Amicus Curiae Brief — Joe Fernandez, Petitioner v. United States

No. 24-556

IN THE

Supreme Court of the United States

_______________________

JOE FERNANDEZ,

v.

UNITED STATES,

_______________________

Petitioner,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

_______________________

BRIEF OF FAMM, NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS, AND

NATIONAL ASSOCIATION OF FEDERAL

DEFENDERS AS AMICI CURIAE IN

SUPPORT OF PETITIONER

_______________________

Joshua L. Dratel

Co-chair, Amicus Comm.

NACDL

Jessica Stengel

Co-chair, Amicus Comm.

NAFD

Erica Zunkel

Director

U. OF CHICAGO LAW SCHOOL

CRIM. & JUV. JUSTICE CLINIC

[Additional counsel listed on

signature page]

Shelley Fite*

National Sentencing

Resource Counsel,

FEDERAL PUBLIC AND

COMMUNITY DEFENDERS

22 E. Mifflin St. Ste. 1000

Madison, WI 53703

(608) 234-0883

shelley_fite@fd.org

Shanna Rifkin

General Counsel

FAMM

*Counsel of Record

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... II

INTEREST OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT ................................. 3

ARGUMENT ............................................................ 7

I.

Pre-SRA, there were multiple discretionary

mechanisms for reducing a prison sentence,

all of which were entirely distinct from

habeas corpus. .................................................. 7

II.

Congress created § 3582(c)(1)(A) in 1984 as

the SRA’s successor to § 4205(g), with new

limitations related to Sentencing

Commission policy guidance.......................... 18

III. Historical context does not support reading

§ 3582(c)(1)(A) as containing categorical

limitations on what courts can factor into

sentence-reduction decisions. ........................ 23

A. There is no basis for reading a § 2255related limitation into § 3582(c)(1)(A),

or vice-versa. ............................................ 24

B. The government’s contrary argument

is contextually grounded in the early

2020s. ....................................................... 26

C. Section 3582(c)(1)(A), properly construed,

does not function like a backdoor

§ 2255. ...................................................... 29

CONCLUSION ....................................................... 31

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Andrews v. United States,

373 U.S. 334 (1963)........................................... 30

Bell v. Beeler,

No. 97-5662, 1998 WL 246379 (6th Cir.

May 6, 1998)...................................................... 22

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020)............................................. 4

Br. in Opp., Carter v. United States, No.

24-860 (U.S. May 5, 2025) .................................. 9

Castro v. United States,

540 U.S. 375 (2003)........................................... 30

Dep’t of Homeland Sec. v. Thuraissigiam,

591 U.S. 103 (2020)........................................... 16

Gaertner v. United States,

763 F.2d 787 (7th Cir. 1985) ............................ 19

Gee v. United States,

452 F.2d 849 (5th Cir. 1971) ............................ 13

Inglese v. U.S. Parole Comm’n,

768 F.2d 932 (7th Cir. 1985) .............................. 8

Jones v. Hendrix,

599 U.S. 465 (2023)................................16, 17, 25

iii

McGee v. United States,

462 F.2d 243 (2d Cir. 1972) .............................. 13

Miller v. United States,

224 F.2d 561 (5th Cir. 1955) ............................ 14

Oxman v. United States,

148 F.2d 750 (8th Cir. 1945) ............................ 10

Preiser v. Rodriguez,

411 U.S. 475 (1973)........................................... 17

Sanders v. United States,

373 U.S. 1 (1963)............................................... 17

In re Thomas,

91 F.4th 1240 (7th Cir. 2024) ......................25, 30

United States v. Addonizio,

442 U.S. 178 (1979)........................................... 16

United States v. Banks,

428 F. Supp. 1088 (E.D. Mich. 1977) ..........13, 15

United States v. Benz,

282 U.S. 304 (1931)......................................10, 16

United States v. Brooker,

976 F.3d 228 (2d Cir. 2020) ................................ 3

United States v. DeMier,

520 F. Supp. 1160 (W.D. Mo. 1981) ................. 14

United States v. Diaco,

457 F. Supp. 371 (D.N.J. 1978) ...................13, 15

iv

United States v. Ellenbogen,

390 F.2d 537 (2d. Cir. 1968) ............................. 11

United States v. Ferguson,

55 F.4th 262 (4th Cir. 2022) ............................. 30

United States v. Gee,

56 F.R.D. 377 (S.D. Tex. 1972) ......................... 13

United States v. Gunn,

980 F.3d 1178 (7th Cir. 2020)........................... 27

United States v. Jenkins,

50 F.4th 1185 (D.C. Cir. 2022) ......................... 19

United States v. King,

24 F.4th 1226 (9th Cir. 2022) ........................... 19

United States v. King,

40 F.4th 594 (7th Cir. 2022) ............................. 25

United States v. Manderville,

396 F. Supp. 1244 (D. Conn. 1975) .................. 14

United States v. McCall,

56 F.4th 1048 (6th Cir. 2022) ........................... 19

United States v. McRoy,

452 F. Supp. 598 (W.D. Mo. 1978) ................... 14

United States v. Noriega,

40 F. Supp. 2d 1378 (S.D. Fla. 1999) ............... 14

v

United States v. Paredes,

No. 94 CR 235-2, 1997 WL 136274

(N.D. Ill. Mar. 21, 1997) ..................................... 6

United States v. Rogge,

141 F.4th 902 (8th Cir. 2025) ........................... 19

United States v. Rubinson,

426 F. Supp. 266 (S.D.N.Y. 1976) .................... 14

United States v. Ruvalcaba,

26 F.4th 14 (1st Cir. 2022) ............................... 27

United States v. Shkambi,

993 F.3d 388 (5th Cir. 2021) ............................ 19

United States v. Sockel,

368 F. Supp. 97 (W.D. Mo. 1973) ..................... 14

United States v. Taylor,

768 F.2d 114 (6th Cir. 1985) ............................ 11

United States v. Wigoda,

417 F. Supp. 276 (N.D. Ill. 1976) ..................... 14

Constitutional Provisions

U.S. Const. art. II, § 2 .............................................. 9

Statutes

18 U.S.C. § 3006A .................................................... 2

18 U.S.C. § 3553(a)......................................19, 27, 31

18 U.S.C. § 3582(c)(1)(A).....................2–6, 10, 18–31

vi

18 U.S.C. § 4205(g) (1983) .......... 5, 10–15, 18–22, 25

28 U.S.C. ch. 153 .................................................... 25

28 U.S.C. § 991(b)(1)(C) ......................................... 27

28 U.S.C. § 994(a)(2) .........................................21, 27

28 U.S.C. § 994(t) .............................. 3, 19, 21, 22, 24

28 U.S.C. § 2255 .... 5, 6, 11, 14, 16, 17, 23–25, 29, 30

Regulations and Court Rules

28 C.F.R. Part 2 (§§2.1–2.61) (1983) ....................... 8

28 C.F.R. § 2.19(c) (1983) ......................................... 8

28 C.F.R. § 572.40 (1984) ..................................14, 15

59 Fed. Reg. 1238 (Jan. 7, 1994) (codified

at 28 C.F.R. § 571.60 (1994)) ............................ 21

Fed. R. Crim. P. 35(a) (1983) ................................. 11

Fed. R. Crim. P. 35(b) (1983) ...... 5, 10–15, 18, 22, 25

Fed. R. Crim. P. 35(b) (1988) ............................18, 20

Supreme Court Rule 37 ........................................... 1

Other Legislative Materials

Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104–132, 110

Stat. 1214 .......................................................... 25

vii

First Step Act of 2018, Pub. L. No. 115–

391, 132 Stat. 5194, § 603 .......................2, 25, 27

Parole Commission and Reorganization

Act of 1976, Pub. L. No. 94-233, 90

Stat. 219, § 2. ...............................................12, 13

Parole Legislation: Hearings Before the

Subcomm. on Nat’l Penitentiaries of the

S. Comm. on the Judiciary, 93rd Cong.

29 (1973) ............................................................ 12

Parole Reorganization Act: Hearings on

“H.R. 1598 and Identical Bills” Before

the H.R. Comm. on the Judiciary, 93rd

Cong. 258 (1973) ............................................... 12

Revision of the Federal Criminal Code:

Hearings Before the Subcomm. on

Crim. Just. of the H. Comm. on the Judiciary, 96th Cong. 1647 (1979) ......................... 9

S. Rep. No. 98-225 (1983), as reprinted in

1983 U.S.C.C.A.N. 3182 and available

at https://www.ojp.gov/pdffiles1/Digitization/93948NCJRS.pdf ..........................8, 18, 23

Sentencing Reform Act of 1984, Pub. L.

No. 98-473, 98 Stat. 1837, tit. II,

ch. II ............................. 2, 4–5, 7, 8, 18–20, 22, 23

viii

Other Authorities

Albert A. Alschuler, The Corruption of the

Pardon Power, 18 U. St. Thomas L. J. 1

(2022) ................................................................... 9

B. Carole Hoffman, Rule 35(b) of the Federal Rules of Criminal Procedure: Balancing the Interests Underlying

Sentence Reduction, 52 Fordham L.

Rev. 283 (1983) ................................................. 12

Peter B. Hoffman, History of the Federal

Parole System: Part 1 (1910–1972), 61

Fed. Prob. 23 (Sept. 1997) .................................. 7

Peter B. Hoffman, History of the Federal

Parole System: Part 2 (1973–1997), 61

Fed. Prob. 49, 51 (Dec. 1997) .......................... 7–8

Cecelia Klingele, Changing the Sentence

Without Hiding the Truth: Judicial

Sentence Modification as a Promising

Method of Early Release, 52 Wm. &

Mary L. Rev. 465 (2010) ................................... 10

Daniel T. Kobil, The Quality of Mercy

Strained: Wresting the Pardoning

Power from the King, 69 Tex. L. Rev.

569 (1991) .......................................................... 16

ix

Linda Drazga Maxfield & John H. Kramer, U.S. Sent’g Comm’n, Substantial

Assistance: An Empirical Yardstick

Gauging Equity in Current Federal

Policy and Practice 5 n.11 (1998),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/1998/199801_5K_Report.pdf. .................. 20

Project (Genego, Goldberger & Jackson),

Parole Release Decisionmaking and the

Sentencing Process, 84 Yale L.J. 810

(1975) ................................................................... 8

Michael S. Ross, Cooperation with Federal

Authorities: Operating on the Outer

Limits, 12 Crim. Just. 4 (Summer

1997) .................................................................. 20

Marjorie P. Russell, Too Little, Too Late,

Too Slow: Compassionate Release of

Terminally Ill Prisoners-Is the Cure

Worse Than the Disease?, 3 Widener J.

Pub. L. 799 (1994) ............................................. 21

Final Report of the Nat’l Comm’n on Reform of Fed. Crim. Laws, Proposed

New Fed. Crim. Code § 3201 & Comment (1971) ....................................................... 12

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (1st ed. 2012) ................................... 4

x

U.S. Dep’t of Just., Obama Administration

Clemency Initiative,

https://www.justice.gov/archives/pardo

n/obama-administration-clemencyinitiative (last updated Jan. 12, 2021) ............... 9

U.S. Dep’t of Just., Office of the Inspector

Gen’l, The Federal Bureau of Prisons’

Compassionate Release Program

(2013), https://www.oversight.gov/sites/default/files/documents/reports/2017-12/e1306.pdf ................28–29

U.S. Sent’g Comm’n, Compassionate

Release Data Report (2022),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/20221219-Compassionate-Release.pdf ........................................... 27

U.S. Sent’g Comm’n, Compassionate

Release Data Report (2025),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/FY24-Compassionate-Release.pdf.................................................. 28

U.S. Sent’g Guidelines Manual (U.S.

Sent’g Comm’n 2024) .................................... 3, 21

1

INTEREST OF AMICI CURIAE 1

FAMM (formerly Families Against Mandatory

Minimums) is a national, nonprofit, nonpartisan organization dedicated to promoting fair and proportionate sentencing policies and challenging inflexible and excessive penalties required by mandatory

sentencing laws. For thirty years, FAMM has

worked to restore discretion to judges to distinguish

among individually situated defendants according to

their role in the offense, the seriousness of the offense, their potential for rehabilitation, and other individual characteristics. FAMM’s vision is a nation

in which sentencing is individualized, humane, and

sufficient to impose just punishment, secure public

safety, and support successful rehabilitation. FAMM

accomplishes its purposes through education of the

general public, selected amicus filings in important

cases, congressional testimony, and advocacy.

The National Association of Criminal Defense

Lawyers (NACDL), founded in 1958, is a nonprofit

voluntary professional bar association that works on

behalf of criminal defense attorneys to ensure justice

and due process for those accused of crime or misconduct. It has a membership of many thousands of

direct members and approximately 40,000 affiliated

members. NACDL files numerous amicus briefs

each year, seeking to assist courts in cases that pre-

1 Pursuant to Supreme Court Rule 37, amici state that no

counsel for any party authored this brief in whole or in part,

and that no entity or person other than amici and their members made any monetary contribution toward the preparation

and submission of this brief.

2

sent issues of broad importance to criminal defendants, criminal defense lawyers, and the criminal justice system as a whole.

The National Association of Federal Defenders

(NAFD), formed in 1995, is a nationwide, volunteer

organization made up of attorneys who work for federal public defender offices and community defender

organizations authorized under the Criminal Justice

Act, 18 U.S.C. § 3006A. Each year, federal public

and community defenders represent tens of thousands of indigent criminal defendants in federal

court. Since the First Step Act of 2018 2 authorized

criminal defendants to file sentence-reduction motions under 18 U.S.C. § 3582(c)(1)(A), defenders

have litigated thousands of such motions.

This brief focuses on the historical context of the

Sentencing Reform Act of 1984. 3 FAMM, NACDL,

and NAFD, and their members are intimately familiar with that Act, which controls federal sentencing

and informs every strategic decision that comes before sentencing. In short, amici have particular expertise and interest in the subject matter of this litigation.

2 Pub. L. No. 115–391, 132 Stat. 5194, § 603.

3 Pub. L. No. 98-473, 98 Stat. 1837, tit. II, ch. II.

3

SUMMARY OF ARGUMENT

For its first 34 years, 18 U.S.C. § 3582(c)(1)(A)

was essentially dormant. Between 1984 and late

2018—from when Congress enacted that statute to

when it authorized defendants to file motions under

the statute—only the Bureau of Prisons (“BOP”)

could file § 3582(c)(1)(A) motions and it almost never

did. 4 The Sentencing Commission, for its part,

wholly acquiesced to the BOP: Although Congress in

1984 directed the Commission to promulgate a policy statement describing what should be considered

“extraordinary and compelling reasons” to reduce a

sentence, 28 U.S.C. § 994(t), for decades the Commission ignored this task. Eventually, it declared

that circumstances could be considered “extraordinary and compelling,” whenever the BOP said they

were extraordinary and compelling. 5

4 See United States v. Brooker, 976 F.3d 228, 231–32 (2d Cir.

2020) (describing the history of BOP’s inaction).

5 For over 20 years, despite the congressional directive, there

was no policy statement regarding § 3582(c)(1)(A). The Commission prioritized the matter in 2006 but ultimately promulgated a policy statement providing simply that if the BOP Director determined that there were “extraordinary and compelling reasons,” that would suffice. U.S. Sent’g Guidelines Manual app. C 153–54 (U.S. Sent’g Comm’n 2024) (amend. 683, eff.

Nov. 1, 2006). In subsequent years, the Commission more specifically identified circumstances in which the BOP’s own rules

might allow the filing of a motion (medical and family circumstances), along with anything else the BOP Director found “extraordinary and compelling.” See id. at app. C 186 (amend. 698,

eff. Nov. 1, 2007); id. at supp. to app. C 125–27 (amend. 799,

eff. Nov. 1, 2016).

4

After this 34-year period of inaction, one might

assume that § 3582(c)(1)(A) operates as the BOP has

chosen to apply it—like a narrow “compassionate release” provision focused on medical circumstances

(and that mostly does not get used even in dire medical circumstances). But § 3582(c)(1)(A) by its terms

has never been limited in this way; rather, it authorizes sentencing courts to reduce prison sentences

(not necessarily to release) for “extraordinary and

compelling reasons,” subject to Sentencing Commission guidance and after considering the purposes of

sentencing.

As this Court considers whether to interpret

§ 3582(c)(1)(A)’s reference to “extraordinary and

compelling reasons” as imposing categorical limits

not found in statutory text, it should resist notions

about § 3582(c)(1)(A) that come from post-enactment

BOP practice. That is, the Court should consider

§ 3582(c)(1)(A)’s text within the historical context in

which Congress adopted it. See Bostock v. Clayton

Cnty., 590 U.S. 644, 655 (2020) (explaining that to

discern the meaning of a statute’s terms, the Court

would need to “orient ourselves to the time of the

statute’s adoption”). 6

This brief describes that historical context and

explains why it matters. Congress enacted

§ 3582(c)(1)(A) as part of the Sentencing Reform Act

of 1984 (“SRA”). When Congress later, in 2018, authorized defendants to file § 3582(c)(1)(A) motions on

6 See also Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 78–80 (1st ed. 2012) (discussing the “fixed-meaning canon”).

5

their own behalf, it did not alter the provision’s substantive “extraordinary and compelling reasons”

standard. Thus, the context that’s relevant to this

standard relates to the original adoption of the SRA.

When the SRA was enacted, there had long been

multiple discretionary mechanisms for reducing a

lawful sentence—by the executive branch (clemency,

parole), and by the sentencing court (motions under

the old Fed. R. Crim. P. 35(b) and the former 18

U.S.C. § 4205(g)). And during that same pre-SRA period, a federal prisoner could separately claim a

right to be released from federal custody based on a

legal error under 28 U.S.C. § 2255. Mechanisms for

sentence reduction, on one hand, and for vacatur of

a sentence, on the other, were understood to be entirely distinct—even though, as a practical matter,

all these mechanisms could result in release from

imprisonment.

And just as no one in 1984 would have thought

that any of the pre-SRA discretionary mechanisms

for reducing lawful sentences interfered with § 2255,

neither would members of Congress have thought

that § 3582(c)(1)(A) would interfere with § 2255. So

there is no basis for thinking that Congress meant

to silently imbue the phrase “extraordinary and

compelling” with some sort of substantive limitation

to address such a concern. Further, just as

§ 3582(c)(1)(A) does not contain any limitation related to § 2255, neither does § 2255 contain any limitation relevant to § 3582(c)(1)(A).

The Department of Justice’s atextual claim that

§ 3582(c)(1)(A) contains categorical limitations arose

6

in the early 2020s, when defendants first began filing motions under § 3582(c)(1)(A) ’s capacious standard. At the time, there was no applicable policy

statement guiding application of that standard, the

Sentencing Commission lacked a quorum and thus

could not adopt a policy statement, and a global pandemic fueled a huge volume of motions. But concerns

arising out of that period cannot illuminate the

meaning of text that Congress enacted in 1984.

A motion under § 3582(c)(1)(A) can seek only discretionary sentence reduction; it can’t collaterally

attack a conviction or sentence. But within that

framework, a combination of “extraordinary and

compelling reasons” that may warrant a sentence reduction under § 3582(c)(1)(A) can include reasons

that could also be grounds for vacatur of a sentence

under § 2255 (unless a Sentencing Commission policy statement provides otherwise). 7 Or, to put it another way, if a sentencing judge considering a motion under § 3582(c)(1)(A) finds that there is a defect

in the underlying case, the judge need not pretend

otherwise in deciding, as a discretionary matter,

whether to reduce the defendant’s sentence.

7 Amici interpret the question presented as asking whether

a constellation of reasons warranting a § 3582(c)(1)(A) reduction can include reasons that properly could be alleged as

grounds for vacatur under § 2255—that is, legal defects in the

underlying case—since anything might be alleged (albeit incorrectly) as a basis for § 2255 relief. See, e.g., United States v.

Paredes, No. 94-CR-235-2, 1997 WL 136274 (N.D. Ill. Mar. 21,

1997) (denying a § 2255 motion that was based partly on “child

custody problems”).

7

ARGUMENT

I.

Pre-SRA, there were multiple discretionary mechanisms for reducing a prison sentence, all of which were entirely distinct

from habeas corpus.

In the decades preceding the Sentencing Reform

Act, there were multiple mechanisms for reducing a

federal prison term after it was imposed—without

vacating that sentence. Most of these came with procedural limitations but none had categorical prohibitions on what the discretionary decision-maker

could consider in deciding whether to reduce a particular sentence.

Parole. Most prominently, there was parole—a

system under which a parole board, or later the Parole Commission, conditionally discharged individuals from prison. 8 In typical cases, a person became

eligible for parole after serving one-third of the imposed sentence and became entitled to parole after

serving two-thirds of the sentence (in the absence of

a special finding), with the parole decision focused

on rehabilitation. 9 By the early 1980s, parole had be-

8 See Peter B. Hoffman, History of the Federal Parole System:

Part 1 (1910–1972), 61 Fed. Prob. 23, 23 (Sept. 1997). Amici

recognize that conditional discharge is not precisely the same

as sentence reduction. But as a discretionary mechanism by

which individuals could be released from federal prison before

the expiration of the imposed sentence, parole fits comfortably

within this brief’s subject matter.

9 See id. at 29–30; see also Peter B. Hoffman, History of the

Federal Parole System: Part 2 (1973–1997), 61 Fed. Prob. 49,

8

come highly systematized: once a person became eligible for parole, statutes and regulations governed

reports, hearings, and ultimately release. 10 But

while myriad procedural rules governed parole,

there was just one matter the Parole Commission

was barred from factoring into its decision-making

process, and it was not related to allegations of legal

defects in the underlying case: the Commission ordinarily could not consider “charges upon which a prisoner was found not guilty after trial.” 11

51 (Dec. 1997); see also S. Rep. No. 98-225 at 40 (1983), as reprinted in 1983 U.S.C.C.A.N. 3182, 3221–23 and available at

https://www.ojp.gov/pdffiles1/Digitization/93948NCJRS.pdf

(describing the parole system that the SRA would replace).

10 See 28 C.F.R. Part 2 (§§2.1–2.61) (1983). Before the mid1970s, federal parole had been entirely discretionary (and was

harshly criticized on that basis). See Project (Genego, Goldberger & Jackson), Parole Release Decisionmaking and the

Sentencing Process, 84 Yale L.J. 810, 815–16 (1975).

11 See 28 C.F.R. § 2.19(c) (1983) (“The Commission may take

into account any substantial information available . . . . However, the Commission shall not consider in any determination,

charges upon which a prisoner was found not guilty after trial

unless reliable information is presented that was not introduced into evidence at such trial (e.g., a subsequent admission

or other clear indication of guilt).”); see also, e.g., Inglese v. U.S.

Parole Comm’n, 768 F.2d 932, 936 (7th Cir. 1985) (explaining

that the Parole Commission enjoyed broad discretion in determining whether to grant or deny parole); Project, supra note 9,

at 837–39 (explaining that even under then-recently adopted

parole guidelines, there remained significant unstructured discretion). At a 1979 hearing addressing an early version of the

SRA, the Chair of the Parole Commission testified that if Congress abolished the Parole Commission, “it would be cumbersome to make adjustments for reduced social perceptions of

crimes that were once viewed more severely,” indicating that

9

Clemency. Like parole, commutation (i.e. clemency) was (and still is) sentence-reduction authority

enjoyed by the executive branch. Unlike parole,

clemency has never been routine or expected. But in

the past, presidential clemency was used much more

frequently than today, and in ordinary criminal

cases. Albert A. Alschuler, The Corruption of the

Pardon Power, 18 U. St. Thomas L. J. 1, 5 (2022)

(“Between 1860 and 1900, presidents granted 49

percent of all the applications for clemency they received, and as recently as 1961 to 1980, they granted

28 percent.”). There is no question that there have

never been substantive limitations on clemency-related decision-making. 12

the Parole Commission at the time did make such adjustments.

Revision of the Federal Criminal Code: Hearings Before the

Subcomm. on Crim. Just. of the H. Comm. on the Judiciary,

96th Cong. 1647, 1652 (1979) (statement of Cecil McCall,

Chairman, United States Parole Commission).

12 The president’s clemency authority is constitutionally derived, U.S. Const. art. II, § 2, and thus protected from legislative regulation. Incidentally, presidents’ stated reasons for

granting clemency (where any have been provided) have included precisely the sorts of considerations that the government has claimed are off-limits for judicial sentence reduction.

See, e.g., U.S. Dep’t of Just., Obama Administration Clemency

Initiative, https://www.justice.gov/archives/pardon/obama-administration-clemency-initiative (last updated Jan. 12, 2021)

(explaining that President Obama prioritized clemency applications by individuals serving federal prison sentences who “by

operation of law, likely would have received a substantially

lower sentence if convicted of the same offense(s) today”). Also

compare id. with Br. in Opp. at 14–15, Carter v. United States,

No. 24-860 (U.S. May 5, 2025) (arguing that “[w]hether consid-

10

Rule 35(b) and § 4205(g). Pre-SRA, there were

also two mechanisms by which sentencing courts

could reduce prison sentences as a matter of discretion, functioning as a sort of judicial clemency (subject to congressional regulation). See United States

v. Benz, 282 U.S. 304, 306, 311 (1931) (rejecting a

government argument that judicial sentence modification acted as “an invasion of [executive] power to

pardon offenses, including the power to commute”). 13 Pre-SRA, the sentencing court could reduce a total sentence upon motion of the defendant

under the former version of Fed. R. Crim. P. 35(b)

(1983). 14 It could also reduce the minimum prison

ered alone or in combination with other circumstances, the possibility that a previously sentenced defendant might receive a

lower sentence if he were sentenced today” cannot support a

sentence reduction under § 3582(c)(1)(A)).

13 As Benz illustrates, judicial sentence reduction has “deep

historical roots.” Cecelia Klingele, Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a

Promising Method of Early Release, 52 Wm. & Mary L. Rev.

465, 498 (2010). Courts were long recognized to have the inherent power to reduce sentences within the same “term of court”

as the imposition of sentence. See Benz, 282 U.S. at 306–07;

Oxman v. United States, 148 F.2d 750, 752–53 (8th Cir. 1945)

(“The general rule is that judgments, both civil and criminal,

are within the control of the court during the term at which

they are made. For that time they are deemed to be in the

breast of the court, subject to be amended, modified, or vacated.” (cleaned up)).

14 “The court may reduce a sentence within 120 days after

the sentence is imposed, or within 120 days after receipt by the

court of a mandate issued upon affirmance of the judgment or

dismissal of the appeal, or within 120 days after entry of any

order or judgment of the Supreme Court denying review of, or

having the effect of upholding, a judgment of conviction.” This

11

term (before parole eligibility) upon motion of the

BOP under 18 U.S.C. § 4205(g) (1982). 15

Pre-SRA, Rule 35(b) granted courts largely unfettered discretion to reduce sentences. 16 See United

States v. Ellenbogen, 390 F.2d 537, 543 (2d. Cir.

1968) (explaining that the rule “afford[ed] the judge

an opportunity to reconsider the sentence in the

light of any further information about the defendant

or the case”); see also Fed. R. Crim. P. 35, 1983 advisory committee’s notes (quoting Ellenbogen favorably). Rule 35(b), adopted with the original Federal

Rules of Criminal Procedure in 1946, modified sentencing courts’ inherent power to reduce a sentence

during the term of court in which the sentence was

version of the rule remains applicable to sentences still being

served for offenses committed before November 1, 1987.

15 “At any time upon motion of the Bureau of Prisons, the

court may reduce any minimum term to the time the defendant

has served. The court shall have jurisdiction to act upon the

application at any time and no hearing shall be required.” Section 4205(g) also remains operative for sentences imposed before November 1, 1987.

16 This brief generally uses “Rule 35(b)” to isolate the former

Rule 35’s authority for discretionary sentence reduction from

its distinct mechanism (under sub. (a)) for correcting an illegal

sentence, although the two provisions were not subdivided until 1979. Amici in this brief do not address the former Fed. R.

Crim. P. 35(a) (1983), which acted as a legal remedy (rather

than discretionary authority) similar to § 2255. Indeed, it overlapped significantly with § 2255. See United States v. Taylor,

768 F.2d 114, 119–20 (6th Cir. 1985) (“To the extent that the

statutory remedy overlaps that provided by the rule, there is

no difference between ‘an illegal sentence and a sentence imposed in an illegal manner’ under Rule 35(a), and a sentence

subject to correction for those reasons under § 2255.” (cleaned

up)).

12

imposed, tying the court’s authority to a specific period of time, rather than the “term of court.” B.

Carole Hoffman, Rule 35(b) of the Federal Rules of

Criminal Procedure: Balancing the Interests Underlying Sentence Reduction, 52 Fordham L. Rev. 283,

288–91 (1983); see also supra note 12. Rule 35(b)’s

primary limitation was timing: initially, courts could

reduce a sentence under the provision within 60

days of sentencing or the end of the direct appeal;

later, that time was doubled, to 120 days.

Section 4205(g) was created in 1976 to deal with

the “special situation” in which the BOP identifies

an individual “in some unusual circumstances who

deserves parole consideration but who has not yet

served the minimum time before he may be considered.” Parole Legislation: Hearings Before the Subcomm. on Nat’l Penitentiaries of the S. Comm. on the

Judiciary, 93rd Cong. 29 (1973) (preface to question

by Sen. Burdick); see also Parole Commission and

Reorganization Act of 1976, Pub. L. No. 94-233, 90

Stat. 219, § 2. The idea came out of the National

Commission on the Reform of the Federal Criminal

Laws, which recommended that sentencing courts

be able to “reduc[e] a minimum term improvidently

set.” Final Report of the Nat’l Comm’n on Reform of

Fed. Crim. Laws, Proposed New Fed. Crim. Code

§ 3201 & Comment (pp. 285–86) (1971). 17 A district

See also Parole Reorganization Act: Hearings on “H.R.

1598 and Identical Bills” Before the H.R. Comm. on the Judiciary, 93rd Cong. 258 (1973) (Att. D to Statement of Howard

Eglit, Counsel to the H.R. Subcommittee on Courts, Civil Liberties, and the Administration of Justice (Section-by-Section

17

13

court decision addressing an early § 4205(g) motion

quotes the BOP Director as explaining § 4205(g) as

follows: “Prior to the passage of the Parole Commission and Reorganization Act, applications for relief

in cases of this type had to be processed through the

Pardon Attorney to the President of the United

States. The new procedure offers the Justice Department a faster means of achieving the desired result.”

United States v. Banks, 428 F. Supp. 1088, 1089

(E.D. Mich. 1977); see also United States v. Diaco,

457 F. Supp. 371, 373 (D.N.J. 1978) (same point).

Section 4205(g)’s primary limitation was that the

BOP had to file the motion.

Although both pre-SRA mechanisms for judicial

sentence reduction (Rule 35(b) and § 4205(g)) had

procedural limitations, there were no substantive

limitations on what courts could factor into their decision-making. With the old Rule 35(b), while most

reductions were based on ordinary personal circumstances, district courts occasionally reduced sentences under Rule 35(b) to address circumstances

touching on legal matters, including, e.g., caselaw

developments, 18 prior misunderstanding about how

Analysis, H.R. 1590, Parole Reorganization Act of 1973)) (noting that the Nat’l Comm’n on Reform of the Fed. Crim. Laws

had recommended that the sentencing court “have the authority to reduce an imposed minimum term to time served upon

motion of the Bureau of Prisons”).

18 See, e.g., McGee v. United States, 462 F.2d 243, 245–47 (2d

Cir. 1972) (reversing the denial of a Rule 35(b) motion where

the district court had not explained why it chose not to reduce

the sentences on two counts although one count had previously

been vacated under new Supreme Court authority); United

14

sentences would be calculated, 19 and codefendant

disparities. 20

With § 4205(g), there were guidelines for when

the BOP could file a motion for sentence reduction:

in 1983, “in particularly meritorious or unusual circumstances which could not reasonably have been

foreseen by the court at the time of sentencing” or

States v. Gee, 56 F.R.D. 377 (S.D. Tex. 1972) (reducing the sentence under Rule 35(b) where the motion focused on relevant

new Supreme Court authority, after the Fifth Circuit in Gee v.

United States, 452 F.2d 849, 855 n.25 (5th Cir. 1971) had reversed the district court’s grant of relief under § 2255 but remanded for consideration of the Rule 35(b) motion).

19 See, e.g., Miller v. United States, 224 F.2d 561, 562 (5th

Cir. 1955) (explaining that a trial judge who had erroneously

believed he had imposed the minimum allowable sentence

could reduce the sentence under Rule 35); United States v.

DeMier, 520 F. Supp. 1160, 1167–69 (W.D. Mo. 1981) (reducing

the sentence under Rule 35(b) where the court was surprised

to learn that parole would not be granted); United States v.

Wigoda, 417 F. Supp. 276, 281–82 (N.D. Ill. 1976) (same);

United States v. Manderville, 396 F. Supp. 1244, 1249 (D.

Conn. 1975) (same); United States v. Sockel, 368 F. Supp. 97,

100 (W.D. Mo. 1973) (reducing the sentence where the BOP

had calculated the imposed sentence contrary to the court’s intent).

20 See, e.g., United States v. Noriega, 40 F. Supp. 2d 1378,

1380 (S.D. Fla. 1999) (reducing a sentence under the old Rule

35(b) based on conditions of confinement as well as “the considerable disparity between Defendant’s sentence and the sentences actually served by his co-conspirators”); United States v.

McRoy, 452 F. Supp. 598, 604 (W.D. Mo. 1978) (reducing a sentence under Rule 35(b) based on disparities with sentences related to the same conspiracy in a different district); United

States v. Rubinson, 426 F. Supp. 266, 266–67 (S.D.N.Y. 1976)

(reducing the sentence under Rule 35 where a more culpable

co-defendant’s sentence had been reduced on resentencing).

15

“to relieve prison overcrowding.” 28 C.F.R. § 572.40

(1984). 21 But nothing purported to limit judicial discretion in deciding the BOP’s motions. There is scant

evidence of how § 4205(g) was used on the ground—

which is unsurprising since nearly all such motions

would have been unopposed—but nothing suggests

that district courts were limited in the information

they could consider. 22 Indeed, one of the two decisions available related to a legal matter: Diaco, 457

F. Supp. at 376 (co-defendant disparities).

An earlier regulation, issued in 1980, did not include

“prison overcrowding.” 45 Fed. Reg. 23366 (Apr. 4, 1980) (codified at 28 C.F.R. § 572.40 (1980)).

21

22 There are only two decisions on BOP-filed § 4205(g) mo-

tions that amici found on Westlaw or LexisNexis: United States

v. Banks, 428 F. Supp. 1088 (E.D. Mich. 1977) (granting the

motion based on rehabilitation), and United States v. Diaco,

457 F. Supp. 371 (D.N.J. 1978) (granting the motion based on

co-defendant disparities). It makes sense that there aren’t

more: such motions would have been almost entirely unopposed, so they would have been granted by unpublished order.

Each of the two decisions that does exist appears to have been

published for idiosyncratic reasons: in Banks, the government

(the U.S. Attorney) opposed the BOP’s motion, so the court had

to determine whether the motion was properly before it, 428 F.

Supp. at 1089–90; and in Diaco, the court explained why it was

granting the § 4205(g) motion although it had denied the same

defendant’s Rule 35(b) motion earlier that year (in a published

opinion), see 457 F. Supp. at 374–76. Although amici do not

know how frequently § 4205(g) motions were filed (much less

granted) pre-SRA, given that the BOP director in Banks

pressed forward with a § 4205(g) motion although the U.S. Attorney’s Office actively opposed that motion, it seems likely

that at least that director (Norman Carlson, BOP Director

1970–1987) used his § 4205(g) authority robustly.

16

Lack of tension with § 2255. Every one of the

above mechanisms for sentence reduction was distinct from habeas corpus, the ancient writ for releasing a person from illegal custody, as codified at

§ 2255 or otherwise. 23 Habeas corpus fundamentally

is “a means of contesting the lawfulness of restraint

and securing release.” Dep’t of Homeland Sec. v.

Thuraissigiam, 591 U.S. 103, 117 (2020). It is said to

go back to the Magna Carta’s prohibition on “discretionary detention.” See id. at 141–42 (Thomas, J.,

concurring). This contrasts sharply with discretionary judicial sentence reduction, which is a means of

reducing a sentence without vacating it. Discretionary judicial sentence reduction can be likened to

clemency, which traces back to ancient royal pardons. See Daniel T. Kobil, The Quality of Mercy

Strained: Wresting the Pardoning Power from the

King, 69 Tex. L. Rev. 569, 583–84 (1991) (describing

clemency’s origins). And it arises out of sentencing

courts’ traditional authority over their own judgments. Benz, 282 U.S. at 311.

Amici do not know of any claim, by the government or anyone else, that the pre-SRA sentence reduction mechanisms somehow stood in tension with

habeas corpus or other legal remedies. The govern-

23 Section 2255 was enacted in 1948 as a habeas substitute

for federal prisoners attacking criminal judgments, allowing a

collateral attack to be filed in the underlying criminal case rather than as a separate civil action against the custodian. Jones

v. Hendrix, 599 U.S. 465, 473–74 (2023) (citing United States

v. Hayman, 342 U.S. 205 (1952)). Section 2255 covers the same

substantive claims as habeas corpus. Id.; see also United States

v. Addonizio, 442 U.S. 178, 185 (1979).

17

ment claimed in Benz—unsuccessfully—that judicial sentence reduction usurped the president’s

clemency power. But no one claimed that any mechanism for discretionary sentence reduction somehow

impinged on § 2255’s mechanism for collaterally attacking federal judgments.

It is not as if courts back then did not police the

boundaries of habeas corpus. See, e.g., Preiser v. Rodriguez, 411 U.S. 475 (1973) (prohibiting the use of

42 U.S.C. § 1983 to claim a right to release from illegal custody); Sanders v. United States, 373 U.S. 1

(1963) (discussing the judicially created “abuse of

the writ” limitation on § 2255 relief). And for its part,

§ 2255 has always contained an exclusivity provision

prohibiting anyone who comes within its scope from

filing a habeas corpus petition under most circumstances. See Jones, 599 U.S. at 474–76. But § 2255

has never prohibited persons who come within its

terms—who are “claiming the right to be released

upon” legal grounds—from also seeking discretionary sentence reduction for any reason. And it certainly has never said anything about persons who

aren’t claiming any right to release. This makes

sense: discretionary sentence reduction is too different from vacatur of a sentence as a matter of right

to have merited such an exclusion.

18

II. Congress created § 3582(c)(1)(A) in 1984 as

the SRA’s successor to § 4205(g), with new

limitations related to Sentencing Commission policy guidance.

With the Sentencing Reform Act of 1984, Congress fundamentally reimagined federal sentencing.

It abolished parole and created the U.S. Sentencing

Commission to formulate sentencing ranges for federal criminal offenses and to set sentencing policies

and procedures.

Although the SRA abolished parole, it included

mechanisms for judicial sentence reduction. After

all, the Senate Judiciary Committee explained, the

bill sought to “keep[] the sentencing power in the judiciary where it belongs, yet permit[] later review of

sentences in particularly compelling circumstances.”

S. Rep. No. 98-225, supra note 8, at 121. 24 Congress

replaced the old mechanisms with new ones requiring that any reduction comport with nationwide policies set by the Department of Justice (“DOJ”) and/or

the Sentencing Commission:

•

Congress prospectively repealed the old Rule

35(b), so judges would no longer have discretion to reduce sentences upon a defendant’s

motion. The new Rule 35(b) (1988) would permit sentence reduction only where the defendant provides “substantial assistance” to law

24 See also Mary Price, The Other Safety Valve: Sentence Re-

duction Motions under 18 U.S.C. § 3582(c)(1)(A), 13 Fed. Sent.

R. 188, 188 (2001) (“Congress was not seeking to establish a

mechanical system devoid of human judgment, but a system in

which the exercise of discretion was guided and controlled.”).

19

enforcement, and only upon motion by the

government. See Gaertner v. United States,

763 F.2d 787, 789 n.2 (7th Cir. 1985) (comparing the old and new rules).

•

Congress

also

prospectively

repealed

§ 4205(g) and created § 3582(c)(1)(A)—the

provision at issue here—to replace it. 25 As

with § 4205(g), a court could reduce a sentence under § 3582(c)(1)(A) only upon motion

of the BOP. But § 3582(c)(1)(A) also came with

substantive limitations on courts’ discretion:

a case would have to present “extraordinary

and compelling reasons,” as that phrase

would be described by the Sentencing Commission, and any reduction would need to

comply with the newly enumerated purposes

of sentencing at 18 U.S.C. § 3553(a). See

§ 3582(c)(1)(A); see also 28 U.S.C. § 994(t) (requiring the Commission to “describe what

should be considered extraordinary and compelling reasons for sentence reduction,” which

reasons could not include “rehabilitation . . .

alone”).

25 United States v. King, 24 F.4th 1226, 1229 (9th Cir. 2022)

(“The SRA repealed § 4205(g) in 1984 and replaced it with

§ 3582(c)(1), effective on November 1, 1987.”); see also United

States v. Rogge, 141 F.4th 902, 904 (8th Cir. 2025) (same);

United States v. Jenkins, 50 F.4th 1185, 1192 (D.C. Cir. 2022)

(same); United States v. McCall, 56 F.4th 1048, 1059 (6th Cir.

2022) (same); United States v. Shkambi, 993 F.3d 388, 390 (5th

Cir. 2021) (same).

20

•

In addition to these replacements for pre-SRA

mechanisms, the SRA created a third mechanism for judicial sentence reduction, where an

individual’s sentence was “based on a sentencing range that has subsequently been

lowered by the Sentencing Commission”:

§ 3582(c)(2).

Section

3582(c)(2),

like

§ 3582(c)(1)(A), requires that any reduction be

“consistent with applicable policy statements

issued by the Sentencing Commission.”

Homing in on § 3582(c)(1)(A), that provision was

initially ignored, and then applied very sparingly,

but nothing altered the fact that Congress enacted

§ 3582(c)(1)(A) with a broad standard that gave the

Sentencing Commission significant discretion to set

sentence-reduction policies and gave courts significant discretion to reduce sentences consistent with

those policies. For a decade after the SRA was enacted, there was no action on § 3582(c)(1)(A). 26 It

26 The SRA’s other provisions for sentence reduction, in contrast, were put to use right away. Regarding substantial assistance under the new Rule 35(b), see, e.g., Michael S. Ross, Cooperation with Federal Authorities: Operating on the Outer

Limits, 12 Crim. Just. 4, 4 (Summer 1997) (“What’s commonly

referred to as ‘cooperation with the government’ has for the last

decade been one of the most important driving forces in the

everyday lives of lawyers who practice federal criminal law.”);

Linda Drazga Maxfield & John H. Kramer, U.S. Sent’g

Comm’n, Substantial Assistance: An Empirical Yardstick

Gauging Equity in Current Federal Policy and Practice 5 n.11

(1998) (explaining that although the Commission did not collect data on Rule 35 reductions it “estimate[d] that approximately 500 Rule 35(b) reductions occur each fiscal year”),

21

wasn’t until 1994 that the DOJ issued a regulation

covering its own participation, through the BOP, in

motions under that provision. 59 Fed. Reg. 1238

(Jan. 7, 1994) (codified at 28 C.F.R. § 571.60 (1994)).

The Sentencing Commission did not issue a policy

statement regarding § 3582(c)(1)(A) for yet another

decade, despite the statutory commands of 28 U.S.C.

§ 994(a)(2)(C) & 994(t). And when it did, as discussed

above, the Commission largely abdicated its policymaking role to the BOP. See supra note 4.

Notably, the DOJ’s 1994 regulation labeled

§ 3582(c)(1)(A) “Compassionate Release,” see 28

C.F.R. § 571.60 (1994), a term that was coming into

use in the early 1990s as shorthand for the release

of prisoners with serious medical conditions, 27 although the regulation did not actually exclude the

possibility of motions for non-medical reasons. Indeed, the 1994 regulation also used “Compassionate

Release” to redefine § 4205(g), although the previous

regulation had permitted the BOP to file § 4205(g)

motions to address “prison overcrowding” and for

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/1998/199801_5K_Report.pdf.

As for § 3582(c)(1)(A), the Sentencing Commission adopted a

policy statement regarding such reductions in 1989, and it immediately permitted defendants to use that policy statement to

seek sentence reductions based on ameliorative guideline

amendments. U.S. Sent’g Guidelines Manual app. C 151 (U.S.

Sent’g Comm’n 2024) (amend. 306, eff. Nov. 1, 1989).

27 See Marjorie P. Russell, Too Little, Too Late, Too Slow:

Compassionate Release of Terminally Ill Prisoners-Is the Cure

Worse Than the Disease?, 3 Widener J. Pub. L. 799, 801 n.10

(1994) (“For the purposes of this Article, the term ‘compassionate release’ will be used to identify all forms of release available

to terminally ill prisoners.”).

22

other reasons. See supra note 20 and surrounding

text. Prior to 1994, courts do not appear to have referred to §§ 3582(c)(1)(A) or 4205(g) as “compassionate release.” 28 Today, that phrase is ubiquitous.

Nothing in the text or history of § 3582(c)(1)(A),

however, suggests that that provision covers only serious medical conditions and the like. And post-enactment evidence regarding how the BOP chose to

apply that statute can have no impact on the underlying statutory standard. Section 3582(c)(1)(A) refers, broadly, to any “extraordinary and compelling

reasons” that might, in an individual case, warrant

a sentence reduction. In Setser v. United States, this

Court found that this text was broad enough to cover

a situation where the sentencing court did not anticipate a post-sentencing legal development (the Supreme Court’s interpretation of sentence-computation rules), resulting in a sentence that was longer

than intended. 566 U.S. 231, 242–43 (2012). 29 In directing the Sentencing Commission to flesh out

§ 3582(c)(1)(A)’s standard, Congress limited the

Commission in just one way: “rehabilitation . . .

alone” could not be deemed “extraordinary and compelling.” § 994(t). 30 And the Senate Judiciary Committee Report on the SRA referred to § 3582(c)’s judicial-sentence-reduction mechanisms as “safety

28 The oldest federal case that amici could find using that

term to refer to a motion the BOP would file is Bell v. Beeler,

No. 97-5662, 1998 WL 246379 (6th Cir. May 6, 1998).

29 Pre-SRA, courts used the former Rule 35(b) for this pur-

pose. See supra note 18.

30 That is, the Commission could not authorize courts to use

§ 3582(c)(1)(A) like parole.

23

valves” for the federal government’s new determinate sentencing scheme. S. Rep. No. 98-225, supra

note

8,

at

121.

Specifically

discussing

§ 3582(c)(1)(A), it explained that “there may be unusual cases in which an eventual reduction in the

length of a term of imprisonment is justified by

changed circumstances. These would include cases

of severe illness, [or] cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence[.]” Id. at 55.

III. Historical context does not support reading § 3582(c)(1)(A) as containing categorical limitations on what courts can factor

into sentence-reduction decisions.

Neither the text nor the historical context of the

SRA’s discretionary sentence modification provision

supports the government’s present effort to read categorical limitations into § 3582(c)(1)(A). Likewise,

nothing in or related to § 2255 supports any such

limitation. The government’s claim that “extraordinary and compelling” excludes any matter touching

on a legal error arose during a unique period in the

early 2020s when briefly the only limitation on

§ 3582(c)(1)(A) were the words “extraordinary and

compelling,” but there has never been a conflict between § 3582(c) and § 2255, as each is properly understood. That is not to say that a court can use

§ 3582(c)(1)(A) like a substitute § 2255. But if a court

considering a motion under § 3582(c)(1)(A) finds a

defect in the underlying case, the court can consider

that defect in deciding, as a matter of discretion,

whether to reduce the sentence.

24

A. There is no basis for reading a § 2255related limitation into § 3582(c)(1)(A),

or vice-versa.

The text of § 3582(c)(1)(A) does not prohibit

courts from factoring any particular consideration

into a decision to reduce a sentence, including considerations with some relationship to § 2255 motions. The Sentencing Commission can exclude considerations via policy statement; indeed, it is required to exclude rehabilitation alone as a basis for

sentence reduction. See § 3582(c)(1)(A) (requiring

that any reduction be “consistent” with applicable

policy statements); § 994(t) (directing the Commission to describe what should be considered “extraordinary and compelling,” which cannot include “rehabilitation . . . alone”). But § 3582(c)(1)(A)’s statutory

standard on its own—requiring that reductions be

for “extraordinary and compelling reasons”—calls

for a case-by-case inquiry, not a categorical one. It is

a flexible, value-laden standard that gives the Commission significant latitude in setting nationwide

sentence-reduction-related policy and grants courts

discretion in deciding § 3582(c)(1)(A) motions.

Neither does § 2255 or any related statute prohibit courts considering § 3582(c)(1)(A) motions from

factoring legal defects into their analysis. To put it

simply, § 2255 is the “remedial vehicle” Congress

“specifically designed for federal prisoners’ collateral

attacks on their sentences.” Jones, 599 U.S. at 473.

And a motion “under § 3582(c)(1) or (c)(2) does not

attack the sentence at all. It accepts the legal validity of the sentence imposed but asks for modification

to account for changed circumstances.” In re

Thomas, 91 F.4th 1240, 1242 (7th Cir. 2024). Alt-

25

hough the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 31 looms large over many

§ 2255-related discussions, it is irrelevant here.

AEDPA imposed strict limits on habeas filings that

attack judgments but did not touch on § 3582(c),

where Congress enumerated circumstances under

which courts may reduce prison sentences without

vacating judgments. See 28 U.S.C. ch. 153.

There is also no contextual basis for thinking

that Congress silently imbued § 3582(c)(1)(A) with

this sort of limitation. As discussed above, no one in

the 1970s and ’80s would have been concerned that

discretionary sentence reduction—via parole, clemency, or judicial order under the former Rule 35(b)

or § 4205(g)—somehow encroached on § 2255’s remedy for unlawful confinement. Just the same, Congress in 1984 would not have worried that

§ 4205(g)’s replacement, § 3582(c)(1)(A), would encroach on the § 2255 remedy. In 2018, Congress authorized defendants to file § 3582(c)(1)(A) motions on

their own behalf, but it did not alter the statute’s

“extraordinary and compelling” standard. See

United States v. King, 40 F.4th 594, 596 (7th Cir.

2022) (“The First Step Act did not create or modify

the ‘extraordinary and compelling reasons’ threshold for eligibility; it just added prisoners to the list of

persons who may file motions.”). So § 3582(c)(1)(A)’s

standard remains flexible; it still gives the Commission latitude to set sentence-reduction-related policy

and affords courts discretion in deciding motions on

a case-by-case basis.

31 Pub. L. No. 104–132, 110 Stat. 1214

26

B. The government’s contrary argument

is contextually grounded in the early

2020s.

The government is arguing in this case—and has

argued in many other cases over the last five-plus

years—that § 3582(c)(1)(A)’s reference to “extraordinary and compelling reasons” is quite limited, and

not just by applicable Sentencing Commission policy

statements. The government has attempted to tie its

arguments to dictionary definitions of “extraordinary” and “compelling,” but it does this by reframing

defendants’ claims and defining “extraordinary and

compelling” at a high level of generality. In this case,

for example, the government has argued that there

is “nothing ‘extraordinary’ about a challenge to the

trial or sentencing proceedings, because such challenges are the ordinary business of the legal system.” Br. in Opp. at 12 (cleaned up). No one would

dispute that proposition. But it says nothing about

whether a judge who determines that there is a serious defect in a particular case might fairly deem it,

in the context of the entire case, “extraordinary. 32

The government’s arguments are grounded not in

text but in context—the context of the early 2020s,

not the early 1980s. The government began arguing

that § 3582(c)(1)(A)’s “extraordinary and compelling” standard contains atextual limitations in the

early 2020s, when for a brief period all limitations

on § 3582(c)(1)(A) motions had fallen away—except

32 Amici would not claim that any legal defect is necessarily

extraordinary, much less that it would necessarily be an “extraordinary and compelling reason[]” to reduce a sentence. See

§ 3582(c)(1)(A) (providing only that the court “may reduce” the

term of imprisonment if various criteria are met).

27

for the “extraordinary and compelling” standard. 33

The BOP was no longer gatekeeping: Congress in

late 2018 had authorized defendants to file motions

under § 3582(c)(1)(A) on their own behalf. See United

States v. Gunn, 980 F.3d 1178, 1179 (7th Cir. 2020)

(discussing this change, which came from the First

Step Act of 2018). The Sentencing Commission’s policy statement on § 3582(c)(1)(A) at that time referred

only to motions filed by the BOP, so nearly every circuit court held that there was no “applicable policy

statement” with which decisions on defendant-filed

§ 3582(c)(1)(A) motions had to be “consistent.” See

United States v. Ruvalcaba, 26 F.4th 14, 20–21 (1st

Cir. 2022) (collecting cases). And the Commission

then lacked a quorum, so it was incapable of fixing

this problem. Gunn, 980 F.3d at 1179–80. 34 Then, in

early 2020, a pandemic struck. Section 3582(c)(1)(A)

motions exploded. 35

33 There are also the purposes of sentencing under § 3553(a),

but those generally have not courted controversy.

34 The Sentencing Commission is now up and running, and

in 2023 it issued a policy statement that applies to defendantfiled motions. See U.S. Sent’g Guidelines Manual, supra note

4, at § 1B1.13. Over time, as policy priorities evolve, the Commission will doubtless amend that policy statement, consistent

with its duties to “reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process,” 28 U.S.C. § 991(b)(1)(C), and to “further

the purposes of sentencing set forth in [§ 3553(a)],” § 994(a)(2).

35 See U.S. Sent’g Comm’n, Compassionate Release Data Re-

https://www.ussc.gov/sites/deport

Figure

1

(2022),

fault/files/pdf/research-and-publications/federal-sentencingstatistics/compassionate-release/20221219-CompassionateRelease.pdf. Since this period, motions under § 3582(c)(1)(A)

have declined dramatically. See id.; see also U.S. Sent’g Comm.,

28

It was during this unprecedented period—when

petitioner filed his motion—that the government began arguing that the broad terms “extraordinary”

and “compelling” were actually quite narrow, with

various circumstances categorically barred from

consideration. This argument was doubtless appealing to some: § 3582(c)(1)(A)—which by then nearly

everyone short-handed as “compassionate release”—

had been around for roughly 35 years, but the BOP

had only very, very rarely filed motions under it.

Some circuit courts accepted the government’s arguments and began reading atextual limitations into

“extraordinary and compelling,” including the limitation at issue here (regarding circumstances relating to a legal defect in the underlying case). See, e.g.,

Pet. App. 1a-25a.

This Court should reject the notion that

§ 3582(c)(1)(A) is constrained by atextual, categorical restrictions on what judges may consider in determining whether “extraordinary and compelling

reasons” warrant a sentence reduction. The fact that

the BOP as a matter of policy (or really, just practice)

for many decades chose to file sentence-reduction

motions incredibly rarely, and related only to medical circumstances, is irrelevant. 36 Properly construed, and subject to Sentencing Commission policy

Compassionate Release Data Report Figure 1 (2025),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/FY24-Compassionate-Release.pdf.

36 See U.S. Dep’t of Just., Office of the Inspector Gen’l, The

Federal Bureau of Prisons’ Compassionate Release Program

app. VII (p. 79) (2013) (recommending that the BOP consider

29

statements, § 3582(c)(1)(A) can apply in more kinds

of cases than the government would like. But this is

simply the result of two congressional decisions: its

1984 decision to create a flexible standard for

§ 3582(c)(1)(A), and its 2018 decision to permit defendants to file § 3582(c)(1)(A) motions (without altering the 1984 substantive standard).

C. Section 3582(c)(1)(A), properly construed, does not function like a backdoor § 2255.

That § 3582(c)(1)(A) does not categorically prohibit a sentencing judge from considering something

that might also be properly alleged in a motion under § 2255 when deciding, as a discretionary matter,

whether to reduce a sentence does not mean that

§ 3582(c)(1)(A) can serve as a backdoor § 2255 remedy. It cannot.

Where a federal prisoner is “claiming the right to

be released” based on a constitutional, jurisdictional,

or other cognizable legal error, regardless of the label on that claim, it comes within § 2255(a). As the

Fourth Circuit has said, “no matter how an inmate

characterizes his request for relief, the substance of

that request controls.” United States v. Ferguson, 55

F.4th 262, 270 (4th Cir. 2022). But the relevant inquiry centers not on whether the defendant discusses legal defects in his case but whether he is

“claiming the right to be released” (§ 2255(a)) versus

expanding the use of § 3582(c)(1)(A) “as authorized by Congress” and also permitted by BOP regulations and policy statements, “to cover both medical and non-medical conditions”),

https://www.oversight.gov/sites/default/files/documents/reports/2017-12/e1306.pdf.

30

asking for a discretionary sentence reduction

(§ 3582(c)). See Thomas, 91 F.4th at 1242 (“A movant

cannot rightly claim he is legally entitled to compassionate release because the background sentencing

law has changed, but he may argue that he nonetheless deserves a sentence reduction based on that

change and other relevant factors.”).

Federal jurists understand that pro se litigants

often mislabel filings. And judges are adept at dealing with this, either by dismissing the mislabeled filing or, where appropriate, by recharacterizing it. See

Castro v. United States, 540 U.S. 375, 383 (2003)

(limiting courts’ authority to recharacterize a filing

as a first motion under § 2255, given AEDPA’s strict

limits on successive § 2255 motions); Andrews v.

United States, 373 U.S. 334, 337–38 (1963) (recharacterizing a filing that had been styled as a motion

under the former Rule 35 as a § 2255).

But on the other hand, where a federal prisoner

files a § 3582(c)(1)(A) motion that does not claim any

“right to be released” but merely asks for a discretionary sentence reduction, the sentencing court

need not ignore a legal defect in the case as it decides

whether “extraordinary and compelling reasons”

warrant a reduction. Even if there is a clear defect,

the court can decline to reduce the sentence for individualized reasons. But if the court finds that the

case viewed holistically, including the defect, reveals

“extraordinary and compelling reasons” warranting

a sentence reduction, then so long as the reduction

is consistent with applicable policy statements, the

court may reduce the sentence as appropriate to do

justice, protect the public, deter further criminal behavior, and rehabilitate the defendant. See

§ 3582(c)(1)(A); see also 18 U.S.C. § 3553(a)(2).

31

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,

Joshua L. Dratel

Co-chair, Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

Jessica Stengel

Co-chair, Amicus Committee

Daniel Habib

Judith H. Mizner

Members, Amicus Committee

Benjamin Flick

Renee Pietropaolo

Assistant Federal Public

Defenders

NATIONAL ASSOCIATION

OF FEDERAL DEFENDERS

Erica Zunkel

Director

UNIVERSITY OF CHICAGO

LAW SCHOOL CRIMINAL &

JUVENILE JUSTICE CLINIC

August 11, 2025

Shelley Fite*

National Sentencing

Resource Counsel,

FEDERAL PUBLIC AND

COMMUNITY DEFENDERS

22 E. Mifflin St., Ste. 1000

Madison, WI 53704

(608) 234-0883

shelley_fite@fd.org

Shanna Rifkin

General Counsel

Peter Goldberger

Member, Amicus Committee

FAMM

*Counsel of Record