Rutherford and Fernandez: How the Supreme Court Narrowed Compassionate Release in 2026

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

What did the Supreme Court decide about compassionate release in 2026?

In Rutherford v. United States (decided with Carter v. United States), the Court held that a sentencing disparity created by a law Congress changed but did not make retroactive can never be an “extraordinary and compelling” reason — alone or combined with anything else. In Fernandez v. United States, it held that a prisoner attacking the validity of a conviction must use 28 U.S.C. § 2255, not § 3582.

Key takeaways on Rutherford and Fernandez

• Both decisions issued May 28, 2026. Justice Amy Coney Barrett wrote both. In each, Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh joined her opinion, and the judgment below was affirmed (Rutherford slip op., syllabus; Fernandez slip op., syllabus). Both cases were argued the same day, November 12, 2025.
• Rutherford’s holding is written in the disjunctive, and that is the whole point. “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 it counsels otherwise, the Commission’s policy statement is invalid” (Rutherford slip op. at 16). You cannot use the disparity as one ingredient among several.
• The Court did not hold that only “personal circumstances” qualify. It said the opposite twice: “We need not decide whether there are reasons beyond personal circumstances that could qualify as ‘extraordinary and compelling'” (slip op. at 10-11), and “We need not nail down the precise boundaries” (slip op. at 16). Any page telling you the list is now closed is misreading the case.
• The victim-of-abuse ground survives untouched. Rutherford footnote 3 states that the 2023 amendment’s abuse provision “is not at issue in today’s cases” (slip op. at 5 n.3). USSG § 1B1.13(b)(4) is unaffected — see victims of sexual abuse lawyer.
• § 1B1.13(b)(6) is still printed in the current Guidelines Manual. The Sentencing Commission has not amended it, and the only § 1B1.13 change effective November 1, 2026 is a renaming of the Bureau of Prisons. Anyone who looks the guideline up will read a provision the Supreme Court has held invalid in significant part, with nothing on the page saying so. Details on the guideline itself: unusually long sentence.
• A change in the law still matters at step two. USSG § 1B1.13(c) provides that once extraordinary and compelling reasons are established on other grounds, “a change in the law … may be considered for purposes of determining the extent of any such reduction.” Rutherford spoke to eligibility, not to how much a judge may cut once the gate is passed.

What Changed on May 28, 2026, Ground by Ground

This is the whole map on one screen. Each row states a ground for compassionate release, where it stood the day before the decisions, where it stands now, and the controlling authority — with the Court’s own reservations quoted so the limits of the holdings are visible rather than inferred.

Ground	Status before May 28, 2026	Status after May 28, 2026	Controlling authority, in the Court’s words
Terminal illness — § 1B1.13(b)(1)(A)	Qualifying ground; the historic core of the statute	Unchanged. Expressly reaffirmed.	The “heartland ‘extraordinary and compelling reasons’ that might warrant an early release from prison — age, illness, a child left with no guardian” (Fernandez slip op. at 13); “[w]hen a prisoner moves for compassionate release based on a terminal illness, his motion does not suggest that his conviction is invalid” (at 14)
Serious medical condition / inability to self-care — § 1B1.13(b)(1)(B)	Qualifying ground	Unchanged. Still the most-cited medical ground	Untouched by either opinion. “Illness” is one of the three heartland grounds the Court named (Fernandez slip op. at 13)
Long-term or specialized care not being provided — § 1B1.13(b)(1)(C)	Qualifying ground	Unchanged. Squarely within BOP’s institutional competence, which Fernandez treats as the statute’s organizing logic	The Bureau’s “expertise lies in the daily lives of prisoners” (Fernandez slip op. at 12)
Infectious-disease outbreak or public-health emergency — § 1B1.13(b)(1)(D)	Qualifying ground; all three elements required	Unchanged, though rarely cited now	Not addressed in either opinion
Age 65+ with aging-related deterioration and time served — § 1B1.13(b)(2)	Qualifying ground	Unchanged. Expressly reaffirmed as heartland	Congress “expressly identifies one situation in which a sentencing reduction is warranted”: age 70 with 30 years served, § 3582(c)(1)(A)(ii) (Fernandez slip op. at 11)
Family circumstances / only available caregiver — § 1B1.13(b)(3)	Qualifying ground	Unchanged. Expressly reaffirmed as heartland	“a child left with no guardian” (Fernandez slip op. at 13)
Victim of sexual or physical abuse in custody — § 1B1.13(b)(4)	Qualifying ground, added by Amendment 814 in 2023	Unchanged. Expressly carved out of the holding	“This change is not at issue in today’s cases” (Rutherford slip op. at 5 n.3)
“Other reasons” catch-all — § 1B1.13(b)(5)	Read broadly by many district courts; “similar in gravity” the only textual limit	Narrowed, and not by the Supreme Court. Two courts of appeals have held it cannot carry a ground their own precedent forecloses, and cannot carry a defendant’s youth	Hall (6th Cir. 2026); United States v. Bryant, 144 F.4th 1119, 1126 (9th Cir. 2025) (“similar in gravity” excludes youth)
Unusually long sentence + nonretroactive change in law — § 1B1.13(b)(6)	Qualifying ground since Nov. 1, 2023; the second most-cited reason for grants in FY2024 and FY2025	Invalid to the extent it treats a nonretroactive change as a qualifying reason. Still printed in the Manual	“To the extent that it counsels otherwise, the Commission’s policy statement is invalid” (Rutherford slip op. at 16)
Nonretroactive change combined with health, family, and rehabilitation	The minority-circuit rule; the theory Rutherford and Carter actually litigated	Foreclosed. This is the precise question decided	The change, “considered by itself or in combination with other factors,” cannot “make a prisoner eligible for compassionate release” (Rutherford slip op. at 16)
Judge’s disagreement with a mandatory minimum	Untested; petitioners declined to rule it out at argument	Foreclosed. “A district court is never free — even in an individual case — to reject a punishment that Congress has required”	Rutherford slip op. at 15 & n.7, quoting United States v. Wiltberger, 5 Wheat. 76, 95 (1820)
Innocence, Brady, or ineffective assistance raised under § 3582	Rejected by the Second Circuit and seven other circuits; allowed in two	Foreclosed. Belongs in a § 2255 motion	“A prisoner who collaterally attacks the validity of his conviction must proceed through 28 U.S.C. § 2255, not 18 U.S.C. § 3582” (Fernandez slip op. at 1)
Freestanding actual innocence under § 2255 itself	Never resolved by the Court	Still unresolved — expressly	“We have never ruled that possibility out and do not do so now” (Fernandez slip op. at 17)
Rehabilitation alone	Barred by statute since 1984	Unchanged — still barred	28 U.S.C. § 994(t): “Rehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason”
Rehabilitation in combination with a qualifying ground	Permitted by § 1B1.13(d); the single most-cited reason among grants	Permitted — but only alongside a ground that itself survives. Cannot rescue a foreclosed theory	“Adding a legally impermissible ground to three insufficient factual considerations does not entitle a defendant to a sentence reduction” (Rutherford slip op. at 15, quoting United States v. Jarvis, 999 F.3d 442, 444 (6th Cir. 2021))
Codefendant sentencing disparity (Diaco-type)	Recognized by one 1978 district court under the predecessor statute; unsettled	Expressly reserved. Not decided either way	“We need not decide whether compassionate release is available for these kinds of postjudgment developments” (Rutherford slip op. at 11 n.6)
Post-judgment state-court developments (Setser-type)	Suggested as available in Setser v. United States, 566 U.S. 231 (2012)	Expressly reserved. Same footnote	Rutherford slip op. at 11 n.6
Any reason beyond “personal circumstances”	Contested across the circuits	Expressly reserved. The Court refused to close the list	“We need not decide whether there are reasons beyond personal circumstances that could qualify” (Rutherford slip op. at 10-11)

Two rows deserve emphasis because they cut in opposite directions. The nonretroactive-change row is a genuine closure: it is the holding, it is written in the disjunctive, and no amount of stacking other facts around it reopens it. The three “expressly reserved” rows are genuine openings that most commentary has skipped past — the Court twice refused to define the outer boundary of the phrase, and footnote 6 leaves two specific post-judgment scenarios undecided.

Rutherford v. United States: What the Court Actually Held

Rutherford holds that when Congress changes a sentencing statute and declines to make the change retroactive, the resulting gap between the sentence a person is serving and the sentence they would receive today is not an extraordinary and compelling reason for release.

The facts, because they explain the reasoning

Daniel Rutherford committed two armed robberies in 2003 and was convicted of two counts under 18 U.S.C. § 924(c). At the time, a second § 924(c) count carried a mandatory 25 years “stacked” on top of the first — producing a 32-year minimum and a total sentence of over 42 years (Rutherford slip op. at 2). Johnnie Markel Carter was convicted of three § 924(c) counts arising from armed bank robberies in 2007 and sentenced to 70 years, 57 of them from the stacked counts (slip op. at 2).

Section 403(a) of the First Step Act eliminated the 25-year stacking requirement for first-time offenders in 2018. Sentenced today, Rutherford’s § 924(c) minimum would be 14 years and Carter’s 21 (slip op. at 2). But § 403(b) applied the change only where “a sentence for the offense has not been imposed as of such date of enactment” — so neither man qualified. Both filed for compassionate release instead, arguing the disparity was itself extraordinary and compelling, and pointing to their own records: Rutherford had completed more than 50 educational courses and lined up post-release employment; Carter, in the district court’s words, had “become the kind of model prisoner that our system tries, but too often fails, to produce” (slip op. at 2-3) (Sotomayor, J., dissenting).

The holding, stated precisely

The Court affirmed the Third Circuit. Three sentences carry the holding, and the third is the one that matters most in practice:

“When Congress declines to make a sentencing amendment retroactive, the fact that a preamendment sentence is longer than it would have been postamendment is not an ‘extraordinary and compelling reaso[n]’ that ‘warrant[s]’ a sentence reduction.” (slip op. at 8)

“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.” (slip op. at 16)

“To the extent that it counsels otherwise, the Commission’s policy statement is invalid.” (slip op. at 16)

Note what the third sentence does not say. It does not strike § 1B1.13(b)(6) in its entirety. It invalidates the provision to the extent it counsels that a nonretroactive change can make a prisoner eligible. The Sixth Circuit had gone further in United States v. Bricker, 135 F.4th 427 (6th Cir. 2025), holding the provision invalid outright because the Commission had “overstepped its authority and issued a policy statement that is plainly unreasonable under the statute.” Rutherford vindicated Bricker’s result while stating it more narrowly. For anyone whose theory is not a § 924(c) stacking argument, the difference between “invalid outright” and “invalid to the extent that it counsels otherwise” is the entire question — and it is why the unusually long sentence provision needs its own careful reading rather than a blanket assumption.

The reasoning, in three moves

First, the dictionary. The Court took “extraordinary” to mean “most unusual,” “far from common,” “having little or no precedent,” and “compelling” to mean “tending to convince or convert by or as if by forcefulness of evidence” (slip op. at 8-9). Putting them together: reasons “that are especially unusual and convincing” (slip op. at 9).

Second, nonretroactivity is ordinary, not extraordinary. “Far from ‘extraordinary,’ nonretroactive amendments to criminal penalties are the norm” (slip op. at 9). Every nonretroactive change necessarily creates a gap between those who benefit and those who do not, and “[s]uch a disparity is an unexceptional feature of a system in which nonretroactivity is the default” (slip op. at 9). As for “compelling,” treating Congress’s deliberate choice to leave sentences intact as a reason to undo them “would undermine Congress’s choice” (slip op. at 9).

Third, the slippery slope the Court would not accept. Petitioners argued their approach was not categorical — the disparity would be only one of at least two considerations. The Court answered that the logic “extends well beyond nonretroactive sentencing amendments to disagreement with the length of any punishment on the books,” and that petitioners “refused to rule out” at oral argument that a judge who thinks a mandatory minimum too harsh could treat its severity as extraordinary and compelling (slip op. at 15). That was unacceptable: “[i]t is the legislature, not the Court, which is to define a crime, and ordain its punishment” (slip op. at 15). And adding permissible factors around an impermissible one does not fix it — the Court adopted the Sixth Circuit’s formulation from Jarvis: “adding a legally impermissible ground to three insufficient factual considerations does not entitle a defendant to a sentence reduction” (slip op. at 15).

The circuit split the Court resolved

The Commission’s 2023 amendment did not settle the question; it deepened it. Most courts of appeals that had already rejected the nonretroactive-change theory held they were not bound by the Commission’s contrary policy statement, and the Court granted certiorari to resolve the conflict (slip op. at 7-8 & n.4). The table below lists the decisions as the Court itself collected them in footnotes 1 and 2 (slip op. at 5 nn.1-2).

Position before Rutherford	Circuit	Decision
A nonretroactive change cannot be extraordinary and compelling	Third	United States v. Andrews, 12 F.4th 255 (3d Cir. 2021)
Same	Sixth	United States v. Jarvis, 999 F.3d 442 (6th Cir. 2021), quoted at Rutherford slip op. 15
Same	Seventh	United States v. Thacker, 4 F.4th 569 (7th Cir. 2021)
Same	Eighth	United States v. Crandall, 25 F.4th 582 (8th Cir. 2022)
Same	D.C.	United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022)
A nonretroactive change can count, at least in combination	First	United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022) — abrogated
Same	Fourth	United States v. McCoy, 981 F.3d 271 (4th Cir. 2020) — abrogated
Same	Ninth	United States v. Chen, 48 F.4th 1092 (9th Cir. 2022) — abrogated
Same	Tenth	United States v. McGee, 992 F.3d 1035 (10th Cir. 2021) — abrogated

Footnote 1 also listed a Fifth Circuit decision on the “cannot” side, cited by the Court only to an unreported Westlaw citation, which is why it does not appear as its own row above.

Every decision in the lower half of that table is abrogated on the point for which it appears here. If a filing, a jailhouse packet, or a website still cites McCoy, Chen, Ruvalcaba, or McGee for the proposition that a nonretroactive change can support release, it is citing superseded law. The same is true of the older debate over whether § 1B1.13 applied to defendant-filed motions at all: the Court noted that most circuits held it did not, “but see United States v. Bryant, 996 F. 3d 1243, 1247-1248 (CA11 2021) (applying the policy statement)” (Rutherford slip op. at 5) — a question Amendment 814 and Rutherford have since overtaken. That Eleventh Circuit Bryant is a different case from the Ninth Circuit’s 2025 Bryant discussed below; do not confuse them.

What Rutherford Expressly Did Not Decide

Four reservations sit inside the opinion. They are short, they are easy to miss, and together they are the difference between “the statute was narrowed” and “the statute was closed.”

1. Whether anything beyond personal circumstances can qualify. After describing medical condition, age, and family circumstances as the historical heartland, the Court wrote: “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 nonretroactive sentencing amendments were among them. They are not” (slip op. at 10-11). Read the whole passage. The Court closed one door and declined to say whether the room has others.

2. Where the boundary of the phrase actually falls. “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 meaning'” (slip op. at 16).

3. The victim-of-abuse provision. Footnote 3, describing Amendment 814: “In addition, the Commission added the fact that a prisoner was a victim of abuse while in custody as an ‘extraordinary and compelling’ reason. … This change is not at issue in today’s cases” (slip op. at 5 n.3). USSG § 1B1.13(b)(4) came through both decisions intact — which matters enormously to people harmed by staff in federal custody. The evidentiary hurdle that provision builds in is the real obstacle there, not Rutherford; see victims of sexual abuse lawyer.

4. Codefendant disparity and post-judgment developments. Footnote 6 addresses two authorities petitioners had relied on — United States v. Diaco, 457 F. Supp. 371 (D.N.J. 1978), where a court reduced a sentence under the predecessor statute because codefendants received significantly lower sentences, and Setser v. United States, 566 U.S. 231, 242-243 (2012), where the Court suggested a district court could use § 3582(c)(1)(A) to address unfairness produced by later state-court developments. The Court distinguished both on the ground that neither involved a nonretroactive sentencing amendment, and then added: “We need not decide whether compassionate release is available for these kinds of postjudgment developments” (slip op. at 11 n.6).

That fourth reservation is the one to watch. It leaves open, at the Supreme Court level, whether a development that occurs after judgment — as distinct from a legislative change Congress deliberately withheld — can support relief. Nothing in this page should be read as a prediction about how any court will resolve it.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The practical test we apply to a post-May-2026 draft is simple and unforgiving. Strike every sentence about what the sentence would be today. Strike every comparison to a statute Congress amended. If what remains still states a complete extraordinary-and-compelling claim, the motion is viable. If what remains is a collection of sympathetic facts with a hole where the argument used to be, it is not a compassionate release motion yet — and filing it anyway spends the strongest version of the client’s story on a losing vehicle. The reservations in footnotes 3 and 6 are real, and they are worth preserving in a brief. But they are appellate arguments in a developing area, not a substitute for a ground that already qualifies.

Fernandez v. United States: Where an Innocence or Trial-Error Claim Goes Now

Fernandez holds that a prisoner who collaterally attacks the validity of a conviction must proceed under 28 U.S.C. § 2255, and that the supposed invalidity of a conviction is not among the extraordinary and compelling reasons that justify compassionate release.

The facts

Joe Fernandez was convicted in the Southern District of New York of murder for hire and a firearms offense and received two consecutive life sentences (Fernandez slip op. at 1-2). He argued from the start that the government’s cooperating witness had framed him. He lost that argument in a motion to reconsider, on direct appeal, and in a first § 2255 motion that the Second Circuit called “plainly meritless” (slip op. at 3). A second § 2255 motion succeeded in vacating the firearms count under United States v. Davis, 588 U.S. 445 (2019), leaving the murder-for-hire life sentence in place (slip op. at 3).

In the order vacating the firearms count, the district judge speculated that the government’s lenient treatment of another alleged participant suggested it “kn[ew] something” inconsistent with the cooperator’s testimony, and observed that if the remaining life sentence “were to be commuted, or held unlawful, [Fernandez] would be released immediately” (slip op. at 3-4). Within two weeks Fernandez filed a compassionate release motion arguing innocence. The district court granted it, resting on its own “disquiet” about whether the verdict was correct (slip op. at 4). The Second Circuit reversed, and the Supreme Court affirmed the reversal.

The holding and the reasoning

The Court applied the anticircumvention principle of Preiser v. Rodriguez, 411 U.S. 475 (1973), and Gonzalez v. Crosby, 545 U.S. 524 (2005): a claim “close to the core of habeas corpus” must be brought under the statute Congress designed for it (slip op. at 6-8). Section 2255 carries a one-year limitations period, a general one-motion rule, a bar on relitigating claims rejected on direct review, and procedural-default rules. Section 3582 carries none of that — its only procedural requirement is that the prisoner first present the request to the Bureau of Prisons. Allowing conviction challenges through § 3582 “would enable prisoners not only to bypass § 2255, but also to override it” (slip op. at 9).

Four structural features of § 3582 pushed the same way (slip op. at 10-13):

• “Compelling” is contextual. “An argument that is compelling in one context is not necessarily so in another.” The Court’s illustration: “a 25th wedding anniversary is a convincing reason to shorten a business trip, but it is not a convincing reason to shorten a prison sentence” (slip op. at 10). And: “A reason is not ‘compelling’ if Congress has channeled it through the postconviction statutes” (slip op. at 10).
• The statute’s name. “Compassionate Release” — the heading Congress gave § 603(b) of the First Step Act — “highlights its focus on granting mercy rather than righting legal wrongs” (slip op. at 11).
• The Bureau of Prisons’ role. The BOP’s “institutional expertise lies in the daily lives of prisoners,” and “it makes little sense to have the Bureau evaluate legal arguments and comb trial records to determine whether a prisoner has a ‘compelling’ argument that his conviction was wrongful” (slip op. at 12). That is why the request process runs through the warden — see compassionate release request to warden.
• Regulatory history. “For decades, the Sentencing Commission has tied the availability of compassionate release to a defendant’s personal circumstances,” and “[i]t has never said that the invalidity of a conviction qualifies” (slip op. at 12-13).

The line the Court drew, and how to apply it

The operative test is about the nature of the argument, not the label on the pleading:

“When a prisoner moves for compassionate release based on a terminal illness, his motion does not suggest that his conviction is invalid. But if a prisoner moves for relief because of alleged problems with the underlying criminal investigation or trial, his motion suggests that his conviction is flawed.” (slip op. at 14-15)

Footnote 6 states it more bluntly: “There is an obvious distinction between a prisoner who asserts that he should not have been convicted in the first place and one who asserts that his present circumstances warrant an exercise of compassion” (slip op. at 15 n.6).

The practical consequence is a sorting rule. Brady, Strickland ineffective assistance, sufficiency of the evidence, witness credibility, an actual-innocence claim, a challenge to how the jury was instructed — all of it belongs in a § 2255 motion, which carries a one-year deadline that § 3582 does not. If that year has run, the answer is not to relabel the claim; see post-conviction deadlines and, if the claim was never raised on appeal, direct appeal vs 2255. Choosing between the two vehicles is its own analysis: compassionate release vs 2255.

What Fernandez did not decide

The Court expressly left open whether a freestanding actual-innocence claim can be brought under § 2255 at all: “this case gives us no occasion to decide the antecedent question whether a prisoner may assert a freestanding actual innocence claim under § 2255. We have never ruled that possibility out and do not do so now” (slip op. at 17). It also noted that no court — “not even the District Court that reduced his sentence” — had concluded Fernandez was actually innocent (slip op. at 16). Where that leaves a genuinely innocent person with no constitutional claim is the gap Justice Jackson’s dissent presses, and it remains a gap. For someone in that position, the realistic remaining route is executive: see federal clemency attorney and commutation of sentence.

The Vote and the Separate Writings

Justice Barrett wrote for the Court in both cases, joined in each by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. The three remaining Justices split differently in the two cases, and the difference is useful to practitioners rather than merely academic.

	Rutherford	Fernandez
Majority	Barrett, J. (Roberts, C.J., Thomas, Alito, Gorsuch, Kavanaugh, JJ.)	Barrett, J. (same six)
Sotomayor, J.	Dissenting, joined by Kagan and Jackson, JJ.	Concurring in the judgment, joined by Kagan, J.
Jackson, J.	Joined the dissent	Dissenting alone
Disposition	120 F.4th 360 and No. 24-860 affirmed	104 F.4th 420 affirmed

Justice Sotomayor’s Rutherford dissent

The dissent’s theory is institutional: Congress delegated the definition of “extraordinary and compelling” to the Sentencing Commission under 28 U.S.C. § 994(t), so the question was whether the Commission acted unreasonably, and it did not (Rutherford slip op. at 1, 4-7) (Sotomayor, J., dissenting). Two of its points are worth knowing because they are the arguments that will be recycled:

• “Ordinary in isolation” is not the test. “Everyone ages. Everyone falls ill. Everyone loses family members and loved ones. These realities are, unfortunately, also ‘the norm.'” The question, the dissent argued, “is not whether any one reason for granting relief is extraordinary or compelling on its own or in the abstract, but whether a defendant’s circumstances, taken together, are so extraordinary and compelling as to warrant reducing his sentence” (slip op. at 9) (Sotomayor, J., dissenting).
• The floodgates did not open. The dissent pointed to the Commission’s own data: in fiscal year 2024, courts decided 3,015 compassionate release motions and granted relief under § 1B1.13(b)(6) for a change-in-law disparity 98 times (slip op. at 9-10) (Sotomayor, J., dissenting), figures that match the USSC FY2024 Compassionate Release Data Report, Tables 2 and 10.

Justice Sotomayor’s Fernandez concurrence — the limit the majority did not adopt

This is the most practically useful separate writing of the two, and almost nothing written about these cases mentions it. Justice Sotomayor, joined by Justice Kagan, agreed that Fernandez’s motion had to fail but rejected the majority’s habeas-channeling rule as “an atextual limitation found nowhere in § 3582(c)(1)(A)” (Fernandez slip op. at 1) (Sotomayor, J., concurring in judgment). She would have affirmed on a narrower ground:

“A motion for compassionate release cannot justify a reduced sentence if it relies solely on facts a court already considered in imposing the initial sentence, rather than any changed circumstances that developed after sentencing.” (Fernandez slip op. at 1-2) (Sotomayor, J., concurring in judgment)

“At the very least, changing a sentence already imposed under § 3582(c)(1)(A) requires something to have changed, after sentencing, in a way that alters the sentencing calculus.” (Fernandez slip op. at 2)

The majority did not adopt this rule — and in footnote 4 pointed out the irony that the concurrence “embraces a limit that appears nowhere in the text” while calling the majority’s reading atextual (Fernandez slip op. at 10 n.4). But two Justices have now endorsed it, the concurrence grounds it in the same Setser passage Rutherford’s footnote 6 reserved, and the Ninth Circuit has already observed in a published decision that the enumerated grounds in § 1B1.13 “generally refer to circumstances that develop after sentencing” (United States v. Bryant, 144 F.4th 1119, 1126 (9th Cir. 2025), quoted in Hall at 14). Expect the government to make the changed-circumstances argument. Build the record so it answers it.

Justice Jackson’s Fernandez dissent

Justice Jackson would have vacated rather than affirmed. Her central objection is that the majority never defines what counts as a collateral attack, and that the line will be hard to draw in practice (Fernandez slip op. at 17) (Jackson, J., dissenting). Her framing of the difference between the two statutes is the clearest one-sentence statement of it anywhere in either opinion: “habeas nullifies a conviction as a matter of law, while compassionate release shortens a sentence as a matter of grace” (Fernandez slip op. at 11) (Jackson, J., dissenting). Her hypothetical — a factually innocent prisoner with no constitutional claim, for whom “[h]abeas thus provides no avenue for relief” (slip op. at 9-10) — is the case the majority’s rule does not answer.

What the Decisions Did to the Sentencing Commission, and to the Guideline Still in Print

Rutherford’s most consequential passage for the long run is not about § 924(c) at all. It is the two paragraphs on what a Sentencing Commission policy statement can and cannot do.

The Court acknowledged the delegation: Congress “empowered the Commission to ‘give meaning’ to the compassionate release provision by identifying the circumstances that constitute ‘extraordinary and compelling’ reasons for release,” citing Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 394 (2024) (Rutherford slip op. at 16). But it attached two limits, from the same case and from Batterton v. Francis, 432 U.S. 416, 426 (1977): the Commission’s policy statements must be “consistent with” the governing statute under 28 U.S.C. § 994(a), and “courts have a duty to ‘independently interpret the statute and effectuate the will of Congress'” (slip op. at 16). The formulation the circuits have been quoting since: “the Commission’s interpretation must land within the statutory goalposts, no matter how wide they might be” (slip op. at 16). The Court also invoked Koons v. United States, 584 U.S. 700, 707 (2018): “[p]olicy statements cannot make a defendant eligible when [the statute] makes him ineligible” (slip op. at 16).

That reasoning is not limited to § 1B1.13(b)(6). It applies to any guideline provision a court concludes exceeds the statute — which is why the follow-on litigation has moved on to the catch-all. Background on how the Guidelines fit into federal sentencing generally: federal sentencing guidelines.

Eligibility comes first: the Dillon gate

Rutherford also settles a sequencing question that decides a surprising number of motions. Petitioners argued that a sentencing court has broad discretion to consider all relevant information, including the disparities listed in 18 U.S.C. § 3553(a)(6). The Court’s answer: “Petitioners skip a step” (slip op. at 13).

“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 (2010), quoted at Rutherford slip op. at 13)

Eligibility “depends on whether he can offer ‘extraordinary and compelling’ reasons that ‘warrant’ compassionate release, not on the § 3553(a) factors,” and the requirement “is not, as petitioners seem to believe, a free-for-all. It is a distinct analytical step that imposes independent and ascertainable limits” (slip op. at 13-14). The sentencing factors govern the second step only — see 3553(a) factors.

How Concepcion is confined

Concepcion v. United States, 597 U.S. 481 (2022), had been the workhorse citation for the proposition that a court may consider anything relevant when modifying a sentence. Rutherford does not overrule it. It confines it to the step where it belongs:

“Concepcion involved sentence-modification proceedings under a different provision of the Act. 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. … Today’s cases differ from Concepcion because they concern whether a prisoner is eligible for compassionate release in the first place.” (Rutherford slip op. at 14)

Put in the plainest terms: Concepcion governs how much, never whether. Cite it to argue the size of a reduction; it will not carry an eligibility argument.

The guideline the Court invalidated is still printed in the Manual

USSG § 1B1.13(b)(6) appears today, unchanged, in the current Guidelines Manual. It still reads that if a defendant “received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law … may be considered in determining whether the defendant presents an extraordinary and compelling reason,” subject to a gross-disparity requirement and full consideration of individualized circumstances.

The companion decision put it more bluntly than Rutherford did. Fernandez footnote 5 describes the Commission’s 2023 addition of the “Unusually Long Sentence” category and says flatly that the amendment, “while not relevant here, exceeds the Commission’s authority,” citing Rutherford slip op. at 15-16 (Fernandez slip op. at 13 n.5). Two opinions issued the same morning, one saying “invalid to the extent that it counsels otherwise” and the other saying “exceeds the Commission’s authority” — a gap the lower courts are now working out.

The Sentencing Commission has not amended it. The only change to § 1B1.13 taking effect November 1, 2026 is nomenclature — “Bureau of Prisons” becomes “Federal Bureau of Prisons” in subsections (a) and (b)(4) — per the official text of amendments submitted to Congress in the May 2026 cycle. The August 2026 proposed amendments contain no § 1B1.13 item at all.

That gap matters more than it sounds. A person in a federal prison law library, or a family member reading the Manual online, will find a guideline that on its face authorizes exactly the argument the Supreme Court foreclosed, with no annotation warning them. Motions built on the printed text are still reaching the courts of appeals — Chineag and Loggins, both discussed below, are recent examples — and they are being denied.

What § 1B1.13(c) still allows

Read the subsection immediately following (b)(6), because it is what survives and it is routinely overlooked:

“(c) Limitation on Changes in Law.—Except as provided in subsection (b)(6), a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) shall not be considered for purposes of determining whether an extraordinary and compelling reason exists under this policy statement. However, if a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction under this policy statement, a change in the law … may be considered for purposes of determining the extent of any such reduction.” (USSG § 1B1.13(c))

The Commission’s own Reason for Amendment explains the design: subsection (c) “governs the use of changes in the law in cases where a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction,” and in those circumstances “all changes in law, including non-retroactive amendments to the Guidelines Manual, may properly be considered in determining the extent of a sentencing reduction” (USSG App. C at 209, quoted in Hall at 16-17).

One caution before anyone leans on that commentary. In the same case, Judge Nalbandian’s concurrence observed that the passage comes from an explanation of subsection (c) rather than (b)(5), that it is “a few degrees removed from an authoritative interpretation,” and that under Sixth Circuit law “guidelines commentary may only interpret, not add to, the guidelines themselves” (Hall at 17). Subsection (c) itself is guideline text and stands on its own. The commentary is support, not the argument.

What the Courts of Appeals Have Done Since May 28, 2026

The early returns run broader than the holding, not narrower. Four decisions in the six weeks after Rutherford are worth reading in full. A note for anyone drafting: the courts of appeals are now citing the decision by its Supreme Court Reporter cite, Rutherford v. United States, 146 S. Ct. 1320 (2026), rather than the slip opinion.

United States v. Hall, No. 24-6094 (6th Cir. June 25, 2026) (published) — reverses a grant. A district court had cut eight years off a 30-year sentence, resting on the defendant’s youth at the time of the offense and his post-offense rehabilitation, “pursuant to U.S.S.G. § 1B1.13(b)(5)” (Hall at 5). The Sixth Circuit reversed per curiam. Its holding is narrower than it is often described: binding circuit precedent — United States v. Hunter, 12 F.4th 555 (6th Cir. 2021), which had rejected youth and rehabilitation as qualifying reasons — controls over § 1B1.13(b)(5) and § 1B1.13(e), following Bricker (Hall at 9-10). The court quoted Rutherford for the principle that courts “are not bound to follow the Commission’s guidance when it ‘exceed[s its] statutory authority'” (Hall at 10). Judge Nalbandian’s concurrence goes further and reads (b)(5) textually: “gravity” means real, tangible danger, and youth is not similar in gravity to the first four grounds (Hall at 13-14). The concurrence’s reasoning is persuasive, not binding, and the distinction matters if you are litigating outside the Sixth Circuit.

United States v. Chineag, No. 25-10557 (11th Cir. July 2, 2026) (not for publication) — affirms a denial. This is the first appellate decision we have found applying Rutherford to a change in law that has nothing to do with § 924(c). Chineag was serving a mandatory life sentence under 21 U.S.C. § 841(b)(1)(A) because of prior drug convictions; § 401(a) of the First Step Act later changed which priors trigger the enhancement, and § 401(c) made the change nonretroactive. The Eleventh Circuit held his § 1B1.13(b)(6) argument “foreclosed by” Rutherford, and that the resulting disparity “is an unexceptional feature of a system in which nonretroactivity is the default” (Chineag at 8-9). It separately rejected his attempt to stack six unrelated circumstances under (b)(5), holding that neither the passage of time, nor his role in the offense, nor a codefendant’s reduction “amount to extraordinary circumstances or have the same gravity as a terminal illness, the incapacitation of a family member, or sexual or physical abuse in prison” (Chineag at 7). Unpublished Eleventh Circuit decisions are not binding precedent, but this one shows how the argument is landing.

United States v. Loggins, Nos. 24-1488 and 24-1569 (8th Cir. July 10, 2026) (published) — affirms two denials. Consolidated appeals held in abeyance for more than a year pending Rutherford. The Eighth Circuit read the Supreme Court as “essentially agreeing with our prior analysis in Crandall” (Loggins at 3), and then stated the rule for its circuit: the First Step Act’s nonretroactive changes to § 924(c), “like other nonretroactive legal changes, cannot, whether offered alone or in combination with other insufficient factual considerations, constitute ‘extraordinary and compelling’ reasons” (Loggins at 7). Note the phrasing — “like other nonretroactive legal changes.” The Eighth Circuit is not confining Rutherford to § 924(c) either.

United States v. White, No. 25-1857 (6th Cir. June 15, 2026) (published) — affirms a denial, and it is the one to read if you have a strong medical case. The movant contracted meningitis in prison and emerged a partially blind paraplegic. The district court accepted that his physical condition was an extraordinary and compelling circumstance — and denied the motion anyway, on § 3553(a) alone, finding that his medical condition bore on only one of the sentencing purposes behind his sentence (White at 3-4). The Sixth Circuit affirmed, noting that a court has “wide latitude to deny compassionate release based on the seriousness of the underlying offense,” and that a movant’s “disagreement with how the district court balanced the § 3553(a) factors, standing alone, is not a sufficient ground for reversal” (White at 4-5). The one-requirement rule from United States v. Elias, 984 F.3d 516 (6th Cir. 2021) — flunk any element and you lose, without the court reaching the others — is alive and well after Rutherford.

No decision we have located holds that an “unusually long sentence” theory resting on a non-§ 924(c) change survives Rutherford. Chineag points the other way on a Controlled Substances Act change; Loggins speaks of “other nonretroactive legal changes” generally. If someone tells a family that Rutherford was limited to gun-stacking cases, ask them for the decision that says so. We have not found it.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: From inside a federal facility, the practical fallout of these two decisions arrives as bad information. Law-library copies of the Guidelines Manual still print § 1B1.13(b)(6) in full. Jailhouse packets sold and traded on compounds were built around it, and around innocence arguments dressed up as compassionate release. Both are now losing filings, and a denial on a theory that cannot work still costs real time — a warden request, a briefing schedule, and months. The BOP-facing work has not changed: the request to the warden still has to be complete under 28 C.F.R. § 571.61, the medical and program records still have to be pulled from the institution rather than summarized, and the release plan still has to be concrete. What has changed is which facts carry the motion. The legal work — the filing, the briefing, and any appeal — is handled by Elizabeth Franklin-Best and the firm’s attorneys.

What Still Qualifies After Rutherford and Fernandez

Every ground the Sentencing Commission enumerated other than § 1B1.13(b)(6) came through these decisions intact, and the two decisions together went out of their way to reaffirm the core of the statute. Fernandez called “age, illness, a child left with no guardian” the heartland (slip op. at 13). Rutherford described medical condition, age, and family circumstances as the three grounds the Commission had highlighted from 2007 to 2023 (slip op. at 10).

• Medical grounds under § 1B1.13(b)(1) — terminal illness, a serious condition that substantially diminishes the ability to provide self-care in a correctional facility, long-term care that is not being provided, and outbreak conditions. These carry more motions than anything else, and they turn on function and documentation rather than diagnosis: compassionate release medical condition.
• Age under § 1B1.13(b)(2) — 65 or older, serious deterioration from the aging process, and at least 10 years or 75% of the sentence served, whichever is less. All three elements are required: compassionate release for elderly inmates.
• Family circumstances under § 1B1.13(b)(3) — the death or incapacitation of a minor child’s caregiver, or incapacitation of a spouse, registered partner, parent, or other immediate family member where the defendant would be the only available caregiver. “Only available caregiver” is the contested element in nearly every one of these: caregiver compassionate release.
• Abuse in custody under § 1B1.13(b)(4) — expressly carved out of Rutherford by footnote 3, with its own demanding proof requirements: victims of sexual abuse lawyer.
• The catch-all at § 1B1.13(b)(5) — “any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those described in paragraphs (1) through (4).” Still on the books, and still available. But it is now the most contested provision in the guideline, and two circuits have held it cannot carry what the courts read the statute to exclude.

What has not changed at all is that clearing the eligibility gate is only half the work. In fiscal year 2025 courts cited the § 3553(a) factors 1,260 times as a reason for denying compassionate release — 24.9% of all denial reasons given, and more than twice the next most common (USSC FY2025 Compassionate Release Data Report, Table 11). White is that statistic in a single case. The related findings — that the person is not a danger to the community under 18 U.S.C. § 3142(g), and how a particular judge weighs what do judges consider when sentencing — are unchanged and still decisive.

What the data does and does not show yet

Two figures are worth stating precisely, because they are easy to misuse.

Section 1B1.13(b)(6) was cited 80 times among the 631 reasons courts gave for the 394 motions granted in fiscal year 2025 (12.7%), and 98 times among 753 reasons for 481 grants in fiscal year 2024 (13.0%) (USSC FY2025 Data Report, Table 10; USSC FY2024 Data Report, Table 10). It was the second most-cited reason for granting relief in both years. That is the size of the category the Court has now closed.

The figures for FY2026 through the second quarter show 894 motions decided, 125 granted (14.0%), with § 1B1.13(b)(6) cited 17 times among 199 reasons (8.5%) (Table 10; Tables 2-3). That reporting period runs October 1, 2025 through March 31, 2026 — it ends nearly two months before Rutherford was decided. The Commission’s September 2026 report, through June 30, 2026, adds the first month of post-Rutherford decisions: 1,432 motions decided and 195 granted (13.6%) for the fiscal year to date, § 1B1.13(b)(6) cited 24 times among 308 grant reasons (7.8%), and 18 grants among 179 motions decided in June 2026 (10.1%) (Tables 1, 2, and 10). One month of data is not yet a measure of the decisions’ effect. Grant rates by circuit and district, with the caveats each figure needs, are collected at compassionate release grant rate.

What to Do Now, Depending on Where the Motion Stands

The right next step depends entirely on the posture. Four situations cover nearly everyone.

1. A motion is pending and its theory was the length of the sentence. Assume the § 1B1.13(b)(6) argument is gone and move immediately to whatever else the record supports — medical decline, age plus time served, a caregiving collapse at home, abuse in custody. If the ground has changed materially, a supplemental filing is usually appropriate, and in most circuits a new ground means a fresh request to the warden first, because 18 U.S.C. § 3582(c)(1)(A) permits a defendant-filed motion only after full exhaustion or the lapse of 30 days from the warden’s receipt, whichever is earlier. Whether the grounds raised with the warden must match the grounds raised in court is genuinely unsettled — the Seventh Circuit requires it (United States v. Williams, 987 F.3d 700 (7th Cir. 2021)), the Fourth does not (United States v. Ferguson, 55 F.4th 262 (4th Cir. 2022)) — so the safe course everywhere is to put every ground in the request: compassionate release request to warden.

2. A motion was denied on a theory these decisions have now foreclosed. A denial for failure to show extraordinary and compelling reasons is ordinarily without prejudice to a later motion resting on genuinely changed circumstances. Refiling the same argument is a different matter. In the closely related setting of a § 3582(c)(2) guideline-amendment reduction, the Eighth Circuit held that a repeat motion “present[ing] the same legal question that the court addressed in its previous order” is a motion for reconsideration “in substance, regardless of how [it is] labelled,” and is therefore governed by the short appeal deadline in Fed. R. App. P. 4(b) rather than treated as a fresh motion (United States v. Mofle, No. 20-1212 (8th Cir. Mar. 2, 2021)). That distinction, the appeal deadline, and what a new motion actually has to show are covered at compassionate release denial and can you file compassionate release twice.

3. The real claim is about the conviction. After Fernandez it belongs in a § 2255 motion, and § 2255 runs on a one-year clock that § 3582 does not. If a compassionate release motion has been sitting where a § 2255 motion should have been filed, that is the most urgent item on the list. Start with post-conviction deadlines. Where the year has already run and no exception applies, the honest remaining options are executive: a commutation of sentence petition, which is a different process with different standards.

4. No motion has been filed yet. Build the person-focused case first and do not lead with the sentence. In practice that means: the complete BOP medical file rather than the summary a family can request; the Care Level designation, chronic-care clinic notes, and any activities-of-daily-living assessment; documentation of a family member’s incapacitation and of why no one else can provide the care; institutional conduct and programming records; and a compassionate release plan specific enough to answer the danger finding — residence, who will provide care, which provider will take the case, how it will be paid for. 28 C.F.R. § 571.61(a) requires the release plan in the warden request itself, and a request without one can be treated as not properly made. Then brief the 3553(a) factors affirmatively rather than defensively, because that is the step where most motions die.

And one situation that is not compassionate release at all. If the goal is simply to get home sooner and there is no qualifying medical, age, family, or abuse ground, the productive questions are usually administrative rather than judicial: earned time credits, residential reentry center placement, and home confinement. Those run through the Bureau of Prisons, not the sentencing court — see First Step Act time credits and federal prison early release. Sorting which route actually applies is what compassionate release attorneys spend the first conversation doing, and the categorical exclusions are set out at who is not eligible for compassionate release.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: Two drafting habits are worth adopting now. First, write the motion chronologically from the sentencing date forward. Justice Sotomayor’s Fernandez concurrence would deny relief where a motion “relies solely on facts a court already considered in imposing the initial sentence,” two Justices have signed that view, and the Ninth Circuit has already noted that the enumerated grounds generally describe things that develop after sentencing. Even where that rule is not law, a motion that shows the court what is different now is a stronger motion than one that re-argues the sentencing. Second, keep step one and step two visibly separate in the brief. Rutherford makes eligibility a gate that the § 3553(a) factors do not open — but § 1B1.13(c) still lets a change in the law inform the size of a reduction once that gate is cleared. Arguing both in the same paragraph invites a court to treat the whole thing as the argument the Supreme Court just rejected. Whether any of this produces a reduction depends on the record and the judge, and no one can promise otherwise.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best is the founder and Principal Attorney of Elizabeth Franklin-Best, P.C., a boutique firm devoted to federal criminal appeals and post-conviction relief. Over more than 20 years she has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record. She is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st-11th) plus the D.C. Circuit — and has appeared pro hac vice in federal courts from Montana to Florida. She is recognized by Best Lawyers in America 2026 for Appellate Practice and by Chambers USA 2026 for Litigation: White-Collar Crime & Government Investigations, and was named South Carolina Public Defender of the Year in 2010. She is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023) and serves as Board Chair of Justice 360.

Christopher Zoukis, JD, MBA, is the firm’s Managing Director and a nationally recognized federal prison expert. He is the author of the Federal Prison Handbook, Directory of Federal Prisons, Prison Education Guide, and College for Convicts, and serves as Chairman of the Board of the Human Rights Defense Center. He has been quoted as a federal prison expert by outlets including CNN, the Associated Press, and The Washington Post. He earned his J.D. at the University of California, Davis School of Law after serving roughly a decade in the federal Bureau of Prisons, where he became an award-winning incarcerated journalist.

The firm runs a national federal practice on an intentionally small caseload, from offices in Columbia and Mount Pleasant, South Carolina. A compassionate release motion is filed in the district that imposed the sentence, wherever in the country that is — including the four districts of Texas, where the local picture is set out at compassionate release texas.

Talk to a federal compassionate release lawyer

If a motion was built on the argument Rutherford closed, or on the argument Fernandez redirected to § 2255, the useful next step is not another motion on the same theory. It is a look at the actual record to find out what else is there.

What that review covers: the judgment and the statute of conviction; the complete BOP medical file and Care Level designation, not the summary; the institutional conduct and programming record; what has changed at home since the sentencing date and what can be documented; whether the § 2255 one-year window is open, closed, or arguably reopened; whether earned time credits or reentry placement would get the person home sooner than any court filing; the sentencing judge’s and district’s actual record on these motions; and how long the whole sequence realistically takes, which is covered at how long does compassionate release take. Part of that review is telling a family plainly when the answer is no, because after May 2026 a case whose entire theory was the length of the sentence needs a different vehicle, and the sooner that is said, the less time is lost.

Call (843) 620-1100 or schedule a consultation directly. Our federal compassionate release lawyers handle these motions nationwide.

Frequently Asked Questions About Rutherford and Fernandez

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026