United States v. Daniel Rutherford

                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
           _______________

                No. 23-1904
              _______________

      UNITED STATES OF AMERICA

                      v.

          DANIEL RUTHERFORD
            a/k/a SQUEAKY,
                           Appellant
            _______________

On Appeal from the United States District Court
   For the Eastern District of Pennsylvania
        (D.C. No. 2-05-cr-00126-001)
 District Judge: Honorable John M. Younge
              _______________

                   Argued
                June 27, 2024

  Before: JORDAN, SMITH, Circuit Judges
              and BUMB, Chief District Judge *.

                  (Filed: November 1, 2024)
                      _______________

Justin Berg [ARGUED]
Geoffrey Block
Alex Treiger
Kellogg Hansen Todd Figel & Frederick
1615 M Street NW – Suite 400
Washington, DC 20036
       Counsel for Appellant

Salvatore L. Astolfi
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street – Suite 1250
Philadelphia, PA 19106
      Counsel for Appellee

David A. O’Neil
Debevoise & Plimpton
801 Pennsylvania Avenue NW – Suite 500
Washington, DC 20004
     Counsel for Amicus Appellants National
     Association of Criminal Defense Lawyers,
     FAMM, and Federal Public & Community
     Defender Organization of the Third Circuit

       *
         Honorable Renée Marie Bumb, Chief Judge of the
United States District Court for the District of New Jersey,
sitting by designation.




                               2
Amy M. Saharia
Danielle Sochaczevski
Jonathan E. Spratley
Williams & Connolly
680 Maine Avenue SW
Washington, DC 20024
      Counsel for Amicus Appellants Cory Booker,
      and Dick Durbin
                     _______________

                 OPINION OF THE COURT
                     _______________

JORDAN, Circuit Judge.

        Daniel Rutherford seeks a reduction of the nearly 42.5-
year sentence he received for committing two armed robberies.
He argues that he is eligible for compassionate release because,
if he were sentenced for those crimes today, his sentence would
be at least eighteen years less than the one he received. That
sentencing disparity results from changes effected by the First
Step Act, 

 Stat. 5194 (2018), which,
among other things, made a nonretroactive change to the
penalties for violating 

(c), the federal statute
that forbids using or carrying a firearm in furtherance of drug
trafficking or a crime of violence. The District Court denied
Rutherford’s sentence-reduction motion, holding that our
precedent in United States v. Andrews, 

 (3d Cir.
2021), prohibits the change to § 924(c) from being a
consideration when determining eligibility for compassionate
release.




                               3
        After the Court denied Rutherford’s motion, the United
States Sentencing Commission amended its policy statement
on compassionate release. It said, for the first time, that courts
could consider nonretroactive changes in law, like the
amendment to § 924(c), when making a decision about a
prisoner’s eligibility for compassionate release. Rutherford
now argues that we must be guided by the Commission’s
policy statement, notwithstanding our Andrews precedent and
the nonretroactive character of the statutory change. In
Andrews, however, we held that allowing prisoners to be
eligible for compassionate release because of the First Step
Act’s change to § 924(c) would conflict with Congressional
intent on nonretroactivity. That conclusion remains true.
Accordingly, we will affirm the District Court’s order denying
Rutherford’s compassionate-release motion.

I.     BACKGROUND

       A.     Legal Background

              1.      The Sentencing Reform Act of 1984 and
                      the Creation of the Sentencing
                      Commission

       Prior to 1984, courts and parole officers shared
responsibility for federal criminal sentencing. Mistretta v.
United States, 

 (1989). Courts had “wide
discretion” to impose sentences, but parole officers had
“almost absolute discretion” in deciding whether “to release a
prisoner before the expiration of the sentence imposed by the
judge.” 

. In that “indeterminate-sentence
system,” 

, there were “significant sentencing
disparities among similarly situated offenders” in the actual




                                4
length of time prisoners served before being released, Peugh v.
United States, 

 (2013).

        Public concern about such disparities prompted
Congress to overhaul the federal sentencing system, which it
did in the Sentencing Reform Act of 1984 (the “Act”). 

, 

, 1987 (codified as amended
at 

 et seq. and 

). The
Act created the United States Sentencing Commission, 1 the
fundamental purpose of which is, as statutorily defined, to
“establish sentencing policies and practices for the Federal
criminal justice system[.]” 

(b)(1). Those
policies and practices are supposed to meet three goals: (1) be
in accordance with the purposes of sentencing, 2 (2) “provide
certainty and fairness,” by “avoiding unwarranted sentencing


       1
          The Commission is an independent agency in the
federal judicial branch consisting of seven voting members and
one nonvoting member. 

(a). The members are
nominated by the President and confirmed by the Senate. 

At least three of the members must be federal judges, and no
more than four of the members can be members of the same
political party. 

       2
         The purposes of sentencing are “(A) to reflect the
seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense; (B) to afford
adequate deterrence to criminal conduct; (C) to protect the
public from further crimes of the defendant; and (D) to provide
the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most
effective manner[.]” 

(a)(2).




                              5
disparities among defendants with similar records who have
been found guilty of similar criminal conduct while
maintaining sufficient flexibility to permit individualized
sentences when warranted[,]” and (3) “reflect, to the extent
practicable, advancement in knowledge of human behavior as
it relates to the criminal justice process[.]” 

       The Commission fulfills its purpose by promulgating
sentencing guidelines and policy statements. 

 § 994(a).
Guidelines are used by sentencing courts to calculate “the
sentence to be imposed in a criminal case[.]” Id. § 994(a)(1).
Policy statements, on the other hand, more broadly “regard[]
application of the guidelines or any other aspect of sentencing
or sentence implementation[,]” including “the sentence
modification provisions[.]” Id. § 994(a)(2). Guidelines and
policy statements are promulgated when there is an
“affirmative vote of at least four members” of the
Commission. 3 Id. § 994(a).

       3
         “To amend the [g]uidelines, the Commission first must
follow a notice-and-comment rulemaking process. Next, the
Commission must notify Congress of the proposed revisions to
the [g]uidelines. If, after 180 days, Congress does not
disapprove or modify the proposed amendments, they then take
effect.” United States v. Adair, 

, 356 (3d Cir.
2022) (citations omitted).
        While “[a]mendments to policy statements … may be
promulgated and put into effect at any time[,] … the
Commission … endeavor[s] to include amendments to policy
statements … in any submission of guideline amendments to
Congress and put them into effect on the same … date as any
guideline amendments issued in the same year.” U.S. Sent’g




                              6
              2.      Compassionate Release

        The Act “eliminated parole in the federal system[,]”
Peugh, 

, and emphasized that “‘[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[,]” Dillon v.
United States, 

 (2010) (second alteration in
original) (quoting 

(b)). One of those
circumstances is set forth in 

(c)(1)(A)(i),
which, with a related subsection, is commonly known as the
“compassionate release statute.” 4 That statute allows a
sentencing court to reduce the sentence of a prisoner if
“extraordinary and compelling reasons warrant such a

Comm’n, Rules of Practice & Procedure § 4.1 (2016),
www.ussc.gov/about/rules-practice-and-procedure
[https://perma.cc/BHV7-3BDS]. And, although it is not
required by statute, “the Commission will endeavor to provide,
to the extent practicable, … opportunities for public input on
proposed policy statements … considered in conjunction with
guideline amendments.” Id. § 4.3.
       4
          Section 3582(c)(1)(A)(ii) is another part of the
compassionate release statute and is applicable to defendants
serving a mandatory life sentence. It is not relevant to this case.
       The two other circumstances in which a district court
may modify a sentence are when another statute or Federal
Rule of Criminal Procedure 35 permits a sentence
modification, § 3582(c)(1)(B), or when a defendant has been
sentenced to a term of imprisonment based on a sentencing
range that was subsequently lowered by the Commission and
certain other requirements are met, § 3582(c)(2).




                                7
reduction” and the reduction is consistent with both the
Commission’s policy statements and the sentencing factors set
forth in 

(a). 5 A sentencing court must first
conclude, as a matter of law, that a prisoner is eligible for a
sentence reduction before it decides whether he qualifies for a
reduction. The two concepts – eligibility and qualification –
sound similar, but they are distinct. We have explained that
“whether any given prisoner has established an extraordinary
and compelling reason for release” is a “threshold question”
that determines a prisoner’s eligibility for compassionate
release. United States v. Stewart, 

, 535 (3d Cir.
2023) (internal quotation marks omitted). After a prisoner
“clears the threshold eligibility hurdle” of showing
“extraordinary and compelling reasons,” sentencing courts are
then permitted “to exercise broad discretion” to determine
whether and to what extent the prisoner warrants, or, in other
words, is qualified for, a sentence reduction. 

       5
           Those factors are:
       (1) the nature and circumstances of the offense
       and the history and characteristics of the
       defendant; (2) [the purposes of sentencing listed
       supra note 2]; (3) the kinds of sentences
       available; (4) the kinds of sentence and the
       sentencing range … ; (5) any pertinent policy
       statement … [;] (6) the need to avoid
       unwarranted sentence disparities among
       defendants with similar records who have been
       found guilty of similar conduct; and (7) the need
       to provide restitution to any victims of the
       offense.

(a).




                                8
        Congress did not define the phrase “extraordinary and
compelling reasons” in the compassionate release statute.
Instead, it instructed the Commission to define it. 

(t) (“The Commission, in promulgating general policy
statements regarding the sentencing modification provisions
… shall describe what should be considered extraordinary and
compelling reasons for sentence reduction, including the
criteria to be applied and a list of specific examples.”).
Congress placed only one limitation on the Commission’s
authority to define the phrase – namely, “[r]ehabilitation of the
defendant alone shall not be considered an extraordinary and
compelling reason.” 

       In 2007, the Commission tackled the definitional
challenge. It amended a policy statement, § 1B1.13 (the
“Policy Statement” or the “Statement’), to provide examples of
“extraordinary or compelling reasons” that would allow a
prisoner to be eligible for a sentence reduction. The examples
include certain medical conditions, severe physical or mental
decline, and the death or incapacitation of the primary
caregiver of a prisoner’s child. U.S.S.G. Supp. App. C, amend.
698 (2007). The Policy Statement also includes a catch-all
provision that allows for “an extraordinary and compelling
reason other than, or in combination with” the examples, “[a]s
determined” by the Bureau of Prisons (the “BOP”). Id. In
2016, the Commission added two more examples of
extraordinary and compelling reasons related to the age and
health of the prisoner. U.S.S.G. Supp. App. C, amend. 799
(2016).

     Traditionally, only the BOP was authorized to file a
compassionate release motion on behalf of a prisoner;




                               9
prisoners could not file such motions themselves. 6 That
changed in 2018 with passage of the First Step Act, which
reduced mandatory minimum sentences for certain drug crimes
and opened the door for prisoners to file compassionate-release
motions themselves, after they have exhausted administrative
remedies through the prison system. 

 401, 603(b), 

, 5220-21, 5239.

        Until the First Step Act was enacted, the Policy
Statement defining “extraordinary and compelling reasons”
was widely understood to apply only to motions filed by the
BOP. U.S.S.G. Supp. App. C, amend. 799 (2016). That was
the view of nearly every U.S. Court of Appeals that considered
the issue. See Andrews, 12 F.4th at 259 (holding that the Policy
Statement at the time of the First Step Act’s enactment was
“not applicable” to prisoner-initiated motions, collecting cases
from the Second, Fourth, Fifth, Sixth, Seventh, Ninth, Tenth,
and D.C. Circuits holding the same, and citing to a contrary
Eleventh Circuit decision). From 2019 to 2022, due to a lack
of a quorum, the Commission did not update the Policy
Statement to specify the circumstances that could support a
prisoner’s compassionate release motion. 

,
28,256 (May 3, 2023). The timing of the Commission’s
incapacity was particularly unfortunate because it coincided
with the COVID-19 pandemic. That left courts to determine
what circumstances qualified as extraordinary and compelling



       6
        The BOP “used this power sparingly, to say the least.”
United States v. Brooker, 

, 231 (2d Cir. 2020)
(summarizing a report finding that, “on average, only 24
incarcerated people per year were released on BOP motion”).




                              10
reasons for prisoner-initiated compassionate-release motions,
and there was not uniform agreement.

       Relevant here, the courts of appeals are split over
whether the First Step Act’s nonretroactive changes to certain
mandatory minimums could be considered an extraordinary
and compelling reason to grant a sentence reduction. The First,
Fourth, Ninth, and Tenth Circuits said such changes could be
considered, while the Sixth, Seventh, Eighth, and D.C. Circuits
said they could not. 7 We considered the issue in United States



       7
         Compare United States v. Ruvalcaba, 

, 24
(1st Cir. 2022) (holding nonretroactive law changes to be an
extraordinary and compelling reason), United States v. McCoy,

, 287-88 (4th Cir. 2020) (same), United States v.
Chen, 

, 1094-95 (9th Cir. 2022) (same), and
United States v. McGee, 

, 1047 (10th Cir. 2021)
(same), with United States v. McCall, 

, 1055 (6th
Cir. 2022) (en banc) (declining to consider them extraordinary
and compelling), United States v. Thacker, 

, 573-
74 (7th Cir. 2021) (same), United States v. Crandall, 

, 585 (8th Cir. 2022) (same), and United States v. Jenkins,

, 1198-99 (D.C. Cir. 2022).
       The Fifth Circuit issued a precedential opinion saying it
could not consider the changes, United States v. McMaryion,

, 259 (5th Cir. 2023), but it later withdrew that
opinion and issued a not precedential one holding the same.
United States v. McMaryion, 

, at *1-2 (5th
Cir. June 22, 2023). Ultimately, in United States v. Jean, that
court decided that it could indeed consider the changes. 

, 281 (5th Cir. 2024).




                              11
v. Andrews, 

 (3d Cir. 2021), the details of which
are described herein (see infra Section II.A.).

             3.     The 2023 Amendment to the Policy
                    Statement

       In April 2023, the Sentencing Commission, by then re-
constituted with a quorum, amended the Policy Statement to
define “extraordinary and compelling reasons” for prisoner-
filed motions for compassionate release. 

.
It issued the amendment in “respon[se] to [the] circuit split
concerning when, if ever, non-retroactive changes in law may
be considered as extraordinary and compelling reasons within
the meaning of section 3582(c)(1)(A).” 8 

.

       The amended Policy Statement provides that, as a
general matter, a law change cannot be considered an
extraordinary and compelling reason to grant compassionate
release: “[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.” U.S.S.G. § 1B1.13(c). But the Statement provides
an exception to that rule. Through the following new


      8
          The amendment also included updates to the
traditional extraordinary and compelling reasons provisions –
those for medical circumstances, the age of the prisoner, and
family circumstances – and added a new basis for relief for
prisoners who were victims of abuse while in prison. 88 Fed.
Reg. at 28,257-58. Those updates are not at issue in this
appeal.




                             12
provision, § 1B1.13(b)(6) (hereinafter “(b)(6)”), the
Commission explained that nonretroactive changes in law can
be considered if certain conditions are met:

       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.

U.S.S.G. § 1B1.13(b)(6).

       In promulgating subsection (b)(6), the Commission
agreed with the “circuits that authorize a district court to
consider non-retroactive changes in the law as extraordinary
and compelling circumstances[,] … [but] only in narrowly
circumscribed circumstances.” 88 Fed. Reg. at 28,258.
Breaking it down, the newly revised Policy Statement provides
that a nonretroactive change in law “may be considered in
determining whether the defendant presents an extraordinary
and compelling reason” when (1) “a defendant received an
unusually long sentence[,]” (2) the defendant “has served at
least 10 years of the term of imprisonment,” (3) an intervening
law change has produced a “gross disparity between the
sentence being served and the sentence likely to be imposed at




                              13
the time the motion is filed,” and (4) after the court gives “full
consideration     of      the    defendant’s       individualized
circumstances.” U.S.S.G. § 1B1.13(b)(6).

       Notably, because (b)(6) states that changes in law may
(not must) be considered, judges are not required to consider a
change in law when determining a prisoner’s eligibility for
compassionate release.       Thus, (b)(6) gives judges the
opportunity, but not a mandate, to consider changes in the law
under the defined circumstances. Judges therefore have two
levels of discretion under (b)(6): first, whether to consider a
change in law when determining a prisoner’s eligibility for
compassionate release, and second, the usual discretion when
deciding if an eligible prisoner should receive a sentence
reduction after considering the § 3553(a) factors. 9

        The amended Policy Statement went into effect on
November 1, 2023, 88 Fed. Reg. at 28,254, but not without
controversy. The Commission adopted the amendment by a 4-
3 vote. See April 5, 2023 United States Sentencing
Commission Public Meeting Transcript at 82, available at
https://www.ussc.gov/sites/default/files/pdf/amendment-

       9
         Since one of the § 3553(a) factors that a court must
consider when deciding whether to grant a sentence reduction
is “the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct[,]” 

(a)(6), the amended
Policy Statement allows sentencing courts to consider sentence
disparities both in making the threshold eligibility
determination and in deciding whether to grant compassionate
release.




                               14
process/public-hearings-and-
meetings/20230405/20230405_transcript.pdf
[https://perma.cc/E9W7-KB6N].          The three dissenting
members delivered a joint statement opposing the amendment
because, in their view, the Policy Statement “goes further than
the Commission’s legal authority extends[,]” “make[s] a
seismic structural change to our criminal justice system
without congressional authorization or directive[,]” and causes
“separation of powers problem[s.]” 

. They said,

       Today’s amendment allows compassionate
       release to be the vehicle for retroactively
       applying the very reductions that Congress has
       said by statute should not apply retroactively. To
       be sure, it doesn’t do so automatically, but it
       makes any nonretroactive change in law
       potential grounds for re-sentencing once the
       defendant has served ten years. In practical
       effect, it provides a second look to revisit duly
       imposed criminal sentences at the ten-year mark
       based on intervening legal developments that
       Congress did not wish to make retroactive.

        The Department of Justice also opposed the change,
saying, “[T]he Department has taken the position … that
Section 3582(c)(1)(A)(i) does not authorize sentence
reductions based on nonretroactive changes in sentencing law.
In particular, the Department has repeatedly argued in
litigation that the fact that a change in sentencing law is not
retroactive is not ‘extraordinary’ within the meaning of the
statute. … The Commission’s proposal thus conflicts with the




                              15
Department’s interpretation [of] Section 3582(c)(2).”
Department of Justice Comment Letter, available at
https://www.ussc.gov/sites/default/files/pdf/amendment-
process/public-hearings-and-meetings/20230223-
24/DOJ1.pdf [https://perma.cc/P8A8-5ZYX].

       B.     Factual Background and Procedural History

       In 2003, 22-year-old Daniel Rutherford committed two
armed robberies at a chiropractic office in a five-day period.
During the first robbery, he pulled a gun on the chiropractor
and stole $390 and a watch. Four days later, he returned to the
same office with an accomplice and again brandished a gun
and stole $900 in cash and jewelry.

       Rutherford was arrested, tried, and convicted of one
count of conspiracy to commit Hobbs Act robbery, in violation
of 

(a), two counts of Hobbs Act robbery, in
violation of 

(a), and two counts of using a
firearm during a crime of violence, in violation of 

(c)(1). At sentencing, Rutherford faced a 100- to 125-
month sentence, plus mandatory minimum consecutive terms
of 7 years for the first § 924(c) offense, and 25 years for the
second. The District Court sentenced Rutherford to a top-of-
the-guidelines term of imprisonment of 125 months in addition
to the 32-year mandatory sentence, for a total sentence of
nearly 42 and a half years. On appeal, we affirmed
Rutherford’s conviction. United States v. Rutherford, 

 (3d Cir. 2007). He did not appeal his sentence.

. Because of the First Step Act’s amendment to
§ 924(c), if Rutherford were sentenced today, he would be
subject to a 14-year mandatory minimum sentence for his two




                              16
§ 924(c) convictions (7 years for each), 18 years less than 32-
year mandatory minimum he received. 10

       Acting pro se, Rutherford has attempted to seek
compassionate relief before. He says that he sent a motion for
compassionate release to the federal public defender’s office in
2020, apparently believing the motion would be filed for him.
He later asked the District Court if it had received the motion,
and he claims the Court did not respond. In February 2021, he
filed with the District Court another handwritten motion for
compassionate release. According to Rutherford, the District
Court never addressed that motion either.




       10
          Originally, 

(c) had required a
defendant to be sentenced to a 25-year minimum sentence for
each § 924(c) violation after the first, even if the defendant was
convicted for both at the same time. The requirement that a
defendant receive the 25-year enhanced minimum sentence for
each subsequent § 924(c) violation at the same time he was
sentenced for the first such offense is often called the
“stacking” requirement of § 924(c). United States v. Hodge,

, 161 n.2 (3d Cir. 2020). The First Step Act
eliminated the stacking requirement by amending § 924(c) to
require the 25-year sentence for defendants who have a
previous § 924(c) conviction only at the time they are
sentenced for committing a subsequent § 924(c) offense.
Rutherford’s two § 924(c)(1) convictions were for brandishing
a firearm and were rendered at the same time, so they each
triggered a seven-year mandatory minimum, 

(c)(1)(A)(ii), and the penalties for both counts run
consecutively, 

 § 924(c)(1)(D)(ii).




                               17
        His third pro se motion for compassionate release came
in April 2021. That is the motion at issue here. In it,
Rutherford argued to the District Court that the First Step Act’s
enactment presents an “extraordinary and compelling” reason
to grant him compassionate release. He further contended that
the § 3553(a) factors support a sentence reduction because,
among other things, he had completed over 50 educational
courses in prison, he had secured employment upon release,
and in the last decade he had committed only two minor
infractions in prison. He also said that he has medical
conditions – obesity and hypertension – that could “increase[]
severity of illness and likelihood of lethality from COVID-19.”
(J.A. at 83.)

       Before the District Court ruled on Rutherford’s latest
compassionate release motion, we decided Andrews, in which,
as we shall discuss, we held that the First Step Act’s
amendment to § 924(c) does not constitute an extraordinary
and compelling reason to be eligible for compassionate release.
In April 2023, the District Court denied Rutherford’s motion,
holding that Andrews foreclosed his argument that the First
Step Act could constitute an extraordinary and compelling
reason to justify eligibility for compassionate release. 11


       11
          In his motion for compassionate release, Rutherford
mentioned his asserted health problems as something the
District Court should consider under the 

(a)
sentencing factors, rather than as a separate basis for
compassionate release. Nevertheless, “to the extent that
[Rutherford]’s request could [have] be[en] construed to seek
health related compassionate release, the Court [also found] no




                               18
       Rutherford timely appealed. 12 We instructed the parties
to discuss in their briefing

       (1) whether this Court should consider the
       impact of amendments to the Sentencing
       Guidelines on an 

(c) motion in
       the first instance on appeal; and, assuming so, (2)
       to what extent, if any, the 2023 amendment to
       § 1B1.13(b) of the Sentencing Guidelines


compelling or extraordinary health related circumstances
presented in his various Motions.” (J.A. at 7-8.)
       12
          The government responded to Rutherford’s appeal
with a motion for summary affirmance. Finally with counsel,
Rutherford opposed the government’s motion and requested
that we stay the matter pending an anticipated amendment to
the Policy Statement. The amended Policy Statement went
into effect on November 1, 2023, before we ruled on the
parties’ motions. The government then filed a response in
opposition to Rutherford’s motion to stay the appeal and,
because of the amended Policy Statement, we denied the
motion             to          stay          as           moot.
       On appeal, Senators Dick Durbin and Cory Booker,
members of the Senate Judiciary Committee, filed an amicus
brief in favor of Rutherford, as did, jointly, the National
Association of Criminal Defense Lawyers, FAMM (formerly
known as Families Against Mandatory Minimums), and the
Federal Public Defenders and Community Defenders for the
Judicial Districts of the Third Circuit. We are grateful for the
additional insights provided.




                               19
       Manual abrogates this Court’s decision in United
       States v. Andrews, 

, 261 (3d Cir.
       2021).

(3d Cir. D.I. 16.)

II.    DISCUSSION 13

       On appeal, Rutherford argues that, even though the
District Court did not have an opportunity to consider it, we
should address the effect of the new (b)(6) provision of the
Policy Statement on his compassionate release motion,
including whether it abrogates our holding in United States v.
Andrews. He asserts that Andrews is not in conflict with the
amended Policy Statement and that, ultimately, we should
remand the case so he has “an opportunity to show the
[D]istrict [C]ourt that he qualifies for compassionate release
under the new [P]olicy [S]tatement.” (Opening Br. at 50.) The
government, on the other hand, argues that we should not
consider the amended Policy Statement for the first time on
appeal and that the (b)(6) provision is invalid, both as applied
to the First Step Act and on its face, because the “provision
exceeds the Commission’s statutory authority to define the
bases of compassionate release[.]” (Answering Br. at 11.)

       13
          The District Court had jurisdiction under 

. We have jurisdiction pursuant to 

.
We review a district court’s determination denying
compassionate release for abuse of discretion. United States v.
Pawlowski, 

, 330 (3d Cir. 2020). Issues of
statutory construction are reviewed de novo. 

                              20
       A.     Andrews

        We begin with a review of our Andrews decision. Eric
Andrews was sentenced in 2006 and was serving a 312-year
sentence for a series of armed robberies. Andrews, 12 F.4th at
257. He filed a compassionate release motion, arguing that his
case presented “extraordinary and compelling reasons”
warranting a reduced sentence under 

(c)(1)(A)(i). 

 The gist of his motion was that he
would have received a 91-year sentence had he been sentenced
after the First Step Act’s passage. 

        Before we addressed the specific reasons Andrews
advanced for his assertion that he was entitled to
compassionate release, we first concluded that the Policy
Statement, in its then-existing form, 14 was “not applicable –
and not binding – for courts considering prisoner-initiated
motions” because “the text of the [P]olicy [S]tatement
explicitly limit[ed] its application to Bureau-initiated
motions.” 

. We then said it was not error for the
district court to “consult[] the text, dictionary definitions, and
the [P]olicy [S]tatement to form a working definition of
‘extraordinary and compelling reasons[,]’” in part, because the
Policy Statement, even if not binding, “still sheds light” on the
meaning of that phrase. 

. Furthermore, “[b]ecause
Congress reenacted the compassionate-release statute without
any alterations to the phrase ‘extraordinary and compelling
reasons,’” we believed “it was reasonable … to conclude that
the phrase largely retained the meaning it had under the


        Andrews was decided in 2021; the Policy Statement
       14

was amended in 2023.




                               21
previous version of the statute[,]” which did not mention
nonretroactive changes in the law. 

        After resolving those preliminary questions, we turned
to the specific arguments Andrews advanced for why he was
entitled to compassionate release. He claimed his case
presented six reasons that, in combination, “were extraordinary
and compelling under the compassionate-release statute”: (1)
“the duration of his sentence,” (2) the First Step Act’s changes
to the mandatory minimums in his case, (3) “his rehabilitation
in prison,” (4) “his relatively young age at the time of his
offense,” (5) the abusive prosecutorial “decision to charge him
with thirteen § 924(c) counts,” and (6) “his alleged
susceptibility to COVID-19.” Id. at 258 (cleaned up).

        Taking up those contentions, we first considered
whether the duration of Andrews’s sentence could constitute
an extraordinary and compelling reason and so allow a
sentence reduction. Id. We held that “[t]he duration of a
lawfully imposed sentence does not create an extraordinary or
compelling circumstance[,]” id. at 260-61, because ‘“there is
nothing extraordinary about leaving untouched the exact
penalties that Congress prescribed and that a district court
imposed for particular violations of a statute[,]’” id. at 261
(quoting United States v. Thacker, 

, 574 (7th Cir.
2021) (internal quotation marks omitted)). “Moreover,” we
said, “considering the length of a statutorily mandated sentence
as a reason for modifying a sentence would infringe on
Congress’s authority to set penalties.” 

.

      Next, we concluded that the second reason Andrews
advanced – namely, the First Step Act’s nonretroactive
changes to the § 924(c) mandatory minimums – “also cannot




                              22
be a basis for compassionate release.” Id. at 261. We
explained that, “[i]n passing the First Step Act, Congress
specifically decided that the changes to the § 924(c) mandatory
minimums would not apply to people who had already been
sentenced.” Id. at 261. And nonretroactive sentencing changes
are “conventional[,]” because, as the Supreme Court has
observed, “in federal sentencing the ordinary practice is to
apply new penalties to defendants not yet sentenced, while
withholding that change from defendants already sentenced.”
Id. (quoting Dorsey v. United States, 

(2012)). So, “‘[w]hat the Supreme Court views as the ordinary
practice cannot also be an extraordinary and compelling reason
to deviate from that practice.’” 

 (quoting United States v.
Wills, 

, 688 (6th Cir. 2021) (internal quotation
marks omitted)).

       We went on to say that, “when interpreting statutes, we
work to ‘fit, if possible, all parts’ into a ‘harmonious whole.’”

 (quoting FDA v. Brown & Williamson Tobacco Corp., 

 (2000)). Thus, we would “not construe
Congress’s nonretroactivity directive [in the First Step Act] as
simultaneously creating an extraordinary and compelling
reason for early release” because “[s]uch an interpretation
would sow conflict within the [First Step Act].” 

 (citing
United States v. Jarvis, 

, 444 (6th Cir. 2021)
(“Why would the same Congress that specifically decided to
make these sentencing reductions non-retroactive in 2018
somehow mean to use a general sentencing statute from 1984
to unscramble that approach?”)). We added this caveat:
nonretroactive sentencing reductions may be relevant to a
prisoner’s compassionate release motion, but only if and after
“a prisoner successfully shows extraordinary and compelling
circumstances,” because “the current sentencing landscape




                               23
may be a legitimate consideration for courts … when they
weigh the § 3553(a) factors.” Id. at 262.

       Finally, we held that the district court did not abuse its
discretion in determining “that Andrews’s four remaining
reasons collectively fell short of being extraordinary and
compelling under the statute.” Id. at 259. Therefore, we
affirmed the denial of his compassionate-release motion. Id. at
262.

       B.     We Can Properly Consider the Amended
              Policy Statement in the First Instance.

       The government asserts that we are forbidden from
resolving in the first instance the effect of (b)(6) on Andrews
because the amended Policy Statement “is a substantive
amendment that does not apply on appeal.” (Answering Br. at
11.)     According to the government, only clarifying
amendments, as opposed to substantive ones, are applicable on
appeal when the amendment in question arose after sentencing.
And, says the government, “[t]here is no question that the
revision of [the Policy Statement] is substantive; it addressed
for the first time inmates’ new capacity to file compassionate
release motions, and significantly revised, altered, and added
to the permissible bases for compassionate release.”
(Answering Br. at 13.)         Rutherford responds that the
substantive-versus-clarifying test applies only to changes
affecting an initial sentence.

       As to initial sentencing, “[t]he general rule is that a
defendant should be sentenced under the guideline in effect at
the time of sentencing.” United States v. Diaz, 

 (3d Cir. 2001). “A post-sentencing amendment to a




                               24
guideline, or to its comments, should be given retroactive
effect only if the amendment ‘clarifies’ the guideline or
comment in place at the time of sentencing; the amendment
may not be given retroactive effect if it effects a substantive
change in the law.” 

. “Generally, if the amended
guideline and commentary overrules a prior judicial
construction of the guidelines, it is substantive; if it confirms
our prior reading of the guidelines and does not disturb prior
precedent, it is clarifying.” 

        While the substantive-versus-clarifying test clearly
applies in the initial sentencing context, we agree with
Rutherford that the test does not apply to a sentence
modification. 15 The government does not cite any within-
Circuit precedent suggesting otherwise, and we have found
none. Perhaps that is because the test rests primarily on
§ 1B1.11 of the guidelines, a provision that applies to initial
sentencing proceedings, rather than sentence reduction
proceedings like compassionate release. Section 1B1.11 says
that, “if a court applies an earlier edition of the Guidelines
Manual” to avoid ex post facto concerns, “the court shall

       15
          We part ways here with the Eleventh Circuit. United
States v. Handlon, 

, 833 (11th Cir. 2024) (holding
that the amended Policy Statement is a substantive amendment
that cannot be given retroactive effect). We also note that the
Fifth Circuit did not apply the amended Policy Statement to a
motion filed before the Policy Statement was amended, saying
summarily that the amendment was “not in effect at the time
the district court granted [the] motion, and thus [] not [part] of
the [g]uidelines that we consider on appeal in terms of binding
application.” Jean, 108 F.4th at 288.




                               25
consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes.” 16


      16
           Section 1B1.11 provides:

      (a) The court shall use the Guidelines Manual in
      effect on the date that the defendant is sentenced.

      (b)(1) If the court determines that use of the
      Guidelines Manual in effect on the date that the
      defendant is sentenced would violate the ex post
      facto clause of the United States Constitution,
      the court shall use the Guidelines Manual in
      effect on the date that the offense of conviction
      was committed.

      (2) The Guidelines Manual in effect on a
      particular date shall be applied in its entirety.
      The court shall not apply, for example, one
      guideline section from one edition of the
      Guidelines Manual and another guideline section
      from a different edition of the Guidelines
      Manual. However, if a court applies an earlier
      edition of the Guidelines Manual, the court shall
      consider subsequent amendments, to the extent
      that such amendments are clarifying rather than
      substantive changes.

      (3) If the defendant is convicted of two offenses,
      the first committed before, and the second after,
      a revised edition of the Guidelines Manual
      became effective, the revised edition of the




                              26
Since ex post facto concerns do not arise when a sentence is
being reduced, the modification proceedings do not implicate
the concerns underlying the substantive-versus-clarifying test.

       Rutherford also points out the absurd outcomes that
could result were we to conclude that (b)(6) is a substantive
amendment. He explains that “inmates sentenced before
November 1, 2023[, i.e., the date the amended Policy
Statement became effective,] would forever be barred from
using the new policy statement.” (Reply Br. at 4 n.1.) “It
would also mean (b)(6) – which requires inmates to have
served ten years in prison – would not apply to any prisoner’s
motion until November 1, 2033.” (Reply Br. at 4 n.1.) We
highly doubt those results were what Congress intended when
passing the First Step Act, so we will not apply the substantive-
versus-clarifying test to the Policy Statement at issue here.

       Moreover, the government concedes that Rutherford
could file a new compassionate release motion if we were to
deny application of (b)(6) in this case. The implication is that
(b)(6) would then be applicable to the new motion. As we have


       Guidelines Manual is to be applied to both
       offenses.

U.S.S.G. § 1B1.11. See United States v. Flemming, 

 (3d Cir. 2010) (explaining the
substantive-versus-clarifying test and citing to
§ 1B1.11(b)(2)); United States v. Spinello, 

 (3d Cir. 2001) (same); United States v.
Marmolejos, 

 (3d Cir. 1998)
(same).




                               27
said in a similar sentencing reduction context, “we see no need
to force [the appellant] to take this additional step.” United
States v. Marcello, 

, 756 n.3 (3d Cir. 1994); see
also United States v. Jones, 

 (D.C. Cir. 2009)
(“Nearly all courts of appeals that have considered the issue
have decided … to save the defendant the ‘additional step’ of
petitioning the district court for a sentencing modification.”).

       In United States v. Stewart, we recognized that
amendments to the Commission’s policy statements could
potentially impact our holding in Andrews. 86 F.4th at 535
(“Absent changes in the applicable policy statements, our
holding in Andrews remains undisturbed – and with it the limits
imposed on courts’ discretion when determining whether
extraordinary and compelling reasons warrant relief.”
(emphasis added)). We acknowledged the amended Policy
Statement, which had become effective two weeks prior to
Stewart’s filing, but we did not consider it in that case, saying,
instead, that “[w]e may consider [its] effect on the validity of
Andrews in an appropriate case.” Id. at 535 n.2.

        Rutherford argues that this is the case to decide the
issue. He contends that the question involves a “novel,
important, and recurring” “uncertainty in the law,” and that the
government has briefed the issue in over twelve cases in the
Eastern District of Pennsylvania alone. (Opening Br. at 22
(quoting Barna v. Bd. of Sch. Directors of Panther Valley Sch.
Dist., 

 (3d Cir. 2017)).) He says that “[i]t
hinders judicial efficiency to send an issue … to the district
court that the district court will simply send back” on appeal
again. (Opening Br. at 22.) We agree.




                               28
        While it is true that “[w]e generally decline to resolve
issues not decided by a district court, choosing instead to allow
it to decide in the first instance[,]” Popa v. Harriet Carter Gifts,
Inc., 

, 132 (3d Cir. 2022), “[w]hen a district court
has failed to reach a question … that becomes critical when
reviewed on appeal, an appellate court may sometimes resolve
the issue on appeal rather than remand to the district court[,]”
Hudson United Bank v. LiTenda Mortg. Corp., 

 (3d Cir. 1998). “[That] procedure is generally appropriate
when the factual record is developed and the issues provide
purely legal questions, upon which an appellate court exercises
plenary review.” 

 Deciding a legal question in the first
instance on appeal is especially proper if “our resolution …
will best serve the interests of judicial efficiency on remand,”
Kedra v. Schroeter, 

, 436 n.5 (3d Cir. 2017), or
when “the issue’s resolution is of public importance[,]”
Loretangeli v. Critelli, 

, 189 n.5 (3d Cir. 1988).

       Those considerations are operative here. The question
of what, if any, effect (b)(6) has on our precedent is purely a
legal one, and it is indeed a question of public importance –
there are many people in prison whose sentences will be
affected by our decision. 17 And resolving the question will

       17
          Referencing a BOP publication, Rutherford says that
“2,412 people – 1.5% of the total inmate population – are
serving stacked § 924(c) sentences[,]” who must, according to
their individual circumstances, show that they are eligible.
(Opening Br. at 35 (citing U.S. Sent’g Comm’n., Estimate of
the Impact of Selected Sections of S. 1014, The First Step Act
Implementation Act of 2021, at 1 (Oct. 2021)
[https://perma.cc/8VC8-25A7]).




                                29
serve the interests of judicial efficiency. If we refrain from
deciding it, the various district courts that are, at present,
grappling with the question may reach divergent conclusions. 18

       18
           We do have the benefit of a well-reasoned district
court decision now, United States v. Carter, 

(E.D. Pa. 2024). Johnnie Carter was serving a 70-year sentence
for a string of armed robberies, a sentence much longer than
the one he would have received today because of the First Step
Act’s modification of § 924(c). Id. at 430. The district court
noted that “it is undisputed Carter’s motion for a new sentence
identifies an ‘extraordinary and compelling reason,’ as defined
by the … Commission[.]” Id. at 435. Yet, the court explained
that “Andrews remains binding law in this circuit, and it
forecloses Carter’s argument that he is eligible for
compassionate release[.]” Id. at 436. That is because, the court
said, the policy statement “is incompatible with Andrews’s
interpretation of the compassionate release statute, 

(c)(1)(A)(i), and its holding that ‘the duration of [a
defendant’s] sentence and the nonretroactive changes to
mandatory minimums’ is not one of the ‘extraordinary and
compelling reasons’ described by the statute.” 

 (quoting
Andrews, 12 F.4th at 260 (alterations in original)). Carter
argued that the amended Policy Statement abrogated Andrews,
but the court in Carter said that his argument “ha[d] it exactly
backwards”:

       In the absence of an applicable policy statement
       from the Sentencing Commission, Andrews can
       only be understood as a decision interpreting the
       text of the compassionate-release statute itself.
       And after considering that statutory language,




                              30
The parties have briefed the issue, and it is ripe for our
consideration. Accordingly, we will resolve the (b)(6)
question as it relates to First Step Act’s change to § 924(c).




       the Third Circuit concluded that a defendant’s
       unusually and disproportionately long sentence
       is not an “extraordinary and compelling reason[]
       warrant[ing] [] a reduction.”        

(c)(1)(A)(i). That holding may not now
       be overridden by the Sentencing Commission,
       which “does not have the authority to amend the
       statute [the court] construed” in a prior case.
       Neal v. United States, 

 (1996).
Id. at 436-37 (first alteration not in original). The court
acknowledged “that Andrews was decided without the benefit
of input from” the Commission and that, “[i]f given the
opportunity to do so, the Third Circuit might well elect to
reconsider its prior holding to give the Sentencing
Commission’s expertise its fair due.” Id. at 437. “But, as
things currently stand,” the court went on, “binding precedent
instructs that a defendant’s unusually long sentence is not an
adequate basis for compassionate release. Unless and until any
reconsideration of Andrews takes place or it is abrogated by a
Supreme Court decision, that holding remains binding on
district courts in this circuit.” Id. at 437-38. Carter appealed,
and we stayed his appeal pending resolution of this case.




                               31
       C.     The Amended Policy Statement Does Not
              Abrogate Andrews. 19

              1.     Subsection (b)(6) of the Amended Policy
                     Statement Is Inconsistent with the First
                     Step Act.

        The government does not dispute that the Commission
possesses the authority to promulgate policy statements for
prisoner-initiated compassionate-release motions, at least not
to the extent such statements relate to the traditional bases for
compassionate release. (Answering Br. 25 n.5 (“As a general
rule, … the Commission’s new policy statement, that clarifies
eligibility based on medical, family, and other traditional bases
for compassionate release, is binding.”).) The government
“objects only to the new ‘change in law’ provision [i.e., (b)(6)]
as exceeding statutory authority.” (Answering Br. at 25-26
n.5.) Thus, we consider only whether (b)(6) is binding on a
court’s compassionate release eligibility determinations when
deciding a motion based in whole or in part on the First Step
Act’s change to § 924(c).

       As explained previously (see supra Section I.A.2.), a
sentencing court may grant a compassionate release motion if,

       19
          As noted (see supra Section I.A.2.), prior to the
Commission promulgating the amended Policy Statement,
several courts of appeals held that the First Step Act’s
nonretroactive changes to certain mandatory minimums could
not be considered an extraordinary and compelling reason to
grant a sentence reduction. We are aware of no case in which
any of those courts of appeals has addressed the impact on the
amended Policy Statement on its precedent.




                               32
“after considering the factors set forth in section 3553(a) to the
extent that they are applicable, 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.”                 

(c)(1)(A). Congress instructed “[t]he Commission, in
promulgating general policy statements regarding the
sentencing modification provisions … [to] describe what
should be considered extraordinary and compelling reasons for
sentence reduction, including the criteria to be applied and a
list of specific examples.” 20 

(t).

        When Congress expressly delegates the power to an
agency to “prescribe standards for determining” the meaning
of a particular term or phrase, as it did here for the phrase
“extraordinary and compelling,” “Congress entrusts to the
[agency], rather than to the courts, the primary responsibility
for interpreting the statutory term.” Batterton v. Francis, 432

       20
          The government does not dispute the constitutionality
of Congress’s delegation to the Commission of the
responsibility to describe what should be considered
“extraordinary and compelling.” Nor is it likely it could
successfully do so. It is true that “Congress generally cannot
delegate its legislative power to another Branch” and that the
“nondelegation doctrine is rooted in the principle of separation
of powers that underlies our tripartite system of Government.”
Mistretta v. United States, 

 (1989). But
the Supreme Court has said that it “harbor[s] no doubt that
Congress’[s] delegation of authority to the Sentencing
Commission is sufficiently specific and detailed to meet
constitutional requirements.” 

.




                               

 (1977). Consistent with that principle, the
Supreme Court said in Concepcion v. United States that, in
sentence reduction proceedings like those involving
compassionate release, Congress has “cabined district courts’
discretion by requiring courts to abide by the Sentencing
Commission’s policy statements.” 

, 495 (2022).
We thus do not gainsay that the Commission’s policy
statements are generally binding on us. United States v.
Berberena, 

 (3d Cir. 2012) (“Congress
contemplated that the Commission would have the power to
impose limits on … sentence reductions, by making the
Commission’s policy statements binding.”).

        That said, the Commission’s authority to issue binding
policy statements is not unlimited. The Supreme Court has
also explained that, although “Congress has delegated to the
Commission significant discretion[,]” “it must bow to the
specific directives of Congress” and accurately reflect
Congressional intent when it fulfills its responsibilities. United
States v. LaBonte, 

 (1997) (internal quotation
marks omitted). Indeed, Congress has granted the Commission
power to promulgate only those policy statements that are
“consistent with all pertinent provisions of any Federal
statute.” 

(a). It is the job of the courts to ensure
that the Commission’s amendments to its policy statements do
not go beyond what Congress intended. United States v. Adair,

, 359 (3d Cir. 2022) (concluding that a particular
amendment set forth by the Commission “ha[d] no force of
law” because it “exceed[ed] the Commission’s delegated
powers); cf. Loper Bright Enterprises v. Raimondo, 

, 2263 (2024) (explaining that “the role of the reviewing
court under the [Administrative Procedures Act] is … to
independently interpret the statute and effectuate the will of




                                34
Congress subject to constitutional limits” and that “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.” (cleaned up)).

       We agree with the government that subsection (b)(6) in
the amended Policy Statement, as applied to the First Step
Act’s modification of § 924(c), conflicts with the will of
Congress and thus cannot be considered in determining a
prisoner’s eligibility for compassionate release. Congress
explicitly made the First Step Act’s change to § 924(c)
nonretroactive. 

(b), 

,
5222. And, in Andrews, we held that it would be inconsistent
“with [the] pertinent provisions of [the First Step Act],” 

(a), to allow the amended version of § 924(c) to
be considered in the compassionate release context because
“Congress specifically decided that the changes to the § 924(c)
mandatory minimums would not apply to people who had
already been sentenced.” Andrews, 12 F.4th at 261.

       Just as we said in Andrews, we will “not construe
Congress’s nonretroactivity directive as simultaneously
creating an extraordinary and compelling reason for early
release[,]” because “[s]uch an interpretation would sow
conflict within the statute.” 21 Id. Simply put, allowing the

       21
         As stated previously (see supra Section I.A.4.),
Congress did not act to modify or disapprove of the amended
Policy Statement. But, as the government notes, and as
Rutherford does not dispute, “Congress’[s] failure to reject”
the amended Policy Statement does not “mean[] that it has




                              35
change to § 924(c) to be considered when determining
compassionate release eligibility does not align with “the
specific directives [that] Congress” set forth in the First Step
Act. 22 LaBonte, 

.




effectively adopted that interpretation with respect to the
statute.” DePierre v. United States, 

, 87 n.13
(2011); Kimbrough v. United States, 

 (2007)
(“Ordinarily, we resist reading congressional intent into
congressional inaction.”).
       22
            The preceding discussion also explains why
Rutherford’s “statutory context” argument fails. (Opening Br.
at 39.) In his view, in § 994(t), “Congress placed only one limit
on the Commission’s authority to describe ‘extraordinary and
compelling reasons’ for relief”: “[r]ehabilitation of the
defendant alone shall not be considered an extraordinary and
compelling reason.” (Opening Br. at 39 (quoting 

(t)).) He says that “Section 994(t) shows that Congress
knew how to speak clearly when it wanted to exclude topics
from consideration.” (Opening Br. at 39.) Rutherford’s
argument would have more persuasive effect if the
compassionate release statute were viewed in isolation, but we
can undertake no such approach. Because the Commission
may only promulgate policy statements that are consistent with
all “pertinent provisions of any Federal statute[,]” 

(a), the Commission is inherently limited from creating
policy statements that negate other relevant federal statutes,
like the First Step Act’s nonretroactivity directive.




                               36
              2.     Andrews and the Amended               Policy
                     Statement are in Conflict.

       Rutherford argues, however, that, in reality, “there is no
conflict” between the amended Policy Statement and Andrews
because our holding there was relatively narrow. (Opening Br.
at 28.) He asserts that “[t]he argument Andrews rejected was
that a nonretroactive change, by itself,” could create an
extraordinary and compelling reason. (Opening Br. at 28
(emphasis added).) The government retorts that Andrews
“determined that a change in the law, whether considered alone
or in combination with other factors,” cannot be considered
when      making      a    compassionate-release       eligibility
determination. (Answering Br. at 23.) We do not have to rule
as broadly as the government might like; it is enough to say
that the government is right in this instance. The question we
are addressing calls for an examination of § 924(c), not a far-
ranging examination of all changes in laws affecting criminal
sentences. And we have already thoroughly examined the
§ 924(c) change in Andrews. 23

       23
           We are not suggesting that a change in law could
never be considered in the compassionate release eligibility
context. Our holding is solely that the First Step Act’s change
to § 924(c) cannot be considered in that context, on its own or
with other factors, because of Congress’s explicit instruction
in that statute that the change be nonretroactive.
        We also acknowledge that in Stewart, we used language
to summarize our holding in Andrews that may have suggested
our conclusion in Andrews was broader than it was. United
States v. Stewart, 

, 533 (3d Cir. 2023) (“[I]n
Andrews we held that neither the length of a lawfully imposed




                               37
        As a reminder, the defendant in Andrews advanced six
reasons that he claimed, “together, … were extraordinary and
compelling under the compassionate-release statute.”
Andrews, 12 F.4th at 258 (emphasis added). We noted that the
district court in that case “concluded that two of the proposed
reasons – the duration of Andrews’s sentence and the
nonretroactive changes to mandatory minimums [in § 924(c)]
– could not be extraordinary and compelling as a matter of
law.” Id. at 258. We upheld that conclusion. And we clarified
that, although the district court appropriately excluded those
two reasons from the eligibility analysis, “we [were] not saying
that they are always irrelevant to the sentence-reduction
inquiry” because they “may be a legitimate consideration for
courts at the next step of the analysis when [a court] weigh[s]



sentence nor any nonretroactive change to mandatory
minimum sentences establishes ‘extraordinary and
compelling’ circumstances warranting release.” (emphasis
added)). Andrews’s holding itself was confined to the § 924(c)
context. See Andrews, 12 F.4th at 261 (holding that “[t]he
nonretroactive changes to the § 924(c) mandatory minimums
also cannot be a basis for compassionate release” and referring
to the § 924(c) mandatory minimums by using phrases like “the
nonretroactive changes to mandatory minimums” (emphasis
added)). In fact, Andrews’s discussion of the First Step Act
makes it evident that we were specifically considering whether
the changes to § 924(c) could be considered extraordinary and
compelling when Congress had specifically made those
changes nonretroactive. Accordingly, we view our holding in
Andrews as confined to the § 924(c) context.




                              38
the § 3553(a) factors.” 24 Id. at 262. We also upheld the district
court’s decision that “Andrews’s four remaining reasons
collectively fell short of being extraordinary and compelling
under the statute.” Id. at 259 (emphasis added). Therefore, at
bottom, our holding in Andrews was that the nonretroactive
change to § 924(c), whether by itself or in combination with
other factors, cannot be considered in the compassionate
release eligibility context.

        We stand by that ruling today. When it comes to the
modification of § 924(c), Congress has already taken
retroactivity off the table, so we cannot rightly consider it. See
United States v. Jean, 

, 295 (5th Cir. 2024)
(Smith, J., dissenting) (“[P]resenting two insufficient things is
different from presenting an insufficient thing together with
something we are legally prohibited from considering because
it is outside the scope of, or prohibited by, the statute.”).




       24
          Congress enumerated “the need to avoid unwarranted
sentence disparities among defendants with similar records
who have been found guilty of similar conduct” as a factor that
must be considered after a prisoner is determined eligible for
compassionate release, which suggests that Congress intended
courts to consider changes in law at the post-eligibility phase,
rather than as a part of the eligibility determination. 

(a)(6).




                               39
              3.     Even if an Ambiguity Analysis is
                     Required in this Case, Our Holding in
                     Andrews Trumps the Amended Policy
                     Statement in the § 924(c) Context.

       Rutherford argues that even if there were a conflict
between the amended Policy Statement and Andrews, “the
Commission’s reading would control” because, in his view,
“[t]he government [did not show] that the compassionate
release statute unambiguously forecloses the policy
statement.” (Opening Br. at 28, 30.) He says that “[t]he
government cannot make that showing because Andrews
already recognized that the phrase ‘extraordinary and
compelling’ is ‘amorphous’ and ‘ambiguous.’” (Opening Br.
at 31 (quoting Andrews, 12 F.4th at 60).) The government
responds that, “while the full reach of the term is doubtless
imprecise, necessitating action of the Commission, the term is
not at all ambiguous as applied to the specific context of a
nonretroactive change in law.” 25 (Answering Br. at 36.) The



       25
          Rutherford also says that the government itself
acknowledged at oral argument before the District Court that
“[e]xtraordinary and compelling is not the most unambiguous
statement that anyone has ever made.” (Opening Br. at 31
(quoting J.A. at 190).) But he does not mention that the
government also advanced the same argument it does here,
namely, that the statute is unambiguous as it relates to a
nonretroactive change in the law. (J.A. at 191 (“Ambiguous as
the term extraordinary and compelling is, it does not fit where
what your circumstance is is a change in law that Congress had
declared nonretroactive.”).)




                              40
government again has the better of the arguments, at least
insofar as it addresses the change in § 924(c).

       Whatever else the Commission may be empowered to
do, it plainly “may not replace a controlling judicial
interpretation of an unambiguous statute with its own
construction (even if that construction is based on agency
expertise)[.]” 26 Adair, 38 F.4th at 361 (emphasis added). And
on retroactivity, the change to § 924(c) is not the least
ambiguous. Congress made the change non-retroactive. No
matter how well-intentioned, the Policy Statement cannot
change that.

       In Loper Bright Enterprises v. Raimondo, the Supreme
Court overturned the long-standing rule that courts must defer
to agency interpretations of statutes within an agency’s
expertise. The Court said such so-called Chevron deference

       26
          Relying on Braxton v. United States, 

(1991), Rutherford says that the Commission has the power to
overturn Circuit precedent and resolve circuit splits and, thus,
we must defer to the Commission’s amended Policy Statement.
(Opening Br. at 28-29.) But the guideline provision at issue
in Braxton did not conflict with an unambiguous congressional
statute. 

. And, as Braxton itself recognized,
the Commission is not the only body that can resolve a split in
judicial authority concerning the Guidelines. “Congress itself
can eliminate a conflict concerning a statutory provision by
making a clarifying amendment to the statute.” 

.
That is what happened here when Congress unambiguously
stated that the First Step Act’s amendment of § 924(c) was not
retroactive. The Commission cannot override that command.




                              41
was the “antithesis” of “the traditional conception of the
judicial function[,]” especially when “it forces courts to [defer]
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.’” 

,
2263, 2265 (2024) (citing Nat’l Cable & Telecommunications
Ass’n v. Brand X Internet Servs., 

 (2005)).
That ruling was made when considering the Administrative
Procedures Act, which, admittedly, is not what we look to
when considering actions of the Commission. See United
States v. Berberena, 

 (3d Cir. 2012)
(“Congress decided that the … Commission would not be an
‘agency’ under [that Act] when it established the Commission
as an independent entity in the judicial branch.” (internal
quotation marks omitted)). But Loper Bright is still instructive
as we assess the assertion that the Commission’s view of a
statute should trump our own.

       The Supreme Court has explained that the “first step in
interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case.” Robinson v. Shell Oil Co., 

 (1997) (emphasis added). The particular dispute
in Andrews was whether the “nonretroactive changes to the
§ 924(c) mandatory minimums [could] be a basis for
compassionate release[,]” or in other words, whether such
changes could be considered “extraordinary and compelling.”
Andrews, 12 F.4th at 261. We did not use the terms
“amorphous” and ambiguous” to describe that particular
question; we used them only to explain that the district court
did not err in using traditional methods of statutory
interpretation to come to its own conclusion that
“extraordinary and compelling” did not encompass that change




                               42
in the law. 27 Andrews, 12 F.4th at 260. And while it is true
that we did not say that the phrase “extraordinary and
compelling” was “unambiguous” as applied to the § 924(c)
change, we need not make such an explicit statement to
communicate the point. See Bastardo-Vale v. Attorney
General, 

, 259 n.1 (3d Cir. 2019) (en banc)
(“[The] use of words like ‘suggest’ or ‘implies,’ when viewed




      27
           We said:
      To start, the District Court did not err when it
      consulted the text, dictionary definitions, and the
      policy statement to form a working definition of
      “extraordinary and compelling reasons.” Given
      that the compassionate-release statute does not
      define “extraordinary and compelling reasons,”
      the court looked to those resources to give shape
      to the otherwise amorphous phrase. That was not
      error. “We look to dictionary definitions to
      determine the ordinary meaning of a word …
      with reference to its statutory text.” Bonkowski
      v. Oberg Indus., Inc., 

 (3d Cir.
      2015). And courts may consider an extrinsic
      source like the policy statement if, like here, it
      “shed[s] a reliable light on the enacting
      Legislature’s understanding of [an] otherwise
      ambiguous term[].” Exxon Mobil Corp. v.
      Allapattah Servs., Inc., 

[]
      (2005).
Andrews, 12 F.4th at 260.




                              43
in context … conveys that [the court] viewed the statute as
clear.”). 28

       In sum, the amended Policy Statement conflicts with
Andrews, and Andrews controls. Therefore, the First Step
Act’s change to § 924(c) cannot be considered in the analysis
of whether extraordinary and compelling circumstances make
a prisoner eligible for compassionate release.

III.   CONCLUSION

      For the foregoing reasons, we will affirm the District
Court order denying Rutherford’s compassionate release
motion.




       28
          In any event, an ambiguity determination comes only
after courts apply traditional tools of statutory construction.
Cf. Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

, 843 n.9 (1984) (“If a court, employing traditional
tools of statutory construction, ascertains that Congress had an
intention on the precise question at issue, that intention is the
law and must be given effect.”), overruled by Loper Bright,

. So the fact that the district court in Andrews
used traditional tools of statutory interpretation does not
automatically mean that the statute can be called ambiguous
with respect to the particular issue in this case.




                               44