Amicus Curiae Brief — Johnnie Markel Carter, Petitioner v. United States

No. 24-860

In the

Supreme Court of the United States

JOHNNIE MARKEL CARTER,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Third Circuit

BRIEF OF FAMM AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

Mary Price

General Counsel

Shanna Rifkin

Deputy 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

Attorneys for Amicus Curiae

February 28, 2025

131009

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION & SUMMARY OF ARGUMENT . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Question Presented Is Important

and Requires Resolution . . . . . . . . . . . . . . . . . . . . 5

A. Section 1B1.13(b)(6) Properly Resolved

an Issue that Plagued Lower Courts . . . . . 5

B. Third Circuit Precedent Perpetuates

Uncertainty and Inconsistency . . . . . . . . . . 7

C. Judicial Resolution by this Court Is

Necessary . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

II. The Third Circuit’s Precedent Is Wrong . . . . . 12

A. The Commission Properly Exercised

Expressly Delegated Authority . . . . . . . . . 12

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

Legal Changes Retroactive . . . . . . . . . . . . 13

C. G over n i ng St at ut or y Aut hor it y

Supports Petitioner . . . . . . . . . . . . . . . . . . . 17

ii

Table of Contents

Page

D. Third Circuit Precedent Contravenes

Congressional Intent . . . . . . . . . . . . . . . . . . 21

E. Third Circuit Precedent Undermines

Other Important Principles . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF CITED AUTHORITIES

Page

Cases

BedRoc Ltd., LLC v. United States,

541 U.S. 176 (2004) . . . . . . . . . . . . . . . . . . . . . . . . 17, 21

Bifulco v. United States,

447 U.S. 381 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Bostock v. Clayton Cnty.,

590 U.S. 644 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Braxton v. United States,

500 U.S. 344 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Brown v. United States,

602 U.S. 101 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Cannon v. Univ. of Chicago,

441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Concepcion v. United States,

597 U.S. 481 (2022) . . . . . . . . . . . . . . . . 2, 17, 18, 21, 24

Connecticut Nat. Bank v. Germain,

503 U.S. 249 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Dean v. United States,

581 U.S. 62 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Epic Sys. Corp. v. Lewis,

584 U.S. 497 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

Cited Authorities

Page

Harrison v. Vose,

50 U.S. (9 How.) 372 (1850) . . . . . . . . . . . . . . . . . . . . . 19

Kimbrough v. United States,

552 U.S. 85 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Mistretta v. United States,

488 U.S. 361 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Moskal v. United States,

498 U.S. 103 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

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

567 U.S. 519 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Pulsifier v. United States,

601 U.S. 124 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Setser v. United States,

566 U.S. 231 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

v

Cited Authorities

Page

United States v. Adair,

38 F.4th 341 (3d Cir. 2022) . . . . . . . . . . . . . . . . . . . . . 19

United States v. Andrews,

12 F.4th 255 (3d Cir. 2021) . . . . . . . . . . . . . . . . 4, 14, 18

United States v. Crandall,

No. 89-CR-21,

2024 WL 945328 (N.D. Iowa Mar. 5, 2024) . . . . . . . 12

United States v. McCoy,

981 F.3d 271 (4th Cir. 2020) . . . . . . . . . . . . 6, 15, 18, 20

United States v. McHenry,

No. 1:93-CR-84,

2024 WL 1363448 (N.D. Ohio Mar. 29, 2024) . . . . 11, 12

United States v. Moore, et al.,

25 F.3d 563 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Moore,

115 F.3d 1348 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . 9

United States v. Moore,

No. 22-1980,

2022 WL 17982907 (7th Cir. Dec. 29, 2022) . . . . . . . . 9

United States v. R.L.C.,

503 U.S. 291 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

Cited Authorities

Page

United States v. Ramos,

No. 96-CR-815-4,

2024 WL 4710905 (N.D. Ill. Nov. 6, 2024) . . . . . . . . 11

United States v. Rutherford,

120 F.4th 360 (3d Cir. 2024) . . . . . 4, 6, 11, 14, 17-21, 23

United States v. Ruvalcaba,

26 F.4th 14 (1st Cir. 2022) . . . . . . . . . . . . . . . . . . . . . . 15

United States v. Santana-Cabrera,

464 F. App’x 537 (7th Cir. 2012) . . . . . . . . . . . . . . . . . . 8

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) . . . . . . . . . 8

United States v. Spradley,

No. 98-CR-38,

2024 WL 1702873 (S.D. Ind. Apr. 18, 2024),

appeal dismissed, No. 24-1762,

2024 WL 4707883 (7th Cir. June 7, 2024) . . . . . . . . . 18

United States v. Thacker,

4 F.4th 569 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Universal C. I. T. Credit Corp.,

344 U.S. 218 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vii

Cited Authorities

Page

United States v. Ware,

720 F. Supp. 3d 1351 (N.D. Ga. 2024) . . . . . . . . . . . . 14

Whitman v. Am. Trucking Associations,

531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Wooden v. United States,

595 U.S. 360 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Statutes

18 U.S.C. § 3582(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

18 U.S.C. § 3582(c)(1)(A) . . . . . . . . . . . . . 2-8, 10, 11, 15-24

18 U.S.C. § 3582(c)(1)(A)(i) . . . . . . . . . . . . . . . . . . . . . . 6, 11

28 U.S.C. § 924(c) . . . . . . . . . . . . . . . . . . . . . . 7-9, 14, 18, 20

28 U.S.C. § 991(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

28 U.S.C. § 991(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

28 U.S.C. § 991(b)(1)(B)–(C) . . . . . . . . . . . . . . . . . . . 13, 22

28 U.S.C. § 994(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

28 U.S.C. § 994(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

28 U.S.C. § 994(o) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 22

viii

Cited Authorities

Page

28 U.S.C. § 994(t) . . . . . . . . . . . . . 2, 4, 5, 12, 13, 17, 22, 23

28 U.S.C. § 995(a)(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 995(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 995(a)(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 995(a)(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 995(a)(13) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

28 U.S.C. § 995(a)(21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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

(eff. Dec. 21, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Sentencing Reform Act of 1984 (“SRA”),

Pub. L. 98-473, title II, § 211 (1984) . . . . . . . . . . . . . . 1

Sentencing Guidelines

U.S.S.G. § 1B1.13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

U.S.S.G. § 1B1.13(b)(6) . . . . . . . . . . 4-6, 8-16, 18, 20, 21, 23

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

ix

Cited Authorities

Page

Other Authorities

88 Fed. Reg. 28,254 . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 21

88 Fed. Reg. 28,256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

88 Fed. Reg. 28,258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2014 Drug Guidelines Amendment Retroactivity

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

2021), available at https://w w w.ussc.gov/

s i t e s /d e f a u l t / f i l e s / p d f / r e s e a r c h - a n d publications/retroactivity-analyses/drugguidelines-amendment/20210511-Drug-RetroAnalysis.pdf (accessed Feb. 20, 2025) . . . . . . . . . . . 16

Compassionate Release Data Repor t, U.S.

S ent ’g C omm ’ n (Oct. 17, 2024), available

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

pd f /resea rch-a nd-publ ic at ions /federa lsentencing-statistics/compassionate-release/

F Y2 4Q 4 - Compa ssionat e -Relea se.pd f

(accessed Feb. 18, 2025) . . . . . . . . . . . . . . . . . . . . . . . 16

Fin al Cra ck Retroa ctiv ity Dat a Repo r t ,

Fair Sentencing Act, U.S. S ent ’g C omm ’n

(Dec. 2 014), avail abl e at https: // w w w.

ussc.gov/sites/default/files/pdf/researchand-publications/retroactivity-analyses/

fa i r - sent enci ng-act / Fi na l _US SC_

Crack _Retro_Data _Repor t _FSA .pdf

(accessed Feb. 20, 2025) . . . . . . . . . . . . . . . . . . . . . . . 16

x

Cited Authorities

Page

Preliminar y Crack Cocaine Data Repor t,

U.S. Sent ’g C omm ’n (June 2011), available

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

pd f /resea rch-a nd-publ ic at ions /federa lsentencing-statistics/2007-crack-cocainea m e n d m e n t / 2 0 1 10 6 0 0 _U S S C _ C r a c k _

Cocaine_Retroactivity _Data_Report.pdf

(accessed Feb. 20, 2025) . . . . . . . . . . . . . . . . . . . . . . . 16

Corona v. United States,

No. 21-5671, U.S. Br. in Opp. (Dec. 15, 2021) . . . . . . . 3

Gashe v. United States,

No. 20-8284, U.S. Br. in Opp. (Nov. 12, 2021) . . . . . . 3

Jarvis v. United States,

No. 21-568, U.S. Br. in Opp. (Dec. 8, 2021) . . . . . . .3, 6

Sutton v. United States,

No. 21-6010, U.S. Br. in Opp. (Dec. 20, 2021) . . . . . . . 3

Thacker v. United States,

No. 21-877, U.S. Br. in Opp. (Feb. 14, 2022) . . . . . . . . 3

Tomes v. United States,

No. 21-5104, U.S. Br. in Opp. (Nov. 29, 2021) . . . . 3, 17

Watford v. United States,

No. 21-551, U.S. Br. in Opp. (Dec. 15, 2021) . . . . . . . . 3

Williams v. United States,

No. 21-767, U.S. Br. in Opp. (Jan. 24, 2022) . . . . . . . . 3

1

INTEREST OF AMICUS CURIAE1

Amicus FAMM is a national, nonprofit, nonpartisan

organization whose primary mission is to promote

fair and rational sentencing policies, and to challenge

mandatory sentencing laws and the ensuing inflexible and

excessive penalties. Founded in 1991 as Families Against

Mandatory Minimums, FAMM currently has 75,000

members nationwide. FAMM 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. In recognition of the destructive toll

that excessive sentences exact on FAMM’s members in

prison, their loved ones, and their communities, FAMM

submits this brief in support of Petitioner and to ensure

proper application of the Sentencing Reform Act of 1984

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

1. Pursuant to Supreme Court Rule 37.6, amicus states that

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

that no person or entity other than amicus, its members, or its

counsel made a monetary contribution to fund its preparation and

submission. All parties have been timely notified of the filing of

this brief in accordance with Supreme Court Rule 37.2.

2

INTRODUCTION & SUMMARY OF ARGUMENT

Precedent in the Third Circuit portends serious,

systemic, and harmful consequences for federal sentencing.

Review by this Court is necessary to confirm the authority

of the United States Sentencing Commission (the

“Commission”), the broad scope of courts’ sentencing

discretion, and the relevance of changes in the law to

motions seeking modifications of grossly disparate

sentences after persons have already served substantial

portions of unusually long sentences.

In 1984, Congress enacted the SRA and directed

the Commission to “describe what should be considered

extraordinary and compelling reasons for sentence

reduction[s]” under 18 U.S.C. § 3582(c)(1)(A), “including

the criteria to be applied and a list of specific examples.” 28

U.S.C. § 994(t). Congress also mandated that courts 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”).

This Court long ago confirmed that Congress’s delegation

of authority to the Commission was valid. Mistretta v.

United States, 488 U.S. 361, 371–79 (1989).

In 2018, Congress enacted the First Step Act (“FSA”),

Pub. L. No. 115-391 (eff. Dec. 21, 2018), which, among other

things, prospectively altered certain mandatory minimum

sentences and allowed prisoners to file § 3582(c)(1)(A)

motions. Before those changes, the SRA had authorized

judges to reduce sentences under § 3582(c)(1)(A) only

upon motion of the Director of the United States Bureau

of Prisons (“BOP”). The Commission’s policy statement

3

thus addressed only motions by the BOP. Because the

Commission lacked a quorum until 2022, it was unable to

update that policy statement 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

non-retroactive 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.

At the behest of the United States, this Court

consistently declined to resolve that split. The Solicitor

General argued that “although courts of appeals have

reached different conclusions on the issue, the . . .

Commission could promulgate a new policy statement

that deprives a decision by this Court of any practical

significance.” Thacker v. United States, No. 21-877,

U.S. Br. in Opp. 2 (Feb. 14, 2022). The United States

further urged deference to “[t]he particularized and

express congressional preference for Commission-based

decisionmaking on the specific issue of what should be

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). 2

2. The United States offered similar justifications in other

cases. 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. 215671, 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).

4

In 2023, the Commission exercised its authority under

§ 994(t) by amending U.S.S.G. § 1B1.13 to add subsection

(b)(6), and agreed w ith the circuits “permit[ting]

non-retroactive changes in law . . . to be considered

extraordinary and compelling reasons warranting a

sentence reduction, but only in narrowly circumscribed

circumstances.” 88 Fed. Reg. at 28,258. The Commission

thus resolved the split with a carefully reasoned and

measured approach. But an unhappy United States

quickly began arguing—contrary to its prior assurances

to this Court—that the Commission’s resolution exceeded

its broad statutory authority to “describe what should be

considered extraordinary and compelling reasons” under

§ 3582(c)(1)(A).

In denying Petitioner’s sentence reduction motion,

the district court indicated that it would have granted

relief but for United States v. Andrews, 12 F.4th 255 (3d

Cir. 2021), see Pet. App. 14a, 16a, 33a, which was later

extended to invalidate § 1B1.13(b)(6) in United States v.

Rutherford, 120 F.4th 360 (3d Cir. 2024). The Third Circuit

affirmed. Pet. App. 1a–2a. That precedent threatens the

uniformity and fairness of federal sentencing nationwide.

It cannot be squared with controlling statutes, the scope

of Congress’s delegation to the Commission, or legislative

intent. It cannot be justified by concerns about imagined

retroactivity or strained inferences about congressional

purpose. And it undermines the separation of powers

while restricting judges’ traditional sentencing discretion.

Whether the Commission properly exercised its

authority by adopting § 1B1.13(b)(6) is a critical issue

affecting those serving excessive federal sentences, and

this Court is the only recourse for rectifying the errors

below.

5

ARGUMENT

I.

The Question Presented Is Important and Requires

Resolution

The Petition presents a legal question with profound

consequences for thousands of people, especially those in

federal prisons and their families. Deciding that question

would provide needed clarity about whether courts may

ever consider non-retroactive legal changes as a factor

when determining eligibility for § 3582(c)(1)(A) relief. It

also would reaffirm the Commission’s statutory role by

making clear that § 1B1.13(b)(6) embodies policy choices

well within the scope of the authority Congress expressly

delegated to the Commission.

A.

Section 1B1.13(b)(6) Properly Resolved an Issue

that Plagued Lower Courts

The Third Circuit has negated the Commission’s

careful resolution of a jurisdictional split through a policy

choice that the United States previously argued was firmly

within the Commission’s purview.

Section 1B1.13(b)(6) established consistent standards

for § 3582(c)(1)(A) motions, as the Commission was

expressly authorized 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”). In promulgating

that amendment, the Commission answered the very

question the United States had repeatedly urged this

6

Court to leave for the Commission. See Jarvis, supra,

U.S. Br. in Opp. 17. The Third Circuit resurrects—and

exacerbates—the pre-amendment split in authority,

prejudicing movants in one circuit by declaring off-limits

circumstances that other circuits properly allow courts

to consider.

Disparities in sentencing prompted Congress to pass

the SRA and create the Commission. See, e.g., 28 U.S.C.

§ 991(b)(1)(B). Section 1B1.13(b)(6) promoted uniformity

in eligibility for sentence reductions by confirming courts

could consider, in combination with other individualized

factors, gross disparities resulting in unusually long

punishments now acknowledged as unjust. Rutherford

ossifies a divide over whether courts may consider nonretroactive legal changes that produce gross disparities

when determining whether movants have identified

“extraordinary and compelling reasons” under § 3582(c)(1)

(A). Compare, e.g., 120 F.4th at 376–78 (holding § 1B1.13(b)

(6) conflicts with congressional intent to make the FSA

nonretroactive), with United States v. McCoy, 981 F.3d

271, 286 (4th Cir. 2020) (“The fact that Congress chose

not to make § 403 of the First Step Act categorically

retroactive does not mean that courts may not consider

that legislative change in conducting their individualized

reviews of motions . . . under § 3582(c)(1)(A)(i).”). The

Commission can no longer resolve that divide, see Pet.

App. 15a–17a, and the unfortunate result is an unfair

patchwork that affords similarly situated individuals

different legal options based on where they happen to

have been sentenced.

7

B. T h i r d Ci r c u it P r e c e d ent Pe r p et u at e s

Uncertainty and Inconsistency

The Third Circuit now categorically bars courts

within its jurisdiction from considering, along with other

factors, the implication of legal changes in the FSA

when weighing sentence reductions. That again subjects

movants to jurisdictional roulette, risking unequal

treatment under § 3582(c)(1)(A) as motions necessarily

denied in one jurisdiction may well be granted in another.

Such disparities have profound consequences for those

seeking relief and erode public confidence in the fairness

of the criminal justice system.

Consider Alberto Santana-Cabrera, age 45, who

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

stacked sentences under 18 U.S.C. § 924(c) that the FSA

eliminated. Imprisoned for more than 15 years, he has

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,

8

the § 924(c) counts would mandate consecutive sentences

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

F. App’x 537 (7th Cir. 2012).

Mr. Santana-Cabrera sought a sentence reduction in

May 2020, later supplementing his motion through counsel

procured via FAMM’s clearinghouse. Santana-Cabrera

Br. 5. His motion was denied, including because—without

guidance from the Commission—the Seventh Circuit

had ruled that non-retroactive legal changes could not

constitute “extraordinary and compelling reasons” under

§ 3582(c)(1)(A). See United States v. Santana-Cabrera, No.

09-CR-136, 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 United States v. Thacker, 4 F.4th 569,

576 (7th Cir. 2021)). After the Commission promulgated

§ 1B1.13(b)(6), Mr. Santana-Cabrera filed a new motion,

which has been pending for almost a year.

Or consider Nicholas Moore, age 53, who is serving

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

sentences under § 924(c). United States v. Moore, 95-CR30024, 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 the majority 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. Yet

Mr. Moore also has made great strides, earning his GED,

completing a plethora of educational courses, tutoring

other inmates, and earning the respect of BOP personnel.

Id. at 5–6.

9

Mr. Moore is also serving a grossly disparate sentence.

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

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

convicted, and sentenced for the first robbery—a theft

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

minimum 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 him—and only

him—for those robberies. 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. 3

If he were sentenced today, Mr. Moore’s § 924(c)

convictions would mandate a 17-year sentence rather

than the 47-year minimum he faced. See Moore Br. 18–19.

In November 2020, Mr. Moore moved for a sentence

reduction. His 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). After

the Commission promulgated § 1B1.13 (b)(6), he filed a new

motion through counsel from FAMM’s clearinghouse, but

it also has been pending for almost a year.

As these accounts reflect, grossly disparate sentences

may ar ise when the law is amended to allev iate

exceptionally harsh punishments. The Third Circuit’s

jurisprudence sharpens the unfairness of such disparities

3. Mr. Moore’s co-defendant, in contrast, served his sentence

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

Moore Br. at 3.

10

by reviving the split over when § 3582(c)(1)(A) relief is

available to people like Mr. Santana-Cabrera and Mr.

Moore. And that inconsistency is only likely to intensify.

Before the promulgation of § 1B1.13(b)(6), at least

four circuits allowed courts to consider, along with other

individual factors, non-retroactive legal changes under

circumstances that § 1B1.13(b)(6) also would allow. See Pet.

7. Not all of those circuits have opined on § 1B1.13(b)(6),

but they are unlikely to reject the Commission’s authority

to promulgate a policy statement allowing what they

themselves have deemed permissible. Conversely, in the

absence of guidance from the Commission, six circuits

had reached a different conclusion before § 1B1.13(b)(6).

See Pet. 7. While it is unclear whether those circuits, too,

would replicate the Third Circuit’s errors, people in those

jurisdictions will be forced to wait in prison until their

circuits consider the impact of § 1B1.13(b)(6). And even

then, they could be foreclosed from seeking § 3582(c)(1)(A)

relief if, like the Third Circuit, their circuit misconstrues

the Commission’s statutory authority.

The Third Circuit’s jurisprudence thus resurrects

and aggravates the divide among jurisdictions that

§ 1B1.13(b)(6) resolved, promoting renewed inconsistency,

uncertainty, and unfairness. This Court should grant the

Petition to correct the Third Circuit’s error and avoid

further injury to the law and people seeking § 3582(c)(1)

(A) relief.

11

C.

Judicial Resolution by this Court Is Necessary

Congress carefully crafted a sentencing scheme that

delegated to the Commission the responsibility to describe

“extraordinary and compelling reasons” that might

permit sentence reductions under § 3582(c)(1)(A)(i). The

Commission properly exercised that authority in crafting

§ 1B1.13(b)(6), but the Third Circuit upended its work.

Unless corrected by this Court, that jurisprudence will

leave people in some jurisdictions able to request relief,

while the less fortunate in others will be precluded from

doing so. Those disparities are unprincipled and unjust.

The circuit split also has significant consequences

for organizations like FA MM that facilitate free

representation in connection with sentence reduction

motions, since FAMM may be forced to turn away

otherwise valid requests simply because of geography.

Even where FAMM is able to help secure representation,

meritorious motions—like those filed by Mr. SantanaCabrera and Mr. Moore—may languish as courts await

clarity.

Resolution by this Court is necessary because,

according to the Third Circuit, the Commission lacks

authority to overrule its decisions (and any similar

decisions that might follow). Compare Braxton v.

United States, 500 U.S. 344 (1991). Denying the Petition

would entrench erroneous decisions primed to deepen

jurisdictional divides over the criteria for § 3582(c)(1)(A)

relief. Indeed, the deleterious impact of Rutherford is

already spreading. See, e.g., United States v. Ramos, No.

96-CR-815-4, 2024 WL 4710905, at *3 (N.D. Ill. Nov. 6,

2024) (following Rutherford); United States v. McHenry,

12

No. 1:93-CR-84, 2024 WL 1363448, at *10 (N.D. Ohio Mar.

29, 2024) (applying similar reasoning); United States v.

Crandall, No. 89-CR-21, 2024 WL 945328, at *8 (N.D.

Iowa Mar. 5, 2024) (rejecting application of § 1B1.13(b)

(6)). The Court should resolve the question presented now,

before the Third Circuit’s precedent does more damage.

II. The Third Circuit’s Precedent Is Wrong

The Commission fulfilled its statutory role and acted

pursuant to an express congressional delegation in

promulgating § 1B1.13(b)(6). Statutory text, legislative

intent, and background principles all confirm that the

Third Circuit was wrong to override the Commission’s

determination.

A.

The Commission Properly Exercised Expressly

Delegated Authority

The Commission is empowered to promulgate, revise,

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

(o), even if doing so disagrees with courts’ conclusions

on sentencing issues. E.g., Braxton, 500 U.S. at 348

(“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.”). The SRA

expressly assigned to the Commission the obligation and

authority to describe what constitutes “extraordinary

and compelling reasons” for sentence modifications.

28 U.S.C. § 994(t). And the only limitation Congress

placed on the Commission’s discretion in that regard is

that “[r]ehabilitation . . . alone” cannot be a qualifying

circumstance. Id.

13

Section 1B1.13(b)(6) thus falls comfortably within

the Commission’s authority. It provides that courts may

consider a change in law only if a person 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 “a

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

of determining whether an extraordinary and compelling

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

The Commission’s reasoned and individualized

approach fulfilled its 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 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).

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

Changes Retroactive

The Third Circuit erroneously concluded that

§ 1B1.13(b)(6) “conflict[ed] with the will of Congress”

14

by allowing consideration of the FSA’s “changes to

the § 924(c) mandatory minimums,” which “Congress

specifically decided . . . would not apply to people who

had already been sentenced.” Rutherford, 120 F.4th at

376 (quoting Andrews, 12 F.4th at 261). Emphasizing that

the Commission must “accurately reflect Congressional

intent when it fulfills its responsibilities,” id., Rutherford

held that such changes “cannot be considered . . . , on

[their] own or with other factors, because of Congress’s

explicit instruction in that statute that the change be

nonretroactive.”4 Id. at 377 n.23. That flawed reasoning

founders upon a simple truth: nothing in § 1B1.13(b)(6)

gives retroactive effect to any legal change.

The Commission did not usurp Congress’s power

to determine whether or when favorable legal changes

should be made retroactive, which would entail applying—

not merely considering—a favorable change. At most,

§ 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

4. The Third Circuit only considered § 1B1.13(b)(6) “as applied

to the [FSA]’s modification of § 924(c),” and did “not suggest[ ] that

a change in law could never be considered in the compassionate

release eligibility context.” Rutherford, 120 F.4th at 377 n.23.

This limitation is important, but review remains warranted given

the consequences of the precedent and the risks of extending it.

15

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.”). “Congress’s judgment” against “automatic

vacatur and resentencing of an entire class of sentences

. . . 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,” United States v.

Ruvalcaba, 26 F.4th 14, 27 (1st Cir. 2022), including—in

certain defined instances—serving an “unusually long”

sentence that represents a “gross disparity” compared

to sentences meted out after a relevant law changed.

U.S.S.G. § 1B1.13(b)(6).

Nor does § 1B1.13(b)(6) have the hallmarks of a

provision that makes legal changes retroactive. It does not

require courts to apply a later change in the law, mandate

any sentence reduction on that basis, or indicate how

much of a reduction should be granted. Indeed, a sentence

modified under § 3582(c)(1)(A) may be greater or less than

what a revised law might otherwise provide. Moreover,

“the starting point” for retroactive sentence reductions “is

that the entire class of defendants is eligible[ ] and relief

is common,” McCoy, 981 F.3d at 287, but under § 1B1.13(b)

(6) an unusually long sentence is not automatically an

extraordinary and compelling circumstance even if it

represents a gross disparity. Such sentences may be

deemed an extraordinary and compelling reason only

after carefully considering factors unique to each movant’s

case. And relief is rare. Preliminary Commission data

indicates that only 12.7% of motions for § 3582(c)(1)

16

(A) relief granted in 2024 were based on § 1B1.13(b)

(6). Compassionate Release Data Report, U.S. Sent ’g

Comm’n (Oct. 17, 2024), tbl. 10, available at https://www.

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

federal-sentencing-statistics/compassionate-release/

FY24Q4-Compassionate-Release.pdf (accessed Feb. 18,

2025). As this Court knows from experience, retroactive

application looks very different. For instance, when the

Commission has lowered a guideline range and made

those changes retroactive in appropriate cases, similar

data reflects that courts granted well over 50% of the

sentence reduction motions that followed. See 2014 Drug

Guidelines Amendment Retroactivity Data Report,

U.S. Sent ’g Comm ’n (May 2021), available at https://

w w w.ussc.gov/sites/default/files/pdf/research-andpublications/retroactivity-analyses/drug-guidelinesamendment/20210511-Drug-Retro-Analysis.pdf (accessed

Feb. 20, 2025); Final Crack Retroactivity Data Report,

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

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 Feb. 20, 2025); Preliminary

Crack Cocaine Data Report, U.S. Sent ’g Comm’n (June

2011), available at https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/federal-sentencingstatistics/2007-crack-cocaine-amendment/20110600_

USSC_Crack_Cocaine_Retroactivity_Data_Report.pdf

(accessed Feb. 20, 2025).

17

C.

Governing Statutory Authority Supports

Petitioner

Rutherford contravenes the SRA by rejecting—

without any countervailing command from Congress—the

Commission’s proper exercise of its statutory authority

to describe “extraordinary and compelling reasons”

under § 3582(c)(1)(A). The SRA expressly empowers the

Commission to undertake that task, subject to a single

limitation inapplicable here. See 28 U.S.C. § 994(t). Courts

“presume that [the] legislature says in a statute what it

means and means in a statute what it says there,” BedRoc

Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (citing

Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54

(1992)), and “Congress is not shy about placing [ ] limits

where it deems them appropriate.” Concepcion, 597 U.S.

at 494. The SRA’s text shows that Congress intended

to grant the Commission wide latitude to describe what

constitutes extraordinary and compelling reasons.

Congress is presumed to have legislated against that

backdrop when it later passed the FSA. See Cannon v.

Univ. of Chicago, 441 U.S. 677, 696–97 (1979). And nothing

in the FSA changed how “extraordinary and compelling

reasons” are determined; even the government has said

so. See Tomes, supra, U.S. Br. in Opp. 20 (“The [FSA]

did not alter or eliminate the Commission’s mandate to

describe what should be considered extraordinary and

compelling reasons for granting such a motion, or release

district courts from their statutory obligation to adhere to

that description.” (cleaned up)). Nor did Congress provide

that the FSA’s prospective changes must be excluded from

any consideration under § 3582(c)(1)(A). Rutherford thus

finds no support in the plain language of either the SRA

or the FSA.

18

Inst ead, the Thi rd Ci rcuit in fer red a broad

“nonretroactivity directive” from other language in the

FSA. 5 Rutherford, 120 F.4th at 376 (quoting Andrews,

12 F.4th at 261). But that language concerned something

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

FSA is silent regarding courts’ consideration of changes

to § 924(c) for purposes of § 3582(c)(1)(A). See Pet. App.

35a. “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 as

Congress gave “tacit approval” to § 1B1.13(b)(6). United

States v. Spradley, No. 98-CR-38, 2024 WL 1702873,

at *8 (S.D. Ind. Apr. 18, 2024), appeal dismissed, No.

24-1762, 2024 WL 4707883 (7th Cir. June 7, 2024). No

obligation “to ensure that the Commission’s amendments

to its policy statements do not go beyond what Congress

intended,” Rutherford, 120 F.4th at 376, 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”).

Even assuming some basis for the Third Circuit’s

inference, the rule of lenity prevents a tacit constriction

5. As already discussed, nothing in § 1B1.13(b)(6) makes any

legal change retroactive. See II.B. supra.

19

of sentencing and guidelines provisions. See, e.g., Bifulco

v. United States, 447 U.S. 381, 387 (1980) (invoking the

rule of lenity in connection with a sentencing statute);

United States v. R.L.C., 503 U.S. 291, 305–06 (1992)

(discussing lenity in connection with federal sentencing

guidelines); cf. Pulsifier v. United States, 601 U.S. 124,

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

FSA context that lenity requires courts to interpret

ambiguity in favor of liberty over punishment). Lenity

applies whenever “reasonable doubt” lingers about a

criminal statute’s meaning, Moskal v. United States, 498

U.S. 103, 108 (1990); Harrison v. Vose, 50 U.S. (9 How.)

372, 378 (1850), after consulting “context, precedent,

and statutory design.” Brown v. United States, 602 U.S.

101, 104 (2024). The FSA contains no “clear and definite”

language limiting relief under § 3582(c)(1)(A), United

States v. Universal C. I. T. Credit Corp., 344 U.S. 218,

221–222 (1952), and the Third Circuit’s gloss is prohibited

by the rule of lenity, which is “rooted in ‘the instinctive

distaste against men languishing in prison unless the

lawmaker has clearly said they should.’” R.L.C., 503 U.S.

291, 305–06; see also Wooden v. United States, 595 U.S.

360, 388 (2022) (Gorsuch, J., concurring) (noting that the

rule “first appeared in English courts, justified in part on

the assumption that when Parliament intended to inflict

severe punishments it would do so clearly”).

Finally, Rutherford pivoted to emphasize that even

“agency interpretations of statutes within an agency’s

expertise” fail when they conflict with “a controlling

judicial interpretation of an unambiguous statute.” 120

F.4th at 378 (quoting United States v. Adair, 38 F.4th

341, 361 (3d Cir. 2022) (emphasis omitted)). But no statute

considered by the Third Circuit unambiguously precludes

20

courts’ consideration, for purposes of § 3582(c)(1)(A), of

legal changes that render unusually long sentences grossly

disparate. As discussed, there is no conflict between

the SRA, the FSA, and § 1B1.13(b)(6) on that score.

Indeed, the FSA provision addressing the retroactivity

of amendments to § 924(c) never mentions § 3582(c)(1)(A),

expressly or by implication. See Pet. App. 35a.

The Third Circuit’s supposed unambiguity flows

not from any statutory text, but from assumptions

regarding what Congress might have thought about

subsequent legal changes in the § 3582(c)(1)(A) context.

See McCoy, 981 F.3d at 287 (noting distinction). That is

not an unambiguous statutory command sufficient to

disregard the Commission’s expressly delegated authority.

Cf. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)

(“The plainness or ambiguity of statutory language

is determined by reference to the language itself, the

specific context in which that language is used, and the

broader context of the statute as a whole.”). In concluding

otherwise, Rutherford cited Loper Bright Enterprises

v. Raimondo, 603 U.S. 369 (2024), a case about judicial

review under the Administrative Procedure Act. See

120 F.4th at 379–80. But Loper Bright requires that

courts respect an express delegation of authority and

“effectuate the will of Congress subject to constitutional

limits.” 603 U.S. at 395. And relying on Loper Bright to

restrict § 3582(c)(1)(A) relief is especially questionable

given concerns noted in that case about “displac[ing] the

rule of lenity” in statutory interpretation. See id. at 409

(noting concern about “displac[ing] the rule of lenity”);

id. at 434–35 (Gorsuch, J., concurring) (discussing rule

of lenity).

21

D.

T h i r d Ci r cuit P r e c e dent Cont r avene s

Congressional Intent

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, 541

U.S. at 183 (stating an inquiry “begins with the statutory

text, and ends there as well if the text is unambiguous”).

Rutherford flouts Congress’s intent because it finds no

support in the text of either the SRA or the FSA. The lack

of any language—much less clear language—restricting

courts’ ability to consider (not apply, as with a retroactive

provision, but merely consider), on an individualized basis

and in conjunction with other factors, non-retroactive

changes in the law belies the Third Circuit’s conjecture

that Congress had such intent.6 See, e.g., Epic Sys. Corp.

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

specifically address preexisting law when it wishes to

suspend its normal operations in a later statute” (cleaned

up)). But those are hardly the only clues.

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)). The

6. The inference is particularly odd given this Court’s

clarifications that 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 “[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.

22

SRA embodies a strong congressional desire that the

Commission exercise broad discretion when describing

what courts should consider as constituting “extraordinary

and compelling reasons” for sentence reductions, 28

U.S.C. § 994(t), and an expectation that the Commission

do so to “avoid[ ] unwarranted sentencing disparities,”

facilitate “individualized sentences,” and incorporate

“advancement[s] in knowledge of human behavior as it

relates to the criminal justice process.” Id. § 991(b)(1)

(B)–(C). That all points toward an interpretation of the

SRA and the FSA that supports Petitioner.

The Commission’s statutory powers are further

evidence. Among other things, it 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). No wonder that Congress considered the

Commission uniquely suited to fashion policy regarding

§ 3582(c)(1)(A) relief.

23

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 FAMM members who are impacted

by, and have particular experience with, sentencing laws

and policies. The Commission is thus better suited to

render policy judgments about the availability of § 3582(c)

(1)(A) relief. As evidenced by its express delegation to the

Commission in the SRA, Congress agreed. Rutherford

frustrates that intent.

E. Third Circuit Precedent Undermines Other

Important Principles

The Commission’s fundamental purpose is to “establish

sentencing policies and practices for the Federal criminal

justice system,” which it does in part by promulgating

sentencing guidelines and policy statements. 28 U.S.C.

§§ 991(b)(1), 994(a). The latter include describing what

should be considered as constituting “extraordinary and

compelling reasons” for sentence reductions. Id. § 994(t).

By invalidating § 1B1.13(b)(6), Rutherford 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 second-guess

Congress regarding the permissible degree of policy

judgment that can be left to those executing or applying

the law” (cleaned up)).

The Third Circuit also constricted courts’ traditional

sentencing discretion by taking certain information off

the table when considering whether a movant is eligible

for § 3582(c)(1)(A) relief. But for good reason, courts

24

historically have exercised wide discretion to consider

all information relevant to 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.”).

That is consistent with the SRA, which requires only that

sentence modifications be “consistent with” applicable

policy statements of the Commission. 18 U.S.C. § 3582(c)

(1). 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). That notion is fundamentally inconsistent

with the Third Circuit’s rigid view, which purports to

blind judges to significant legal changes and unusually

long sentences—circumstances with particular relevance

to just sentencing determinations.

25

CONCLUSION

For the foregoing reasons, amicus FAMM respectfully

urges this Court to grant the Petition.

Respectfully submitted,

Mary Price

General Counsel

Shanna Rifkin

Deputy 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

Attorneys for Amicus Curiae

February 28, 2025