United States v. Rutherford

Brief of Amici Curiae National Association of Criminal Defense Lawyers, FAMM, and Federal Public Defenders and Community Defenders for the Judicial Districts of the Third Circuit in Support of Appellant and Reversal

Brief filed: 02/07/2024


United States v. Rutherford

3rd Circuit Court of Appeals; Case No. 23-1904


In 1984, through the Sentencing Reform Act (“SRA”), Congress directed the Commission to “describe what should be considered extraordinary and compelling reasons for sentence reduction” under § 3582(c)(1)(A), “including the criteria to be applied and a list of specific examples.” 28 U.S.C. § 994(t). Congress also mandated that judges apply § 3582(c)(1)(A) “consistent with” any resulting, applicable policy statements. 18 U.S.C. § 3582(c)(1)(A). Thus, the amended § 1B1.13, which applies to both BOP- and defendant-filed motions, is now the legal authority for what can be considered “extraordinary and compelling” under § 3582(c)(1)(A). This Court’s prior decision in Andrews is no impediment to applying the amended policy statement, including § 1B1.13(b)(6) (Unusually Long Sentence). First, Andrews did not decide whether a sentence reduction might be consistent with § 1B1.13(b)(6)’s “descri[ption]” of “what should be considered extraordinary and compelling reasons for a sentence reduction,” 28 U.S.C. § 994(t), for the simple reason that Andrews pre-dated the promulgation of § 1B1.13(b)(6). Andrews dealt exclusively with a regime in which there was no applicable policy statement for defendant-filed motions and, thus, courts were left to determine on their own what reasons were extraordinary and compelling. Second, to the extent that the Court disagrees and reads Andrews to conflict with § 1B1.13(b)(6), the new policy statement, not Andrews, controls. After November 1, 2023, any judicial reading of “extraordinary and compelling reasons” is valid only to the extent that it is “consistent with” the policy statement definition that went into effect on that date. 18 U.S.C. § 3582(c)(1)(A).The government does not like the policy choice that the Commission made in promulgating § 1B1.13(b)(6). But that does not make it unlawful: Section 1B1.13(b)(6) fits within the plain language of the statute delegating authority to the Commission, and it is consistent with the surrounding context and the purposes of both the SRA in general and § 3582(c)(1)(A) in particular. Further, no other law forecloses § 1B1.13(b)(6)’s authority as a general matter, or precludes its application to a case involving a gross disparity arising out of new congressional enactments, where individualized circumstances (of the sort required by § 1B1.13(b)(6)) show that sentence reduction is appropriate. Accordingly, § 1B1.13(b)(6), not Andrews, governs cases that come within § 1B1.13(b)(6)’s terms.


David A. O'Neil, Debevoise & Plimpton LLP, Washington, DC; Steven G. Tegrar, Isabelle M. Canaan, Nicholas H. Hallock, Debevoise & Plimpton LLP, New York, NY; Erica K. Zunkel, Nicholas B. Smith, Nathaniel G. Berry, The University of Chicago Law School, Chicago, IL; Elizabeth A. Blackwood, NACDL, Washington, DC; Shelley M. Fite, Federal Public and Community Defenders, Madison, WI; Mary Price, FAMM, Washington, DC; Lisa Mathewson, NACDL, Philadelphia, PA.

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