Rutherford v. United States

1
(Slip Opinion) OCTOBER TERM, 2025
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
RUTHERFORD v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 24–820. Argued November 12, 2025—Decided May 28, 2026*
Petitioner Daniel Rutherford was convicted of two counts of using and
carrying a firearm during a crime of violence, in violation of 18 U. S. C.
§924(c). Petitioner Johnnie Carter was convicted of three §924(c) vio-
lations. At the time each was sentenced, a defendant convicted of two
§924(c) counts was subject to a mandatory 25-year sentence for the
second offense that would be “stacked” upon (i.e., run consecutively to)
the first offense’s mandatory penalty. That sentencing scheme re-
sulted in a 32-year minimum sentence for Rutherford’s §924(c) viola-
tions and a 57-year minimum sentence for Carter’s violations. Years
later, Congress passed the First Step Act of 2018, which eliminated the
25-year stacking requirement for first-time offenders. Rutherford and
Carter do not qualify for the Act’s reduced penalties because the
amendment to §924(c) does not apply to defendants sentenced before
the Act. In separate proceedings below, however, Rutherford and
Carter each invoked the nonretroactive change to §924(c) as a basis for
a sentence reduction under §3582(c)(1)(A)(i). Section 3582(c)(1)(A)(i)
(commonly referred to as the “compassionate release” provision) allows
a court to reduce a prisoner’s term of imprisonment if the court finds,
after considering the §3553(a) factors, that “extraordinary and compel-
ling reasons warrant such a reduction” and that “such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.” The courts below held that the nonretroactive change
to §924(c) cannot serve as an “extraordinary and compelling” reason
——————
*Together with No. 24–860, Johnnie Markel Carter v. United States,
on certiorari to the same court.

2 RUTHERFORD v. UNITED STATES

Syllabus

for a reduced sentence. The Third Circuit explained in Rutherford’s
case that the Commission’s 2023 amended policy statement—which
adds “Unusually Long Sentence” to the list of “extraordinary and com-
pelling” reasons that might warrant compassionate release under cer-
tain circumstances, see USSG App. C, Amdt. 814—“conflicts with the
will of Congress” expressed in the statute and thus “cannot be consid-
ered in determining a prisoner’s eligibility for compassionate release.”
120 F. 4th 360, 376. The Court granted certiorari in these consolidated
cases to resolve the split of Circuit authority over whether the dispar-
ity created by a nonretroactive change to sentencing law is an “extraor-
dinary and compelling reaso[n]” that warrants compassionate release.
Held: When Congress declines to make a sentencing amendment retro-
active—as with the change to §924(c)—the resulting sentencing dis-
parity cannot serve as an “extraordinary and compelling” reason that
warrants a sentence reduction under 18 U. S. C. §3582(c)(1)(A)(i). Pp.
8–17.
(a) The plain text of §3582(c)(1)(A)(i) empowers a district court to
“reduce the term of imprisonment” if it finds, among other things, that
“extraordinary and compelling reasons warrant such a reduction.”
§3582(c)(1)(A)(i). Under the ordinary meaning of the terms, “extraor-
dinary and compelling” reasons are those that are especially unusual
and convincing.
The disparity created by Congress’s amendment to §924(c) does not
satisfy this definition. Far from “extraordinary,” nonretroactive
amendments to criminal penalties are the norm. Changes to statutory
penalties usually benefit only future offenders. When Congress devi-
ates from the default by extending the revised penalties to defendants
not yet sentenced, the “ordinary practice” is to “withhol[d] that change
from defendants already sentenced.” Dorsey v. United States, 567
U. S. 260, 280. Such a disparity is an unexceptional feature of a sys-
tem in which nonretroactivity is the default.
As for “compelling”: It is hard to see how Congress’s deliberate deci-
sion not to extend newly reduced penalties to those already sentenced
could be a convincing reason that warrants a sentence reduction. Con-
gress decided to apply the lower prison sentences to some violators of
§924(c) but not others, “reinforc[ing] its interest in finality and
avoid[ing] burdening district courts with additional litigation.” Hewitt
v. United States, 606 U. S. 419, 437–438 (plurality opinion). Treating
the disparity resulting from §924(c)’s amendment as a compelling rea-
son for reducing a sentence would undermine Congress’s choice to
leave the sentence intact. It would also fall well outside the heartland
of compassionate release, which has long been defined by a prisoner’s
personal circumstances, such as medical condition, age, and family cir-
cumstances. Pp. 8–11.

3 Cite as: 608 U. S. ___ (2026)
Syllabus
(b) Petitioners’ arguments to the contrary lack merit. While the
terms “extraordinary” and “compelling” leave room for judgment, they
are not so flexible as to encompass any consideration. Their meaning
depends on context: A reason is “extraordinary” and “compelling” only
if it is sufficiently unusual and convincing to “warrant” compassionate
release. The disparity resulting from Congress’s amendment to
§924(c) is neither “extraordinary” nor “compelling”—rather it tracks
ordinary sentencing practice and reflects Congress’s deliberate choice
to extend relief to some prisoners and not others.
Petitioners argue that because Congress empowered the Sentencing
Commission to describe the grounds for compassionate release with
only one express limitation—“[r]ehabilitation of the defendant alone
shall not be considered an extraordinary and compelling reason,” 28
U. S. C. §994(t)—Congress impliedly authorized the district court to
consider all other relevant information. That argument fails because
“ ‘[t]he force of any negative implication . . . depends on context.’ ”
NLRB v. SW General, Inc., 580 U. S. 288, 302 (quoting Marx v. General
Revenue Corp., 568 U. S. 371, 381). By addressing rehabilitation, Con-
gress did not impliedly bless all other considerations; instead, it sin-
gled out rehabilitation to break from the old sentencing and parole sys-
tem.
Petitioners also note that courts ordinarily enjoy broad discretion to
consider all relevant information when imposing or modifying a sen-
tence. But petitioners skip a step. Before determining the extent of a
reduction based on the §3553(a) factors, a court must first ensure that
a movant is part of the “limited class of prisoners” who are “eligibl[e]”
for such a reduction. Dillon v. United States, 560 U. S. 817, 825, 827.
Eligibility depends on whether the prisoner can offer “extraordinary
and compelling” reasons that “warrant” compassionate release, not on
the §3553(a) factors. This gatekeeping requirement imposes independ-
ent and ascertainable limits on access to compassionate release.
Concepcion v. United States, 597 U. S. 481, is not to the contrary.
That case involved sentence-modification proceedings under a differ-
ent provision of the Act, where eligibility for a sentencing reduction
was conceded and the only question was what information the court
could consider in modifying a sentence. Because the provision of the
Act at issue in Concepcion lacks any limiting language, we held that a
court could consider changes to the Guidelines, as well as intervening
facts, when calculating a new sentence under it. Id., at 500. Today’s
cases differ from Concepcion because they concern whether a prisoner
is eligible for compassionate release in the first place. And on that
score, Congress has “expressly cabined district courts’ discretion,” id.,
at 495, by prohibiting a reduction in sentence unless a court finds that
“extraordinary and compelling” reasons warrant it.

4 RUTHERFORD v. UNITED STATES
Syllabus
Finally, petitioners downplay the conflict between the Act and their
interpretation of §3582(c)(1)(A)(i). The Act reflects Congress’s choice
not to extend relief on a categorical basis, but on their approach, a dis-
trict court could treat the disparity between a pre- and post-Act sen-
tence as one of at least two considerations that, taken together, war-
rant compassionate release. The implications of petitioners’ argument
are sweeping. Under the same logic, could a judge who believes that a
mandatory minimum is unduly harsh treat the severity of the sentence
as an “extraordinary and compelling reason” for compassionate re-
lease? Petitioners declined to rule out this possibility. Yet “[i]t is the
legislature, not the Court, which is to define a crime, and ordain its
punishment.” United States v. Wiltberger, 5 Wheat. 76, 95. Treating
the severity of a mandatory penalty as a reason for compassionate re-
lease rejects Congress’s judgment that the punishment fits the crime.
Petitioners’ proposal—injecting other factors into the mix of extraordi-
nary and compelling reasons—does not solve the problem. Pp. 11–15.
(c) Petitioners’ contention that the Court’s interpretation of
§3582(c)(1)(A)(i) must yield to the Sentencing Commission’s 2023 pol-
icy statement misunderstands the Commission’s role. Congress em-
powered the Commission to “give meaning” to the compassionate re-
lease provision by identifying the circumstances that constitute
“extraordinary and compelling” reasons for release. Loper Bright En-
terprises v. Raimondo, 603 U. S. 369, 394. But the Commission’s policy
statements must be “consistent with” the governing statute, 28
U. S. C. §994(a), and courts have a duty to “independently interpret
the statute and effectuate the will of Congress,” 603 U. S., at 395. The
statutory text and structure make clear that Congress’s nonretroactive
change to §924(c)—considered by itself or in combination with other
factors—cannot make a prisoner eligible for compassionate release. To
the extent that the Commission’s policy statement counsels otherwise,
it is invalid. Pp. 15–16.
120 F. 4th 360, No. 24–860, affirmed.
B
ARRETT, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined.
S
OTOMAYOR, J., filed a dissenting opinion, in which KAGAN and JACKSON,
JJ., joined.

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
Nos. 24–820 and 24–860
DANIEL RUTHERFORD, PETITIONER
24–820 v.
UNITED STATES
JOHNNIE MARKEL CARTER, PETITIONER
24–860 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 28, 2026]
JUSTICE BARRETT delivered the opinion of the Court.
A prison sentence, once imposed, usually cannot be mod-
ified by the district court. 18 U. S. C. §3582(b). But Con-
gress has established several narrow exceptions to this
rule. One exception—commonly referred to as “compas-
sionate release”—permits the court to reduce a term of im-
prisonment if it finds, among other things, that “extraordi-
nary and compelling reasons warrant such a reduction.”
§3582(c)(1)(A)(i). We consider whether the sentencing dis-
parity created by Congress’s nonretroactive change to
§924(c)’s mandatory penalties can serve as an “extraordi-
nary and compelling reaso[n]” that “warrant[s]” a reduc-
tion. §3582(c)(1)(A)(i). We hold that it cannot.

2 RUTHERFORD v. UNITED STATES
Opinion of the Court
I
A
Daniel Rutherford, petitioner in one of these consolidated
cases, committed two separate robberies at gunpoint in
2003. A jury convicted him of several crimes, including two
counts of using and carrying a firearm during a crime of
violence, in violation of §924(c). At the time, a defendant
convicted of two §924(c) counts was subject to a mandatory
25-year sentence of imprisonment for the second offense
that would be “stacked” upon—that is, run consecutively
to—the first offense’s mandatory penalty (which, for Ruth-
erford, was 7 years). See Deal v. United States, 508 U. S.
129, 132–137 (1993). Rutherford’s two §924(c) counts thus
earned him a 32-year minimum sentence, resulting in a to-
tal sentence of over 42 years of imprisonment.
Johnnie Carter, petitioner in the other case, received an
even longer mandatory minimum under §924(c). In 2007,
Carter participated in a string of armed bank robberies.
Among other offenses, he was convicted of three §924(c)
counts. Carter was sentenced to 70 years of imprison-
ment—57 of which came from his stacked §924(c) convic-
tions.
Years after Rutherford and Carter were each sentenced,
Congress passed the First Step Act of 2018, 132 Stat. 5194,
“a landmark piece of legislation that changed the federal
criminal-sentencing system in numerous respects,” Hewitt
v. United States, 606 U. S. 419, 424 (2025). Among the
changes was the elimination of §924(c)’s 25-year stacking
requirement for first-time offenders: A 25-year consecutive
sentence is now required only for a “‘violation . . . that oc-
curs after a prior conviction under this subsection has be-
come final.’” §403(a), 132 Stat. 5222. This change would
have made a significant difference for both Rutherford and
Carter. Had either been sentenced today, his mandatory
minimum under §924(c) would have been much shorter: 14
years for Rutherford and 21 years for Carter.

3 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
Obviously, Rutherford and Carter—not to mention the
many other similarly situated prisoners—would like the
benefit of the Act’s amendment to §924(c). As a rule, how-
ever, changes to sentencing statutes apply only to offenses
committed after the statute’s effective date. See Hewitt,
606 U. S., at 424. The Act departs from this rule in a very
limited respect: Its more lenient penalties apply to offenses
committed before the statute’s enactment “if a sentence for
the offense has not been imposed as of such date of enact-
ment.” §403(b), 132 Stat. 5222. But for defendants sen-
tenced before the Act, the general rule of nonretroactivity
remains in place. See Hewitt, 606 U. S., at 427.
Rutherford and Carter acknowledge that they do not
qualify for the reduced penalties. Nonetheless, each has in-
voked the Act as a ground for compassionate release under
§3582(c)(1)(A)(i).
B
At this point, some background on the compassionate re-
lease provision is helpful. This provision, which was part
of the Sentencing Reform Act of 1984, allows a district court
to reduce a prison term “after considering the factors set
forth in section 3553(a) to the extent that they are applica-
ble” if the court finds that “extraordinary and compelling
reasons warrant such a reduction” and that “such a reduc-
tion is consistent with applicable policy statements issued
by the Sentencing Commission.” 18 U. S. C. §3582(c)(1)(A).
Congress did not specify what “extraordinary and compel-
ling” reasons might warrant compassionate release. It did,
however, authorize the Commission to promulgate policy
statements that “describe what should be considered ex-
traordinary and compelling reasons for sentence reduction,
including the criteria to be applied and a list of specific ex-
amples.” 28 U. S. C. §994(t). The Commission first issued
an applicable policy statement in 2006 and amended it the
following year to identify several “‘extraordinary and

4 RUTHERFORD v. UNITED STATES
Opinion of the Court
compelling’” reasons for compassionate release: “‘terminal
illness’”; “‘permanent physical or medical condition’”; “‘de-
teriorating physical or mental health because of the aging
process’”; “‘death or incapacitation of the defendant’s only
family member capable of caring for the defendant’s minor
child or minor children’”; and a catchall category for
“ ‘other’” reasons not specifically enumerated, “‘[a]s deter-
mined by the Director of the Bureau of Prisons.’” United
States Sentencing Commission, Guidelines Manual Supp.
to App. C, Amdt. 698 (Nov. 2011) (USSG). In 2016, the
Commission streamlined the statement to recognize four
categories of reasons: “‘Medical Condition of the Defend-
ant,’” “‘Age of the Defendant,’” “‘Family Circumstances,’”
and “‘Other Reasons.’” Id., Amdt. 799.
When Congress passed the First Step Act in 2018, it
amended the compassionate release provision. While it left
the “extraordinary and compelling” standard untouched, it
opened a new procedural route for seeking a reduction.
Originally, only the Bureau of Prisons could ask a district
court to reduce a prisoner’s sentence. The Act gives the
prisoner greater agency: He may request that the Bureau
file a motion on his behalf, and, if it declines or fails to do
so within 30 days, he may file a motion himself. 18 U. S. C.
§3582(c)(1)(A). The Act also obligates the Bureau to take
certain steps when a prisoner is diagnosed with a terminal
illness or is mentally or physically unable to file his own
motion. §§3582(d)(2)(A)–(B). For example, the Bureau
must inform “the defendant’s attorney, partner, and family
members” about the defendant’s condition and that they
can file a sentence-reduction request on his behalf. Ibid.
The Commission lost a quorum shortly after the Act went
into effect and did not update its policy statement to ad-
dress these changes. Most Circuits held that the existing
statement—which mentioned only motions filed by the Bu-
reau—did not apply to motions filed by prisoners. See
United States v. Andrews, 12 F. 4th 255, 259 (CA3 2021)

5 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
(collecting cases); but see United States v. Bryant, 996 F. 3d
1243, 1247–1248 (CA11 2021) (applying the policy state-
ment). So for this new class of motions, most courts inter-
preted the statute without input from the Commission.
They were soon forced into uncharted territory. Relevant
here, courts faced a surge of motions from prisoners who
invoked the Act’s nonretroactive sentencing amendments
as grounds for compassionate release. Most Courts of Ap-
peals held that a nonretroactive amendment to a manda-
tory minimum cannot serve as an “extraordinary and com-
pelling” reason for a reduced sentence.
1
A minority,
however, concluded that the disparity produced by such an
amendment can justify a reduced sentence—at least when
considered in combination with other factors.
2
The Commission eventually regained a quorum, entered
the fray, and sided with the minority. In 2023, it amended
its policy statement to add a new category to the list of “ex-
traordinary and compelling” reasons: “Unusually Long Sen-
tence.”
3
See USSG App. C, Amdt. 814. Under this category:
“ ‘If a defendant received an unusually long sentence
and has served at least 10 years of the term of impris-
onment, a change in the law (other than an amendment
to the Guidelines Manual that has not been made ret-
roactive) may be considered in determining whether
——————
1
See Andrews, 12 F. 4th, at 260–262; United States v. McMaryion,
2023 WL 4118015, *2 (CA5, June 22, 2023); United States v. Jarvis, 999
F. 3d 442, 443–444 (CA6 2021); United States v. Thacker, 4 F. 4th 569,
573–575 (CA7 2021); United States v. Crandall, 25 F. 4th 582, 583 (CA8
2022); United States v. Jenkins, 50 F. 4th 1185, 1197–1200 (CADC 2022).
2
See United States v. Ruvalcaba, 26 F. 4th 14, 24–28 (CA1 2022);
United States v. McCoy, 981 F. 3d 271, 284–288 (CA4 2020); United
States v. Chen, 48 F. 4th 1092, 1094–1101 (CA9 2022); United States v.
McGee, 992 F. 3d 1035, 1045–1048 (CA10 2021).
3
In addition, the Commission added the fact that a prisoner was a vic-
tim of abuse while in custody as an “extraordinary and compelling” rea-
son. See USSG App. C, Amdt. 814 (Nov. 2023). This change is not at
issue in today’s cases.

6 RUTHERFORD v. UNITED STATES
Opinion of the Court
the defendant presents an extraordinary and compel-
ling 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 de-
fendant’s individualized circumstances.’” Ibid.
Three Commissioners voted against the amendment and
accused the Commission of making “a seismic structural
change to our criminal justice system without congressional
authorization or directive.” United States Sentencing Com-
mission, Public Meeting Tr. 60 (Apr. 5, 2023).
C
Back to the cases at hand. After the First Step Act be-
came effective, Rutherford moved for compassionate re-
lease. He argued that “extraordinary and compelling” rea-
sons warrant a reduction because he had received an
“unusually long sentence under a statutory provision that
Congress has since found too punitive but has not made ret-
roactively applicable.” 2 App. in No. 23–1904 (CA3), p. 58.
In addition, he noted that he suffered from obesity and hy-
pertension, which rendered him more vulnerable to the
COVID–19 virus.
While Rutherford’s motion was pending, the Third Cir-
cuit held that the nonretroactive change to §924(c) cannot
serve as an “extraordinary and compelling” reason for com-
passionate release. See Andrews, 12 F. 4th, at 260–262.
The District Court then denied Rutherford’s motion, and
Rutherford appealed that ruling to the Third Circuit. While
his appeal was pending, the Commission amended its policy
statement, and Rutherford asked the Court of Appeals to
consider the effect of this statement in the first instance.
The Third Circuit affirmed the District Court’s denial of
Rutherford’s motion. See 120 F. 4th 360, 363 (2024). The
court acknowledged that Congress had authorized the Com-
mission to issue a policy statement fleshing out the

7 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
meaning of “‘extraordinary and compelling’” reasons under
§3582(c)(1)(A)(i). Id., at 375. But that statement, the court
said, cannot “go beyond what Congress intended.” Id., at
376. And as the Third Circuit had already explained in An-
drews, it makes no sense to “‘construe Congress’s nonretro-
activity directive as simultaneously creating an extraordi-
nary and compelling reason for early release.’” 120 F. 4th,
at 376 (quoting Andrews, 12 F. 4th, at 261). Because the
Commission’s amended policy statement “conflicts with the
will of Congress,” the court held, it “cannot be considered in
determining a prisoner’s eligibility for compassionate re-
lease.” 120 F. 4th, at 376.
Carter’s case is similar. After the Commission amended
its policy statement, he moved for a reduction under
§3582(c)(1)(A)(i), arguing that his sentence is “unusually
long” and that the Act created a “‘gross disparity’” between
his original sentence and the one he would receive under
the amended §924(c). 2 App. in No. 24–1115 (CA3),
pp. 206–207. He also pointed to his strong family ties, re-
habilitation, and good conduct while incarcerated as addi-
tional reasons for a reduction. Bound by Andrews, the Dis-
trict Court denied Carter’s motion, and Carter appealed.
While the appeal was pending, the Third Circuit decided
Rutherford’s case. Shortly thereafter, it summarily af-
firmed the denial of Carter’s motion. See 2024 WL 5339852,
*1 (Dec. 2, 2024).
The Circuits remain divided over whether the disparity
created by a nonretroactive change to sentencing law, like
the Act, can constitute an “extraordinary and compelling
reaso[n]” that “warrant[s]” compassionate release.
4
18
——————
4
Most Courts of Appeals that previously answered this question in the
negative have determined that they are not bound by the Sentencing
Commission’s contrary amendment to its policy statement. See 120
F. 4th 360, 378–380 (CA3 2024) (case below); United States v. Austin, 125
F. 4th 688, 692 (CA5 2025); United States v. Bricker, 135 F. 4th 427, 435

8 RUTHERFORD v. UNITED STATES
Opinion of the Court
U. S. C. §3582(c)(1)(A)(i). We granted certiorari in these
consolidated cases to resolve the split. 605 U. S. 1001
(2025).
II
Petitioners argue that the Third Circuit’s decisions de-
part from the plain text of §3582(c)(1)(A)(i) and ignore bind-
ing guidance from the Sentencing Commission. We disa-
gree. When Congress declines to make a sentencing
amendment retroactive, the fact that a preamendment sen-
tence is longer than it would have been postamendment is
not an “extraordinary and compelling reaso[n]” that “war-
rant[s]” a sentence reduction. 18 U. S. C. §3582(c)(1)(A)(i).
Insofar as the Commission’s amended policy statement
maintains otherwise, it conflicts with the statute.
A
The compassionate release provision empowers a district
court to “reduce the term of imprisonment” if it finds,
among other things, that “extraordinary and compelling
reasons warrant such a reduction.” Ibid. The term “ex-
traordinary” means “most unusual,” “far from common,” or
“having little or no precedent.” Webster’s Third New Inter-
national Dictionary 807 (1976); see 5 Oxford English Dic-
tionary 614 (2d ed. 1989) (“[o]ut of the usual or regular
course or order”). “Compelling,” meanwhile, means “tend-
ing to convince or convert by or as if by forcefulness of evi-
dence.” Webster’s Third New International Dictionary, at
463; see 3 Oxford English Dictionary, at 600 (“irresistible;
demanding attention, respect”). Putting these definitions
together, “extraordinary and compelling” reasons for
——————
(CA6 2025); United States v. Black, 131 F. 4th 542, 545–546 (CA7 2025);
United States v. Johnson, 2025 WL 1949738, *2 (CA8, July 16, 2025).
But see United States v. Wilson, 77 F. 4th 837, 841–842 (CADC 2023)
(reserving this question because the amendment had not yet gone into
effect).

9 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
compassionate release are those that are especially unusual
and convincing.
The disparity created by Congress’s amendment to
§924(c) does not satisfy this definition. Far from “extraor-
dinary,” nonretroactive amendments to criminal penalties
are the norm. “Ordinarily,” we have explained, “statutory
changes to federal penalties only benefit future offenders.”
Hewitt, 606 U. S., at 424; see 1 U. S. C. §109. Congress
sometimes deviates from the default, as it did in the Act, by
extending the revised penalties to defendants not yet sen-
tenced. Even then, some measure of prospectivity is par for
the course: The “ordinary practice” is to “withhol[d] that
change from defendants already sentenced.” Dorsey v.
United States, 567 U. S. 260, 280 (2012). And regardless of
whether the line is drawn at the offense or the sentence, a
nonretroactive penalty change necessarily creates a dispar-
ity between those who receive the benefit and those who do
not. See ibid. (“[D]isparities . . . reflec[t] a line-drawing ef-
fort” and “will exist whenever Congress enacts a new law
changing sentences”). Such a disparity is an unexceptional
feature of a system in which nonretroactivity is the default.
As for “compelling”: It is hard to see how Congress’s de-
liberate decision not to extend newly reduced penalties to
those already sentenced could be a convincing reason that
“warrant[s]” a reduction. 18 U. S. C. §3582(c)(1)(A)(i). As
we have explained, Congress decided to apply the lower
prison sentences to some violators of §924(c)—those for
whom a sentence had not yet been imposed—but not others.
§403(b), 132 Stat. 5222. In doing so, Congress “reinforced
its interest in finality and avoided burdening district courts
with additional litigation.” Hewitt, 606 U. S., at 437–438
(plurality opinion). Treating the disparity resulting from
§924(c)’s amendment as a compelling reason for reducing a
sentence would undermine Congress’s choice to leave the
sentence intact.

10 RUTHERFORD v. UNITED STATES
Opinion of the Court
It would also fall well outside the heartland of compas-
sionate release, which has long been defined by a prisoner’s
personal circumstances. After Congress enacted
§3582(c)(1)(A)(i), the Bureau of Prisons explained that the
standards for compassionate release mirrored those of a
prior sentence-reduction statute and that “[r]eleases have
been most often applied in cases where the inmate is termi-
nally ill.” 59 Fed. Reg. 1238 (1994); see 28 CFR §572.40(a)
(1984) (providing that the Bureau would move for a sen-
tence reduction under 18 U. S. C. §4205(g) (1982 ed.) “in
particularly meritorious or unusual circumstances,” such
as “if there is an extraordinary change in an inmate’s per-
sonal or family situation or if an inmate becomes severely
ill”). The Act’s heightened procedural requirements are
similarly tied to personal circumstances: The Bureau must
provide extra assistance to a movant diagnosed with a ter-
minal illness or who is physically or mentally unable to sub-
mit a request on his own. §3582(d)(2) (2018 ed.). And from
2007 until 2023, the Sentencing Commission highlighted
essentially three grounds for compassionate release:
(1) medical condition, (2) age, and (3) family circum-
stances.
5
See USSG §1B1.13, comment., n. 1 (Nov. 2021).
We need not decide whether there are reasons beyond
personal circumstances that could qualify as “extraordinary
and compelling.” Until very recently, no one thought that
——————
5
The Commission also recognized that “[o]ther [r]easons” could qual-
ify, “[a]s determined by the Director of the Bureau of Prisons.” USSG
§1B1.13, comment., n. 1. The Bureau is responsible for the housing and
care of prisoners, 18 U. S. C. §4042(a), so it is well positioned to identify
“other reasons” based on a prisoner’s personal circumstances. By con-
trast, it plays no role in the sentencing process and lacks expertise in
that area. See Fernandez v. United States, ___ U. S. ___, ___ (2026) (slip
op., at 12).

11 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
nonretroactive sentencing amendments were among them.
6
They are not.
B
Petitioners, echoed by the dissent, insist that our reading
artificially limits the text. The terms “extraordinary and
compelling,” they say, are “‘comprehensive and flexible,’”
requiring a “ ‘case-by-case’ inquiry into the ‘totality of the
circumstances.’” Brief for Petitioner Rutherford 15, 17; see
Brief for Petitioner Carter 41. And under this “ ‘flexible, all-
things-considered approach,’” a judge may consider the dis-
parity resulting from Congress’s amendment to §924(c).
Brief for Petitioner Rutherford 17; see post, at 7–8 (opinion
of S
OTOMAYOR, J.).
While the terms “extraordinary” and “compelling” leave
room for judgment, they are not so flexible as to encompass
any consideration. Their meaning depends on context: A
reason is “extraordinary” and “compelling” only if it is suf-
ficiently unusual and convincing to “warrant” compassion-
ate release. 18 U. S. C. §3582(c)(1)(A)(i); see Fernandez v.
United States, ___ U. S. ___, ___, and n. 4 (2026) (slip op., at
10, and n. 4). As we have explained, the disparity resulting
from Congress’s amendment to §924(c) tracks ordinary sen-
tencing practice and reflects Congress’s deliberate choice to
extend relief to some prisoners and not others. Thus, the
disparity is neither an “extraordinary” nor a “compelling”
reason that warrants a reduction in sentence.
——————
6
Petitioners argue otherwise, but the cases they cite do not involve
nonretroactive sentencing amendments. See United States v. Diaco, 457
F. Supp. 371, 372 (NJ 1978) (reducing a prisoner’s sentence under 18
U. S. C. §4205(g) (1982 ed.) after his codefendants received significantly
lower sentences); Setser v. United States, 566 U. S. 231, 242–243 (2012)
(suggesting that a district court could use §3582(c)(1)(A) (2018 ed.) to ad-
dress the unfairness resulting from state-court developments that pro-
duce an unusually long sentence). We need not decide whether compas-
sionate release is available for these kinds of postjudgment
developments.

12 RUTHERFORD v. UNITED STATES
Opinion of the Court
Both petitioners and the dissent note that when Congress
empowered the Sentencing Commission to describe the
grounds for compassionate release, it included only one ex-
press limitation: “Rehabilitation of the defendant alone
shall not be considered an extraordinary and compelling
reason.” 28 U. S. C. §994(t). By ruling out just one reason,
they argue, Congress impliedly authorized the district court
to consider all other relevant information. Post, at 11–12.
This argument fares no better. We have repeatedly em-
phasized that “‘[t]he force of any negative implication . . .
depends on context.’” NLRB v. SW General, Inc., 580 U. S.
288, 302 (2017) (quoting Marx v. General Revenue Corp.,
568 U. S. 371, 381 (2013)); see also A. Scalia & B. Garner,
Reading Law: The Interpretation of Legal Texts 107–111
(2012). A speaker’s choice to rule out one item does not al-
ways mean that the rest of the universe is on the table. Im-
agine that a dietitian cautions her patient, “Pasta alone is
not an acceptable dinner.” Though the patient might fer-
vently wish otherwise, this advice does not license any meal
besides standalone pasta. (Fried chicken with a side of fun-
nel cakes? A bowl of Lucky Charms?) Instead, the dietitian
surely had some reason—like the patient’s past eating hab-
its—to caution against this specific choice.
So too with §994(t). By addressing rehabilitation, Con-
gress did not impliedly bless all other considerations. In-
stead, it had a particular reason—namely, past sentencing
practice—to single out this factor. Before the Sentencing
Reform Act, “[b]oth indeterminate sentencing and parole
were based on concepts of the offender’s possible, indeed
probable, rehabilitation, a view that it was realistic to at-
tempt to rehabilitate the inmate and thereby to minimize
the risk that he would resume criminal activity upon his
return to society.” Mistretta v. United States, 488 U. S. 361,
363 (1989). Guided by this aim, the judge and parole officer
each made decisions based on “their own assessments of the
offender’s amenability to rehabilitation.” Ibid. When the

13 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
Sentencing Reform Act eliminated parole and instituted a
new sentencing regime, it “reject[ed] imprisonment as a
means of promoting rehabilitation.” Id., at 367; see 18
U. S. C. §3582(a) (“[I]mprisonment is not an appropriate
means of promoting correction and rehabilitation”). Ruling
out “rehabilitation alone” as a basis for compassionate re-
lease therefore underscores the break from the old system.
It suggests nothing about what other reasons might qualify
as “extraordinary and compelling.”
And in petitioners’ telling, the list is long. They empha-
size that when imposing or modifying a sentence, a district
court ordinarily enjoys “broad discretion to consider all rel-
evant information” unless prohibited by the Constitution or
by Congress. Concepcion v. United States, 597 U. S. 481,
491 (2022); see 18 U. S. C. §3661 (“No limitation shall be
placed on the information concerning the background, char-
acter, and conduct of a person . . . which a court . . . may
receive and consider for the purpose of imposing an appro-
priate sentence”). Section 3582(c)(1)(A) expressly recog-
nizes that discretion, they argue, by providing that a court
may grant relief “after considering the factors set forth in
section 3553(a) to the extent that they are applicable.”
Those factors include “the kinds of sentences available,”
“the kinds of sentence and the sentencing range established
for . . . the applicable category of offense,” and “the need to
avoid unwarranted sentence disparities.” §§3553(a)(3)–(4),
(6). A factor like the disparity caused by a nonretroactive
sentencing amendment, petitioners contend, fits right in.
See also post, at 10–11, 16–17.
Petitioners skip a step. Before determining the extent of
a reduction based on the §3553(a) factors, a court must first
ensure that a movant is part of the “limited class of prison-
ers” who are “eligibl[e]” for such a reduction. Dillon v.
United States, 560 U. S. 817, 825, 827 (2010). And whether
a prisoner is eligible depends on whether he can offer “ex-
traordinary and compelling” reasons that “warrant”

14 RUTHERFORD v. UNITED STATES
Opinion of the Court
compassionate release, not on the §3553(a) factors.
§3582(c)(1)(A)(i); see id., at 827. This gatekeeping require-
ment is not, as petitioners seem to believe, a free-for-all. It
is a distinct analytical step that imposes independent and
ascertainable limits on access to compassionate release.
Concepcion v. United States, 597 U. S. 481, is not to the
contrary. Concepcion involved sentence-modification pro-
ceedings under a different provision of the Act. See id., at
486–487. All agreed that the defendant was eligible for a
reduction under that provision; the only question was what
type of information the District Court could consider in
modifying his sentence. See id., at 488 (explaining that
“[t]he Government conceded [the defendant’s] eligibility for
relief ”). Because that provision lacks any limiting lan-
guage, we concluded that a court could consider changes to
the Guidelines, as well as intervening facts, when calculat-
ing a new sentence under it. Id., at 500. Today’s cases dif-
fer from Concepcion because they concern whether a pris-
oner is eligible for compassionate release in the first place.
And on that score, Congress has “expressly cabined district
courts’ discretion,” id., at 495, by prohibiting a reduction in
sentence unless a court finds that “extraordinary and com-
pelling” reasons warrant it.
Finally, petitioners downplay the conflict between the
Act and their interpretation of §3582(c)(1)(A)(i). True, Con-
gress chose not to reduce §924(c) penalties on a categorical
basis for already sentenced defendants. But petitioners’ ap-
proach is not categorical: The disparity between a pre- and
post-Act sentence would serve as just one of at least two
considerations that, taken together, warrant compassion-
ate release. And reducing a sentence based on an all-
things-considered judgment, petitioners argue, does not
contradict Congress’s decision to leave a class of offenders
ineligible for a sentencing reduction. See also post, at 15–
16.

15 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
The implications of this argument are sweeping. Indeed,
its logic extends well beyond nonretroactive sentencing
amendments to disagreement with the length of any pun-
ishment on the books. Take a judge who believes that a
mandatory minimum is unduly harsh. Could she treat the
severity of the sentence as an “extraordinary and compel-
ling reason” for compassionate release? Petitioners refused
to rule out this possibility at oral argument. Tr. of Oral Arg.
11–15, 44–49. Yet “[i]t is the legislature, not the Court,
which is to define a crime, and ordain its punishment.”
United States v. Wiltberger, 5 Wheat. 76, 95 (1820). Treat-
ing the severity of a mandatory penalty as a reason for com-
passionate release rejects Congress’s judgment that the
punishment fits the crime.
7
And petitioners’ proposal—in-
jecting other factors into the mix of extraordinary and com-
pelling reasons—does not solve the problem. The Sixth Cir-
cuit put it well: “[A]dding a legally impermissible ground to
three insufficient factual considerations does not entitle a
defendant to a sentence reduction.” United States v. Jarvis,
999 F. 3d 442, 444 (2021).
C
This brings us to the Sentencing Commission. Recall that
Congress authorized the Commission to promulgate policy
statements that “describe what should be considered ex-
traordinary and compelling reasons for sentence reduc-
tion,” 28 U. S. C. §994(t), and provided that any grant of
——————
7
The dissent tries to escape this dilemma by arguing that the severity
of a mandatory minimum is not a “relevant consideration” under
§3553(a). Post, at 18. But the dissent is conspicuously silent about why,
on its logic, a district court could not credit this fact as an “extraordinary
and compelling” reason why a prisoner is eligible for a reduction. If there
is no restriction on the “kind[s]” of reasons that qualify, post, at 8, then
the severity of a mandatory penalty should be fair game too. And
whether district courts will ever “routinely” rely on this consideration is
beside the point. Post, at 19. A district court is never free—even in an
individual case—to reject a punishment that Congress has required.

16 RUTHERFORD v. UNITED STATES
Opinion of the Court
compassionate release must be consistent with the Com-
mission’s policy statements, 18 U. S. C. §3582(c)(1)(A). Re-
call, too, that the Commission’s current policy statement al-
lows consideration of nonretroactive legal changes in
certain circumstances. Petitioners contend that our inter-
pretation of the statute must yield to the policy statement.
Petitioners misunderstand the Commission’s role. Con-
gress has empowered the Commission to “give meaning” to
the compassionate release provision by identifying the cir-
cumstances that constitute “extraordinary and compelling”
reasons for release. Loper Bright Enterprises v. Raimondo,
603 U. S. 369, 394 (2024). Even so, the Commission’s policy
statements must be “consistent with” the governing stat-
ute, 28 U. S. C. §994(a), and courts have a duty to “inde-
pendently interpret the statute and effectuate the will of
Congress,” 603 U. S., at 395. We are not bound to follow the
Commission’s guidance when it “exceed[s its] statutory au-
thority” by adopting a definition of a term that is incon-
sistent with the statute. Batterton v. Francis, 432 U. S.
416, 426 (1977). Put differently, the Commission’s inter-
pretation must land within the statutory goalposts, no mat-
ter how wide they might be. Cf. Koons v. United States, 584
U. S. 700, 707 (2018) (“[P]olicy statements cannot make a
defendant eligible when [the statute] makes him ineligi-
ble”).
We need not nail down the precise boundaries of the
phrase “extraordinary and compelling” to conclude that
“with regard to the particular dispute in [this] case,” the
statute’s language “has a plain and unambiguous mean-
ing.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997).
The statutory text and structure make clear that Congress’s
nonretroactive change to §924(c)—considered by itself or in
combination with other factors—cannot make a prisoner el-
igible for compassionate release. To the extent that it coun-
sels otherwise, the Commission’s policy statement is inva-
lid.

17 Cite as: 608 U. S. ____ (2026)
Opinion of the Court
***
Compassionate release is available only when a court
finds that “extraordinary and compelling reasons warrant”
a sentence reduction. 18 U. S. C. §3582(c)(1)(A)(i). The dis-
parity that results from Congress’s decision to leave a sen-
tence untouched cannot serve as one of those reasons. The
judgments of the Third Circuit are affirmed.
It is so ordered.

_________________
_________________
1 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
Nos. 24–820 and 24–860
DANIEL RUTHERFORD, PETITIONER
24–820 v.
UNITED STATES
JOHNNIE MARKEL CARTER, PETITIONER
24–860 v.
UNITED STATES
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 28, 2026]
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and
J
USTICE JACKSON join, dissenting.
Congress directed the United States Sentencing Commis-
sion, not this Court, to define what constitutes “extraordi-
nary and compelling reasons” for incarcerated individuals
to receive a sentence reduction under the compassionate-
release statute. In 2023, the Commission exercised its stat-
utory authority and issued a policy statement that permit-
ted district courts to consider sentencing disparities created
by changes in law. Such disparities, the Commission spec-
ified, should be considered rarely and only as part of an in-
quiry into whether the totality of the circumstances war-
rant a reduction in a person’s sentence.
Properly framed, the question presented by these cases is
whether the Commission acted unreasonably when it is-
sued that guidance. It did not. The Commission’s policy
statement is consistent with Congress’s commands and cen-
turies of legal practice in which courts look to the totality of
the circumstances when deciding whether to modify a

2 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
sentence. Because the Court concludes that the policy is
unlawful, and that courts may never consider nonretroac-
tive changes in law when deciding whether someone is eli-
gible for compassionate release, I respectfully dissent.
I
A
In 2003, when he was 25 years old, petitioner Daniel
Rutherford committed two armed robberies in which no one
was hurt and during which he took a watch and roughly
$1,300 worth of other jewelry and cash. He was convicted
of two violations of 18 U. S. C. §924(c)(1). At the time, those
violations together carried a mandatory minimum sentence
of 32 years, to run consecutive to his sentence for the rob-
beries. In total, Rutherford was sentenced to 42.5 years in
prison. As two judges noted in Rutherford’s direct appeal
of his conviction, that sentence “would be unthinkable in
many state systems.” 236 Fed. Appx. 835, 845 (CA3 2007)
(Ambro, J., joined by McKee, J., concurring).
In 2007, petitioner Johnnie Markel Carter and others
robbed several banks and stole about $250,000. As with
Rutherford’s robberies, no one fired a gun and no one was
hurt. Carter, who opted to go to trial, was convicted of three
violations of §924(c) and later sentenced to a term of 70
years in prison, 57 of which were from mandatory mini-
mums for the §924(c) violations. (Carter’s co-conspirators,
by contrast, took plea deals and received sentences ranging
from 10 to 23 years.) For Carter, who was 29 years old at
the time, the 70-year sentence was a de facto life sentence.
In the two decades since their convictions, both Ruther-
ford and Carter have turned their lives around. Rutherford
has completed over 50 educational courses and received
only two minor infractions in the past decade. He also se-
cured a job for after he is released, which would enable him
to help support his deceased sister’s five children.

3 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
Carter has, as the District Court put it, “become the kind
of model prisoner that our system tries, but too often fails,
to produce.” 711 F. Supp. 3d 428, 440 (ED Pa. 2024) (case
below). While in prison, Carter obtained a GED, completed
vocational training programs, took parenting classes to im-
prove his relationship with his adult children, maintained
a perfect disciplinary record for the last eight years, and
provided counseling and spiritual guidance to his fellow in-
mates.
B
In 2018, Congress passed the First Step Act and greatly
reduced the mandatory minimum for first-time §924(c) of-
fenders like Rutherford and Carter. Had the amendments
been in effect when Rutherford was sentenced, he would
have faced a 14-year mandatory minimum, less than half of
the 32-year mandatory minimum he received. Carter
would have been subject to a 21-year mandatory minimum,
36 years shorter than the 57-year mandatory minimum he
received. Because Congress did not make its changes ret-
roactive, Rutherford and Carter were not automatically el-
igible for sentence reductions based on those changes.
In the wake of the First Step Act, the United States Sen-
tencing Commission in 2023 adopted §1B1.13(b)(6), a policy
statement allowing courts, in limited circumstances, to con-
sider sentencing disparities created by nonretroactive
changes in law. Specifically, courts may grant relief based
on such a change in law only when four requirements are
met: (1) the defendant received an “unusually long sen-
tence”; (2) the defendant has served at least 10 years of that
sentence; (3) the disparity is “gross”; and (4) the district
court has taken “full consideration of the defendant’s indi-
vidualized circumstances.” USSG §1B1.13(b)(6) (Nov.
2025). Outside of those circumstances, “a change in the
law . . . shall not be considered” for purposes of determining

4 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
whether an “extraordinary and compelling reason exists” to
reduce the sentence. §1B1.13(c).
Invoking this policy statement, Rutherford and Carter
moved for compassionate release under 18 U. S. C.
§3582(c)(1)(A), which allows a district court to reduce an in-
dividual’s term of imprisonment “if it finds that” “extraor-
dinary and compelling reasons warrant such a reduction”
“after considering the factors set forth in section 3553(a) to
the extent they are applicable.” Rutherford and Carter ar-
gued that there are extraordinary and compelling reasons
to reduce their sentences based on a combination of their
remarkable personal circumstances as well as the fact that
they would have received much shorter sentences under to-
day’s law. The District Courts, however, held that the Com-
mission’s policy statement is invalid and denied petitioners
relief, and the Court of Appeals affirmed.
II
The question now before the Court is whether the Com-
mission permissibly exercised its delegated authority to
permit courts to consider sentencing disparities created by
nonretroactive changes in law, among other factors, in de-
ciding compassionate release motions. Answering that
question properly begins with Congress’s express delega-
tion of authority to “[t]he Commission” to define, in the first
instance, “what should be considered extraordinary and
compelling reasons for sentence reduction, including the
criteria to be applied and a list of specific examples”
through the “promulgati[on]” of “policy statements.” 28
U. S. C. §994(t). This provision could hardly be clearer that
the Commission has primary say over what qualifies as “ex-
traordinary and compelling reasons for sentence reduc-
tion.” Ibid.

5 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
A
Before 1984, federal judges had broad discretion when
sentencing defendants. Statutes provided minimums and
maximums for judges to work between, but within those
ranges, judges could determine for themselves what sen-
tence was appropriate. See Mistretta v. United States, 488
U. S. 361, 363–366 (1989). This system allowed judges to
consider individual defendants’ circumstances, but it also
led to “[s]erious disparities in sentences.” Id., at 365.
To address those disparities, Congress passed the Sen-
tencing Reform Act of 1984. The Act created the United
States Sentencing Commission, which Congress tasked
with studying federal sentencing and promulgating the
Sentencing Guidelines. 28 U. S. C. §994(a). The Guidelines
instruct judges on how to sentence defendants, including
how to account for different factual circumstances like the
defendant’s background, the seriousness of the defendant’s
conduct, and more, within the context of the considerations
set forth in 18 U. S. C. §3553(a). See 28 U. S. C. §§991(b),
994(f ), 994(m).
1
Congress gave the Commission an important policymak-
ing role in the compassionate-release context as well. Un-
der the statute, district courts can grant compassionate re-
lease and reduce a defendant’s sentence if they find that
there are “extraordinary and compelling reasons” for doing
so. 18 U. S. C. §3582(c)(1)(A)(i). Congress neither specified
what constitutes “extraordinary and compelling reasons”
for relief nor told district courts how to determine if such
reasons exist. It entrusted the Commission with those re-
sponsibilities instead, instructing district courts that any
grant of relief must be “consistent with applicable policy
——————
1
Although this Court later held that the Guidelines are not manda-
tory, see United States v. Booker, 543 U. S. 220, 245–246 (2005), they
remain an important part of federal sentencing, and district courts must
“begin all sentencing proceedings by correctly calculating the applicable
Guidelines range,” Gall v. United States, 552 U. S. 38, 49 (2007).

6 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
statements issued by the Sentencing Commission.”
§3582(c)(1)(A).
Congress tasked the Commission with issuing “general
policy statements regarding . . . the appropriate use of ”
compassionate release. 28 U. S. C. §994(a)(2)(C). Congress
also required the Commission to “describe what should be
considered extraordinary and compelling reasons for sen-
tence reduction, including the criteria to be applied and a
list of specific examples.” §994(t). The only limit Congress
imposed was that “[r]ehabilitation of the defendant alone
shall not be considered an extraordinary and compelling
reason.” Ibid.
B
Congress’s express delegation of authority to the Com-
mission limits this Court’s role in these cases. Congress of-
ten “authorize[s]” agencies “to exercise a degree of discre-
tion.” Loper Bright Enterprises v. Raimondo, 603 U. S. 369,
394 (2024). “For example, some statutes ‘expressly dele-
gat[e]’ to an agency the authority to give meaning to a par-
ticular statutory term.” Ibid. (quoting Batterton v. Francis,
432 U. S. 416, 425 (1977); emphasis deleted). “Others em-
power an agency to prescribe rules to ‘fill up the details’ of
a statutory scheme.” 603 U. S., at 395 (quoting Wayman v.
Southard, 10 Wheat. 1, 43 (1825)). Others still authorize
agencies to “regulate subject to the limits imposed by a term
or phrase that ‘leaves agencies with flexibility,’ . . . such as
‘appropriate’ or ‘reasonable.’” 603 U. S., at 395.
The Sentencing Reform Act does all those things. It in-
structs the Commission to issue guidance on the “appropri-
ate use of ” compassionate release. §994(a)(2)(C). It also
directs the Commission to give meaning to statutory terms
and fill up the details of the statutory scheme by “de-
scrib[ing] what should be considered extraordinary and
compelling reasons for sentence reduction,” identifying “the

7 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
criteria to be applied,” and providing “a list of specific ex-
amples.” §994(t).
When a statute expressly delegates authority to an
agency in this way, “[a] reviewing court is not free to set
aside” the agency’s actions “simply because it would have
interpreted the statute in a different manner.” Batterton,
432 U. S., at 425 (citing American Telephone & Telegraph
Co. v. United States, 299 U. S. 232, 235–237 (1936)). In-
stead, the Court must determine “ ‘the boundaries of [the
agency’s] delegated authority’” and “ensur[e] the agency
has engaged in ‘reasoned decisionmaking’ within those
boundaries.” Loper Bright, 603 U. S., at 395.
In short, under the statutory scheme that Congress cre-
ated, the Commission has the leading role of defining the
words “extraordinary and compelling” and thus setting the
scope of compassionate release. This Court, by contrast,
has the more modest role of ensuring that the Commission
does not act unreasonably.
III
With that division of labor in mind, the Court should have
upheld the Commission’s policy statement because the
Commission acted reasonably when it construed the terms
“extraordinary and compelling” to permit courts to consider
sentencing disparities caused by changes in law only in nar-
row circumstances and only as part of a holistic inquiry.
The Commission’s policy statement falls well within the ex-
pansive scope of the terms “extraordinary” and “compelling”
and is consistent with longstanding judicial practices,
which Congress did not alter here.
A
Start with the terms “extraordinary” and “compelling.”
Rather than imposing any bright-line limits on courts’ dis-
cretion to consider or weigh information, these terms invite
open-ended, fact- and context-specific inquiries into the

8 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
totality of the circumstances in individual cases to deter-
mine whether they rise to an unusual level. In other words,
whether a given set of reasons is “extraordinary and com-
pelling” as applied to a particular defendant’s case is a
question of degree, not of kind.
This Court’s cases interpreting similarly broad terms
across different contexts support this understanding. This
Court has opined that it is “impossible to anticipate and de-
fine every situation that might” qualify as involving “ex-
traordinary circumstances” that warrant federal interfer-
ence with an ongoing state criminal prosecution. Kugler v.
Helfant, 421 U. S. 117, 124–125 (1975). It has also “strug-
gle[d] in vain for any verbal formula that will supply a
ready touchstone” for distinguishing between “ordinary”
and “extraordinary” business expenses. Welch v. Helvering,
290 U. S. 111, 114–115 (1933).
Given the difficulty in defining with precision what
makes something “unusual,” this Court has held, in the sen-
tencing context, that such determinations fall within dis-
trict courts’ discretion. In Koon v. United States, 518 U. S.
81 (1996), the Court noted that a district court’s finding
that a factor at sentencing was “unusual or exceptional,”
such that a departure from the then-binding Sentencing
Guidelines was warranted, “embodies the traditional exer-
cise of discretion by a sentencing court.” Id., at 98. That
was because such a judgment reflected the district court’s
“ ‘special competence’” in evaluating “‘the fact-specific cir-
cumstances of the case’” that set it apart from others. Id.,
at 99. Similarly, when identifying cases that are “‘excep-
tional,’” the Court has explained that the inquiry must be
carried out by “[d]istrict courts . . . in the case-by-case exer-
cise of their discretion, considering the totality of the cir-
cumstances,” as “‘[t]here is no precise rule or formula for
making these determinations.’” Octane Fitness, LLC v.
ICON Health & Fitness, Inc., 572 U. S. 545, 554 (2014).

9 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
The Commission’s policy statement fits comfortably
within these capacious parameters. To start, the Com-
mission requires courts to take “full consideration of
the defendant’s individualized circumstances.” USSG
§1B1.13(b)(6). Individuals also must meet three other dis-
crete criteria, including that they are serving an “unusually
long” sentence and are facing a “gross” (i.e., unusually
large) sentencing disparity. Ibid. Even if all those criteria
are met, the Commission’s policy statement does not re-
quire courts to grant relief. A court can grant relief only if
it concludes that there are extraordinary and compelling
reasons after taking in all relevant information about a de-
fendant’s specific circumstances. Ibid.
The majority’s chief rejoinder is that nonretroactive
changes in law are “the norm.” Ante, at 9. True, but so too
are many of the other developments that the majority
agrees may support compassionate release. Everyone ages.
Everyone falls ill. Everyone loses family members and
loved ones. These realities are, unfortunately, also “the
norm.” Yet all agree that courts may properly consider a
defendant’s age, physical health, and family circumstances
when determining whether to grant compassionate release.
See ante, at 10. That concession reflects the basic reality
that facts which are ordinary in isolation can nonetheless
combine to form an extraordinary whole. Accordingly, the
key question is not whether any one reason for granting re-
lief is extraordinary or compelling on its own or in the ab-
stract, but whether a defendant’s circumstances, taken to-
gether, are so extraordinary and compelling as to warrant
reducing his sentence. Because answering that question
calls for a full assessment of the totality of the circum-
stances and all relevant information, the words “extraordi-
nary and compelling” do not themselves bar district courts
from ever considering nonretroactive changes in law.
Statistics also undercut the majority’s suggestion that
the Commission’s policy statement permits relief in

10 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
ordinary cases. Almost no one has received relief under the
Commission’s criteria. There are currently over 130,000 in-
dividuals serving sentences for federal convictions. United
States Sentencing Commission, QuickFacts: Individuals in
the Federal Bureau of Prisons (May 2025), https://
www.ussc.gov/sites/default/files/pdf/research-and-publications/
quick-facts/BOP_2025.pdf (archived at https://perma.cc/
K2QS-JCR5). In Fiscal Year 2024, defendants moved for
compassionate release 3,015 times nationwide. United
States Sentencing Commission, Compassionate Release
Data Report, FY 2024, Table 2 (Mar. 2025), https://www.
ussc.gov/sites/default/files/pdf/research-and-publications/
federal-sentencing-statistics/compassionate-release/FY24-
Compassionate-Release.pdf (archived at https://perma.cc/
FQE2-W57L). District courts granted relief under
§1B1.13(b)(6) for sentencing disparities caused by any
change in law (not just the changes to 18 U. S. C. §924(c))
just 98 times. Compassionate Release Data Report, Table
10. That small number suggests that §1B1.13(b)(6) has not
opened the floodgates to sentence reductions in unexcep-
tional cases.
B
Longstanding tradition, which Congress has not dis-
turbed, also supports the Commission’s policy statement.
For centuries, courts have enjoyed “broad discretion to
consider all relevant information at an initial sentencing
hearing, consistent with their responsibility to sentence the
whole person before them.” Concepcion v. United States,
597 U. S. 481, 491 (2022). “That discretion also carries for-
ward to later proceedings that may modify an original sen-
tence.” Ibid. At these proceedings, district courts can mod-
ify initial sentences for a variety of reasons, including
following a reversal on appeal or a retroactive change in
law. They may also consider whatever evidence they find
germane, including “intervening changes of law (such as

11 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
changes to the Sentencing Guidelines)” when deciding
whether to reduce a sentence. Id., at 486. Indeed, courts
may even consider nonretroactive changes to the Sentenc-
ing Guidelines. Id., at 499–500.
In light of this centuries-old tradition, if Congress wishes
to restrict what courts may consider at sentence-modifica-
tion proceedings, it must say so expressly. “The only limi-
tations on a court’s discretion to consider any relevant ma-
terials at an initial sentencing or in modifying that sentence
are those set forth by Congress in a statute or by the Con-
stitution.” Id., at 494. (All agree that the Constitution does
not expressly bar consideration of nonretroactive changes
in law.) When Congress is silent, this Court infers that
Congress did not intend to limit sentencing courts’ discre-
tion because “Congress is not shy about placing such limits
where it deems them appropriate” and has “‘shown that it
knows how to direct sentencing practices in express
terms.’” Id., at 494, 497 (quoting Kimbrough v. United
States, 552 U. S. 85, 103 (2007)).
A compassionate-release proceeding, in which a court de-
cides whether to reduce a defendant’s sentence (and if so,
by how much), is obviously a sentence-modification pro-
ceeding. Changes in law are also plainly relevant to a
court’s determination: The fact that a defendant would be
eligible for a significantly lower sentence for the same con-
duct today due to a change in law undoubtedly could inform
a court’s decision as to whether it should reduce his sen-
tence. Allowing courts to consider this information, then, is
consistent with courts’ traditional discretion.
Congress’s words here do not limit courts’ discretion as to
what they may consider. As explained, the words “extraor-
dinary and compelling” do not foreclose the approach the
Commission adopted in §1B1.13(b)(6). Congress’s delega-
tion to the Commission, moreover, contained just one ex-
press restriction: “Rehabilitation of the defendant alone
shall not be considered an extraordinary and compelling

12 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
reason.” 28 U. S. C. §994(t). That restriction, however,
does not bar courts from considering rehabilitation in con-
junction with other facts and evidence. Nor does it bar the
Commission from allowing courts to consider evidence of re-
habilitation alongside other facts, as the Commission has
done. See USSG §1B1.13(d). That specific restriction thus
poses no limit on what evidence courts may consider, and
in fact confirms that Congress knows how to limit compas-
sionate-release practices explicitly when it wants to.
The majority tries to downplay Congress’s treatment of
rehabilitation by analogizing to a conversation with a dieti-
tian. Ante, at 12. An instruction from a dietitian not to eat
pasta alone, the majority says, is not a “license” to eat un-
healthy food, so Congress’s express limit on rehabilitation,
the majority reasons, “did not impliedly bless all other con-
siderations” either. Ibid. This analogy misses the mark.
Unlike a judge who enters a sentence-modification proceed-
ing assuming she may consult all relevant information not
expressly excluded by law, see Kimbrough, 552 U. S., at
103, one does not go into a conversation with a dietitian un-
der the assumption that all foods not expressly prohibited
are on the table. Those concerned enough about their diets
to seek professional help likely do not need to be expressly
told that they should avoid “[f]ried chicken.” Ante, at 12.
Congress’s instructions to the Commission are much the
same. An instruction not to grant compassionate release
based on rehabilitation alone is not a prohibition against
considering any other type of evidence. Instead, courts may
consider all relevant information, as they have always done,
see Concepcion, 597 U. S., at 491–492, and the Commission
may authorize them to do so, as it did here.
IV
The majority disagrees with the Commission’s judgment,
forgetting that this Court “is not free to set aside” the Com-
mission’s policy statement “simply because it would have

13 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
interpreted the statute in a different manner,” Batterton,
432 U. S., at 425. The majority also plumbs history and the
First Step Act, searching for limits it cannot find in the com-
passionate-release statute itself. The majority comes up
empty handed.
A
First, the majority argues that considering nonretroac-
tive changes in law was, “[u]ntil very recently,” unprece-
dented. Ante, at 10. Far from it. Again, courts have for
centuries considered all relevant evidence at sentence-mod-
ification proceedings, and sentencing disparities like those
created by nonretroactive changes in law are relevant infor-
mation. See Concepcion, 597 U. S., at 490–492; supra, at
10–12.
The majority offers a counter-tradition, claiming that the
“the heartland of compassionate release” “has long been de-
fined by a prisoner’s personal circumstances,” such as his
physical health. Ante, at 10. It is certainly true that per-
sonal circumstances feature prominently in compassionate-
release proceedings. Even so, nothing in the statute’s text
confines courts to considering only personal circumstances,
and “[t]he only limitations on a court’s discretion to consider
any relevant materials” in a sentence-modification proceed-
ing “are those set forth by Congress in a statute or by the
Constitution.” Concepcion, 597 U. S., at 494. Without an
express limitation, the default remains: Courts may con-
sider facts beyond personal circumstances when deciding
whether to modify a defendant’s sentence.
Nor does historical practice supply a personal-circum-
stances limit. The parties have identified only two pub-
lished opinions in which district courts reduced a sentence
under the predecessor to the compassionate-release stat-
ute, which was in effect from 1976 to 1984. In one of those
two decisions, the District Court reduced a defendant’s sen-
tence not based on the personal circumstances of the

14 RUTHERFORD v. UNITED STATES
SOTOMAYOR, J., dissenting
defendant, but rather because of the disparity between the
defendant’s sentence and those of his codefendants. See
United States v. Diaco, 457 F. Supp. 371, 372, 376 (D NJ
1978); see also United States v. Banks, 428 F. Supp. 1088,
1089–1090 (ED Mich. 1977) (granting relief under prede-
cessor statute “upon careful review of the prisoner’s record,”
including evidence of rehabilitation).
Further, this Court has also acknowledged that, apart
from a defendant’s personal circumstances, compassionate
release might be appropriate to reduce a sentence to ac-
count for later legal developments. In fact, in Setser v.
United States, 566 U. S. 231 (2012), the Court addressed
whether federal courts have authority to order federal sen-
tences to run consecutively to anticipated state sentences
that have not yet been imposed. Id., at 233. After holding
such sentences to be permissible, Justice Scalia explained
that, when unexpected sentencing developments in state
court “produc[e] unfairness to the defendant,” the Sentenc-
ing Reform Act “provides a mechanism for relief ”: compas-
sionate release under §3582(c)(1)(A). Id., at 242–243.
These examples confirm that courts have historically con-
sidered postsentencing legal developments beyond a de-
fendant’s personal circumstances.
2
B
Without a foothold in the compassionate-release statute
or its history, the majority looks for one in the First Step
Act instead. According to the majority, Congress’s decision
not to make its changes to §924(c) retroactive means that it
intended to preclude consideration of those changes in all
cases as part of an individualized compassionate-release
——————
2
The majority points out that these examples “do not involve nonret-
roactive sentencing amendments.” Ante, at 11, n. 6. True, but the point
is that these past examples undercut any argument that historical prac-
tice confined “extraordinary and compelling” reasons to those involving
a defendant’s personal circumstances.

15 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
determination. That argument badly overreads the First
Step Act.
To start, Congress’s decision not to make its changes ret-
roactive simply means that Congress did not intend for
every person who committed §924(c) offenses prior to the
First Step Act’s passage to be automatically eligible for re-
lief. See ante, at 14 (“True, Congress chose not to reduce
§924(c) penalties on a categorical basis”). By making that
one choice, however, Congress did not also decide that sen-
tencing disparities created by those changes should never
be considered in deciding compassionate-release motions.
Indeed, Congress amended the compassionate-release stat-
ute in the First Step Act as well, so Congress easily could
have specified that its nonretroactive changes should not be
considered in compassionate-release determinations, just
as it previously limited consideration of rehabilitation. See
Concepcion, 597 U. S., at 494 (“Congress is not shy about”
limiting courts’ discretion). Yet Congress did not do so.
The majority would have a point if the Commission in-
structed courts to grant relief based solely on a nonretroac-
tive change in law; such an approach would amount to
granting relief on a categorical basis, which would be in ten-
sion with the categorical nonretroactive nature of Con-
gress’s amendments here. The Commission’s guidance,
however, permits consideration of changes in law only when
the disparity is “gross,” the sentence is “unusually long,”
and the defendant has served at least 10 years of his sen-
tence. §1B1.3(b)(6). It also requires courts to give “full con-
sideration of the defendant’s individualized circumstances”
while weighing any change in law. Ibid. That individual-
ized approach is consistent with Congress’s judgment that
prior §924(c) offenders are not automatically entitled to re-
lief, and in no way countermands Congress’s more general
decision not to make the First Step Act’s amendments ret-
roactive for each and every §924(c) offender.

16 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
Take petitioners as examples. Neither is seeking relief
based solely on Congress’s nonretroactive changes to
§924(c). Instead, they argue that they are entitled to a re-
duction because of the change in law in addition to their
remarkable changed personal circumstances. To be clear,
it may well be that neither Rutherford nor Carter would be
found by a district court to be entitled to compassionate re-
lease even after taking account of sentencing disparities.
Nevertheless, they are at least entitled to full consideration
of their cases in view of all relevant information. Affording
them that individualized analysis is fully consistent with
Congress’s judgment that a change in law does not auto-
matically entitle them to relief.
Even the Government agrees that individualized analy-
sis is consistent with Congress’s intent at least at one step
of the compassionate-release analysis. Once a defendant
establishes extraordinary and compelling reasons, the Gov-
ernment concedes that courts may consider a sentencing
disparity created by nonretroactive changes in law when
weighing the §3553(a) factors to decide how much to reduce
a defendant’s sentence. See Brief for United States 37; see
also 18 U. S. C. §3553(a)(6) (listing “the need to avoid un-
warranted sentence disparities” as one factor the court
“shall consider”). The majority maintains that considering
sentencing disparities is impermissible at the first step be-
cause it is a “distinct analytical step that imposes independ-
ent and ascertainable limits on access to compassionate re-
lease.” Ante, at 14.
This attempt at statutory surgery does not cure the prob-
lem. For one thing, §3582(c)(1)(A)(i) does not clearly man-
date that the two steps be hermetically sealed off from one
another. It specifies only that a court “may reduce [a] term
of imprisonment . . . , after considering the factors set forth
in section 3553(a) to the extent that they are applicable, if
it finds that . . . extraordinary and compelling reasons war-
rant such a reduction.” §3582(c)(1)(A)(i). This text in no

17 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
way dictates the majority’s precise, two-step sequencing in
which courts undertake two different inquiries while feign-
ing ignorance of the other. That text just as easily means
that courts should decide if there are extraordinary and
compelling reasons for relief “after considering” the
§3553(a) factors. Indeed, it is obvious, and conceded, that
at least some of the §3553(a) factors are salient at both
stages. For instance, one of the §3553(a) factors is “the his-
tory and characteristics of the defendant,” §3553(a)(1),
which includes the defendant’s personal circumstances. If
courts can consider personal circumstances at both steps of
the analysis, see ante, at 10 (describing “personal circum-
stances” as “the heartland of compassionate release”), it is
not clear why they cannot also consider sentencing dispari-
ties at both steps as well.
In any event, even assuming Congress intended to im-
pose a rigid, two-step process, it is hard to “see how a court
may be thought to subvert congressional intent by consid-
ering nonretroactive changes to the law at the ‘extraordi-
nary and compelling’ stage of the analysis but not while
weighing the §3553(a) factors.” United States v. Ruvalcaba,
26 F. 4th 14, 32 (CA1 2022) (Barron, J., concurring). “[I]f
Congress truly intended to bar district courts from consid-
ering [the First Step Act’s] changes to mandatory mini-
mums in the compassionate release context by making the
changes non-retroactive, then it is doubtful those changes
should be considered at all.” United States v. Chen, 48
F. 4th 1092, 1099 (CA9 2022). It also remains that, no mat-
ter how the Court may try to slice it, a compassionate-re-
lease proceeding is a “sentence-modification proceeding,”
and courts have long enjoyed broad discretion to consider
relevant information in such proceedings unless Congress
expressly says otherwise. Concepcion, 597 U. S., at 491.
Nothing in the First Step Act specifically addresses what
courts may consider when deciding whether a defendant is
eligible for a sentence reduction.

18 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
In the end, the majority is unable to explain why exactly
the Commission’s case-by-case approach is inconsistent
with Congress’s categorical nonretroactivity decision. See
ante, at 14–15. After acknowledging that it is “[t]rue” that
Congress merely made a judgment about categorical retro-
activity, the majority takes aim at something different alto-
gether: mandatory minimums. See ibid. In the majority’s
view, permitting holistic consideration of all relevant evi-
dence, including changes in law, would also permit judges
to grant relief based on their personal view that a manda-
tory-minimum sentence is too harsh. Ante, at 15.
Those fears are unfounded. A judge’s policy disagree-
ment with a statutory mandatory minimum is not, and has
never been, a relevant consideration at sentencing. Alt-
hough district courts may disagree with the nonbinding
Sentencing Guidelines “‘based solely on policy considera-
tions,’” they are “constrained by the mandatory minimums
Congress prescribed” by statute regardless of their policy
views. Kimbrough, 552 U. S., at 101, 108; see United States
v. Fanfan, 558 F. 3d 105, 110, n. 6 (CA1 2009) (“Though dis-
trict courts may sentence based on policy disagreements
with the . . . guidelines, they may not do so on the basis of
disagreements with statutes”); see also §3553(e) (providing
“[l]imited authority” for a court to “impose a sentence below
a statutory minimum”); §3553(f ) (permitting district courts
to disregard a mandatory minimum for certain offenses
only if five criteria are met).
Reflecting that norm, §3553(a) does not permit judges to
consider their own personal policy preferences when impos-
ing an initial sentence or reducing a sentence through a
compassionate-release motion. Nor does it allow judges to
weigh whether they think that Congress mandated the
right punishment for a given crime. It does, however, in-
struct judges to consider sentencing disparities,
§3553(a)(6), including those created by nonretroactive
changes in law. That instruction is perfectly consistent

19 Cite as: 608 U. S. ____ (2026)
S
OTOMAYOR, J., dissenting
with courts’ longstanding discretion to consider all relevant
information, including changes in law, when resentencing
a defendant. See Concepcion, 597 U. S., at 491–492.
In addition, no evidence supports the specter that the ma-
jority invokes. District judges around the country routinely
impose mandatory-minimum sentences in tens of thou-
sands of cases every year, as it is their oath-bound duty to
apply the laws of the United States. See 28 U. S. C. §453.
There is no evidence that these same district judges are rou-
tinely granting compassionate release as an end run around
mandatory minimums. In Fiscal Year 2024, the Commis-
sion received information regarding 61,678 cases in which
a criminal defendant was sentenced. United States Sen-
tencing Commission, QuickFacts on Mandatory Minimums
1 (2024), https://www.ussc.gov/sites/default/files/pdf/
research-and-publications/quickfacts/Quick_Facts_Mand_
Mins_FY24.pdf (archived at https://perma.cc/5Q4L-9G3Z).
Of all individuals sentenced that year, 15.9% faced a man-
datory minimum at sentencing. That same year, judges
granted compassionate release just 481 times in total on
any ground (including under §1B1.13(b)(6)) and denied it
2,534 times. Compassionate Release Report, Table 20.
Compassionate release is not the loophole to mandatory
minimums that the majority fears.
Even if a district court were to start using compassionate
release as an opportunity to usurp Congress’s role and ele-
vate its own policy preferences, the Government could ap-
peal those outlier grants of compassionate release to the
courts of appeals and, if necessary, to this Court. If a sys-
temic solution were necessary, the Commission could issue
another policy statement or Congress could enact legisla-
tion to prevent misuse of the compassionate-release stat-
ute. The solution is not, however, for this Court to conjure
categorical limitations on courts’ discretion that neither
Congress nor the Commission imposed.

20 RUTHERFORD v. UNITED STATES
S
OTOMAYOR, J., dissenting
***
The majority is right on one point: The extraordinary-
and-compelling analysis is indeed subject to “independent
and ascertainable limits.” Ante, at 14. Yet one need only
read the Commission’s policy statement to determine those
limits. The majority nevertheless searches high and low for
other statutory limits on what courts may consider when
deciding compassionate-release motions. Because the Com-
mission’s narrow, limited guidance is consistent with what
Congress has previously said and with what courts have
previously done, I respectfully dissent.