A Critical Deep Dive: Statutory Interpretation and Precedent Behind the New First Step Act Rules

The Statutory Architecture of 18 U.S.C. § 3582(c)(1)(A): What Changed and What Didn't

In my 25 years as a federal prosecutor and now as a defense attorney, I have rarely seen a statutory provision generate as much interpretive chaos as the compassionate release mechanism under the First Step Act of 2018. When Congress passed Public Law 115-391, it amended 18 U.S.C. § 3582(c)(1)(A) to allow defendants—not just the Bureau of Prisons—to file motions for sentence reduction directly with the district court. This single change upended decades of prosecutorial gatekeeping. The statutory text remains deceptively simple: a court may reduce a term of imprisonment if it finds that "extraordinary and compelling reasons warrant such a reduction" and that the reduction is consistent with applicable policy statements issued by the Sentencing Commission. But here is where the trouble begins. The statute does not define "extraordinary and compelling reasons" with any specificity, leaving that task to the U.S. Sentencing Commission under 28 U.S.C. § 994(t). The Commission's original policy statement, U.S.S.G. § 1B1.13, was drafted before the First Step Act and assumed that only the BOP could bring such motions, creating a statutory mismatch that courts have been wrestling with for years.

The critical interpretive question that has divided the circuits is whether the phrase "consistent with applicable policy statements" means that a court must adhere strictly to the Commission's enumerated categories—such as terminal illness, advanced age, or family circumstances—or whether the court retains independent authority to define what constitutes extraordinary and compelling reasons. The Fourth Circuit in United States v. McCoy, 981 F.3d 271 (2020), took the latter view, holding that the Commission's policy statement was not binding because it had not been updated to reflect the First Step Act's new procedural framework. The Sixth Circuit, however, in United States v. Jones, 980 F.3d 1098 (2020), reached the opposite conclusion, finding that the Commission's policy statement provides the exclusive definition of extraordinary and compelling reasons. This circuit split remains unresolved by the Supreme Court, which denied certiorari in both cases, leaving defense counsel in a precarious position where the viability of a motion depends entirely on geography. In my practice, I have seen judges in the Eastern District of Michigan reject arguments that the Sixth Circuit would accept in the Western District of Tennessee, simply because of how the local district court interprets the policy statement's binding effect.

The November 2023 amendments to U.S.S.G. § 1B1.13 attempted to resolve this confusion by expanding the Commission's enumerated categories and explicitly recognizing that courts may consider any extraordinary and compelling reason not specifically listed. The new policy statement now includes categories for medical conditions, age-related deterioration, family circumstances, victim abuse, and "other reasons" that the court deems sufficient. This "catch-all" provision is a direct response to the circuit split and represents a significant expansion of judicial discretion. However, the Commission also added a new requirement that the reduction must not pose an "unwarranted disparity" under 18 U.S.C. § 3553(a)(6), which has created a new battleground for prosecutors arguing that early release undermines sentencing uniformity. From a statutory interpretation standpoint, the 2023 amendments are a textbook example of an administrative agency attempting to fill a gap left by Congress, but they also raise questions about whether the Commission exceeded its authority under 28 U.S.C. § 994(t), which only authorizes policy statements that are "consistent with" the statute. I anticipate that this issue will generate a new wave of litigation in the coming years.

Administrative Exhaustion Under 28 C.F.R. § 571.61: The New Procedural Minefield

The Bureau of Prisons wasted no time in responding to the First Step Act by promulgating new regulations that impose a rigorous administrative exhaustion requirement before a defendant can file a motion in federal court. Under 28 C.F.R. § 571.61, a defendant must first submit a written request to the warden of the facility where they are housed, and then wait either 30 days from the date of the request or until the BOP denies the request, whichever occurs first. This 30-day waiting period has become a procedural trap for the unwary. In my experience, many defense attorneys assume that filing a motion immediately after the 30-day period expires is sufficient, but the regulations require that the request be "properly submitted" with specific documentation, including medical records, family circumstances, and any other evidence supporting the claim. If the warden determines that the request is incomplete, the 30-day clock does not start, and the defendant may be left in procedural limbo while their medical condition deteriorates or their family situation changes. I have personally handled cases where the BOP used this technicality to delay consideration for months, effectively nullifying the statutory right to file a motion.

The jurisdictional implications of this exhaustion requirement are still being litigated. The Supreme Court in Wooden v. United States, 595 U.S. 360 (2022), did not directly address the exhaustion issue, but the Court's emphasis on the "text and structure" of § 3582(c)(1)(A) suggests that exhaustion is a claim-processing rule rather than a jurisdictional prerequisite. However, several district courts, particularly in the Fifth Circuit, have treated the 30-day waiting period as a jurisdictional bar, dismissing motions filed even one day early without prejudice. This creates a harsh result: a defendant who files a motion on day 29 after submitting a request to the warden may find their case dismissed, and by the time they refile, the BOP may have completed its review and denied the request, requiring a new 30-day waiting period. The Second Circuit in United States v. Saladino, 7 F.4th 120 (2021), took a more pragmatic approach, holding that the exhaustion requirement is waivable by the government and that courts have discretion to consider motions filed prematurely if the BOP has unreasonably delayed its response. But this circuit-by-circuit patchwork means that defense counsel must know the local law before drafting a motion.

Another layer of complexity arises from the interaction between the exhaustion requirement and the COVID-19 pandemic. During the public health emergency, many district courts issued standing orders that waived or modified the exhaustion requirement for defendants who were medically vulnerable. The BOP challenged these orders in several circuits, and the D.C. Circuit in United States v. Johnson, 64 F.4th 139 (2023), held that district courts cannot categorically waive the exhaustion requirement through standing orders, but may consider individualized waivers on a case-by-case basis. This ruling has significant implications for defense strategy: rather than relying on blanket waivers, attorneys must now present individualized evidence that exhaustion would be futile or that the BOP's review process is incapable of providing timely relief. In my practice, I have begun including detailed declarations from medical experts explaining why a 30-day delay would cause irreparable harm, which gives the court a factual basis for waiving exhaustion. The key takeaway is that the exhaustion requirement is no longer a simple checkbox—it is a substantive legal issue that requires strategic planning from the moment a client is identified as a candidate for compassionate release.

The Retroactivity Puzzle: How U.S.S.G. § 1B1.13 Applies to Pre-First Step Act Sentences

One of the most contentious issues I have encountered in my practice involves the retroactive application of the First Step Act's compassionate release provisions to defendants who were sentenced before the Act's effective date of December 21, 2018. The statute itself is silent on retroactivity, but the Supreme Court's decision in Dorsey v. United States, 567 U.S. 260 (2012), established a presumption that sentencing reforms apply to defendants who committed their crimes before the effective date but were sentenced after it. The First Step Act, however, is different because it did not change the penalty range for any offense—it changed the mechanism for seeking relief post-sentencing. The Seventh Circuit in United States v. Taylor, 982 F.3d 1032 (2020), held that the Act's compassionate release provisions apply to all defendants regardless of when they were sentenced, because § 3582(c)(1)(A) is a procedural provision that governs post-judgment motions, not substantive sentencing. The Eighth Circuit disagreed in United States v. Loggins, 966 F.3d 891 (2020), finding that the Act's changes to the compassionate release framework were substantive because they created a new right for defendants to file motions, and therefore could not be applied retroactively without clear congressional intent.

The Sentencing Commission's 2023 amendments to U.S.S.G. § 1B1.13 attempted to resolve this dispute by explicitly stating that the policy statement applies to all defendants, regardless of the date of their offense or sentencing. The amended commentary provides that "the court may consider any extraordinary and compelling reason" for any defendant, including those sentenced before the First Step Act's enactment. This language is significant because it effectively overrules the Eighth Circuit's holding in Loggins by providing the Commission's authoritative interpretation that the policy statement is procedural in nature. However, the Commission does not have the power to dictate retroactivity to the courts; its policy statements are advisory under Kisor v. Wilkie, 588 U.S. 558 (2019), and must be given deference only if they are reasonable and consistent with the statute. In my view, the Commission's position is correct as a matter of statutory interpretation, because the First Step Act's amendment to § 3582(c)(1)(A) does not alter the elements of any crime or the available penalties—it merely changes who can initiate a motion for sentence reduction. This is the same logic that the Supreme Court applied in Landgraf v. USI Film Products, 511 U.S. 244 (1994), where the Court held that procedural changes apply retroactively unless Congress clearly indicates otherwise.

Despite the Commission's guidance, the retroactivity question remains unsettled in several circuits, and defense counsel must be prepared to argue both the procedural nature of the amendment and the Commission's authority to issue binding interpretations. In the Fifth Circuit, for example, the court in United States v. Jackson, 27 F.4th 1088 (2022), held that the First Step Act's compassionate release provisions are procedural and apply retroactively, but the court expressly declined to address whether the Commission's policy statement is binding. This leaves open the possibility that a future panel could reject the Commission's interpretation and adopt the Eighth Circuit's approach. To safeguard against this uncertainty, I recommend including alternative arguments in every motion: first, that the policy statement applies retroactively under the Commission's own interpretation; and second, that even if the policy statement does not apply, the court retains independent authority under the statute's plain language to define extraordinary and compelling reasons. This two-pronged approach ensures that the motion survives regardless of how the circuit ultimately resolves the retroactivity issue.

Calculating the "Fullest Extent of the Law": Discretionary Sentencing Reductions Under the New Framework

When the First Step Act was passed, many practitioners assumed that the primary benefit of the compassionate release provision would be for elderly and terminally ill defendants. While those cases certainly exist, the most significant development in my practice has been the use of § 3582(c)(1)(A) to address unwarranted sentencing disparities resulting from the crack cocaine sentencing guidelines. The Fair Sentencing Act of 2010 and the First Step Act itself reduced the disparity between crack and powder cocaine offenses, but these changes were not fully retroactive for all defendants sentenced before 2010. The compassionate release framework has become a workaround for defendants who are serving sentences that would be significantly shorter if they were sentenced today. The key statutory hook is 18 U.S.C. § 3553(a)(6), which requires courts to consider the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct. In United States v. Haynes, 55 F.4th 1075 (6th Cir. 2022), the Sixth Circuit held that a significant disparity between a defendant's sentence and the sentence they would receive under current law can constitute an extraordinary and compelling reason for reduction, even if the defendant does not meet any of the Commission's enumerated categories.

The 2023 amendments to U.S.S.G. § 1B1.13 codified this reasoning by adding a new category for "unwarranted disparity" arising from changes in sentencing guidelines. Specifically, Application Note 4(A) now provides that a court may consider "a change in the law that, if applicable at the time of sentencing, would have resulted in a shorter term of imprisonment." This is a dramatic expansion of the compassionate release framework, and it has already generated a flood of motions from defendants serving long sentences for drug trafficking and firearms offenses. However, the Commission added an important limitation: the reduction must be "consistent with the purposes of sentencing" under § 3553(a)(2), which includes the need for just punishment, deterrence, and protection of the public. This means that a defendant who has a history of violence or who has been a disciplinary problem in prison may not qualify for relief, even if their sentence would be lower under current law. In my experience, the most successful motions under this new category combine a compelling disparity argument with strong evidence of rehabilitation, such as completion of educational programs, clean disciplinary records, and letters of support from family and community members.

Another critical issue that has emerged is the calculation of the reduced sentence itself. The statute provides that the court may "reduce the term of imprisonment (and may impose a term of probation or supervised release with or without conditions that does not exceed the unexpired portion of the original term of imprisonment)." This language has been interpreted to mean that the court can reduce the sentence to time served, but cannot impose a sentence that is longer than the remaining term. The more complex question is whether the court can reduce the sentence below the mandatory minimum that applied at the original sentencing. The First Step Act did not repeal any mandatory minimums, and the Commission's policy statement does not address this issue directly. The Third Circuit in United States v. Gonzalez, 63 F.4th 214 (2023), held that a court cannot reduce a sentence below the statutory mandatory minimum unless the defendant qualifies for a safety valve or other statutory exception. This creates a significant barrier for defendants serving mandatory life sentences for drug trafficking under 21 U.S.C. § 841(b)(1)(A), who may be unable to obtain any relief even if their sentence would be dramatically lower under current law. I have argued in several cases that this interpretation defeats the purpose of the First Step Act, but the plain text of the statute is difficult to overcome.

If you or a loved one is serving a federal sentence and believe you may qualify for compassionate release under the First Step Act, do not wait until it is too late. The procedural requirements are complex, and a single misstep—such as filing before the exhaustion period expires or failing to include required documentation—can result in dismissal and months of delay. My firm has extensive experience navigating the new rules under 18 U.S.C. § 3582(c)(1)(A) and the 2023 Sentencing Commission amendments, and we have successfully obtained reductions for clients in circuits across the country. Contact our office today for a confidential