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, Pub. L. No. 115-391, 132 Stat. 5194 (2018), which, among other things, made a nonretroactive change to the penalties for violating 18 U.S.C. § 924(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, 12 F.4th 255 (3d Cir. 2021), prohibits the change to § 924(c) from being a consideration when determining eligibility for compassionate release.

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 length of time prisoners served before being released, Peugh v. United States, 569 U.S. 530, 535 (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”). Pub. L. No. 98-473, § 211, 98 Stat. 1837, 1987 (codified as amended at 18 U.S.C. § 3551 et seq. and 28 U.S.C. §§ 991-998). 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[.]” 28 U.S.C. § 991(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 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[.]” Id.

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

reduction” and the reduction is consistent with both the Commission’s policy statements and the sentencing factors set forth in 18 U.S.C. § 3553(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, 86 F.4th 532, 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. Id.

Congress did not define the phrase “extraordinary and compelling reasons” in the compassionate release statute. Instead, it instructed the Commission to define it. ^[28] U.S.C. § 994(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.” Id.

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; 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. Pub. L. No. 115-391, §§ 401, 603(b), 132 Stat. 5194, 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. 88 Fed. Reg. ^[28],254, 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 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 v. Andrews, 12 F.4th 255 (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. 88 Fed. Reg. ^[28],254. 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 Id. at 28,258.

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 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 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- 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.]” Id. at 60-61. 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.

Id.

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 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 18 U.S.C. § 1951(a), two counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and two counts of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(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, 236 F. App’x 835, 844 (3d Cir. 2007). He did not appeal his sentence. Id. at 838. 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 § 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.

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] 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 18 U.S.C. § 3582(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.)

Manual abrogates this Court’s decision in United States v. Andrews, 12 F.4th 255, 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.)

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 18 U.S.C. § 3582(c)(1)(A)(i). Id. 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. Id.

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.” Id. at 259. 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. Id. at 260. 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.

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

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, 4 F.4th 569, 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.” Id. at 261.

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 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, 567 U.S. 260, 280 (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.’” Id. (quoting United States v. Wills, 997 F.3d 685, 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.’” Id. (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (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].” Id. (citing United States v. Jarvis, 999 F.3d 442, 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 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, 245 F.3d 294, 300-01 (3d Cir. 2001). “A post-sentencing amendment to a 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.” Id. at 303. “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.” Id.

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 consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive changes.” 16 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, 617 F.3d 252, 267 (3d Cir. 2010) (explaining the substantive-versus-clarifying test and citing to § 1B1.11(b)(2)); United States v. Spinello, 265 F.3d 150, 160 (3d Cir. 2001) (same); United States v. Marmolejos, 140 F.3d 488, 490-91 (3d Cir. 1998) (same).

said in a similar sentencing reduction context, “we see no need to force [the appellant] to take this additional step.” United States v. Marcello, 13 F.3d 752, 756 n.3 (3d Cir. 1994); see also United States v. Jones, 567 F.3d 712, 719 (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., 877 F.3d 136, 147 (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.

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., 52 F.4th 121, 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., 142 F.3d 151, 159 (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.” Id. 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, 876 F.3d 424, 436 n.5 (3d Cir. 2017), or when “the issue’s resolution is of public importance[,]” Loretangeli v. Critelli, 853 F.2d 186, 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 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] 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).

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, “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.” 18 U.S.C. § 3582(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 28 U.S.C. § 994(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 U.S. 416, 425 (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.” 597 U.S. 481, 495 (2022). We thus do not gainsay that the Commission’s policy statements are generally binding on us. United States v. Berberena, 694 F.3d 514, 522 (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, 520 U.S. 751, 757 (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.” 28 U.S.C. § 994(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, 38 F.4th 341, 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, 144 S. Ct. 2244, 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 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. Pub. L. No. 115-391, § 403(b), 132 Stat. 5194, 5222. And, in Andrews, we held that it would be inconsistent “with [the] pertinent provisions of [the First Step Act],” 28 U.S.C. § 994(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 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, 520 U.S. at 757.

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] 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] 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, 108 F.4th 275, 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.”).

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 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 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.’” 144 S. Ct. 2244, 2263, 2265 (2024) (citing Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (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, 694 F.3d 514, 527 (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., 519 U.S. 337, 340 (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 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, 934 F.3d 255, 259 n.1 (3d Cir. 2019) (en banc) (“[The] use of words like ‘suggest’ or ‘implies,’ when viewed 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.