United States Court of Appeals For the First Circuit

No. 21-1064

UNITED STATES OF AMERICA,

Appellee,

v.

JOSÉ RUVALCABA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Barron, Selya, and Gelpí, Circuit Judges.

Brandon Sample, with whom Brandon Sample PLC was on brief, for appellant. Jennifer Zacks, Assistant United States Attorney, with whom Nathaniel R. Mendell, Acting United States Attorney, was on brief, for appellee.

February 15, 2022 SELYA, Circuit Judge. Presently before us is an appeal

brought by defendant-appellant José Ruvalcaba, who is serving a

life sentence for having led a drug-trafficking conspiracy. The

appeal raises questions of first impression in this circuit.

To frame those questions, we note that the defendant's

life sentence, imposed in 2009, encompassed a mandatory minimum,

see

(b)(1)(A) (2006), triggered by two prior

convictions for felony drug offenses. While the defendant was

serving his sentence, Congress passed the First Step Act (FSA) in

December of 2018. See

Stat. 5194. As

relevant here, the FSA reduced certain enhanced mandatory minimum

penalties (including those pursuant to section 841(b)(1)(A)) and

modified the criteria for qualifying prior offenses. See

§ 401, 132 Stat. at 5220. At the same time, the FSA amended the

compassionate-release statute, see

(c)(1)(A), to

allow prisoners to file their own motions for compassionate

release, see FSA § 603(b), 132 Stat. at 5239.

In the wake of these changes, the defendant moved for

compassionate release under section 3582(c)(1)(A)(i), alleging

that there were extraordinary and compelling reasons for his

release. The government opposed the motion. The district court,

in an unpublished order, refused the requested relief.

On appeal, the defendant broadly contends that the

district court erred by concluding that it lacked the authority to

- 2 - reduce his sentence because the FSA's changes could not support an

extraordinary and compelling reason for compassionate release. We

have not yet spoken definitively on the extent of a district

court's discretion in determining whether extraordinary and

compelling reasons for compassionate release exist. Specifically,

we have yet to resolve whether the Sentencing Commission's current

policy statement (USSG §1B1.13) is applicable to and, thus, binding

upon district courts in adjudicating prisoner-initiated motions

for compassionate release. Nor have we yet resolved whether a

district court — when confronted with such a motion — may consider

certain of the FSA's changes that were not made retroactive to

sentences previously imposed.

After careful consideration, we hold that a district

court — when adjudicating a prisoner-initiated motion for

compassionate release — is not bound by the Sentencing Commission's

current policy statement. We further hold that such a court may

consider the FSA's non-retroactive changes in sentencing law on an

individualized basis, grounded in a defendant's particular

circumstances, to determine whether an extraordinary and

compelling reason exists for compassionate release. Accordingly,

we vacate the order of the district court and remand for further

proceedings consistent with this opinion.

- 3 - I

Our journey starts with a rehearsal of the relevant facts

and travel of the case, including a description of the pertinent

aspects of the FSA and the law pertaining to compassionate release.

The defendant led a sprawling drug-distribution and

money-laundering conspiracy in the early 2000s. After his

apprehension, the defendant was tried and found guilty of

involvement in two interlocking conspiracies: a conspiracy to

distribute and to possess with intent to distribute over 500 grams

of methamphetamine, see

, and a conspiracy to

launder money, see

(h). On April 28, 2009, the

district court sentenced him to life imprisonment on the drug-

trafficking charge and to a concurrent 240-month term of immurement

on the money-laundering charge. The defendant appealed, and we

summarily affirmed. See United States v. Ruvalcaba, No. 09-1650

(1st. Cir. Jan. 7, 2010) (unpublished judgment).

The lifetime term of imprisonment reflected the enhanced

mandatory minimum penalty that Congress had prescribed for

defendants with two prior "felony drug offense[s]" pursuant to

section 841(b)(1)(A). See

(b)(1)(A) (2006). At

the time of sentencing, the defendant had two earlier California

felony drug convictions: a 2001 conviction for importation, sale,

and distribution of methamphetamine and a 2001 conviction for

possession of methamphetamine.

- 4 - We fast-forward to the spring of 2020, when the defendant

moved for compassionate release under section 3582(c)(1)(A)(i), as

amended by the FSA. Two of the FSA's provisions are critically

important to the defendant's compassionate-release motion. First,

during the more than thirty years before the FSA's passage, any

motion for compassionate release had to be filed by the Director

of the federal Bureau of Prisons (BOP). See

(c)(1)(A) (2012). The FSA amended the statute, allowing

prisoners to file such motions on their own should the BOP decline

to act.1 See FSA § 603(b), 132 Stat. at 5239.

Second, the FSA reconfigured the sentencing landscape

through a series of revisions. Pertinently, it altered the scope

of the statutory mandatory minimum penalties imposed pursuant to

(b)(1)(A). See FSA § 401, 132 Stat. at 5220-21.

This amendment reduced the mandatory minimum penalties in that

section such that a defendant who had two or more prior qualifying

convictions for drug offenses was no longer subject to a mandatory

term of life imprisonment but, rather, to an incarcerative term of

twenty-five years. See id. § 401(a)(2), 132 Stat. at 5220. For

1 As we noted in United States v. Saccoccia,

(1st Cir. 2021), "[s]uch motions are variously referred to as sentence- reduction motions and compassionate-release motions."

at 4 n.2. In this case, as in Saccoccia, "[w]e use those terms interchangeably."

In adopting this approach, we in no way suggest that release from imprisonment is the only form of relief contemplated under section 3582(c)(1)(A). After all, section 3582(c)(1)(A) refers to sentence reductions generally.

- 5 - a defendant with only one qualifying prior conviction, the

mandatory minimum term was reduced from twenty years to fifteen

years. See

And as part and parcel of this series of changes,

the FSA modified the criteria for qualifying prior offenses by

replacing the term "felony drug offense" with the newly-defined

terms "serious drug felony" and "serious violent felony."

§ 401(a)(1), 132 Stat. at 5220.

Congress did not make these changes — found in section

401 of the FSA — applicable to all persons previously convicted

under section 841(b)(1)(A). Instead, Congress limited the

retroactivity of those amendments. Id. § 401(c), 132 Stat. at

5221 ("[Section 401], and the amendments made by this section,

shall apply to any offense that was committed before the date of

enactment of this Act, if a sentence for the offense has not been

imposed as of such date of enactment.").

Marshalling his case for compassionate release, the

defendant emphasized that had he been sentenced after the enactment

of the FSA, he would have had just one qualifying prior offense

and would have been subject to a mandatory prison term of only

fifteen years. His life sentence was so much more draconian that,

in his view, the resultant sentencing disparity was "extraordinary

and compelling." This was especially true, he added, because he

- 6 - was only forty-five years old and had been incarcerated on the

drug-trafficking conspiracy charge for fourteen of those years.2

The defendant offered an alternative ground for

compassionate release. His medical issues, he said, justified a

sentence reduction. In a supplemental motion, he added that his

medical conditions — along with the conditions of his confinement

— rendered him uniquely susceptible to severe illness or death

from COVID-19.

The district court denied the defendant's motions. As

an initial matter, the court determined that the defendant had

adequately exhausted his administrative remedies. See

(c)(1)(A). The court then turned to the question of whether

an extraordinary and compelling reason existed sufficient to

warrant compassionate release. Taking the first step along this

road, the court explained that although the Sentencing

Commission's current policy statement did not "directly address

the FSA's" amendments to the compassionate-release statute, it

"provide[d] helpful guidance." The court then rejected the

2The defendant argued, in the alternative, that the district court should reduce his sentence to twenty-five years even if both of his prior offenses continued to rank as qualifying offenses. We note, moreover, that neither party discusses the significance, if any, of the money-laundering sentence vis-à-vis the defendant's quest for compassionate release. These matters — to the extent that they are relevant — may be explored by the district court on remand, but they have no bearing on the issues that are now before us.

- 7 - defendant's "medical conditions" argument, reasoning that the BOP

could adequately address the defendant's medical issues and that

there was no persuasive evidence that the defendant was

particularly susceptible to the ravages of COVID-19.

Shifting its focus to the FSA's reduction of the

mandatory minimum penalties and the simultaneous modifications of

the criteria for qualifying prior offenses, the district court

disagreed that those changes could be an element of an

extraordinary and compelling reason for compassionate release. In

the court's estimation, the changes were prospective in effect

and, therefore, any ensuing disparity could not be deemed

extraordinary. To rule otherwise, the court suggested, would

result in an inappropriate judicial exception to the prospective

effect of the FSA's amendments and offend the principle that "[t]he

court may not modify a term of imprisonment once it has been

imposed."

(c).

This timely appeal followed. In it, the defendant

challenges the district court's refusal to consider the FSA's non-

retroactive changes in sentencing law as part of the "extraordinary

and compelling" calculus. He does not challenge the district

court's rejection of his plaint that his medical issues, standing

alone, warranted compassionate release.

- 8 - II

Section 3582(c)(1)(A) authorizes a court to reduce a

term of imprisonment when "extraordinary and compelling reasons

warrant such a reduction."3 A prisoner seeking such relief may

file a motion after exhausting his administrative remedies. See

(c)(1)(A); United States v. Texeira-Nieves,

(1st Cir. 2022). To grant the motion, the district

court must find both that the defendant has presented an

"extraordinary and compelling" reason warranting a sentence

reduction,

(c)(1)(A)(i), and that "such a

reduction is consistent with applicable policy statements issued

by the Sentencing Commission,"

§ 3582(c)(1)(A). In addition,

the district court must consider any applicable section 3553(a)

factors, see id., and "determine whether, in its discretion, the

reduction . . . is warranted in whole or in part under the

particular circumstances of the case," United States v. Saccoccia,

(1st Cir. 2021) (omission in original) (quoting

Dillon v. United States,

(2010)).

3 The compassionate-release statute further provides that a district court may grant relief to some prisoners who are at least seventy years of age, who have served at least thirty years, and who are not found to be "a danger to the safety of any other person or the community."

(c)(1)(A)(ii); see United States v. Texeira-Nieves,

, 54 n.3 (1st Cir. 2022). This provision is not implicated here.

- 9 - We review a district court's denial of a compassionate-

release motion for abuse of discretion. See, e.g., id. at 4-5.

This standard is not monolithic and, under it, we review embedded

questions of law de novo and embedded findings of fact for clear

error. See United States v. Vélez-Andino,

, 112 (1st

Cir. 2021); Saccoccia,

.

In the case at hand, the defendant argues that the

district court erred as a matter of law when it concluded that the

FSA's changes to the mandatory minimum penalties in section

841(b)(1)(A) and to the criteria for qualifying offenses could

never form part of the basis for granting a compassionate-release

motion. This argument raises questions of law, which engender de

novo review. See Texeira-Nieves,

; Saccoccia,

.

Our analysis proceeds in three parts. First, we address

whether the Sentencing Commission's current policy statement on

compassionate release is applicable to prisoner-initiated

motions.4 Second — after concluding that the policy statement is

presently no bar — we proceed to examine whether a district court

4 The government suggests that we need not reach this issue. But the government also suggests that we should affirm on the grounds that the policy statement is binding. See United States v. Rodríguez-Peña,

(1st Cir. 2006) (per curiam) (stating that court of appeals may affirm on any basis apparent from the record). We address the authority of the policy statement to explain why we cannot affirm on the alternative basis suggested by the government.

- 10 - may permissibly consider those prospective changes on an

individualized basis to find an extraordinary and compelling

reason warranting compassionate release. Third, we briefly

address an alternative ground for affirmance advanced by the

government.

A

Section 3582(c)(1)(A) requires that a sentence reduction

be "consistent with applicable policy statements issued by the

Sentencing Commission."

(c)(1)(A). In other

words, "applicable policy statements" issued by the Sentencing

Commission are binding on courts reviewing compassionate-release

motions. See Saccoccia,

(citing Dillon,

).

For over twenty years, this "consistency" requirement

was toothless: the Sentencing Commission did not issue any policy

statement on compassionate release until 2006. See USSG §1B1.13

(2006). This inaction persisted despite Congress's express

instruction that the Sentencing Commission "describe what should

be considered extraordinary and compelling reasons for sentence

reduction, including the criteria to be applied and a list of

specific examples."

(t).

When the dam broke and a policy statement was eventually

issued, that statement mostly mirrored the then-current statutory

- 11 - language.5 See USSG §1B1.13 (2006). Later, the Sentencing

Commission identified some extraordinary and compelling reasons in

the commentary to section 1B1.13. See id. §1B1.13 cmt. n.1 (A)-

(D). At the time the FSA was enacted, this compendium included

four categories of extraordinary and compelling reasons: medical

conditions; age; family circumstances; and a catch-all for other

reasons deemed appropriate by the BOP. See id.

That list remains unchanged today. Neither the policy

statement nor the commentary — at least explicitly — say that non-

retroactive changes in sentencing law may constitute an

extraordinary and compelling reason for compassionate release. In

order to put this appeal into perspective, then, we evaluate the

effect, if any, of section 1B1.13 on the defendant's effort to

obtain compassionate release.

To perform this evaluation, our starting point is the

relevant text of both the statute and the current policy statement.

See United States v. Smith,

(1st Cir. 2020).

The statute demands that an inquiring court consider whether a

reduction is "consistent with" policy statements that are

We say "mostly" because section 1B1.13 also requires a 5

finding that the defendant is not dangerous in order to grant compassionate release based on extraordinary and compelling reasons. See USSG §1B1.13(2);

(c)(1)(A)(i); see also Texeira-Nieves,

n.3. This requirement reflects a mandate contained in a different provision —

(c)(1)(A)(ii).

- 12 - "applicable."

(c)(1)(A). But there is a rub:

section 1B1.13 was last modified in November of 2018 — before the

FSA amended the compassionate-release statute to allow for

prisoner-initiated motions. The obvious question, then, is

whether this policy statement is "applicable" to motions of a type

that did not exist when it was written. To resolve this question,

we turn principally to the language of the policy statement itself.

The text of the current policy statement makes pellucid

that it is "applicable" only to motions for compassionate release

commenced by the BOP. Section 1B1.13 starts with a description of

the condition that the compassionate-release process must be

initiated by the BOP. See USSG §1B1.13 ("Upon motion of the

Director of the Bureau of Prisons under

(a)(1) . . . ."). This imperative is a "direct textual

instruction" and describes a "central statutory feature of the

compassionate release scheme prior to the [FSA]." United States

v. Long,

, 358 (D.C. Cir. 2021). The policy statement

is therefore not "applicable," on a literal reading, to motions

brought by prisoners; it applies only to motions brought by the

BOP. See

(determining that policy statement is

"facially inapplicable" to prisoner-initiated motions); United

States v. McCoy,

, 282 & n.7 (4th Cir. 2020); United

States v. Gunn,

(7th Cir. 2020); United States

v. Brooker,

(2d Cir. 2020).

- 13 - The Sentencing Commission's commentary to the policy

statement reinforces this view. See USSG §1B1.13 cmt. n.1-5. Such

commentary is generally considered as authoritative (with

exceptions not applicable here). See Stinson v. United States,

(1993); see also Long, 997 F.3d at 356. The

commentary confirms that the policy statement applies only to

motions filed by the BOP. It reiterates that "[a] reduction under

this policy statement may be granted only upon motion by the

Director of the Bureau of Prisons pursuant to

(c)(1)(A)." USSG §1B1.13 cmt. n.4. A prisoner-initiated

motion for compassionate release cannot — by the Sentencing

Commission's own words — be brought under "th[at] policy

statement." Id.; see McCoy,

; Brooker,

.

To find the existing policy statement "applicable" to

prisoner-initiated motions, we would need to excise the language

referring to motions brought by the BOP. That would be major

surgery and undertaking it would be well outside our proper

interpretive province. See, e.g., Long, 997 F.3d at 356; McCoy,

. We may not "blue pencil" unambiguous text to

divorce it from its context.6 Mass. Mut. Life Ins. Co. v. Russell,

(1985).

Let us be perfectly clear. 6 We do not suggest that the current policy statement is invalid but, rather, we read it as

- 14 - Of course, the Sentencing Commission has left its policy

statement intact, without amendment, since the FSA first allowed

for prisoner-initiated motions for compassionate release. This

passivity on the Commission's part arguably might spawn an

inference that the Commission found the current policy statement

to remain responsive notwithstanding the broadening of the

compassionate-release statute. Here, however, there is no fertile

ground for any such inference. The simple fact of the matter is

that the Sentencing Commission has lacked a quorum for most of the

time that has elapsed since the FSA's passage. See Guerrant v.

United States,

, 640-41 (2022) (statement of

Sotomayor, J., joined by Barrett, J.); Saccoccia,

.

Consequently, it has not had any realistic opportunity to issue a

post-FSA policy statement. Viewed against this backdrop, the

Sentencing Commission's silence does not suggest that it regards

any part of its current policy statement as applicable to prisoner-

initiated motions for compassionate release. See Long, 997 F.3d

at 355 (explaining that Sentencing Commission has "never suggested

that its existing policy statement applies to defendant motions

applicable only to a limited context — compassionate-release motions brought by the BOP. See United States v. Jones,

, 1111 n.19 (6th Cir. 2020); Brooker,

. The conclusion that the current policy statement remains valid with respect to compassionate-release motions brought by the BOP but not as to those brought by prisoners is not internally inconsistent.

- 15 - under the First Step Act"); McCoy,

(declining to

assume what Sentencing Commission would decide following the FSA).

For these reasons, we hold that a district court is not

constrained by the existing policy statement on compassionate

release when adjudicating a motion brought by a prisoner. This

holding aligns our court with the overwhelming majority of the

courts of appeals that have decided the issue. See United States

v. Andrews,

(3rd Cir. 2021); Long, 997 F.3d at

359; United States v. Aruda,

(9th Cir. 2021)

(per curiam); United States v. Shkambi,

(5th

Cir. 2021); United States v. McGee,

(10th Cir.

2021); McCoy,

; United States v. Jones,

(6th Cir. 2020); Gunn,

; Brooker,

.

We recognize that there is an outlier. A divided panel

of the Eleventh Circuit has held that the current policy statement

applies to prisoner-initiated motions. See United States v.

Bryant,

(11th Cir.), cert. denied,

(2021). That holding, though, is based mainly on the court's

insistence that an "applicable policy statement" is merely one

that is "capable of being applied" or "relevant."

at 1252-

53. This tautological approach may have a certain superficial

appeal, but "there are situations in which rigid adherence to

semantic orthodoxy must yield to common sense." United States ex

- 16 - rel. Ondis v. City of Woonsocket,

(1st Cir. 2009).

Although the Bryant majority purported to analyze the phrase

"applicable policy statements" in the statutory "context and with

a view to [its] place in the overall statutory scheme," Sturgeon

v. Frost,

(2016) (quotations omitted), such

context and scheme make luminously clear that the current policy

statement cannot be "applicable" to prisoner-initiated motions.

Congress authorized the Sentencing Commission to

promulgate "general policy statements" that would "further the

purposes set forth in"

(a)(2), including "the

appropriate use of . . . the sentence modification provisions" in

section 3582(c). See

(a)(2)(C). Section 603(b) of

the FSA fundamentally changed the compassionate-release mechanism.

The amendment, entitled "Increasing the Use and Transparency of

Compassionate Release," created a new regime in which — for the

first time — prisoners may seek compassionate release even when

the BOP does not deign to act on their behalf. FSA § 603(b), 132

Stat. at 5239. By empowering district courts to grant

compassionate release in response to a prisoner's own request, the

amendment effected a paradigm shift in how compassionate release

would function. Given the profound nature of this paradigm shift,

it is fair to say that the "purposes" and "appropriate use" of the

compassionate-release statute (to use the language of

(a)(2)(C)) have swelled beyond those that inhered in the

- 17 - statute when the Sentencing Commission issued its original policy

statement. It would blink reality to assume that the Sentencing

Commission would think that the only modifications necessary to

the existing policy statement would be to disregard the references

to motions brought by the BOP.

If more were needed — and we doubt that it is —

Application Note 1(D) of the commentary cinches the matter. See

USSG §1B1.13 cmt. n.1(D). This note requires that "other"

extraordinary and compelling reasons — that is, reasons not

specifically described in the commentary — must be "determined by

the Director of the [BOP]." Id. Such a requirement is plainly a

relic of the outdated regime by which the BOP would in all cases

weigh the merits of a compassionate-release request and then file

a motion only if it judged the request worthy. To "assume that

Application Note 1(D) w[ould] survive unchanged in a post-First

Step Act world," McCoy,

, would require throwing

reasoned analysis to the winds and replacing it with sheer

conjecture.

The government adopts a contrary stance, suggesting that

it would not be inconsistent to apply the requirement specified in

Application Note 1(D) to prisoner-initiated motions. In its

telling, the FSA's changes to the compassionate-release mechanism

are merely procedural. See Bryant,

.

This suggestion elevates hope over reason: the FSA did more than

- 18 - alter procedural aspects of the compassionate-release process. It

worked a paradigm shift, which brought about "material changes,"

expanding opportunities for compassionate release after a long

history of poor implementation and rare use.7 Brooker,

; see McGee,

. Seen in this real-world

context, an "applicable" policy statement, binding on courts

adjudicating motions brought by prisoners, surely would require

the Sentencing Commission's judgment on the "appropriate" use of

the compassionate-release mechanism as reconfigured by the FSA.

See Long, 997 F.3d at 359 (explaining that an "applicable" policy

statement would "take account of the relevant legislation and the

congressional policy"); McCoy,

.

The short of it is that the Sentencing Commission's

current policy statement is not applicable to prisoner-initiated

motions for compassionate release, and the Commission has not yet

issued a policy statement applicable to such motions. The policy

statement referred to by the district court (that is, the current

policy statement) is applicable only to compassionate-release

7 The statistics tell the tale. There has been a sharp increase in both filings and grants of compassionate-release motions since the FSA's passage. See Brooker,

. For instance, the Sentencing Commission reported only twenty-four grants of compassionate release in fiscal year 2018. See U.S. Sent'g Comm'n, The First Step Act of 2018: One Year of Implementation 47 & n.143 (Aug. 2020). Since the FSA was passed in December of 2018, the number of such grants has swelled to over 4,000. See BOP, First Step Act, https://www.bop.gov/inmates/fsa (last visited Feb. 14, 2022).

- 19 - motions brought by the BOP. We hold, therefore, that district

courts — when adjudicating prisoner-initiated motions for

compassionate release — have discretion, unconstrained by any

policy statement currently in effect, to consider whether a

prisoner's particular reasons are sufficiently extraordinary and

compelling to warrant compassionate release. See McCoy,

(holding that because there is no "applicable" policy

statement, "district courts are 'empowered . . . to consider any

extraordinary and compelling reason for release that a defendant

might raise'" (quoting Brooker,

)); Gunn

(similar).

For the sake of completeness, we hasten to add that the

absence of an applicable policy statement does not mean that a

district court's discretion when adjudicating a prisoner-initiated

motion for compassionate release is unbounded. As Judge

Easterbrook put it, the absence of applicable policy statement

does not "creat[e] a sort of Wild West in court, with every

district judge having an idiosyncratic release policy." Gunn,

. After all, the district court's discretion remains

circumscribed by statutory standards, which obligate the district

court to find a reason that is both "extraordinary and compelling."

(c)(1)(A)(i); see United States v. Canales-Ramos,

(1st Cir. 2021) ("[T]he 'extraordinary and

compelling' standard is logically guided by the plain meaning of

- 20 - those terms."). And, moreover, the current policy statement —

though not "applicable" — nonetheless may serve as a non-binding

reference. See Andrews,

; Aruda,

;

United States v. Tomes,

, 503 n.1 (6th Cir. 2021);

McCoy,

n.7; Gunn,

.

Last but not least, we recognize that the situation is

fluid. The Sentencing Commission's lack of a quorum has stymied

the Commission from issuing policy statements. See Guerrant, 142

S. Ct. at 640-41 (statement of Sotomayor, J., joined by Barrett,

J.). If and when the Sentencing Commission issues updated guidance

applicable to prisoner-initiated motions for sentence reductions

consistent with both section 3582(c)(1)(A) and the Sentencing

Commission's statutory mandate under section 994(t), district

courts addressing such motions not only will be bound by the

statutory criteria but also will be required to ensure that their

determinations of extraordinary and compelling reasons are

consistent with that guidance. See Saccoccia,

.

Until then, however, the district courts will have to assess

prisoner-initiated motions for compassionate release primarily

through the lens of the statutory criteria, subject to review on

appeal.

B

The central question remains. That question asks

whether a district court — in the absence of an applicable policy

- 21 - statement — may permissibly consider the FSA's non-retroactive

amendments to the mandatory minimum penalties under section

841(b)(1)(A) on an individualized basis to determine whether an

extraordinary and compelling reason for compassionate release

exists in a particular case. The district court answered this

question in the negative, determining that such prospective

changes in sentencing law could never form part of the basis of an

extraordinary and compelling reason. Thus, it refused to consider

those changes at all regardless of their manifestation in the

defendant's particular circumstances (such as his relatively young

age at the time he began serving his life term and the gross

disparity between his pre-FSA mandatory sentence and his putative

post-FSA mandatory minimum). In support, the court reasoned

chiefly that any contrary conclusion would "effectively

establish[] a judicial exception to the general rule of prospective

effect of legislative enactments." We do not agree.

Although this issue is one of first impression for our

court, we do not write on a pristine page. Several courts of

appeals have addressed the issue. Three of those courts have

concluded that a district court's discretionary authority under

section 3582(c)(1)(A) does not allow consideration of the FSA's

non-retroactive changes in sentencing law in the course of

determining whether an extraordinary and compelling reason exists.

See United States v. Crandall, ___ F.4th ___, ___ (8th Cir. 2022)

- 22 - [No. 20-3611, slip op. at 6]; Andrews,

; United

States v. Thacker,

(7th Cir. 2021). Two of these

courts have suggested that such sentencing disparities may be

considered by a district court only in weighing the section 3553(a)

factors, see Andrews,

; Thacker,

—

an issue that need not be reached unless and until the court first

finds that an extraordinary and compelling reason exists.

Two other courts of appeals have come to a different

conclusion. Each of those courts has concluded that there is

enough play in the joints for a district court to consider the

FSA's non-retroactive changes in sentencing law (in combination

with other factors) and find an extraordinary and compelling reason

in a particular case, without doing violence to Congress's views

on the prospective effect of the FSA's amendments. See McGee,

; McCoy,

. Specifically, the

Fourth Circuit has held that a district court may permissibly treat

as an extraordinary and compelling reason the disparity between a

defendant's sentence and that provided for under the FSA's

amendments, emphasizing that such a judgment is appropriate only

after an individualized inquiry "basing relief not only on the

[FSA's] change to sentencing law . . . but also on [other]

factors." McCoy,

. So, too, the Tenth Circuit has

held that "the fact a defendant is serving a pre-FSA mandatory

life sentence imposed under [section] 841(b)(1)(A) cannot,

- 23 - standing alone, serve as a basis for the sentence reduction under

[section] 3582(c)(1)(A)(i)" but that "the combination of such a

sentence and a defendant's unique circumstances" may "constitute

'extraordinary and compelling reasons.'" McGee,

.8

Once again, our analysis begins with the text of the

relevant statutes. Section 3582(c)(1)(A)(i) requires that before

granting a sentence reduction, the district court must find an

extraordinary and compelling reason warranting relief. In the

absence of an applicable policy statement, there is only one

explicit limitation on what may comprise an extraordinary and

compelling reason. Congress has stated plainly — in a separate

statute authorizing the Sentencing Commission to issue general

policy statements — that "[r]ehabilitation . . . alone shall not

be considered an extraordinary and compelling reason."

(t). Nowhere has Congress expressly prohibited district

courts from considering non-retroactive changes in sentencing law

like those in section 401 of the FSA. Such a prohibition cannot

8 Divided panels of the Sixth Circuit have straddled the fence and placed that court on both sides of the decisional divide. Compare United States v. Jarvis,

(6th Cir. 2021), cert. denied,

(2022) (holding consideration of non-retroactive FSA changes impermissible), with United States v. Owens,

(6th Cir. 2021) (holding to contrary). A panel has recently endorsed a decision that aligns the court with the Third, Seventh, and Eighth Circuits. See United States v. McKinnie, ___ F.4th ___, ___ (6th Cir. 2022) [No. 21-3608, slip op. at 7] (endorsing Jarvis, not Owens, as law of circuit). But see United States v. McCall,

(6th Cir. 2021) (describing Jarvis as "creat[ing] an intra-circuit split").

- 24 - be deduced from section 3582(c)(1)(A)'s requirement that a court

consider the section 3553(a) factors when granting a sentence

reduction. No part of this requirement suggests that a district

court is precluded from considering issues relevant to those

sentencing factors at the separate step of determining whether an

extraordinary and compelling reason exists. Were this the case,

there would have been no reason for Congress to caution that

rehabilitation — a relevant consideration in the section 3553(a)

inquiry — could not constitute an extraordinary and compelling

reason.

Nor do we see any textual basis in the FSA for a

categorical prohibition anent non-retroactive changes in

sentencing law. The provision describing the effect of the FSA's

relevant amendments limits the application of those amendments to

"apply to any offense that was committed before the date of

enactment of this Act, if a sentence for the offense has not been

imposed as of such date of enactment." See FSA § 401(c), 132 Stat.

at 5221. Neither this provision nor any other provision in the

FSA indicates that Congress meant to deny the possibility of a

sentence reduction, on a case-by-case basis, to a defendant

premised in part on the fact that he may not have been subject to

a mandatory sentence of life imprisonment had he been sentenced

after passage of the FSA. See McGee,

. And to

the extent (if at all) that we might be able to infer any

- 25 - congressional understanding of the scope of "extraordinary and

compelling" derived from the Sentencing Commission's policy

statement that existed at the time Congress enacted the FSA, the

text of that policy statement offers no support for such a

categorical prohibition. After all, the catch-all provision of

the commentary to the policy statement allows the BOP to determine

other extraordinary and compelling reasons, and in no way suggests

that the Sentencing Commission intended to circumscribe the scope

of what is "extraordinary and compelling." See USSG §1B1.13 cmt.

n.1(D). This reading of the catch-all provision is consistent

with the Sentencing Commission's statutory mandate that it

"describe" (and not define) what should be considered an

"extraordinary and compelling" reason. See

(t).

On the whole, given the language that Congress

deliberately chose to employ, we see no textual support for

concluding that such changes in the law may never constitute part

of a basis for an extraordinary and compelling reason. We are,

moreover, reluctant to infer that Congress intended such a

categorical and unwritten exclusion in light of its specific

statutory exclusion regarding rehabilitation. See TRW Inc. v.

Andrews,

(2001); see also Pritzker v. Yari,

(1st Cir. 1994) ("As the maxim teaches, 'expressio

unius est exclusio alterius.'").

- 26 - Our view that a district court may consider the FSA's

prospective amendments to sentencing law as part of the

"extraordinary and compelling" calculus fits seamlessly with the

history and purpose of the compassionate-release statute. In

abolishing federal parole, Congress recognized the need for a

"safety valve" with respect to situations in which a defendant's

circumstances had changed such that the length of continued

incarceration no longer remained equitable. See S. Rep. No. 98-

225, 55-56, 121 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,

3238-39, 3304 (contemplating that circumstances may present

justifying a reduction of an "unusually long sentence"); McGee,

. To serve as a safety valve, section

3582(c)(1)(A) must encompass an individualized review of a

defendant's circumstances and permit a sentence reduction — in the

district court's sound discretion — based on any combination of

factors (including unanticipated post-sentencing developments in

the law). See Setser v. United States,

(2012)

("[W]hen the district court's failure to anticipate developments

that take place after the first sentencing produces unfairness to

the defendant," section 3582(c)(1)(A) "provides a mechanism for

relief." (quotations and alteration omitted)).

The court below adopted a contrary view, concluding that

the FSA's prospective changes cannot be considered in any case

- 27 - because Congress made those changes non-retroactive. The force of

this conclusion derives largely from three arguments.

The first argument is that a district court would usurp

Congress's judgment were it to grant a sentence reduction in favor

of a defendant for whom Congress had determined retroactive relief

was inappropriate. See Crandall, ___ F.4th at ___ [No. 20-3611,

slip op. at 6]; Andrews,

(describing issue as

"sow[ing] conflict" with provision requiring prospective

application of the FSA's changes to section 924(c)); Thacker,

(positing that section 3582(c)(1)(A) "cannot be used

to effect a sentencing reduction at odds with Congress's express

determination"); United States v. Jarvis,

(6th

Cir. 2021), cert. denied,

(2022) ("If every

defendant who received a longer sentence than the one he would

receive today became eligible for compassionate release, the

balance Congress struck would come to naught."). The second

argument is that by granting such relief, a district court would

offend other congressional judgments like those regarding

appropriate penalties, the limited avenues for collateral

challenges, and the rule of finality that traditionally attaches

to criminal sentences. See Crandall, ___ F.4th at ___ [No. 20-

3611, slip op. at 7]; Andrews,

; Thacker,

. The third argument rests on the notion that a sentence

legally imposed cannot itself be considered "extraordinary." See

- 28 - Crandall, ___ F.4th at ___ [No. 20-3611, slip op. at 6-7]; Andrews,

; Thacker,

.

These arguments, whether appraised singly or

collectively, cannot bear the weight of the district court's

conclusion. They cannot support a categorical rule that non-

retroactive changes in sentencing law, even when considered on an

individualized basis, may never support a reason for a sentence

reduction under section 3582(c)(1)(A).

To be sure, the first two arguments present a fair

concern: if a district court were to reduce a sentence solely

because one of the FSA's non-retroactive amendments would have

lowered a defendant's sentence, it might be seen as substituting

its own judgment on retroactivity for Congress's judgment and — in

the bargain — offending the rule of finality. But that critique

knocks down a straw man: we in no way suggest that the FSA's non-

retroactive amendments "simultaneously creat[ed] an extraordinary

and compelling reason for early release." Andrews,

. There is a salient "difference between automatic vacatur and

resentencing of an entire class of sentences" on the one hand,

"and allowing for the provision of individual relief in the most

grievous cases" on the other hand. McGee,

(quoting McCoy,

). Congress's judgment to

prevent the former is not sullied by a district court's

determination, on a case-by-case basis, that a particular

- 29 - defendant has presented an extraordinary and compelling reason due

to his idiosyncratic circumstances (including that his mandatory

minimum sentence under section 841(b)(1)(A) would have been

significantly shorter under the FSA). See

As long as the

individualized circumstances, taken in the aggregate, satisfy the

"extraordinary and compelling" standard, granting relief would be

consistent with Congress's judgment that a modification of a

sentence legally imposed may be warranted when extraordinary and

compelling reasons for taking that step exist. See McCoy,

. And conversely, this part of the compassionate-

release statute is no help to a defendant who presents only

ordinary reasons. See Saccoccia,

("Words like

'extraordinary' and 'compelling,' when used by Congress in framing

a statute, must be given their plain meaning.").

The third argument furnishes an even weaker foundation

for the district court's categorical rule. The thrust of this

argument is that Congress's judgment to limit the retroactivity of

certain changes in the FSA affecting sentencing exposure can never

be considered extraordinary and compelling 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."9 Thacker,

The government suggests that we have supported this view as a matter of law. That suggestion relies on an unpublished

- 30 - at 574. Even if this statement rings true in many situations, we

do not see how it can be stated in such absolute terms with respect

to compassionate-release motions. After all, a district court's

individualized consideration of a defendant's circumstances in

connection with a compassionate-release motion may require it to

assess interactions among a myriad of factors. Judges do not have

crystal balls, and courts cannot predict how this mix of factors

— including non-retroactive changes in sentencing law — will play

out in every case. Ultimately, then, it is within the district

court's discretion — constrained only by the statutory criteria

and any applicable policy statement — to make that assessment,

case by case.

To say more would be to paint the lily. We hold that

the district court's categorical exclusion of non-retroactive

changes in sentencing law from the "extraordinary and compelling"

calculus is neither consistent with the relevant statutory text

nor compelled by the arguments embraced by the district court.

While we agree that the mere fact of a "pre-First Step Act

mandatory life sentence imposed under [section] 841(b)(1)(A)

judgment, see United States v. De Jesús, No. 19-2210,

, at *1 (1st. Cir. July 23, 2020) (unpublished judgment), cert. denied, No. 20-7694,

, at *1 (U.S. May 17, 2021) — a judgment that lacks precedential effect, see 1st Cir. Rule 32.1. What is more, the government's suggestion misreads De Jesús. We determined there only that the district court's denial of relief was within its discretion given the circumstances presented in that case.

- 31 - cannot, standing alone, serve as the basis for a sentence reduction

under [section] 3582(c)(1)(A)(i)," McGee,

, that

is only part of the picture. The other part of the picture is

decisive here: it is within the district court's discretion, in

the absence of a contrary directive in an applicable policy

statement, to determine on a case-by-case basis whether such

changes in law predicated on a defendant's particular

circumstances comprise an extraordinary and compelling reason and,

thus, satisfy the standard for compassionate release under section

3582(c)(1)(A)(i). See id.; McCoy,

.

C

The government has a fallback position. It contends

that we may still affirm the district court's decision to deny

compassionate release for a different reason. In its view, the

district court's decision ought to be upheld because the

defendant's circumstances show that compassionate release is

simply not warranted. The government notes, for example, that

apart from the mandatory minimum, the defendant had a guideline

sentencing range of life imprisonment.

The government's contention impermissibly compresses the

required analysis. The district court's error related to an issue

of law, which reflected a misunderstanding of the scope of its

discretion in determining whether an extraordinary and compelling

reason existed sufficient to warrant compassionate release. It

- 32 - did not proceed to an individualized assessment of whether the

FSA's non-retroactive changes, coupled with the defendant's

individualized circumstances, warranted compassionate release.

Indeed, the court did not consider the defendant's individualized

circumstances at all. Nor did the court undertake a section

3553(a) analysis. See Texeira-Nieves,

(explaining

that appellate review is facilitated when district court proceeds

to review sentencing factors). On this record, we cannot affirm

the district court's decision as a proper exercise of its

discretion.

III

We need go no further. As a general matter, a district

court, reviewing a prisoner-initiated motion for compassionate

release in the absence of an applicable policy statement, may

consider any complex of circumstances raised by a defendant as

forming an extraordinary and compelling reason warranting relief.

It follows that a district court adjudicating such a motion may

consider the FSA's non-retroactive amendments to the scope of the

mandatory minimum penalties under section 841(b)(1)(A) on a case-

by-case basis grounded in a defendant's individualized

circumstances to find an extraordinary and compelling reason

warranting compassionate release. The court below erred by

concluding, as a matter of law, that the FSA's prospective changes

to the mandatory minimum penalties could not — even when considered

- 33 - on an individualized basis — support a reason for compassionate

release. Accordingly, the judgment must be vacated and the matter

remanded for further proceedings consistent with this opinion. We

take no view as to the outcome of those further proceedings.

Vacated and Remanded.

— Concurring Opinion Follows —

- 34 - BARRON, Circuit Judge, concurring. Judge Selya

convincingly explains why, under the First Step Act, a prospective

legislative change that reduces the length of a mandatory minimum

sentence for an offense can give rise -- in certain cases -- to an

"extraordinary and compelling reason" to reduce a sentence that

was imposed for that same offense prior to that change. See

(c)(1)(A)(i). I thus join his excellent opinion in

full. I write separately only to give some texture to that

conclusion by referencing a case that this Court encountered before

the First Step Act had been enacted.

The case involved Wendell Rivera-Ruperto's ("Rivera's")

unsuccessful federal constitutional challenge to the mandatory

prison sentence that he received for having been convicted of six

counts of violating

(c).10 See United States v.

Rivera-Ruperto (Rivera-Ruperto I),

(2017); United

States v. Rivera-Ruperto (Rivera-Ruperto II),

(1st Cir.

2017); United States v. Rivera-Ruperto (Rivera-Ruperto III),

(1st Cir. 2018) (denial of petition for rehearing en banc).

That mandatory sentence was for 130 years of imprisonment, Rivera-

Ruperto II,

, and, as such, "could not have been

harsher save for a sentence of death," Rivera-Ruperto III,

(Barron, J., concurring in the denial of rehearing en

10 Rivera raised other issues on appeal that are not relevant here.

- 35 - banc, joined by all then-active First Circuit judges and Judge

Lipez). Yet, if Rivera were sentenced today for those same

offenses, the mandatory prison term to which he would be subject

would be a century shorter. And, that is because of an amendment

to § 924(c) that Congress made in the First Step Act itself when

it also expanded in that same statute the circumstances in which

a reduction to a previously imposed sentence could be sought for

an "extraordinary and compelling reason." See First Step Act of

2018,

Stat. 5194.

To understand how the First Step Act's amendment to

§ 924(c) would bring about such a stark sentencing differential,

it helps to wind back the clock almost a decade to when Rivera was

sentenced for his § 924(c) convictions. Then, as now, § 924(c)

made it a crime for an individual to "use[] or carr[y] a firearm"

"during and in relation to any crime of violence or drug

trafficking crime" or to "possess[] a firearm" "in furtherance of

any such crime."

(c)(1)(A). And then, as now, the

mandatory minimum sentence for an individual convicted of that

offense was a term of imprisonment of at least five years.11

§ 924(c)(1)(A)(i).

11 The mandatory minimum increases if additional facts relating to the the individual's use of the firearm are found by a jury. See id. § 924(c)(1)(A)(ii)-(iii).

- 36 - In addition, the statute provided then for a twenty-

five-year mandatory minimum sentence for any "second or subsequent

conviction" for violating § 924(c). Id. § 924(c)(1)(C). And

further, the statute provided at that time that each mandatory

twenty-five-year prison sentence was to be served consecutively,

such that the mandatory prison sentences that the statute required

to be imposed would have to be stacked one upon another, resulting

in mandatory prison sentences in some cases that could easily

exceed the span of any defendant's life.

Moreover, at the time of Rivera's convictions and

sentence, the Supreme Court had construed § 924(c) (in a sharply

divided ruling over a strong dissent) in a way that made it even

harsher than I have just described it to be. The Supreme Court

had done so by construing the "second or subsequent conviction"

phrase to encompass a follow-on § 924(c) conviction even if none

of the defendant's preceding § 924(c) convictions had become final

and even if each of those earlier convictions had been for a

violation of § 924(c) that had occurred before the defendant had

been convicted under § 924(c) even once. See Deal v. United

States,

(1993).

In consequence, Rivera was subject not only to a

mandatory prison sentence of five years for his first § 924(c)

conviction but also to a mandatory prison sentence of twenty-five

years for each of his five additional § 924(c) convictions, with

- 37 - each of those twenty-five-year mandatory prison sentences to be

served consecutively. And that was so, notwithstanding that

Rivera -- who had no prior criminal history of any kind -- had

committed each of his six § 924(c) violations roughly

contemporaneously and before he had been convicted of committing

any of them.

Thus, although Rivera had not been convicted of

committing any crime prior to being convicted under § 924(c), and

although he was in no sense a § 924(c) recidivist -- as he had

committed no such offense after already having been punished for

violating that same statute -- he received a mandatory, greater-

than-life prison sentence for his § 924(c) convictions. In other

words, solely in consequence of the disputed way in which § 924(c)

had been construed in Deal, he was subjected to a mandatory prison

sentence that was just as harsh as the mandatory one that he would

have been subjected to if he had been a true § 924(c) recidivist

five times over or if he had an extensive criminal history before

he had committed the first such violation. See Rivera-Ruperto

III,

-26 & n.2.

Recognizing how harsh Deal's construction of § 924(c)

was, Congress chose in the First Step Act -- while also expanding

the ability of those serving lengthy prison sentences to seek

reductions of them for an "extraordinary and compelling

reason" -- to supersede that construction. Specifically, Congress

- 38 - amended § 924(c) so that, going forward, the twenty-five-year

mandatory minimum sentence is triggered only by a "violation of

[§ 924(c)] that occurs after a prior conviction under [§ 924(c)]

has become final." See First Step Act of 2018, Pub. L. No. 115-

391,

.

The result is that, by virtue of the First Step Act, if

Rivera were sentenced today for his same § 924(c) convictions,

none of them would subject him to the twenty-five-year mandatory

minimum. And so, he would not be subject today to a mandatory

prison sentence for all of them that would exceed his natural life.

True, Congress did not choose in the First Step Act to

make this amendment to § 924(c)'s stacking regime retroactive.

See

(b),

. But, for reasons

that Judge Selya's opinion well explains, it does not follow that

Congress in passing the First Step Act wished to foreclose every

individualized request that a prisoner sentenced under the prior

stacking regime might bring pursuant to the expanded mechanism for

seeking sentence reductions that Congress chose to make newly

available in that same statute. In fact, a case like Rivera's, in

my view, makes vivid the reason to conclude that such a request

could, in some cases, be understood to be asserting a reason for

a sentence reduction of just the "extraordinary and compelling"

kind that Congress contemplated in expanding that mechanism.

- 39 - I say that only partly because virtually the entirety of

mandatory, 100-years-plus prison term for Rivera arose from a

construction of § 924(c) that was itself highly disputed at the

time as to whether it reflected Congress's intent, see Deal,

(Stevens, J., dissenting), and that Congress has now

superseded in the First Step Act itself. I say that also because

the stacking of multiple mandatory twenty-five-year-long prison

sentences to which he was subject -- notwithstanding his lack of

any criminal history -- resulted from a quirk in our Circuit's

case law that precluded him from benefiting from the rule that

offenses committed in a single course of conduct must be treated

as part of a single conspiracy. See Rivera-Ruperto III,

.

In fact, it was with these highly unusual features of

Rivera's case in mind that we observed in considering his

constitutional challenge to his no-hope sentence that "it is not

realistic to posit that the Congress that enacted § 924(c) made a

focused judgment that [every] defendant[] [convicted on multiple

counts of § 924(c)] should receive a mandatory life-without-parole

sentence" through the operation of the statute's stacking

provisions. Rivera-Ruperto III,

. It seems to me

that the same reasons that led us to conclude that "it is pure

fiction to imagine that Congress . . . was focused on", or even

aware of, every possible offense combination that could trigger

- 40 - the stacking requirement under the old Deal-inflected version of

§ 924(c), id. at 42, make it equally fictitious to conclude that

Congress, by not making the First Step Act amendments to § 924(c)

retroactive, meant categorically to foreclose any individualized

reconsideration of a prior sentence imposed under the old § 924(c)

stacking regime because Congress must have been of the view that

all those prior sentences were appropriate.

Congress's choice in amending § 924(c)'s stacking regime

to not reopen in categorical fashion all the core cases in which,

under Deal v. United States, it was understood to apply, see 508

U.S. at 130 (considering a case in which "six bank robberies on

six different dates" were tried all in the same case), does not

indicate to me that Congress meant to deem any challenge to the

continued incarceration of such an offender for more than a century

beyond the time that Congress now concludes is warranted an

"ordinary" or "less than compelling" one. And, a case such as

Rivera's, in which a mandatory sentence of such extreme length was

imposed under the prior stacking regime for a confluence of reasons

that no legislator could have had in mind when § 924(c) was

originally enacted, illustrates why.

I recognize that some courts have held that a

nonretroactive change in law cannot be deemed an "extraordinary

and compelling" reason for reducing a sentence without thereby

making such a legal change retroactive. See, e.g., United States

- 41 - v. Jarvis,

(6th Cir. 2021), cert. denied,

(2022) ("That the First Step Act's amendments could amount

to an extraordinary and compelling reason . . . fails to grapple

with congressional design, expressed through the text of the

statute, in which Congress chose not to make these sentencing

amendments retroactive."); United States v. Thacker,

(7th Cir. 2021) ("[T]he discretionary authority conferred

by § 3582(c)(1)(A) only goes so far. It cannot be used to effect

a sentencing reduction at odds with Congress's express

determination . . . that the amendment to § 924(c)'s sentencing

structure apply only prospectively."). But, in Kimbrough v. United

States,

(2007), the Supreme Court upheld a sentencing

judge's authority to give weight to a nonretroactive legal change

in determining a sentence's length because of the light that the

change could shed on the need for punishment,

. And,

even some of the very same courts that have construed the First

Step Act's "extraordinary and compelling reason" phrase narrowly

have themselves recognized that a related federal statute,

(a), permits a sentencing judge to give such a

nonretroactive change in the law weight in determining the proper

length of a sentence. See, e.g., United States v. Andrews,

(3d Cir. 2021) ("[T]he current sentencing landscape

may be a legitimate consideration for courts at the next step of

the analysis when they weigh the § 3553(a) factors."); Thacker, 4

- 42 - F.4th at 576 ("Congress's changes to the statutory sentencing

scheme in § 924(c) might factor into a district court's

individualized determination of whether the § 3553(a) factors

weigh[] in favor of . . . early release."). It is thus difficult

for me to see how a concern about respecting Congress's choice to

make a statutory change nonretroactive has force here, given that

I fail to see how a court may be thought to subvert congressional

intent by considering nonretroactive changes to the law at the

"extraordinary and compelling" stage of the analysis but not while

weighing the § 3553(a) factors.

I also realize that some courts have concluded -- for

reasons of statutory text -- that because a nonretroactive change

in the law is a relatively humdrum occurrence, such a change cannot

supply an "extraordinary and compelling reason" to reduce a

sentence under the First Step Act. See, e.g., United States v.

Crandall, No. 20-3611,

, at *3 (8th Cir. Feb. 9,

2022) ("Congress from time to time prospectively increases or

decreases existing criminal penalties, so that circumstance may

not be “extraordinary” as an empirical matter."); Thacker,

("[T]here is nothing 'extraordinary' about leaving

untouched the exact penalties that Congress prescribed and that a

district court imposed for particular violations of a statute.").

But, the premise of our holding is not that a nonretroactive legal

change in and of itself can provide the "extraordinary and

- 43 - compelling reason" to reduce the sentence. It is that there may

be an "extraordinary and compelling reason" to reduce the sentence

when a particular statutory change is considered in the context of

the defendant's individualized circumstances. In my view, one

need only have a case like Rivera's in mind to recognize the

soundness -- textually and otherwise -- of that premise.

- 44 -