Amicus Curiae Brief — Daniel Rutherford, Petitioner v. United States
Supreme Court briefAug 15, 2025
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Nos. 24-820, 24-860
In the Supreme Court of the United States
DANIEL RUTHERFORD, PETITIONER
v.
UNITED STATES, RESPONDENT
JOHNNIE MARKEL CARTER, PETITIONER
v.
UNITED STATES, RESPONDENT
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
BRIEF OF SENATORS CORY BOOKER AND
DICK DURBIN AS AMICI CURIAE
SUPPORTING PETITIONERS
AMY MASON SAHARIA
Counsel of Record
DANIELLE J. SOCHACZEVSKI
JONATHAN E. SPRATLEY
WILLIAMS & CONNOLLY LLP
680 Maine Avenue S.W.
Washington, DC 20024
(202) 434-5000
asaharia@wc.com
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE............................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT ....... 2
ARGUMENT ................................................................................ 4
I. The Sentencing Reform Act Permits the Sentencing
Commission To Identify Changes in Law as One
Factor Relevant to the Individualized Assessment of
“Extraordinary and Compelling Reasons” for
Sentence Reduction ......................................................... 4
A. The Sentencing Reform Act Confers Broad
Authority on the Commission To Describe
“Extraordinary and Compelling Reasons” ........... 4
B. The Commission Has Authority To Identify
Changes in Law as One Factor Relevant to the
Individualized Assessment of “Extraordinary and
Compelling Reasons” .............................................. 8
II.
The First Step Act Does Not Curtail the Commission’s
Expressly Delegated Authority To Describe
“Extraordinary and Compelling Reasons” ................. 11
A. The First Step Act Does Not Explicitly Restrict
the Commission’s Authority ................................. 12
B. The First Step Act Does Not Impliedly Rescind
the Commission’s Authority ................................. 14
III.
The Commission’s Policy Statement Is an
Appropriately Limited and Valid Exercise of the
Commission’s Expressly Delegated Authority To
Describe “Extraordinary and Compelling Reasons”. 18
A. The Policy Statement Is Appropriately Limited 18
B. The Policy Statement Is Valid.............................. 23
CONCLUSION .......................................................................... 28
(I)
II
TABLE OF AUTHORITIES
Page
Cases:
Bittner v. United States, 598 U.S. 85 (2023) ................... 24
Branch v. Smith, 538 U.S. 254 (2003) .............................. 15
Concepcion v. United States, 597 U.S. 481 (2022) .... 15, 16
Dillon v. United States, 560 U.S. 817 (2010) ..................... 6
Dorsey v. United States, 567 U.S. 260 (2012) .................... 5
Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) ..... 15, 27, 28
Hewitt v. United States, 145 S. Ct. 2165 (2025) .............. 12
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l,
Inc., 534 U.S. 124 (2001) .............................................. 15
Kimbrough v. United States, 552 U.S. 85 (2007) ........ 7, 16
Koon v. United States, 518 U.S. 81 (1996) ......................... 4
Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024) ....................................................... 25
Magwood v. Patterson, 561 U.S. 320 (2010) .................... 12
Me. Cmty. Health Options v. United States,
590 U.S. 296 (2020) ................................................. 16, 27
Mistretta v. United States, 488 U.S. 361 (1989) ........ 5, 6, 7
Morton v. Mancari, 417 U.S. 535 (1974) ......................... 15
Pepper v. United States, 562 U.S. 476 (2011) .................... 4
Peugh v. United States, 569 U.S. 530 (2013) ................. 5, 6
Polselli v. IRS, 598 U.S. 432 (2023) .................................. 17
Posadas v. Nat’l City Bank, 296 U.S. 497 (1936)............ 15
Pulsifer v. United States, 601 U.S. 124 (2024) ................ 12
Rita v. United States, 551 U.S. 338 (2007) ........ 5, 8, 10, 11
Rodriguez v. United States, 480 U.S. 522 (1987) ............ 15
Setser v. United States, 566 U.S. 231 (2012)...................... 9
Staples v. United States, 511 U.S. 600 (1994) ................. 23
Tapia v. United States, 564 U.S. 319 (2011) ...................... 4
United States v. Andrews,
12 F.4th 255 (3rd Cir. 2021) ......................................... 19
III
Page
Cases—continued:
United States v. Black,
131 F.4th 542 (7th Cir. 2025) ....................................... 25
United States v. Bricker,
135 F.4th 427 (6th Cir. 2025) ................................. 24, 25
United States v. Chen,
48 F.4th 1092 (9th Cir. 2022) ........................... 17, 23, 28
United States v. Davis,
99 F.4th 647 (4th Cir. 2024) ......................................... 16
United States v. LaBonte, 520 U.S. 751 (1997) ................. 6
United States v. McCoy,
981 F.3d 271 (4th Cir. 2020) .................................. 24, 28
United States v. Ruvalcaba,
26 F.4th 14 (1st Cir. 2022) ............................... 17, 25, 28
Statutes and Regulations:
18 U.S.C.
§ 924 ............................................... 3, 10-12, 14-17, 23, 24
§ 3142 ............................................................................. 23
§ 3553 ................................................................... 6, 21, 23
§ 3582 ............................................... 4, 6, 9, 14, 16, 21, 23
§ 3582 (2017).................................................................. 13
§ 4203 ............................................................................... 4
§ 4205 ............................................................................... 4
28 U.S.C.
§ 991 ............................................................. 2, 5, 8, 10, 26
§ 994 .................................... 5-8, 12, 14, 16, 18, 24, 26, 27
§ 995 ........................................................................... 6, 26
§ 997 ................................................................................. 6
First Step Act of 2018 ...............1-3, 11-16, 17-20, 24, 26, 28
§ 403 ......................................................................... 12, 17
§ 404 ............................................................................... 17
§ 603 ............................................................................... 13
IV
Page
Statutes and Regulations—continued:
Parole Commission and Reorganization Act,
Pub. L. No. 94-233, § 2, 90 Stat. 219 (1976) ................. 4
First Step Act, Pub. L. No. 115-391, 132 Stat.
5194 (2018)..................................................................... 12
Sentencing Reform Act, Pub. L. No. 98-473,
98 Stat. 1987 (1984) ............................. 2-5, 7-9, 11,26, 28
87 Fed. Reg. 60,438 (Oct. 5, 2022) ..................................... 20
87 Fed. Reg. 67,756 (Nov. 9, 2022) ................................... 20
88 Fed. Reg. 7180 (Feb. 2, 2023) ....................................... 20
88 Fed. Reg. 28,254 (May 3, 2023) .......................... 8, 21, 22
Other Authorities:
164 Cong. Rec. S7645 (Dec. 17, 2018) ............................... 12
Hearing on Nominations Before the Sen.
Judiciary Comm., 117th Cong. (2022) ....................... 19
Joint Letter from Wayne Andersen, Former U.S.
District Judge, et al., to U.S. Sent’g Comm’n
(Mar. 14, 2023) .............................................................. 21
Letter from Hon. Lynn Adelman to U.S. Sent’g
Comm’n ......................................................................... 21
Letter from Hon. Martha Vázquez to U.S. Sent’g
Comm’n (Mar. 7, 2023) ................................................. 21
Letter from Jonathan J. Wroblewski to Hon. Reeves
(Feb. 15, 2023)............................................................... 22
Letter from Senators Cory A. Booker, Richard J.
Durbin, and Mazie K. Hirono to Hon. Reeves
(Mar. 14, 2023) .............................................................. 21
Brent E. Newton & Dawinder S. Sidhu,
The History of the Original United States
Sentencing Commission, 1985-1987,
45 Hofstra L. Rev. 1167 (2017) ..................................... 5
V
Page
Other Authorities—continued:
Press Release, Booker Statement on Senate
Passage of Landmark Criminal Justice
Reform Bill (Dec. 18, 2018) ........................................... 1
Press Release, Durbin Meets with U.S. Sentencing Commission on Implementing Provisions
in First Step Act into Sentencing Guidelines
(Dec. 7, 2022) ................................................................... 1
S. Rep. No. 98-225 (1983)........................................... 5, 9, 26
Christie Thompson, Frail, Old and Dying, but Their
Only Way Out of Prison Is a Coffin,
N.Y Times (Mar. 7, 2018), ........................................... 13
U.S. Dep’t of Just., The Federal Bureau of Prisons’
Compassionate Release Program (Apr. 2013).......... 13
U.S. Sent’g Guidelines
§ 1B1.13. ......................................... 2, 3, 18, 20, 21-24, 26
Supp. App. C, Amend. 698 (2007) ................................. 8
Supp. App. C, Amend. 799 (2016) ........................... 8, 13
Supp. App. C, Amend. 814 (2023) ................................. 8
U.S. Sent’g Comm’n, 2018 Annual Report...................... 19
U.S. Sent’g Comm’n, 2022 Annual Report................ 19, 20
U.S. Sent’g Comm’n, 2011 Report to the Congress:
Mandatory Minimum Penalties in the Federal
Criminal Justice System (Oct. 2011) ......................... 10
U.S. Sent’g Comm’n, Compassionate Release Data
Report: Fiscal Year 2023 (Mar. 2024) ........................ 14
U.S. Sent’g Comm’n, Compassionate Release Data
Report: Fiscal Year 2024 (Mar. 2025) ........................ 14
U.S. Sent’g Comm’n, Compassionate Release Data
Report: Fiscal Years 2020 to 2022 (Dec. 2022) .......... 19
U.S. Sent’g Comm’n, Pub. Meeting, Tr.
(Feb. 23, 2023)......................................................... 20, 21
VI
Page
Other Authorities—continued:
U.S. Sent’g Comm’n, Rules of Practice and Procedure
(2016)
4.1 ................................................................................. 6, 8
4.3 ..................................................................................... 6
U.S. Sent’g Comm’n, Sample of Public Comment
Received on Proposed Amendments: 88 FR
7180 (Mar. 2023) ........................................................... 21
INTEREST OF AMICI CURIAE *
Amicus curiae Senator Cory Booker has represented
the State of New Jersey in the United States Senate since
2013. Senator Booker is a member of the Senate Judiciary Committee and its Subcommittee on Crime and
Counterterrorism, which oversees the United States Sentencing Commission. Amicus curiae Senator Dick Durbin
has represented the State of Illinois in the United States
Senate since 1997. Senator Durbin is the ranking member
of the Senate Judiciary Committee and its Subcommittee
on Crime and Counterterrorism.
Both Senators Booker and Durbin were lead sponsors
of the First Step Act of 2018, a landmark, bipartisan criminal justice reform bill that “break[s] from the decades of
failed policies that led to mass incarceration.” Press Release, Booker Statement on Senate Passage of Landmark
Criminal Justice Reform Bill (Dec. 18, 2018). 1 Since the
passage of the First Step Act, Senators Booker and Durbin have advocated for the Sentencing Commission to
implement the Act through updated guidelines and policy
statements, including with respect to courts’ authority to
reduce sentences. See Press Release, Durbin Meets with
U.S. Sentencing Commission on Implementing Provisions
Pursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than
amici or their counsel have made any monetary contributions intended to fund the preparation or submission of this brief.
1
https://www.booker.senate.gov/news/press/booker-statement-onsenate-passage-of-landmark-criminal-justice-reform-bill.
*
(1)
2
in First Step Act into Sentencing Guidelines (Dec. 7,
2022). 2
Senators Booker and Durbin have a strong interest in
the sound interpretation of the federal sentencing laws,
including in particular the First Step Act. The Senators
also have a strong interest in preserving the Sentencing
Commission’s expressly delegated authority to issue policy statements describing “extraordinary and compelling
reasons” that may justify compassionate release. The
Senators submit this brief to explain that the decision below misinterprets the First Step Act and usurps
Congress’ authority to expressly delegate authority to the
Commission.
INTRODUCTION AND SUMMARY OF ARGUMENT
The Third Circuit’s repudiation of the Commission’s
policy statement at U.S.S.G. § 1B1.13(b)(6) is wrong as a
matter of statutory interpretation and offends separationof-powers principles.
The decision below fails to grapple with Congress’ express delegation of authority to the Commission over four
decades ago in the Sentencing Reform Act to describe
“extraordinary and compelling reasons” for compassionate release. The phrase “extraordinary and compelling”
is capacious and elastic by design, and Congress made the
Commission responsible for describing such circumstances over time to reflect “advancement in knowledge
of human behavior as it relates to the criminal justice process.” 28 U.S.C. § 991(b)(1)(C). Separation-of-powers
principles dictate that courts must respect the Commission’s exercise of that authority. Courts may police only
https://www.durbin.senate.gov/newsroom/press-releases/durbinmeets-with-us-sentencing-commission-on-implementing-provisionsin-first-step-act-into-sentencing-guidelines.
2
3
the outer bounds of the “extraordinary and compelling”
standard. The Commission’s policy statement fits comfortably within those bounds. Nothing about the plain
meaning of “extraordinary and compelling” precludes the
Commission from describing a narrow set of circumstances where changes in law, among other factors, are
potentially “extraordinary and compelling.” That is what
the Commission did in section 1B1.13(b)(6).
The decision below erroneously reads into the First
Step Act an implied congressional “will” to restrict the authority that Congress granted to the Commission in the
Sentencing Reform Act. Had Congress wanted to restrict
the Commission’s authority, it certainly knew how. It has
expressly done so before. But the First Step Act contains
no such restriction. By reading the First Step Act implicitly to limit the Commission’s authority, the decision
below ignored this Court’s admonition against finding implicit repeals absent irreconcilable conflict. No conflict
exists here: Congress’ decision not to make the First Step
Act’s changes to section 924(c) categorically retroactive is
completely compatible with its separate, longstanding directive that the Commission describe “extraordinary and
compelling reasons” that courts evaluate in individual
cases to determine compassionate release eligibility.
The decision below thus misinterprets the Sentencing
Reform Act and the First Step Act and contravenes separation-of-powers principles that require courts to regard
both statutes as fully effective, rather than picking and
choosing between them.
4
ARGUMENT
I.
The Sentencing Reform Act Permits the Sentencing Commission To Identify Changes in Law as One Factor
Relevant to the Individualized Assessment of “Extraordinary and Compelling Reasons” for Sentence Reduction
A. The Sentencing Reform Act Confers Broad Authority
on the Commission To Describe “Extraordinary and
Compelling Reasons”
1. Federal courts’ authority to reduce an imprisonment term if “extraordinary and compelling reasons
warrant such a reduction” originated in the Sentencing
Reform Act of 1984, a landmark reform bill that caused a
sea change in the federal sentencing system. Pub. L. No.
98-473, § 212(a)(2), 98 Stat. 1987, 1998-99 (codified as
amended at 18 U.S.C. § 3582(c)(1)(A)); see Pepper v.
United States, 562 U.S. 476, 488-89 (2011).
Before 1984, authority to set and alter the length of
federal sentences rested with three actors outside of Congress: the Parole Commission, the Bureau of Prisons
(BOP), and courts. The Parole Commission had discretion to grant or deny parole after a prisoner served a
minimum amount of his sentence. See Tapia v. United
States, 564 U.S. 319, 323-25 (2011); Parole Commission
and Reorganization Act, Pub. L. No. 94-233, § 2, 90 Stat.
219, 220, 222 (1976) (codified at 18 U.S.C. §§ 4203(b)(1),
4205(b)). On BOP’s motion, a court could hasten a prisoner’s eligibility for parole by reducing the minimum
required term. 90 Stat. at 223 (codified at 18 U.S.C.
§ 4205(g)). Sentencing judges, knowing that the Parole
Commission might release defendants early, would sometimes adjust prison terms accordingly, which produced
“an unjustifiably wide range of sentences to offenders
with similar histories, convicted of similar crimes, [and]
committed under similar circumstances.” Koon v. United
5
States, 518 U.S. 81, 92 (1996) (quoting S. Rep. No. 98-225,
at 38 (1983)); see Mistretta v. United States, 488 U.S. 361,
365-66 (1989); Brent E. Newton & Dawinder S. Sidhu, The
History of the Original United States Sentencing Commission, 1985-1987, 45 Hofstra L. Rev. 1167, 1173-74
(2017).
In the Sentencing Reform Act, Congress sought to
address these problems and otherwise “increase transparency, uniformity, and proportionality in sentencing”
by introducing a new actor, the Sentencing Commission.
Dorsey v. United States, 567 U.S. 260, 265 (2012); Peugh
v. United States, 569 U.S. 530, 535 (2013). Congress created the Commission as an “expert body” that would help
to replace the disjointed outcomes of the old sentencing
system with uniformity and fairness in the new one. See
Mistretta, 488 U.S. at 412. The Commission’s “basic objectives,” set out by Congress, Rita v. United States, 551
U.S. 338, 348 (2007), include “provid[ing] certainty and
fairness” in meeting the goals of sentencing, by “avoiding
unwarranted sentencing disparities among defendants
with similar records who have been found guilty of similar
criminal conduct while maintaining sufficient flexibility to
permit individualized sentences,” as well as “reflect[ing],
to the extent practicable, advancement in knowledge of
human behavior as it relates to the criminal justice process,” 28 U.S.C. § 991(b)(1)(B)-(C).
Congress vested the Commission with broad powers
to set federal sentencing policies and practices nationwide, along with the information-gathering tools needed
to perform its functions. With an “affirmative vote of at
least four members,” the Commission “promulgate[s] and
distribute[s] to all courts of the United States” guidelines
and policy statements regarding sentencing. 28 U.S.C.
§ 994(a)(1)-(2). To better fulfill its duties, the Commission
can request information from any other federal agency or
6
judicial officer; hold hearings and call witnesses; and collect data from public and private agencies. Id. § 995(a)(8),
(13), (21). By statute, the Commission’s proposed guidelines are subject to the notice-and-comment requirements
of the Administrative Procedure Act, and by practice, the
Commission also opens its proposed policy statements to
comment. 28 U.S.C. § 994(x); see U.S. Sent’g Comm’n,
Rules of Practice and Procedure 4.3 (2016); infra pp. 2021, 26.
In the exercise of its substantial authority, the Commission remains “fully accountable” to Congress.
Mistretta, 488 U.S. at 393. The Commission must report
to Congress at least annually, and its proposed amendments are subject to Congress’ disapproval and
modification. 28 U.S.C. §§ 994(p), 997; see U.S. Sent’g
Comm’n, Rules of Practice and Procedure 4.1. And, of
course, the Commission must exercise its authority subject to the strictures of federal statutes. United States v.
LaBonte, 520 U.S. 751, 757 (1997); accord 28 U.S.C.
§ 994(a).
2. When Congress created the Sentencing Commission, it simultaneously abolished the parole system.
Peugh, 569 U.S. at 535. The Sentencing Reform Act generally prevents courts from modifying sentences, with
some exceptions. Dillon v. United States, 560 U.S. 817,
824 (2010) (citing 18 U.S.C. § 3582(b)). One such exception
is what has come to be known as the compassionate-release provision, which permits courts, in their discretion,
to “reduce the term of imprisonment” if “extraordinary
and compelling reasons warrant such a reduction.” 18
U.S.C. § 3582(c)(1)(A). Courts may reduce a sentence
only “after considering the factors” in 18 U.S.C. § 3553(a),
and only if the reduction “is consistent with applicable policy statements issued by the Sentencing Commission,” id.
§ 3582(c)(1)(A).
7
Having employed the terms “extraordinary and compelling,” which were capacious and elastic by design,
Congress simultaneously and expressly delegated the
Commission broad authority to “describe what should be
considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a
list of specific examples.” 28 U.S.C. § 994(t). Congress
imposed one—and only one—limitation on the Commission’s authority: “Rehabilitation of the defendant alone
shall not be considered an extraordinary and compelling
reason.” Id.
Congress’ express delegation of this authority to the
Commission reflects Congress’ judgment that the Commission is best positioned to identify the “extraordinary
and compelling reasons” that may warrant a sentence reduction. Unlike any other actor in our federal system, the
Commission combines judicial experience, sentencing expertise, and national data-gathering tools—all while
remaining accountable to Congress. The Sentencing Reform Act “placed the Commission in the Judicial Branch
precisely because of the Judiciary’s special knowledge
and expertise” in sentencing. Mistretta, 488 U.S. at 396.
At the same time, the Commission “has the capacity
courts lack to base its determinations on empirical data
and national experience, guided by a professional staff
with appropriate expertise.” Kimbrough v. United
States, 552 U.S. 85, 109 (2007) (quotation omitted).
The Commission’s compassionate-release policies—
like all its policies—are subject to congressional control.
Congress can direct the Commission to “revoke or amend
any or all of the Guidelines . . . at any time.” Mistretta,
488 U.S. at 393-94. And although the Commission’s proposed policy statements need not undergo the mandatory
congressional review period that applies to guidelines
amendments, the Commission’s practice is to “include
8
amendments to policy statements and commentary in any
submission of guideline amendments to Congress.” U.S.
Sent’g Comm’n, Rules of Practice and Procedure 4.1
(2016); e.g., Sentencing Guidelines for United States
Courts, 88 Fed. Reg. 28,254, 28,255 (May 3, 2023).
By authorizing the Commission to issue “policy statements” (plural) on compassionate release, 28 U.S.C.
§ 994(t), Congress contemplated that the Commission
would issue new policy statements over time as it gained
additional awareness of the circumstances that warrant
sentence reductions. Indeed, the Sentencing Reform Act
encouraged such changes, tasking the Commission with
“reflect[ing] . . . advancement in knowledge of human behavior.”
Id. § 991(b)(1)(C).
Congress “fore[saw]
continuous evolution” in the Commission’s work. Rita,
551 U.S. at 350.
The Commission has done exactly that, substantially
revising its description of “extraordinary and compelling
reasons” three times. See U.S.S.G. Supp. App. C,
Amends. 698, 799, 814 (effective 2007, 2016, and 2023).
The Commission’s power encompasses both setting and
refining over time federal sentencing policy on compassionate release, allowing it to guide courts as it advances
the purposes of sentencing, however incrementally. 28
U.S.C. § 991(b)(1).
B. The Commission Has Authority To Identify Changes
in Law as One Factor Relevant to the Individualized
Assessment of “Extraordinary and Compelling Reasons”
Under the Sentencing Reform Act, the Commission
may guide courts to consider certain changes in law in determining whether a defendant presents an extraordinary
and compelling reason for a sentence reduction under appropriate circumstances.
Nothing about the plain
9
meaning of the terms “extraordinary” and “compelling”
excludes changes in law. 3 See Rutherford Petitioner Br.
15-16 (providing dictionary definitions); Carter Petitioner
Br. 41 (same). The Sentencing Reform Act therefore does
not prohibit the Commission from recognizing changes in
law as one factor in the extraordinary-and-compelling
analysis.
Not every change in law may be extraordinary and
compelling, but some can be when viewed in the context
of an individual case. Changes to criminal penalties are
themselves rare, and they may produce a disparity so extreme or unjust as to create an extraordinary and
compelling reason in an individual case, when considered
in light of the defendant’s personal circumstances. For
example, where a defendant was sentenced under an inordinately harsh statutory penalty, Congress’ later decision
to mitigate that severity might be an extraordinary and
compelling reason to grant a sentence reduction in the defendant’s case.
Section 3582(c)(1)(A) “provides a
mechanism for relief” when post-sentencing developments “produce[] unfairness to the defendant.” Setser v.
United States, 566 U.S. 231, 243 (2012). Just like with aging or health-related challenges a defendant may face, the
extraordinary-and-compelling analysis focuses not on
whether the condition is itself rare, but on whether, when
weighed among other considerations, it produces an exceptional reason to reconsider that defendant’s sentence.
When it enacted the Sentencing Reform Act, Congress recognized
that “an eventual reduction in the length of a term of imprisonment is
justified by changed circumstances,” including for example, “cases of
severe illness, cases in which other extraordinary and compelling circumstances justify a reduction of an unusually long sentence, and
some cases in which the sentencing guidelines for the offense of which
the defend[ant] was convicted have been later amended to provide a
shorter term of imprisonment.” S. Rep. No. 98-225, at 55-56.
3
10
Identifying the circumstances in which a change in
law can, together with other individualized considerations, produce an extraordinary and compelling reason for
a sentence reduction is well within the authority and expertise of the Commission. The Commission routinely
studies sentencing outcomes nationwide, with an eye toward diagnosing unwarranted disparities and detecting
other shortcomings in the sentencing system’s fulfillment
of its purposes. See 28 U.S.C. § 991(b)(2) (describing the
Commission’s purpose of “develop[ing] means of measuring the degree to which the sentencing, penal, and
correctional practices are effective in meeting the purposes of sentencing”). For instance, the Commission has
periodically assessed the circumstances under which
mandatory minimum penalties have produced unjust outcomes. See, e.g., U.S. Sent’g Comm’n, 2011 Report to the
Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 359 (Oct. 2011) 4 (“The
‘stacking’ of mandatory minimum penalties for multiple
violations of [title 18] section 924(c) results in excessively
severe and unjust sentences in some cases.”).
Applying its expertise and aided by public input and
the adjudicatory experience of courts nationwide, the
Commission can study the circumstances in which a
change in law may constitute an extraordinary and compelling reason for a sentence reduction in individual cases
and issue a policy statement reflecting its conclusions. See
Rita, 551 U.S. at 350. When it does so, courts may then
utilize their “access to, and greater familiarity with, the
https://www.ussc.gov/research/congressional-reports/2011-reportcongress-mandatory-minimum-penalties-federal-criminal-justicesystem.
4
11
individual case and the individual defendant” to determine whether a change in law is extraordinary and
compelling in a given case. See id. at 357.
II. The First Step Act Does Not Curtail the Commission’s Expressly Delegated Authority To Describe “Extraordinary
and Compelling Reasons”
In concluding that the Commission lacks the authority
to identify certain statutory changes in sentencing law as
extraordinary and compelling reasons for sentence reduction, the Third Circuit leaned heavily on Congress’
decision not to make the First Step Act’s reforms categorically retroactive. Rutherford Pet. App. 30a n.22, 32a
(“When it comes to the modification of § 924(c), Congress
has already taken retroactivity off the table, so we cannot
rightly consider it.”). According to the Third Circuit, that
decision precludes the Commission from describing these
changes as potentially “extraordinary and compelling reasons”—even when combined with other factors. 5
The decision below did not adequately grapple with
the Sentencing Reform Act’s express delegation of authority to the Commission or the plain meaning of
“extraordinary and compelling.” Instead, the Third Circuit purported to find in the First Step Act a “will of
Congress” to restrict authority that Congress had expressly delegated to the Commission decades earlier.
Rutherford Pet. App. 29a. In reaching that conclusion,
the Third Circuit failed to apply the stringent standard
for finding an implicit repeal and stretched Congress’ targeted retroactivity choice into a sweeping principle. In
The Third Circuit did not pass on whether other, nonstatutory
changes in law might constitute extraordinary and compelling reasons rendering a defendant eligible for compassionate release.
Rutherford Pet. App. 31a n.23. That question is not presented in
these cases.
5
12
short, the Third Circuit violated a cardinal rule of statutory interpretation by “displac[ing] ordinary statutory
terms with judicial ‘speculation as to Congress’s intent.’”
Pulsifer v. United States, 601 U.S. 124, 179 (2024) (Gorsuch, J., dissenting) (quoting Magwood v. Patterson, 561
U.S. 320, 334 (2010)) (cleaned up).
The First Step Act did not (expressly or impliedly) diminish Congress’ express delegation of authority, three
decades earlier, to the Commission to describe and refine
through policy statements “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).
A. The First Step Act Does Not Explicitly Restrict the
Commission’s Authority
In 2018, with broad bipartisan support, including
from Senators Booker and Durbin as two of the Act’s
sponsors, “a supermajority of Congress enacted the First
Step Act, a landmark piece of legislation that changed the
federal criminal-sentencing system in numerous respects.” Hewitt v. United States, 145 S. Ct. 2165, 2169
(2025); see First Step Act, Pub. L. No. 115-391, 132 Stat.
5194 (2018).
One key aim of the First Step Act was alleviating “the
much-maligned ‘stacking’ sentencing regime” under 18
U.S.C. § 924(c). Hewitt, 145 S. Ct. at 2176; First Step Act
§ 403. “An ‘extraordinary political coalition’ formed, as
members of Congress worked together to develop ‘a bipartisan sentencing and prison reform bill’ to address
§ 924(c) stacking.” Hewitt, 145 S. Ct. at 2176 (quoting 164
Cong. Rec. S7645 (Dec. 17, 2018) (statement of Sen. Durbin)). “The First Step Act was the much-anticipated,
much-heralded fruit of their labor—and one that many in
Congress hoped would yield immediate benefits.” Id.
13
In a separate title of the Act, Congress made a single
change to the compassionate release provision. It created
a new procedural pathway for compassionate release by
permitting prisoners themselves to move for a sentence
reduction. First Step Act § 603(b)(1). Before the First
Step Act, only BOP could move for compassionate release.
18 U.S.C. § 3582(c)(1)(A) (2017). BOP seldom used this
power. In a 2013 report, DOJ’s Inspector General admonished BOP for its poor and inconsistent management of
the compassionate-release program, with an average annual release of just twenty-four individuals. See U.S.
Dep’t of Just., The Federal Bureau of Prisons’ Compassionate Release Program 1 (Apr. 2013). 6 Responding to
this report and public criticism, the Commission issued a
policy statement in 2016 that broadened its description of
“extraordinary and compelling reasons” and encouraged
BOP to move for compassionate release whenever “extraordinary and compelling reasons” exist. U.S.S.G.
Supp. App. C, Amend. 799. Still, BOP persisted in its low
grant rates, approving just 6 percent of compassionate release applications from 2013 to 2017. See Christie
Thompson, Frail, Old and Dying, but Their Only Way
Out of Prison Is a Coffin, N.Y. Times (Mar. 7, 2018). 7
Congress intervened in the First Step Act and eliminated the bottleneck caused by BOP’s gatekeeping role.
In making this change, Congress sought to “increas[e] the
use and transparency of compassionate release.” First
Step Act § 603(b) (capitalization omitted). The new procedural mechanism worked as intended.
Between
October 2019 and September 2024 (a period that included
the COVID-19 pandemic), approximately 33,000 motions
for compassionate release were filed and approximately
https://oig.justice.gov/reports/2013/e1306.pdf.
https://www.nytimes.com/2018/03/07/us/prisons-compassionate-release-.html.
6
7
14
5,000 were granted. U.S. Sent’g Comm’n, Compassionate
Release Data Report: Fiscal Year 2023, at tbl.1 (Mar.
2024); 8 U.S. Sent’g Comm’n, Compassionate Release
Data Report: Fiscal Year 2024, at tbl.1 (Mar. 2025). 9
But this new procedural pathway was just that—procedural.
It did not alter the “extraordinary and
compelling reasons” standard that governs compassionate release. It did not change the requirement that any
sentencing “reduction [be] consistent with applicable policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3582(c)(1)(A). Nor did it touch the Commission’s
authority to issue policy statements regarding “the sentence modification provisions set forth in . . . [section]
3582(c),” 28 U.S.C. § 994(a)(2)(C), or to “describe what
should be considered extraordinary and compelling reasons” for purposes of compassionate release, id. § 994(t).
Following the First Step Act, the statutory bar on “[r]ehabilitation of the defendant alone” remains the sole express
limitation on the Commission’s latitude to describe “extraordinary and compelling reasons for sentence
reduction.” 28 U.S.C. § 994(t).
B.
The First Step Act Does Not Impliedly Rescind the
Commission’s Authority
The decision below hinges on the Third Circuit’s assumption that Congress’ decision not to make the First
Step Act’s changes to section 924(c) categorically retroactive implicitly forbade the Commission from describing
those changes in law as relevant to the “extraordinary and
8
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/FY23Compassionate-Release.pdf.
9
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/FY24Compassionate-Release.pdf.
15
compelling” analysis. Rutherford Pet. App. 29a. That
conclusion is wrong.
Repeals by implication are disfavored. Morton v.
Mancari, 417 U.S. 535, 549 (1974). Bedrock principles of
separation of powers dictate a “strong presumption” that
“Congress will specifically address preexisting law when
it wishes to suspend its normal operations in a later statute.” Epic Sys. Corp. v. Lewis, 584 U.S. 497, 510 (2018)
(cleaned up). Courts will find an implied repeal only if
“provisions in two statutes are in ‘irreconcilable conflict,’
or where the latter Act covers the whole subject of the
earlier one and ‘is clearly intended as a substitute.’”
Branch v. Smith, 538 U.S. 254, 273 (2003) (plurality op.)
(quoting Posadas v. Nat’l City Bank, 296 U.S. 497, 503
(1936)). Unsurprisingly, this “stringent standard” is
rarely met. J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred
Int’l, Inc., 534 U.S. 124, 142 (2001) (citation omitted). That
is particularly true in the sentencing context, see Rodriguez v. United States, 480 U.S. 522, 524 (1987), “for
Congress has shown that it knows how to direct sentencing practices in express terms.” Concepcion v. United
States, 597 U.S. 481, 497 (2022) (quotes omitted).
The Third Circuit did not apply this “stringent”
standard. Instead, it simply concluded that it would be
“inconsistent” with the First Step Act for sentencing
courts to consider the reforms to section 924(c) as part of
the “extraordinary and compelling” analysis because
“Congress specifically decided that the changes to the
§ 924(c) mandatory minimums would not apply to people
who had already been sentenced.” Rutherford Pet. App.
29a (citation omitted). According to the Third Circuit,
reading “Congress’s nonretroactivity directive as simultaneously creating an extraordinary and compelling
reason for early release . . . would sow conflict within the
statute.” Id. (citation omitted).
16
That reasoning misunderstands the nonretroactivity
decision that Congress made in the First Step Act. The
First Step Act does not mention the “extraordinary and
compelling” standard of section 3582(c)(1)(A). Nor does it
hint at a wish to displace the Commission’s authority under section 994(t)—let alone do so “clear[ly] and
manifest[ly],” as the repeal-by-implication standard requires. Me. Cmty. Health Options v. United States, 590
U.S. 296, 315 (2020) (quotes omitted). Far from creating
an “irreconcilable conflict,” Congress’ decision not to
make its changes to section 924(c) categorically retroactive is entirely compatible with Congress’ separate,
longstanding directive that an expert deliberative body
describe the “extraordinary and compelling reasons” that
courts assess on an individualized basis to determine eligibility for sentence reduction.
Congress is “not shy about placing . . . limits” on
courts’ discretion in sentence-modification proceedings
“where it deems them appropriate.” Concepcion, 597 U.S.
at 494. 10 Congress “knows how to direct sentencing practices in express terms.” Kimbrough, 552 U.S. at 103. In
the same provision delegating to the Commission the authority to describe “extraordinary and compelling
reasons,” Congress dictated that “[r]ehabilitation of the
defendant alone shall not be considered an extraordinary
and compelling reason.” 28 U.S.C. § 994(t). Congress
could have said the same about its amendment to section
To the extent the Third Circuit assumed that the First Step Act
cabined courts’ sentencing discretion, this Court rejected that argument in Concepcion, 597 U.S. 481. “Nothing in the text and structure
of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion.” Id. at
495; see also United States v. Davis, 99 F.4th 647, 657-58 (4th Cir.
2024) (“Concepcion’s broad reasoning permits federal judges to think
expansively about what constitute ‘extraordinary and compelling reasons’ for release, absent specific congressional limitations.”).
10
17
924(c) or nonretroactive sentencing reforms generally.
See Polselli v. IRS, 598 U.S. 432, 439 (2023) (“Had Congress wanted to include” other restrictions, “it certainly
knew how to do so.”). But it did not create such a bar. See
United States v. Ruvalcaba, 26 F.4th 14, 26 (1st Cir. 2022)
(declining to “infer that Congress intended such a categorical and unwritten exclusion in light of its specific
statutory exclusion regarding rehabilitation”); United
States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022) (“To
hold that district courts cannot consider non-retroactive
changes in sentencing law would be to create a categorical
bar against a particular factor, which Congress itself has
not done.”).
Considerations of fairness and finality, among other
factors, affect Congress’ decision whether to make penalty changes retroactive.
Weighing those factors,
Congress may choose from a range of retroactivity options, from automatic vacatur of sentences to across-theboard eligibility for case-by-case resentencing, or anything in between. See, e.g., First Step Act § 404(b)
(categorical eligibility for resentencing for qualified defendants). Or Congress may decide against blanket
retroactivity or blanket eligibility for retroactivity. See,
e.g., id. § 403(b).
That legislative choice does not bear on the Commission’s authority to describe “extraordinary and
compelling reasons” for compassionate release in particular cases.
The Commission’s expressly delegated
authority to describe “extraordinary and compelling reasons” for compassionate release stands separate and
apart from Congress’ retroactivity decisions. The Commission’s decision to describe changes in law in limited
circumstances, and within courts’ larger discretionary
analysis, as potentially presenting a reason for compassionate release does not tread on Congress’ legislative
18
role any more than considering a defendant’s old age, declining health, or other personal circumstances, even
though that the defendant was sentenced under a statute
that lacked special solicitude for those circumstances.
Congress can both decide against categorical retroactivity and empower the Commission to decide whether
changes in law can create extraordinary and compelling
reasons for compassionate release on an individualized
basis.
III. The Commission’s Policy Statement Is an Appropriately
Limited and Valid Exercise of the Commission’s Expressly Delegated Authority To Describe “Extraordinary
and Compelling Reasons”
The Commission’s policy statement, implemented in
relevant part at section 1B1.13(b)(6), appropriately identifies a narrow set of cases involving unusually long
sentences that may warrant compassionate release. The
policy statement is perfectly consistent with governing
law and well within the Commission’s authority. The circuits that have reached the opposite conclusion misread
the statutory text and fail to respect Congress’ express
delegation of authority.
A.
The Policy Statement Is Appropriately Limited
After thorough consideration, the Commission issued
a conservative policy statement that applies in a limited
set of cases.
1. Congress expressly directed the Commission to
describe via policy statements “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 expected that, after it enacted the First Step Act, the
Commission would update its policy statement to guide
19
courts’ discretion in deciding defendant-filed compassionate-release motions. But two weeks after the First Step
Act became law, the Commission lost its quorum of voting
members and was incapacitated for several years. U.S.
Sent’g Comm’n, 2022 Annual Report 2; 11 U.S. Sent’g
Comm’n, 2018 Annual Report 2. 12
During that multi-year period without a quorum, most
courts of appeals held that the Commission’s then-existing policy statement was inapplicable to defendant-filed
motions. See United States v. Andrews, 12 F.4th 255, 259
(3rd Cir. 2021) (collecting cases). This left most district
courts without an applicable policy statement to direct
their review of defendant-filed compassionate-release motions. In this void, thousands of compassionate-release
motions filed during the COVID-19 pandemic exposed
significant geographic disparities in grant rates: 9.6 percent granted in the Fifth and Eighth Circuits versus 28.8
percent in the First and D.C. Circuits. U.S. Sent’g
Comm’n, Compassionate Release Data Report: Fiscal
Years 2020 to 2022, at tbl.3 (Dec. 2022). 13
Members of the Senate Judiciary Committee across
the political spectrum recognized the importance of “restor[ing] the Commission’s quorum and enabl[ing] the
Commission to resume its important work,” including
“the critical task of implementing the First Step Act” and,
chiefly, “changes to compassionate release.” Hearing on
Nominations Before the Sen. Judiciary Comm., 117th
Cong. (2022) (statements of Chair Durbin and Ranking
11
https://www.ussc.gov/about/annual-report-2022.
https://www.ussc.gov/about/annual-report/archive/annual-report2018.
13
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/20221219Compassionate-Release.pdf.
12
20
Member Grassley). 14 The commissioners were therefore
“nominated and confirmed in an overwhelmingly bipartisan spirit.” U.S. Sent’g Comm’n, Pub. Meeting, Tr. 6
(Feb. 23, 2023) [hereinafter Pub. Meeting] (statement of
Hon. Carlton W. Reeves). 15
2. With its quorum restored, the Commission’s key
priority was updating its policy statement at section
1B1.13 to “implement the First Step Act” and “further describe what should be considered extraordinary and
compelling reasons.” Proposed Priorities for Amendment
Cycle, 87 Fed. Reg. 60,438, 60,439 (Oct. 5, 2022). The
Commission received over 8,000 public comments—“by
far the most” ever received—on its proposed priorities.
U.S. Sent’g Comm’n, 2022 Annual Report, supra p. 19.
After reviewing the public comments, updating section
1B1.13 remained the Commission’s top priority for the
amendment cycle. Final Priorities for Amendment Cycle,
87 Fed. Reg. 67,756, 67,756 (Nov. 9, 2022). The Commission then published a notice and request for public
comment and hearing on its proposed amendments. Sentencing Guidelines for United States Courts, 88 Fed. Reg.
7180 (Feb. 2, 2023). One proposal was to add to the description of “extraordinary and compelling reasons”:
“Changes in Law.—The defendant is serving a sentence
that is inequitable in light of changes in the law.” Id. at
7184. The Commission indicated a “heightened interest”
in suggestions regarding this proposal, stressing its openness to public comment. Id. at 7180.
14
https://www.judiciary.senate.gov/committee-activity/hearings/06
/08/2022/nominations.
15
https://www.ussc.gov/policymaking/meetings-hearings/publichearing-february-23-24-2023.
21
Again, the Commission received and considered substantial comments—some supporting, some opposing,
and some suggesting a more tailored approach to adding
changes in law to the Commission’s description of “extraordinary and compelling reasons.” 16 In strong support
of the changes-in-law proposal, for example, Senators
Booker and Durbin, along with Senator Hirono, submitted commentary observing that “[t]he statutory language
of § 3582(c)(1)(A) is certainly broad enough to encompass
legal changes which have occurred since the defendant’s
original sentencing.” Letter from Senators Cory A.
Booker, Richard J. Durbin, and Mazie K. Hirono to Hon.
Reeves 2 (Mar. 14, 2023). 17 They noted, however, that a
change in law “alone would not entitle [a defendant] to relief,” as courts would still have to consider the remainder
of section 1B1.13 and the section 3553(a) factors. Id.
Many current and former federal judges supported the
Commission’s recognition that post-sentencing changes in
law may, in appropriate cases, qualify as “extraordinary
and compelling reasons” for sentence reduction. 18
See U.S. Sent’g Comm’n, Sample of Public Comment Received on
Proposed
Amendments:
88
FR
7180
(Mar.
2023),
https://www.ussc.gov/sites/default/files/pdf/amendment-process/
public-comment/202303/88FR7180_public-comment.pdf. The Commission also held public hearings on its proposed amendments. See
Sentencing Guidelines for United States Courts, 88 Fed. Reg. 28,254,
28,254 (May 3, 2023). Chair Carlton Reeves said to the public on the
first day of hearings: “The Commission’s policies need to reflect not
just our perspectives, but your research, your data, your experiences.” Pub. Meeting, supra p. 20.
17
https://www.ussc.gov/sites/default/files/pdf/amendment-process/
public-hearings-and-meetings/20230719/FPD.pdf.
16
See, e.g., Joint Letter from Wayne Andersen, Former U.S. District
Judge, et al., to U.S. Sent’g Comm’n 1-2 (Mar. 14, 2023), Letter from
Hon. Lynn Adelman to U.S. Sent’g Comm’n, Letter from Hon. Martha Vázquez to U.S. Sent’g Comm’n (Mar. 7, 2023),
18
22
On the other hand, while the Department of Justice
“encourage[d] the Commission to clearly articulate . . . the circumstances where compassionate release is
appropriate,” and voiced its shared concern “about equity
in the criminal justice system, including as it pertains to
unusually long sentences,” it opposed the changes-in-law
proposal as written. Letter from Jonathan J. Wroblewski
to Hon. Reeves 2, 6 (Feb. 15, 2023). 19
3. The Commission responded by meaningfully narrowing its policy statement. The revised policy statement,
which the Commission submitted to Congress, and which
became effective, contains no less than five guardrails.
See Sentencing Guidelines for United States Courts, 88
Fed. Reg. 28,254, 28,255 (May 3, 2023). A change in law
“may be considered in determining whether the defendant presents an extraordinary and compelling reason,”
but “only where”: (1) the sentence is “unusually long”; (2)
the defendant has served at least 10 years in prison; (3)
the change in law is not a nonretroactive amendment to
the Guidelines Manual; (4) the change in law produces a
“gross disparity” between the existing sentence and the
likely contemporaneous sentence; and (5) there is “full
consideration of the defendant’s individualized circumstances.” U.S.S.G. § 1B1.13(b)(6) (emphases added). The
Commission also added a “Limitation on Changes in Law”
provision prohibiting consideration of changes in law in
the extraordinary-and-compelling analysis outside of
these bounds. Id. § 1B1.13(c).
The final policy statement specifies that courts are
permitted to find an extraordinary and compelling reason
https://www.ussc.gov/policymaking/public-comment/public-comment-march-14-2023.
19
https://www.justice.gov/criminal/media/1369086/dl?inline.
23
based on changes in law if these conditions are satisfied.
Such a finding is not mandatory. And only if a court decides, in its discretion, that an extraordinary and
compelling reason exists in an individual case does it proceed to analyze the section 3553(a) factors to decide
whether to reduce the sentence. The policy statement
does not make any defendant automatically eligible for a
sentence reduction. Cf. Chen, 48 F.4th at 1100. “To obtain
a sentence reduction based in part on . . . non-retroactive
changes, each defendant will have to overcome many
more obstacles than a defendant who is automatically eligible for a resentencing due to a truly retroactive change
in the law.” Id. For example, the defendant still must
demonstrate that the changes in law “rise to the level of
‘extraordinary and compelling’ in his individualized circumstances,” and the district court must consider
administrative exhaustion and the section 3553(a) factors.
Id. (citing 18 U.S.C. § 3582(c)(1)). Additionally, the court
must find that “[t]he defendant is not a danger to the
safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g).” U.S.S.G. § 1B1.13(a)(2).
B.
The Policy Statement Is Valid
As discussed, the Third Circuit reasoned that the policy statement is invalid because it “conflicts with the will
of Congress” to make the First Step Act’s changes to section 924(c) nonretroactive. Rutherford Pet. App. 29a. But
the Third Circuit failed to grapple with the statutory text.
And, although the Third Circuit recognized Congress’ express delegation to the Commission, it refused to respect
the Commission’s interpretation of “extraordinary and
compelling.” Id. at 27a, 32a-36a. Those failures violated
separation-of-powers principles.
1. As always, ascertaining Congress’ intent begins
with the text. Staples v. United States, 511 U.S. 600, 605
24
(1994). There is nothing about the plain meaning of “extraordinary and compelling” that categorically excludes
changes in law. Although not every change in law will be
extraordinary and compelling, some can be. As relevant
to these cases, the magnitude of the changes to criminal
penalties created by the First Step Act are rare. “The
First Step Act’s clarification of § 924(c) resulted in not just
any sentencing change, but an exceptionally dramatic
one.” United States v. McCoy, 981 F.3d 271, 285 (4th Cir.
2020).
Even if changes in law are not themselves rare, in individual cases, changes in law may produce extreme and
unjust disparities between similarly situated defendants
such that those disparities, considered in the context of
the defendant’s personal circumstances, create an “extraordinary and compelling” reason. The same is true for
aging or health-related challenges a defendant may face:
those challenges may produce extraordinary and compelling reasons for a sentence reduction even if the medical
condition or other personal circumstance is not rare in and
of itself. See United States v. Bricker, 135 F.4th 427, 460
(6th Cir. 2025) (Stranch, J., dissenting) (“it is ordinary to
have been sentenced under a law that subsequently
changed, but it is not unreasonable to conclude that it is
extraordinary to be so affected by such a change as to satisfy USSG § 1B1.13(b)(6)”).
The rest of the statute confirms the breadth of “extraordinary and compelling reasons.” Congress imposed
only one limitation on the Commission’s authority to describe “extraordinary and compelling reasons”—
rehabilitation alone does not suffice. 28 U.S.C. § 994(t).
Under the expressio unius est exclusio alterius canon,
Congress’ inclusion of this singular restriction weighs
against reading others into the statute. Bittner v. United
25
States, 598 U.S. 85, 94-95 (2023); see also Ruvalcaba, 26
F.4th at 26.
2. The Commission’s exercise of its expressly delegated authority is entitled to respect. Congress expressly
delegated the Commission authority to describe “extraordinary and compelling reasons” and placed only one limit
on that authority. Supra pp. 7, 16. When Congress expressly delegates such authority, it authorizes the agency
to “exercise a degree of discretion.” Loper Bright Enters.
v. Raimondo, 603 U.S. 369, 394 (2024). Courts must “respect such delegations of authority,” and limit themselves
to policing the “outer statutory boundaries of those delegations.” Id. at 404. Put simply, Loper Bright does not
prohibit deference to the Commission’s exercise of its expressly delegated authority. Contra Bricker, 135 F.4th at
440-41; see Carter Petitioner Br. 18-31.
Because Congress expressly delegated authority to
the Commission, the only question is whether the policy
statement is “reasonable.” United States v. Black, 131
F.4th 542, 549 (7th Cir. 2025) (Hamilton, J., dissenting);
accord Bricker, 135 F.4th at 453 (Stranch, J., dissenting).
That bar is met easily here. The policy statement strikes
a carefully calibrated balance: changes in law alone are
not enough; but they may be considered if they satisfy at
least five additional guardrails. Supra p. 22. No statute
prohibits this judicious approach.
In sum, this Court’s precedent requires courts to respect the policy statement as an exercise of expressly
delegated authority. Because the policy statement fits
comfortably within the “outer statutory boundaries,” it
must be upheld. It is not the job of courts to engage in the
“discretionary policymaking” properly “left to the political branches.” Loper Bright, 603 U.S. at 404.
26
3. Disregarding these principles threatens the separation of powers and improperly substitutes courts’
policymaking preferences for those of Congress. The
Commission has done what Congress entrusted it, above
all others, to do. See 28 U.S.C. §§ 994(a)(2)(C), (t). Consistent with “[t]he extraordinary powers and
responsibilities vested in the Commission,” S. Rep. No.
98-225, at 160, and the information-gathering tools Congress specified, see 28 U.S.C. § 995(a), the Commission
consulted authorities and collected data. It then promulgated proposed amendments to its policy statement,
considered and addressed substantial public comments,
and submitted its proposal to Congress for review.
Moreover, the newly revised section 1B1.13(b)(6) advances the purposes Congress specified to guide the
Commission’s decisionmaking. One of the Commission’s
express purposes is to “avoid[] unwarranted sentencing
disparities among defendants with similar records who
have been found guilty of similar criminal conduct while
maintaining sufficient flexibility to permit individualized
sentences when warranted.” 28 U.S.C. § 991(b)(1)(B).
Section 1B1.13(b)(6) accomplishes this purpose by targeting gross sentencing disparities while emphasizing full
consideration of the defendant’s individualized circumstances. Another purpose Congress gave the Commission
is to “reflect . . . advancement in knowledge of human behavior as it relates to the criminal justice process.” Id.
§ 991(b)(1)(C). Congress contemplated that the Commission would update its description of “extraordinary and
compelling reasons” to reflect evolving norms and understandings of criminal justice, as the Commission has done
here.
Consequently, respect for separation of powers requires courts to regard both statutes—the Sentencing
27
Reform Act and the First Step Act—as fully effective, rather than picking and choosing between them. See Me.
Cmty. Health Options, 590 U.S. at 315; Epic Sys., 584 U.S.
at 510-11. That’s easy enough here: the First Step Act’s
nonretroactive changes to criminal penalties do not make
defendants previously sentenced automatically eligible
for resentencing, and the Commission retains its expressly delegated authority under section 994(t) to
describe “extraordinary and compelling reasons” for compassionate release.
Below, the government argued that the policy statement contravenes separation-of-powers principles by
supplanting Congress’ legislative power to establish criminal penalties. That argument does not withstand
scrutiny. No one disputes that Congress may restrict, or
even eliminate, the Commission’s authority to describe intervening changes in law as potential grounds for
compassionate release. But Congress has not done that.
To the contrary, Congress granted the Commission wide
discretion (since left untouched) to describe “extraordinary and compelling reasons” for compassionate release.
Given this express congressional delegation, the
Commission’s guidance to courts to consider changes in
law, within a larger discretionary analysis, as potentially
presenting a reason for compassionate release does not
tread on Congress’ legislative role any more than considering a defendant’s old age, declining health, or other
personal circumstances, even though the defendant was
sentenced under a statute that lacked special solicitude
for those circumstances. As the First Circuit put it,
There is a salient ‘difference between automatic
vacatur and resentencing of an entire class of sentences’ on the one hand, ‘and allowing for the
provision of individual relief in the most grievous
cases’ on the other hand . . . Congress’s judgment
28
to prevent the former is not sullied by a district
court’s determination, on a case-by-case basis, that
a particular defendant has presented an extraordinary and compelling reason due to his idiosyncratic
circumstances . . . .
Ruvalcaba, 26 F.4th at 27 (citations omitted); see also
McCoy, 981 F.3d at 286-87; Chen, 48 F.4th at 1100-01. Respect for separation of powers demands that Congress,
not courts, determine how to balance the competing considerations underlying these legislative decisions. See
Epic Sys., 584 U.S. at 510-11.
In the forty years since Congress created the Sentencing Commission, our nation’s criminal justice system
has come to depend greatly upon it, including to implement landmark sentencing reform legislation such as the
Sentencing Reform Act and the First Step Act and to exercise authority expressly delegated to it by Congress.
No reason exists to invalidate the Commission’s efforts
here.
CONCLUSION
For the foregoing reasons, the judgments of the
Third Circuit should be reversed.
Respectfully submitted,
AMY MASON SAHARIA
Counsel of Record
DANIELLE J. SOCHACZEVSKI
JONATHAN E. SPRATLEY
WILLIAMS & CONNOLLY LLP
680 Maine Avenue SW
Washington, DC 20024
(202) 434-5000
asaharia@wc.com
AUGUST 15, 2025
Counsel for Amici Curiae
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.