Justice Comment Letter, available at

https://www.ussc.gov/sites/default/files/pdf/amendment-

process/public-hearings-and-meetings/20230223-

24/DOJ1.pdf [https://perma.cc/P8A8-5ZYX].

B. Factual Background and Procedural History

In 2003, 22-year-old Daniel Rutherford committed two

armed robberies at a chiropractic office in a five-day period.

During the first robbery, he pulled a gun on the chiropractor

and stole $390 and a watch. Four days later, he returned to the

same office with an accomplice and again brandished a gun

and stole $900 in cash and jewelry.

Rutherford was arrested, tried, and convicted of one

count of conspiracy to commit Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a), two counts of Hobbs Act robbery, in

violation of 18 U.S.C. § 1951(a), and two counts of using a

firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1). At sentencing, Rutherford faced a 100- to 125-

month sentence, plus mandatory minimum consecutive terms

of 7 years for the first § 924(c) offense, and 25 years for the

second. The District Court sentenced Rutherford to a top-of-

the-guidelines term of imprisonment of 125 months in addition

to the 32-year mandatory sentence, for a total sentence of

nearly 42 and a half years. On appeal, we affirmed

Rutherford’s conviction. United States v. Rutherford, 236 F.

App’x 835, 844 (3d Cir. 2007). He did not appeal his sentence.

Id. at 838. Because of the First Step Act’s amendment to

§ 924(c), if Rutherford were sentenced today, he would be

subject to a 14-year mandatory minimum sentence for his two

16

§ 924(c) convictions (7 years for each), 18 years less than 32-

year mandatory minimum he received. 10

Acting pro se, Rutherford has attempted to seek

compassionate relief before. He says that he sent a motion for

compassionate release to the federal public defender’s office in

2020, apparently believing the motion would be filed for him.

He later asked the District Court if it had received the motion,

and he claims the Court did not respond. In February 2021, he

filed with the District Court another handwritten motion for

compassionate release. According to Rutherford, the District

Court never addressed that motion either.

10

Originally, 18 U.S.C. § 924(c) had required a

defendant to be sentenced to a 25-year minimum sentence for

each § 924(c) violation after the first, even if the defendant was

convicted for both at the same time. The requirement that a

defendant receive the 25-year enhanced minimum sentence for

each subsequent § 924(c) violation at the same time he was

sentenced for the first such offense is often called the

“stacking” requirement of § 924(c). United States v. Hodge,

948 F.3d 160, 161 n.2 (3d Cir. 2020). The First Step Act

eliminated the stacking requirement by amending § 924(c) to

require the 25-year sentence for defendants who have a

previous § 924(c) conviction only at the time they are

sentenced for committing a subsequent § 924(c) offense.

Rutherford’s two § 924(c)(1) convictions were for brandishing

a firearm and were rendered at the same time, so they each

triggered a seven-year mandatory minimum, 18 U.S.C.

§ 924(c)(1)(A)(ii), and the penalties for both counts run

consecutively, id. § 924(c)(1)(D)(ii).

17

His third pro se motion for compassionate release came

in April 2021. That is the motion at issue here. In it,

Rutherford argued to the District Court that the First Step Act’s

enactment presents an “extraordinary and compelling” reason

to grant him compassionate release. He further contended that

the § 3553(a) factors support a sentence reduction because,

among other things, he had completed over 50 educational

courses in prison, he had secured employment upon release,

and in the last decade he had committed only two minor

infractions in prison. He also said that he has medical

conditions – obesity and hypertension – that could “increase[]

severity of illness and likelihood of lethality from COVID-19.”

(J.A. at 83.)

Before the District Court ruled on Rutherford’s latest

compassionate release motion, we decided Andrews, in which,

as we shall discuss, we held that the First Step Act’s

amendment to § 924(c) does not constitute an extraordinary

and compelling reason to be eligible for compassionate release.

In April 2023, the District Court denied Rutherford’s motion,

holding that Andrews foreclosed his argument that the First

Step Act could constitute an extraordinary and compelling

reason to justify eligibility for compassionate release. 11

11

In his motion for compassionate release, Rutherford

mentioned his asserted health problems as something the

District Court should consider under the 18 U.S.C. § 3553(a)

sentencing factors, rather than as a separate basis for

compassionate release. Nevertheless, “to the extent that

[Rutherford]’s request could [have] be[en] construed to seek

health related compassionate release, the Court [also found] no

18

Rutherford timely appealed. 12 We instructed the parties

to discuss in their briefing

(1) whether this Court should consider the

impact of amendments to the Sentencing

Guidelines on an 18 U.S.C. § 3582(c) motion in

the first instance on appeal; and, assuming so, (2)

to what extent, if any, the 2023 amendment to

§ 1B1.13(b) of the Sentencing Guidelines

compelling or extraordinary health related circumstances

presented in his various Motions.” (J.A. at 7-8.)

12

The government responded to Rutherford’s appeal

with a motion for summary affirmance. Finally with counsel,

Rutherford opposed the government’s motion and requested

that we stay the matter pending an anticipated amendment to

the Policy Statement. The amended Policy Statement went

into effect on November 1, 2023, before we ruled on the

parties’ motions. The government then filed a response in

opposition to Rutherford’s motion to stay the appeal and,

because of the amended Policy Statement, we denied the

motion to stay as moot.

On appeal, Senators Dick Durbin and Cory Booker,

members of the Senate Judiciary Committee, filed an amicus

brief in favor of Rutherford, as did, jointly, the National

Association of Criminal Defense Lawyers, FAMM (formerly

known as Families Against Mandatory Minimums), and the

Federal Public Defenders and Community Defenders for the

Judicial Districts of the Third Circuit. We are grateful for the

additional insights provided.

19

Manual abrogates this Court’s decision in United

States v. Andrews, 12 F.4th 255, 261 (3d Cir.

2021).

(3d Cir. D.I. 16.)

II. DISCUSSION 13

On appeal, Rutherford argues that, even though the

District Court did not have an opportunity to consider it, we

should address the effect of the new (b)(6) provision of the

Policy Statement on his compassionate release motion,

including whether it abrogates our holding in United States v.

Andrews. He asserts that Andrews is not in conflict with the

amended Policy Statement and that, ultimately, we should

remand the case so he has “an opportunity to show the

[D]istrict [C]ourt that he qualifies for compassionate release

under the new [P]olicy [S]tatement.” (Opening Br. at 50.) The

government, on the other hand, argues that we should not

consider the amended Policy Statement for the first time on

appeal and that the (b)(6) provision is invalid, both as applied

to the First Step Act and on its face, because the “provision

exceeds the Commission’s statutory authority to define the

bases of compassionate release[.]” (Answering Br. at 11.)

13

The District Court had jurisdiction under 18 U.S.C.

§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review a district court’s determination denying

compassionate release for abuse of discretion. United States v.

Pawlowski, 967 F.3d 327, 330 (3d Cir. 2020). Issues of

statutory construction are reviewed de novo. Id.

20

A. Andrews

We begin with a review of our Andrews decision. Eric

Andrews was sentenced in 2006 and was serving a 312-year

sentence for a series of armed robberies. Andrews, 12 F.4th at

257. He filed a compassionate release motion, arguing that his

case presented “extraordinary and compelling reasons”

warranting a reduced sentence under 18 U.S.C.

§ 3582(c)(1)(A)(i). Id. The gist of his motion was that he

would have received a 91-year sentence had he been sentenced

after the First Step Act’s passage. Id.

Before we addressed the specific reasons Andrews

advanced for his assertion that he was entitled to

compassionate release, we first concluded that the Policy

Statement, in its then-existing form, 14 was “not applicable –

and not binding – for courts considering prisoner-initiated

motions” because “the text of the [P]olicy [S]tatement

explicitly limit[ed] its application to Bureau-initiated

motions.” Id. at 259. We then said it was not error for the

district court to “consult[] the text, dictionary definitions, and

the [P]olicy [S]tatement to form a working definition of

‘extraordinary and compelling reasons[,]’” in part, because the

Policy Statement, even if not binding, “still sheds light” on the

meaning of that phrase. Id. at 260. Furthermore, “[b]ecause

Congress reenacted the compassionate-release statute without

any alterations to the phrase ‘extraordinary and compelling

reasons,’” we believed “it was reasonable … to conclude that

the phrase largely retained the meaning it had under the

Andrews was decided in 2021; the Policy Statement

14

was amended in 2023.

21

previous version of the statute[,]” which did not mention

nonretroactive changes in the law. Id.

After resolving those preliminary questions, we turned

to the specific arguments Andrews advanced for why he was

entitled to compassionate release. He claimed his case

presented six reasons that, in combination, “were extraordinary

and compelling under the compassionate-release statute”: (1)

“the duration of his sentence,” (2) the First Step Act’s changes

to the mandatory minimums in his case, (3) “his rehabilitation

in prison,” (4) “his relatively young age at the time of his

offense,” (5) the abusive prosecutorial “decision to charge him

with thirteen § 924(c) counts,” and (6) “his alleged

susceptibility to COVID-19.” Id. at 258 (cleaned up).

Taking up those contentions, we first considered

whether the duration of Andrews’s sentence could constitute

an extraordinary and compelling reason and so allow a

sentence reduction. Id. We held that “[t]he duration of a

lawfully imposed sentence does not create an extraordinary or

compelling circumstance[,]” id. at 260-61, because ‘“there is

nothing extraordinary about leaving untouched the exact

penalties that Congress prescribed and that a district court

imposed for particular violations of a statute[,]’” id. at 261

(quoting United States v. Thacker, 4 F.4th 569, 574 (7th Cir.

2021) (internal quotation marks omitted)). “Moreover,” we

said, “considering the length of a statutorily mandated sentence

as a reason for modifying a sentence would infringe on

Congress’s authority to set penalties.” Id. at 261.

Next, we concluded that the second reason Andrews

advanced – namely, the First Step Act’s nonretroactive

changes to the § 924(c) mandatory minimums – “also cannot

22

be a basis for compassionate release.” Id. at 261. We

explained that, “[i]n passing the First Step Act, Congress

specifically decided that the changes to the § 924(c) mandatory

minimums would not apply to people who had already been

sentenced.” Id. at 261. And nonretroactive sentencing changes

are “conventional[,]” because, as the Supreme Court has

observed, “in federal sentencing the ordinary practice is to

apply new penalties to defendants not yet sentenced, while

withholding that change from defendants already sentenced.”

Id. (quoting Dorsey v. United States, 567 U.S. 260, 280

(2012)). So, “‘[w]hat the Supreme Court views as the ordinary

practice cannot also be an extraordinary and compelling reason

to deviate from that practice.’” Id. (quoting United States v.

Wills, 997 F.3d 685, 688 (6th Cir. 2021) (internal quotation

marks omitted)).

We went on to say that, “when interpreting statutes, we

work to ‘fit, if possible, all parts’ into a ‘harmonious whole.’”

Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529

U.S. 120, 133 (2000)). Thus, we would “not construe

Congress’s nonretroactivity directive [in the First Step Act] as

simultaneously creating an extraordinary and compelling

reason for early release” because “[s]uch an interpretation

would sow conflict within the [First Step Act].” Id. (citing

United States v. Jarvis, 999 F.3d 442, 444 (6th Cir. 2021)

(“Why would the same Congress that specifically decided to

make these sentencing reductions non-retroactive in 2018

somehow mean to use a general sentencing statute from 1984

to unscramble that approach?”)). We added this caveat:

nonretroactive sentencing reductions may be relevant to a

prisoner’s compassionate release motion, but only if and after

“a prisoner successfully shows extraordinary and compelling

circumstances,” because “the current sentencing landscape

23

may be a legitimate consideration for courts … when they

weigh the § 3553(a) factors.” Id. at 262.

Finally, we held that the district court did not abuse its

discretion in determining “that Andrews’s four remaining

reasons collectively fell short of being extraordinary and

compelling under the statute.” Id. at 259. Therefore, we

affirmed the denial of his compassionate-release motion. Id. at

262.

B. We Can Properly Consider the Amended

Policy Statement in the First Instance.

The government asserts that we are forbidden from

resolving in the first instance the effect of (b)(6) on Andrews

because the amended Policy Statement “is a substantive

amendment that does not apply on appeal.” (Answering Br. at

11.) According to the government, only clarifying

amendments, as opposed to substantive ones, are applicable on

appeal when the amendment in question arose after sentencing.

And, says the government, “[t]here is no question that the

revision of [the Policy Statement] is substantive; it addressed

for the first time inmates’ new capacity to file compassionate

release motions, and significantly revised, altered, and added

to the permissible bases for compassionate release.”

(Answering Br. at 13.) Rutherford responds that the

substantive-versus-clarifying test applies only to changes

affecting an initial sentence.

As to initial sentencing, “[t]he general rule is that a

defendant should be sentenced under the guideline in effect at

the time of sentencing.” United States v. Diaz, 245 F.3d 294,

300-01 (3d Cir. 2001). “A post-sentencing amendment to a

24

guideline, or to its comments, should be given retroactive

effect only if the amendment ‘clarifies’ the guideline or

comment in place at the time of sentencing; the amendment

may not be given retroactive effect if it effects a substantive

change in the law.” Id. at 303. “Generally, if the amended

guideline and commentary overrules a prior judicial

construction of the guidelines, it is substantive; if it confirms

our prior reading of the guidelines and does not disturb prior

precedent, it is clarifying.” Id.

While the substantive-versus-clarifying test clearly

applies in the initial sentencing context, we agree with

Rutherford that the test does not apply to a sentence

modification. 15 The government does not cite any within-

Circuit precedent suggesting otherwise, and we have found

none. Perhaps that is because the test rests primarily on

§ 1B1.11 of the guidelines, a provision that applies to initial

sentencing proceedings, rather than sentence reduction

proceedings like compassionate release. Section 1B1.11 says

that, “if a court applies an earlier edition of the Guidelines

Manual” to avoid ex post facto concerns, “the court shall

15

We part ways here with the Eleventh Circuit. United

States v. Handlon, 97 F.4th 829, 833 (11th Cir. 2024) (holding

that the amended Policy Statement is a substantive amendment

that cannot be given retroactive effect). We also note that the

Fifth Circuit did not apply the amended Policy Statement to a

motion filed before the Policy Statement was amended, saying

summarily that the amendment was “not in effect at the time

the district court granted [the] motion, and thus [] not [part] of

the [g]uidelines that we consider on appeal in terms of binding

application.” Jean, 108 F.4th at 288.

25

consider subsequent amendments, to the extent that such

amendments are clarifying rather than substantive changes.” 16

16

Section 1B1.11 provides:

(a) The court shall use the Guidelines Manual in

effect on the date that the defendant is sentenced.

(b)(1) If the court determines that use of the

Guidelines Manual in effect on the date that the

defendant is sentenced would violate the ex post

facto clause of the United States Constitution,

the court shall use the Guidelines Manual in

effect on the date that the offense of conviction

was committed.

(2) The Guidelines Manual in effect on a

particular date shall be applied in its entirety.

The court shall not apply, for example, one

guideline section from one edition of the

Guidelines Manual and another guideline section

from a different edition of the Guidelines

Manual. However, if a court applies an earlier

edition of the Guidelines Manual, the court shall

consider subsequent amendments, to the extent

that such amendments are clarifying rather than

substantive changes.

(3) If the defendant is convicted of two offenses,

the first committed before, and the second after,

a revised edition of the Guidelines Manual

became effective, the revised edition of the

26

Since ex post facto concerns do not arise when a sentence is

being reduced, the modification proceedings do not implicate

the concerns underlying the substantive-versus-clarifying test.

Rutherford also points out the absurd outcomes that

could result were we to conclude that (b)(6) is a substantive

amendment. He explains that “inmates sentenced before

November 1, 2023[, i.e., the date the amended Policy

Statement became effective,] would forever be barred from

using the new policy statement.” (Reply Br. at 4 n.1.) “It

would also mean (b)(6) – which requires inmates to have

served ten years in prison – would not apply to any prisoner’s

motion until November 1, 2033.” (Reply Br. at 4 n.1.) We

highly doubt those results were what Congress intended when

passing the First Step Act, so we will not apply the substantive-

versus-clarifying test to the Policy Statement at issue here.

Moreover, the government concedes that Rutherford

could file a new compassionate release motion if we were to

deny application of (b)(6) in this case. The implication is that

(b)(6) would then be applicable to the new motion. As we have

Guidelines Manual is to be applied to both

offenses.

U.S.S.G. § 1B1.11. See United States v. Flemming, 617

F.3d 252, 267 (3d Cir. 2010) (explaining the

substantive-versus-clarifying test and citing to

§ 1B1.11(b)(2)); United States v. Spinello, 265 F.3d

150, 160 (3d Cir. 2001) (same); United States v.

Marmolejos, 140 F.3d 488, 490-91 (3d Cir. 1998)

(same).

27

said in a similar sentencing reduction context, “we see no need

to force [the appellant] to take this additional step.” United

States v. Marcello, 13 F.3d 752, 756 n.3 (3d Cir. 1994); see

also United States v. Jones, 567 F.3d 712, 719 (D.C. Cir. 2009)

(“Nearly all courts of appeals that have considered the issue

have decided … to save the defendant the ‘additional step’ of

petitioning the district court for a sentencing modification.”).

In United States v. Stewart, we recognized that

amendments to the Commission’s policy statements could

potentially impact our holding in Andrews. 86 F.4th at 535

(“Absent changes in the applicable policy statements, our

holding in Andrews remains undisturbed – and with it the limits

imposed on courts’ discretion when determining whether

extraordinary and compelling reasons warrant relief.”

(emphasis added)). We acknowledged the amended Policy

Statement, which had become effective two weeks prior to

Stewart’s filing, but we did not consider it in that case, saying,

instead, that “[w]e may consider [its] effect on the validity of

Andrews in an appropriate case.” Id. at 535 n.2.

Rutherford argues that this is the case to decide the

issue. He contends that the question involves a “novel,

important, and recurring” “uncertainty in the law,” and that the

government has briefed the issue in over twelve cases in the

Eastern District of Pennsylvania alone. (Opening Br. at 22

(quoting Barna v. Bd. of Sch. Directors of Panther Valley Sch.

Dist., 877 F.3d 136, 147 (3d Cir. 2017)).) He says that “[i]t

hinders judicial efficiency to send an issue … to the district

court that the district court will simply send back” on appeal

again. (Opening Br. at 22.) We agree.

28

While it is true that “[w]e generally decline to resolve

issues not decided by a district court, choosing instead to allow

it to decide in the first instance[,]” Popa v. Harriet Carter Gifts,

Inc., 52 F.4th 121, 132 (3d Cir. 2022), “[w]hen a district court

has failed to reach a question … that becomes critical when

reviewed on appeal, an appellate court may sometimes resolve

the issue on appeal rather than remand to the district court[,]”

Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151,

159 (3d Cir. 1998). “[That] procedure is generally appropriate

when the factual record is developed and the issues provide

purely legal questions, upon which an appellate court exercises

plenary review.” Id. Deciding a legal question in the first

instance on appeal is especially proper if “our resolution …

will best serve the interests of judicial efficiency on remand,”

Kedra v. Schroeter, 876 F.3d 424, 436 n.5 (3d Cir. 2017), or

when “the issue’s resolution is of public importance[,]”

Loretangeli v. Critelli, 853 F.2d 186, 189 n.5 (3d Cir. 1988).

Those considerations are operative here. The question

of what, if any, effect (b)(6) has on our precedent is purely a

legal one, and it is indeed a question of public importance –

there are many people in prison whose sentences will be

affected by our decision. 17 And resolving the question will

17

Referencing a BOP publication, Rutherford says that

“2,412 people – 1.5% of the total inmate population – are

serving stacked § 924(c) sentences[,]” who must, according to

their individual circumstances, show that they are eligible.

(Opening Br. at 35 (citing U.S. Sent’g Comm’n., Estimate of

the Impact of Selected Sections of S. 1014, The First Step Act

Implementation Act of 2021, at 1 (Oct. 2021)

[https://perma.cc/8VC8-25A7]).

29

serve the interests of judicial efficiency. If we refrain from

deciding it, the various district courts that are, at present,

grappling with the question may reach divergent conclusions. 18

18

We do have the benefit of a well-reasoned district

court decision now, United States v. Carter, 711 F.Supp.3d 428

(E.D. Pa. 2024). Johnnie Carter was serving a 70-year sentence

for a string of armed robberies, a sentence much longer than

the one he would have received today because of the First Step

Act’s modification of § 924(c). Id. at 430. The district court

noted that “it is undisputed Carter’s motion for a new sentence

identifies an ‘extraordinary and compelling reason,’ as defined

by the … Commission[.]” Id. at 435. Yet, the court explained

that “Andrews remains binding law in this circuit, and it

forecloses Carter’s argument that he is eligible for

compassionate release[.]” Id. at 436. That is because, the court

said, the policy statement “is incompatible with Andrews’s

interpretation of the compassionate release statute, 18 U.S.C.

§ 3582(c)(1)(A)(i), and its holding that ‘the duration of [a

defendant’s] sentence and the nonretroactive changes to

mandatory minimums’ is not one of the ‘extraordinary and

compelling reasons’ described by the statute.” Id. (quoting

Andrews, 12 F.4th at 260 (alterations in original)). Carter

argued that the amended Policy Statement abrogated Andrews,

but the court in Carter said that his argument “ha[d] it exactly

backwards”:

In the absence of an applicable policy statement

from the Sentencing Commission, Andrews can

only be understood as a decision interpreting the

text of the compassionate-release statute itself.

And after considering that statutory language,

30

The parties have briefed the issue, and it is ripe for our

consideration. Accordingly, we will resolve the (b)(6)

question as it relates to First Step Act’s change to § 924(c).

the Third Circuit concluded that a defendant’s

unusually and disproportionately long sentence

is not an “extraordinary and compelling reason[]

warrant[ing] [] a reduction.” 18 U.S.C.

§ 3582(c)(1)(A)(i). That holding may not now

be overridden by the Sentencing Commission,

which “does not have the authority to amend the

statute [the court] construed” in a prior case.

Neal v. United States, 516 U.S. 284, 290 (1996).

Id. at 436-37 (first alteration not in original). The court

acknowledged “that Andrews was decided without the benefit

of input from” the Commission and that, “[i]f given the

opportunity to do so, the Third Circuit might well elect to

reconsider its prior holding to give the Sentencing

Commission’s expertise its fair due.” Id. at 437. “But, as

things currently stand,” the court went on, “binding precedent

instructs that a defendant’s unusually long sentence is not an

adequate basis for compassionate release. Unless and until any

reconsideration of Andrews takes place or it is abrogated by a

Supreme Court decision, that holding remains binding on

district courts in this circuit.” Id. at 437-38. Carter appealed,

and we stayed his appeal pending resolution of this case.

31

C. The Amended Policy Statement Does Not

Abrogate Andrews. 19

1. Subsection (b)(6) of the Amended Policy

Statement Is Inconsistent with the First

Step Act.

The government does not dispute that the Commission

possesses the authority to promulgate policy statements for

prisoner-initiated compassionate-release motions, at least not

to the extent such statements relate to the traditional bases for

compassionate release. (Answering Br. 25 n.5 (“As a general

rule, … the Commission’s new policy statement, that clarifies

eligibility based on medical, family, and other traditional bases

for compassionate release, is binding.”).) The government

“objects only to the new ‘change in law’ provision [i.e., (b)(6)]

as exceeding statutory authority.” (Answering Br. at 25-26

n.5.) Thus, we consider only whether (b)(6) is binding on a

court’s compassionate release eligibility determinations when

deciding a motion based in whole or in part on the First Step

Act’s change to § 924(c).

As explained previously (see supra Section I.A.2.), a

sentencing court may grant a compassionate release motion if,

19

As noted (see supra Section I.A.2.), prior to the

Commission promulgating the amended Policy Statement,

several courts of appeals held that the First Step Act’s

nonretroactive changes to certain mandatory minimums could

not be considered an extraordinary and compelling reason to

grant a sentence reduction. We are aware of no case in which

any of those courts of appeals has addressed the impact on the

amended Policy Statement on its precedent.

32

“after considering the factors set forth in section 3553(a) to the

extent that they are applicable, it finds that extraordinary and

compelling reasons warrant such a reduction … and that such

a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(1)(A). Congress instructed “[t]he Commission, in

promulgating general policy statements regarding the

sentencing modification provisions … [to] describe what

should be considered extraordinary and compelling reasons for

sentence reduction, including the criteria to be applied and a

list of specific examples.” 20 28 U.S.C. § 994(t).

When Congress expressly delegates the power to an

agency to “prescribe standards for determining” the meaning

of a particular term or phrase, as it did here for the phrase

“extraordinary and compelling,” “Congress entrusts to the

[agency], rather than to the courts, the primary responsibility

for interpreting the statutory term.” Batterton v. Francis, 432

20

The government does not dispute the constitutionality

of Congress’s delegation to the Commission of the

responsibility to describe what should be considered

“extraordinary and compelling.” Nor is it likely it could

successfully do so. It is true that “Congress generally cannot

delegate its legislative power to another Branch” and that the

“nondelegation doctrine is rooted in the principle of separation

of powers that underlies our tripartite system of Government.”

Mistretta v. United States, 488 U.S. 361, 371-72 (1989). But

the Supreme Court has said that it “harbor[s] no doubt that

Congress’[s] delegation of authority to the Sentencing

Commission is sufficiently specific and detailed to meet

constitutional requirements.” Id. at 374.

33

U.S. 416, 425 (1977). Consistent with that principle, the

Supreme Court said in Concepcion v. United States that, in

sentence reduction proceedings like those involving

compassionate release, Congress has “cabined district courts’

discretion by requiring courts to abide by the Sentencing

Commission’s policy statements.” 597 U.S. 481, 495 (2022).

We thus do not gainsay that the Commission’s policy

statements are generally binding on us. United States v.

Berberena, 694 F.3d 514, 522 (3d Cir. 2012) (“Congress

contemplated that the Commission would have the power to

impose limits on … sentence reductions, by making the

Commission’s policy statements binding.”).

That said, the Commission’s authority to issue binding

policy statements is not unlimited. The Supreme Court has

also explained that, although “Congress has delegated to the

Commission significant discretion[,]” “it must bow to the

specific directives of Congress” and accurately reflect

Congressional intent when it fulfills its responsibilities. United

States v. LaBonte, 520 U.S. 751, 757 (1997) (internal quotation

marks omitted). Indeed, Congress has granted the Commission

power to promulgate only those policy statements that are

“consistent with all pertinent provisions of any Federal

statute.” 28 U.S.C. § 994(a). It is the job of the courts to ensure

that the Commission’s amendments to its policy statements do

not go beyond what Congress intended. United States v. Adair,

38 F.4th 341, 359 (3d Cir. 2022) (concluding that a particular

amendment set forth by the Commission “ha[d] no force of

law” because it “exceed[ed] the Commission’s delegated

powers); cf. Loper Bright Enterprises v. Raimondo, 144 S. Ct.

2244, 2263 (2024) (explaining that “the role of the reviewing

court under the [Administrative Procedures Act] is … to

independently interpret the statute and effectuate the will of

34

Congress subject to constitutional limits” and that “the court

fulfills that role by recognizing constitutional delegations,

fixing the boundaries of the delegated authority, and ensuring

the agency has engaged in reasoned decisionmaking within

those boundaries.” (cleaned up)).

We agree with the government that subsection (b)(6) in

the amended Policy Statement, as applied to the First Step

Act’s modification of § 924(c), conflicts with the will of

Congress and thus cannot be considered in determining a

prisoner’s eligibility for compassionate release. Congress

explicitly made the First Step Act’s change to § 924(c)

nonretroactive. Pub. L. No. 115-391, § 403(b), 132 Stat. 5194,

5222. And, in Andrews, we held that it would be inconsistent

“with [the] pertinent provisions of [the First Step Act],” 28

U.S.C. § 994(a), to allow the amended version of § 924(c) to

be considered in the compassionate release context because

“Congress specifically decided that the changes to the § 924(c)

mandatory minimums would not apply to people who had

already been sentenced.” Andrews, 12 F.4th at 261.

Just as we said in Andrews, we will “not construe

Congress’s nonretroactivity directive as simultaneously

creating an extraordinary and compelling reason for early

release[,]” because “[s]uch an interpretation would sow

conflict within the statute.” 21 Id. Simply put, allowing the

21

As stated previously (see supra Section I.A.4.),

Congress did not act to modify or disapprove of the amended

Policy Statement. But, as the government notes, and as

Rutherford does not dispute, “Congress’[s] failure to reject”

the amended Policy Statement does not “mean[] that it has

35

change to § 924(c) to be considered when determining

compassionate release eligibility does not align with “the

specific directives [that] Congress” set forth in the First Step

Act. 22 LaBonte, 520 U.S. at 757.

effectively adopted that interpretation with respect to the

statute.” DePierre v. United States, 564 U.S. 70, 87 n.13

(2011); Kimbrough v. United States, 552 U.S. 85, 106 (2007)

(“Ordinarily, we resist reading congressional intent into

congressional inaction.”).

22

The preceding discussion also explains why

Rutherford’s “statutory context” argument fails. (Opening Br.

at 39.) In his view, in § 994(t), “Congress placed only one limit

on the Commission’s authority to describe ‘extraordinary and

compelling reasons’ for relief”: “[r]ehabilitation of the

defendant alone shall not be considered an extraordinary and

compelling reason.” (Opening Br. at 39 (quoting 28 U.S.C.

§ 994(t)).) He says that “Section 994(t) shows that Congress

knew how to speak clearly when it wanted to exclude topics

from consideration.” (Opening Br. at 39.) Rutherford’s

argument would have more persuasive effect if the

compassionate release statute were viewed in isolation, but we

can undertake no such approach. Because the Commission

may only promulgate policy statements that are consistent with

all “pertinent provisions of any Federal statute[,]” 28 U.S.C.

§ 994(a), the Commission is inherently limited from creating

policy statements that negate other relevant federal statutes,

like the First Step Act’s nonretroactivity directive.

36

2. Andrews and the Amended Policy

Statement are in Conflict.

Rutherford argues, however, that, in reality, “there is no

conflict” between the amended Policy Statement and Andrews

because our holding there was relatively narrow. (Opening Br.

at 28.) He asserts that “[t]he argument Andrews rejected was

that a nonretroactive change, by itself,” could create an

extraordinary and compelling reason. (Opening Br. at 28

(emphasis added).) The government retorts that Andrews

“determined that a change in the law, whether considered alone

or in combination with other factors,” cannot be considered

when making a compassionate-release eligibility

determination. (Answering Br. at 23.) We do not have to rule

as broadly as the government might like; it is enough to say

that the government is right in this instance. The question we

are addressing calls for an examination of § 924(c), not a far-

ranging examination of all changes in laws affecting criminal

sentences. And we have already thoroughly examined the

§ 924(c) change in Andrews. 23

23

We are not suggesting that a change in law could

never be considered in the compassionate release eligibility

context. Our holding is solely that the First Step Act’s change

to § 924(c) cannot be considered in that context, on its own or

with other factors, because of Congress’s explicit instruction

in that statute that the change be nonretroactive.

We also acknowledge that in Stewart, we used language

to summarize our holding in Andrews that may have suggested

our conclusion in Andrews was broader than it was. United

States v. Stewart, 86 F.4th 532, 533 (3d Cir. 2023) (“[I]n

Andrews we held that neither the length of a lawfully imposed

37

As a reminder, the defendant in Andrews advanced six

reasons that he claimed, “together, … were extraordinary and

compelling under the compassionate-release statute.”

Andrews, 12 F.4th at 258 (emphasis added). We noted that the

district court in that case “concluded that two of the proposed

reasons – the duration of Andrews’s sentence and the

nonretroactive changes to mandatory minimums [in § 924(c)]

– could not be extraordinary and compelling as a matter of

law.” Id. at 258. We upheld that conclusion. And we clarified

that, although the district court appropriately excluded those

two reasons from the eligibility analysis, “we [were] not saying

that they are always irrelevant to the sentence-reduction

inquiry” because they “may be a legitimate consideration for

courts at the next step of the analysis when [a court] weigh[s]

sentence nor any nonretroactive change to mandatory

minimum sentences establishes ‘extraordinary and

compelling’ circumstances warranting release.” (emphasis

added)). Andrews’s holding itself was confined to the § 924(c)

context. See Andrews, 12 F.4th at 261 (holding that “[t]he

nonretroactive changes to the § 924(c) mandatory minimums

also cannot be a basis for compassionate release” and referring

to the § 924(c) mandatory minimums by using phrases like “the

nonretroactive changes to mandatory minimums” (emphasis

added)). In fact, Andrews’s discussion of the First Step Act

makes it evident that we were specifically considering whether

the changes to § 924(c) could be considered extraordinary and

compelling when Congress had specifically made those

changes nonretroactive. Accordingly, we view our holding in

Andrews as confined to the § 924(c) context.

38

the § 3553(a) factors.” 24 Id. at 262. We also upheld the district

court’s decision that “Andrews’s four remaining reasons

collectively fell short of being extraordinary and compelling

under the statute.” Id. at 259 (emphasis added). Therefore, at

bottom, our holding in Andrews was that the nonretroactive

change to § 924(c), whether by itself or in combination with

other factors, cannot be considered in the compassionate

release eligibility context.

We stand by that ruling today. When it comes to the

modification of § 924(c), Congress has already taken

retroactivity off the table, so we cannot rightly consider it. See

United States v. Jean, 108 F.4th 275, 295 (5th Cir. 2024)

(Smith, J., dissenting) (“[P]resenting two insufficient things is

different from presenting an insufficient thing together with

something we are legally prohibited from considering because

it is outside the scope of, or prohibited by, the statute.”).

24

Congress enumerated “the need to avoid unwarranted

sentence disparities among defendants with similar records

who have been found guilty of similar conduct” as a factor that

must be considered after a prisoner is determined eligible for

compassionate release, which suggests that Congress intended

courts to consider changes in law at the post-eligibility phase,

rather than as a part of the eligibility determination. 18 U.S.C.

§ 3553(a)(6).

39

3. Even if an Ambiguity Analysis is

Required in this Case, Our Holding in

Andrews Trumps the Amended Policy

Statement in the § 924(c) Context.

Rutherford argues that even if there were a conflict

between the amended Policy Statement and Andrews, “the

Commission’s reading would control” because, in his view,

“[t]he government [did not show] that the compassionate

release statute unambiguously forecloses the policy

statement.” (Opening Br. at 28, 30.) He says that “[t]he

government cannot make that showing because Andrews

already recognized that the phrase ‘extraordinary and

compelling’ is ‘amorphous’ and ‘ambiguous.’” (Opening Br.

at 31 (quoting Andrews, 12 F.4th at 60).) The government

responds that, “while the full reach of the term is doubtless

imprecise, necessitating action of the Commission, the term is

not at all ambiguous as applied to the specific context of a

nonretroactive change in law.” 25 (Answering Br. at 36.) The

25

Rutherford also says that the government itself

acknowledged at oral argument before the District Court that

“[e]xtraordinary and compelling is not the most unambiguous

statement that anyone has ever made.” (Opening Br. at 31

(quoting J.A. at 190).) But he does not mention that the

government also advanced the same argument it does here,

namely, that the statute is unambiguous as it relates to a

nonretroactive change in the law. (J.A. at 191 (“Ambiguous as

the term extraordinary and compelling is, it does not fit where

what your circumstance is is a change in law that Congress had

declared nonretroactive.”).)

40

government again has the better of the arguments, at least

insofar as it addresses the change in § 924(c).

Whatever else the Commission may be empowered to

do, it plainly “may not replace a controlling judicial

interpretation of an unambiguous statute with its own

construction (even if that construction is based on agency

expertise)[.]” 26 Adair, 38 F.4th at 361 (emphasis added). And

on retroactivity, the change to § 924(c) is not the least

ambiguous. Congress made the change non-retroactive. No

matter how well-intentioned, the Policy Statement cannot

change that.

In Loper Bright Enterprises v. Raimondo, the Supreme

Court overturned the long-standing rule that courts must defer

to agency interpretations of statutes within an agency’s

expertise. The Court said such so-called Chevron deference

26

Relying on Braxton v. United States, 500 U.S. 344

(1991), Rutherford says that the Commission has the power to

overturn Circuit precedent and resolve circuit splits and, thus,

we must defer to the Commission’s amended Policy Statement.

(Opening Br. at 28-29.) But the guideline provision at issue

in Braxton did not conflict with an unambiguous congressional

statute. 500 U.S. at 346-48. And, as Braxton itself recognized,

the Commission is not the only body that can resolve a split in

judicial authority concerning the Guidelines. “Congress itself

can eliminate a conflict concerning a statutory provision by

making a clarifying amendment to the statute.” Id. at 347-48.

That is what happened here when Congress unambiguously

stated that the First Step Act’s amendment of § 924(c) was not

retroactive. The Commission cannot override that command.

41

was the “antithesis” of “the traditional conception of the

judicial function[,]” especially when “it forces courts to [defer]

even when a pre-existing judicial precedent holds that the

statute means something else – unless the prior court happened

to also say that the statute is ‘unambiguous.’” 144 S. Ct. 2244,

2263, 2265 (2024) (citing Nat’l Cable & Telecommunications

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)).

That ruling was made when considering the Administrative

Procedures Act, which, admittedly, is not what we look to

when considering actions of the Commission. See United

States v. Berberena, 694 F.3d 514, 527 (3d Cir. 2012)

(“Congress decided that the … Commission would not be an

‘agency’ under [that Act] when it established the Commission

as an independent entity in the judicial branch.” (internal

quotation marks omitted)). But Loper Bright is still instructive

as we assess the assertion that the Commission’s view of a

statute should trump our own.

The Supreme Court has explained that the “first step in

interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute in the case.” Robinson v. Shell Oil Co., 519

U.S. 337, 340 (1997) (emphasis added). The particular dispute

in Andrews was whether the “nonretroactive changes to the

§ 924(c) mandatory minimums [could] be a basis for

compassionate release[,]” or in other words, whether such

changes could be considered “extraordinary and compelling.”

Andrews, 12 F.4th at 261. We did not use the terms

“amorphous” and ambiguous” to describe that particular

question; we used them only to explain that the district court

did not err in using traditional methods of statutory

interpretation to come to its own conclusion that

“extraordinary and compelling” did not encompass that change

42

in the law. 27 Andrews, 12 F.4th at 260. And while it is true

that we did not say that the phrase “extraordinary and

compelling” was “unambiguous” as applied to the § 924(c)

change, we need not make such an explicit statement to

communicate the point. See Bastardo-Vale v. Attorney

General, 934 F.3d 255, 259 n.1 (3d Cir. 2019) (en banc)

(“[The] use of words like ‘suggest’ or ‘implies,’ when viewed

27

We said:

To start, the District Court did not err when it

consulted the text, dictionary definitions, and the

policy statement to form a working definition of

“extraordinary and compelling reasons.” Given

that the compassionate-release statute does not

define “extraordinary and compelling reasons,”

the court looked to those resources to give shape

to the otherwise amorphous phrase. That was not

error. “We look to dictionary definitions to

determine the ordinary meaning of a word …

with reference to its statutory text.” Bonkowski

v. Oberg Indus., Inc., 787 F.3d 190, 200 (3d Cir.

2015). And courts may consider an extrinsic

source like the policy statement if, like here, it

“shed[s] a reliable light on the enacting

Legislature’s understanding of [an] otherwise

ambiguous term[].” Exxon Mobil Corp. v.

Allapattah Servs., Inc., 545 U.S. 546, 568[]

(2005).

Andrews, 12 F.4th at 260.

43

in context … conveys that [the court] viewed the statute as

clear.”). 28

In sum, the amended Policy Statement conflicts with

Andrews, and Andrews controls. Therefore, the First Step

Act’s change to § 924(c) cannot be considered in the analysis

of whether extraordinary and compelling circumstances make

a prisoner eligible for compassionate release.

III. CONCLUSION

For the foregoing reasons, we will affirm the District

Court order denying Rutherford’s compassionate release

motion.

28

In any event, an ambiguity determination comes only

after courts apply traditional tools of statutory construction.

Cf. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837, 843 n.9 (1984) (“If a court, employing traditional

tools of statutory construction, ascertains that Congress had an

intention on the precise question at issue, that intention is the

law and must be given effect.”), overruled by Loper Bright,

144 S. Ct. 2244. So the fact that the district court in Andrews

used traditional tools of statutory interpretation does not

automatically mean that the statute can be called ambiguous

with respect to the particular issue in this case.

44