United States v. Curtis Jenkins

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2022 Decided October 11, 2022

No. 21-3089

UNITED STATES OF AMERICA,

APPELLEE

v.

CURTIS JENKINS,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cr-00213-1)

Celia Goetzl, Assistant Federal Public Defender, argued

the cause for appellant. With her on the appellant’s

Memorandum of Law and Fact was A.J. Kramer, Federal

Public Defender.

Kevin Birney, Assistant U.S. Attorney, argued the cause

for appellee. With him on the appellee’s Memorandum of Law

and Fact were Chrisellen R. Kolb and Nicholas P. Coleman,

Assistant U.S. Attorneys.

Before: KATSAS and WALKER, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

2

Opinion for the Court filed by Circuit Judge KATSAS.

Opinion concurring in part, dissenting in part, and

concurring in the judgment filed by Senior Circuit Judge

GINSBURG.

KATSAS, Circuit Judge: A district court may grant an

inmate compassionate release only for “extraordinary and

compelling reasons.” 18 U.S.C. § 3582(c)(1)(A). Typically,

such reasons involve personal considerations such as the

inmate’s health, age, or family circumstances. Section 1B1.13

of the Sentencing Guidelines, which governs motions for

compassionate release filed by the Bureau of Prisons, addresses

when these considerations become sufficiently “extraordinary

and compelling” to warrant compassionate release.

In United States v. Long, 997 F.3d 342 (D.C. Cir. 2021),

we held that section 1B1.13 does not govern motions for

compassionate release filed by the inmate himself. This case

presents the question whether the district courts, in considering

such motions, may nonetheless rely on section 1B1.13 and its

commentary as persuasive authority. Following the view of

nine sister circuits, we hold that they may.

This case also presents the question whether certain

intervening legal changes, occurring after the sentence at issue

was imposed, can support compassionate release. One is a

statute that only prospectively reduces penalties for the

defendant’s offense. Another is a judicial decision that

retroactively establishes legal error at sentencing. A third is a

judicial decision that, if rendered earlier, might have affected

the negotiation of a plea bargain by reducing the defendant’s

exposure. We hold that none of these changes in sentencing

law can support the grant of compassionate release.

3

I

A

Under the former regime of indeterminate sentencing, a

prisoner typically became eligible for release on parole after

serving the earlier of one third of his sentence or 10 years. 18

U.S.C. § 4205(a) (governing inmates sentenced before 1987).

Executive officials had broad discretion to grant or deny parole.

Id. § 4206(a). In addition, the Bureau of Prisons could at any

time and for any reason move in court to reduce the prisoner’s

sentence to time served. Id. § 4205(g).

The Sentencing Reform Act of 1984 abandoned

indeterminate sentencing. Pub. L. No. 98-473, tit. II, ch. II, 98

Stat. 1987. The SRA abolished parole, including release under

section 4205(g). Id. § 218(a)(5), 98 Stat. at 2027. It prohibits

modification of a sentence except in three defined

circumstances. First, as under the old section 4205(g), the

court may reduce a sentence upon motion of the Bureau of

Prisons. 18 U.S.C. § 3582(c)(1)(A). This avenue is widely

known as compassionate release. Second, the court may

modify a sentence “to the extent otherwise expressly permitted

by statute or by Rule 35 of the Federal Rules of Criminal

Procedure.” Id. § 3582(c)(1)(B). Third, the court may

resentence a defendant if the Sentencing Commission has

lowered the applicable guideline range and made the change

retroactive. Id. § 3582(c)(2).

The SRA imposed three limits on compassionate release

that were not present in the old section 4205(g). First, a district

court may grant the Bureau’s motion only if it finds that

“extraordinary and compelling reasons” warrant early release.

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18 U.S.C. § 3582(c)(1)(A)(i).1 Second, the reduced sentence

must be “consistent with applicable policy statements issued by

the Sentencing Commission.” 18 U.S.C. § 3582(c)(1)(A).

Finally, the court may grant relief only “after considering the

factors set forth in section 3553(a) to the extent that they are

applicable.” Id.

The First Step Act of 2018 created a new procedural

pathway to compassionate release. As before, a defendant

seeking compassionate release first must ask the BOP to file a

motion on his behalf. Now, if the Bureau refuses, the defendant

may file the motion on his own behalf. Pub. L. No. 115-391,

§ 602(b)(1), 132 Stat. 5194, 5239 (codified at 18 U.S.C.

§ 3582(c)(1)(A)). The First Step Act did not alter the other

statutory restrictions on compassionate release, including the

requirement of “extraordinary and compelling reasons.”

The Sentencing Commission has issued a policy

statement about compassionate release, U.S.S.G. § 1B1.13,

which it last amended before the passage of the First Step Act.

The statement provides that a court may grant compassionate

release “[u]pon motion of the Director of the Bureau of

Prisons” if “extraordinary and compelling reasons warrant the

reduction” and the inmate poses no danger to the safety of any

other person.

Application note 1 of the commentary on section 1B1.13

lists three kinds of reasons that the Commission deems

extraordinary and compelling: health, if the inmate suffers

from a terminal illness or other serious condition from which

1

Congress later permitted release under section 3582(c)(1)(A)

for certain elderly defendants sentenced to life imprisonment.

Violent Crime Control and Law Enforcement Act of 1994, Pub. L.

No. 103-322, § 70002(5), 108 Stat. 1796, 1985 (codified at 18 U.S.C.

§ 3582(c)(1)(A)(ii)). That provision is not at issue here.

5

he is not expected to recover; age, if the inmate is over 65, has

seriously deteriorating health, and has served 10 years or 75%

of his sentence; and family circumstances, if the caregiver of

the inmate’s minor child dies or becomes incapacitated or if the

inmate’s spouse becomes incapacitated and has no other

caregiver. U.S.S.G. § 1B1.13 cmt. n.1(A)–(C). These

categories are not exclusive. A reduction may also be

warranted if, “[a]s determined by the Director of the Bureau of

Prisons, there exists in the defendant’s case an extraordinary

and compelling reason other than, or in combination with,” the

listed reasons. Id. cmt. n.1(D).

Section 1B1.13 binds courts in cases where it is

“applicable.” 18 U.S.C. § 3582(c)(1)(A). In United States v.

Long, 997 F.3d 342 (D.C. Cir. 2021), we held that section

1B1.13 “is not ‘applicable’ to defendant-filed motions for

compassionate release under the First Step Act,” because it

“applies only to motions … filed by the Bureau of Prisons.” Id.

at 355. The Sentencing Commission lacked a quorum from

January 2019 until August 2022, so it has been unable to

promulgate a policy statement that applies to such motions.

B

In November 2016, police conducted a traffic stop of

Curtis Jenkins’ car. They found a stolen handgun, 11 grams of

crack cocaine, and roughly $2,500 in cash. A federal grand

jury charged Jenkins with one count of possessing a firearm as

a felon, 18 U.S.C. § 922(g); one count of possessing cocaine

base with intent to distribute, 21 U.S.C. § 841(a)(1) &

(b)(1)(C); and one count of using a firearm during and in

relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A).

While Jenkins was on release pending trial, he fled after police

tried to stop his car a second time. When the police eventually

apprehended him, they discovered another gun, 3.5 grams of

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crack cocaine, and about $1,500 in cash. The grand jury once

again charged Jenkins with the same three offenses, for a total

of six counts.

At the time, Jenkins faced long mandatory minimum

sentences on the various firearms charges. A section 924(c)

offense carries a mandatory minimum sentence of five years’

imprisonment, which must run consecutively with any other

sentence. 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii) (2018). And

section 924(c)’s stacking provision set a mandatory minimum

sentence for a second section 924(c) offense at 25 years, even

if the defendant had not yet been convicted of the first offense

at the time of the second. Id. § 924(c)(1)(C)(i) (2012).

Additionally, the Armed Career Criminal Act (ACCA)

imposes a 15-year mandatory minimum sentence for violating

section 922(g) if the defendant has three prior convictions for

a “violent felony” or “serious drug offense.” Id. § 924(e)(1)

(2018). Jenkins had two prior convictions for attempted

distribution of cocaine and one for assault with a dangerous

weapon under D.C. law. At the time, all three convictions

arguably qualified as predicate offenses to trigger ACCA.

Jenkins thus faced the substantial possibility of a 45-year

mandatory minimum sentence, with additional prison time for

the two drug charges.

Jenkins and the government entered a plea agreement.

Jenkins agreed to plead guilty to one section 924(c) charge and

one cocaine possession charge in exchange for dismissal of the

remaining four charges. Given Jenkins’ prior convictions, the

parties agreed that the career offender sentencing guideline,

U.S.S.G. § 4B1.1(a), applied. That gave Jenkins a guideline

range of about 22 to 27 years. Nonetheless, the parties agreed

to recommend a prison term of eight to 12 years. The district

court sentenced Jenkins to eight years. As part of the plea deal,

Jenkins waived any right to challenge the sentence on direct

7

appeal or by motion under 28 U.S.C. § 2255, except to the

extent such a motion was based on newly discovered evidence

or a claim of ineffective assistance of counsel.

Three relevant legal developments then took place. First,

Congress prospectively narrowed section 924(c)’s stacking

provision. Now, its enhanced minimum sentence applies only

to offenses committed “after a prior conviction” under section

924(c). First Step Act § 403(a), 132 Stat. at 5221–22 (codified

at 18 U.S.C. § 924(c)(1)(C)) (emphasis added). But the

amendment applies only to defendants who had not yet been

sentenced at the time of its enactment. Id. § 403(b), 132 Stat.

at 5222. Had the change been in place when Jenkins was

charged, he would have faced a 10-year rather than a 30-year

minimum for the two section 924(c) charges. Second, United

States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018), held that

attempted drug offenses do not trigger the career offender

guideline. Id. at 1091. Without his prior convictions for

attempted distribution, Jenkins would not have been

considered a career offender, and his guideline range would

have been seven to seven and a half years—well below the

guideline range stipulated by the parties, and slightly below the

sentence ultimately imposed. Third, Borden v. United States,

141 S. Ct. 1817 (2021), held that offenses with a minimum

mens rea of recklessness are not “crimes of violence” under

ACCA. Id. at 1821–22 (plurality opinion); id. at 1835

(Thomas, J., concurring in the judgment). Under D.C. law,

recklessness is enough to support a conviction for assault with

a dangerous weapon. Frye v. United States, 926 A.2d 1085,

1097 (D.C. 2005). Without counting his conviction for that

offense, Jenkins would not have faced a 15-year minimum

sentence under ACCA.

Jenkins filed a motion for compassionate release. He

argued that the narrowed stacking provision, the commission

8

of a Winstead error to trigger the career offender guideline, and

the pre-Borden threat of a 15-year minimum sentence under

ACCA were extraordinary and compelling circumstances

warranting early release. Jenkins also claimed that he was at

heightened risk of COVID-19 due to his borderline obesity,

that his elderly mother needed him as a caregiver, and that his

adult daughters needed him to be present in their lives.

The district court denied the motion. The court

acknowledged that section 1B1.13 “is not binding or

exhaustive” but still found it “useful” as “general guidance.”

ECF Doc. 42, at 8. The court then considered whether Jenkins

had “presented information that is similar, or is at least roughly

comparable to,” the reasons that section 1B1.13 and its

commentary identify as extraordinary and compelling. Id. at 9.

The court further held that the new statute, Winstead, and

Borden were irrelevant because the compassionate-release

statute does not permit courts to reexamine the lawfulness or

fairness of a sentence as originally imposed. Id. at 9–10. That

left only Jenkins’ health and family circumstances which, the

court concluded, did not themselves amount to extraordinary

and compelling reasons for early release. Id. at 11–13.

II

We review the denial of a motion for compassionate

release for abuse of discretion. Long, 997 F.3d at 352. An error

of law is necessarily an abuse of discretion. Koon v. United

States, 518 U.S. 81, 100 (1996). Here, the requirement of

“extraordinary and compelling reasons” establishes the

governing legal standard. Defining its scope—i.e.,

determining what kind of reasons can be “extraordinary and

compelling”—is a legal question that we review de novo. U.S.

Bank Nat. Ass’n v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 965

(2018). Whether the facts of a particular case satisfy the

9

standard is a mixed question that we review deferentially. See

id. at 966–67.

III

Jenkins first takes aim at the district court’s reliance on

section 1B1.13 and its commentary. He claims the court

treated them as binding despite Long’s holding that section

1B1.13 does not apply to defendant-filed motions.

Alternatively, he argues that it was error to rely on the

administrative materials even as persuasive authority.

A

The district court did not consider itself bound by section

1B1.13. Citing Long, it stated that section 1B1.13 “is not

binding or exhaustive.” ECF Doc. 42, at 8. To be sure, the

court did frame its discussion in terms of whether Jenkins had

presented reasons comparable to the ones listed in section

1B1.13 and its commentary. But courts do not treat Sentencing

Commission guidance as controlling when they rely on it only

as the “starting point and … initial benchmark” of their

analysis. Gall v. United States, 552 U.S. 38, 49 (2007).

Jenkins cites United States v. Johnson, 858 F. App’x 381

(D.C. Cir. 2021), which vacated the denial of a defendant-filed

motion for compassionate release. There, the district court

asserted that extraordinary and compelling reasons were

“circumstances defined in the Guidelines.” Id. at 383 (cleaned

up). We held that the court had erroneously “consider[ed] itself

bound by the policy statement.” Id. In contrast, the district

court here was explicit that section 1B1.13 did not control its

decision.

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B

The district court appropriately considered the Sentencing

Commission’s guidance. Although not formally controlling,

the guidance interprets a statutory requirement common to both

BOP-filed and defendant-filed motions. Courts may consider

nonbinding agency interpretations of statutes to be persuasive

authority. Skidmore v. Swift & Co., 323 U.S. 134, 139–40

(1944). The level of weight such an interpretation carries

“var[ies] with circumstances,” including “the degree of the

agency’s care, its consistency, formality, and relative

expertness.” United States v. Mead Corp., 533 U.S. 218, 228

(2001) (cleaned up). Given these considerations, the district

court reasonably invoked the guidance.

To begin, the guidance is formal. The Sentencing

Commission has published it in the Guidelines Manual and

framed it as general guidance of nationwide scope. The

guidance also reflects an exercise of the Commission’s

rulemaking authority, which formally binds courts in cases

where it applies. 18 U.S.C. § 3582(c)(1)(A); 28 U.S.C.

§ 994(t). Likewise, the commentary is binding to the extent

that it reasonably interprets the policy statement. Stinson v.

United States, 508 U.S. 36, 44–45 (1993).

The guidance also falls within the Sentencing

Commission’s expertise. Congress has charged the

Commission with setting forth “what should be considered

extraordinary and compelling reasons” for compassionate

release. 28 U.S.C. § 994(t). And the guidance reflects a careful

exercise of that responsibility. The Commission adopted the

current version of application note 1 after “an in-depth review”

that included BOP data on compassionate-release applications,

two reports from the Department of Justice Office of Inspector

General, and a public hearing. U.S. Sentencing Comm’n,

11

Guidelines Manual: Supplement to Appendix C, amend. 799, at

127 (2021). The Commission also explained in detail how the

facts it found led to its specific guidance. Id. at 127–28.

Finally, the Sentencing Commission’s guidance has been

consistent over time. The Commission first construed the

“extraordinary and compelling reasons” language in 2007.

Then, it listed three kinds of qualifying reasons—health, age,

and family circumstances—and acknowledged that other

reasons may also suffice. 3 U.S. Sentencing Comm’n,

Guidelines Manual: Appendix C, amend. 698, at 186 (2011).

Application note 1 retains this basic structure. The only change

has been to elaborate further on each category.

Given these considerations, the district court permissibly

relied on section 1B1.13 and its commentary to inform the

exercise of its discretion. As nine other circuits have held,

courts may consider these materials even in cases involving

defendant-filed motions for compassionate release. E.g.,

United States v. Ruvalcaba, 26 F.4th 14, 23 (1st Cir. 2022);

United States v. Andrews, 12 F.4th 255, 260 (3d Cir. 2021);

United States v. McCoy, 981 F.3d 271, 282 n.7 (4th Cir. 2020);

United States v. Thompson, 984 F.3d 431, 433 (5th Cir. 2021);

United States v. Tomes, 990 F.3d 500, 503 n.1 (6th Cir. 2021);

United States v. Gunn, 980 F.3d 1178, 1180 (7th Cir. 2020);

United States v. Marcussen, 15 F.4th 855, 859 (8th Cir. 2021);

United States v. Aruda, 993 F.3d 797, 802 (9th Cir. 2021);

United States v. Hald, 8 F.4th 932, 938 n.4 (10th Cir. 2021).

Jenkins’ contrary arguments are unconvincing. Citing

Long, Jenkins first contends that the guidance is unpersuasive

because it “does not reflect any … policy judgment … about how

compassionate release decisions should be made under the First

Step Act,” which “deliberately broadened its availability.” 997

F.3d at 359. But the Act’s sole change was to create a new

procedural avenue for relief. It did not alter the extraordinary-

12

and-compelling-reasons standard, so it did not undermine the

Commission’s interpretation of that standard. And in Long, we

held only that section 1B1.13 is not formally “applicable” to

defendant-filed motions, so its guidance is not legally binding.

Id. at 347. We had no occasion to consider, and we did not

consider, the distinct question whether courts may rely on it as

persuasive authority.

Jenkins next claims that application note 1 unreasonably

limits “extraordinary and compelling reasons” to specific

circumstances related to the defendant’s health, age, and family

situation. See U.S.S.G. § 1B1.13 cmt. n.1(A)–(C). Jenkins

overlooks the note’s catchall provision, which states that a

“reason other than, or in combination with,” the listed

circumstances may be extraordinary and compelling. Id. cmt.

n.1(D). Admittedly, paragraph (D) also requires that any

unenumerated reason be raised by the BOP. Id. But the district

court properly looked beyond that requirement in the context

of a defendant-filed motion, instead asking whether Jenkins

had presented any reasons “at least roughly comparable” to the

ones enumerated in the guidance. ECF Doc. 42, at 9.

Finally, Jenkins argues that courts should give no weight

to application note 1 because it interprets a policy statement

that merely parrots the governing statute. As a general matter,

we defer to the Sentencing Commission’s official commentary

because it is analogous to an agency’s interpretation of its own

regulations. Stinson, 508 U.S. at 44–45; see Kisor v. Wilkie, 139

S. Ct. 2400 (2019); Auer v. Robbins, 519 U.S. 452 (1997). But

we do not extend Auer deference when the regulation being

interpreted “does little more than restate the terms of the statute

itself.” Gonzales v. Oregon, 546 U.S. 243, 257 (2006). Here,

section 1B1.13(1)(A) merely repeats verbatim the statutory

requirement of “extraordinary and compelling reasons.” Thus,

13

Jenkins maintains, under the analogy of policy statements to

regulations, application note 1 is entitled to no deference.

We need not decide whether Jenkins is correct on this

point. Even when the parroting exception to Auer applies, an

agency’s interpretation of language common to the statute and

regulation still may receive Skidmore deference. Gonzales,

546 U.S. at 268–69. For Skidmore purposes, the only

difference between section 1B1.13 itself and application note 1

is that the policy statement is somewhat more formal. This

does not undermine our overall conclusion that the district

courts may permissibly rely on the Commission’s

interpretation as persuasive, for all the reasons noted above.

IV

We next consider Jenkins’ arguments based on the

stacking amendment, Winstead, and Borden. The district court

held that such intervening changes in sentencing law cannot

warrant compassionate release. Jenkins objects that this

holding is atextual. Congress has directed that “[r]ehabilitation

of the defendant alone” may “not be considered an

extraordinary and compelling reason.” 28 U.S.C. § 994(t). But

otherwise, Jenkins contends, Congress has placed no limits on

what reasons a court may consider in deciding whether to grant

compassionate release.

We disagree, for the proffered reasons must be

“extraordinary and compelling.” 18 U.S.C. § 3582(c)(1)(A).

An “extraordinary” reason must be “‘most unusual,’ ‘far from

common,’ and ‘having little or no precedent.’” United States

v. Hunter, 12 F.4th 555, 562 (6th Cir. 2021) (quoting Webster’s

Third New International Dictionary: Unabridged 807 (1971)).

And a “compelling” reason must be “both powerful and

convincing.” United States v. Canales-Ramos, 19 F.4th 561,

567 (1st Cir. 2021) (citing Webster’s Third, supra, at 462).

14

Applying these requirements, we agree with the district court

that Jenkins’ three asserted grounds are neither extraordinary

nor compelling, whether considered in isolation or in

combination with other factors.

A

Start with the stacking provision. The First Step Act

eliminated the 25-year minimum sentence for a second section

924(c) offense if the defendant had not yet been convicted of

the first offense at the time of the second. Pub. L. No. 115-391,

§ 403(a), 132 Stat. at 5221–22. Although the amendment

applies only prospectively to defendants sentenced after the

date of its enactment, id. § 403(b), 132 Stat. at 5222, Jenkins

claims that courts may nonetheless consider it in deciding

whether to grant compassionate release to defendants

previously sentenced under the unamended provision.

The circuits have split on whether courts may consider

such intervening but expressly nonretroactive sentencing

statutes. Three circuits have held that such statutes may neither

support nor contribute to a finding that extraordinary and

compelling reasons warrant compassionate release. United

States v. Crandall, 25 F.4th 582, 586 (8th Cir. 2022); Andrews,

12 F.4th at 261 (3d Cir.); United States v. Thacker, 4 F.4th 569,

574 (7th Cir. 2021). Four circuits have held that such statutes

may be considered in connection with other factors. United

States v. Chen, No. 20-50333, 2022 WL 4231313, at *5 (9th

Cir. Sept. 14, 2022); Ruvalcaba, 26 F.4th at 28 (1st Cir.);

United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir.

2021); McCoy, 981 F.3d at 286 (4th Cir.); The Sixth Circuit is

internally split on the issue. Compare United States v.

McKinnie, 24 F.4th 583, 588 (6th Cir. 2022), with United States

v. McCall, 20 F.4th 1108, 1114 (6th Cir. 2021), reh’g en banc

granted, opinion vacated, 29 F.4th 816 (6th Cir. 2022) (mem.).

15

We agree with the Third, Seventh, and Eighth Circuits. To

begin, there is nothing remotely extraordinary about statutes

applying only prospectively. In fact, there is a strong

presumption against statutory retroactivity, which is “deeply

rooted in our jurisprudence” and “embodies a legal doctrine

older than our Republic.” Landgraf v. USI Film Prods., 511

U.S. 244, 265 (1994). The Ex Post Facto Clause compels the

purely prospective application of criminal statutes that are

unfavorable to defendants. U.S. Const. art. 1, § 9, cl. 3. And

since 1871, federal law has codified the presumption against

retroactivity for statutes making criminal law more favorable

to defendants. Thus, a statute reducing the penalties for a

criminal offense—or even repealing the offense entirely—does

not apply to offenses committed prior to its enactment, “unless

the repealing Act shall so expressly provide.” 1 U.S.C. § 109;

see Dorsey v. United States, 567 U.S. 260, 273–75 (2012). The

SRA imposes its own prospectivity rule for sentencing

guidelines, by instructing courts to consider the guidelines “in

effect on the date the defendant is sentenced.” 18 U.S.C.

§ 3553(a)(4)(A)(ii). Thus, “in federal sentencing the ordinary

practice is to apply new [lower] penalties to defendants not yet

sentenced, while withholding that change from defendants

already sentenced.” Dorsey, 567 U.S. at 280. And what “the

Supreme Court views as the ‘ordinary practice’ cannot also be

an ‘extraordinary … reason’ to deviate from that practice.”

United States v. Wills, 997 F.3d 685, 688 (6th Cir. 2021). Nor

can such a settled, common practice be a compelling reason to

deviate.

Separation-of-powers considerations reinforce this

analysis. “It is the legislature, not the Court, which is to define

a crime, and ordain its punishment.” United States v.

Wiltberger, 18 U.S. (5 Wheat.) 76, 95 (1820). When Congress

enacted the original stacking provision, it deemed a 25-year

minimum sentence to be appropriate for all second section

16

924(c) offenses. 18 U.S.C. § 924(c)(1)(C)(i) (2012). And by

making its ameliorative amendment expressly nonretroactive,

First Step Act § 403(b), 132 Stat. at 5222, Congress reaffirmed

that the 25-year minimum remained appropriate for defendants

already sentenced. We would usurp these quintessentially

legislative judgments if we used compassionate release as a

vehicle for applying the amendment retroactively, to

previously sentenced defendants who would not otherwise

qualify for compassionate release. As the Seventh Circuit

explained, we cannot allow the “general” and “discretionary”

authority conferred by the compassionate-release statute “to

upend the clear and precise limitation Congress imposed on the

effective date of the First Step Act’s amendment to § 924(c).”

Thacker, 4 F.4th at 574. Here as elsewhere, courts must

exercise their discretion consistent with all applicable statutory

constraints. See, e.g., Martin v. Franklin Cap. Corp., 546 U.S.

132, 139 (2005) (“Discretion is not whim.”); INS v. Pangilinan,

486 U.S. 875, 883 (1988) (“courts of equity can no more

disregard statutory and constitutional requirements … than can

courts of law” (cleaned up)).

Courts reaching the contrary conclusion have reasoned

that there is a significant difference between making an

intervening statute “categorically retroactive”—which all

agree Congress did not do here—and considering a purely

prospective statute as one relevant factor in an “individualized”

compassionate-release inquiry. McCoy, 981 F.3d at 286.

Making the statute retroactive would require “automatic

vacatur” of all past sentences to which the statute applied. Id.

In contrast, considering an intervening statute would merely

“allow[] for the provision of individual relief in the most

grievous cases.” Id. at 287 (cleaned up). For this reason, the

concurrence concludes that we have committed a “Fallacy of

Division” by “assuming what is true of the whole must be true

of each part.” Post at 2.

17

The difficulty with this view is that the disputed

considerations do not vary from case to case—one might say

that they are not divisible. The Fourth Circuit would have

courts consider two assertedly “distinct features” of cases

involving defendants sentenced under the unamended stacking

provision—the “sheer and unusual length” of the 25-year

mandatory minimum and the “gross disparity” between that

provision and the five-year mandatory minimum that would

have applied had the amendment been made retroactive. See

McCoy, 981 F.3d at 285–86. Likewise, the concurrence would

have courts consider “a societal decision that the conduct for

which the prisoner was convicted incurs less moral opprobrium

than it previously had.” Post at 3. Such reasoning always runs

headlong into Congress’s judgment that the unamended statute

remains appropriate for previously sentenced defendants,

which is why even courts on the McCoy side of the split

recognize that a court may never grant compassionate release

based solely on prospective sentencing changes. See, e.g.,

Ruvalcaba, 26 F.4th at 27 (“if a district court were to reduce a

sentence solely because one of [a statute’s] non-retroactive

amendments would have lowered a defendant’s sentence, it

might be seen as substituting its own judgment on retroactivity

for Congress’s judgment”); id. at 32 (Barron, J., concurring)

(“the premise of our holding is not that a nonretroactive legal

change in and of itself can provide the ‘extraordinary and

compelling reason’ to reduce the sentence”). Of course, courts

still may consider individualized factors such as “the

defendants’ relative youth at the time of their offenses, their

post-sentencing conduct and rehabilitation, and the very

substantial terms of imprisonment they already served.”

McCoy, 981 F.3d at 288. But if those considerations do not

themselves warrant compassionate release, we should not tip

the balance by allowing courts to question whether the original

18

mandatory minimum sentence was simply too long, either in

absolute terms or relative to the amendment. As Chief Judge

Sutton nicely summed up, “adding a legally impermissible

ground to three insufficient factual considerations does not

entitle a defendant to a sentence reduction.” United States v.

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

Our analysis is consistent with the Supreme Court’s recent

decision in Concepcion v. United States, 142 S. Ct. 2389

(2022). That case involved section 404 of the First Step Act,

which authorizes district courts to reduce sentences for certain

offenses involving crack cocaine. The Supreme Court held that

the district courts, in deciding whether to do so, may consider

“intervening changes of law or fact.” Id. at 2404. The Court

reasoned that a court may “consider any relevant materials” for

sentencing, except as limited by statute or the Constitution. Id.

at 2400. As explained above, the compassionate-release statute

imposes just such a limit, in authorizing a reduced term of

imprisonment only for extraordinary and compelling reasons.

Moreover, Concepcion “mentioned the compassionate-release

statute only to support the proposition that Congress knows

how to limit which considerations may be used to reduce a

sentence”—an observation that “undermines rather than helps”

the position urged here by Jenkins. United States v. King, 40

F.4th 594, 596 (7th Cir. 2022) (holding that Thacker survives

Concepcion); see also United States v. Bledsoe, No. 22-2022,

2022 WL 3536493, at *2 (3d Cir. Aug. 18, 2022) (holding that

Andrews survives Concepcion).

B

We now turn to Winstead, under which Jenkins should not

have been classified as a career offender. As a “judicial

construction” of the career offender guideline, Winstead

establishes what that guideline meant “before as well as after”

19

the date it was decided. Rivers v. Roadway Exp., Inc., 511 U.S.

298, 312–13 (1994). Winstead thus establishes that the district

court miscalculated Jenkins’ guideline range. But given the

availability of direct appeal and collateral review under section

2255 of title 28, we conclude that legal errors at sentencing—

including those established by the retroactive application of

intervening judicial decisions—cannot support a grant of

compassionate release. And even if they otherwise could, the

habeas-channeling rule of Preiser v. Rodriguez, 411 U.S. 475

(1973), would bar their consideration outside the context of

direct appeals or collateral review under section 2255.

1

Legal errors at sentencing are neither extraordinary nor

compelling. When they occur, they may be corrected on direct

review, including through the retroactive application of

intervening judicial decisions. Griffith v. Kentucky, 479 U.S.

314 (1987). Sentencing errors may also sometimes be

corrected on collateral review under section 2255. But because

collateral review significantly undermines the government’s

important interest in finality, Congress and the Supreme Court

have established many procedural rules limiting the availability

of such relief, including for errors made clear by intervening

judicial decisions. They have also established many exceptions

to these limitations, reflecting a careful balance between the

government’s interest in finality and the defendant’s interest in

obtaining relief from an unlawful sentence. The relevant

doctrines include retroactivity limits and exceptions, Teague v.

Lane, 489 U.S. 288, 311–12 (1989) (plurality opinion);

procedural-default rules and exceptions, Wainwright v. Sykes,

433 U.S. 72, 87 (1977); a statute of limitations and exceptions,

28 U.S.C. § 2255(f); and a bar on successive or abusive

motions and exceptions, id. § 2255(h). Congress “does not

alter the fundamental details of a regulatory scheme in vague

20

terms.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468

(2001). We must therefore interpret the compassionate-release

statute in light of this reticulated scheme for collateral review,

rather than invoke compassionate release to end-run its limits.

Thus, even if procedural hurdles would now prevent Jenkins

from raising his sentencing argument in collateral proceedings,

we cannot treat such a bar on relief under section 2255 as

supporting a finding of extraordinary and compelling

circumstances. As the Seventh Circuit explained: “There’s

nothing ‘extraordinary’ about new statutes or caselaw … ;

these are the ordinary business of the legal system, and their

consequences should be addressed by direct appeal or collateral

review under 28 U.S.C. § 2255.” King, 40 F.4th at 595

(emphasis added).

Treating sentencing errors as cognizable would also bring

the compassionate-release statute into conflict with other

provisions of the Sentencing Reform Act. As explained above,

the SRA enacted section 3582(c)(1)(B) of Title 18, which

permits a district court to “modify an imposed term of

imprisonment to the extent otherwise expressly permitted …

by Rule 35 of the Federal Rules of Criminal Procedure.” At

the same time, the SRA substantially narrowed the district

courts’ ability to modify illegal sentences under Rule 35.

Before the SRA was enacted, Rule 35 allowed the district

courts to “correct an illegal sentence at any time.” Fed. R.

Crim. P. 35(a) (1984). But the SRA amended Rule 35 to permit

sentence modifications in only two narrow circumstances—

(a) on remand from a court of appeals, or (b) to reflect a

defendant’s substantial assistance to the government, upon a

government motion filed within one year of the sentence. Pub.

L. No. 98-473, § 215(b), 98 Stat. at 2015–16. Rule 35 is now

only slightly broader: It also allows district courts to correct “a

sentence that resulted from arithmetical, technical, or other

clear error” within 14 days of sentencing. Fed. R. Crim. P.

21

35(a) (2021). These post-SRA rules are far stricter than their

civil counterpart, which permits district courts to grant relief

from a judgment for a “mistake,” including a court’s error of

law, “within a reasonable time” of up to one year. Fed. R. Civ.

P. 60(b)(1), (c)(1); see Kemp v. United States, 142 S. Ct. 1856,

1861–62 (2022).

As this history indicates, Congress made a conscious

judgment, which Rule 35 still reflects, that a district court’s

authority to correct its own sentencing errors should be “very

narrow.” Fed. R. Crim. P. 35 advisory committee’s note to

1991 amendment. The Rule’s narrow terms do not “raise

doubts about the finality of determinate sentencing” that the

Sentencing Reform Act “attempted to resolve.” Id. But using

compassionate release to correct sentencing errors would blow

open these carefully crafted limits, violating the cardinal

principle that “specific statutory language should control more

general language when there is a conflict between the two.”

Nat’l Cable & Telecomms. Ass’n v. Gulf Power Co., 534 U.S.

327, 335 (2002).

As with intervening prospective statutes, it is no answer to

say that intervening judicial decisions may be considered only

as one factor among many, to be invoked only sparingly. For

one thing, because courts cannot pick needles from haystacks

ex ante, finality would be undermined whenever any judicial

decision, rendered any time after a sentence has become final

on direct review, at least arguably calls the sentence into

question. For another, judges would have widely divergent

views about when such decisions, considered only sometimes

and combined somehow with other factors, rise to the level of

an “extraordinary and compelling reason” for early release.

We doubt that the SRA—which effected a profound shift from

indeterminate to determinate sentencing—contained these

seeds of its own destruction. Finally, if an intervening judicial

22

decision by itself could never support compassionate release,

we fail to see how such a “legally impermissible” consideration

could do so when combined with other “insufficient factual

considerations.” Jarvis, 999 F.3d at 444.

Jenkins claims that Johnson recognized Winstead errors as

cognizable on compassionate release. It did not. As discussed

above, the district court in Johnson erred in “considering itself

bound” by section 1B1.13 in a case involving a defendant-filed

motion. 858 F. App’x at 383. We determined that this error

was not harmless because the defendant had raised a Winstead

claim which did not fall within the grounds for compassionate

release recognized by the Sentencing Commission. Id. at 384.

But we did not affirmatively hold that a Winstead error could

support compassionate release. Rather than decide that

question, we remanded for the district court to consider it in the

first instance. Id.

2

The habeas-channeling rule of Preiser independently

forecloses using compassionate release to correct sentencing

errors. The writ of habeas corpus—including section 2255, the

habeas substitute for federal prisoners—traditionally “has been

accepted as the specific instrument to obtain release from

[unlawful] confinement.” Preiser, 411 U.S. at 486. As a result,

an inmate may not rely on a generally worded statute to attack

the lawfulness of his imprisonment, even if the terms of the

statute literally apply. Id. at 489. This includes both direct

attacks seeking “an injunction compelling speedier release”

and indirect attacks seeking “a judicial determination that

necessarily implies the unlawfulness of the State’s custody.”

Wilkinson v. Dotson, 544 U.S. 74, 81 (2005).

Jenkins’ assertion of Winstead error amounts to just such

an attack on the lawfulness of his sentence. For a court to grant

23

compassionate release based on alleged Winstead error, it

would have to conclude that there in fact was Winstead error,

which would imply the invalidity of the sentence as originally

imposed. Because that is precisely what the habeas-channeling

rule forbids, we join the circuits holding that defendants cannot

seek compassionate release based on legal errors at sentencing,

including errors made clear through the retroactive application

of intervening precedent. King, 40 F.4th at 595–96 (7th Cir.);

Crandall, 25 F.4th at 586 (8th Cir.); Hunter, 12 F.4th at 567–

68 (6th Cir.); United States v. Mata-Soto, 861 F. App’x 251,

255 (10th Cir. 2021); United States v. Henderson, 858 F. App’x

466, 469 (3d Cir. 2021). Jenkins cites no circuit precedent to

the contrary, and we have not found any.

The arguments Jenkins does make are unpersuasive. First,

he claims that the government forfeited reliance on the habeas-

channeling rule by failing to raise it in its memorandum on

appeal. But as the appellee here, the government was not even

required to file a brief, see Fed. R. App. P. 31(c), much less to

take affirmative steps to preserve a ground for affirmance laid

out in the decision under review. In any event, the government

did argue that “appellant’s remedy” for his Winstead claim “is

to file a motion pursuant to 28 U.S.C. § 2255” rather than one

for compassionate release, and it collected cases from other

circuits holding as much. Appellee’s Mem. at 21–22.2

2

In his supplemental brief, Jenkins also argues that the

government failed to raise the habeas-channeling rule below. This

objection is itself forfeited: Although the government raised the

habeas-channeling rule in its memorandum on appeal, Jenkins did

not object in his reply memorandum that the government had

forfeited this point below. See Ass’n of Am. R.Rs. v. DOT, 821 F.3d

19, 25–26 (D.C. Cir. 2016); Reply Mem. at 10–11. In addition, the

district court rejected Jenkins’ Winstead argument on the ground that

24

Second, Jenkins asserts that the habeas-channeling rule

governs only suits under 42 U.S.C. § 1983 or at least civil suits

generally. But we have applied the rule outside of section 1983

actions. See, e.g., Skinner v. DOJ, 584 F.3d 1093, 1099 (D.C.

Cir. 2009) (Privacy Act). Likewise, the civil-criminal

distinction is irrelevant, for the habeas-channeling rule simply

reflects the elementary principle that specific statutes qualify

general ones. Preiser, 411 U.S. at 489. After a conviction has

become final on direct review, habeas corpus is “the specific

instrument” for challenging assertedly unlawful confinement.

Id. at 486 (emphasis added). And as explained above, it

contains a bevy of retroactivity, procedural default, statute of

limitations, and successiveness rules specifically designed to

balance the competing interests in finality and error correction.

Measured in terms of “relative specificity” to habeas, post at

11, the compassionate-release statute is not distinguishable

from section 1983.

The concurrence seeks to distinguish the compassionate-

release statute as one “expressly designed to give judges the

discretion to modify sentences.” Post at 13. But regardless of

whether the statute literally extends to claims of sentencing

error established by intervening precedents, such claims are

hardly at its core. Most obviously, the compassionate-release

statute covers factors like those enumerated by the Sentencing

Commission—health, age, and family circumstances—which

turn on post-sentencing changes to a prisoner’s individual

situation, not on legal errors at sentencing. Thus, applying the

habeas-channeling rule to the compassionate-release statute

still gives the latter a broad range of meaningful application,

“the compassionate release statute was not intended to serve as a

second chance to address a defendant’s sentence.” ECF Doc. 42, at

10. That assertion—which fairly includes the points we address

here—teed the issue up in this court, for Jenkins makes no argument

that the district court abused its discretion in reaching it.

25

just as applying the habeas-channeling rule to section 1983, a

statute expressly designed to provide redress for constitutional

violations, still gives that statute a broad range of meaningful

application.

Third, Jenkins reasons that because a grant of

compassionate release is discretionary, establishing legal error

at sentencing would not necessarily shorten his sentence. But

the habeas-channeling rule applies so long as “success in [the

inmate’s] action would necessarily demonstrate the invalidity

of confinement or its duration.” Wilkinson, 544 U.S. at 82; see

Edwards v. Balisok, 520 U.S. 641, 648 (1997). And for Jenkins

to prevail on his Winstead claim, the court would necessarily

have to conclude that his sentence was unlawfully imposed.

Otherwise, what could possibly be extraordinary and

compelling about an intervening judicial decision confirming

that a sentence was lawfully imposed, or simply not resolving

the question one way or the other? In sum, Jenkins highlights

that under his theory, establishing legal error at sentencing

would not be sufficient to warrant compassionate release. But

under Preiser, what matters is that establishing legal error at

sentencing would be necessary to granting compassionate

release based on an intervening judicial decision.

Fourth, Jenkins invokes Davis v. U.S. Sentencing

Commission, 716 F.3d 660 (D.C. Cir. 2013). That case

involved an equal-protection challenge to an amendment

retroactively lowering the guideline range for certain low-

volume drug offenses, but not for higher-volume offenses. Id.

at 661. We held the suit did not implicate the habeas-

channeling rule because “success on the merits” would not

“necessarily imply the invalidity of confinement or shorten its

duration.” Id. at 666 (cleaned up). That was so because the

promulgation of a guideline with retroactive effect does not

invalidate earlier sentences as originally imposed, but merely

26

allows the affected inmates “to seek discretionary sentence

reductions.” Id. at 662. In contrast, a sentence issued after a

guideline calculation error is unlawfully imposed and subject

to vacatur on appeal unless the error was harmless. See Gall,

552 U.S. at 51.

One final point: The concurrence observes that Winstead

may not satisfy the Teague requirements for retroactive

application on habeas. Post at 12–13. Based on that premise,

the concurrence treats Winstead as no different from an

intervening “legislative change.” Post at 12. In our view, this

account misunderstands how judicial decisions work. See, e.g.,

Rivers, 511 U.S. at 312 (judicial decisions establish what the

law meant from date of enactment); Crandall, 25 F.4th at 586

(intervening judicial decision “did not change the law; it was

an interpretation of existing law”). But if the concurrence were

correct on this point, that would simply make Jenkins’

argument based on Winstead “conceptually the same” as his

argument based on the stacking amendment. Post at 12. If so,

then both arguments would fail for reasons explained above.

C

Finally, we address the argument based on Borden, which

establishes that Jenkins could not have received a 15-year

mandatory minimum under ACCA for his felon-in-possession

offenses. According to Jenkins, the possibility of such a

sentence pressured him to accept a less favorable plea deal than

he otherwise would have, and that is an extraordinary and

compelling reason for compassionate release.

To the extent Jenkins claims that his guilty plea was

involuntary, he mounts a due process challenge to the

conviction itself, see McCarthy v. United States, 394 U.S. 459,

466 (1969), which is subject to the habeas-channeling rule.

The challenge is also foreclosed by Brady v. United States, 397

27

U.S. 742 (1970), which held that a guilty plea does not become

invalid simply because “later pronouncements of the courts …

hold that the maximum penalty for the crime in question was

less than was reasonably assumed at the time the plea was

entered.” Id. at 757.

To the extent Jenkins claims that his sentence, although

lawful, is harsher than it otherwise would have been, there is

nothing extraordinary about that. Of course, plea bargaining is

ubiquitous in the criminal justice system. See Missouri v. Frye,

566 U.S. 134, 144 (2012). And baked into the notion of plea

bargaining is that both parties forgo potentially meritorious

arguments to obtain a more certain, second-best result. The

defendant gives up his chance at acquittal, but he gains the

substantial likelihood of receiving a lower sentence than the

one he would have received had he been convicted at trial.

Brady, 397 U.S. at 751–52. The government forgoes pursuing

the maximum punishment available, but it gains the certainty

of a conviction and saves the time and expense of preparing for

trial. Id. at 752. In such a bargain, there is nothing unusual

about later decisions revealing which party would have

prevailed had the open issues been contested. See McMann v.

Richardson, 397 U.S. 759, 770 (1970).

Other considerations reinforce this analysis. For one

thing, to plead guilty, the defendant must affirmatively waive

any claim that the agreed-to sentence is legally or factually

inappropriate. See Fed. R. Crim P. 11(b). To grant early

release despite such a waiver, based on an intervening decision

suggesting that the defendant made a bad deal, would violate

the bedrock principle that even the “most basic rights of

criminal defendants” are waivable, Peretz v. United States, 501

U.S. 923, 936 (1991), and courts cannot grant relief based on

waived rights, United States v. Olano, 507 U.S. 725, 732–33

(1993). It would also deprive the government of the benefits

28

for which it bargained—a guaranteed minimum level of

punishment without the risks and expense of trial. And if the

government cannot reliably obtain the benefit of its bargain,

then it will have less incentive to enter plea bargains in the first

place, making both itself and criminal defendants worse off in

the long run. See Frye, 566 U.S. at 144; Mabry v. Johnson, 467

U.S. 504, 508 (1984); Brady, 397 U.S. at 752.

D

The structure and history of the compassionate-release

statute reinforce our conclusion that the post-sentencing legal

changes discussed above are irrelevant to the question whether

extraordinary and compelling circumstances warrant early

release.

Consider the statutory exhaustion requirement. It requires

a defendant first to ask BOP to file a compassionate-release

motion on his behalf. 18 U.S.C. § 3582(c)(1)(A). If the Bureau

denies the request, the defendant then must exhaust all

administrative appeal rights within BOP, unless the Bureau

fails to act timely. Id.

Exhaustion requirements allow the agency “to apply its

special expertise” and to “produce a useful record for

subsequent judicial consideration.” McCarthy v. Madigan, 503

U.S. 140, 145 (1992). We should expect, then, that the

extraordinary-and-compelling-reasons inquiry is one that the

BOP is well suited—or at least institutionally competent—to

make. The Bureau is charged with holding federal prisoners

and preparing them for release. 18 U.S.C. § 4042(a). That

makes it well suited to evaluate the kinds of circumstances the

Sentencing Commission has identified—an inmate’s age,

health, and family circumstances. But the BOP plays no role

in plea bargaining, calculating guideline ranges, or determining

the lawfulness of individual sentences. Within the Department

29

of Justice, that is the province of the United States Attorneys,

who represent the government at sentencing. 28 U.S.C.

§ 547(1); DOJ, Justice Manual § 9-27.730 (2018). If Jenkins’

asserted grounds for release were cognizable, the

compassionate-release statute would require the BOP to make

thousands of determinations every year in areas well beyond its

core mission and expertise.

Jenkins’ reading is also at odds with the concept of

compassionate release. When “pertaining to allowances, leave,

etc.,” “compassionate” means “[g]ranted out of compassion,

without legal or other obligation.” Compassionate, Oxford

English Dictionary (2d ed. 1989); see, e.g., Compassionate,

Webster’s Ninth New Collegiate Dictionary (1990) (“granted

because of unusual distressing circumstances affecting an

individual”); Thomas v. Farley, 31 F.3d 557, 558–59 (7th Cir.

1994) (inmate sought “compassionate leave” “to attend his

mother’s funeral”); Gwin v. Snow, 870 F.2d 616, 618 (11th Cir.

1989) (inmate sought “compassionate leave when his mother

died”); United States v. Lawson, 39 C.M.R. 726, 727–28

(1968) (soldier given “compassionate leave” because of

“problems at home”); cf. Compassionate Leave, Cambridge

Business English Dictionary (2011) (“paid time off work that

someone is allowed to have because a member of their family

has died, or because they have a serious personal problem”).

Statutes authorizing “compassionate release” thus

typically permit release only for age, health, family, and similar

personal circumstances. See, e.g., D.C. Code § 24-403.04(a)

(age, medical condition, family circumstances); Ill. Stat. Ch.

730 § 5/3-3-14(b) (medical condition); Mich. Comp. L.

§ 771.3h(1) (same); N.J. Stat. § 30:4-123.51e(f)(1) (same); see

also Compassionate Release, Black’s Law Dictionary (11th ed.

2019) (equating the term with “medical parole”). In contrast,

30

Jenkins seeks release based on changes in the legal landscape,

which are not ordinarily cognizable under such statutes.

Jenkins objects that section 3582(c)(1)(A) does not itself

use the name “compassionate release.” True enough, but the

phrase nonetheless has interpretive significance.

The government bodies charged with implementing

section 3582(c)(1)(A) consistently have described it as a

mechanism for “compassionate release.” The BOP’s first

regulations implementing the statute used that term. See

Control, Custody, Care, Treatment and Instruction of Inmates;

Compassionate Release, 59 Fed. Reg. 1238 (Jan. 7, 1994). So

do less formal BOP guidance documents. See Memorandum

of Kathleen M. Hawk, Director, BOP, to Executive Staff (July

22, 1994), reprinted in DOJ, Office of the Inspector General,

The Federal Bureau of Prisons’ Compassionate Release

Program, No. I-2013-006, at 67, 67 (2013) (BOP “has

historically taken a conservative approach to filing a motion

with the courts for the compassionate release of an inmate

under … § 3582(c)(1)(A)”). The Sentencing Commission and

the DOJ Office of the Inspector General also use the term

“compassionate release” to refer to section 3582(c)(1)(A).

Guidelines Manual: Supplement to Appendix C, supra, amend.

799, at 126; Office of the Inspector General, supra, at i n.3. So

do courts and litigants. See, e.g., United States v. Jackson, 26

F.4th 994, 996 (D.C. Cir. 2022); Long, 997 F.3d at 347. It is

hard to see how the name “compassionate release” could gain

such universal and unquestioned acceptance absent a shared

understanding that section 3582(c)(1)(A) concerns

compassionate grounds for release.

In the First Step Act, Congress itself used “Compassionate

Release” to refer to section 3582(c)(1)(A). Pub. L. No. 115-

391, § 603(b), 132 Stat. at 5239. Like a statutory title or section

31

heading, this name is “a short-hand reference to the general

subject matter involved,” and so may be relied upon to “shed

light” on it. Brotherhood of R.R. Trainmen v. Balt. & Ohio

R.R., 331 U.S. 519, 528–29 (1947); see A. Scalia & B. Garner,

Reading Law: The Interpretation of Legal Texts 221 (2012).

And because the First Step Act amends section 3582(c)(1)(A),

the two should be read in pari materia. See, e.g., United States

v. Stewart, 311 U.S. 60, 64 (1940); Scalia & Garner, supra, at

254–55.

Finally, Jenkins’ reading is inconsistent with Sentencing

Commission commentary, which is binding for BOP-filed

motions and at least persuasive here. As explained above, that

commentary flags considerations such as a defendant’s health,

age, and need to care for family members. U.S.S.G. § 1B1.13

cmt. n.1(A)–(C). The commentary also states that a “reason

other than, or in combination with, the reasons” specifically

identified may also qualify. Id. cmt. n.1(D). Under the canon

of ejusdem generis, this catchall provision “embrace[s] only

objects similar in nature to those objects enumerated by the

preceding specific words.” Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 114–15 (2001) (cleaned up). That would include

other kinds of sympathetic personal circumstances, but not

intervening changes in sentencing law.

V

In closing, Jenkins argues that the district court abused its

discretion by failing to consider in combination the various

grounds he had asserted. Jenkins is correct that factors may

sometimes become extraordinary and compelling when

considered together. See U.S.S.G. § 1B1.13 cmt. n.1(D). And

here the district court did not explicitly address the combined

weight of Jenkins’ arguments. Still, the court did not abuse its

discretion. It correctly determined that Jenkins’ arguments

32

about the intervening changes in sentencing law were legally

irrelevant to the compassionate-release determination. That

left only arguments about his own health and family

circumstances. The court reasonably found that these

circumstances were minimally significant, so it did not need to

say explicitly that their combined force did not rise to the level

of extraordinary and compelling circumstances.

VI

The district court properly denied Jenkins’ motion for

compassionate release.

Affirmed.

GINSBURG, Senior Circuit Judge, concurring in part,

dissenting in part, and concurring in the judgment: Although I

agree with the result in this case, I write separately because I

believe the Court errs in some of its analyses.

I. The Narrowed Stacking Provision

Had Jenkins been convicted and sentenced for both of his

charges under 18 U.S.C. § 924(c), he would have faced a

mandatory 30-year prison sentence under the then-applicable

“stacking” provision. 18 U.S.C. § 924(c)(1)(C)(i)(2012). The

First Step Act has since narrowed the stacking provision

prospectively, however, such that his two § 924(c) charges

would now lead to a mandatory 10-year sentence. See First

Step Act, § 403(a), 132 Stat. 5194, 5221–22 (codified at 18

U.S.C. § 924(c)(1)(C)). This discrepancy, Jenkins contends,

helps support a finding of “extraordinary and compelling

reasons” that warrant a reduction in his sentence under the

compassionate release statute, 18 U.S.C. § 3582(c)(1)(A)(i).

This argument implicates the question whether a non-

retroactive change to the law can ever be considered an

“extraordinary and compelling reason[],” a question that has

divided the courts of appeal. The Court today joins those courts

that have answered the question in the negative. The Court’s

arguments notwithstanding, I would not adopt a rule that

categorically precludes consideration of a non-retroactive

change in the law. I nevertheless agree that the narrowed

stacking provision does not establish “extraordinary and

compelling reasons” in the circumstances Jenkins presents.

A. Merits of the Court’s Reasoning

Central to my disagreement with the Court’s reasoning is

that the statute provides no basis for categorically precluding

consideration of a non-retroactive change to the law. The

statute does not define the term “extraordinary and

compelling,” and I see no reason to impose upon it a categorical

2

exclusion. The Congress well knows how to preclude

consideration of certain factors. That is exactly what it did

when it stated that “[r]ehabilitation of the defendant alone shall

not be considered an extraordinary and compelling reason.” 28

U.S.C. § 994(t). But that is the only limit the Congress placed

upon the term. “In light of [this] specific statutory exclusion,”

I am “reluctant to infer that Congress intended” categorically

to exclude the consideration of a non-retroactive change to the

law. United States v. Ruvalcaba, 26 F.4th 14, 26 (1st Cir. 2022)

(citation omitted).

The Court dismisses this straightforward, textualist point

by asserting that it is the ordinary practice to apply new, lower

penalties only prospectively, and “what the Supreme Court

views as the ‘ordinary practice’ cannot also be an

‘extraordinary reason’ to deviate from that practice.” Ct. Op.

at 15 (cleaned up). Likewise, the Court asserts that “common

practice” can never be a compelling reason. Id. The Court has

thus committed the Fallacy of Division — assuming what is

true of the whole must be true of each part. Just because the

general practice of applying new penalties only prospectively

is “ordinary” or “common” does not mean that a non-

retroactive change in the law can never so much as contribute

to a finding of “extraordinary and compelling reasons” even

after considering the idiosyncratic circumstances of a particular

defendant. A compassionate release motion requires a district

court to “assess interactions among a myriad of factors” as part

of an “individualized consideration of a defendant’s

circumstances,” and because judges are not soothsayers, they

cannot possibly “predict how this mix of factors — including

non-retroactive changes in sentencing law — will play out in

every case.” Ruvalcaba, 26 F.4th at 27.

Following the lead of some other circuits, the Court further

says that allowing a district court to consider a non-retroactive

3

change to the law “would usurp these quintessentially

legislative judgments” not to make laws retroactive. Ct. Op. at

16. That claim would be quite formidable had anyone argued

that a non-retroactive change in the law should always, or even

often, be considered an “extraordinary and compelling” reason

for a sentence reduction. But no one has made that argument.

The contrary approach simply contends that a district judge

should have the discretion to consider a non-retroactive change

to the law as part of an individualized assessment of a

defendant’s unique circumstances. This is particularly relevant

to a change that reflects a societal decision that the conduct for

which the prisoner was convicted incurs less moral opprobrium

than it previously had. Under that reasonable approach, cases

in which legislative change contribute to “a finding of

‘extraordinary and compelling reasons’ should be relatively

rare.” United States v. Maumau, 993 F.3d 821, 838 (10th Cir.

2021) (Tymkovich, J., concurring). “[A]llowing for the

provision of individual relief in the most grievous cases” does

not in any way usurp the legislative determination of the

Congress to eschew “automatic vacatur and resentencing of an

entire class of sentences” and the attendant logistical

nightmares. United States v. McCoy, 981 F.3d 271, 286–87

(4th Cir. 2020).

I am equally unmoved by the Court’s suggestion that my

reading of the statute is inconsistent with that of the Sentencing

Commission. Although I agree with the Court’s conclusion

that a district judge does not abuse his or her discretion by

looking to section 1B1.13 of the Sentencing Guidelines and its

commentary as “persuasive” authority, I think the Court

assigns the policy statement of the Guidelines more weight

than a fair reading of our decision in United States v. Long can

support. 997 F.3d 342 (2021). The Court asserts:

4

[T]he Act’s sole change was to create a new

procedural avenue for relief. It did not alter the

extraordinary-and-compelling-reasons standard,

so it did not undermine the Commission’s

interpretation of that standard.

Ct. Op. at 11–12. The Court contends that this proceduralist

reading of the First Step Act is consistent with our decision in

Long, as there “we did not consider[] the distinct question

whether courts may rely on” the Sentencing Commission’s

interpretation of the standard “as persuasive authority.” Ct. Op.

at 12.

To the contrary, Long did much to undermine the

Commission’s interpretation of the standard, at least as applied

to a motion filed by a prisoner. In Long we first explained that

the change the First Step Act made to the compassionate

release statute (allowing a prisoner to file a motion on his or

her own behalf) was spurred by the Congress’s displeasure

with the Bureau of Prisons’ sparing use of that statute, as

evidenced by the title of the relevant section of the Act:

“Increasing the Use and Transparency of Compassionate

Release.” 997 F.3d at 348. Later, in explaining why the policy

statement of the Sentencing Guidelines did not apply to a

motion filed by a prisoner, the court stated that “[a]ny change

by Congress to the substantive reach of the statutory sentencing

scheme may rightly be expected to result in a change to the

policy statements guiding those statutes’ implementation.” Id.

at 356. Thus, the Long court held that the policy statement was

of limited value for interpreting the scope of “extraordinary and

compelling reasons” as applied to a motion filed by a prisoner,

as opposed to one filed by the Bureau of Prisons, because the

Congress had evinced an intent to expand use of compassionate

release, and the Sentencing Commission could be expected to

update its Guidelines to bring them into alignment with the

5

Congress’s more permissive attitude. In other words, the

change to the statute was not a mere procedural change, as the

Court would have us believe; it was a “paradigm shift,” and

“[i]t would blink reality to assume that the Sentencing

Commission would think that the only modifications necessary

to the existing policy statement would be to disregard the

references to motions brought by the” Bureau of Prisons.

Ruvalcaba, 26 F.4th at 22.

The Supreme Court’s opinion in the recent case of

Concepcion v. United States buoys my conviction that the

statute should not be read as barring the district court from

considering a non-retroactive change in the law. 142 S. Ct.

2389 (2022). In Concepcion, the Supreme Court lauded the

“venerable tradition of discretion” in sentencing and sentence-

modification proceedings. Id. at 2401 n.4. Based upon that

tradition, the Supreme Court cautioned the lower courts against

reading exceptions into statutes dealing with the discretion of

judges to consider information during sentencing or sentence-

modification proceedings. “The only limitations on a court’s

discretion to consider any relevant materials . . . are those set

forth by Congress in a statute or by the Constitution.” Id. at

2400.

To be sure, unlike the Supreme Court in Concepcion, we

are not dealing here with an implied exception to a judge’s

discretion; the question, rather, is the scope of the phrase

“extraordinary and compelling reasons.” But the same

tradition that gave rise to Concepcion’s admonition against

creating non-explicit exceptions to a judge’s discretion

counsels against a parsimonious reading of the statute at hand.

The Court’s reasoning is profoundly inconsistent with the

Supreme Court’s teaching in Concepcion. The Congress has

created only two relevant limitations that control the district

courts’ reading of the standard: One for controlling Sentencing

6

Commission policy statements, and the other for

“[r]ehabilitation . . alone.” 28 U.S.C. § 994(t). Because the

“Congress has not legislated to create a third limitation on

extraordinary and compelling reasons prohibiting district

courts from considering non-retroactive changes in sentencing

law, we” should “decline to create one now.” United States v.

Chen, No. 20-50333, 2022 WL 4231313, at *6 (9th Cir. Sept.

14, 2022) (relying upon Concepcion, 142 S. Ct. at 2396).

B. Alternative Ground

Despite my disagreement with the Court’s reasoning, I

agree that Jenkins’s argument based upon the narrowing of the

stacking provision does not support a finding of “extraordinary

and compelling reasons” in this case. Because Jenkins pleaded

guilty and was sentenced for only one § 924(c) charge, he was

not sentenced under the stacking provision. Therefore, Jenkins

argues that the plea negotiations were tainted by the possibility

of being sentenced under the then-existing stacking provision,

which caused him to enter a harsher plea agreement than he

otherwise would have done. This is of a piece with the

argument Jenkins made based upon Borden v. United States,

regarding the 15-year mandatory minimum in the Armed

Career Criminal Act. 141 S. Ct. 1817 (2021). The Court’s

treatment of the Borden issue, in Part IV.C, is therefore

sufficient to decide the issue presented by the narrowing of the

stacking provision. Finding myself in agreement with the

Court’s treatment of the Borden issue, I also agree that the

narrowing of the stacking provision does not support a finding

of “extraordinary and compelling” circumstances in this case.

II. Winstead Argument

In United States v. Winstead, we held that an inchoate

offense does not qualify as a predicate offense for career

7

offender status under the Sentencing Guidelines. 890 F.3d,

1082, 1091 (2018). Had that standard been applied to Jenkins,

he would not have been considered a career offender. In a pre-

Winstead world, however, Jenkins and the Government both

assumed his inchoate offenses were predicate offenses and that

he therefore was a career offender. This assumption had a

tangible effect upon Jenkins’s sentence. As the district judge

acknowledged, Jenkins’s “exposure to a significantly higher

Guidelines range due to his then-undisputed status as a career

offender was apparently a significant factor behind . . . the

agreed sentence presented to the Court.” ECF Doc. 42, 9–10

(cleaned up).

Jenkins argues that having been sentenced under the

assumption he was a career offender helps support a finding of

“extraordinary and compelling reasons.” His argument

presents the question whether a change in the legal landscape

established by an intervening judicial decision can ever support

a finding of “extraordinary and compelling reasons.” The

Court answers no for two reasons, both of which I find wanting:

(1) This type of change is neither extraordinary nor compelling;

and (2) even if a claim based upon this type of change literally

fits the words of the statute, the “habeas-channeling” rule set

forth in Preiser v. Rodriguez, recognizes an implicit exception

for such claims. 411 U.S. 475, 489–90 (1973). Because I

disagree with these reasons, I would not announce a categorical

rule precluding the consideration of a Winstead argument, or

any similar argument based upon a judicial ruling, in assessing

whether there are “extraordinary and compelling reasons” that

warrant compassionate release. I nevertheless agree that under

the circumstances presented by Jenkins, his Winstead argument

does not help establish “extraordinary and compelling reasons”

for compassionate release.

8

My disagreement with the Court’s first reason, that a

change to the legal landscape established by judicial decision

is never an “extraordinary and compelling” reason largely

tracks my disagreement with the Court’s similar conclusion

regarding non-retroactive changes in the law. My comments

here are therefore confined to the Court’s second reason — that

the habeas-channeling rule precludes consideration of

Jenkins’s Winstead argument — and to explaining why I

nevertheless would reject Jenkins’s Winstead argument.

The Court’s second argument is wrong for two reasons: (1)

the Government forfeited this argument, and (2) even if it had

not, the habeas-channeling rule, properly understood, does not

apply to motions for compassionate release.

A. Forfeiture

“[T]he habeas channeling rule . . . can be forfeited if a

defendant fails to assert it.” Dufur v. United States Parole

Comm’n, 34 F.4th 1090, 1095 (D.C. Cir. 2022). There is no

doubt the Government failed to assert it before the district

court, so it is forfeit. The Court, however, says that

because the Government raised the argument before us in its

Memorandum of Law and Fact and Jenkins failed to argue

forfeiture in his Reply Memorandum of Law and Fact, he

forfeited the forfeiture.

The Court sees in the Government’s Memorandum of Law

and Fact far more than I can find there. The Court points to

pages 21–22 where, after having argued that Jenkins’s claims

do not establish “extraordinary and compelling reasons,” the

Government concluded: “Instead . . . appellant’s remedy is to

file a motion pursuant to 28 U.S.C. § 2255, challenging the

validity of his decision to plead guilty and resulting sentence.”

Fairly read, all that says is that because sentencing error, in the

9

view of the Government, is not an “extraordinary and

compelling” reason, Jenkins’s only recourse is a § 2255

proceeding. That is not the habeas-channeling argument,

which, as explained below in Part II.B, asserts that even if a

change in the law made by a judicial decision fits the terms of

the compassionate release statute, it is implicitly excluded

therefrom. Indeed, the Government’s memorandum makes no

mention of Preiser or any of the other seminal cases upon

which the habeas-channeling rule is based. Their conspicuous

absence makes perfectly clear what the Government did and

did not argue.

The several citations that follow the Government’s

statement of its position reinforces this point. One of those

cases, Ivy v. Pontesso, is completely irrelevant, as it deals with

the availability of relief for a federal prisoner under § 2241 as

opposed to § 2255. 328 F.3d 1057, 1059 (9th Cir. 2003). The

other cases make not a single mention of the habeas-channeling

rule or any of the cases that expound upon it. Rather, the cited

cases mention habeas relief to the same end as does the

Government, namely, to make the point that for legal claims

that are not “extraordinary and compelling” as a matter of law,

a prisoner’s only recourse is in a § 2255 proceeding.

The Court also asserts (in a footnote) that certain wording

in the district court’s opinion “fairly includes” the habeas-

channeling argument and thus “teed the issue up in this court.”

Ct. Op. at 23–24 n.2. All the district court said, however, was

that “the compassionate release statute was not intended to

serve as a second chance to address a defendant’s sentence.”

What follows that broad statement is a quotation from another

opinion rejecting the use a non-retroactive legislative change

to support a finding of “extraordinary and compelling reasons,”

an issue to which the habeas-channeling rule does not apply.

Indeed, throughout its opinion, the district court deals with

10

Winstead and legislative changes as presenting the very same

issue. Clearly, then, all the district court meant in the above-

cited passage was that neither a claim based upon Winstead nor

a claim based upon legislative change can ever fit into the

wording of the compassionate release statute. Nary a whiff of

the habeas-channeling argument is to be found in this passage

or anywhere else in the district court’s opinion.

“In our adversarial system of adjudication, we follow the

principle of party presentation.” United States v. Sineneng-

Smith, 140 S. Ct. 1575, 1579 (2020). While “[t]here are no

doubt circumstances in which a modest initiating role for a

court is appropriate,” by adding a wholly new argument to the

Government’s presentation on appeal, the Court exceeds its

modest role as an “essentially passive instrument[] of [the

parties].” Id.

In short, the Government forfeited any habeas-channeling

argument, and a fair reading of the Government’s

Memorandum of Law and Fact provides no basis for

concluding that Jenkins’ forfeited the Government’s forfeiture.

B. Merits of the Habeas-Channeling Argument

Worse yet, the habeas-channeling argument is also plain

wrong. In adopting it, the Court makes a grave mistake. The

habeas-channeling rule simply does not apply to claims such as

Jenkins’s under the compassionate release statute.

The habeas-channeling rule made its debut in Preiser v.

Rodriguez. There, the Supreme Court held that state prisoners

alleging the unconstitutional deprivation of their good-time

credits could seek redress only under the federal habeas corpus

statute applicable to state prisoners, 28 U.S.C. § 2254, and not

under the Civil Rights Act of 1871, 42 U.S.C. § 1983. 411 U.S.

11

at 489. “Despite the literal applicability of [§ 1983’s] terms”

to the prisoners’ claim, id., the Preiser Court found “an implicit

exception from § 1983’s otherwise broad scope for actions that

lie ‘within the core of habeas corpus.’” Wilkinson v. Dotson,

544 U.S. 74, 79 (2005) (quoting Preiser, 411 U.S. at 487).

Claims that involve “an attack by a person in custody upon the

legality of that custody” are therefore excluded from the scope

of § 1983. Preiser, 411 U.S. at 484.

This implied exception is rooted in the significant overlap

between the federal habeas statute and § 1983. While § 1983

creates a general cause of action for “the deprivation [under the

color of state law] of any rights, privileges, or immunities

secured by the Constitution and laws,” 42 U.S.C. § 1983, the

federal habeas statute deals with the similar but more specific

situation of a state prisoner who claims that “he is in custody

in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254. This overlap created a conflict: The

habeas statute requires the exhaustion of state remedies, but

§ 1983 does not, so authorizing overlapping § 1983 suits would

practically nullify the habeas statute’s exhaustion requirement.

Preiser, 411 U.S. at 489–90. Given this conflict and the

relative specificity of the habeas statute, the Supreme Court

held that when a state prisoner attacks the legality of his

confinement and “seeks a determination that he is entitled to

immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas

corpus.” Id. at 500.

To state the rule is to see why it does not apply to a

Winstead argument. A prisoner making that argument is not

claiming his sentence is “invalid” or “unlawful.” Rather, the

prisoner concedes, at least for the purpose of his motion for

compassionate release, that the sentence is currently valid and

lawful, but nevertheless appeals to the equitable discretion of

12

the judge for a sentence modification. See United States v.

Trenkler, 47 F.4th 42, 2022 WL 3711709, at *4 (1st Cir. 2022)

(“[H]abeas and compassionate release are distinct vehicles for

relief.”). Therefore, a motion for compassionate release, even

one based upon Winstead, does not go to the “core of habeas,”

which is to “claim[] the right to be released upon the ground

that the sentence was imposed in violation of the Constitution

or laws of the United States.” 28 U.S.C. § 2255(a).

The Court says this is wrong because, “[a]s a ‘judicial

construction’ of the career offender guideline, Winstead

establishes what that guideline meant ‘before as well as after’

the date it was decided.” Ct. Op. at 18 (quoting Rivers v.

Roadway Exp., Inc., 511 U.S. 298, 312 (1994)). But the

question whether a judicial construction has retroactive effect

is irrelevant to Jenkins’s argument. His argument does not rest

upon the contention that the sentencing judge committed a

legal error. Rather, in his motion for compassionate release, he

asks the judge, in the exercise of her discretion, to consider the

discrepancy between his sentence and a sentence he would

receive were he resentenced under current law. In this respect,

an argument based upon Winstead is no different from an

argument based upon a legislative change. See United States

v. Hunter, 12 F.4th. 555, 565 (6th Cir. 2021) (explaining that

changes based upon judicial decisions and legislative changes

are conceptually the same with respect to a motion for

compassionate release). In other words, even if, contrary to

Rivers, judicial opinions did not apply retrospectively, Jenkins

still would have made the same argument: That he would have

received a lower sentence had he been sentenced after the

Winstead decision, rather than before it, helps establish

grounds for a sentence reduction.

In any event, with respect to the habeas-channeling rule,

the only retroactivity that could matter is retroactivity with

13

respect to a habeas petition. This is not the place for an

extended treatment of whether Winstead applies retroactively

to a habeas petition. Suffice it to say that it is far from clear

that it satisfies the demanding requirements for retroactivity set

forth by Teague v. Lane, 489 U.S. 288 (1989). The Court does

not even attempt to show that it does, although the Court’s

reliance upon the retroactivity of judicial opinions is

meaningless without that showing.

Finally, as mentioned above, the habeas-channeling rule of

Preiser is based upon the “implicit [habeas] exception” to

§ 1983. Wilkinson, 544 U.S. at 79. The Court in effect argues

that the compassionate release statute includes a similar

implicit exception. The Supreme Court has never applied the

habeas-channeling rule to a non § 1983 case. This court has

done so, see Davis v. U.S. Sentencing Commission, 716 F.3d

660, 662–63 (2013); Skinner v. DOJ, 584 F.3d 1093, 1099

(2009), but not when dealing with a statute expressly designed

to give judges the discretion to modify sentences. Reading an

implicit habeas exception into “a statute whose very purpose is

to open up final judgments,” Concepcion, 142 S. Ct. at 2398

n.3, is a far cry from what the Supreme Court did in Preiser. It

also runs afoul of Concepcion’s clear admonition against

reading a limitation into a statute providing judges with

sentencing discretion. 142 S. Ct. at 2400.

C. Alternative Grounds

Despite my misgivings about the Court’s reasoning, I

agree that Jenkins’s Winstead argument does not support a

finding of “extraordinary and compelling reasons” in his

circumstances. Without career-offender status, the Guidelines’

range for the two offenses to which Jenkins pleaded guilty

would have been seven to seven-and-one-half years. Jenkins

was instead sentenced to eight years. Because the other reasons

14

he provided (his health and his need to care for his mother) are

legally insignificant and the discrepancy in his sentence is

modest, I do not believe Jenkins has presented “extraordinary

and compelling reasons” for early release. Although I believe

the district judge erred, and hence abused her discretion, by

concluding that she was not permitted even to consider

Jenkins’s Winstead argument, remanding the case to her would

be pointless, as she would inevitably reach the same conclusion

even if she applied what I believe to be the correct standard.

III. Conclusion

This case should never have come before us. Had the

Sentencing Commission not been left without a quorum for

years, it would by now have published a policy statement

providing guidance on the relevant questions. In a long

overdue development, the Senate recently confirmed seven

nominees to the Commission, allowing it to resume the

important work for which the Congress created it. I look

forward to the Commission soon clearing up the confusion

wrought by the protracted absence of a quorum.

As explained above, I respectfully dissent from much of

the Court’s reasoning and the broad implications that flow from

it, but I concur in the judgment of the Court because Jenkins’s

specific circumstances do not support a finding of

“extraordinary and compelling reasons” that warrant a

reduction of his sentence.