Petition for Writ of Certiorari — Daniel Rutherford, Petitioner v. United States
Supreme Court briefJan 30, 2025
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No. 24-_____
IN THE
Supreme Court of the United States
__________
DANIEL RUTHERFORD
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit
__________
PETITION FOR A WRIT OF CERTIORARI
__________
DAVID C. FREDERICK
JUSTIN B. BERG
Counsel of Record
ALEX P. TREIGER
DEREK C. REINBOLD
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
(jberg@kellogghansen.com)
January 30, 2025
QUESTION PRESENTED
The compassionate-release statute permits courts
to reduce a prisoner’s sentence if the court finds that
“extraordinary and compelling reasons” warrant relief.
18 U.S.C. § 3582(c)(1)(A). Congress placed only two
limits on what can count as an “extraordinary and
compelling reason”: (1) it must be “consistent with”
“applicable policy statements” from the U.S. Sentencing Commission, id.; and (2) “[r]ehabilitation of the
defendant alone shall not be considered an extraordinary and compelling reason,” 28 U.S.C. § 994(t).
Sections 401 and 403 of the First Step Act of 2018
reduced penalties for certain drug and firearm offenses
going forward. Because of these changes, individuals
sentenced today for these offenses often face mandatory minimum terms of imprisonment decades shorter
than they would have received before the First Step
Act.
The question presented is:
Whether, as four circuits permit but six others
prohibit, a district court may consider disparities
created by the First Step Act’s prospective changes
in sentencing law when deciding if “extraordinary
and compelling reasons” warrant a sentence reduction
under 18 U.S.C. § 3582(c)(1)(A)(i).
ii
PARTIES TO THE PROCEEDINGS
Petitioner Daniel Rutherford was the defendant and
movant in the district court and the appellant in the
court of appeals.
Respondent United States of America was the
plaintiff and respondent in the district court and the
appellee in the court of appeals.
iii
RELATED CASES
Decisions Under Review:
United States v. Rutherford, 2023 WL 3136125 (E.D.
Pa. Apr. 27, 2023) (No. 05-cr-0126-JMY-1)
United States v. Rutherford, 120 F.4th 360 (3d Cir.
Nov. 1, 2024) (No. 23-1904)
Prior, Related Decisions:
United States v. Rutherford, 2006 WL 7349954 (E.D.
Pa. Jan. 25, 2006) (No. 05-cr-0126-1)
United States v. Rutherford, 236 F. App’x 835 (3d Cir.
June 26, 2007) (No. 06-1437)
Rutherford v. United States, 552 U.S. 1127 (U.S. Jan.
7, 2008) (No. 07-7858) (denying certiorari)
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED .......................................... i
PARTIES TO THE PROCEEDINGS ......................... ii
RELATED CASES ..................................................... iii
TABLE OF AUTHORITIES ...................................... vi
OPINIONS BELOW ................................................... 1
JURISDICTION.......................................................... 1
STATUTORY PROVISIONS INVOLVED ................. 1
INTRODUCTION ....................................................... 1
STATEMENT .............................................................. 3
A. Legal Background ............................................ 3
B. Proceedings Below ........................................... 8
REASONS FOR GRANTING THE PETITION ....... 12
I. THERE IS A DEEP AND PERMANENT
CIRCUIT SPLIT............................................. 12
A. The First, Fourth, Ninth, And Tenth
Circuits Allow Sentencing Courts To
Consider Nonretroactive Changes In
Law ............................................................ 12
B. The Third, Fifth, Sixth, Seventh,
Eighth, And D.C. Circuits Forbid
Compassionate Release Based Even
Partly On Nonretroactive Changes In
Law ............................................................ 14
C. The Circuit Conflict Will Persist
Until This Court Resolves It .................... 17
D. The Split Produces Arbitrary Geographic Disparities ................................... 17
v
E. Additional Percolation Serves No
Purpose...................................................... 19
II. THE DECISION BELOW IS INCORRECT .............................................................. 21
A. No Statutory Text Forbids Courts
From Considering Nonretroactive
Changes In Sentencing Law..................... 22
B. The Third Circuit’s Reasoning Lacks
Merit .......................................................... 26
III. THE QUESTION PRESENTED IS
EXCEPTIONALLY IMPORTANT................. 30
IV. THIS CASE IS AN IDEAL VEHICLE
FOR RESOLVING THE QUESTION
PRESENTED ................................................. 32
CONCLUSION.......................................................... 33
APPENDIX:
Opinion of the United States Court of Appeals
for the Third Circuit, United States v. Rutherford, No. 23-1904 (Nov. 1, 2024) ............................... 1a
Memorandum of the United States District
Court for the Eastern District of Pennsylvania,
United States v. Rutherford, No. 05-cr-0126JMY-1 (Apr. 27, 2023)............................................. 37a
Statutory Provisions Involved ................................ 48a
First Step Act of 2018, Pub. L. No. 115-391,
132 Stat. 5194:
§ 403, 132 Stat. 5221-22............................... 48a
§ 603(b), 132 Stat. 5239-41 .......................... 48a
18 U.S.C. § 3582(c)(1)(A) ..................................... 53a
28 U.S.C. § 994(t) ................................................. 54a
vi
TABLE OF AUTHORITIES
CASES
Page
Ayestas v. Davis, 584 U.S. 28 (2018) ........................ 32
Barber v. Thomas, 560 U.S. 474 (2010) ..................... 3
Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011) ....... 29
Buck v. Davis, 580 U.S. 100 (2017) .......................... 25
Concepcion v. United States, 597 U.S. 481
(2022) ..................................................21, 22, 25, 28
Deal v. United States, 508 U.S. 129 (1993) ................ 6
Dean v. United States, 581 U.S. 62 (2017) ..........21, 28
District of Columbia v. Wesby, 583 U.S. 48
(2018) ................................................................... 27
Henderson v. United States, 568 U.S. 266 (2013)....... 33
Jama v. Immigration & Customs Enf’t, 543 U.S.
335 (2005) ............................................................ 28
Kemp v. United States, 596 U.S. 528 (2022) ............ 25
Kimbrough v. United States, 552 U.S. 85
(2007) ..........................................................4, 21, 27
Kugler v. Helfant, 421 U.S. 117 (1975) .................... 23
Loper Bright Enters. v. Raimondo, 144 S. Ct.
2244 (2024) .......................................................... 17
Mistretta v. United States, 488 U.S. 361 (1989) ........ 3
Polites v. United States, 364 U.S. 426 (1960)........... 25
Public Emps. Ret. Sys. of Ohio v. Betts, 492 U.S.
158 (1989) ............................................................ 29
Rodriguez v. United States, 480 U.S. 522
(1987) ........................................................ 21-22, 28
Setser v. United States, 566 U.S. 231 (2012)............ 25
vii
Tapia v. United States, 564 U.S. 319 (2011) ............ 23
United States v. Andrews, 12 F.4th 255 (3d Cir.
2021)...........................................................6, 10, 11,
16, 19, 32
United States v. Austin, --- F.4th ---, 2025 WL
78706 (5th Cir. Jan. 13, 2025).......................14, 16,
17, 19, 20
United States v. Barkley, 2024 WL 5233183
(N.D. Okla. Dec. 27, 2024) ................................... 18
United States v. Bell, 2024 WL 3849533 (D. Md.
Aug. 16, 2024) ...................................................... 18
United States v. Brock, 39 F.4th 463 (7th Cir.
2022)..................................................................... 19
United States v. Brooker, 976 F.3d 228 (2d Cir.
2020)....................................................................... 5
United States v. Canales-Ramos, 19 F.4th 561
(1st Cir. 2021) ...................................................... 19
United States v. Cardenas, 2024 WL 615542
(5th Cir. Feb. 14, 2024) ....................................... 20
United States v. Chen, 48 F.4th 1092 (9th Cir.
2022)...............................................................12, 13,
14, 19, 29
United States v. Crandall, 25 F.4th 582 (8th Cir.
2022)................................................................16, 19
United States v. D’Angelo, 110 F.4th 42 (1st Cir.
2024)..................................................................... 31
United States v. Davis, 99 F.4th 647 (4th Cir.
2024)..........................................................13, 17, 19
United States v. Diaco, 457 F. Supp. 371 (D.N.J.
1978)..................................................................... 25
viii
United States v. Elam, 2023 WL 6518115
(5th Cir. Oct. 5, 2023) .......................................... 20
United States v. Franklin, 2024 WL 4295912
(S.D. Fla. Sept. 18, 2024) .................................... 18
United States v. Garner, 2024 WL 4068765
(S.D. Tex. Sept. 5, 2024) ...................................... 18
United States v. Hunter, 12 F.4th 555 (6th Cir.
2021)..................................................................... 19
United States v. Jarvis, 999 F.3d 442 (6th Cir.
2021)..........................................................15, 19, 20
United States v. Jean, 108 F.4th 275 (5th Cir.
2024), en banc petition pending, No. 23-40463
(5th Cir. Sept. 18, 2024) .....................14, 16, 19, 20
United States v. Jenkins, 50 F.4th 1185 (D.C.
Cir. 2022) .......................................................16, 19,
20, 23, 26
United States v. King, 40 F.4th 594 (7th Cir.
2022), cert. denied, 143 S. Ct. 1784 (2023) ..... 6, 19
United States v. Loggins, 966 F.3d 891 (8th Cir.
2020)..................................................................... 19
United States v. Martinez, 2024 WL 658952
(5th Cir. Feb. 16, 2024) ....................................... 20
United States v. Maumau, 993 F.3d 821 (10th
Cir. 2021) ........................................................19, 20
United States v. McCall:
20 F.4th 1108 (2021), on reh’g en banc,
56 F.4th 1048 (6th Cir. 2022), cert. denied,
143 S. Ct. 2506 (2023) ......................................... 19
56 F.4th 1048 (6th Cir. 2022), cert. denied,
143 S. Ct. 2506 (2023) ...................................15, 16,
17, 19, 20-21
ix
United States v. McCoy, 981 F.3d 271 (4th Cir.
2020)................................................................13, 19
United States v. McGee, 992 F.3d 1035
(10th Cir. 2021) ...............................................13, 19
United States v. McKinnie, 24 F.4th 583
(6th Cir. 2022)...................................................... 19
United States v. McMaryion, 64 F.4th 257
(2023), withdrawn and superseded by United
States v. McMaryion, 2023 WL 4118015
(5th Cir. June 22, 2023) .................................19, 20
United States v. Moody, 115 F.4th 304 (4th Cir.
2024)..................................................................... 31
United States v. Owens, 996 F.3d 755 (6th Cir.
2021)................................................................19, 20
United States v. Peoples, 41 F.4th 837 (7th Cir.
2022)..................................................................... 19
United States v. Rodriguez, 451 F. Supp. 3d 392
(E.D. Pa. 2020) ..................................................... 23
United States v. Rodriguez-Mendez, 65 F.4th
1000 (8th Cir. 2023) ............................................. 19
United States v. Roper, 72 F.4th 1097 (9th Cir.
2023)................................................................. 6, 19
United States v. Rutherford, 236 F. App’x 835
(3d Cir. 2007) ......................................................... 9
United States v. Ruvalcaba, 26 F.4th 14 (1st Cir.
2022)...............................................................13, 14,
19, 24, 26
United States v. Smith, 538 F. Supp. 3d 990
(E.D. Cal. 2021) ................................................... 18
United States v. Stewart, 86 F.4th 532 (3d Cir.
2023)..................................................................... 19
x
United States v. Taylor, cert. granted, 141 S. Ct.
2882 (2021) .......................................................... 31
United States v. Taylor, 28 F.4th 929 (8th Cir.
2022)................................................................19, 20
United States v. Thacker, 4 F.4th 569 (7th Cir.
2021)..................................................................... 16
United States v. Tomes, 990 F.3d 500 (6th Cir.
2021)................................................................15, 19
United States v. Turner, 706 F. Supp. 3d 562
(E.D. Va. 2023)..................................................... 18
United States v. Vaughn, 62 F.4th 1071 (7th Cir.
2023)..................................................................... 26
United States v. Wesley, 78 F.4th 1221 (10th Cir.
2023)..................................................................... 14
United States v. Williams, 65 F.4th 343 (7th Cir.
2023)..........................................................19, 20, 21
United States v. Wills, 997 F.3d 685 (6th Cir.
2021)................................................................15, 19
United States v. Wilson, 77 F.4th 837 (D.C. Cir.
2023), cert. denied, 144 S. Ct. 1111 (2024) ......... 19
STATUTES, REGULATIONS, AND RULES
First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194 ....................................... 1, 2, 3, 5, 6, 7, 9,
10, 11, 14, 15, 16,
22, 26, 27, 28, 29, 30
§ 401, 132 Stat. 5220-21 ........................................ 6
§ 401(a), 132 Stat. 5220-21 .............................. 7, 27
§ 401(c), 132 Stat. 5221 ..............................7, 27, 30
§ 403, 132 Stat. 5221-22 ........................................ 6
xi
§ 403(a), 132 Stat. 5221-22 .............................. 6, 27
§ 403(b), 132 Stat. 5222 ..............................6, 27, 30
§ 603(b), 132 Stat. 5239 ......................................... 5
Sentencing Reform Act of 1984, Pub. L. No. 98473, tit. II, ch. II, 98 Stat. 1837, 1987-2040 .... 3, 4,
24, 25
18 U.S.C. § 924(c) ..........................................6, 8, 9, 10,
11, 18, 27, 28, 30
18 U.S.C. § 924(c)(1) ................................................... 9
18 U.S.C. § 924(c)(1)(A)(ii) .......................................... 9
18 U.S.C. § 924(c)(1)(D)(i) ........................................... 9
18 U.S.C. § 1951(a) ..................................................... 8
18 U.S.C. § 3553(a) ....................................1, 10, 28, 31, 32
18 U.S.C. § 3582(c)(1) ............................................... 33
18 U.S.C. § 3582(c)(1)(A) ...............................1, 4, 5, 24
18 U.S.C. § 3582(c)(1)(A)(i) .......... 1, 4, 5, 10, 22, 29, 31
18 U.S.C. § 4205(g) (1976) ........................................ 24
28 U.S.C. § 994(a)(1)-(2) ............................................. 4
28 U.S.C. § 994(p) ....................................................... 8
28 U.S.C. § 994(t) ............................... 1, 4, 5, 23, 25, 28
28 U.S.C. § 1254(1) ..................................................... 1
U.S.S.G.:
§ 1B1.13 cmt. n.1 (Nov. 1, 2007) ........................... 5
§ 1B1.13(b)(1) (Nov. 1, 2023) ............................... 27
§ 1B1.13(b)(2) (Nov. 1, 2023) ............................... 27
§ 1B1.13(b)(6) (Nov. 1, 2023) ...............8, 10, 11, 13,
17, 31, 32, 33
xii
Suppl. to App. C, Amendment 799 (Nov. 1,
2016)....................................................................... 5
Fed. R. Civ. P. 60(b)(6) .............................................. 25
LEGISLATIVE MATERIALS
Comprehensive Crime Control Act of 1983:
Hearings on S. 829 Before the Subcomm. on
Crim. L. of the S. Comm. on the Judiciary,
98th Cong. (1983) ................................................ 24
S. Rep. No. 98-225 (1983), reprinted in 1984
U.S.C.C.A.N. 3182 ........................................... 4, 24
ADMINISTRATIVE MATERIALS
Notice, Sentencing Guidelines for United
States Courts, 88 Fed. Reg. 28,254 (May 3,
2023)........................................................7, 8, 12, 17
U.S. Sent’g Comm’n:
Compassionate Release Data Report Fiscal
Years 2020 to 2022 (Dec. 2022), https://
perma.cc/7Y7M-866C .......................................... 30
Compassionate Release Data Report Fiscal
Year 2023 (Mar. 2024), https://perma.cc/
C3SE-YQTC ......................................................... 30
Compassionate Release Data Report Preliminary Fiscal Year 2024 Cumulative Data
through 4th Quarter (Oct. 2024), https://
perma.cc/34HQ-BFTM ................................... 30-31
Estimate of the Impact of Selected Sections
of S. 1014, The First Step Act Implementation Act of 2021 (Oct. 2021), https://perma.cc/
8VC8-25A7 ........................................................... 30
xiii
OTHER MATERIALS
Black’s Law Dictionary (5th ed. 1979) ..................... 22
Br. for the United States in Opp., Jarvis v.
United States, No. 21-568 (U.S. Dec. 8, 2021) ....... 7
Mem. for the United States in Opp., Thacker
v. United States, No. 21-877 (U.S. Feb. 14,
2022)....................................................................... 7
Mem. for the United States in Opp., Watford
v. United States, No. 21-551 (U.S. Dec. 15,
2021)....................................................................... 7
Mem. for the United States in Opp., Williams
v. United States, No. 21-767 (U.S. Jan. 24,
2022)....................................................................... 7
Oral Arg., United States v. Bricker, No. 24-3286
(6th Cir. Oct. 31, 2024), https://www.opn.ca6.
uscourts.gov/internet/court_audio/audio/1031-2024%20-%20Thursday/24-3286%20243289%2024-5182%20USA%20v%20Jason
%20Bricker%20et%20al.mp3 .............................. 21
Reply Br. for the Pet’r, United States v. Taylor,
No. 20-1459 (U.S. June 7, 2021) ......................... 31
Antonin Scalia & Bryan A. Garner, Reading
Law (2012) ........................................................... 30
Webster’s Third New International Dictionary
(1981) ................................................................... 22
Petitioner Daniel Rutherford petitions for a writ of
certiorari to review the judgment of the Third Circuit
in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. 1a-36a) is
reported at 120 F.4th 360. The district court’s memorandum (App. 37a-47a) is not reported but is available
at 2023 WL 3136125.
JURISDICTION
The Third Circuit entered judgment on November 1,
2024. This Court’s jurisdiction is invoked under 28
U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant provisions of the First Step Act of 2018,
Pub. L. No. 115-391, 132 Stat. 5194, 18 U.S.C.
§ 3582(c)(1)(A), and 28 U.S.C. § 994(t) are reproduced
at App. 48a-54a.
INTRODUCTION
This case presents a recognized conflict over a
significant question of sentencing law: whether courts
may consider the First Step Act’s prospective changes
in sentencing law when deciding whether “extraordinary and compelling reasons” justify a sentence
reduction under the compassionate-release statute,
18 U.S.C. § 3582(c)(1)(A)(i). The courts of appeals
have divided 6-4 over that question.
The compassionate-release statute allows a district
court to reduce a defendant’s sentence if the court
finds that (1) “extraordinary and compelling reasons”
exist; (2) the reduction is “consistent with” “applicable” policy statements issued by the U.S. Sentencing
Commission; and (3) the sentencing factors under 18
U.S.C. § 3553(a) favor relief. 18 U.S.C. § 3582(c)(1)(A)(i).
In 2018, Congress passed the First Step Act, which
2
prospectively reduced penalties for certain drug and
firearm offenses.
The First, Fourth, Ninth, and Tenth Circuits allow
district courts to consider—as one of several casespecific factors—the fact that a defendant would have
received a significantly lower sentence if sentenced
today, as a result of the First Step Act’s changes.
These circuits reason that the operative statutory
text—the phrase “extraordinary and compelling”—is
flexible and expansive. They also reason that Congress has spoken explicitly to exclude another consideration from the extraordinary-and-compelling analysis (“[r]ehabilitation . . . alone”) but has never enacted
a similar prohibition on considering changes in law.
By contrast, the Third, Fifth, Sixth, Seventh, Eighth,
and D.C. Circuits have held that courts may never
consider the First Step Act’s changes—either alone or
with other factors—because doing so would undermine Congress’s nonretroactivity choices.
In April 2023, the Sentencing Commission issued a
policy statement agreeing with the first group of circuits. But in the decision below, the Third Circuit (one
of the circuits on the other side of the split) adhered to
its previous decision and held that the policy statement exceeded the Commission’s statutory authority.
The Third Circuit’s decision cemented the split.
This Court should resolve the circuit conflict in this
case. Further percolation will accomplish nothing:
courts have divided into two clear camps, and the
Commission’s agreement with one has not persuaded
the other. Circuits like the Third will continue to follow their previous interpretation of the compassionaterelease statute. The circuits with which the Commission agreed also have no basis to change course: they
have read the statute to permit what the Commission
allows.
3
The question presented has potentially life-changing
effects for thousands of prisoners. And it is uniquely
recurring: courts have decided hundreds of motions
raising the First Step Act’s changes in the past
four years. But as things stand, a defendant’s ability
to present their full circumstances depends on
geographic happenstance.
There is no reason to further delay review. Dozens
of appellate decisions have analyzed this issue. And
this case is an optimal vehicle: the decision below
turned solely on the legal question presented, and
there are no obstacles to reaching it here. Just as importantly, the decision below was incorrect. The Third
Circuit, like five other circuits, has created a categorical limit that Congress never legislated to create.
This Court should grant the petition and reverse.
STATEMENT
A. Legal Background
1. Historically, the three branches of government
shared responsibility for federal sentencing. See
Mistretta v. United States, 488 U.S. 361, 363-64
(1989). Congress “fix[ed] the sentence for a federal
crime,” the court “imposed a sentence within the
statutory range,” and the “Executive Branch’s parole
official eventually determined the actual duration of
imprisonment.” Id. at 364-65. Under that regime, the
United States Board of Parole (and later the Parole
Commission) could—and “routinely did”—release
prisoners before they served half of their sentence.
Barber v. Thomas, 560 U.S. 474, 482 (2010). Such
actions led to “[s]erious disparities in sentences,” which
in turn generated “widespread” criticism. Mistretta,
488 U.S. at 365-66.
Congress responded to this criticism by overhauling
the federal sentencing system in the Sentencing
4
Reform Act of 1984, Pub. L. No. 98-473, tit. II, ch. II,
98 Stat. 1837, 1987-2040. In place of the Parole
Commission, Congress created the United States
Sentencing Commission.
Congress directed the
Commission “to formulate and constantly refine
national sentencing standards,” Kimbrough v. United
States, 552 U.S. 85, 108 (2007), including through
guidelines governing initial sentencing and “policy
statements” governing sentence-modification proceedings, 28 U.S.C. § 994(a)(1)-(2).
2. In enacting the Sentencing Reform Act, Congress recognized that there would be “unusual cases”
in which “changed circumstances” justified reducing
an “unusually long sentence.” S. Rep. No. 98-225, at
55, 121 (1983), reprinted in 1984 U.S.C.C.A.N. 3182,
3238, 3304. So Congress enacted “safety valves”
through which courts could modify a sentence once
imposed. Id. at 121, reprinted in 1984 U.S.C.C.A.N.
3304.
Section 3582(c)(1)(A)(i) is one of those safety valves.
This “compassionate release” provision allows a
district court to reduce a prisoner’s sentence “if it
finds that” “extraordinary and compelling reasons
warrant such a reduction,” “after considering the
factors set forth in [§] 3553(a) to the extent that
they are applicable.” 18 U.S.C. § 3582(c)(1)(A)(i). The
reduction must also be “consistent with applicable
policy statements issued by the Sentencing Commission.” Id. § 3582(c)(1)(A).
Congress did not define the phrase “extraordinary
and compelling reasons.” It instead instructed the
Commission to “promulgat[e] general policy statements” that “shall describe what should be considered
extraordinary and compelling reasons for sentence
reduction, including the criteria to be applied and a
list of specific examples.” 28 U.S.C. § 994(t). Congress
5
placed only one limit on that express delegation:
“Rehabilitation of the defendant alone shall not be
considered an extraordinary and compelling reason.”
Id.
3. For years, § 3582(c)(1)(A)(i)’s safety valve rarely
opened. Only the Bureau of Prisons (“BOP”) could
file a motion under § 3582(c)(1)(A), and it rarely did.
See United States v. Brooker, 976 F.3d 228, 231-32
(2d Cir. 2020). As a result, between 1984 and 2018,
few motions reached the courts, and scant precedent
developed on what counts as an “extraordinary and
compelling reason.”
Meanwhile, starting in 2007, the Commission issued
policy statements that applied to the few motions the
BOP filed. The first identified several “extraordinary
and compelling reasons” for a sentence reduction:
terminal illness, severe physical or mental decline,
and death or incapacitation of the primary caregiver
of a prisoner’s child. U.S.S.G. § 1B1.13 cmt. n.1 (Nov.
1, 2007). And the Commission included a catch-all
category for “an extraordinary and compelling reason
other than, or in combination with,” these examples,
“[a]s determined” by the BOP. Id. In 2016, the Commission added two additional bases related to age and
health of the defendant. See U.S.S.G. Suppl. to App.
C, Amendment 799 (Nov. 1, 2016).
4. Congress responded to the BOP’s inaction with
the First Step Act of 2018, which amended the compassionate-release statute to permit prisoners to file
motions after exhausting administrative remedies.
See Pub. L. No. 115-391, § 603(b), 132 Stat. 5194,
5239.
With this change, compassionate-release motions
finally began to reach federal courts. But the Commission lost a quorum shortly after this change, so it could
6
not issue a policy statement describing what could
count as an “extraordinary and compelling reason” for
a prisoner-filed motion. And because the Commission’s previous policy statements referenced only
BOP-filed motions (and had a catch-all provision based
on BOP discretion), courts found the existing policy
statements inapplicable to prisoner-filed motions.
See United States v. Andrews, 12 F.4th 255, 259 (3d
Cir. 2021) (collecting cases). Without a policy statement, courts had to identify what could constitute an
“extraordinary and compelling reason” themselves.
In that vacuum, courts divided over whether nonretroactive changes in law could be considered when
deciding compassionate-release motions. Much of the
disagreement focused on § 401 and § 403 of the First
Step Act, which reduced harsh sentencing schemes for
firearm and drug offenses.1
Section 403 eliminated “stacking” under 18 U.S.C.
§ 924(c). Section 924(c), which prohibits using or
carrying a firearm during certain felonies, previously
required 25-year consecutive sentences for each
“second or subsequent” § 924(c) conviction—even if
they occurred in the same case as a defendant’s first
conviction. See Deal v. United States, 508 U.S. 129,
132-37 (1993). The First Step Act changed this practice by requiring a “final” § 924(c) conviction before the
mandatory 25-year penalties apply. But Congress
made the changes apply only to pending or future
cases. § 403(a)-(b), 132 Stat. 5221-22. Section 401,
1 Courts also split on a question not presented here: whether
changes in decisional law, as opposed to statutory changes, may
be considered. Compare, e.g., United States v. King, 40 F.4th 594,
596 (7th Cir. 2022) (no), cert. denied, 143 S. Ct. 1784 (2023), with
United States v. Roper, 72 F.4th 1097, 1102-03 (9th Cir. 2023)
(yes; collecting cases).
7
which reduced drug penalties, also applies only to
pending or future cases. § 401(a), (c), 132 Stat. 522021.
The courts of appeals split over whether district
courts could consider the First Step Act’s prospective
sentencing changes when deciding if “extraordinary
and compelling reasons” exist for those who received
lengthy sentences under the prior regime. See infra
pp. 12-17. But the government successfully opposed
certiorari petitions asking this Court to resolve that
split, arguing that it ought to be “addressed by the
Sentencing Commission” in the first instance.2 Review was premature, the government argued, because
“[t]he Commission could . . . promulgate a new policy
statement, binding on district courts,” “that rules out
the First Step Act’s prospective amendment[s]” “as a
possible basis for finding ‘extraordinary and compelling reasons’ for” a sentence reduction, which would
“resolve [the] circuit disagreement” and “deprive a decision by this Court . . . of any practical significance.”3
The Commission “respond[ed] to [the] circuit split”
in April 2023, once it regained a quorum. Notice,
Sentencing Guidelines for United States Courts, 88
Fed. Reg. 28,254, 28,254, 28,258 (May 3, 2023). It
issued a policy statement defining “extraordinary and
compelling reasons” for prisoner-filed motions and
“agree[ing] with the circuits that authorize a district
court to consider non-retroactive changes in the law.”
2
U.S. Br. in Opp. 16, Jarvis v. United States, No. 21-568
(U.S. Dec. 8, 2021) (“Jarvis Opp.”).
3 Jarvis Opp. 18; accord U.S. Mem. in Opp. 2, Watford v.
United States, No. 21-551 (U.S. Dec. 15, 2021); U.S. Mem. in Opp.
2, Williams v. United States, No. 21-767 (U.S. Jan. 24, 2022); U.S.
Mem. in Opp. 2, Thacker v. United States, No. 21-877 (U.S. Feb.
14, 2022).
8
Id. at 28,258. The Commission explained that it “considered whether the . . . split” “was properly addressed
by the Commission” or “by the Supreme Court,” and
“was influenced by the fact that on several occasions
the Department of Justice successfully opposed Supreme
Court review of the issue on the ground that it should
be addressed first by the Commission.” Id.
Under the new policy statement (known as “(b)(6)”),
changes in law (including nonretroactive statutory
changes) “may be considered in determining whether
the defendant presents an extraordinary and compelling reason, but only where” (1) “a defendant received
an unusually long sentence,” (2) the defendant “has
served at least 10 years of the term of imprisonment,”
(3) there is “a gross disparity between the sentence
being served and the sentence likely to be imposed
at the time the motion is filed,” and (4) the court
gives “full consideration of the defendant’s individualized circumstances.” U.S.S.G. § 1B1.13(b)(6) (Nov. 1,
2023).
Consistent with longstanding practice, the Commission submitted its amended policy statement to
Congress. 88 Fed. Reg. at 28,254; see 28 U.S.C. § 994(p).
Congress did not disapprove the policy statement, and
(b)(6) went into effect on November 1, 2023.
B. Proceedings Below
1. In 2003, Daniel Rutherford—then 22 years
old—committed two armed robberies in Philadelphia
over five days. App. 12a. A federal jury convicted him
of two counts of Hobbs Act robbery, in violation of 18
U.S.C. § 1951(a); one count of conspiracy to commit
Hobbs Act robbery, in violation of § 1951(a); and two
counts of using a firearm during a crime of violence, in
violation of § 924(c). App. 12a.
9
The district court sentenced Rutherford to 42.5
years in prison. App. 13a. Section 924(c)’s nowdiscarded “stacking” provision required the district
court to impose a 32-year mandatory minimum: seven
years for Rutherford’s “first” § 924(c) conviction and a
consecutive 25-year sentence for his “second” one—
even though both counts were brought in the same
case. App. 13a & n.10. The court imposed an additional 125 months for the robbery conviction. Id.
The Third Circuit affirmed Rutherford’s conviction.
United States v. Rutherford, 236 F. App’x 835 (3d
Cir. 2007). Two panel members observed that “Rutherford’s 42-year sentence” “would be unthinkable in
many state systems for these underlying facts.” Id.
at 845 (Ambro, J., concurring, joined by McKee, J.).
“By prosecuting Rutherford at the federal level,”
Judge Ambro wrote, “the Federal Government has
effectively incapacitated [him] for the remainder of his
adult life.” Id. Rutherford (now 43) has spent more
than 19 years in prison.
2. Rutherford moved pro se for compassionate
release in April 2021. App. 13a-14a. In arguing that
his case was “extraordinary and compelling,” he
highlighted that he had received an “unusually long
sentence” under § 924(c)’s stacking provision “that
Congress has since found too punitive.” C.A. App. 76.
Had Rutherford been sentenced after the First Step
Act, he would have received a 14-year mandatory
minimum for his two § 924(c) convictions—18 years
fewer than the 32-year minimum he received in 2006.4
4 Rutherford’s two § 924(c)(1) counts were for brandishing a
firearm. See Rutherford, 236 F. App’x at 845 (Ambro, J., concurring). Today, that violation triggers a seven-year mandatory
minimum, 18 U.S.C. § 924(c)(1)(A)(ii), and the penalties for both
counts run consecutively, id. § 924(c)(1)(D)(ii).
10
App. 13a. He noted that he had completed more than
50 educational courses and received only two minor
infractions in the past decade—arguing that those
factors “could be considered” “in tandem with other
factors” to create an “extraordinary and compelling
reason[ ]” for relief. C.A. App. 63, 82-83, 98-99. Rutherford also highlighted that he had secured employment upon release, and his mother wrote a letter on
his behalf pointing out that his sister had died and left
behind five children for whom Rutherford could help
care if released. Id. at 54-55, 90-92.
Two years later, the district court denied Rutherford’s motion. App. 14a. It based its denial solely on
United States v. Andrews, 12 F.4th 255 (3d Cir. 2021).
Andrews, decided before the Sentencing Commission
issued (b)(6), held that district courts may not consider
the First Step Act’s nonretroactive changes to § 924(c)
when deciding if a defendant’s circumstances are
“extraordinary and compelling.” App. 14a. Because
the district court held that Andrews foreclosed relief,
it did not address whether the 18 U.S.C. § 3553(a)
sentencing factors supported a reduction. Id. The day
after the court ruled, the Commission issued (b)(6).
3. On appeal, the government did not dispute that
Rutherford satisfied (b)(6) or argue that his motion
failed under the § 3553(a) sentencing factors. But it
contended that (1) the Third Circuit could not consider
(b)(6) because it went into effect while the appeal was
pending; and (2) in any event, (b)(6) exceeded the
Commission’s authority because Andrews “already
construed Section 3582(c)(1)(A)(i) to preclude a change
in law from qualifying as an extraordinary and compelling reason for a sentence reduction.” U.S. C.A. Br.
12-15, 40 (Feb. 20, 2024).
11
The Third Circuit affirmed. It rejected the government’s first argument, holding that it could “properly
consider the amended policy statement in the first
instance.” App. 19a-25a. And it concluded that
addressing the policy statement’s effect on its prior
decision in Andrews would “serve the interests of judicial efficiency” because that issue was a “purely legal”
question of “public importance.” App. 23a-24a.
But the Third Circuit agreed with the government’s
second argument and held that (b)(6) was invalid as
applied to the First Step Act’s changes to § 924(c).
App. 26a-36a. Andrews, it said, held that “the nonretroactive change to § 924(c), whether by itself or in
combination with other factors, cannot be considered
in the compassionate release eligibility context.” App.
32a. And the Commission “may not replace a controlling judicial interpretation of an unambiguous statute
with its own construction.” App. 33a.
Although Andrews had described the phrase “extraordinary and compelling” as “amorphous and ambiguous,” the panel in Rutherford’s case noted that
Andrews also had found that “allowing the change
to § 924(c) to be considered” “does not align with ‘the
specific directives [that] Congress’ set forth in the
First Step Act.” App. 29a-30a, 35a. And “on retroactivity, the change to § 924(c) is not the least ambiguous.” App. 33a-34a. So “the amended Policy Statement conflict[ed] with Andrews,” and “Andrews controls.” App. 36a. The court thus held that considering
§ 924(c)’s changes “conflicts with the will of Congress,
and thus [(b)(6)] cannot be considered in determining
a prisoner’s eligibility for compassionate release.”
App. 29a.
12
REASONS FOR GRANTING THE PETITION
I. THERE IS A DEEP AND PERMANENT
CIRCUIT SPLIT
Ten circuits have split 6-4 on the question presented.
There is no chance the conflict will resolve itself—the
court below rejected the Commission’s attempt “to
respond to” “[the] circuit split.” 88 Fed. Reg. at 28,258.
The deep division among the courts of appeals will
therefore persist until this Court decides the question
presented, which it should do now.
For people like Rutherford, the question presented
could make the difference between dying in prison and
decades of freedom. But as it stands, access to relief
depends on where a person is sentenced. Because
Rutherford was sentenced in Pennsylvania, he is
categorically barred from presenting a full picture of
his circumstances—and faces decades more in prison.
Had he been sentenced in California, Oklahoma, or
any one of the 24 states on the other side of the circuit
conflict, he might already be free.
A. The First, Fourth, Ninth, And Tenth Circuits Allow Sentencing Courts To Consider
Nonretroactive Changes In Law
The judgment below conflicts with decisions in four
federal circuits.
The Ninth Circuit’s decision in United States v.
Chen, 48 F.4th 1092 (9th Cir. 2022), is illustrative.
There, after surveying the split, the court “join[ed]
the First, Fourth, and Tenth circuits” in finding
“no textual basis for precluding district courts from
considering non-retroactive changes in sentencing
law” “in combination with other factors particular to
the individual defendant.” Id. at 1095-98. And it
rejected the contrary views of circuits like the Third,
Sixth, Seventh, and Eighth. Id.
13
Congress, the Ninth Circuit noted, “only placed two
limitations directly on extraordinary and compelling
reasons: the requirement that district courts are
bound by the Sentencing Commission’s policy
statement” and “the requirement that ‘rehabilitation
alone’ is not extraordinary and compelling.” Id. at
1098 (cleaned up). “Neither of these rules” “wholly
exclude[s] the consideration of any” particular factor
“in combination with other[s].” Id. To the contrary,
“Congress has never acted to wholly exclude the
consideration of any one factor.” Id. So “[t]o hold
that district courts cannot consider non-retroactive
changes in sentencing law would be to create categorical bar against a particular factor, which Congress
itself has not done.” Id. The Ninth Circuit declined to
create such a bar, so district courts in that circuit are
free to consider nonretroactive changes in sentencing
law when deciding compassionate-release motions.
The First, Fourth, and Tenth Circuits have reached
the same conclusion. See United States v. Ruvalcaba,
26 F.4th 14, 25 (1st Cir. 2022); United States v. McCoy,
981 F.3d 271, 286 (4th Cir. 2020); United States v.
McGee, 992 F.3d 1035, 1047 (10th Cir. 2021). The
Fourth Circuit recently reiterated its position. See
United States v. Davis, 99 F.4th 647, 658 (4th Cir.
2024) ((b)(6) “confirm[s] and amplif[ies] this Court’s
earlier ruling” “that district courts [may] consider . . .
[n]onretroactive changes in law”). These circuits, too,
have found “no textual support for concluding
that [nonretroactive] changes in the law may never
constitute part of a basis for an extraordinary and
compelling reason.” Ruvalcaba, 26 F.4th at 26; see
McGee, 992 F.3d at 1047 (“Congress chose not to afford
relief to all defendants [sentenced] . . . prior to the
First Step Act . . . . But nothing in . . . the First Step
14
Act indicates that Congress intended to prohibit district
courts, on an individualized, case-by-case basis, from
granting sentence reductions under § 3582(c)(1)(A)(i)
to some of those defendants.”).
Aside from the Fourth Circuit—the first to address
this question—judges in each of these circuits have
acknowledged the conflict on the issue. See, e.g., Chen,
48 F.4th at 1096 (“[C]ircuits are split concerning this
issue.”); Ruvalcaba, 26 F.4th at 24 (“[C]ourts of
appeals have come to . . . different conclusion[s].”);
United States v. Wesley, 78 F.4th 1221, 1229 n.5 (10th
Cir. 2023) (Rossman, J., dissenting from denial of
rehearing en banc) (“[f ]our of our sister circuits reject
the ability of district courts to consider non-retroactive
changes in the law,” a view “more narrow[ ]” “than . . .
our own”).5
B. The Third, Fifth, Sixth, Seventh, Eighth,
And D.C. Circuits Forbid Compassionate
Release Based Even Partly On Nonretroactive Changes In Law
The Third, Fifth, Sixth, Seventh, Eighth, and D.C.
Circuits, by contrast, forbid district courts from considering nonretroactive changes in law when deciding
whether extraordinary and compelling reasons exist.
5 In a case involving a decisional change in law—as opposed to
a statutory change—the Fifth Circuit recently agreed with this
group of circuits. See United States v. Jean, 108 F.4th 275, 288,
290 (5th Cir. 2024) (acknowledging the “circuit split” over
whether “non-retroactive changes in the law” may be considered),
en banc petition pending, No. 23-40463 (5th Cir. Sept. 18, 2024).
A subsequent panel, however, disagreed with Jean, found that
Jean did not apply to statutory changes in law, and held that the
First Step Act’s nonretroactive changes may never be considered.
See United States v. Austin, --- F.4th ---, 2025 WL 78706, at *2-3
(5th Cir. Jan. 13, 2025).
15
The en banc Sixth Circuit, for example, held (9-7)
that “[n]onretroactive legal developments,” whether
“considered alone or together with other factors,
cannot amount to an ‘extraordinary and compelling
reason’ for a sentence reduction.” United States v.
McCall, 56 F.4th 1048, 1065-66 (6th Cir. 2022) (en
banc), cert. denied, 143 S. Ct. 2506 (2023). In the
majority’s view, permitting consideration of nonretroactive legal changes would permit “defendants” to
“use compassionate release as an end run around
Congress’s . . . retroactivity decisions.” Id. at 1059
(cleaned up).6 The court acknowledged that “the
phrase ‘extraordinary and compelling’ does little to
illuminate the specific type of unique or rare reason
that might justify relief.” Id. at 1055. But drawing
on “background principles” of finality and nonretroactivity, it held that the phrase excluded “prospective
changes in federal sentencing law” because those
changes are an “expected outcome in our legal system,”
and “what is expected cannot be extraordinary.” Id.
at 1055-56.
The Sixth Circuit found that Congress had “carefully
delineated between retroactive and nonretroactive
changes to criminal penalties” in the First Step Act.
Id. at 1057. “[T]he balance Congress struck would
come to naught,” the court reasoned, if district courts
6 McCall “involve[d] a nonretroactive judicial decision, rather
than a nonretroactive statute,” but the en banc court saw “no
reason to take a different approach” to the two types of law
changes. 56 F.4th at 1057. The Sixth Circuit has reached
the same conclusion in many cases involving the First Step Act’s
nonretroactive changes. See, e.g., United States v. Jarvis, 999
F.3d 442, 445-46 (6th Cir. 2021); United States v. Wills, 997 F.3d
685, 688 (6th Cir. 2021); United States v. Tomes, 990 F.3d 500,
505 (6th Cir. 2021). McCall and its dissents offer the most
in-depth discussion of the issue.
16
could consider nonretroactive changes in law when
deciding whether a defendant is eligible for compassionate release. Id.
The Third, Seventh, Eighth, and D.C. Circuits have
held the same. See Andrews, 12 F.4th at 260-61 (3d
Cir.); United States v. Thacker, 4 F.4th 569, 573-74
(7th Cir. 2021); United States v. Crandall, 25 F.4th
582, 585 (8th Cir. 2022); United States v. Jenkins, 50
F.4th 1185, 1198-99 (D.C. Cir. 2022). These circuits
agree that considering the First Step Act’s changes
“runs headlong into Congress’s judgment that the
unamended [§ 924(c)] remains appropriate for previously sentenced defendants.” Jenkins, 50 F.4th at
1199; accord Thacker, 4 F.4th at 574; Andrews,
12 F.4th at 261; Crandall, 25 F.4th at 585. The Fifth
Circuit, after taking the same view in unreported
decisions, recently joined this side of the split in a
precedential decision. See Austin, 2025 WL 78706, at
*1-3.7
Each of these circuits, like the Third Circuit below,
has acknowledged that “the courts of appeals are split
over whether the First Step Act’s nonretroactive
changes” may be considered in the extraordinary-andcompelling analysis. App. 8a. See also Jean, 108
F.4th at 279 (“appellate courts [have] split on whether
district courts could consider non-retroactive changes
in the law”); Jenkins, 50 F.4th at 1198 (“The circuits
have split”); Crandall, 25 F.4th at 585 (“[T]here are
conflicting decisions in the circuits.”); Thacker, 4 F.4th
at 575 (“courts have come to principled and . . . different
conclusions” “across the country”); McCall, 56 F.4th at
7 As noted supra p. 14 n.5, the Fifth Circuit distinguished a
previous panel decision (Jean)—which had sided with the other
side of the split—and limited Jean to decisional changes in law,
but not statutory changes in law. See 2025 WL 78706, at *2-3.
17
1065 (“we cannot reconcile th[e] approach” of the
“Fourth,” “First, Ninth, and Tenth Circuits” with the
“text of the compassionate-release statute”); id. at
1070 n.4 (Moore, J., dissenting) (“The majority’s decision puts us in conflict with these courts and further
entrenches the circuit split on this issue.”).
C. The Circuit Conflict Will Persist Until This
Court Resolves It
The Commission issued (b)(6) “to respond to [the]
circuit split.” 88 Fed. Reg. at 28,258. But the decision
below cemented the split. The Third Circuit held that
(b)(6) “may not replace a controlling judicial interpretation” of the compassionate-release statute. App. 33a
(citing Loper Bright Enters. v. Raimondo, 144 S. Ct.
2244, 2263, 2265 (2024); other citations omitted).
That ruling confirms that (b)(6) will not harmonize the
circuits. Circuits like the Third will continue to hew
to their interpretation of the statute. See also Austin,
2025 WL 78706, at *2 (“the Commission ‘does not have
the authority to amend the statute we construed’ ”)
(citation omitted). The circuits with which the Commission agreed also have no basis to change course—
they already have construed the statute to permit
what (b)(6) allows. See, e.g., Davis, 99 F.4th at 658.
So the split will persist until this Court resolves it.
D. The Split Produces Arbitrary Geographic
Disparities
The practical effect of the circuit split is that access
to life-changing relief turns on geographic happenstance.
Consider Rutherford:
Because he was
sentenced in Philadelphia, Rutherford’s district court
must ignore the fact that he is serving a sentence that
would be decades shorter today (and one the panel reviewing his direct appeal described as “unthinkable”).
Had he been sentenced 100 miles away in Baltimore,
a district court could consider that fact.
18
And that could well make all the difference. Many
prisoners similarly situated to Rutherford—but
sentenced in other states—have obtained relief. For
example, in December 2024, a district court in Oklahoma granted a sentence reduction to Leslie Barkley.
United States v. Barkley, 2024 WL 5233183, at *4-6
(N.D. Okla. Dec. 27, 2024). Barkley served 20 years of
a 519-month sentence (Rutherford has served 19 years
of a 509-month sentence); would have received an
18-year-lower mandatory minimum sentence for his
two stacked § 924(c) sentences (just like Rutherford);
and has demonstrated a strong record of rehabilitation with minimal disciplinary infractions (just like
Rutherford). Id. Barkley could obtain relief based on
this combination of factors, because he was sentenced
in Oklahoma; Rutherford could not, because he was
sentenced in Philadelphia.8
This geographic disparity is arbitrary and unfair.
Indeed, it is precisely the type of problem Congress
created the Sentencing Commission to resolve—by
announcing uniform national standards. But the
Third Circuit has guaranteed that the disparity will
persist until this Court decides which approach is
correct.
8 See also, e.g., United States v. Turner, 706 F. Supp. 3d 562,
565 (E.D. Va. 2023) (describing a previous order’s grant of sentence reduction to a defendant who received a 32-year mandatory
minimum for two § 924(c) stacked charges); United States v.
Smith, 538 F. Supp. 3d 990, 999-1001 (E.D. Cal. 2021) (granting
sentence reduction based in part on two stacked § 924(c)
charges); United States v. Garner, 2024 WL 4068765, at *3 (S.D.
Tex. Sept. 5, 2024) (same); United States v. Franklin, 2024 WL
4295912, at *2-3 (S.D. Fla. Sept. 18, 2024) (same); United States
v. Bell, 2024 WL 3849533, at *5-6 (D. Md. Aug. 16, 2024) (same).
19
E. Additional Percolation Serves No Purpose
The issue has been exhaustively ventilated. At least
32 precedential appellate decisions (when including
those addressing decisional-law changes, which
employ the same reasoning) have analyzed whether
courts may ever consider changes in law,9 and dozens
more nonpublished opinions have addressed the issue.
The deep judicial disagreement has been remarkable. The Sixth Circuit produced six dueling published
opinions in a single year—creating an “intractable”
intra-circuit split that “render[ed] the law on the issue
. . . unknowable,” McCall, 20 F.4th at 1116 (Kethledge,
J., dissenting), and leading to a closely divided en banc
decision, see McCall, 56 F.4th at 1050; id. at 1066
(Moore, J., dissenting); id. at 1074 (Gibbons, J.,
9 See 1st Cir.:
Ruvalcaba, 26 F.4th 14; United States v.
Canales-Ramos, 19 F.4th 561 (2021); 3d Cir.: United States v.
Rutherford, 120 F.4th 360 (2024) (App. 1a-36a); United States v.
Stewart, 86 F.4th 532 (2023); Andrews; 12 F.4th 255; 4th Cir.:
Davis, 99 F.4th 647; McCoy, 981 F.3d 271; 5th Cir.: Austin, 2025
WL 78706; Jean, 108 F.4th 275; United States v. McMaryion, 64
F.4th 257 (2023), withdrawn and superseded by United States v.
McMaryion, 2023 WL 4118015 (June 22, 2023); 6th Cir.:
McCall, 56 F.4th 1048 (en banc) (Nalbandian, J.); United States
v. McKinnie, 24 F.4th 583 (2022); United States v. McCall, 20
F.4th 1108 (2021) (panel decision) (Moore, J.); United States v.
Hunter, 12 F.4th 555 (2021); Jarvis, 999 F.3d 442; Wills, 997 F.3d
685; United States v. Owens, 996 F.3d 755 (2021); Tomes, 990
F.3d 500; 7th Cir.: United States v. Williams, 65 F.4th 343
(2023); United States v. Peoples, 41 F.4th 837 (2022); King, 40
F.4th 594; United States v. Brock, 39 F.4th 463 (2022); 8th Cir.:
United States v. Rodriguez-Mendez, 65 F.4th 1000 (2023); United
States v. Taylor, 28 F.4th 929 (2022) (per curiam); Crandall, 25
F.4th 582; United States v. Loggins, 966 F.3d 891 (2020); 9th
Cir.: Roper, 72 F.4th 1097; Chen, 48 F.4th 1092; 10th Cir.:
United States v. Maumau, 993 F.3d 821 (2021); McGee, 992 F.3d
1035; D.C. Cir.: United States v. Wilson, 77 F.4th 837 (2023),
cert. denied, 144 S. Ct. 1111 (2024); Jenkins, 50 F.4th 1185.
20
dissenting). The Fifth Circuit has also issued at least
six decisions pointing in different directions on the
issue.10 There have been numerous dissenting or
concurring opinions across the circuits disagreeing
over the issue.11 And the Seventh Circuit has
acknowledged “serious arguments” that its previous
decisions were inconsistent with this “Court’s decisions [that] have repeatedly rejected . . . judicially
imposed categorical bars on what district courts may
consider at sentencing.” Williams, 65 F.4th at 348-49.
These dueling opinions have drawn many calls for
this Court’s review. The Seventh Circuit noted that,
although “[t]he Supreme Court has not weighed in on
th[e] disagreement,” “the issue is teed up” and “the
Court (we hope) will address it soon.” Id. Nearly half
of the en banc Sixth Circuit acknowledged that the
“entrenche[d] . . . circuit split” will not resolve “until
the Supreme Court takes [it] up.” McCall, 56 F.4th at
10 Compare Jean, 108 F.4th at 285-90, with Austin, 2025 WL
78706, at *1-3; United States v. McMaryion, 64 F.4th 257 (2023),
withdrawn and superseded by 2023 WL 4118015 (5th Cir. June
22, 2023); United States v. Martinez, 2024 WL 658952, at *1 (5th
Cir. Feb. 16, 2024) (per curiam); United States v. Cardenas, 2024
WL 615542, at *2-3 (5th Cir. Feb. 14, 2024) (per curiam); United
States v. Elam, 2023 WL 6518115, at *2 (5th Cir. Oct. 5, 2023)
(per curiam).
11 See, e.g., Jean, 108 F.4th at 291 (Smith, J., dissenting);
Jarvis, 999 F.3d at 446 (Clay, J., dissenting); Owens, 996 F.3d at
764 (Thapar, J., dissenting); Jenkins, 50 F.4th at 1208 (Ginsburg,
J., concurring in part, dissenting in part, and concurring in the
judgment); Maumau, 993 F.3d at 838 (Tymkovich, J., concurring); Taylor, 28 F.4th at 931 (Kelly, J., concurring) (“Had this
case been decided [before Crandall, 25 F.4th 582], I would have
voted to reverse and remand. In my view, sentence disparities
such as those created by amendments to § 924(c) are properly
considered as part of an individualized assessment of . . . extraordinary and compelling reasons . . . .”).
21
1070 n.4 (Moore, J., dissenting). And Judge Readler
recently commented that “the Supreme Court probably will, at some point, take these cases and resolve
the issue.” Oral Arg. at 6:28-6:35, United States v.
Bricker, No. 24-3286 (6th Cir. Oct. 31, 2024)12; see
id. at 59:09-59:11 (“I assume this issue is eventually
going to go the Supreme Court.”).
II. THE DECISION BELOW IS INCORRECT
The Third Circuit erroneously created a categorical
limit on a sentencing court’s discretion to consider
information—disparities created by changes in law—
that Congress itself never legislated to create.
District courts always have had “wide discretion in
the sources and types of evidence used” in sentencemodification proceedings.
Concepcion v. United
States, 597 U.S. 481, 486 (2022). They “historically
have exercised this broad discretion to consider all
relevant information,” including “intervening changes
of law,” “consistent with their responsibility” to consider “the whole person before them.” Id. at 491, 500.
“Such discretion is bounded only when Congress or the
Constitution expressly limits the type of information
a district court may consider in modifying a sentence.”
Id. at 491.
Accordingly, this Court has repeatedly rejected
“judicially imposed categorical bars on what district
courts may consider at sentencing.” Williams, 65
F.4th at 349 (collecting cases). And it has repeatedly
directed courts not to find such limits in “congressional silence.” Kimbrough, 552 U.S. at 103; see Dean
v. United States, 581 U.S. 62, 68-71 (2017); Rodriguez
12 See https://www.opn.ca6.uscourts.gov/internet/court_audio/
audio/10-31-2024%20-%20Thursday/24-3286%2024-3289%20245182%20USA%20v%20Jason%20Bricker%20et%20al.mp3.
22
v. United States, 480 U.S. 522, 524-26 (1987) (per
curiam). That is because “Congress is not shy about
placing such limits.” Concepcion, 597 U.S. at 491, 49495 (collecting examples of “express” limits).
The Third Circuit violated these principles by creating a categorical limit based primarily on implications
drawn from the First Step Act. Its limit has no basis
in the text of the compassionate-release statute, the
First Step Act, or any other statute. This Court should
therefore grant certiorari and reverse.
A. No Statutory Text Forbids Courts From
Considering Nonretroactive Changes In
Sentencing Law
1. Text. Since 1984, Congress has permitted
courts to reduce sentences when “extraordinary
and compelling reasons” justify relief. 18 U.S.C.
§ 3582(c)(1)(A)(i). At the time of enactment, “extraordinary” meant “[o]ut of the ordinary.” Extraordinary, Black’s Law Dictionary 527 (5th ed. 1979).
And “[e]xtraordinary circumstances” encompassed
“[e]xtenuating circumstances,” Extraordinary Circumstances, id., which in turn described circumstances
that call for “reduce[d] . . . punishment,” Extenuating
Circumstances, id. at 524.
“Compelling” meant
“calling for examination, scrutiny, consideration, or
thought.” Compelling, Webster’s Third New International Dictionary 463 (1981).
Nothing in this text precludes courts from considering changes in law. The words Congress chose are
“comprehensive and flexible.” Extraordinary, Black’s
Law Dictionary 527. And they can encompass a “combination of circumstances,” Extraordinary, Webster’s
Third New International Dictionary 807, particularly
where, as here, they modify a plural object like
“reasons.”
They do not, by themselves, impose
23
categorical limits: to the contrary, the “very nature of
‘extraordinary circumstances’ ” “makes it impossible
to anticipate and define every situation that might”
qualify. Kugler v. Helfant, 421 U.S. 117, 124 (1975).
Congress’s flexible language makes sense: “judges are
not soothsayers,” Jenkins, 50 F.4th at 1208 (Ginsburg,
J., concurring in part, dissenting in part, and concurring in the judgment), and “it is impossible to package
all ‘extraordinary and compelling’ circumstances into”
a finite set of “neat boxes,” United States v. Rodriguez,
451 F. Supp. 3d 392, 397-98 (E.D. Pa. 2020).
2. Context. At the same time, Congress showed
that it knew how to speak clearly when it sought to
set limits on information a court may consider. In
28 U.S.C. § 994(t), it directly addressed the meaning
of the phrase “extraordinary and compelling reasons”
and placed only one limit on that phrase: “[r]ehabilitation of the defendant alone” is insufficient.
Not only does § 994(t) show that Congress knew
how to speak clearly when it wanted to exclude topics
from consideration; it also underscores that courts
may consider a combination of circumstances. Even
when Congress expressly prohibited a consideration,
it chose not to do so categorically. Instead, it provided
only that “[r]ehabilitation . . . alone” does not suffice—
meaning it may be considered in conjunction with
other factors.
The Third Circuit fashioned a stricter limit than
Congress imposed when Congress spoke expressly.
There is no basis for doing so. Congress was clear
in its disdain for rehabilitation as a valid sentencing
consideration, see Tapia v. United States, 564 U.S.
319, 324-26 (2011)—far clearer than it was about
changes in law. Yet Congress still allowed courts
to consider rehabilitation alongside other factors.
24
It would be odd to conclude that Congress intended
to categorically exclude changes in law—without
ever mentioning them—when it did not do so for
rehabilitation.
3. History and Purpose.
Allowing district
courts to consider disparities created by law changes
as one factor among many also “fits seamlessly with
the history and purpose of the compassionate-release
statute.” Ruvalcaba, 26 F.4th at 26. Congress
enacted § 3582(c)(1)(A) to serve as a “safety valve”
when “the defendant’s circumstances are so changed
. . . that it would be inequitable to continue the
confinement.” S. Rep. No. 98-225, at 121, reprinted
in 1984 U.S.C.C.A.N. 3304. Congress contemplated
that those “changed circumstances” would include
“cases in which . . . extraordinary and compelling
circumstances justify a reduction of an unusually long
sentence.” Id. at 55, reprinted in 1984 U.S.C.C.A.N.
3238. Cf. Comprehensive Crime Control Act of 1983:
Hearings on S. 829 Before the Subcomm. on Crim. L.
of the S. Comm. on the Judiciary, 98th Cong. 95 (1983)
(statement of John M. Walker, Jr., Treasury Dep’t)
(prepared testimony that forthcoming compassionaterelease provision would allow reductions for “unjustifiably long sentences” in light of “a change in the
circumstances that originally justified imposition of
a particular sentence”).
This approach also tracks case law—before and
after the Sentencing Reform Act—recognizing that
unforeseeable developments creating sentence disparities can justify compassionate release. For example,
under a precursor to the compassionate-release statute, 18 U.S.C. § 4205(g) (1976), one court granted compassionate release because post-sentence legal developments caused a defendant to serve “a significantly
25
longer sentence” than his codefendants. United States
v. Diaco, 457 F. Supp. 371, 376 (D.N.J. 1978). Decades
later, this Court explained that the compassionaterelease statute likewise “provides a mechanism for
relief ” if a “district court’s failure to anticipate developments that take place after the first sentencing”
produces an “unfairness to the defendant.” Setser v.
United States, 566 U.S. 231, 242-43 (2012) (Scalia, J.)
(cleaned up).
Before and after the Sentencing Reform Act, this
Court has also stated—in the context of motions
raising untimely habeas issues under Federal Rule
of Civil Procedure 60(b)(6)—that the phrase “extraordinary circumstances” may encompass “change[s] in
governing law.” Polites v. United States, 364 U.S. 426,
433 (1960); see also Buck v. Davis, 580 U.S. 100, 123,
126 (2017) (post-judgment change in law constituted
an “extraordinary circumstance” under Rule 60(b)(6));
Kemp v. United States, 596 U.S. 528, 540 (2022)
(Sotomayor, J., concurring) (“settled precedents” establish that a “change in controlling law” can constitute
an “extraordinary circumstance[ ]”).
Finally, Congress enacted the compassionaterelease statute against the backdrop of a “longstanding tradition in American law” that courts in sentencemodification proceedings may “consider the ‘fullest
information possible,’ ” including “nonretroactive intervening changes of law.” Concepcion, 597 U.S. at 486,
493 (citation omitted). “That discretion . . . is bounded
only when Congress or the Constitution expressly
limits the type of information a district court may consider in modifying a sentence.” Id. at 491. Yet aside
from prohibiting “[r]ehabilitation . . . alone,” 28 U.S.C.
§ 994(t), Congress set no express limit on the phrase
“extraordinary and compelling.”
26
B. The Third Circuit’s Reasoning Lacks Merit
The Third Circuit invoked two sources of law to
justify the limit it imposed: the phrase “extraordinary
and compelling” and the “will of Congress,” as
discerned from prospectivity language in the 2018
First Step Act. App. 29a. Neither source supports the
Third Circuit’s limit.
1. The Third Circuit concluded that the First Step
Act’s changes “cannot be a basis for compassionate
release” because Congress’s “ordinary practice is
to apply new penalties” prospectively, and what is
“ordinary . . . cannot also be” “extraordinary.” App.
18a-19a. But that argument improperly isolates a
single factor in a multi-factor analysis.
The phrase “extraordinary and compelling reasons”
contemplates that a group of circumstances can,
together, take a case out of the ordinary—even if
individual factors are ordinary. For example, it is
ordinary to get old. And it is ordinary to get sick. But
age or health can combine with other factors (like
serving a lawful sentence) to create an extraordinary
and compelling reason to grant a sentence reduction.
The words “extraordinary and compelling” invite
courts to “ ‘assess interactions among a myriad of
factors’ as part of an ‘individualized consideration of a
defendant’s circumstances.’ ” Jenkins, 50 F.4th at 1208
(Ginsburg, J., concurring in part, dissenting in part,
and concurring in the judgment) (quoting Ruvalcaba,
26 F.4th at 27).
In context-specific inquiries like this one, it is a “persistent error” “to ask whether” a single circumstance
“by itself passes some threshold—to put evidence in
compartments and ask whether each compartment
suffices.” United States v. Vaughn, 62 F.4th 1071,
1072 (7th Cir. 2023). That sort of “divide-and-conquer
27
analysis” ignores that “the whole is often greater than
the sum of its parts,” “especially when the parts are
viewed in isolation.” District of Columbia v. Wesby,
583 U.S. 48, 60-61 (2018).
The Third Circuit committed a similar error here.
And its approach, if applied consistently, would destroy
settled bases for compassionate release. For example,
the Commission permits sentence reductions when an
inmate is 65 or older, has a serious age-related illness,
and has served 75% of a sentence—even though each
of those factors could be called “ordinary” in isolation.
U.S.S.G. § 1B1.13(b)(2) (Nov. 1, 2023). Under the
Third Circuit’s approach—isolating a factor and asking if it is ordinary in the abstract—this basis for relief
(and others) would be impermissible. See also id.
§ 1B1.13(b)(1) (terminal illness).
2. The Third Circuit also relied on the First Step
Act—which applied the law change Rutherford
invoked prospectively. But nothing in the First Step
Act mentions—let alone expressly limits—what
information a court may consider when deciding a
compassionate-release motion.
a. The First Step Act has two relevant nonretroactivity provisions: § 401(c) and § 403(b). Section
401(a) reduces certain drug-related mandatory
minimums, while § 403(a) eliminates the practice
of “stacking” § 924(c) charges. 132 Stat. 5220-22.
Sections 401(c) and 403(b) apply these changes “to any
offense that was committed before the date of enactment of this Act, if a sentence for the offense has not
been imposed as of such date of the enactment.” Id. at
5221-22. This text says nothing about compassionate
release.
b. There is no “implicit directive” in that “congressional silence.” Kimbrough, 552 U.S. at 103; see also
28
Jama v. Immigration & Customs Enf’t, 543 U.S. 335,
341 (2005) (“we do not lightly assume that Congress
has omitted from its adopted text requirements that it
nonetheless intends to apply”). Indeed, this Court has
repeatedly rejected similar efforts to read limitations
into sentencing statutes based on silent implications
from Congress. In Rodriguez v. United States, for
example, the Court rejected an argument that a newer
statute setting penalties for crimes committed on bail
impliedly limited an earlier statute—which granted
discretion to suspend sentences—because “[n]othing
in the language” of the newer law addressed the question. 480 U.S. at 524-25. In Dean v. United States,
the Court rejected a limit on general discretion to
consider information when fashioning sentences under
§ 3553(a)—based on supposed purposes of § 924(c)’s
mandatory-minimum requirements—because the
second statute said nothing about the first one. 581
U.S. at 68-71. And in Concepcion v. United States,
the Court rejected the argument that First Step Act
limited information a district court could consider at
resentencing—including “nonretroactive intervening
changes of law”—because “Congress is not shy about
placing such limits” “express[ly]” and had not done so
in the First Step Act. 597 U.S. at 493-94.
So too here. Congress knows how to limit the meaning of “extraordinary and compelling.” It did so in
§ 994(t), which says that “[r]ehabilitation . . . alone”
may not suffice. But the First Step Act “says nothing
about” what justifies relief under the compassionaterelease statute, “much less about what information
a court may consider” in a compassionate-release
analysis. Dean, 581 U.S. at 69. To infer from the
First Step Act “that district courts cannot consider
non-retroactive changes in sentencing law would be to
create a categorical bar against a particular factor,
29
which Congress itself has not done.” Chen, 48 F.4th
at 1098.
c. The Third Circuit also improperly relied on the
“will of ” the 2018 Congress in passing the First Step
Act—despite acknowledging that the 2018 Congress
did not change the operative text of § 3582(c)(1)(A)(i)
and thus left its meaning intact. App. 29a. Even
assuming that it is possible to discern the will of an
entire Congress, the intent of the 2018 Congress is
irrelevant here. What matters is the meaning of
“extraordinary and compelling” as it was enacted in
1984, not the unexpressed intent of the 2018 Congress
sitting decades later. See Bruesewitz v. Wyeth LLC,
562 U.S. 223, 242 (2011) (“[p]ost-enactment” statements are not “legitimate tool[s] of statutory interpretation”); Public Emps. Ret. Sys. of Ohio v. Betts, 492
U.S. 158, 168 (1989) (same for “interpretation[s] given
by one Congress . . . to an earlier statute”).
d. Finally, the Third Circuit’s ruling rests on a
false equivalency: it is not the case that considering
law changes (as one of several case-specific factors)
would override the First Step Act’s nonretroactivity
directives. There is a “salient difference between” “automatic” eligibility for “an entire class of sentences[,]
on the one hand,” and permitting courts to consider
law changes as one factor among many, on the other.
Chen, 48 F.4th at 1100 (cleaned up). “For example, if
§ 403(a)’s changes to § 924(c) stacked sentences had
been retroactive, every defendant that received a
stacked sentence would be automatically eligible for
resentencing under the new law.” Id. But “allowing
defendants to petition for compassionate release,
based in part on the sentencing disparities created by
§ 403(a), does not automatically make every defendant
who received a stacked sentence eligible.” Id.
30
At bottom, the Third Circuit’s ruling assumes that
§ 401(c) and § 403(b) of the First Step Act contain
words they do not have—imposing a silent limit on
the information courts adjudicating compassionaterelease motions may consider. But Congress did not
set such a limit in the First Step Act. And it is not a
court’s job to “elaborate unprovided-for exceptions to a
text” or “supply words . . . that have been omitted.”
Antonin Scalia & Bryan A. Garner, Reading Law 93
(2012).
III. THE QUESTION PRESENTED IS EXCEPTIONALLY IMPORTANT
As the court below acknowledged, this case presents
“a question of public importance” that “will . . .
affect[ ]” “many people in prison.” App. 24a. The
Sentencing Commission has estimated that more
than 6,000 people are serving sentences under schemes
that the First Step Act prospectively altered.13 In
fiscal year 2021 alone, courts granted 198 motions
highlighting stacked § 924(c) penalties or enhanced
drug penalties;14 and from fiscal year 2020 to fiscal
year 2024, courts granted 521 such motions.15 Hundreds more of these motions have been denied in the
same period.
13 See U.S. Sent’g Comm’n, Estimate of the Impact of Selected
Sections of S. 1014, The First Step Act Implementation Act of
2021, at 1 (Oct. 2021), https://perma.cc/8VC8-25A7.
14
See U.S. Sent’g Comm’n, Compassionate Release Data
Report Fiscal Years 2020 to 2022, Table 12 (Dec. 2022),
https://perma.cc/7Y7M-866C.
15 See id., Tables 10, 12, 14; U.S. Sent’g Comm’n, Compassionate Release Data Report Fiscal Year 2023, Table 10 (Mar. 2024),
https://perma.cc/C3SE-YQTC; U.S. Sent’g Comm’n, Compassion-
31
To be sure: not every defendant subject to a
changed penalty regime will obtain relief under
§ 3582(c)(1)(A)(i). Courts have discretion to deny
relief by deciding that a person’s individualized
circumstances are not extraordinary, notwithstanding
a law change, see, e.g., United States v. Moody, 115
F.4th 304, 312 (4th Cir. 2024), or that the § 3553(a)
factors disfavor relief, see, e.g., United States v.
D’Angelo, 110 F.4th 42, 53 (1st Cir. 2024). And under
the Sentencing Commission’s policy statement, defendants must clear several additional hurdles: they
must have served at least 10 years of their sentence;
show that they are serving an unusually long sentence; point to a gross disparity between the sentence
they received and the one they would be likely to
receive today; and establish that all of their individualized circumstances, together, warrant relief. See
U.S.S.G. § 1B1.13(b)(6) (Nov. 1, 2023).
But until the conflict is resolved, thousands of
prisoners are able to access life-changing relief under
a standard unavailable to thousands of others. See
also supra pp. 17-18. As the government recently represented in another case in which this Court granted
review, “a legal question that could affect over 100”
cases “each year” “is undoubtedly important” enough
for certiorari. U.S. Cert Reply 7, United States v.
Taylor, No. 20-1459 (U.S. June 7, 2021); see United
States v. Taylor, cert. granted, 141 S. Ct. 2882 (2021).
This case—which affects an order of magnitude more
cases—is at least as important.
ate Release Data Report Preliminary Fiscal Year 2024 Cumulative Data through 4th Quarter, Table 10 (Oct. 2024),
https://perma.cc/34HQ-BFTM.
32
IV. THIS CASE IS AN IDEAL VEHICLE FOR
RESOLVING THE QUESTION PRESENTED
The question was briefed and passed on below.
As the Third Circuit acknowledged, it formed the
sole basis for decision: “[T]he District Court denied
Rutherford’s motion, holding that Andrews foreclosed
his argument that the First Step Act could constitute
an extraordinary and compelling reason.” App. 14a.
The Third Circuit affirmed on the same purely legal
ground, concluding that “Andrews controls” and that,
under Andrews’ statutory interpretation, “the First
Step Act’s change to § 924(c) cannot be considered in
the analysis of whether extraordinary and compelling
circumstances make a prisoner eligible for compassionate release.” App. 36a. That interpretation is
incorrect, and it is cleanly presented here.
Nor do the § 3553(a) sentencing factors present an
“alternative ground for affirmance” because they were
“neither presented nor passed on below.” Ayestas v.
Davis, 584 U.S. 28, 47-48 (2018). The courts below did
not consider whether the § 3553(a) factors foreclose
relief, and the government made no such argument
on appeal. Instead, it argued that the discretionary
§ 3553(a) analysis was not necessary because “Rutherford does not get past the initial threshold” of
“set[ting] forth an extraordinary and compelling
circumstance.” U.S. C.A. Br. 38. The Third Circuit
agreed that the extraordinary-and-compelling standard presented a “threshold eligibility hurdle.” App.
6a.
A reversal clarifying that threshold question could
make all the difference for Rutherford. The government did not dispute below that Rutherford meets
(b)(6)’s requirements, nor could it: He has served
more than 19 years of a 42.5-year sentence the Third
33
Circuit has described as “unthinkabl[y]” long, and
there is a wide gulf between that sentence and the one
he would likely receive today.
That the Third Circuit addressed (b)(6)’s validity
rather than remand for the district court to do so
in the first instance also poses no barrier to review.
Appellate courts apply the law in effect when rendering a decision. See Henderson v. United States, 568
U.S. 266, 271 (2013). And in any event, the Third
Circuit’s holding—and the question presented—turn
on the meaning of § 3582(c)(1)’s text, which remains
the same after (b)(6). See App. 33a (holding that “the
[Sentencing] Commission” “plainly ‘may not replace’ ”
the Third Circuit’s previous, “controlling judicial
interpretation of an unambiguous statute”).
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
DAVID C. FREDERICK
JUSTIN B. BERG
Counsel of Record
ALEX P. TREIGER
DEREK C. REINBOLD
KELLOGG, HANSEN, TODD,
FIGEL & FREDERICK, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036
(202) 326-7900
(jberg@kellogghansen.com)
January 30, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.