Amicus Curiae Brief — Daniel Rutherford, Petitioner v. United States

Nos. 24-820, 24-860

In the

Supreme Court of the United States

DANIEL RUTHERFORD,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

JOHNNIE MARKEL CARTER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writs of Certiorari to the

United States Court of A ppeals for the Third Circuit

BRIEF OF FAMM AND THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS AS AMICI CURIAE IN

SUPPORT OF PETITIONERS

Shanna Rifkin

General Counsel

FAMM

1100 13th Street, NW,

Suite 201

Washington, DC 20005

Jarrod L. Schaeffer

Counsel of Record

A bell Eskew Landau LLP

256 Fifth Avenue, 5th Floor

New York, NY 10001

(646) 970-7339

jschaeffer@aellaw.com

Joshua L. Dratel

Co-chair, Amicus Committee

National A ssociation of

Criminal Defense Lawyers

Dratel & Lewis

29 Broadway, Suite 1412

New York, NY 10006

Counsel for Amici Curiae

131379

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . iii

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I.

The Impact of Extraordinary Penalties

Under Section 924(c) . . . . . . . . . . . . . . . . . . . . . . . 3

II. T h e D e c i s i o n s B e l o w R e s u r r e c t

Unfairness in Federal Sentencing . . . . . . . . . . . . 7

A. Congress Passed the First Step Act

to Remedy Grave Injustices . . . . . . . . . . . . . 7

B. C ou r t s S u b s e q ue nt ly R e a c he d

Differing Conclusions About the

Availability of Relief . . . . . . . . . . . . . . . . . . .10

C. T he Com m i ssion Appropr i at ely

Resolved the Confusion by Promulgating U.S.S.G. §1B1.13(b)(6) . . . . . . . . . . . 12

D. I nva l id at i ng §1B1.13 ( b) (6) H a s

Da ma g i ng Leg a l a nd P r a c t ic a l

Consequences . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

Table of Contents

Page

III. Section 1B1.13(b)(6) Is a Valid Exercise

of the Commission’s Express Statutory

Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

A. The Commission Properly Exercised

its Statutory Authority . . . . . . . . . . . . . . . . 18

1.

Statutory Text and Structure

Supports Petitioners . . . . . . . . . . . . . . 18

2. Pa st P ra ct ice Con f i r ms t he

Commission’s Authority . . . . . . . . . . . . 21

B. Section 1B1.13(b)(6) Imposes Stringent

Requirements and Affords Relief Only

in Narrow Circumstances . . . . . . . . . . . . . . 23

C. Nothing in Section 1B1.13(b)(6) Makes

Changes in the Law Retroactive . . . . . . . . 28

IV. Reversal is Necessary to Avoid Unfairness

and Injustice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

iii

TABLE OF CITED AUTHORITIES

Page

CASES:

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Bifulco v. United States,

447 U.S. 381 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Braxton v. United States,

500 U.S. 344 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Cannon v. Univ. of Chicago,

441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Chevron U.S.A. Inc. v. Echazabal,

536 U.S. 73 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Concepcion v. United States,

597 U.S. 481 (2022) . . . . . . . . . . . . . . . 17, 19, 23, 28, 30

Deal v. United States,

508 U.S. 129 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Dean v. United States,

581 U.S. 62 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

iv

Cited Authorities

Page

Esteras v. United States,

606 U.S. —, 145 S. Ct. 2031 (2025) . . . . . . 8, 19, 20, 28

Harrison v. Vose,

50 U.S. (9 How.) 372 (1850) . . . . . . . . . . . . . . . . . . 31, 32

Hewitt v. United States,

605 U.S. —, 145 S. Ct. 2165 (2025) . . . . . . . . . . . . 4, 27

Kimbrough v. United States,

552 U.S. 85 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . 18, 31

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Pulsifier v. United States,

601 U.S. 124 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Setser v. United States,

566 U.S. 231 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

v

Cited Authorities

Page

United States v. Andrews,

12 F.4th 255 (3d Cir. 2021) . . . . . . . . . . . . . . . 10, 11, 25

United States v. Austin,

125 F.4th 688 (5th Cir. 2025) . . . . . . . . . . . . . . . . 11, 14

United States v. Bass,

404 U.S. 336 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Batchelder,

442 U.S. 114 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Brooker,

976 F.3d 228 (2d Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Chen,

48 F.4th 1092 (9th Cir. 2022) . . . . . . . . . . . . . . . . . . . 11

United States v. Crandall,

25 F.4th 582 (8th Cir. 2022) . . . . . . . . . . . . . . . . . . . . 11

United States v. Davis,

588 U.S. 445 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Dresbach,

806 F. Supp. 2d 1039 (E.D. Mich. 2011) . . . . . . . . . . 21

United States v. Escajeda,

58 F.4th 184 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 11

vi

Cited Authorities

Page

United States v. Ezell,

417 F. Supp. 2d 667 (E.D. Pa. 2006), aff’d,

265 F. App’x 70 (3d Cir. 2008) . . . . . . . . . . . . . . . . . 3, 4

United States v. Ezell,

518 F. Supp. 3d 851 (E.D. Pa. 2021) . . . . . . . . . . . . . 7, 9

United States v. Jarvis,

999 F.3d 442 (6th Cir. 2021) . . . . . . . . . . . . . . . . . 25, 26

United States v. Jean,

108 F.4th 275 (5th Cir. 2024) . . . . . . . . . . . . . . . . . . . 13

United States v. Jenkins,

50 F.4th 1185 (D.C. Cir. 2022) . . . . . . . . . . . . . . . . . . 11

United States v. Kozminski,

487 U.S. 931 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

United States v. Looney,

532 F.3d 392 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 27

United States v. McCall,

56 F.4th 1048 (6th Cir. 2022), cert. denied,

143 S. Ct. 2506 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 11

United States v. McCoy,

981 F.3d 271 (4th Cir. 2020) . . . . . . . . . . . 10, 11, 14, 28

United States v. McGee,

992 F.3d 1035 (10th Cir. 2021) . . . . . . . . . . . . . . . . . . 11

vii

Cited Authorities

Page

United States v. Moore,

115 F.3d 1348 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . 16

United States v. Moore, et al.,

25 F.3d 563 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . 16

United States v. Moore,

No. 22-1980, 2022 WL 17982907

(7th Cir. Dec. 29, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 16

United States v. Rivera-Ruperto,

884 F.3d 25 (1st Cir. 2018) . . . . . . . . . . . . . . . . . . . . . 27

United States v. Ruvalcaba,

26 F.4th 14 (1st Cir. 2022) . . . . . . . . . . . . . . . . . . . 11, 26

United States v. Santana-Cabrera,

464 F. App’x 537 (7th Cir. 2012) . . . . . . . . . . . . . . 14, 15

United States v. Santana-Cabrera,

No. 09-CR-136, 2021 WL 3206507 (S.D. Ind.

July 27, 2021), aff’d, No. 22-2056, 2023 WL

2674363 (7th Cir. Mar. 29, 2023) . . . . . . . . . . . . . 14, 15

United States v. Thacker,

4 F.4th 569 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . 10, 25

United States v. Ware,

720 F. Supp. 3d 1351 (N.D. Ga. 2024) . . . . . . . . . . . . 28

viii

Cited Authorities

Page

United States v. Washington,

301 F. Supp. 2d 1306 (M.D. Ala.), aff’d,

122 F. App’x 986 (11th Cir. 2004) . . . . . . . . . . . . . . 4, 17

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) . . . . . . . . . . . . . . . . . . . . 31

United States v. Young,

960 F. Supp. 2d 881 (N.D. Iowa 2013) . . . . . . . . . . . . 27

Whitman v. Am. Trucking Associations,

531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Wooden v. United States,

595 U.S. 360 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

STATUTES AND OTHER AUTHORITIES:

18 U.S.C. § 924(c) . . . . . . . . . . . . . . . 3-10, 14-16, 24, 26-28

18 U.S.C. § 924(c)(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

18 U.S.C. § 3553(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

18 U.S.C. § 3582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

18 U.S.C. § 3582(c)(1)(A) . . . 3, 8-13, 15, 17-21, 24-25, 28, 30-31

18 U.S.C. § 3582(c)(1)(A)(i) . . . . . . . . . . . . . . . . . . . . . . . . 17

18 U.S.C. § 4205(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ix

Cited Authorities

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28 U.S.C. § 991(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

28 U.S.C. § 991(b)(1)(B)-(C) . . . . . . . . . . . . . . . . . . . . . . . 24

28 U.S.C. § 994(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 994(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 994(a)(o) . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20

28 U.S.C. § 994(t) . . . . . . . . . . . . . 12, 16, 17, 19, 20, 22, 23

28 U.S.C. § 995(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. § 995(a)(9)-(10) . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. § 995(a)(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. § 995(a)(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

28 U.S.C. § 995(a)(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

88 Fed. Reg. 28,254 (May 3, 2023) . . . . . . . . . . . 10, 12, 18

First Step Act, Pub. L. No. 115-391, 132 Stat.

5194–5249 (eff. Dec. 21, 2018) . . . . . . . . . . . . . . . . . 4, 9

Sentencing Reform Act of 1984, Pub. L. 98-473,

title II, § 211 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

x

Cited Authorities

Page

2014 Drug Guidelines Amendment Retroactivity

Data Repor t, U.S. S en t ’g C omm ’ n (May

2021), tbl. 9, available at https://www.ussc.

gov/sites/default /f iles/pdf /research-andpublications/retroactivity-analyses/drugg u idel i nes -a mend ment / 2 0 210 511-Dr ugRetro-Analysis.pdf (accessed Aug. 13, 2025) . . . . . .25

Rachel E. Barkow, Categorical Mistakes: The

Flawed Framework of the Armed Career

Criminal Act and Mandatory Minimum

Sentencing, 133 Harv. L. Rev. 200 (2019) . . . . . . . . . 6

Compassionate Release/Reduction in Sentence:

Procedures for Implementation of 18 U.S.C.

§§ 3582 and 4205(g), Program Statement 5050.50,

U.S. Bureau of Prisons (Jan. 17, 2019), available at

https://www.bop.gov/policy/progstat/5050_050_

EN.pdf (accessed Aug. 13, 2025) . . . . . . . . . . . . . . . . 22

Compassionate Release Data Repor t, U.S.

Sent ’g Comm’n (July 2025), tbl. 10, available

at https://www.ussc.gov/ sites/default/files/

pd f /resea rch-a nd-publ ic at ions /federa ls ent enc i ng - st at i st ic s / c omp a s s ion at e release/FY25Q3-Compassionate-Release.

pdf (accessed Aug. 13, 2025) . . . . . . . . . . . . . . . . . . . 25

xi

Cited Authorities

Page

Final Crack Retroactivity Data Report, Fair

Sentencing Act, U.S. Sent’g Comm’n (Dec. 2014),

tbl. 9, available at https://www.ussc.gov/ sites/

default/files/pdf/research-and-publications/

retroactivity-analyses/fair-sentencing-act/

Final_USSC_Crack_Retro_Data_Report_

FSA.pdf (accessed Aug. 13, 2025) . . . . . . . . . . . . . . . 25

Hon. Anthony M. Kennedy, Speech at the American

Bar Association Annual Meeting (Aug. 9,

2003), available at https://www.supremecourt.

gov/publicinfo/speeches/viewspeech/sp_0809-03 (accessed Aug. 13, 2025) . . . . . . . . . . . . . . . . . 29

Mandatory Minimum Penalties for Firearms

Offenses in the Federal Criminal Justice

System, U.S. S ent ’g C omm ’ n (Mar. 2018),

available at https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/researchpubl ic at ions / 2 018 / 2 018 0 315 _ F i re a r ms Mand-Min.pdf (accessed Aug. 13, 2025) . . . . . . . . . 5, 6

Preliminar y Crack Cocaine Data Repor t,

U.S. S en t ’g C omm ’ n (June 2011), tbl. 9,

available at https://w w w.ussc.gov/sites/

default/files/pdf/research-and-publications/

federal-sentencing-statistics/2007-crackc o c a i n e - a m e n d m e nt / 2 0110 6 0 0 _US S C _

C r a c k _C o c a i ne _ R et r o a c t i v it y _ Dat a _

Report.pdf (accessed Aug. 13, 2025) . . . . . . . . . . . . . 25

xii

Cited Authorities

Page

S. Rep. No. 98-225 (1983) . . . . . . . . . . . . . . . . . . . . . . 18, 20

Special Report to the Congress: Mandatory

Minimum Penalties in the Federal Criminal

Justice System, U.S. Sent’g Comm’n (Aug. 1991) . . . 5

The Federal Bureau of Prisons’ Compassionate

Release Program, U.S. Dep’t of Just. Office

of the Inspector General (2013), available

at https://oig.justice.gov/reports/2013/e1306.

pdf (accessed Aug. 13, 2025) . . . . . . . . . . . . . . . . . . . . 8

Michael Tonry, The Mostly Unintended Effects

of Mandatory Penalties: Two Centuries of

Consistent Findings, 38 Crime & Just. 65

(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

U.S.S.G. § 1B1.13 . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21, 22

U.S.S.G. § 1B1.13(b)(6) . . . . . . . . . . . 3, 11-13, 15-18, 22-30

U.S.S.G. § 1B1.13(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

1

INTEREST OF AMICI CURIAE1

FA MM is a nationa l, nonprof it , nonpa r tisan

organization whose primary mission is to promote

fair and rational sentencing policies, and to challenge

mandatory sentencing laws and their ensuing inflexible

and excessive penalties. Founded in 1991 as Families

Against Mandatory Minimums, FAMM currently has

75,000 members nationwide. It pursues a broad mission

of creating a more fair and effective justice system that

respects American values of individual accountability and

dignity while keeping communities safe. By mobilizing

incarcerated persons and their families adversely affected

by unjust sentences, FAMM illuminates the human face of

sentencing as it advocates for state and federal sentencing

reform.

FAMM advances its charitable purposes in part

through education of the general public and through

selected amicus filings in important cases. Together with

the National Association of Criminal Defense Lawyers

(“NACDL”), FAMM also recruits and trains pro bono

attorneys to file sentence reduction motions for those who

qualify for relief.

The NACDL is a nonprofit bar association that works on

behalf of criminal defense attorneys to advance the proper,

efficient, and fair administration of criminal justice. Its

members often represent incarcerated persons seeking

1. Pursuant to Supreme Court Rule 37.6, amici state that

no counsel for a party authored this brief in whole or in part, and

that no person or entity other than amici, their members, or their

counsel made a monetary contribution to fund its preparation and

submission.

2

sentencing relief and, along with FAMM, the NADCL

secures pro bono attorneys to file sentence reduction

motions nationwide. Through those representations,

litigation, and scholarship, the NACDL’s members have

seen the severe harms that flow from excessive sentences.

The NACDL’s members frequently contribute amicus

briefs in this Court and in federal courts across the

country regarding the proper interpretation and impact

of criminal statutes, including the Sentencing Reform Act

of 1984 (“SRA”), Pub. L. 98-473, title II, § 211 (1984), other

sentencing provisions, and the U.S. Sentencing Guidelines.

Courts routinely cite and rely on those briefs to resolve

important legal issues in American criminal law.

In recognition of the destructive toll that excessive

sentences exact on FAMM’s members in prison, their

loved ones, and their communities, FAMM and the

NACDL submit this brief to ensure proper application

of the SRA.

SUMMARY OF ARGUMENT

For decades, courts handed out mandatory minimum

sentences while judges lamented being forced to impose

punishments that spanned generations. Congress sought

to correct that travesty through reforms reducing some

of the harshest penalties and, for the first time, allowing

incarcerated people to seek sentence reductions. In

the ensuing years, however, courts divided on whether

movants could invoke changes in the law as part of the

rationale for reducing a sentence. That left incarcerated

people at the mercy of their zip code, with motions granted

in some circuits and summarily rejected in others.

3

Ent er the U. S. Sent encing Commission (the

“Commission”), which provided a carefully considered

solution: courts may consider changes in overly punitive

laws, but only as one of several factors when evaluating

whether an “extraordinary and compelling reason” under

18 U.S.C. § 3582(c)(1)(A) exists. Exercising its express

statutory authority, the Commission crafted U.S.S.G.

§1B1.13(b)(6), a narrow and balanced provision addressing

rare but real cases in which people are serving unusually

long sentences that are grossly inconsistent with modern

standards of fairness and justice.

Ignoring that the Commission did precisely what

Congress had directed, the decisions below disregarded the

Commission’s authority, elevated imagined congressional

prerogatives over statutory text, and stripped judges

of important sentencing discretion. They also condemn

people across the country serving extreme and unjust

sentences to life—and maybe death—in prison. Reversal

is required.

ARGUMENT

I.

The Impact of Extraordinary Penalties Under

Section 924(c)

When Jamal Ezell was 22 years old, he participated

in several robberies. In 2005, he was found guilty on six

counts charged under 18 U.S.C. § 924(c) and the court

had no choice but to impose a sentence of 132 years’

imprisonment on those counts. See United States v. Ezell,

417 F. Supp. 2d 667, 671 (E.D. Pa. 2006), aff’d, 265 F. App’x

70 (3d Cir. 2008). In so doing, the court expressed regret

regarding the “unduly harsh” punishment it was obliged

4

to inflict. Id. As the judge acknowledged, “sentencing Mr.

Ezell to prison for longer than the remainder of his life

[wa]s far in excess of what is required to accomplish all

of the goals of sentencing.” Id.

A few years earlier, another 22-year-old, Marnail

Washington, was sentenced to imprisonment for 481

months—over 40 years—primarily because of two § 924(c)

convictions. United States v. Washington, 301 F. Supp. 2d

1306, 1306 (M.D. Ala.), aff’d, 122 F. App’x 986 (11th Cir.

2004). Prior to that, Mr. Washington “had never been

convicted of or charged with any crime.” Id. at 1307. As the

court observed, the sentence meant that Mr. Washington

“w[ould] be in prison until he is in his late 50s” provided

“he g[ot] time off for good conduct,” and until 62 “if he

serves the entire sentence.” Id. at 1308. The judge decried

that punishment as “shockingly harsh given the nature of

his offenses and his lack of criminal history,” calling it “the

worst and most unconscionable sentence the [judge] ha[d]

given in his 23 years on the federal bench.” Id. at 1309.

Such sentiments were shared by other judges facing

similar circumstances. See, e.g., Hewitt v. United States,

605 U.S. —, 145 S. Ct. 2165, 2174–75 (2025) (Jackson, J.).

But “[b]efore the First Step Act was enacted in 2018,

federal judges were required to sentence certain first-time

offenders convicted of violating 18 U.S.C. § 924(c) . . . to

‘stacked’ 25-year periods of incarceration.” Id. at 2168;

see also First Step Act (“FSA”), Pub. L. No. 115-391, 132

Stat. 5194–5249 (eff. Dec. 21, 2018). “Under th[e] ‘stacking’

interpretation of § 924(c)’s recidivism enhancement,

sentences for § 924(c) offenses ballooned rapidly to span

decades or even centuries.” Hewitt, 145 S. Ct. at 2169.

5

Sentences pursuant to § 924(c) were unusually harsh

and unevenly imposed. In the Commission’s first report

on such penalties, it noted that “[d]espite the expectation

that mandatory minimum sentences would be applied to all

cases that meet the statutory criteria of eligibility,” instead

a “lack of uniform application create[d] unwarranted

disparity in sentencing . . . .” Special Report to the

Congress: Mandatory Minimum Penalties in the Federal

Criminal Justice System (“1991 Rep.”), U.S. Sent ’g

Comm’n (Aug. 1991), at ii, available at https://www.ussc.

gov/sites/default/files/pdf/news/congressional-testimonyand-reports/mandatory-minimum-penalties/1991_

Mand_Min_Report.pdf (accessed Aug. 13, 2025). Worse,

“[t]he disparate application of mandatory minimum

sentences . . . appear[ed] to be related to the race of the

defendant, where whites are more likely than non-whites to

be sentenced below the applicable mandatory minimum,”

as well as to jurisdictional differences. Id.; see also id. at

53. Nor were such sentences primarily affecting repeat

offenders, as “[d]efendants with mandatory minimum

convictions were no more likely than the federal population

as a whole to have previous criminal behavior known to

the court.” Id. at 50.

Similar findings persisted in later assessments.

During fiscal year 2016, “[o]ffenders charged with and

convicted of multiple counts under [§] 924(c) received

exceptionally long sentences as a result of the statutory

requirement that the sentence for each count be served

consecutively.” Mandatory Minimum Penalties for

Firearms Offenses in the Federal Criminal Justice

System, U.S. Sent ’g Comm’n (Mar. 2018), at 4, available

at https://www.ussc.gov/sites/default/files/pdf/researchand-publications/research-publications/2018/20180315_

6

Firearms-Mand-Min.pdf (accessed Aug. 13, 2025). And

“Black offenders were convicted of a firearms offense

carrying a mandatory minimum more often than any

other racial group”—an impact “even more pronounced

for offenders convicted either of multiple counts under

[§] 924(c) or offenses carrying a mandatory minimum

penalty under the Armed Career Criminal Act”—while

also “generally receiv[ing] longer average sentences for

firearms offenses carrying a mandatory minimum penalty

than any other racial group.” Id. at 6.

Those data and courts’ concerns are echoed across

years of legal scholarship. Scholars also have pointed

out that, in enacting mandatory minimums, “Congress

erroneously assumed that longer sentences and harsh

collateral consequences would produce better safety

outcomes, when in fact these policies often undermine

public safety.” Rachel E. Barkow, Categorical Mistakes:

The Flawed Framework of the Armed Career Criminal

Act and Mandatory Minimum Sentencing, 133 H arv.

L. R ev. 200, 201 (2019); accord Michael Tonry, The

Mostly Unintended Effects of Mandatory Penalties: Two

Centuries of Consistent Findings, 38 Crime & Just. 65,

95 (2009) (“No individual evaluation has demonstrated

crime reduction effects attributable to enactment or

implementation of a mandatory minimum sentence law.”).

In sum, ample evidence demonstrates that § 924(c)’s

ma ndat or y m i n i mu m pena lt ies were especi a l ly

punitive, resulted in uniquely severe sentences, have

disproportionately impacted certain communities, and

did not make the public safer.

7

II. The Decisions Below Resurrect Unfairness in

Federal Sentencing

Before the FSA, mandatory consecutive sentences

under § 924(c) yielded prison terms functionally equivalent

to life sentences even for first-time offenders, fueling

bipartisan concern about unjust outcomes. Congress

passed the FSA to address some of those disparities and

curb “stacked” sentences. At the same time, Congress

altered the procedure for seeking a reduced sentence

by allowing incarcerated people to make motions that

had long been the exclusive province of the U.S. Bureau

of Prisons (“BOP”). The Commission then clarified the

criteria for seeking such relief. The decisions below

improperly overrode the Commission’s statutory authority,

sowing renewed confusion and blunting overdue efforts to

address unjust sentences.

A.

Congress Passed the First Step Act to Remedy

Grave Injustices

Despite having “no reason to believe that he would

be released from prison during his lifetime,” Mr. Ezell

established a stellar track record while serving his

sentence. United States v. Ezell, 518 F. Supp. 3d 851,

860 (E.D. Pa. 2021). He completed dozens of courses and

more than 700 hours of educational programs, including

courses on anger management and empathy for victims.

Id. During that time, Mr. Ezell also received numerous

certificates and honors reflecting his rehabilitation. See

id. Almost 20 years later—at the age of 41—he posed no

danger to society and no longer resembled the young man

sentenced two decades earlier. See id.

8

Federal law, however, denied Mr. Ezell any opportunity

to seek a modified sentence from a court reflecting the

man he had become during his extended time in prison.

Before the FSA was enacted, the SRA authorized judges

to reduce sentences pursuant to § 3582(c)(1)(A) only upon

motion of BOP’s Director. See 18 U.S.C. § 3582(c)(1)(A)

(2017); United States v. Brooker, 976 F.3d 228, 231 (2d

Cir. 2020) (observing that the statute “gave BOP exclusive

power over all avenues of compassionate release”).

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

Brooker, 976 F.3d at 231. Indeed, a 2013 report by the U.S.

Department of Justice’s Inspector General found that, on

average, only 24 people were released each year pursuant

to § 3582(c)(1)(A) motions brought by BOP. See id.; see also

The Federal Bureau of Prisons’ Compassionate Release

Program (“OIG Rep.”), U.S. Dep ’t of Just. Office of

the Inspector General (2013), at 19, available at https://

oig.justice.gov/reports/2013/e1306.pdf (accessed Aug.

13, 2025) (“[O]ur review confirmed that the BOP did not

approve, from 2006 to 2011, any non-medical requests for

compassionate release despite its legal authority to do

so.”). The combination of § 924(c)’s overly harsh penalties

and BOP’s stranglehold on sentence reduction motions

thus deprived courts of any chance to grapple with “the

questions at the core of any system of criminal justice,”

which ask what sentence “the defendant deserve[s],”

“will deter criminal conduct in the future,” “will protect

the public,” and will “most likely to help the defendant

rehabilitate for transition back into society.” Esteras v.

United States, 606 U.S. —, 145 S. Ct. 2031, 2038 (2025).

In 2018, Congress enacted the FSA and, among other

things, amended various penalty provisions, reduced

certain mandatory minimum sentences, and eliminated

9

BOP’s monopoly on § 3582(c)(1)(A) motions. See 132 Stat.

5194–5249. With respect to stacked sentences, Congress

also amended § 924(c)(1)(C) to mandate that the 25year mandatory consecutive sentence for a “second or

subsequent count of conviction” could be imposed only once

a “prior conviction under [§ 924(c)(1)] has become final,” and

not in the same case in which the first § 924(c)(1) conviction

was obtained. Id. at 5221–22. Congress expressly made

that amendment applicable to any offense committed

before the FSA’s enactment for which a sentence had not

yet been imposed. Id. at 5222.

After the FSA became effective, Mr. Ezell sought

and obtained a sentence reduction. See Ezell, 518 F.

Supp. 3d at 853. In granting his motion, the district court

recognized that today Mr. Ezell would face 30 years—not

132 years—in prison had he been sentenced after the

FSA’s enactment. See id. at 857. Finding that Mr. Ezell’s

original sentence was “indefensibly harsh” and accounting

for “other factors related to [his] rehabilitation,” the court

concluded that Mr. Ezell had shown extraordinary and

compelling reasons warranting a sentence reduction.

See id. at 856–57. Turning then to the sentencing factors

under 18 U.S.C. § 3553(a), the district court commended

Mr. Ezell for his efforts while imprisoned, found that he

was no longer a danger to society, and reduced his sentence

to time served. See id. at 859–61. The government did not

appeal.

Mr. Ezell spent his freedom with his family—

driving his nieces and nephews to school in the morning,

advocating for sentencing reform, and working in trucking

and construction. He held that family together through

grief when his mother was murdered a year after he was

10

released from prison. Mr. Ezell sadly passed away only

a few years after his release, thankfully surrounded by

his loved ones. If his sentence reduction motion had been

decided a mere six months later, after the Third Circuit’s

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

2021), he might have died in prison. If the decisions below

stand, others will.

B. Courts Subsequently Reached Differing

Conclusions About the Availability of Relief

Not all movants were as fortunate as Mr. Ezell.

Because the Commission lacked a quorum until 2022, it

was unable to update the policy statement applicable to

§ 3582(c)(1)(A) motions following the FSA’s passage. See 88

Fed. Reg. 28,254, 28,256 (May 3, 2023). Absent guidance

from the Commission, courts differed on whether legal

changes, including those stemming from the FSA, could

be considered when determining whether a movant had

shown the “extraordinary and compelling reasons” that

§ 3582(c)(1)(A) required. Compare, e.g., United States

v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020) (“[T]he

district courts permissibly treated as ‘extraordinary and

compelling reasons’ for compassionate release the severity

of the defendants’ § 924(c) sentences and the extent of the

disparity between the defendants’ sentences and those

provided for under the First Step Act.”) with United

States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021) (“[T]he

discretionary authority conferred by § 3582(c)(1)(A) . . .

cannot be used to effect a sentencing reduction at odds

with Congress’s express determination embodied in

§ 403(b) of the First Step Act that the amendment to

§ 924(c)’s sentencing structure apply only prospectively.”).

11

Before §1B1.13(b)(6), four circuits allowed courts to

consider, along with other factors, legal changes as part

of the individualized assessment that §§ 3582(c)(1)(A) and

3553(a) require. See United States v. Chen, 48 F.4th 1092,

1095–98 (9th Cir. 2022); United States v. Ruvalcaba, 26

F.4th 14, 25 (1st Cir. 2022); United States v. McGee, 992

F.3d 1035, 1047 (10th Cir. 2021); McCoy, 981 F.3d at 286.

Conversely, without guidance from the Commission, five

circuits had reached a different conclusion. See United

States v. McCall, 56 F.4th 1048, 1065–66 (6th Cir. 2022) (en

banc), cert. denied, 143 S. Ct. 2506 (2023); United States

v. Jenkins, 50 F.4th 1185, 1198–99 (D.C. Cir. 2022); United

States v. Crandall, 25 F.4th 582, 585 (8th Cir. 2022);

Andrews, 12 F.4th at 260–61; Thacker, 4 F.4th at 573–74. 2

The result was a cruel jurisdictional roulette for

movants seeking § 3582(c)(1)(A) relief. Motions necessarily

denied in one jurisdiction might well be granted in another,

as some circuits declared off-limits considerations that

other circuits properly allowed judges to weigh. The

divide also undermined the effectiveness of the Sentencing

Guidelines, which were intended to foster uniformity

and minimize unwarranted disparities irrespective of

geography.

2. The Fifth Circuit later joined this group based on a prior

decision that pre-dated §1B1.13(b)(6). See United States v. Austin,

125 F.4th 688, 692 (5th Cir. 2025) (citing United States v. Escajeda,

58 F.4th 184 (5th Cir. 2023)).

12

C.

The Commission Appropriately Resolved

the Confusion by Promulgating U.S.S.G.

§1B1.13(b)(6)

In 2023, the Commission was back to full strength.

As part of its duty to review and amend sentencing

guidelines and policies, it promptly sought to resolve

the circuit split with a carefully reasoned and measured

approach. Exercising its statutory authority to amend

§1B1.13 and add subsection (b)(6), the Commission

generally “agree[d] with the circuits that authorize a

district court to consider non-retroactive changes in

the law as extraordinary and compelling circumstances

warranting a sentence reduction,” but “adopt[ed] a

tailored approach that narrowly limit[ed] that principle

in multiple ways.” 88 Fed. Reg. at 28,258. Section 1B1.13

(b)(6) thus established consistent standards for § 3582(c)

(1)(A) motions as Congress had expressly authorized the

Commission to do. See 28 U.S.C. § 994(t) (directing the

Commission to “promulgat[e] general policy statements”

for sentence modifications that “describe what should

be considered extraordinary and compelling reasons for

sentence reduction, including the criteria to be applied

and a list of specific examples”).

The United States previously had commended

precisely that course, arguing to this Court that “although

courts of appeals have reached different conclusions on

the issue, the . . . Commission could promulgate a new

policy statement” resolving the dispute. Thacker v. United

States, No. 21-877, U.S. Br. in Opp. 2 (Feb. 14, 2022). It

had even urged deference to “[t]he particularized and

express congressional preference for Commission-based

decisionmaking on the specific issue of what should be

13

considered extraordinary and compelling reasons,” Tomes

v. United States, No. 21-5104, U.S. Br. in Opp. 23 (Nov.

29, 2021), insisting that “[n]obody disputes . . . that the

Commission has the power—indeed, the statutory duty—

to promulgate a policy statement that applies to prisonerfiled motions, or that it could resolve this particular issue.”

Jarvis v. United States, No. 21-568, U.S. Br. in Opp. 17

(Dec. 8, 2021). 3

D.

Invalidating §1B1.13(b)(6) Has Damaging

Legal and Practical Consequences

Dissatisfied with the policy statement ultimately

promulgated by the Commission, the United States

began asserting—contrary to its prior assurances to this

Court—that the Commission’s resolution of the circuit

split had exceeded its broad statutory authority to describe

what should be considered extraordinary and compelling

reasons under § 3582(c)(1)(A). See United States v. Jean,

108 F.4th 275, 290 (5th Cir. 2024) (“Now, the Sentencing

Commission has resolved the split with a reasoned,

middle-ground approach, but that is not good enough for

the United States. [ . . . ] Around the country, the DOJ

is challenging grants of compassionate release pursuant

to §1B1.13(b)(6) on the basis that its enactment was an

overstep of the Sentencing Commission’s extremely broad

3. The United States repeated those arguments in a number

of cases before this Court. See, e.g., Williams v. United States,

No. 21-767, U.S. Br. in Opp. 2 (Jan. 24, 2022); Sutton v. United

States, No. 21-6010, U.S. Br. in Opp. 1–2 (Dec. 20, 2021); Corona

v. United States, No. 21-5671, U.S. Br. in Opp. 1–2 (Dec. 15, 2021);

Watford v. United States, No. 21-551, U.S. Br. in Opp. 2 (Dec. 15,

2021); Gashe v. United States, No. 20-8284, U.S. Br. in Opp. 13,

17–24 (Nov. 12, 2021).

14

statutory bounds.”).4 Adopting that view, the decisions

below—and others like them—categorically barred

courts from considering, even as one factor among many,

the FSA’s changes to the law when evaluating sentence

reduction motions. Such decisions upend uniformity in

federal sentencing and have profound implications for

incarcerated people across the country.

Consider Alberto Santana-Cabrera, age 45, who is

serving a 900-month (75-year) sentence because of stacked

penalties under § 924(c) that the FSA later eliminated.

Imprisoned for more than 15 years, he earned his GED,

completed numerous educational courses, and participated

in several job training programs. United States v.

Santana-Cabrera, No. 09-CR-136, Docket Entry No. 280

(“Santana-Cabrera Br.”) at 28 (S.D. Ind. Mar. 11, 2024).

He has an excellent disciplinary record, but serious health

problems that have not always been adequately addressed.

Id. at 25–26, 28, 31.

The disparity between Mr. Santana-Cabrera’s

current sentence and what he likely would receive today

is extraordinary. Charged with eight drug and gun

possession offenses, he pled guilty to most charges in

2010—including two § 924(c) counts—and went to trial

on three counts. Id. at 4. His sentence imposed after trial

included multiple consecutive periods of imprisonment

required by § 924(c). Id. at 4–5. If he were sentenced

today, those counts would mandate consecutive sentences

totaling 15 years rather than 55 years. See SantanaCabrera Br. 24; United States v. Santana-Cabrera, 464 F.

4. A later Fifth Circuit panel in Austin declined to follow

Jean and instead extended a prior precedent. See 125 F.4th at 692.

15

App’x 537 (7th Cir. 2012). In 2024, Mr. Santana-Cabrera

filed a motion for a sentence reduction through counsel

secured via the clearinghouse run by FAMM and the

NACDL. That motion remains pending. 5

Or consider Nicholas Moore, age 54, who is serving

a 566-month (over 47-year) sentence because of stacked

penalties under § 924(c). United States v. Moore, 95CR-30024, Docket Entry No. 123-1 (“Moore Br.”) at 2–3

(C.D. Ill. May 17, 2024). Incarcerated for more than 30

years, Mr. Moore has spent most of his life in prison. He

has endured solitary confinement despite an admirable

disciplinary history, unprovoked violence, a global

pandemic, significant medical issues, and heartbreaking

losses of close family members. Id. at 23–25, 28–30. In

spite of that, Mr. Moore also has made great strides to

better himself, earning his GED, completing myriad

educational courses, tutoring other people in prison, and

earning the respect of BOP personnel. Id. at 5–6.

Mr. Moore also is serving a sentence that is grossly

disparate from what he would receive if sentenced today.

In 1992, at the age of 21, he and another person committed

three armed robberies. Id. at 3–4, 25. Both were tried,

5. Mr. Santana-Cabrera initially sought a sentence reduction

in May 2020, later supplementing his motion through counsel. See

Santana-Cabrera Br. 5. That motion was denied, including because,

without guidance from the Commission, the Seventh Circuit had

ruled out consideration of non-retroactive legal changes under

§ 3582(c)(1)(A). See United States v. Santana-Cabrera, No. 09-CR136, 2021 WL 3206507, at *2–3 (S.D. Ind. July 27, 2021), aff’d, No.

22-2056, 2023 WL 2674363 (7th Cir. Mar. 29, 2023) (citing Thacker,

4 F.4th at 576). Mr. Santana-Cabrera later filed a new motion after

the Commission promulgated §1B1.13(b)(6).

16

convicted, and sentenced for the first robbery—a theft

of $4,600 that yielded a 106-month sentence, including

a minimum consecutive sentence required by § 924(c).

Id. at 3; see also United States v. Moore, et al., 25 F.3d

563 (7th Cir. 1994). Prosecutors then sought Mr. Moore’s

cooperation against his partner in the remaining

two robberies. Moore Br. 10. When he declined, they

prosecuted Mr. Moore alone for those additional offenses.

Id. at 3–4; see also United States v. Moore, 115 F.3d 1348,

1352 (7th Cir. 1997). Mr. Moore ultimately received a

sentence including stacked § 924(c) penalties.6 If he were

sentenced today, his § 924(c) convictions would mandate

a 17-year sentence rather than the 47-year minimum he

received. See Moore Br. 18–19. In 2024, Mr. Moore filed a

motion for a sentence reduction through counsel procured

via FAMM and the NACDL. It is still pending.7

The decisions below would preclude courts from

even considering whether Mr. Santana-Cabrera’s or

Mr. Moore’s remaining years, in combination with the

other factors specified in §1B1.13(b)(6), warrant an

individualized review of their excessive sentences. That

result is wrong given the Commission’s express statutory

authority to define the criteria for seeking such relief,

see 28 U.S.C. § 994(t), and unconscionable in light of the

6. His co-defendant, in contrast, served his sentence for

the first robbery and was released more than 23 years ago. See

Moore Br. at 3.

7. Like Mr. Santana-Cabrera, Mr. Moore previously moved

for a sentence reduction but that motion was denied based, in part,

on the Thacker decision. United States v. Moore, No. 22-1980, 2022

WL 17982907, at *1 (7th Cir. Dec. 29, 2022). He likewise filed a new

motion after the Commission promulgated §1B1.13(b)(6).

17

human consequences. See Washington, 301 F. Supp. 2d at

1309 (“When the law denies judges any discretion to tailor

sentences to individual defendants, draconian sentences

are the result.”).

III. Section 1B1.13(b)(6) Is a Valid Exercise of the

Commission’s Express Statutory Authority

When Congress enacted the SRA, it directed the

Commission to “describe what should be considered

extraordinary and compelling reasons for sentence

reduction[s]” under § 3582(c)(1)(A), “including the criteria

to be applied and a list of specific examples.” 28 U.S.C.

§ 994(t). This Court long ago confirmed that Congress’s

delegation of such authority to the Commission was

valid. Mistretta v. United States, 488 U.S. 361, 371–79

(1989). The only limitation that Congress placed on the

Commission’s discretion in defining such criteria was

that “[r]ehabilitation . . . alone” was not sufficient for

relief. 28 U.S.C. § 994(t). And Congress further mandated

that courts must apply § 3582(c)(1)(A) “consistent with”

any “applicable” policy statements promulgated by

the Commission. 18 U.S.C. § 3582(c)(1)(A); see also

Concepcion v. United States, 597 U.S. 481, 495 (2022)

(noting that “Congress . . . requir[es] courts to abide by

the [] Commission’s policy statements”).

Congress’s carefully crafted sentencing scheme

thus intentionally delegated to the Commission the

authority and the responsibility to determine appropriate

considerations under § 3582(c)(1)(A)(i). See 28 U.S.C.

§ 994(t). The Commission fulfilled its statutory role

and acted pursuant to Congress’s express delegation of

authority in promulgating §1B1.13(b)(6). See 28 U.S.C.

18

§§ 991(b)(1), 994(a). Statutory text, legislative intent, and

background principles all confirm that the Third Circuit

was wrong to override the Commission’s thoughtful

determination.

A.

The Commission Properly Exercised its

Statutory Authority

1.

Statutory Text and Structure Supports

Petitioners

As the Commission noted in amending §1B1.13(b)(6),

“[o]ne of the expressed purposes of [§] 3582(c)(1)(A) when

it was enacted . . . was to provide a narrow avenue for

judicial relief from unusually long sentences.” 88 Fed. Reg.

at 28,254 (citing S. Rep. No. 98-225 (1983)). To promote

the legitimate purposes of sentencing, Congress included

in the Commission’s power to promulgate, revise, and

interpret policy statements, see 28 U.SC. §§ 994(a)(2), (o),

the authority to disagree with courts’ conclusions on

sentencing matters. E.g., Braxton v. United States, 500

U.S. 344, 348 (1991) (“Congress necessarily contemplated

that the Commission would periodically review the work of

the courts, and would make whatever clarifying revisions

to the Guidelines conflicting judicial decisions might

suggest.”); 18 U.S.C. § 3582(c)(1)(A) (requiring courts

to apply the Commission’s policy statements); see also

Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 395

(2024) (requiring courts to respect an express delegation

of authority and “effectuate the will of Congress subject

to constitutional limits”). Congress thus intended for

the Commission to have wide latitude when it comes to

describing “extraordinary and compelling reasons” for

sentence reductions.

19

The “best evidence of Congress’s intent is the

statutory text.” Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519, 544 (2012); see also BedRoc Ltd., LLC v.

United States, 541 U.S. 176, 183 (2004) (stating an inquiry

“begins with the statutory text, and ends there as well if

the text is unambiguous”). As noted, the only limitation

that Congress placed on the Commission’s authority to

describe appropriate criteria for § 3582(c)(1)(A) motions

is that “[r]ehabilitation . . . alone” cannot suffice. 28

U.S.C. § 994(t). Traditional statutory interpretation thus

forecloses reading into the statute other limitations that

restrict the Commission’s authority. Cf. Esteras, 145 S.

Ct. at 2040. Similarly, the lack of any statutory language

in the FSA—much less clear language—restricting the

Commission’s ability to specify (or courts to consider)

changes in the law on an individualized basis and in

conjunction with other factors belies any conjecture that

Congress had such intent. 8 See, e.g., Epic Sys. Corp. v.

Lewis, 584 U.S. 497, 510 (2018) (noting that “Congress

will specifically address preexisting law when it wishes to

suspend its normal operations in a later statute” (cleaned

up)). Put differently, whether considering § 994(t) or the

FSA, “[t]he natural implication is that Congress did

not intend for courts to consider” additional limitations

on the Commission’s authority because the omission of

8. That inference in the decisions below was particularly

ill-advised given this Court’s recent recognition that a related

section of the FSA “allows district courts to consider intervening

changes of law or fact in exercising their discretion to reduce a

sentence” under the FSA, and that “[n]othing express or implicit

in the [FSA]” prohibits courts from considering “nonretroactive

Guidelines amendments to help inform whether to reduce

sentences at all, and if so, by how much.” Concepcion, 597 U.S.

at 499–500.

20

added limitations “bespeaks a negative implication.”

Esteras, 145 S. Ct. at 2040 (quoting Chevron U.S.A. Inc. v.

Echazabal, 536 U.S. 73, 81 (2002)); accord S. Rep. No. 98225 at 179 (stating that what became § 994(t) “requires the

Commission to describe the ‘extraordinary and compelling

reasons’ that would justify a reduction of a particularly

long sentence imposed pursuant to proposed 18 U.S.C.

§ 3582(C)(1)(A)”).

Further evidence comes from the Commission’s other

statutory powers. Cf. Esteras, 145 S. Ct. at 2041 (“The

statutory structure confirms this negative inference.”).

Among other things, the Commission has the power

to “request such information, data, and reports from

any Federal agency or judicial officer . . . as may be

produced consistent with other law,” 28 U.S.C. § 995

(a)(8); to “monitor the performance of probation officers”

and “issue instructions to probation officers concerning

the application of . . . policy statements,” id. § 995(a)(9)–

(10); to “establish a research and development program”

regarding sentencing practices, id. § 995(a)(12); to “collect

systematically the data obtained from studies, research,

and the empirical experience of public and private agencies

concerning the sentencing process,” id. § 995(a)(13); and

to “hold hearings and call witnesses that might assist the

Commission in the exercise of its powers or duties,” id.

§ 995(a)(21). And “[i]n fulfilling its duties and in exercising

its powers, the Commission . . . consult[s] with authorities

on, and individual and institutional representatives of,

various aspects of the Federal criminal justice system.”

Id. § 994(o). Congress’s express grant of such expansive

powers bespeaks an intent to afford the Commission broad

discretion in crafting policy and carrying out its duties.

21

By virtue of this statutory authority, relative to

appellate courts the Commission has greater access to

institutional experience and is more responsive to advances

in knowledge, societal changes, and the public—including

members of FAMM and the NACDL who are impacted

by, and have particular experience with, sentencing laws

and policies. No wonder that Congress considered the

Commission best suited to render policy judgments about

the availability of § 3582(c)(1)(A) relief.

2.

Past Practice Confirms the Commission’s

Authority

The Commission has long exercised its discretion to

provide a broad and flexible description of what constitutes

“extraordinary and compelling reasons” under § 3582(c)

(1)(A).

For instance, when only BOP could bring sentence

reduction motions, the Commission’s prior version of

§1B1.13 provided that, so long as “the defendant [wa]s

not a danger to the safety of any other person or to the

community,” it was sufficient if, “[a]s determined by the

Director of the Bureau of Prisons, there exist[ed] in

the defendant’s case an extraordinary and compelling

reason other than, or in combination with, the reasons

described” expressly in the policy statement relating to

medical conditions, age, or family circumstances. U.S.S.G.

§1B1.13 & application note 1 (2021); see also United States

v. Dresbach, 806 F. Supp. 2d 1039, 1040 (E.D. Mich. 2011)

(“[T]he clear language of the Application Note of §1B1.13

permits compassionate release for not just medical reasons

of a defendant, but for other reasons as well.”). Consistent

22

with §1B1.13, BOP derived its own program statement

governing how it would consider whether extraordinary

and compelling reasons justified a sentence reduction.

See Compassionate Release/Reduction in Sentence:

Procedures for Implementation of 18 U.S.C. §§ 3582

and 4205(g), Program Statement 5050.50, U.S. Bureau

of Prisons (Jan. 17, 2019), available at https://www.bop.

gov/policy/progstat/5050_050_EN.pdf (accessed Aug.

13, 2025). Under that program statement, BOP listed a

number of factors it would consider that “[we]re neither

exclusive nor weighted,” which included “[i]nstitutional

adjustment,” “[l]ength of sentence and amount of time

served,” “[i]nmate’s release plans (employment, medical,

financial),” and “[w]hether release would minimize the

severity of the offense.” Id. § 7.

BOP ’s prog r a m st at ement t hus a l lowed for

compassionate release motions based on grounds

reminiscent of those later incorporated into §1B1.13

(b)(6).9 If the Commission could permit BOP’s consideration

of such broad factors in “describ[ing] 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), it is hard to

see how the multiprong inquiry in §1B1.13(b)(6)—which

likewise requires consideration of a sentence’s length,

the amount of time served, and how the severity of the

9. In its 2013 report, the DOJ Inspector General had

recommended that BOP “[c]onsider appropriately expanding

the use of the compassionate release program as authorized by

Congress and as described in the BOP’s regulations and Program

Statement to cover both medical and non-medical conditions for

inmates who do not present a threat to the community and who

present a minimal risk of recidivism.” OIG Rep. at 55 (emphasis

added).

23

sentence relates to the underlying offense—could have

exceeded the Commission’s statutory authority. Notably,

when BOP alone could assess whether extraordinary and

compelling reasons were present, the United States did

not express concern about considering such factors. But

after Congress removed BOP’s monopoly on sentence

reduction motions and the Commission specified criteria

that supported challenges by incarcerated people to unjust

sentences, the United States suddenly became perturbed.

Congress, however, was not so troubled. It legislated

against the existing legal backdrop when it passed the

FSA, see Cannon v. Univ. of Chicago, 441 U.S. 677, 696–97

(1979), and it “is not shy about placing [] limits where it

deems them appropriate.” Concepcion, 597 U.S. at 494.

Yet in the FSA Congress did not alter the only existing

limitation that “[r]ehabilitation of the defendant alone

shall not be considered an extraordinary and compelling

reason.” 28 U.S.C. § 994(t). Especially given congressional

awareness of the Commission’s powers and past practice,

there is no merit to arguments seeking to cabin the

Commission’s express authority on the basis of inferred

implications of the FSA—a statute that Congress passed

to expand relief for incarcerated people.

B. Section 1B1.13(b)(6) Imposes Stringent

Requirements and Affords Relief Only in

Narrow Circumstances

Section 1B1.13(b)(6) fulfilled the Commission’s

statutory obligation, see 28 U.S.C. § 994(t), while

also “avoiding unwarranted sentencing disparities,”

facilitating “sufficient flexibility to permit individualized

sentences when warranted by mitigating or aggravating

factors not taken into account in the establishment of

24

general sentencing practices,” and “reflect[ing], to the

extent practicable, advancement in knowledge of human

behavior as it relates to the criminal justice process.” Id.

§ 991(b)(1)(B)–(C). It thus falls comfortably within the

Commission’s authority.

Section 1B1.13(b)(6) provides that courts may consider

a change in the law only if the movant is serving “an

unusually long sentence” that, “after full consideration of

the defendant’s individualized circumstances,” reflects “a

gross disparity between the sentence being served and

the sentence likely to be imposed at the time the motion is

filed”—and even then only if the person “has served at least

10 years” of that sentence. Id. Far from endorsing blanket

consideration of legal changes, §1B1.13(b)(6) carefully

calibrates assessments of individual circumstances based

on specific and limited factors. See id. It thus defines a

narrow exception to the background rule—reaffirmed

in the same policy statement—that generally “a change

in the law . . . shall not be considered for purposes of

determining whether an extraordinary and compelling

reason exists . . . .” Id. § 1B1.13(c).

In other words, §1B1.13(b)(6) does not make the

ordinary “extraordinary.” As discussed above, many

sentences imposed under § 924(c) were particularly

punitive, resulted in exceptionally harsh sentences, and

created meaningful sentence disparities—including

along racial lines. But even in conjunction with those

sentences, relief under §1B1.13(b)(6) is rare. Preliminary

Commission data through June 30, 2025, for example,

indicates that only 12.3% of motions for § 3582(c)(1)

25

(A) relief have been granted based on §1B1.13(b)(6).10

See Compassionate Release Data Report, U.S. Sent ’g

Comm’n (July 2025), tbl. 10, available at https://www.ussc.

gov/ sites/default/files/pdf/research-and-publications/

federal-sentencing-statistics/ compassionate-release/

FY25Q3-Compassionate-Release.pdf (accessed Aug. 13,

2025). At the same time, the overall number of § 3582(c)

(1)(A) motions filed has continued to decrease since 2021.

See id., fig. 1. And there has been no spike in the number

or percentage of motions granted. See id., tbl. 4.

Nevertheless, the government consistently pivots

to the claim that a change in the law can never be an

“extraordinary and compelling reason” because changes

in the law are ordinary occurrences. See, e.g., Andrews,

12 F.4th at 261; Thacker, 4 F.4th at 576; United States

10. True retroactive application would result in data showing

a much higher percentage. Compare, e.g., 2014 Drug Guidelines

Amendment Retroactivity Data Report, U.S. Sent ’g Comm ’n

(May 2021), tbl. 9, available at https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/retroactivity-analyses/

drug-guidelines-amendment/20210511-Drug-Retro-Analysis.

pdf (accessed Aug. 13, 2025); Final Crack Retroactivity Data

Report, Fair Sentencing Act, U.S. Sent ’g Comm’n (Dec. 2014),

tbl. 9, available at https://www.ussc.gov/ sites/default/files/pdf/

research-and-publications/retroactivity-analyses/fair-sentencingact/Final_USSC_Crack_Retro_Data_Report_FSA.pdf (accessed

Aug. 13, 2025); Preliminary Crack Cocaine Data Report, U.S.

Sent ’g Comm’n (June 2011), tbl. 9, available at https://www.ussc.

gov/sites/default/files/pdf/research-and-publications/federalsentencing-statistics/2007-crack-cocaine-amendment/20110600_

USSC_Crack_Cocaine_Retroactivity_ Data_Report.pdf (accessed

Aug. 13, 2025). Statistics reflecting motions granted based on

§1B1.13(b)(6) come nowhere close to the grant percentages for

real retroactive adjustments.

26

v. Jarvis, 999 F.3d 442, 444–46 (6th Cir. 2021). That is

a straw man; no part of §1B1.13(b)(6) provides for relief

based merely on changes in the law.

As noted above, a change in the law cannot support

a sentence reduction under the policy statement unless

three other things are true: the sentence was unusually

long, the defendant has served at least 10 years of that

sentence, and the sentence reflects a gross disparity as

compared to the sentence that would be imposed today.

See U.S.S.G. §1B1.13(b)(6). Even after all of that, a court

still must consider the individualized circumstances of

the defendant and the case before finding that a sentence

reduction is warranted. See id. And a decision under

§1B1.13(b)(6) is expressly discretionary; the factors

in §1B1.13(b)(6) “may be considered” by a court. Id.

(emphasis added). In short, nothing in §1B1.13(b)(6) usurps

Congress’s power to determine whether or when favorable

legal changes should be made retroactive, which would

entail enforcing—not merely considering—such changes.

Cf. Ruvalcaba, 26 F.4th at 27; McCoy, 981 F.3d at 287.

It is also worth noting that the kinds of changes made

by the FSA were hardly routine. To start, the Commission

recognized early on that § 924(c) was unique even as

compared to other mandatory minimum sentencing

provisions—such as, for example, statutory penalties

based on drug quantity—because “[t]he section 924(c)

penalty tends to operate as an ‘enhancement’ or ‘add-on’

in the sense that a section 924(c) violation by definition

occurs in connection with an underlying offense” and “[i]f

a conviction is obtained for both the underlying offense

and a section 924(c) count, the section 924(c) penalty must

be made consecutive to the sentence for the underlying

27

offense.” 1991 Rep. at 4. Moreover, multiple consecutive

§ 924(c) sentences were stacked, as this Court held in Deal

v. United States, 508 U.S. 129 (1993). As a result, § 924(c)’s

mandatory minimum penalties have long caused judges

to express particular dismay at the harsh sentences they

required. See, e.g., Hewitt, 145 S. Ct. at 2174–75. Beyond

their sheer severity, those sentences were “especially

unforgiving because the sentencing judge was required to

ignore any mitigating circumstances,” even a “lack of any

criminal history.” United States v. Rivera-Ruperto, 884

F.3d 25, 30 (1st Cir. 2018) (Barron, J., concurring). Such

sentences thus gave prosecutors “a potent weapon . . . not

only to impose extended sentences . . . [but] also a powerful

weapon that can be abused to force guilty pleas under the

threat of an astonishingly long sentence.” United States

v. Looney, 532 F.3d 392, 398 (5th Cir. 2008).

The mandatory minimum penalties under § 924(c)

are thus uniquely punitive, and the FSA marks the only

time since the SRA that Congress has lowered them.

So although §1B1.13(b)(6) emphatically does not permit

sentence reductions purely because the FSA changed

the law, it is notable that what it changed were among

the most brutal provisions and the most criticized—

by commentators and courts alike—in all of federal

sentencing law.11

11. A similar observation applies to other changes by

the FSA. For instance, it also reformed certain sentencing

enhancements by narrowing the types of prior convictions that

trigger mandatory minimums, see FSA § 401, thus imposing

some limits on unbounded prosecutorial discretion that one judge

described as “a standardless Wheel of Misfortune regime.” United

States v. Young, 960 F. Supp. 2d 881, 890 (N.D. Iowa 2013).

28

C.

Nothing in Section 1B1.13(b)(6) Makes Changes

in the Law Retroactive

For all the reasons discussed above, §1B1.13(b)(6)

permits judges, in narrow and limited circumstances,

to consider a change in the law as one of many factors

relevant to deciding whether “extraordinary and

compelling reasons” for a sentence reduction exist. Not

every legal change makes the cut, nor is any particular

change available to every defendant. Instead, §1B1.13

(b)(6) only concerns changes that produce grossly

disparate and unusually long sentences. See United

States v. Ware, 720 F. Supp. 3d 1351, 1361 (N.D. Ga.

2024) (“Based on individualized circumstances and when

other prerequisites have been satisfied, the Court has

the discretion to determine if an unusually long sentence

(such as, but not limited to, if a change in law later created

a ‘gross disparity’ between the defendant’s sentence and

a similarly situated defendant in the present day) can be

modified.”).

The decisions below nonetheless concluded that

§1B1.13(b)(6) contravened a broad nonretroactivity

directive inferred from other language in the FSA. But the

FSA is silent regarding courts’ consideration of changes to

§ 924(c) for purposes of § 3582(c)(1)(A), and the language

on which the decisions relied concerned something

“significantly different,” McCoy, 981 F.3d at 287. “Drawing

meaning from silence is particularly inappropriate in

the sentencing context, for Congress has shown that

it knows how to direct sentencing practices in express

terms.” Concepcion, 597 U.S. at 497 (quoting Kimbrough

v. United States, 552 U.S. 85, 103 (2007) (cleaned up)). If

anything, silence cuts the other way. See Esteras, 145 S. Ct.

29

at 2040. And nothing else allows courts to second-guess

policy decisions expressly delegated to the Commission.

Cf. TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)

(“Federal courts do not possess a roving commission

to publicly opine on every legal question.”); Bostock v.

Clayton Cnty., 590 U.S. 644, 654–55 (2020) (cautioning

that judges should not “add to, remodel, update, or detract

from” statutory terms because it “risk[s] amending

statutes outside the legislative process”).

IV. Reversal is Necessary to Avoid Unfairness and

Injustice

Over two decades ago, Justice Kennedy observed

that “[o]ur resources are misspent, our punishments

too severe, our sentences too long.” Hon. Anthony M.

Kennedy, Speech at the American Bar Association

Annual Meeting (Aug. 9, 2003), available at https://www.

supremecourt.gov/publicinfo/speeches/viewspeech/sp_0809-03 (accessed Aug. 13, 2025). Despite extreme political

polarization, Congress came together to pass bipartisan

legislation addressing exceptionally harsh punishments

that have impacted countless defendants, families, and

communities. Using its express statutory authority,

the Commission then specified how changes in the law

may, in combination with other factors, demonstrate

“extraordinary and compelling reasons” that permit

courts to consider reducing grossly disparate sentences.

By invalidating §1B1.13(b)(6), the decisions below

improperly overrode the considered policy judgment of

both Congress and the Commission. Contra Whitman v.

Am. Trucking Associations, 531 U.S. 457, 474–75 (2001)

(observing the Court “ha[s] almost never felt qualified to

30

second-guess Congress regarding the permissible degree

of policy judgment that can be left to those executing or

applying the law” (cleaned up)). They denied incarcerated

individuals their full measure of fair consideration by

constricting the broad discretion that courts traditionally

have exercised in sentencing matters. And they did so to

the detriment of people who have languished in prison for

decades, serving sentences that society now recognizes

as unjust and that ensure many incarcerated individuals

will die behind bars.

For good reasons, courts historically have considered

all relevant information at sentencing. See Concepcion,

597 U.S. at 494 (explaining that “[t]he only limitations

on a court’s discretion to consider any relevant materials

. . . in modifying that sentence are those set forth by

Congress in a statute or by the Constitution”); Dean v.

United States, 581 U.S. 62, 66 (2017) (“Sentencing courts

have long enjoyed discretion in the sort of information they

may consider when setting an appropriate sentence.”).

And as this Court has explained, “when [a] district court’s

failure to anticipate developments that take place after

. . . sentencing . . . produces unfairness to the defendant,”

§ 3582(c)(1)(A) “provides a mechanism for relief.” Setser

v. United States, 566 U.S. 231, 242–43 (2012) (cleaned

up). The decisions below, however, prohibit judges from

considering significant legal changes and unusually long

punishments when evaluating whether sentence reductions

are warranted, blinding them to circumstances especially

relevant to just sentencing determinations.

Moreover, by invalidating §1B1.13(b)(6) based on

its own construction of “extraordinary and compelling

circumstances,” the Third Circuit ignored the rule of

31

lenity—a principle “not much less old than” statutory

“construction itself.” United States v. Wiltberger, 18 U.S.

(5 Wheat.) 76, 95 (1820) (Marshall, C.J.). Lenity began in

English courts “justified in part on the assumption that

when Parliament intended to inflict severe punishments

it would do so clearly.” Wooden v. United States, 595 U.S.

360, 388 (2022) (Gorsuch, J., concurring in the judgment).

It “embodies ‘the instinctive distastes against [people]

languishing in prison unless the lawmaker has clearly

said they should,’” United States v. Bass, 404 U.S. 336,

348 (1971), and is essential to “maintain[ing] the proper

balance between Congress, prosecutors, and courts,”

United States v. Kozminski, 487 U.S. 931, 952 (1988).

Lenity applies to sentencing provisions and substantive

criminal statutes. E.g., United States v. Batchelder, 442

U.S. 114, 121 (1979); Bifulco v. United States, 447 U.S.

381, 387 (1980). And the rule “teach[es] that ambiguities

about the breadth of a criminal statute should be resolved

in the defendant’s favor.” United States v. Davis, 588 U.S.

445, 464 (2019); cf. Pulsifier v. United States, 601 U.S. 124,

185–86 (2024) (Gorsuch, J., dissenting) (noting in the FSA

context that lenity requires courts to interpret ambiguity

in favor of liberty over punishment). The decisions below

did the opposite—reading restrictions into the FSA and

limiting the Commission’s authority based on inferences

at odds with Congress’s purpose.12 This Court has long

applied lenity whenever it has “reasonable doubt[]” about

the application of a penal statute. Harrison v. Vose, 50

12. While those decisions cited Loper Bright, that case does

not support restricting § 3582(c)(1)(A) relief given this Court’s

concerns about “displac[ing] the rule of lenity” in statutory

interpretation. 603 U.S. at 409; see also id. at 434–35 (Gorsuch,

J., concurring) (discussing lenity).

32

U.S. (9 How.) 372, 378 (1850). Fidelity to that rule in this

case forecloses the outcomes below.

The Third Circuit was wrong to reject the work of

Congress and the Commission, and its mistakes will have

a devastating effect on people across the country.

CONCLUSION

For the foregoing reasons, amici respectfully urge

this Court to reverse the judgments of the United States

Court of Appeals for the Third Circuit.

Respectfully submitted,

Shanna Rifkin

General Counsel

FAMM

1100 13th Street, NW,

Suite 201

Washington, DC 20005

Jarrod L. Schaeffer

Counsel of Record

A bell Eskew Landau LLP

256 Fifth Avenue, 5th Floor

New York, NY 10001

(646) 970-7339

jschaeffer@aellaw.com

Joshua L. Dratel

Co-chair, Amicus Committee

National A ssociation of

Criminal Defense Lawyers

Dratel & Lewis

29 Broadway, Suite 1412

New York, NY 10006

Counsel for Amici Curiae

August 15, 2025