United States of America v. Jason Bricker

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0100p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
JASON BRICKER,
Defendant-Appellee.
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Nos. 24-3286
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELLIS MCHENRY (24-3289); LOIS JOCHINTO ORTA (24-
5182),
Defendants-Appellants.
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Nos. 24-3289/5182
Appeals from the
United States District Court for the Northern District of Ohio at Cleveland;
No. 1:05-cr-00113 (Bricker)—Dan A. Polster, District Judge;
No. 1:93-cr-00084 (McHenry)—Donald C. Nugent, District Judge,
and
United States District Court for the Eastern District of Kentucky at Covington;
No. 2:97-cr-00071 (Orta)—Danny C. Reeves, District Judge.
Argued: October 31, 2024
Decided and Filed: April 22, 2025
Before: BATCHELDER, STRANCH, and READLER, Circuit Judges.
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COUNSEL
ARGUED: Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for the United States. David A. O’Neil, DEBEVOISE & PLIMPTON LLP, Washington,
D.C., for Jason Bricker. Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Cleveland, Ohio, for Ellis McHenry. Alex P. Treiger, KELLOGG, HANSEN,
TODD, FIGEL & FREDERICK, P.L.L.C., Washington, D.C., for Lois Orta. ON BRIEF:
Andrew C. Noll, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the
United States. David A. O’Neil, Suzanne Zakaria, DEBEVOISE & PLIMPTON LLP,
Washington, D.C., Sandy Tomasik, James Stramm, Raphael M. Vim, DEBEVOISE &
PLIMPTON LLP, New York, New York, for Jason Bricker. Christian J. Grostic, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Ellis McHenry. Alex P. Treiger,
Justin B. Berg, KELLOGG, HANSEN, TODD, FIGEL & FREDERICK, P.L.L.C., Washington,
D.C., for Lois Orta. James Ewing, Vanessa V. Healy, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE,
Lexington, Kentucky, Elaine K. Leonhard, UNITED STATES ATTORNEY’S OFFICE, Ft.
Mitchell, Kentucky, for the United States.
BATCHELDER, J., delivered the opinion of the court in which READLER, J.,
concurred. STRANCH, J. (pp. 30–46), delivered a separate dissenting opinion.
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OPINION
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ALICE M. BATCHELDER, Circuit Judge. In this consolidated appeal, we REVERSE
the judgment of the district court in Bricker and AFFIRM the judgments in McHenry and Orta.
This appeal concerns three federal prisoners serving lengthy sentences. Invoking the
compassionate-release statute, 18 U.S.C. § 3582(c)(1)(A), which allows a court to reduce a final
prison sentence for “extraordinary and compelling reasons,” each prisoner sought release based
on a recently enacted “policy statement,” U.S.S.G. § 1B1.13(b)(6). In that statement, the
Sentencing Commission announced that a nonretroactive change in the law can present an
“extraordinary and compelling” reason warranting a sentence reduction if (1) a prisoner has
served at least 10 years (2) of “an unusually long sentence,” (3) there is a “gross disparity”
between the actual sentence being served and a hypothetical sentence that would apply under the
current law if any nonretroactive changes in the law since the original sentencing were given

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retroactive effect, and (4) the sentencing court has fully considered “the defendant’s
individualized circumstances.”1
To cut to the heart of this, because some recent revisions to federal sentencing law are not
retroactive, old inmates are serving prison sentences that are much longer than the sentences of
new inmates who committed the exact same crimes. Recognizing the unfairness, the
Commission decided that the disparity was a good reason to grant these old-timers early release,
or was at least a factor worth considering when deciding whether an individual old-timer had an
“extraordinary and compelling reason” for early release. That is understandable and even
laudable. The question is whether the Commission has the authority to do that under the law,
particularly the Constitution.
To be specific, the questions in this appeal concern the separation of powers, specifically
the Commission’s power to overrule a Circuit Court’s interpretation of a statute or to promulgate
a policy statement that contradicts other federal statutes. The Sentencing Commission “is a
peculiar institution”—a judicial-branch agency with “quasi-legislative” power—about which the
Supreme Court has acknowledged that its “unique composition and responsibilities . . . give rise
to serious concerns about a disruption of the appropriate balance of governmental power among
the coordinate Branches.” Mistretta v. United States, 488 U.S. 361, 383-85 (1989).
Based on the analysis that follows, we conclude that the Commission overstepped its
authority and issued a policy statement that is plainly unreasonable under the statute and in
conflict with the separation of powers. We therefore hold that U.S.S.G. § 1B1.13(b)(6) is
invalid.
1The policy statement did not define “unusually long sentence” or “gross disparity.” See United States v.
Crandall, No. 89-CR-21, 2024 WL 945328, at *9 (N.D. Iowa Mar. 5, 2024) (asserting that these two phrases “lack
any form of definition and invite arbitrary application,” making the policy statement “unworkably vague”); accord
United States v. Vest, 754 F. Supp. 3d 829, 837 (W.D. Mo. 2024) (analyzing and applying Crandall).

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I.
In 2005, Jason Bricker committed an armed bank robbery. He pleaded guilty to all
charges, including brandishing a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c), which carries an additional mandatory 84-month consecutive sentence. The district
court sentenced Bricker to the low end of the advisory guidelines range, 210 months, plus the
additional statutory mandatory minimum, 84 months, for a total sentence of 294 months. In
December 2023, having served 216 months (18 years), Bricker moved for compassionate release
pursuant to U.S.S.G. § 1B1.13(b)(6). The district court agreed. United States v. Bricker, No.
1:05 CR 113, 2024 WL 934858 (N.D. Ohio Mar. 5, 2024) (Polster, J.). The court found that,
pursuant to subsequent, nonretroactive changes in sentencing law, if Bricker were sentenced
today, his advisory range would be 70 to 87 months, which the court found to be a sufficient
disparity to justify a sentence reduction.2 The court acknowledged that the Sixth Circuit had
already held that a nonretroactive change in the law is not an “extraordinary and compelling
reason” for a sentence reduction, United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en
banc), but asserted that the Sentencing Commission had overruled McCall. The court granted
the motion, reduced Bricker’s sentence to time served, and ordered him released. Id. at *3. The
government appealed.3
In 1993, Ellis McHenry committed three armed carjackings. Following a jury conviction,
the district court sentenced him to the low end of the advisory guidelines range, 63 months, plus
an additional 540 months due to the statutory mandatory minimum for the three § 924(c) counts,
for a total sentence of 603 months. Pursuant to subsequent, nonretroactive changes in federal
sentencing law, if McHenry were sentenced today, the statutory mandatory additional sentence
2On appeal, the government contends that the district court made two additional mistakes that constitute
plain error. First, in calculating Bricker’s new, hypothetical sentence, the court omitted the mandatory 84-month
consecutive sentence for brandishing a firearm during a crime of violence, per § 924(c), without explanation but
presumably by finding (erroneously) that it no longer applied. Second, the court without objection from the
government determined that Bricker would no longer be a career offender pursuant to changes to U.S.S.G. § 4B1.1,
even though those changes were not made retroactive and § 1B1.13(b)(6) expressly excludes from consideration
nonretroactive changes to the Guidelines provisions. See fn. 9, infra. But a full plain-error analysis as to whether
the district court erred in either respect is unnecessary here, given our conclusion that § 1B1.13(b)(6) is invalid.
3A Sixth Circuit motions panel granted Bricker release pending appeal.

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for the § 924(c) counts would be just 252 months, making his hypothetical current advisory
range 315 to 330 months (63 to 78 months for the carjackings plus 252 months of statutory
mandatory consecutive sentence for the § 924(c) counts). This is a disparity of at least 273
months (23 years) less than his actual sentence. In January 2024, having served some
354 months (almost 30 years),4 McHenry moved for compassionate release based on U.S.S.G.
§ 1B1.13(b)(6). The district court denied the motion. United States v. McHenry, No. 1:93 CR
84, 2024 WL 1363448, at *5 (N.D. Ohio Mar. 29, 2024) (Nugent, J.) (“Applying § 1B1.13(b)(6)
to grant the relief requested, would require [this court] to either disregard the mandatory
minimum entirely, or to retroactively apply a penalty structure that Congress determined should
not be retroactive. It would also mean disregarding the holding in McCall, a Sixth Circuit
opinion that is binding on this [c]ourt.”).
In 1998, a jury convicted Lois Orta on charges relating to distribution of over 50 pounds
of methamphetamine and the district court sentenced him to a statutory mandatory minimum
sentence of life in prison based on his prior convictions for felony drug offenses. Pursuant to
subsequent, nonretroactive changes in federal sentencing law, if Orta were sentenced today, his
statutory mandatory minimum would be 10 years (120 months) rather than life. In January 2024,
having served almost 27 years (324 months)5 of his sentence, Orta moved for compassionate
release pursuant to U.S.S.G. § 1B1.13(b)(6).6 The district court denied the motion, relying on
McCall for the proposition “that binding Sixth Circuit precedent precludes a finding of an
‘extraordinary and compelling’ reason to justify a sentence reduction based on Section 401(a)’s
non-retroactive changes to mandatory minimum sentences.” United States v. Orta, No. 2:97 CR
00071, R. 699, PgID 906-07 (E.D. Ky., Feb. 16, 2024) (Reeves, J.). Orta appealed.
4Note that McHenry has not completed the 540 months required by the statutory mandatory minimum
under which he was originally sentenced.
5Note that Orta has not completed the statutory minimum portion of his original sentence, which was life.
6This was Orta’s third motion for compassionate release pursuant to § 3582(c)(1)(A)(i), and the latest in a
long list of motions. After Orta’s conviction and sentence were affirmed on direct appeal in 2001, he filed a
28 U.S.C. § 2255 motion, which the district court denied, and we affirmed the denial. In 2005, 2013, and 2016, Orta
sought leave to file second or successive § 2255 motions, and we denied each request. In 2014 and 2019, Orta
moved for sentence reductions pursuant to § 3582(c)(2); in 2019, Orta filed a “petition for writ of audita querela”;
and in 2020, Orta filed a “motion for judicial inquiry.” The district court denied each motion and we affirmed those
he appealed.

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We consolidated these three appeals for oral argument and this decision.
II.
Under the doctrines of nonretroactivity and finality, “in federal sentencing the ordinary
practice is to apply new penalties to defendants not yet sentenced, while withholding that change
from defendants already sentenced.” Dorsey v. United States, 567 U.S. 260, 280 (2012); see also
Edwards v. Vannoy, 593 U.S. 255, 258 (2021) (“a new rule of criminal procedure ordinarily does
not apply retroactively” to cases that are not pending in trial courts or on direct review).
“The non-retroactivity doctrine is an ordinary rule applied to all criminal defendants.”
United States v. Hunter, 12 F.4th 555, 563 (6th Cir. 2021); 1 U.S.C. § 109. Likewise, the finality
doctrine is ordinary and universal. “No one, not criminal defendants, not the judicial system, not
society as a whole is benefited by a judgment providing that a man shall tentatively go to jail
today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh
litigation.” Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan, J., concurring).
“[A] judgment of conviction that includes [] a sentence [of imprisonment] constitutes a
final judgment,” 18 U.S.C. § 3582(b), and but for certain exceptions a “court may not modify a
term of imprisonment once it has been imposed,” § 3582(c); Dillon v. United States, 560 U.S.
817, 824 (2010) (“A judgment of conviction that includes a sentence of imprisonment constitutes
a final judgment and may not be modified by a district court except in limited circumstances.”
(quotation and editorial marks omitted)); see also United States v. Washington, 584 F.3d 693,
700 (6th Cir. 2009) (“Simply put, there is no inherent authority for a district court to modify an
otherwise valid sentence.”); Mitchell v. United States, 43 F.4th 608, 612 (6th Cir. 2022).
One exception is for “compassionate release,” under which a district court may reduce a
prisoner’s otherwise-final sentence if it determines that (1) “extraordinary and
compelling reasons” warrant a reduction, (2) a reduction is “consistent with applicable policy
statements issued by the Sentencing Commission,” and (3) the § 3553(a) factors, to the extent

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applicable, support a reduction. § 3582(c)(1)(A)(i); see also McCall, 56 F.4th at 1054.7 The
underlying question in this appeal concerns the meaning of “extraordinary and compelling.”
Congress did not define what it meant by “extraordinary and compelling,” instead assigning to
the Sentencing Commission the task of describing what could be considered extraordinary and
compelling reasons for sentence reduction. See 28 U.S.C. § 994(t). In a 2007 policy statement,
the Commission gave “specific examples” of “what should be considered extraordinary and
compelling reasons” for relief, U.S.S.G. § 1B1.13 cmt. n.1(A)-(D) (2007), namely health, age,
family circumstances, and “other.” But this policy statement applied only to those
compassionate-release motions filed by the Bureau of Prisons, not those filed by prisoners.
United States v. Elias, 984 F.3d 516, 519 (6th Cir. 2021).8 For prisoner-filed compassionate-
release motions, “we said that until Congress or the Commission acts, district courts have
discretion to define ‘extraordinary and compelling’ on their own initiative.” Hunter, 12 F.4th at
561-62 (quotation marks and citations omitted); see also United States v. Jones, 980 F.3d 1098,
1111 (6th Cir. 2020) (holding that district courts have “full discretion” relative to that of the
Commission to “define ‘extraordinary and compelling’”).
In the meantime, many prisoners whose sentences would be much shorter if
nonretroactive changes in the law were available retroactively began filing compassionate-
release motions, claiming that the difference between the actual and would-be sentences was an
7The complete language of the compassionate-release statute is:
Modification of an imposed term of imprisonment. –The court may not modify a term of
imprisonment once it has been imposed except that in any case the court, upon motion of the
Director of the Bureau of Prisons, or upon motion of the defendant after the defendant has fully
exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on
the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of
the defendant’s facility, whichever is earlier, may reduce the term of imprisonment (and may
impose a term of probation or supervised release with or without conditions that does not exceed
the unserved portion of the original term of imprisonment), after considering the factors set forth
in section 3553(a) to the extent that they are applicable, if it finds that extraordinary and
compelling reasons warrant such a reduction . . . and that such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission[.]
18 U.S.C. § 3582(c)(1)(A)(i) (paragraph breaks and dashes omitted).
8As enacted in 1987, only the Bureau of Prisons could file § 3582(c)(1)(A)(i) compassionate-release
motions. But in December 2018, via the First Step Act, Congress authorized prisoners to file their own
compassionate-release motions. See Elias, 984 F.3d at 518-19.

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“extraordinary and compelling reason” for release, or at least a consideration. This led to
conflicting panel opinions, and then to en banc consideration, in which the full Sixth Circuit
concluded: “Nonretroactive legal developments do not factor into the extraordinary and
compelling analysis. Full stop.” United States v. McCall, 56 F.4th 1048, 1066 (6th Cir. 2022)
(en banc). In reaching this conclusion, McCall held: (1) the phrase “extraordinary and
compelling” in § 3582(c)(1)(A)(i) is unambiguous, id. at 1064; (2) “there is nothing
extraordinary about the ordinary operation of our legal system, which assumes new statutes and
caselaw have no retroactive effect,” id. at 1063; and (3) “[n]onretroactive legal developments,
considered alone or together with other factors, cannot amount to an ‘extraordinary and
compelling reason,’” id. at 1065-66.
McCall also included a footnote in anticipation of the Sentencing Commission’s issuing a
new policy statement about “extraordinary and compelling”:
Congress has delegated to the [Sentencing] Commission the task of describing
what should be considered extraordinary and compelling reasons. 28 U.S.C.
§ 994(t). Whether the Commission could issue a new policy statement that
describes ‘extraordinary and compelling reasons’ in a way that is inconsistent
with our interpretation of the statute’s language is a question that we need not
resolve in the absence of an applicable statement. See Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005); cf. United States v.
Home Concrete & Supply, LLC, 566 U.S. 478, 487-90 (2012) (plurality opinion).
Id. at 1054 n.3 (quotation and editorial marks omitted; certain citations omitted). So, McCall
essentially envisioned the Sentencing Commission’s promulgating a policy statement with a
conflicting interpretation of § 3582(c)(1)(A)(i) (i.e., a different description of “extraordinarily
and compelling”), but refused to address the effect of such a policy statement—that is, refused to
advise whether an unknown Commission policy statement would affect its holding.
Within months the Sentencing Commission promulgated a policy statement positing that
a nonretroactive change in the law can be an “extraordinary and compelling” reason for release
when (1) a prisoner has served at least 10 years (2) of “an unusually long sentence,” (3) there is a
“gross disparity” between the actual sentence being served and a hypothetical sentence

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calculated using the current law, and (4) the court has given full consideration to the defendant’s
individualized circumstances.9 U.S.S.G. § 1B1.13(b)(6) (eff. Nov. 1, 2023).10
This new version of § 1B1.13(b)(6) led to the motions the prisoners filed in this appeal.
In Bricker, Judge Polster held that the Sentencing Commission overruled McCall. In McHenry,
Judge Nugent held that the Sentencing Commission could not overrule McCall, nor could it
overrule a statute enacted by Congress without violating the separation of powers. And in Orta,
Judge Reeves refused, based on McCall, to apply nonretroactive changes in the law retroactively.
9The pertinent provisions of the new policy statement actually say:
(b) Extraordinary and Compelling Reasons – Extraordinary and compelling reasons exist under
any of the following circumstances or a combination thereof:
. . .
(6) Unusually Long Sentence – If a defendant received an unusually long sentence and has served
at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the
Guidelines Manual that has not been made retroactive) may be considered in determining whether
the defendant presents an extraordinary and compelling reason, but only where such change would
produce a gross disparity between the sentence being served and the sentence likely to be imposed
at the time the motion is filed, and after full consideration of the defendant’s individualized
circumstances.
(c) Limitation on Changes in Law – Except as provided in subsection (b)(6), a change in the law
(including an amendment to the Guidelines Manual that has not been made retroactive) shall not
be considered for purposes of determining whether an extraordinary and compelling reason exists
under this policy statement. However, if a defendant otherwise establishes that extraordinary and
compelling reasons warrant a sentence reduction under this policy statement, a change in the law
(including an amendment to the Guidelines Manual that has not been made retroactive) may be
considered for purposes of determining the extent of any such reduction.
U.S.S.G § 1B1.13 (eff. Nov. 1, 2023).
10The Commission submitted this policy statement to Congress, which did nothing to modify or disapprove
it, and the statement took effect on November 1, 2023. But “policy statements,” 28 U.S.C. § 994(a)(2), are different
from “Guidelines,” § 994(a)(1). See Stinson v. United States, 508 U.S. 36, 41 (1993) (“The [Guidelines] Manual
contains text of three varieties. First is a guideline provision itself. . . . The second variety of text in the Manual is a
policy statement.”). Before any Guideline amendment goes into effect, the Commission must provide it to
Congress, which may modify or disapprove it by legislative act. 28 U.S.C. § 994(p); see also Stinson, 508 U.S. at
41. Absent such an act, the amendment takes effect 180 days after it was submitted or no later than November 1 of
that year. Id. But this Congressional-review provision for the Guidelines does not apply to policy statements. See
United States v. Riccardi, 989 F.3d 476, 484 (6th Cir. 2021) (only the Guidelines go through notice-and-comment
rulemaking); see also Stinson, 508 U.S. at 41. Unlike Guidelines, “[a]mendments to policy statements and
commentary may be promulgated and put into effect at any time.” U.S.S.C. Rule of Practice and Procedure 4.1; see
also Matter of: U.S. Sent’g Comm’n, B-335515 (Comp. Gen.), 2024 WL 1928504 (May 1, 2024). Therefore, while
the Commission may (and often does) submit policy statements to Congress, neither statute nor rule requires it to do
so. See United States v. Moses, 23 F.4th 347, 353 (4th Cir. 2022); United States v. Johnson, 964 F.2d 124, 127 (2d
Cir. 1992).

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These are legal and constitutional questions, so our review is de novo. United States v.
Curry, 606 F.3d 323, 327 (6th Cir. 2010) (“If . . . the district court . . . concludes that it lacks the
authority to reduce a defendant’s sentence under the statute, the district court’s determination
that the defendant is ineligible for a sentence reduction is a question of law that is reviewed de
novo.”); United States v. Henry, 983 F.3d 214, 218 (6th Cir. 2020); Hadix v. Johnson, 133 F.3d
940, 942 (6th Cir. 1998); United States v. Huguely, 569 F. App’x 360, 360 (6th Cir. 2014).
III.
According to the government, when a Circuit Court has already held that a statute is
unambiguous and construed it, the Sentencing Commission (agency) cannot overrule that
holding by issuing a “policy statement” that re-interprets that statute to do the opposite. This is
correct.
Stated simply, the issue is whether the Sentencing Commission can overrule the Sixth
Circuit in this scenario. To be sure, Congress charged the Sentencing Commission with
promulgating general policy statements that “describe” what can be considered “extraordinary
and compelling reasons for sentence reduction” within the meaning of § 3582(c)(1)(A).
28 U.S.C. § 994(t). But once a court has interpreted the bounds of the Commission’s delegated
authority as we did in McCall, the Commission does not have the authority to overrule that
interpretation.
In Neal v. United States, 516 U.S. 284, 286–87 (1996), a district court sentenced Meirl
Neal to 192 months in prison, which included a 120-month statutory mandatory minimum due to
his distributing over 10 grams of a “mixture or substance containing a detectable amount of”
LSD (specifically, 11,456 doses of LSD comprising 109.51 grams) including the weight of the
blotter paper. The pertinent statute did not define the terms “mixture” nor “substance,” but the
Supreme Court, in Chapman v. United States, 500 U.S. 453, 461–62 (1991), understood the
“ordinary meaning” of those terms to require “the blotter paper [to] be weighed in determining
whether [the LSD amount] crossed the 10-gram threshold.” See Neal, 516 U.S. at 287. Two
years after Chapman and five years after Neal’s sentencing, the Sentencing Commission revised
the Guideline for measuring LSD. Under the new Guideline (made expressly retroactive), the

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Commission instructed courts not to weigh the entire substance containing LSD (e.g., the blotter
paper), but to give each dose of LSD a constructive weight of 0.4 milligrams.11 Id. Using this
approach, the LSD attributable to Neal was 4.58 grams (11,456 doses x 0.4 milligrams), which
did not trigger the statutory mandatory minimum (based on 10 grams), and led to a Guidelines
range 70 to 87 months, a disparity of 105 to 122 months. Id. Neal moved for a sentence
reduction based on the new (retroactive) Guideline, and his case made it to the Supreme Court.
Id. at 288-89.
Before the Supreme Court, Neal argued that the Commission could—and did—overrule
the Court, so “the method approved in Chapman is no longer appropriate.” Id. at 289. The
Court explained his theory:
[Neal] argues . . . that the Commission is the agency charged with interpretation
of penalty statutes and expert in sentencing matters, so its construction of [the
statute] should be given deference. Congress intended the Commission’s
rulemaking to respond to judicial decisions in developing a coherent sentencing
regime, so, [Neal] contends, deference is appropriate even though the
Commission’s interpretation postdated Chapman.
Id. at 290 (citations omitted). After some discussion of the language of the revised Guideline
and a frank recognition that the Commission “has no authority to override the statute,” id. at 294,
the Court rejected Neal’s argument about the Commission’s authority over the Court:
[Even assuming] the Commission’s view that the dose-based method is consistent
with the term ‘mixture or substance’ in the statute, [Neal] still would not prevail.
The Commission’s dose-based method cannot be squared with Chapman. The
Guideline does take into account some of the weight of the carrier medium . . . ,
but we held in Chapman that [the statute] requires the entire mixture or substance
to be weighed when calculating the sentence. In these circumstances, we need not
decide what, if any, deference is owed the Commission in order to reject its
alleged contrary interpretation. Once we have determined a statute’s meaning, we
adhere to our ruling under the doctrine of stare decisis, and we assess an agency’s
later interpretation of the statute against that settled law.
11“The Commission submitted the amendment to Congress, which did not disapprove it in the 180 days
allotted by statute. See 28 U.S.C. § 994(p). The amended Guideline took effect on November 1, 1993, and was in
force when [Neal] was resentenced.” Neal, 516 U.S. at 293.

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Id. at 294-95 (quotation marks, editorial marks, and citations omitted). See also Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 984 (2005) (“Thus, Neal established
only that a precedent holding a statute to be unambiguous forecloses a contrary agency
construction.”); United States v. Koons, 850 F.3d 973, 979 (8th Cir. 2017), aff’d, 584 U.S. 700
(2018) (“Nor can the Sentencing Commission overrule circuit precedent interpreting a statutory
provision.” (quotation marks, editorial marks, and citation omitted; emphasis in original)).
Therefore, once a court has determined a statute’s clear and unambiguous meaning, the
Commission cannot overrule that interpretation. See United States v. Austin, 125 F.4th 688, 692
(5th Cir. 2025) (“[T]he Sentencing Commission cannot make retroactive what Congress made
non-retroactive. And it certainly cannot do so through an interpretation of ‘extraordinary and
compelling’ that conflicts with the plain meaning of those terms. Moreover, the Commission
does not have the authority to amend the statute we construed in [prior cases].” (quotation marks
and citations omitted)) (citing Neal, 516 U.S. at 290, and Koons, 850 F.3d at 979).
In McCall, 56 F.4th at 1065-66, the en banc court held that the phrase “extraordinary and
compelling” in § 3582(c)(1)(A)(i) is clear and unambiguous and concluded that “[n]onretroactive
legal developments, considered alone or together with other factors, cannot amount to an
‘extraordinary and compelling reason’” for sentence reduction.12 McCall did so by looking at
12The prisoners argue that McCall does not apply in this case at all—that it has been abrogated and is
void—by contending that “the McCall Court recognized that its power to interpret the phrase ‘extraordinary and
compelling’ was limited and that at the time of its decision it lacked the binding guidance Congress directed the
Commission to provide.” Bricker Appellee Br. at 25 n.5; see also United States v. Brown, No. 2:95-cr-66, 2024 WL
409062, at *4 (S.D. Ohio Feb. 2, 2024) (saying “the Sixth Circuit decided McCall in the absence of an applicable
policy statement, and explicitly left open the possibility that a provision such as § 1B1.13(b)(6) could abrogate its
holding”). Even if this characterization of McCall were correct—though it clearly is not—it adds nothing to the
analysis here, it merely assumes the policy statement was binding on McCall and therefore McCall was powerless to
contradict it.
McCall actually said: “Whether the Commission could issue a new policy statement that describes
‘extraordinary and compelling reasons’ in a way that is inconsistent with our interpretation of the statute’s language
is a question that we need not resolve in the absence of an applicable statement.” McCall, 54 F.4th at 1054 n.3.
That is, McCall merely declined to opine about the validity of a hypothetical policy statement. In no way did
McCall suggest that it lacked the power to decide the appeal or that the Commission could abrogate its holding.
Put another way, the McCall footnote does nothing to deprive the opinion of its precedential weight on the
substantive matter about which we did opine (i.e., whether § 3582(c)(1)(A) plainly foreclosed an understanding of
“nonretroactive changes in sentencing law” as counting as “extraordinary and compelling”). See Antonin Scalia,
The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989) (“[W]hen the Supreme Court of the
federal system, or of one of the state systems, decides a case, not merely the outcome of that decision, but the mode

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the plain meaning of “extraordinary and compelling” against the backdrop of the “background
principles” of finality and nonretroactivity and the “structure of federal sentencing law, and
“confirm[ed]” that reading by considering the history and practice of compassionate release. Id.
at 1055–60. True, McCall did look beyond the words “extraordinary and compelling” to reach
its conclusion, but that was in keeping with basic principles of statutory interpretation to not look
at text in isolation to discern its unambiguous meaning. See Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 132 (2000); United Sav. Ass’n of Texas v. Timbers of
Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988) (recognizing that statutory construction is
a “holistic endeavor”). In the end, McCall did not mince words in holding that there was “no . . .
ambiguity” with § 3582(c)(1)(A), stating that: “The text of the compassionate release statute,
informed by the principles, history, and structure of sentencing law forecloses McCall’s
argument.” McCall, 56 F.4th at 1064. Indeed, McCall used the phrase “full stop,” after
concluding that “[n]onretroactive legal developments do not factor into the extraordinary and
compelling analysis,” id. at 1066, raising the question of what else McCall could have possibly
said to show that we—as an en banc court—were closing the door as to scope of what
“extraordinary and compelling” means. See Cambridge English Dictionary,
https://dictionary.cambridge.org (defining the phrase “full stop” to mean “you will not continue
to discuss a subject”).
Accordingly, under Neal, the Commission cannot overrule McCall’s determination about
the plain text of the statute by promulgating a contradictory policy statement. This is the point of
McCall’s footnote three, in which it addressed the possibility of a future Commission policy
statement by citing principally to Brand X, 545 U.S. at 982 (“A court’s prior judicial construction
of a statute trumps an agency construction . . . if the prior court decision holds that its
construction follows from the unambiguous terms of the statute and thus leaves no room for
agency discretion.”), and United States v. Home Concrete & Supply, LLC, 566 U.S. 478, 487
(2012) (“The fact that a statute is unambiguous means that there is no gap for the agency to fill
of analysis that it applies will thereafter be followed by the lower courts within that system, and even by that
supreme court itself.”). Especially so because our case law had bestowed on district courts “full discretion to define
‘extraordinary and compelling.’” See Jones, 980 F.3d 1098. So, McCall was decided in a world in which courts had
the equivalent powers of interpretation as the Commission. The Commission has now stepped back into the shoes
worn exclusively by the district courts, but that cannot—and does not—change either the analysis or the substantive
outcome here.

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and thus no room for agency discretion.” (quotation marks omitted)). Given McCall’s predicate
holding that the statutory term “extraordinary and compelling” is unambiguous and its core
holding that ordinary nonretroactive changes in the law cannot be “extraordinary,” these
precedents dictate that a conflicting interpretation from the Commission could not overrule the
McCall holding.
The prisoners argue that the Commission can and did overrule McCall’s interpretation
because three statutes make this policy statement binding on the courts: in 28 U.S.C.
§ 994(a)(2)(C), Congress empowered the Commission, by express delegation, to issue policy
statements about “the appropriate use of . . . the sentence modification provisions set forth in . . .
3582(c)”; then in § 994(t), Congress specifically empowered the Commission to “describe what
should be considered extraordinary and compelling reasons for sentence reduction” in
§ 3582(c)(1)(A); and in § 3582(c)(1)(A), Congress required the courts to ensure “that [any]
reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
The prisoners rely on Dillon v. United States, 560 U.S. 817, 827 (2010) (saying Ҥ 3582(c)(2)
requires the court to follow the Commission’s instructions in § 1B1.10 to determine the
prisoner’s eligibility for a sentence modification and the extent of the reduction authorized”), to
contend that this language demands that district courts must defer to and apply the Commission’s
policy statements. And the prisoners rely on Braxton v. United States, 500 U.S. 344, 348 (1991)
(“Congress necessarily contemplated that the Commission would periodically review the work of
the courts, and would make whatever clarifying revisions to the Guidelines conflicting judicial
decisions might suggest.”), to contend that policy statements overrule prior judicial precedent.
But Dillon and Braxton are cases about the Commission’s authority when it interprets or
reinterprets its own Guidelines (regulations); neither is about the interpretation of a statute, and
neither considers, much less reconciles, Neal. These cases do not and cannot overcome Neal or
establish that the Commission can overrule a court’s interpretation of an unambiguous statute.
See Koons, 850 F.3d at 979 (“[T]he Sentencing Commission [cannot] overrule circuit precedent
interpreting a statutory provision”); Austin, 125 F.4th at 692; see also United States v. Jean, 108
F.4th 275, 296 (5th Cir. 2024) (Smith, J., dissenting) (similar).

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The prisoners also rely on Batterton v. Francis, 432 U.S. 416 (1977), to argue that
“express delegation” alone is enough to empower the Commission to overrule McCall’s
interpretation of the statute. In Batterton, a case arising from the Social Security Act, the Court
explained:
[When] Congress . . . expressly delegate[s] to the [agency] the power to prescribe
standards for determining what constitutes [a statutory term] . . . , Congress
entrusts to the [agency], rather than to the courts, the primary responsibility for
interpreting the statutory term. In exercising that responsibility, the [agency]
adopts regulations with legislative effect. A reviewing court is not free to set
aside those regulations simply because it would have interpreted the statute in a
different manner. The regulation at issue in this case is therefore entitled to more
than mere deference or weight. It can be set aside only if the [agency] exceeded
[its] statutory authority or if the regulation is arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.
Id. at 425-26 (quotation marks, citations, footnotes, and paragraph break omitted). Of course,
there was no prior judicial interpretation of the statute in Batterton, so Batterton did not have to
consider or address an agency’s power to overrule an existing judicial interpretation.
More to the point, even with an express delegation of authority, the Commission does not
have limitless power to define “extraordinary and compelling” to mean what it plainly does not
allow, which, as recognized in McCall, 56 F.4th at 1066, includes nonretroactive changes in law.
See 28 U.S.C. §994(a) (stating that any Commission policy statements must be “consistent with
all pertinent provisions of any Federal statute.”); United States v. LaBonte, 520 U.S. 751, 757
(1997) (observing that the Commission’s power is not limitless and it “must bow to the specific
directives of Congress”); United States v. Rutherford, 120 F.4th 360, 375-76 (3d Cir. 2024)
(similar). This understanding aligns with the general principles we follow in reviewing whether
an agency rule comports with a statute. Until recently, when a court was confronted with an
agency’s construction of a statute that it administers, the court would conduct a Chevron
analysis, in which it would first determine whether the statute is silent or ambiguous with respect
to the specific issue being interpreted. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984) (footnote omitted), overruled by Loper Bright Enters. v. Raimondo,
603 U.S. 369 (2024). If so, Congress had implicitly delegated authority to the agency, limiting
the court’s role to merely determining “whether the agency’s answer is based on a permissible

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construction of the statute.” Id. As a corollary to that principle, Chevron recognized that if
Congress had made “an express delegation of authority to the agency to elucidate a specific
provision of the statute by regulation,” then “[s]uch legislative regulations [we]re given
controlling weight unless they [we]re arbitrary, capricious, or manifestly contrary to the statute.”
Id. (footnote omitted).
But the Court has overruled Chevron’s core holding, explaining its flaws—as relevant
here—to include:
Chevron . . . demands that courts mechanically afford binding deference to
agency interpretations, including those that have been inconsistent over time.
Still worse, it forces courts to do so even when a pre-existing judicial precedent
holds that the statute means something else—unless the prior court happened to
also say that the statute is ‘unambiguous.’ That regime is the antithesis of the
time honored approach the [Administrative Procedure Act] prescribes. In fretting
over the prospect of allowing a judicial interpretation of a statute to override an
agency’s in a dispute before a court, Chevron turns the statutory scheme for
judicial review of agency action upside down.
Loper Bright, 603 U.S. at 399 (quotation marks, editorial marks, and citations omitted); see also
Mazariegos-Rodas v. Garland, 117 F.4th 860, 877 (6th Cir. 2024) (“The problem . . . is that
Brand X . . . stated in no uncertain terms that the ‘principle’ of agencies effectively overruling
federal courts of appeals follows from Chevron itself. And now that Chevron is overruled, the
[agency] has no legal authority to disregard precedential decisions of this court.” (quotation
marks, editorial marks, and citations omitted)). So, after Loper Bright, courts no longer defer to
agency regulations as the authoritative (binding) interpretation of a statute. See, e.g., Seldon v.
Garland, 120 F.4th 527, 531 (6th Cir. 2024) (“After Loper Bright, we may look to agency
interpretations of the INA for guidance, but do not defer to the agency. . . . As to agency
regulations, we must thoroughly evaluate an agency’s interpretation of an ambiguous regulation
before giving any deference.” (quotation marks, editorial marks, and citations omitted)). Rather,
“when a particular statute delegates authority to an agency consistent with constitutional limits,
courts must respect the delegation, while ensuring that the agency acts within it. But courts need
not and . . . may not defer to an agency interpretation of the law simply because a statute is
ambiguous.” Loper Bright, 603 U.S. at 413. And this principle extends to express delegations of
authority, which are simply a difference in degree, not kind, from implicit delegations based on a

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law’s silence or ambiguity. See Moctezuma-Reyes v. Garland, 124 F.4th 416, 420 (6th Cir.
2024) (explaining our role under Loper Bright when “confronted” with a statute that expressly
authorizes the “agency to interpret a broad standard”); Pickens v. Hamilton-Ryker IT Sols., LLC,
-- F.4th --, No. 24-5407, 2025 WL 972526, at *9 (6th Cir. Apr. 1, 2025) (explaining that even
when the statute expressly delegates authority to an agency, creating some degree of deference,
we must still “ensure that the agency’s action is both reasonable and reasonably explained” and
“[t]hrough it all, we must decide for ourselves whether the law means what the agency says”
(quotation marks omitted)) (quoting FCC v. Prometheus Radio Project, 592 U.S. 414, 423
(2021), and Loper Bright, 592 U.S. at 392). Our duty remains the same: to “independently
interpret the statute and effectuate the will of Congress . . . by fixing the boundaries of the
delegated authority,” even if those boundaries continue to provide the agency with considerable
discretion. Loper Bright, 603 U.S. at 371; Mayo Found. for Med. Educ. & Rsch. v. United
States, 562 U.S. 44, 57 (2011) (recognizing a court’s review “does not turn on whether
Congress’s delegation of authority was general or specific”); Martin v. Occupational Safety &
Health Rev. Comm’n, 499 U.S. 144, 158 (1991) (recognizing that “the same standard of
substantive review” governs all exercises of delegated lawmaking power).
Therefore, Loper Bright negates the prisoners’ argument that § 1B1.13(b)(6) overrules
McCall because courts must defer to an agency’s interpretation of what they view to be an
ambiguous phrase, “extraordinary and compelling.”13 Not only are we bound by McCall’s views
on the plain meaning of “extraordinary and compelling,” see United States v. Ferguson, 868 F.3d
514, 515 (6th Cir. 2017), but Courts no longer defer to agency interpretations—or a Commission
policy statement—just because a statute is ambiguous. See Loper Bright, 603 U.S. at 400-01
(“Perhaps most fundamentally, . . . agencies have no special competence in resolving statutory
13This argument rests on the prisoners’ claim that McCall must have found the phrase “extraordinary and
compelling” to be ambiguous because it used the tools of statutory construction that are generally reserved for
ambiguous language. But a plain reading of McCall rejects this claim. McCall conceded that the phrase in the
abstract has a “broad range of meaningful application[s],” but it clearly and unambiguously does not include
nonretroactive changes in sentencing law. McCall, 56 F.4th at 1058-59; see also id. at 1064 (“There is no such
ambiguity here.”); at 1055 (“[T]he text of the . . . statute gives way to a basic inference: What is ‘ordinary’ and
routine cannot also be extraordinary and compelling.”); at 1056 (“Viewed in this light, the phrase ‘extraordinary and
compelling reasons’ comes into sharper focus.”); at 1065 (“[W]e cannot reconcile this approach with the plain text
of the . . . statute.”).

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ambiguities. Courts do.”); see Rutherford, 120 F.4th at 379 (concluding that Loper Bright is
“instructive” as “we assess the assertion that the Commission’s view of a statute should trump
our own”). Instead, we must “use every tool at [our] disposal to determine the best reading of
the statute.” Loper Bright, 603 U.S. at 400; see also Kentucky v. USEPA, 123 F.4th 447, 467
(6th Cir. 2024) (“[T]he EPA resolves a pure question of law when it interprets the key terms in
§ 7607(b)(1) (such as ‘nationally applicable’ or ‘determination’). After Loper Bright, we must
review (and correct) the agency’s mistaken interpretation of those terms without giving it
deference.”).
A plain reading of the compassionate-release statute conflicts with the Commission’s
new policy statement. Policy statement § 1B1.13(b)(6) concludes that because a nonretroactive
change in sentencing law does not apply to prisoners sentenced under the old law, the withheld
benefit (i.e., the would-be lower sentence) can be an “extraordinary and compelling reason” for a
sentence reduction. But rather than extraordinary, “the ordinary practice is to apply new
penalties to defendants not yet sentenced, while withholding that change from defendants already
sentenced.” Dorsey, 567 U.S. at 280 (emphasis added). Similarly, there is nothing inherently
compelling about the length of a lawful sentence. What is ordinary—the nonretroactivity of
judicial precedent announcing a new rule of criminal procedure—is not extraordinary, and what
is routine—a criminal defendant’s serving the duration of a lawfully imposed, Guidelines-based
sentence—is not compelling. See Rutherford, 120 F.4th at 370-71.
The prisoners also argue that the withheld benefit (i.e., the would-be lower sentence) of
nonretroactivity is an “extraordinary and compelling reason” for a sentence reduction because
Black’s Law Dictionary defines extraordinary to include “out of the ordinary; exceeding the
usual, average, or normal measure or degree”; defines “extraordinary circumstances” to include
“extenuating circumstances”; and defines “extenuating circumstances” to include those that
“render a . . . crime less . . . reprehensible than it would otherwise be,” or that call for “reduce[d]
. . . punishment.” Thus, to the prisoners, “extraordinary” reasons include any reasons or
circumstances “that tend to call for reduced punishment.” Bricker Br. at 35; Orta Br. at 31.
Given that the very purpose of § 3582(c)(1)(A)(i) is to reduce a prisoner’s punishment, this boils
down to a proposition that any conceivable reason will suffice and must be considered.

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But § 3582(c)(1)(A)(i) does not say “a reason” or “any reason” or even “a good reason.”
It says that a court “may reduce the term of imprisonment . . . if it finds . . . extraordinary and
compelling reasons warrant such a reduction.” Nor does it say, “if it finds extenuating
circumstances” or “if it finds reasons that tend to call for reduced punishment.” It says
“extraordinary.” To be sure, extraordinary can certainly mean many things, but what it cannot
mean is ordinary. It has to mean something more than ordinary. And “the ordinary practice” is
to withhold changes in the law from prisoners already sentenced. Dorsey, 567 U.S. at 280.
Therefore, withholding the benefit of nonretroactive changes cannot be extraordinary.
The prisoners argue that even if nonretroactivity alone is not extraordinary, the necessary
inquiry into “extraordinary and compelling” reasons requires the court to consider a “confluence
of numerous different factors, any one of which could in isolation be deemed ‘ordinary,’ but
together are extraordinary and compelling.” See, e.g., Bricker Br. at 37. “For example,” they
say “it is ordinary to get old. And it is ordinary to get sick. But age or health can combine with
other ‘ordinary’ factors (like serving a lawful sentence) to create a confluence of factors that . . .
constitute ‘extraordinary and compelling’ circumstances.” Bricker Br. at 37-38. One of the
dissents in McCall pressed this same argument unsuccessfully. See McCall, 56 F.4th at 1070-71
(Moore, J., dissenting) (contending that the question is not “whether a change in law is itself
extraordinary or compelling,” but “whether there are ‘extraordinary and compelling reasons’ to
reduce the sentence when a particular statutory change is considered in the context of the
defendant’s individualized circumstances” (quotation marks and citations omitted)).
The principal flaw in this argument is that it presupposes that nonretroactivity is a
permissible factor. It is not. As explained, § 1B1.13(b)(6)’s construction of “extraordinary and
compelling” (as giving retroactive effect to nonretroactive changes in the law) conflicts with
other statutes (either the nonretroactive statutory amendments or 1 U.S.C. § 109), and the
Commission cannot interpret a statute in a way that contradicts or negates other statutes. See
28 U.S.C. § 994(a) (the Commission must comply “with all pertinent provisions of any Federal
statute”).

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The point to all of this is that even an express Congressional delegation of authority does
not mean the Commission’s policy statement necessarily trumps a prior judicial determination.
Rather, “when a particular statute delegates authority to an agency consistent with constitutional
limits, courts must respect the delegation, while ensuring that the agency acts within it.” Loper
Bright, 603 U.S. at 413; accord Pickens, 2025 WL 972526, at *9 (“Through it all, we must
decide for ourselves whether the law means what the agency says.”). So, the determinative
question is whether § 1B1.13(b)(6) comports with the plain language of § 3582(c)(1)(A)(i). Any
other reading would raise serious separation-of-power concerns vis-à-vis the judiciary by forcing
a judge to accept the Commission’s interpretation of a law, “even if he thinks another
interpretation is correct,” and by transferring the “judiciary’s interpretive judgment” to the
Commission. See Loper Bright, 603 U.S. at 414-15 (Thomas, J., concurring) (quotation marks
and citations omitted).
IV.
The prisoners’ assertion of the Commission’s authority raises additional risks to the
separation of powers beyond their effect on the judiciary. The prisoners would empower the
Commission to exercise the legislative powers vested in Congress, and allow the Commission to
override existing law. See Loper Bright, 603 U.S. at 415 (Thomas, J., concurring). The
Sentencing Commission’s “policy statement” re-interprets the statute to give retroactive effect to
nonretroactive changes in sentencing law, contrary to 1 U.S.C. § 109, which bars retroactivity.
Put another way, the issue is whether the Commission can ignore other statutes. The
Commission has “significant discretion” in formulating the Guidelines and policy statements,
Mistretta, 488 U.S. at 377, but it must act consistently with the statute’s plain language, Neal,
516 U.S. at 290 (“the Commission does not have the authority to amend [a] statute”). Moreover,
the Commission cannot interpret a statute in such a way as to contradict or negate other statutes.
In United States v. LaBonte, 520 U.S. 751, 752 (1997), the Court considered 28 U.S.C.
§ 994(h), which directed the Commission to “assure” that its Guidelines specify a prison
sentence “at or near the maximum term authorized for categories” of certain offenders who had
committed repeated felony drug offenses or violent crimes. The Commission interpreted the

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statutory phrase “maximum term authorized” to mean “the maximum term available without
[applicable sentencing] enhancements,” and the Court held that “interpretation [to be]
inconsistent with § 994(h)’s plain language.” Id. at 752-53. Most relevant here is the Court’s
analysis of the respondents’ argument that, because some defendants would qualify for
enhancements while others would not, an unambiguous reading of § 994(h) would “permit only
the unenhanced maximum because th[at] is the highest possible sentence that could apply to all
of the defendants.” Id. at 759 (emphasis added). In rejecting this argument, the Court explained
that a reading of § 994(h) that excluded valid enhancements for individual defendants “would
largely eviscerate the penalty enhancements Congress enacted in [other] statutes such as § 841.”
Id. at 760.
We are unwilling to read § 994(h) as essentially rendering meaningless entire
provisions of other statutes to which it expressly refers. Under respondents’ novel
construction, a repeat drug or violent felon could only receive a sentence at or
near the maximum allowed for defendants who had no such prior qualifying
convictions or who had never received the notice under § 851(a)(1). Indeed, if
this interpretation . . . were adopted, a sentencing court could be forbidden to
impose the enhanced maximum penalty. Congress surely did not establish
enhanced penalties for repeat offenders only to have the Commission render them
a virtual nullity.
Id. So, the Commission cannot interpret a statute so as to contradict or negate other statutes. See
also 28 U.S.C. § 994(a) (the Commission may act only “pursuant to its rules and regulations and
consistent with all pertinent provisions of any Federal statute” (emphasis added)).
As explained above, § 1B1.13(b)(6) enables courts to measure a prisoner’s actual
sentence against a hypothetical sentence calculated by applying nonretroactive changes to
sentencing law as if they were retroactive. If the disparity is large enough (i.e., “gross”) then the
court can reduce the prisoner’s sentence, effectively giving retroactive effect to the
nonretroactive change to sentencing law. This contradicts the nonretroactivity of the individual
sentencing revisions and circumvents Congress’s clear limitation on retroactively applying new
legislation:
The repeal of any statute shall not have the effect to release or extinguish any
penalty, forfeiture, or liability incurred under such statute, unless the repealing
Act shall so expressly provide, and such statute shall be treated as still remaining

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in force for the purpose of sustaining any proper action or prosecution for the
enforcement of such penalty, forfeiture, or liability.
1 U.S.C. § 109. That is, § 1B1.13(b)(6) would effectively negate § 109 by empowering a court
to reduce a prisoner’s sentence by giving retroactive effect to expressly nonretroactive changes.
The prisoners argue that other statutes do not—and cannot—limit § 1B1.13(b)(6) because
Congress expressly delegated authority to the Commission to promulgate § 1B1.13(b)(6) to
describe “extraordinary and compelling reasons” for relief under § 3582(c)(1)(A)(i), and in so
doing placed one and only one limit on the Commission’s authority, namely that: “Rehabilitation
of the defendant alone shall not be considered an extraordinary and compelling reason.”
28 U.S.C. § 994(t). The prisoners contend that Congress’s decision to expressly exclude this one
particular reason and no others means that the Commission’s discretion is otherwise unlimited.
See United States v. Johnson, 529 U.S. 53, 58 (2000) (“When Congress provides exceptions in a
statute, it does not follow that courts have authority to create others. The proper inference . . . is
that Congress considered the issue of exceptions and, in the end, limited the statute to the ones
set forth.”). More to the point, as relevant here, the prisoners’ argument is that because Congress
expressly excluded rehabilitation alone, and did not expressly exclude nonretroactive changes in
the law, Congress intended that the Commission could make nonretroactive changes in the law
an “extraordinary and compelling reason” for release. This is questionable, to say the least—that
Congress meant to authorize the Commission to abrogate 1 U.S.C. § 109 and the express
nonretroactivity provisions of the individual sentencing amendments through this omission of an
express limitation. See McCall, 56 F.4th at 1056 (requiring a clear statement rule for when
Congress wants a change in sentencing law to have a retroactive effect). But, like this entire
argument, this questionable aspect of it is beside the point.
Rehabilitation alone is not the only congressionally imposed limit; it is a specific limit
within the principal limit that the reason must be “extraordinary and compelling.” Cf.
Harrington v. Purdue Pharma L.P., 603 U.S. 204, 218 (2024) (“[A] ‘context dependent’ term
often draws its meaning from surrounding provisions.”). Congress did not grant the Commission
limitless authority—§ 3582(c)(1)(A)(i) does not say “any reason identified by the Commission”;
it says the reason must be “extraordinary and compelling.” See McCall, 56 F.4th at 1063.

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So, the question is not whether Congress authorized the Commission to concoct any reason at all
(other than rehabilitation alone)—it certainly did not. Congress limited the Commission to
describing “extraordinary and compelling” reasons, and the question is whether the
nonretroactive effect of a new law can ever be “extraordinary” when § 109 plainly announces
that non-retroactivity is always ordinary. It is likely that Congress did not include an express
prohibition on nonretroactivity in § 994(t) because § 109 already established that nonretroactivity
was not extraordinary.
The key point, however, is that § 3582(c)(1)(A)(i) and § 994(t) did not empower the
Commission to overrule or disregard other statutes. The Commission must interpret statutes in a
way that complies or coexists with other statutes. See LaBonte, 520 U.S. at 760; see also Koons,
584 U.S. at 707 (“policy statements cannot make a defendant eligible [for re-sentencing] when [a
statute] makes him ineligible”). And the determinative question is, again, whether U.S.S.G.
§ 1B1.13(b)(6) comports with 18 U.S.C. § 3582(c)(1)(A)(i) in light of these statutes. See United
States v. Black, 131 F.4th 542, 546 (7th Cir. 2025) (holding that because Ҥ 1B1.13(b)(6)
conflicts with another statute (here, the First Step Act), the Commission has exceeded the scope
of its explicitly delegated authority, and § 1B1.13(b)(6) is invalid,” while adding that “courts, not
the Commission . . . determine whether such conflicts exist” (citing Loper Bright, 603 U.S. at
412)).
The prisoners argue that Congress clearly intended the analysis to account for a totality of
the circumstances, meaning that nonretroactivity—like rehabilitation—would be considered
among the combination of circumstances contributing to an individual prisoner’s “extraordinary
and compelling reason” for release. Recall that § 994(t) says that rehabilitation alone is not an
extraordinary and compelling reason, leading to the reverse inference that rehabilitation can be
considered in combination with other reasons. But again, this presupposes permissible reasons,
not just any possible reason, such as a prisoner’s having a peanut allergy or being related to the
President. Combining permissible reasons is different from considering an impermissible
reason. And that brings this back to whether nonretroactivity is a permissible reason, and
whether § 1B1.13(b)(6) properly interprets § 3582(c)(1)(A)(i) to negate these other statutes.

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V.
As demonstrated by its application in these cases, particularly McHenry and Orta, the
intent or effect of § 1B1.13(b)(6), as superseding (or negating) other statutes, raises another
question: can the Commission interpret § 3582(c)(1)(A)(i) to empower a court to reduce a
sentence below the statutory mandatory minimum portion of the sentence? This appears to be a
question that has seldom been asked, much less answered, but certainly lurks in the background
here.
Start with the basics. Congress, and not the Commission, holds the “legislative
responsibility for establishing minimum and maximum penalties for every crime.” Mistretta,
488 U.S. at 396: Apprendi v. New Jersey, 530 U.S. 466, 466-67 (2000) (“While judges in this
country have long exercised discretion in sentencing, such discretion is bound by the range of
sentencing options prescribed by the legislature.”); see also Ohio v. Johnson, 467 U.S. 493, 499
(1984) (“the substantive power to prescribe crimes and determine punishments is vested with the
legislature”); United States v. Reese, 92 U.S. 214, 221 (1875) (“It would certainly be dangerous
if the legislature could set a net large enough to catch all possible offenders, and leave it to the
courts to step inside and say who could be rightfully detained, and who should be set at large.”);
United States v. Wiltberger, 18 U.S. 76, 95 (1820) (“It is the legislature, not the Court, which is
to define a crime, and ordain its punishment.”); cf. Fischer v. United States, 603 U.S. 480, 497
(2024) (“We have long recognized that the power of punishment is vested in the legislative, not
in the judicial department. . . . ” (citation omitted)). So, “[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guideline range, the statutorily required
minimum sentence shall be the guideline sentence.” U.S.S.G. § 5G1.1(b); Dorsey, 567 U.S. at
266-67 (“[O]rdinarily no matter what range the Guidelines set forth, a sentencing judge must
sentence an offender to at least the minimum prison term set forth in a statutory mandatory
minimum.”).
“When a statute sets out a mandatory minimum sentence, a defendant convicted under
that statute will generally receive a sentence at or above the mandatory minimum—but not
always.” Koons, 584 U.S. at 702-03. That is, but for two specific statutory exceptions, a court
may not set a sentence below the statutory minimum.

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When a defendant faces a statutory minimum sentence, the district court’s ability
to depart downward below that minimum is limited to two provisions—18 U.S.C.
§ 3553(e), which allows for departures based upon the government’s motion
indicating that a defendant has provided substantial assistance in the investigation
of other suspects, and 18 U.S.C. § 3553(f), which is known as the ‘safety valve’
provision. . . . [W]e [have] recognized that all of the courts that have addressed
the issue have determined that these two provisions represent the exclusive means
by which a district court may depart below a statutory minimum.
United States v. Stewart, 306 F.3d 295, 331 n.21 (6th Cir. 2002) (citations omitted; emphasis
added) (quoted with approval in United States v. Battles, 350 F. App’x 16, 19 (6th Cir. 2009);
cited with approval in United States v. McIntosh, 484 F.3d 832, 835 (6th Cir. 2007) (“These are
the exclusive means by which a court may depart below the statutory minimum.”)).
Notice that both provisions use language that expressly and unequivocally empowers a
court to go below the statutory minimum based on the specifically identified conditions:
(e) Limited authority to impose a sentence below a statutory minimum. – Upon
motion of the Government, the court shall have the authority to impose a sentence
below a level established by statute as a minimum sentence so as to reflect a
defendant’s substantial assistance in the investigation or prosecution of another
person who has committed an offense. Such sentence shall be imposed in
accordance with the guidelines and policy statements issued by the Sentencing
Commission pursuant to section 994 of title 28, United States Code.
(f) Limitation on applicability of statutory minimums in certain cases. –
Notwithstanding any other provision of law, in the case of an offense under
[certain statutes], the court shall impose a sentence pursuant to guidelines
promulgated by the United States Sentencing Commission under section 994 of
title 28 without regard to any statutory minimum sentence, if the court finds at
sentencing, after the Government has been afforded the opportunity to make
[certain] recommendation[s.]
18 U.S.C. § 3553 (emphasis added). There are two takeaways from this statute and the above
case law: (1) Congress knows how to authorize the Commission to override another legislative
directive and when it does, it does so expressly; and (2) Congress overrides an existing
legislative directive only when it does so clearly and expressly. See Epic Sys. Corp. v. Lewis,
584 U.S. 497, 510 (2018) (“[I]n approaching a claimed conflict, we come armed with the strong
presumption that repeals by implication are disfavored and that Congress will specifically
address preexisting law when it wishes to suspend its normal operations in a later statute”)

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(quotation marks and citations omitted)); Dean v. United States, 581 U.S. 62, 70 (2017)
(“[D]rawing meaning from silence is particularly inappropriate where Congress has shown that it
knows how to direct sentencing practices in express terms.” (quotation marks, editorial marks,
and citation omitted)); Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669
(2007) (recognizing that agency action must “comport[] with the canon against implied repeals”
so as to not “effectively override” other statutory mandates).
In this light, § 3582(c)(1)(A)(i)—which says nothing at all about statutory mandatory
minimums—could never empower a court to reduce a sentence below the statutory minimum
portion of that sentence. For example, suppose that McHenry and Orta could show extraordinary
and compelling circumstances warranting compassionate release—based on, say, old age,
terminal illness, and dire family conditions. Even then, § 3582(c)(1)(A)(i) would not empower a
court to reduce their sentences below 540 months and life, respectively, because
§ 3582(c)(1)(A)(i) does not clearly and expressly authorize the Commission or the courts to
override the statutory minimum, certainly not in the clear and express way that § 3553(e) and (f)
do.
Also consider United States v. Goff, 6 F.3d 363, 365 (6th Cir. 1993), in which the district
court found that a wheelchair-bound quadriplegic defendant had “an extraordinary physical
impairment,” such that U.S.S.G. § 5H1.4 justified a 60-month sentence, well below the 120-
month statutory mandatory minimum sentence. In reversing, we said, “the district court’s
attempt to fashion an equitable sentence for a disabled man [wa]s understandable, [but] it was
without authority to do so,” and we held that “[a] statutorily mandated minimum sentence cannot
be reduced by a guidelines policy statement.” Id. at 366 (citing Stinson, 508 U.S. at 38).
Now suppose that five years (60 months) later, Goff moved the court for compassionate
release because his being a wheelchair-bound quadriplegic was a “medical circumstance” that
qualified as an “extraordinary and compelling reason” under U.S.S.G. § 1B1.13(b)(1), and the
court ordered him released, well short of the minimum. Can a sentencing court really
circumvent the statutory minimum at the five (or ten) year mark when it could not do so
originally? Cf. Concepcion v. United States, 597 U.S. 481, 492 (2022) (“The discretion federal
judges hold at initial sentencings also characterizes sentencing modification hearings.”).

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VI.
There is one remaining separation of powers concern inherent in the Commission’s
policy statement. Consider the Commission’s peculiar parenthetical exception, which says: “a
change in the law (other than an amendment to the Guidelines Manual that has not been made
retroactive) may be considered in determining whether the defendant presents an extraordinary
and compelling reason.” § 1B1.13(b)(6) (emphasis added). So, according to the Commission,
courts are to consider some nonretroactive changes in the law, but not others. Specifically, a
nonretroactive change to a Congressional statute or judicial caselaw can create “an extraordinary
and compelling reason” for release, but a nonretroactive change to the Guidelines—no matter
how “gross” the disparity—cannot create “an extraordinary and compelling reason” for release.
According to one district court, this jerry-rigged exception makes § 1B1.13(b)(6) an
“unprincipled, inconsistent, and unreasonable” interpretation of the statute:
[T]he Commission . . . has purported to authorize individual judges to apply
retroactively laws that Congress has intentionally chosen not to apply
retroactively, while carving out nonretroactive changes to the Guidelines. A
principled approach would either authorize compassionate release based on all
nonretroactive changes in the law, or none at all. It is unprincipled and
inconsistent to adopt an approach that allows compassionate release based on
some, but not all, nonretroactive changes to the law.
United States v. Crandall, No. 89-cr-21, 2024 WL 945328, at *8 (N.D. Iowa Mar. 5, 2024); see
also id. at *10 (“It is not for [the Commission] to use the compassionate release statute, a
narrowly-tailored statute designed to provide relief when an offender has identified extraordinary
and compelling reasons justifying release from prison, to [have courts] arbitrarily decide
whether, under today’s standards, the sentence seems unusually long or somehow unfair.”).14
The Commission’s decision in § 1B1.13(b)(6) to give retroactive effect to some
nonretroactive changes (in statute or case law) but not others (in the Guidelines) is not only an
unreasonable interpretation or construction of § 3582(c)(1)(A)(i), it amounts to a heavy-handed
14One court has suggested that § 1B1.13(b)(6) also makes 18 U.S.C. § 3582(c)(1)(A)(ii) superfluous.
United States v. O’Neill, 735 F. Supp. 3d 994. 1021 (E.D. Wis. 2024) (“Allowing an unusually long sentence to be
extraordinary and compelling for all defendants would render this provision superfluous.”).

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and unseemly power grab by the Commission. See Loper Bright, 603 U.S. at 395. After
instructing courts to treat as retroactive both acts of Congress and judicial rulings, despite those
branches’ opting to not make their decisions retroactive, § 1B1.13(b)(6) then protects its own
authority by prohibiting prisoners from relying on nonretroactive changes to its Guidelines.
McHenry and Orta, relying on § 1B1.13(b)(6), point to sentencing changes effectuated by
Congress in the First Step Act, which Congress expressly made nonretroactive, even though
other parts of that same statute did the opposite with respect to unrelated criminal penalties. See,
e.g., First Step Act of 2018, § 404(b), Pub. L. No. 115-391, 132 Stat. 5194, 5222. In other
words, these prisoners use § 1B1.13(b)(6) to accomplish through the Commission what Congress
expressly forbid them from doing. In the end, § 1B1.13(b)(6) aggrandizes the Commission’s
powers at the expense of the judiciary and Congress, an acute concern of separation-of-powers
jurisprudence. See Freytag v. CIR, 501 U.S. 868, 878 (1991) (“Our separation-of-powers
jurisprudence generally focuses on the danger of one branch’s aggrandizing its power at the
expense of another branch.”).
The scope of § 1B1.13(b)(6) underscores the nature of the intrusion. Recall that
§ 1B1.13(b)(6) says that a nonretroactive change in the law can be an “extraordinary and
compelling” reason for release if (1) a prisoner has served at least 10 years (2) of “an unusually
long sentence,” (3) there is a “gross disparity” between the actual sentence and a hypothetical
sentence that would apply under the new law, and (4) the sentencing court has fully considered
“the defendant’s individualized circumstances.” See fn. 9, supra.
Critically, § 1B1.13(b) says “[e]xtraordinary and compelling reasons exist under any of
the following circumstances or a combination thereof.” So, a prisoner could establish
extraordinary and compelling reasons by satisfying subsection (6) alone, without any other
considerations (e.g., age, health, family circumstances). And the subsection (6) factors, or
“requirements”—“unusually long,” “gross disparity, and “individualized circumstances”—are
either in the eye of the beholder or the natural consequence of Congress’s choosing to not make
the new sentencing statute retroactive. The first two of § 1B1.13(b)(6)’s factors—“at least 10
years” an “unusually long sentence”—are not individual to any one prisoner; they merely parse
the overall prison population. Nor are they anything but ordinary—so this is not a situation in

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which the cumulative effect of some slightly-more-than-ordinary factors would combine to
become extraordinary. Some 55.5% of federal inmates are currently serving a sentence of ten or
more years,15 all of whom will eventually serve the 10 years necessary to satisfy the first and
(arguably) second § 1B1.13(b)(6) factors. The net result is that § 1B1.13(b)(6) allows the
Commission to moonlight as Congress to reduce the sentences of the majority of federal
prisoners.
The Commission’s attempt, via the U.S.S.G. § 1B1.13(b)(6) policy statement, to
empower courts to give retroactive effect to nonretroactive sentencing amendments and to ignore
or overcome statutory mandatory minimum sentences violates the separation of powers. In Neal,
516 U.S. at 295-96, the Supreme Court—recognizing “institutional concerns about the
relationship of the Judiciary to Congress”—explained that “Congress, not this Court, has the
responsibility for revising its statutes. Were we to alter our statutory interpretations from case to
case, Congress would have less reason to exercise its responsibility to correct statutes that are
thought to be unwise or unfair.” Likewise here, were we to enable the Commission to change
the meaning and effect of a sentencing statute—and to contravene or negate our precedent and
other federal statutes—through the promulgation of a policy statement that ranges unreasonably
far from the text of the statute, then Congress would have little incentive to exercise its authority
to revisit such statutes.
VII.
For the forgoing reasons, we hold that the Sentencing Commission’s policy guidance in
U.S.S.G. § 1B1.13(b)(6) is invalid. Consequently, we REVERSE Bricker and AFFIRM
McHenry and Orta, thereby denying compassionate release for all three prisoners.
15QuickFacts: Individuals in the Federal Bureau of Prisons, U.S. Sentencing Comm’n (Jan. 2024),
available at https://www.ussc.gov/research/quick-facts/individuals-federal-bureau-prisons. According to this
Commission report, 37.2% of federal inmates are serving a sentence between 10 and 20 years; 15.7% are serving a
sentence of 20 years or more; and 2.6% are serving a life sentence. The average sentence is more than 12 years (149
months).

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_________________
DISSENT
_________________
JANE B. STRANCH, Circuit Judge, dissenting. The majority opinion misapprehends
recent Supreme Court precedent on administrative law, misconstrues this court’s opinion in
United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc), and ignores the plain language
of several statutes to read constraints into a statutory scheme where none exist. Because these
cases and statutes instead support holding that USSG § 1B1.13(b)(6) is a valid and binding
exercise of the Commission’s delegated authority, I respectfully dissent.
I. ANALYSIS
A. The Binding Nature of Sentencing Commission Policy Statements
I begin with a brief history of the Supreme Court’s jurisprudence on deference to
agencies, because the majority overlooks this essential component. The proper method for
assessing deference to agency rules in cases where Congress has expressly delegated rulemaking
authority to an agency is not new. It was not new after Loper Bright Enters. v. Raimondo, 144 S.
Ct. 2244 (2024). And it was not new after Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (1984). In the early nineteenth century, the Supreme Court recognized that, when
Congress chooses to expressly delegate interpretive authority, courts should defer to reasonable
agency interpretations of a statute. Edward’s Lessee v. Darby, 25 U.S. (12 Wheat.) 206, 210
(1827) (“In the construction of a doubtful and ambiguous law, the cotemporaneous construction
of those who were called upon to act under the law, and were appointed to carry its provisions
into effect, is entitled to very great respect.”).
By the late twentieth century there was well established doctrine regarding the
appropriate deference in cases of express delegation:
Congress in [the relevant statute] expressly delegated to the [agency] the power to
prescribe standards for determining what [a particular statutory term means]. In a
situation of this kind, Congress entrusts to the [agency], rather than to the courts,
the primary responsibility for interpreting the statutory term. In exercising that
responsibility, the [agency] adopts regulations with legislative effect. A reviewing

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court is not free to set aside those regulations simply because it would have
interpreted the statute in a different manner. . . . The regulation at issue in this
case is therefore entitled to more than mere deference or weight. It can be set
aside only if the [agency] exceeded [its] statutory authority or if the regulation is
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.”
Batterton v. Francis, 432 U.S. 416, 425-26 (1977) (citations omitted) (emphasis added).
The Supreme Court also specified definitive parameters establishing when a policy
statement or other agency decision is “arbitrary, capricious, an abuse of discretion or otherwise
not in accordance with law.” In United States v. Labonte, the Court explained that courts are to
look to the specific directives of Congress and to determine whether the policy statement
conflicts with those directives. 520 U.S. 751, 757 (1997). In particular, courts look to whether
the policy statement is “at odds with [the statute]’s plain language” or “manifestly contrary to the
statute.” Id.; United States v. O’Hagan, 521 U.S. 642, 673 (1997). In short, in the express
delegation context, our role as courts is to determine what the statute does and does not permit
based on its unambiguous plain text, and then to allow the Commission to define the terms
Congress has instructed it to, provided that the Commission’s definition is not arbitrary,
capricious, or contrary to the unambiguous plain text of the statute.
The Supreme Court has provided a template for how to handle cases where a court has
construed a statute one way, but an agency to which authority was delegated has construed it
another, and the court must now determine whether the regulation is manifestly contrary to the
statute. In AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000), the Ninth Circuit
construed a statute by “look[ing] first to the plain language of the statute,” construing the
provisions of “the entire law, including its object and policy,” and considering the history of
regulation of similar policies. Id. at 876-78 (citation omitted). The court reached a conclusion
and, in doing so, never asserted that the statute’s text alone was unambiguous. Id. at 880. When
the Ninth Circuit was later faced with an agency decision that construed the relevant statute in a
manner contrary to Portland, it rejected the regulation. Brand X Internet Servs. v. FCC, 345
F.3d 1120, 1130-31 (9th Cir. 2003).

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The Supreme Court expressly critiqued this approach on grounds that “a court's
interpretation of a statute trumps an agency’s under the doctrine of stare decisis only if the prior
court holding ‘determined a statute’s clear meaning.’” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 984-85 (2005)1 (quoting Maislin Indus., U.S., Inc. v.
Primary Steel, Inc., 497 U.S. 116, 131 (1990)). A contrary rule, the Court explained “would
produce anomalous results,” because the meaning of a statute would turn, not on the law, or the
regulations, but on who interpreted the statute first: the court or the agency. Id. at 983. “Yet
whether Congress has delegated to an agency the authority to interpret a statute does not depend
on the order in which the judicial and administrative constructions occur.” Id. Thus, it is
entirely possible for a court to reach a resolution of the issue based on the traditional tools of
statutory construction without concluding that the underlying plain text unambiguously
forecloses a different resolution. In such cases, an agency to which authority has been expressly
delegated may permissibly reach a different resolution.
What role, then, do Chevron and its subsequent demise in Loper Bright play? The legal
rule announced in Chevron and eliminated in Loper Bright was not a change in either the degree
of deference given to agencies, or the degree of statutory ambiguity required for deference to be
given. Rather, the Chevron rule simply imported the longstanding rules and standards for
express delegation into a new kind of delegation: implied delegation. Chevron, 467 U.S. at 844.
Under Chevron, a court did not need to identify an express delegation to an agency before
deferring to the agency. Id. at 842-43. Because a court could assume that ambiguity in a statute
was “implicitly” delegation to an agency, even where Congress had expressed no desire for an
agency to construe a statutory term, courts were to defer to reasonable agency construction. Id.
1Brand X considered a case of implied delegation through an ambiguous statute. 545 U.S. at 984. It was,
therefore, decided under the Chevron doctrine. Id. At the time, under Chevron, courts used the same “manifestly
contrary” test that courts now use for interpretations made pursuant to express delegation to evaluate agency
interpretations made pursuant to implied delegation. Mayo Found. for Med. Educ. & Rsch. v. United States, 562
U.S. 4456-58 (2011) (explaining that the same standards applied to the analysis of an agency interpretation
regardless of the type of delegation under Chevron). Thus, Brand X’s holdings were equally applicable to cases of
express and applied delegation. After Chevron’s demise, the deference methodology Brand X employed no longer
applies to cases of implied delegation; nor does the explication of the role of the agency under the Brand X
methodology. But Brand X’s explication of the role of agency interpretations of statutes vis-à-vis court
interpretations remains good law in any case where the deference methodology it employed still applies. As will be
discussed below, cases of express delegation fall precisely into that category.

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While Chevron was on the books, therefore, there was neither a difference in degree nor a
difference in kind between the two types of delegation—express and implied. Courts treated
situations where Congress had written a slightly ambiguous statute in exactly the same way they
treated situations in which Congress had expressly left gaps and directed the agencies to fill
them. The Court in Loper Bright overturned Chevron, holding that “an ambiguity is simply not a
delegation of law-interpreting power.” Loper Bright, 144 S. Ct. at 2265 (quoting Cass R.
Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405, 445 (1989)).
But while Loper Bright overruled Chevron, and significantly reduced the deference given
to agencies in the implied delegation context, it did not purport to disturb pre-Chevron law for
express delegation. Indeed, Loper Bright cited pre-Chevron precedent setting forth the rules for
deference in the express delegation context with approval. Loper Bright, 144 S. Ct. at 2263. The
Court explicitly preserved the role of an agency’s interpretation in the express delegation
context:
In a case involving an agency, of course, the statute’s meaning may well be that
the agency is authorized to exercise a degree of discretion. Congress has often
enacted such statutes. For example, some statutes “expressly delegate” to an
agency the authority to give meaning to a particular statutory term. Others
empower an agency to prescribe rules to “fill up the details” of a statutory
scheme, or to regulate subject to the limits imposed by a term or phrase that
leaves agencies with flexibility, such as “appropriate” or “reasonable.”
When the best reading of a statute is that it delegates discretionary authority to an
agency, the role of the reviewing court under the APA is, as always, to
independently interpret the statute and effectuate the will of Congress subject to
constitutional limits. The court fulfills that role by recognizing constitutional
delegations, fixing the boundaries of the delegated authority, and ensuring the
agency has engaged in reasoned decisionmaking within those boundaries. By
doing so, a court upholds the traditional conception of the judicial function that
the APA adopts.
Id. (cleaned up). Post Loper Bright, there now exists at law an important difference in kind
between the express and implied delegation contexts. In the realm of express delegation,
agencies are still entitled to significant deference under the same rules in existence since the
nineteenth century; in the realm of implied delegation, agencies are no longer so entitled.

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This history provides a clear framework for what courts should do, in the express
delegation context, when faced with an agency interpretation of a statute that courts have already
construed. Ordinarily, there are many tools in a court’s statutory interpretation toolbox—text,
history, structure, background legal principles, legislative history, purpose, etc. And ordinarily,
even where a statute is ambiguous, courts must still resolve the case and give that statute
meaning. But in the express delegation context, courts are to use only a single tool: text. And
only if the plain text unambiguously forecloses the agency’s interpretation may courts disturb
that interpretation. When governing case precedent demonstrates that the text alone is
unambiguous and precludes the agency’s interpretation, that prior precedent is binding, and
courts must follow it in rejecting the agency rule. Where, however, prior precedent shows that
the text is ambiguous, or resorts to reaching back into the toolbox for other interpretive tools
beyond the text, Brand X teaches that such precedent cannot control the validity of a later agency
construction of that same text. 545 U.S. at 984.
The majority’s failure to understand or sometimes even acknowledge this historical
framework leads the majority opinion to claim interpretive authority this court simply does not
have. The genesis of the majority’s error is in its misconstruction of Loper Bright. The opinion
injudiciously interprets Loper Bright as standing for the proposition that “courts no longer defer
to agency regulations as the authoritative (binding) interpretation of a statute,” even those based
on expressly delegated authority. Maj. Op. at 16. But, as discussed above, Loper Bright did not
disturb the Supreme Court’s longstanding precedent requiring courts to defer in the express
delegation context; it merely eliminated the implied delegation precedent.
Confusingly, the majority directly quotes the very passage from Batterton v. Francis,
quoted in full above; but there the Supreme Court explained that courts must defer in the express
delegation context because an agency’s interpretation of a statute it has been expressly instructed
to interpret can be “set aside only if the [agency] exceeded [its] statutory authority or if the
regulation is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Maj. Op. at 15. (quoting Batterton, 432 U.S. at 425-26). The majority provides no
explanation as to why Batterton does not apply here or why Batterton does not mean what it
plainly says.

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The majority compounds its initial error by positing that the difference between express
and implied delegation is “a difference in degree, not kind” thereby claiming the authority to
treat express delegation as diminished post-Loper Bright in the same way implied delegation has
been. Maj. Op. at 16-17. But, once again, as discussed above, the difference between express
and implied delegation is not and never has been a difference of degree. There has never been a
time when courts applied the same type of deference in both the express and implied delegation
contexts but to a greater or lesser degree. The question debated by the court in Chevron and
Loper Bright was not about the degree of deference courts must give, but about what statutory
circumstances merit deference in the first place. Loper Bright clarified that deference was
appropriate in the express context but not the implied context. 144 S. Ct. at 2265.
Turning to the relationship between our past precedent and new constructions by the
agencies, the majority classifies any guideline that provides an interpretation of an ambiguous
statute that is different from the one promulgated by this court as an attempt to “overrule a
Circuit Court’s interpretation of a statute.” Maj. Op. at 3, 14. But this incorrectly presumes what
happens when the Commission promulgates a rule interpreting an ambiguous statute that it has
been expressly delegated the authority to interpret. Indeed, the Supreme Court has explicitly
rejected the majority’s assumption that a court’s holding is being “overruled” by such an agency
action:
The dissent answers that allowing an agency to override what a court believes to
be the best interpretation of a statute makes “judicial decisions subject to reversal
by executive officers.” It does not. . . . The precedent has not been “reversed” by
the agency, any more than a federal court’s interpretation of a State’s law can be
said to have been “reversed” by a state court that adopts a conflicting (yet
authoritative) interpretation of state law.
Brand X, 545 U.S. at 983-84 (cleaned up).
When an agency adopts a new interpretation of a statute, a new legal landscape is formed
in which a court must operate. Had there been no agency interpretation of the statute, the correct
interpretive methodology would be for the court to look to the text, recognize that the text is
ambiguous, recognize that the text delegates interpretive authority to the agency, recognize that
the agency has not exercised that authority, and then turn to other tools of statutory

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interpretation. But, in the express delegation context, once an agency interpretation has been
promulgated, the correct interpretive methodology would be for the court to look to the text,
recognize that the text is ambiguous, and recognize that the text delegates interpretive authority
to the agency, just as before. But this time, when the court looks to the agency, it will find an
answer because the agency has exercised its authority, and, thus, the court will proceed no
further. The new ruling does not overrule the pre-agency-action ruling or challenge its propriety
when it was made; it simply recognizes an intervening change in the facts on the ground—i.e.,
the presence or absence of an agency rule.
Finally, the majority wrongly pulls a portion of Loper Bright out of context, quoting
language in which the Supreme Court notes the evils of allowing an agency interpretation of a
statute to take precedence over a prior judicial construction. Maj. Op. at 16 (citing Loper Bright,
144 S. Ct. at 2265). The majority’s argument that any prior construction by this court must reign
supreme misunderstands Loper Bright. That section of Loper Bright addresses the implied
delegation context in which Congress has not expressly instructed the agency to interpret a
particular term; the concern was that courts were abdicating their authority by allowing the
agency determination to prevail. Loper Bright, 144 S. Ct. at 2265. In the express delegation
context, there is no abdication of authority when courts acknowledge that Congress expressly
instructed the agency to define the terms of the statute and interpretation of the statute by the
courts must hinge on the agency’s definitions. Id. at 2263.
In this dissent, I will follow binding Supreme Court precedent on deference, recognizing
and giving effect to Congress’s delegation to the agency as commanded by Loper Bright, rather
than circumventing Congress’s delegation decision as does the majority opinion. 144 S. Ct. at
2263. In the statute at issue in this case, we have a clear case of express delegation—18 U.S.C.
§ 3582(c)(1)(A) provides that a court may reduce a term of imprisonment after considering the
sentencing factors set forth in 18 U.S.C. § 3553(a) where “extraordinary and compelling reasons
warrant such a reduction.” In 28 U.S.C. § 994(a)(2)(C), Congress delegated to the Sentencing
Commission the authority to make general policy statements regarding the application of
18 U.S.C. § 3582(c). Congress expressly directed in 28 U.S.C. § 994(t) that the Commission
should, “in promulgating general policy statements regarding the sentencing modification

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provisions in section 3582(c)(1)(A) of title 18, . . . describe what should be considered
extraordinary and compelling reasons for sentence reduction, including the criteria to be applied
and a list of specific examples.”
Further, in 18 U.S.C. § 3582 itself, Congress instructed that courts should make their
findings “consistent with applicable policy statements issued by the Sentencing Commission.”
This language “expressly cabin[s] district courts’ discretion by requiring courts to abide by the
Sentencing Commission’s policy statements.” Concepcion v. United States, 597 U.S. 481, 495
(2022) (interpreting identical language in 18 U.S.C. § 3582(c)(2)). It requires courts to “follow
the Commission’s instructions . . . to determine the prisoner’s eligibility for a sentence
modification.” Dillion v. United States, 560 U.S. 817, 827 (2010). Indeed, this court has held
that, “regardless of whether Congress wanted policy statements to be binding in the sentencing
context, it wished them to be binding in § 3582(c) proceedings. If a sentence reduction is
inconsistent with a policy statement, it would violate § 3582(c)’s directive, so policy statements
must be binding.” United States v. Horn, 679 F.3d 397, 402 (6th Cir. 2012) (quoting United
States v. Garcia, 655 F.3d 426, 435 (5th Cir. 2011)). Because Congress expressly delegated
authority to interpret the words “extraordinary and compelling reasons” to the Commission,
courts must defer to the Commission unless the Commission’s policy statement is arbitrary,
capricious, or contrary to the plain meaning of the statute. Batterton, 432 U.S. at 425-26.
The Commission, in USSG § 1B1.13(b)(6), provided that a narrow class of
nonretroactive changes in law can factor into the extraordinary and compelling analysis:
If a defendant received an unusually long sentence and has served at least 10
years of the term of imprisonment, a change in the law (other than an amendment
to the Guidelines Manual that has not been made retroactive) may be considered
in determining whether the defendant presents an extraordinary and compelling
reason, but only where such change would produce a gross disparity between the
sentence being served and the sentence likely to be imposed at the time the
motion is filed, and after full consideration of the defendant’s individualized
circumstances.
USSG § 1B1.13(b)(6). No party contends that USSG § 1B1.13(b)(6) is arbitrary and capricious.
The question, then, is whether USSG § 1B1.13(b)(6) is contrary to the plain language of the
statute.

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B. The Role of the McCall Opinion
Both the government and the majority argue that our plain language inquiry can be
resolved simply by looking to this court’s decision in United States v. McCall, in which we held
that “[n]onretroactive legal developments do not factor into the extraordinary and compelling
analysis.” Maj. Op. at 12-13 (citing 56 F.4th 1048, 1066 (6th Cir. 2022)). Governing caselaw
rejects that claim. Recall that, in the express delegation context, where the agency is the primary
interpreter of the text, an agency interpretation may be binding even in the face of a prior judicial
decision that interpreted the meaning of the statute but could only do so based on tools beyond
the text. Brand X, 545 U.S. 967, 984 (2005).
Before the Commission’s statement in USSG § 1B1.13(b)(6), this court, like the Ninth
Circuit in Portland, was required to interpret a statute without an existing agency interpretation.
The McCall court recognized that the statute did delegate interpretive power to the agency, but it
also recognized that the agency had not yet exercised its authority. McCall, 56 F.4th at 1054. As
a result, the court interpreted the statute using other tools of statutory interpretation. Id. at 1055-
61. As in Brand X, the landscape is now different because there is an agency interpretation.
Provided that that agency interpretation is not contrary to the text of the statute, the role of this
court now is to give effect to Congress’s delegation of interpretive authority to the Commission
regardless of any prior interpretation in McCall. Therefore, McCall only binds this court if it
held that the plain text of the statute unambiguously foreclosed a contrary reading. McCall
expressly did not.
McCall begins with an entire section on how vague “extraordinary and compelling” is as
a standard. The opinion looks to the text, but concludes that it is unhelpful:
Our analysis starts, as it must, with the text of the compassionate-release statute.
With no statutory definition of “extraordinary and compelling reasons” to guide
us, we interpret the phrase “in accord with the ordinary public meaning of its
terms at the time of its enactment[.]” And to do so, we rewind the clock to the
time of the Sentencing Reform Act’s adoption, here 1984. At that time, most
understood “extraordinary” to mean “most unusual,” “far from common,” and
“having little or no precedent.” “Compelling,” for its part, referred to “forcing,
impelling, driving.”

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At first glance, these common-sense definitions only seem to reiterate what we
already know. Of course, an “extraordinary and compelling reason” is one that is
unusual, rare, and forceful. But in a vacuum, the phrase “extraordinary and
compelling” does little to illuminate the specific type of unique or rare reason that
might justify relief. This leads us back to the question with which we began.
Does a district court's discretion to define “extraordinary and compelling”
encompass any reason—legal or factual—it finds convincing?
McCall, 56 F.4th at 1055 (internal citations omitted) (emphasis added).
To resolve the matter, the opinion then delves into a lengthy discussion of “background
principles of federal sentencing law,” congressional intent as revealed by the structure of the rest
of the statute, the role of the compassionate release provision in the statute in relation to other
resentencing statutes, and the history of compassionate release. Id. at 1055-60. By this circuit’s
principles of statutory interpretation, the discussion of these extra-textual factors would have
been irrelevant and unnecessary if the text was unambiguous on its face. Governing principle
teaches that background principles, structure, and history are irrelevant where the text itself is
clear. For example, in United States v. Asgari, we rejected an argument based on background
principles explicitly because such principles were not needed where the statute’s text was clear.
940 F.3d 188, 190 (6th Cir. 2019). Likewise in United States v. Ninety-Three Firearms, we
noted that we were turning to the structure of a statute only because the text was ambiguous. 330
F.3d 414, 421 (6th Cir. 2003). And, in NLRB v. SW Gen., Inc., the Supreme Court held that it
need not look at historical evidence because “the text is clear, so we need not consider this extra-
textual evidence.” 580 U.S. 288, 305 (2017). Thus, McCall’s resort to background principles,
structure, and history is an admission that the text is ambiguous. Opinions that must reach for
other tools beyond the text from the statutory interpretation toolbox do not provide the kind of
unambiguous plain text conclusion necessary to undermine a contrary agency interpretation. The
clear holding of McCall, then, is that the text of the statute is ambiguous on its face but is subject
to construction using various tools of statutory interpretation, just as the text in Portland was.

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The majority resists this conclusion by overlooking McCall’s clear statement that the text
alone is unclear in favor of a few cherry-picked quotations from McCall which, the majority
asserts, constitute a holding that the text is unambiguous. Maj. Op. at 17 n.13.2 But, in context,
none of these quotations assert what the majority opinion claims they do. The opinion begins
with McCall’s assertion that “there is no such ambiguity here.” Maj. Op. at 17 n.13 (quoting
McCall, 56 F.4th at 1064). That phrase is drawn from this court’s rejection of McCall’s appeal
to legislative history:
[L]egislative history is not the law. And even when courts consider legislative
history, they do so only when it sheds a reliable light on the enacting Legislature's
understanding of otherwise ambiguous terms. There is no such ambiguity here.
The text of the compassionate-release statute, informed by the principles, history,
and structure of sentencing law forecloses McCall’s argument.
McCall, 56 F.4th at 1064 (cleaned up). The McCall court did not conclude that the text of the
statute was unambiguous on its face. Rather, the court concluded that the text was not
ambiguous after consideration of both text and other tools like “principles, history, and
structure,” all of which rendered resort to such a disfavored tool as legislative history
unnecessary. That conclusion was useful in the context of McCall, but, as discussed above, it is
not relevant to the question of whether the agency may adopt a contrary conclusion, because it
does not rest solely on unambiguous plain text.
The majority similarity quotes McCall’s claims that “[f]ramed against this background,
the text of the compassionate-release statute gives way to a basic inference: What is ‘ordinary’
and routine cannot also be extraordinary and compelling” and “[v]iewed in this light, the phrase
‘extraordinary and compelling reasons’ comes into sharper focus.” Maj. Op. at 17 n.13 (citing
McCall, 56 F.4th 1055-56). But the participial phrases at the beginning of these sentences are
important. The “background” against which the text was framed and the “light” in which it was
viewed both integrally involved the “principles, history, and structure” of the text. McCall, 56
F.4th 1055-56. Once again, neither of these sentences was a claim that the text was
unambiguous on its face, but, rather, that it could be construed “against the background” and “in
2The majority provides no analysis as to why this court would assert that the text was unclear on its face,
resort to tools of statutory construction reserved for situations in which the text is unclear, and then reach the
internally inconsistent holding that the text was unambiguous.

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the light of” other tools of statutory construction. Neither is, therefore, relevant to the purely
textual inquiry we must undertake today.
Finally, the majority quotes McCall’s assertion that “we cannot reconcile this approach
with the plain text of the compassionate-release statute.” Maj. Op. at 17 n.13 (citing McCall,
56 F.4th 1065). True, this sentence references the plain text of the statute. The problem is that
the “approach” McCall rejected was an interpretive approach that viewed the compassionate
release statute as holding the goal of “alleviating unfair and unnecessary sentences as judged by
today’s sentencing laws.” McCall, 56 F.4th 1065 (citation omitted). Thus, we are bound by
stare decisis to reject that interpretive approach. But it is entirely consistent to hold both (1) that
the statute is ambiguous as to whether nonretroactive changes may be considered as part of the
analysis and (2) that the goal of the statute was not to “alleviat[e] unfair and unnecessary
sentences as judged by today’s sentencing laws.” Id. (citation omitted).
By way of analogy, Congress expressly prohibited courts from finding that rehabilitation,
alone, was an “extraordinary and compelling reason.” 28 U.S.C. § 994(t). It would be contrary
to the plain text of the statute, therefore, to approach the statute by assuming that Congress’s
purpose was to ensure that prisoners who have achieved sufficient rehabilitation are released.
But even though Congress did not write the statute with the purpose of ensuring that prisoners
who have been rehabilitated are released, courts routinely (and permissibly) consider
rehabilitation in the “extraordinary and compelling” analysis. See, e.g., United States v. Peoples,
41 F.4th 837, 842 (7th Cir. 2022); United States v. Brooker, 976 F.3d 228, 237-38 (2d Cir. 2020).
Thus, the rejection of the approach described by the court in McCall does not rule out the
Commission’s reading of the statute.
Despite the majority’s attempts to stretch the McCall opinion to cover the question we
must resolve today, our precedent leaves open both the question of whether the Sentencing
Commission has the authority to issue a policy statement allowing courts to consider
nonretroactive changes in law as an “extraordinary and compelling reason” and the underlying
question of whether the text of § 3582(c) permits such an interpretation. We must, therefore,
review those questions without the benefit of clear precedent from the en banc court.

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C. The Reasonability of USSG § 1B1.13(b)(6)
I turn now to the appropriate analysis: de novo interpretation of the statute to determine
whether it unambiguously forecloses the reading put forward by USSG § 1B1.13(b)(6). I begin
with the statute’s text and then address several broader, textual arguments made by the majority.
1. The Text of § 3582(c)
It is established precedent in this circuit that the terms “extraordinary and compelling”
are, at least to some extent, ambiguous. As discussed above, McCall made a point of how
unclear they were. McCall, 56 F.4th at 1055. Our pre-McCall precedent says the same. United
States v. Hunter, 12 F.4th 555, 566 (6th Cir. 2021) (calling the phrase “vague and amorphous”).
And there is evidence that the statute is ambiguous on precisely this point. Our circuit has found
that judicial disagreement is evidence of ambiguity, Valent v. Comm’r of Soc. Sec., 918 F.3d 516,
521 (6th Cir. 2019); N. Fork Coal Corp. v. Fed. Mine Safety & Health Rev. Comm’n, 691 F.3d
735, 740 (6th Cir. 2012), as has the Supreme Court, Smiley v. Citibank (S.D.), N.A., 517 U.S.
735, 739 (1996). Prior to the Commission’s adoption of USSG § 1B1.13(b)(6), there was a deep
circuit split on whether “extraordinary and compelling reasons” could encompass nonretroactive
changes in law and, if so, which ones. Compare United States v. Ruvalcaba, 26 F.4th 14, 28 (1st
Cir. 2022) (holding that, on the face of the statute, nonretroactive changes could be
“extraordinary and compelling”), United States v. McCoy, 981 F.3d 271, 286 (4th Cir. 2020)
(same), United States v. Chen, 48 F.4th 1092, 1098 (9th Cir. 2022) (same), and United States v.
McGee, 992 F.3d 1035, 1047 (10th Cir. 2021) (same), with United States v. Andrews, 12 F.4th
255, 260-62 (3d Cir. 2021) (holding that, on the face of the statute, nonretroactive changes could
not be “extraordinary and compelling”); United States v. Thacker, 4 F.4th 569, 573-75 (7th Cir.
2021) (same), United States v. Crandall, 25 F.4th 582, 585-86 (8th Cir. 2022) (same), and
United States v. Jenkins, 50 F.4th 1185, 1198 (D.C. Cir. 2022) (same). This suggests that the
statute is not merely ambiguous generally, but ambiguous specifically as to whether
nonretroactive changes in law can factor into a court’s analysis of “extraordinary and compelling
reasons.” The ambiguity on this point suggests that a reading permitting the consideration of
nonretroactive changes in law would not be “manifestly contrary” to the plain text of the statute.

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Viewing the text from first principles shows the impropriety of concluding that USSG
§ 1B1.13(b)(6) is manifestly contrary to the text of the statute. Section 3582, itself, provides
very few limits. 28 U.S.C. § 994(t) prohibits the Commission from guiding courts to consider
rehabilitation alone. This policy guideline does not violate that provision. As the court in
McCall noted, the text of § 3582(c)(1)(A) provides an additional limit in that the reasons must be
genuinely extraordinary and compelling. McCall, 56 F.4th at 1063. It would, therefore, be
contrary to the plain text of the statute (as well as extremely unhelpful) for the Commission to
define “extraordinary and compelling reasons” to mean any reasons whatsoever that reflect well
upon the defendant except for rehabilitation. But beyond such obviously non-extraordinary
constructions, even the court in McCall noted that “the phrase ‘extraordinary and compelling’
does little to illuminate the specific type of unique or rare reason that might justify relief.” Id. at
1055 (emphasis removed).
It is not unreasonable to conclude that a prisoner meeting the qualifications required by
USSG §1B1.13(b)(6) faces conditions that are extraordinary and compelling. To be sure,
changes in law are not extraordinary. But USSG §1B1.13(b)(6) requires more than a change in
law. It requires a change in law, that the change in law be so substantial as to create a “gross
disparity” between the sentence the defendant would have received under the new law and the
one he received at his initial sentencing, that the defendant received an unusually long sentence
in the first place, and that he has already served ten years of that sentence. The ten-year
requirement alone restricts those eligible to a small fraction of the prison population. Sentencing
Guidelines for United States Courts, 88 Fed. Reg. 28254, 28259 (May 3, 2023). Restricting
release to those with unusually long sentences who have suffered the unfairness of a sentence no
longer deemed acceptable by Congress places those eligible under USSG § 1B1.13(b)(6) in a
rare group of prisoners who have been subject to unusual conditions that set them apart both
numerically and morally from their fellow prisoners.
Just as it is ordinary to become sick, but it is extraordinary to become so ill as to satisfy
USSG § 1B1.13(b)(1)—the provision for compassionate release in the case of severe illness—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

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USSG § 1B1.13(b)(6). In the face of a policy statement that designates a narrow category of
offenders who, at least arguably, are highly unusual and unfairly situated, the text of the statute
does little to contradict the Commission’s guidance.
2. Reasonability in Light of Nonretroactivity
The majority argues that, even if the text of the compassionate release statute itself does
not prohibit USSG § 1B1.13(b)(6), the text of the United States Code as a whole does. Maj. Op.
at 19. In the majority’s view USSG § 1B1.13(b)(6) “effectively giv[es] retroactive effect to []
nonretroactive change[s] to sentencing law,” in violation of 1 U.S.C. § 109, which provides that
“[t]he repeal of any statute shall not have the effect to release or extinguish any penalty,
forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly
provide.” Maj. Op. at 21-22 (quoting 1 U.S.C. § 109). The majority makes a similar argument in
its assertion that the Sentencing Commission has violated the separation of powers by attempting
to override Congress’s decisions about which changes in law should be retroactive.
Both of these arguments elide a key distinction between § 1B1.13(b)(6) and the kind of
blanket retroactivity prohibited by 1 U.S.C. § 109. USSG § 1B1.13(b)(6) does not propose a
system in which defendants may automatically be resentenced upon the change in law as though
their sentences were no longer valid. This is apparent for several reasons. First, USSG
§ 1B1.13(b)(6) requires defendants to have been in prison for ten years, regardless of whether
they would receive a sentence of ten years now. In doing so, it inherently accepts the validity of
the longer original sentence (otherwise it would be a due process violation to hold the prisoner
for the ten years), but requests resentencing based on new circumstances.
Second, a court granting compassionate release under USSG § 1B1.13(b)(6) is not bound
by the new statutory maximum punishments (although the court is bound by the old statutory
maximums). A court in such circumstances could reduce a defendant’s sentence to one lower
than the one they originally received but higher than the statutory maximum under the new law.
If the changes in law were truly retroactive, such an above maximum sentence would be
impossible. Fundamentally, while USSG § 1B1.13(b)(6) allows consideration of new law, it
does not impose the new law upon the court in the way retroactivity would. Thus, it does not run

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afoul of 1 U.S.C. § 109 and it does not create a separation of powers problem by circumventing
Congress’s nonretroactivity decisions.
3. Reasonability in Light of Mandatory Minimums
The majority next suggests, although it declines to decide, that USSG § 1B1.13(b)(6)
may be contrary to existing law because it empowers a court to resentence a defendant below the
statutory minimum in effect at his original sentencing. Maj. Op. at 24-27. This argument fails
because this circuit has already held that courts may consider nonretroactive changes in
sentencing law when considering the extent of a sentence reduction. McCall, 56 F.4th at 1066
n.8.
If a defendant presented other extraordinary and compelling reasons (e.g., age and
illness), he could be resentenced with consideration of the new statutory minimums rather than
the old ones even under McCall. Id. The proposition that a defendant, originally sentenced with
the old minimum, would have his sentence reduced to one appropriate under the new scheme
cannot, therefore, itself, be problematic. See United States v. Thanker, 4 F.4th 569, 574 (7th Cir.
2021) (“In making this observation, we are not saying that extraordinary and compelling
individual circumstances, such as a terminal illness, cannot in particular cases supply the basis
for a discretionary sentencing reduction of a mandatory minimum sentence.”). Given that our
law already contemplates the use of compassionate release to resentence a defendant below the
mandatory minimum, allowing specific types of circumstances to qualify as “extraordinary and
compelling reasons” for that compassionate release does not make resentencing below the old
minimum any more problematic.
II. CONCLUSION
Nothing in 18 U.S.C. § 3582(c)(1)—or any other provision of the code—makes clear by
unambiguous plain text that nonretroactive changes in law can never be “extraordinary and
compelling” reasons for resentencing. Though a fair reading of § 3582(c)(1) could exclude
changes in law, as this court held in McCall, that is not the only permissible reading of the text.
Our decision is bound by governing precedent explicating the role of courts when Congress
chooses to employ express delegation. Because the text is ambiguous and Congress has

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expressly delegated to the Sentencing Commission the power to interpret the term “extraordinary
and compelling,” I would hold that USSG § 1B1.13(b)(6) is a valid and binding exercise of the
Commission’s delegated authority. I, therefore, respectfully dissent.

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