In a brief filed on Thursday, U.S. Solicitor General D. John Sauer and his team urged the nation's highest court to clarify those provisions of the First Step Act and affirm the Third Circuit's denial of sentence reductions for Pennsylvania armed robbers Daniel Rutherford and Johnnie M. Carter.
"Had Congress wanted to open the door to sentence reductions based on disagreements with retroactivity law — including the [First Step Act's] express judgments about retroactivity — it surely would have said so," the government said.
Carter and Rutherford, who were convicted of separate crimes, had each argued for sentence reductions by pointing to the First Step Act. The act reduced sentencing for firearm offenses such as theirs, and its passage following their convictions constitutes an "extraordinary and compelling" reason for a reduction in their penalties, they said.
The government did not agree with this assertion.
"The words 'extraordinary and compelling' are words of limitation, identifying a small class of truly exceptional cases that call out for relief. They are not an empty vessel into which any consideration may be poured — no matter how much it might undermine Congress' directives about sentence finality," the brief said.
"Congress lessened the penalties for Section 924(c) offenses, but only where 'a sentence for the offense has not been imposed,'" the government said, quoting the act as it relates to firearm offenses, like the ones at issue.
Sharing the government's interpretation, the Third Circuit joined the Fifth, Sixth, Seventh, Eighth and D.C. circuits in forbidding sentence reductions on "extraordinary and compelling" grounds based even partially on retroactive application of these sentencing changes, the brief explained.
Meanwhile, the First, Fourth, Ninth and Tenth circuits say the fact a defendant could have gotten a considerably lower sentence today can be a part of a court's multifactor analysis of whether "extraordinary and compelling reasons" could justify a sentence reduction and an early release on compassionate grounds.
The 2018 First Step Act allowed prisoners to ask for compassionate release themselves, instead of leaving it up to the Bureau of Prisons, and it reduced the mandatory minimum sentences for many drug- and firearm-related offenses. Certain provisions of the act clearly did apply retroactively, such as crack-cocaine sentence changes, the government said.
However, conflicts arose over whether prisoners serving more time than they would have, if sentenced after the law's enactment, could use the legislation to seek compassionate release, according to court filings.
Appeals cropped up and in 2023, when the United States Sentencing Commission, which establishes sentencing policies and practices for the federal courts, weighed in after regaining a quorum, which it had lacked for years. In a split decision after two months of deliberation, the commission voted to allow retroactive sentencing reductions in more cases, its website said.
As part of that decision, the commission said if a defendant served at least 10 years in prison as part of an "unusually long sentence," the court could consider — as an "extraordinary and compelling reason" for reduction — a change in law that creates "gross disparity" between the sentence given, and the sentence that would have been received for the offense at the time of the reduction request, according to the brief.
Attorneys for the government argued the commission did not define "unusually long" or "gross disparity." They added that "history does not support reliance on nonretroactive changes in law, as opposed to a prisoner's personal circumstances, to grant a sentence reduction," the brief said.
According to court documents, the Sentencing Reform Act of 1984 established the U.S. Sentencing Commission and gave it the job of coming up with sentencing policies, including defining "extraordinary and compelling reasons" for early, compassionate release. Such circumstances have historically included a prisoner's age or illness, or having a child whose primary caregiver dies, the government said.
"The Sentencing Commission has no authority to disregard the plain meaning of the words 'extraordinary and compelling,'" the brief said. Plus, "Congress did not vest the commission with authority to overwrite Congress' own policy decisions," the government said.
The Pennsylvania armed robbers and their advocates see things differently and want their sentences reduced as they might have been in other circuits.
Carter was convicted in relation to three bank robberies committed in 2007 and was sentenced to 70 years in prison. Fifty-seven of those years comprised the consecutive mandatory minimums that would have been reduced to 21 under current law, his brief to the high court said.
Rutherford was convicted of committing two armed robberies in Philadelphia in 2003. He was sentenced to more than 42 years in prison, with 32 of those due to the mandatory minimums then in place. Under the First Step Act, the minimums would have totaled only 14 years, according to his petition.
When it turned down Rutherford's First Step Act-based request for a reduced sentence, the Third Circuit said it was bound by the 2021 decision in United States v. Andrews
, which predated the commission guidance — yet after the guidance, it held Congress unambiguously didn't intend the First Step Act's reductions in sentencing to be retroactive, according to the brief.Carter was denied on the basis of the court's decision in Rutherford's case, the government explained.
The Third Circuit was correct in these decisions, the government said, urging the U.S. Supreme Court to follow suit.
"The court should reject the regime petitioners propose — under which district courts and the commission could override Congress' decisions — and affirm the judgments below," the government said.
Representatives for the parties did not immediately respond to requests for comments on Monday.
Rutherford is represented by David C. Frederick, Justin B. Berg, Alex P. Trieger and Derek C. Reinbold of Kellogg Hanson Todd Figel & Frederick PLLC.
Carter is represented by Steven Tegrar, James Stramm, Ned Terrace, Sarah Brody-Bizar, Laura Hallas, David A. O'Neil and Suzanne Zakaria of Debevoise & Plimpton LLP.
The government is represented by D. John Sauer, Matthew R. Galeotti and Andrew C. Noll of the U.S. Department of Justice.
The cases are Carter v. United States and Rutherford v. United States, consolidated at case number 24-820, in the Supreme Court of the United States.
--Additional reporting by Matthew Santoni. Editing by Philip Shea.
For a reprint of this article, please contact reprints@law360.com.
