USSG § 1B1.13(b)(6): The Unusually Long Sentence Provision After Rutherford

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

Is the Unusually Long Sentence Provision Still a Basis for Compassionate Release?

No — not for eligibility. Rutherford v. United States, 146 S. Ct. 1320 (2026), held that a nonretroactive change in sentencing law, “considered by itself or in combination with other factors,” cannot make a prisoner eligible, and that “[t]o the extent that it counsels otherwise, the Commission’s policy statement is invalid” (slip op. at 16). A change in law can still affect how large a reduction is.

Key takeaways on § 1B1.13(b)(6) after Rutherford

• The holding is narrower than “§ 1B1.13(b)(6) is void,” and the difference is not academic. The Court invalidated the provision “[t]o the extent that it counsels otherwise” — that is, to the extent it treats a nonretroactive change in law as a qualifying reason (Rutherford slip op. at 16). The Sixth Circuit had gone further a year earlier and held the provision invalid outright.
• We have found no decision holding that any unusually-long-sentence theory survives. Three courts of appeals have applied Rutherford since May 2026 and all three read it broadly, including to a change in the Controlled Substances Act that had nothing to do with firearms. If someone tells you the decision was limited to gun-stacking cases, ask for the citation.
• The provision is still in print, unchanged. USSG § 1B1.13(b)(6) appears today exactly as the Commission wrote it in 2023, and the only § 1B1.13 change taking effect November 1, 2026 is a renaming of the Bureau of Prisons. Anyone reading the Manual in a prison law library is reading a provision the Supreme Court has held invalid in significant part, with no annotation saying so.
• Courts leaned on it heavily while it lasted. Section 1B1.13(b)(6) was cited 98 times among the 753 reasons courts gave for the 481 motions granted in fiscal year 2024 and 80 times among 631 reasons for the 394 granted in fiscal year 2025 (USSC FY2024 and FY2025 Compassionate Release Data Reports, Table 10). Those are counts of reasons cited, not counts of cases.
• Two Eighth Circuit decisions still control how the provision’s own words are read, and both remain good law because neither depended on the provision being valid: a life sentence is not automatically “unusually long,” and the ten-year clock runs on the sentence that court imposed.
• Three questions are expressly reserved by the Supreme Court — whether anything beyond personal circumstances can qualify, where the outer boundary of “extraordinary and compelling” falls, and whether codefendant disparity or post-judgment developments can support relief. Reserved is not the same as available. See compassionate release definition for how the term is used across the statute.

The Provision, Quoted in Full — and the Four Gates It Built

Here is § 1B1.13(b)(6) exactly as the Sentencing Commission promulgated it in Amendment 814, effective November 1, 2023, and exactly as it still reads in the 2025 Guidelines Manual:

“(6) Unusually Long Sentence.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.”

Read as a checklist, that sentence built four gates, all of which had to be cleared before a change in law counted for anything:

Gate	What the text requires	Who decides, and on what record
1. An unusually long sentence	The sentence being served must itself be “unusually long.” The Commission never defined the phrase	The district court, comparing this defendant and this offense conduct against sentences in comparable cases. Rodriguez-Mendez holds the term is “inherently comparative”
2. At least 10 years served	Ten years of “the term of imprisonment” — the definite article does the work	Chachanko holds this means the sentence imposed by the court being asked to reduce it, not aggregate federal time across districts
3. A qualifying change in the law	Any change except a Guidelines amendment the Commission has not made retroactive. Non-retroactive guideline amendments were carved out from the start	The court, on the statute or decision said to have changed. Retroactive guideline amendments run through a different statute entirely
4. A gross disparity	The change must “produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.” Also never defined	The court, comparing the sentence being served against a realistic present-day sentence — statutory minimum, guideline range, and the judge’s likely position within it

Then a fifth requirement sits at the end of the sentence and is not a gate so much as an instruction: the change may be considered only “after full consideration of the defendant’s individualized circumstances.” Even a movant who cleared all four gates did not get an automatic finding. And the whole provision was a step-one device — it went to whether someone was eligible, not to how much relief a judge should give, which is the 3553(a) factors question that comes second.

Subsection (c) is the necessary companion, and it did not go away

Subsection (b)(6) never stood alone. The Commission wrote it together with USSG § 1B1.13(c), which does two opposite things in two sentences:

“(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 (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction.”

The first sentence is a bar: outside (b)(6), a change in the law is off the table at step one. The second sentence is a permission: once eligibility is established on some other ground, a change in the law is fully available to argue how far the sentence should come down. That second sentence is where the change-in-law argument now lives, and it is covered below.

And a structural point most people miss: the catch-all is not a back door

The catch-all at § 1B1.13(b)(5) permits “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).” Paragraph (6) is not in that comparison set. The Eighth Circuit noticed, describing (b)(5) as accepting circumstances “similar in gravity” to a listed reason, “other than an ‘unusually long sentence'” (United States v. Chachanko, No. 24-2440 (8th Cir. Dec. 17, 2025) (published), at 4). So the instinct to re-file the same theory under the catch-all runs into a textual wall that has nothing to do with Rutherford — and, as shown below, into Rutherford as well.

Where § 1B1.13(b)(6) Came From — and How Heavily Courts Used It

The provision exists because of a five-year gap in which nobody was minding the guideline. The First Step Act of 2018 let federal prisoners file their own compassionate release motions for the first time, ending the Bureau of Prisons’ monopoly on the filing. But the policy statement courts had to apply, § 1B1.13, still described a Bureau-filed motion. The Commission’s own explanation of Amendment 814 says why it stayed that way: “Because the Commission lost its quorum in early 2019 and did not regain it until 2022, it was unable to amend §1B1.13 during the more than four-year period since defendants were first permitted to file such motions” (Amendment 814, Reason for Amendment).

In that gap the courts of appeals split on a single question: whether a change in sentencing law that Congress had declined to make retroactive could be an extraordinary and compelling reason. The Commission’s stated purpose in writing (b)(6) and (c) was to end that split — the two subsections “operate together to respond to a circuit split concerning when, if ever, non-retroactive changes in law may be considered as extraordinary and compelling reasons,” and the amendment “agrees with the circuits that authorize a district court to consider non-retroactive changes in the law … but adopts a tailored approach that narrowly limits that principle in multiple ways” (Amendment 814, Reason for Amendment). The limits were the four gates above. The ten-year floor, the Commission said, was added “to address administrative concerns raised by some commenters.”

Not everyone at the Commission agreed. The Supreme Court recorded the dissent in its own opinion: “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'” (Rutherford slip op. at 6, quoting United States Sentencing Commission, Public Meeting Tr. 60 (Apr. 5, 2023)). Three years later, six Justices agreed with the dissenting commissioners.

The usage numbers, stated precisely

The Sentencing Commission codes the reasons district judges give when they grant a motion. A single grant can carry several reasons, so the totals below count reasons cited, not cases:

Period	Motions granted	Total reasons cited	§ 1B1.13(b)(6) citations	Share of all reasons	Rank among all reasons
FY2024	481	753	98	13.0%	2nd, behind rehabilitation (115)
FY2025	394	631	80	12.7%	2nd, behind rehabilitation (95)
FY2026 Q1–Q2	125	199	17	8.5%	3rd, behind rehabilitation (34) and serious physical or medical condition (27)

Sources: USSC FY2024, FY2025, and FY2026 Q1–Q2 Compassionate Release Data Reports, Table 10 in each.

Two things make those numbers larger than they look. First, the reason ranked above (b)(6) in both full years — rehabilitation — cannot stand on its own. 28 U.S.C. § 994(t) provides that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason,” and the Commission’s own footnote to Table 10 confirms that in every case where rehabilitation was cited, the court gave at least one other reason. That makes § 1B1.13(b)(6) the most frequently cited freestanding ground for granting compassionate release in FY2024 and FY2025.

Second, the Commission codes several change-in-law categories separately from the (b)(6) line. In FY2025 alone, courts also cited “Multiple 18 U.S.C. § 924(c) penalties” 45 times, “Other mandatory minimum penalties/long sentence” 31 times, “21 U.S.C. § 851 enhanced drug penalties” 18 times, “Career Offender issues” 16 times, and “ACCA issues” twice (FY2025 Report, Table 10). Add those to the 80 and the scale of what Rutherford reached becomes clear. For grant rates by circuit and district over the same period, see compassionate release grant rate.

One caution on the newest numbers. The FY2026 Q1–Q2 report covers October 1, 2025 through March 31, 2026 — it ends nearly two months before Rutherford was decided. No published Commission data measures the effect of the decision yet.

Exactly What Rutherford Did to § 1B1.13(b)(6)

Rutherford did not strike the provision from the book. It held the provision invalid in one specific respect, and the wording of that holding is the single most important sentence on this page.

The mechanism is worth one paragraph because every (b)(6) theory shares its shape. Rutherford and his co-petitioner were serving stacked counts under 18 U.S.C. § 924(c), where a second count once carried a mandatory 25 years on top of the first. Section 403(a) of the First Step Act ended that rule, but § 403(b) applied the change only “to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Their sentences had been imposed. They argued the resulting gap was itself extraordinary and compelling. The Court disagreed, in three sentences:

“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)

One piece of the reasoning matters here because it controls how far the holding travels: the Court treated the disparity as ordinary rather than extraordinary precisely because it flows from a legislative choice. “Far from ‘extraordinary,’ nonretroactive amendments to criminal penalties are the norm,” and treating “Congress’s deliberate decision not to extend newly reduced penalties to those already sentenced” as a reason to reduce “would undermine Congress’s choice to leave the sentence intact” (slip op. at 9). The full reasoning is covered at rutherford v united states.

“Invalid to the extent” versus “invalid outright” — and why the distinction is real

A year before Rutherford, the Sixth Circuit had held the whole provision invalid. In United States v. Bricker, 135 F.4th 427 (6th Cir. 2025), the court concluded “that the Commission overstepped its authority and issued a policy statement that is plainly unreasonable under the statute and in conflict with the separation of powers. We therefore hold that U.S.S.G. § 1B1.13(b)(6) is invalid” (Bricker at 3).

Rutherford did not adopt Bricker‘s formulation. It vindicated Bricker‘s outcome while writing the invalidity as conditional: invalid to the extent the provision counsels that a nonretroactive change can make a prisoner eligible. For someone whose theory is a stacked § 924(c) sentence or a pre-2018 drug mandatory minimum, the difference makes no practical difference — both formulations kill the motion. For anyone else, the difference is the entire question, because “to the extent that it counsels otherwise” leaves the residue of the provision technically on the books.

The Eleventh Circuit has since described the holding in terms narrower than any other court: “Rutherford held that § 1B1.13(b)(6) is invalid when based on a nonretroactive change in statutory sentencing law” (United States v. Chineag, No. 25-10557 (11th Cir. July 2, 2026) (not for publication), at 8). Whether that word “statutory” is doing real work — whether a change in decisional law stands differently from a legislative nonretroactivity choice — is untested, and the Eighth Circuit’s phrasing pulls the other way. See the status table below.

Status Table: Every Theory People File Under (b)(6), and What It Is Worth Now

This is the table to read if you are trying to find out, in one place, whether the specific argument in your motion still works. Every row states the theory, its status after Rutherford, and the authority — not a general impression.

The theory	What the motion argued	Status after Rutherford	Authority
Stacked § 924(c) counts	The First Step Act § 403 ended 25-year stacking for first-time offenders; the sentence would be decades shorter today	Foreclosed for eligibility. This is the precise question decided	Rutherford, 146 S. Ct. 1320 (slip op. at 16); United States v. Loggins, Nos. 24-1488, 24-1569 (8th Cir. July 10, 2026) (published), at 7
Stacked § 924(c) counts, combined with health, family, and rehabilitation	The disparity is one ingredient among several, not the whole motion	Foreclosed. The holding is written in the disjunctive precisely to reach this	“considered by itself or in combination with other factors” (Rutherford slip op. at 16); Loggins at 7 (“whether offered alone or in combination with other insufficient factual considerations”)
Pre-First-Step-Act drug mandatory minimums	First Step Act § 401 changed which prior convictions trigger enhanced penalties under 21 U.S.C. § 841(b)(1)(A); § 401(c) made it nonretroactive	Foreclosed. Applied to a non-§ 924(c), Controlled Substances Act change	Chineag at 8–9 (mandatory life would be a 10-year minimum today; still “an unexceptional feature of a system in which nonretroactivity is the default”)
§ 851 enhanced drug penalties	The prior convictions noticed under 21 U.S.C. § 851 would not qualify as “serious drug felon[ies]” today	Foreclosed. Same statutory change as the row above; the § 851 information is the notice mechanism, not a separate ground	Chineag at 8–9; First Step Act § 401(a), (c)
Career-offender changes	A guideline amendment or intervening decision means the career-offender enhancement would not apply today	Never covered by (b)(6) if the change is a non-retroactive guideline amendment — the text carves those out expressly. Barred at step one by § 1B1.13(c); available at step two	USSG § 1B1.13(b)(6), (c). If the argument is that the enhancement was unlawful, it belongs in a § 2255 motion
Any non-retroactive Guidelines amendment	A later amendment would produce a lower range today	Excluded by the guideline’s own text, before Rutherford and after. Step two only	§ 1B1.13(b)(6) (“other than an amendment to the Guidelines Manual that has not been made retroactive”); § 1B1.13(c)
A retroactive Guidelines amendment	The Commission made an amendment retroactive and the range is now lower	Not a compassionate release question at all. It runs through 18 U.S.C. § 3582(c)(2) and USSG § 1B1.10	The Commission wrote the (b)(6) carve-out to keep the two routes separate, citing Dillon v. United States, 560 U.S. 817 (2010) (Amendment 814, Reason for Amendment)
Codefendant sentencing disparity	A codefendant, sometimes more culpable, received or later obtained a far lower sentence	Expressly reserved by the Supreme Court — and rejected on the facts by the first appellate court to reach it. Not foreclosed in principle; not yet accepted anywhere	“We need not decide whether compassionate release is available for these kinds of postjudgment developments” (Rutherford slip op. at 11 n.6, discussing United States v. Diaco, 457 F. Supp. 371 (D.N.J. 1978)); but see Chineag at 7 (codefendant’s sentence reduction does not “have the same gravity as a terminal illness, the incapacitation of a family member, or sexual or physical abuse in prison”)
Post-judgment state-court developments	Later state proceedings made the federal sentence operate far more harshly than the judge intended	Expressly reserved. Same footnote	Rutherford slip op. at 11 n.6, discussing Setser v. United States, 566 U.S. 231, 242–243 (2012)
A change in circuit or decisional law	A court of appeals or the Supreme Court has since read the statute differently, and the sentence would be lower today	Untested, and the odds are poor. We have found no decision accepting it. The Eleventh Circuit’s framing ties invalidity to “statutory sentencing law”; the Eighth Circuit’s reaches “other nonretroactive legal changes.” Where the real claim is that the sentence was unlawful, Fernandez channels it to § 2255	Chineag at 8; Loggins at 7; Fernandez v. United States, 146 S. Ct. 1292 (2026). Route comparison: compassionate release vs 2255
The same theory re-filed under the (b)(5) catch-all	Call it “other reasons” instead of “unusually long sentence”	Closed twice over — by the text, which measures gravity only against paragraphs (1)–(4), and by the courts	§ 1B1.13(b)(5); Chachanko at 4; Chineag at 7; United States v. Hall, No. 24-6094 (6th Cir. June 25, 2026) (published)
A change in law used to set the size of a reduction	Eligibility is established on medical, age, family, or abuse grounds; the change in law shows how far the sentence should fall	Still permitted by the guideline’s text. This is a step-two argument and Rutherford spoke to step one	USSG § 1B1.13(c), second sentence; Rutherford slip op. at 13–14 (eligibility is “a distinct analytical step”)

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The row that gets misread most often is the codefendant row. “Expressly reserved” is a description of what the Supreme Court declined to decide, not a signal that the argument is available. A reservation is worth preserving in a brief — it costs a paragraph, it keeps the issue alive for appeal, and footnote 6 is real. It is not worth building a motion on, and it is certainly not worth telling a family that the door is open. The honest framing for a client is that the Court left two narrow questions undecided, that the first court of appeals to face one of them said no on those facts, and that a motion whose only theory is a reserved question is a motion asking a district judge to make new law. Some are worth filing on that basis. Most are not, and which is which depends on the record, the circuit, and the judge.

What Rutherford Expressly Left Open — and What the Circuits Have Done With It

Three reservations sit inside the opinion, and they are the difference between a provision that was narrowed and a statute that was closed.

The Court did not hold that only “personal circumstances” qualify. After describing medical condition, age, and family circumstances as the historical heartland of compassionate release, it 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). Any page telling you the Court announced a closed list is telling you more than the Court said.

The Court did not define the outer boundary. “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).

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

Set against those reservations is what the courts of appeals have actually done in the months since, which is to read the decision broadly.

• United States v. Chineag, No. 25-10557 (11th Cir. July 2, 2026) (not for publication). The first appellate application of Rutherford we have found to a change that has nothing to do with firearms: a mandatory life sentence under § 841(b)(1)(A) that would carry a ten-year minimum today. The (b)(6) argument was “foreclosed,” and the six circumstances stacked under the catch-all — including a codefendant’s reduction — failed too (Chineag at 7, 8–9). Unpublished Eleventh Circuit decisions are not binding precedent.
• United States v. Loggins, Nos. 24-1488 and 24-1569 (8th Cir. July 10, 2026) (published). Consolidated appeals held in abeyance for more than a year awaiting Rutherford. The Eighth Circuit read the Supreme Court as “essentially agreeing with our prior analysis in Crandall” (Loggins at 3) and then stated its own rule: 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). That phrasing is not confined to § 924(c).
• United States v. Hall, No. 24-6094 (6th Cir. June 25, 2026) (published). A government appeal from a grant. The district court had cut eight years off a 30-year sentence based on the defendant’s youth at the time of the offense and his rehabilitation, “pursuant to U.S.S.G. § 1B1.13(b)(5).” The Sixth Circuit reversed per curiam. Read the holding precisely: it is circuit-precedent-specific. Binding Sixth Circuit precedent — United States v. Hunter, 12 F.4th 555 (6th Cir. 2021) — had already rejected youth and rehabilitation, and “[b]ecause Hunter trumps § 1B1.13(b)(5), courts in this Circuit are bound by its holding” (Hall at 10). The broader textual reading of (b)(5) — that youth is not “similar in gravity” to the first four grounds — is Judge Nalbandian’s separate concurrence, not the opinion of the court, and it is persuasive rather than binding outside the Sixth Circuit. What Hall does establish everywhere is a warning: a grant already entered under a theory the law has since rejected can be appealed and reversed.

The plain statement, because it is the thing most sites will not say: we have found no decision holding that a non-§ 924(c) unusually-long-sentence theory survives Rutherford. Chineag points the other way on a drug-statute change. Loggins speaks of “other nonretroactive legal changes” generally. If someone tells a family that the decision was limited to gun-stacking, the appropriate response is to ask which case says so.

The Two Eighth Circuit Decisions That Still Govern the Provision’s Own Words

These two decisions matter to anyone still litigating § 1B1.13(b)(6) — on appeal, in a pending motion, or in a jurisdiction where the government has for some reason not raised Rutherford. Both interpret the guideline’s own elements, and neither depended on the provision being valid, so neither was disturbed by Rutherford.

“Unusually long” is a comparison, not a number

In United States v. Rodriguez-Mendez, No. 24-2854 (8th Cir. Mar. 9, 2026) (published), the movant was serving a mandatory life sentence imposed in 2002 for a methamphetamine conspiracy, plus concurrent and consecutive terms. He argued that a life sentence is always unusually long, since federal courts impose relatively few of them for drug offenses. The Eighth Circuit rejected the argument: “However logical, the argument fails as an attempt at statutory construction because it would mean that every federal inmate serving a life sentence is eligible for a § 3582(c)(1)(A)(i) reduction if he has served ten years of that sentence.” Instead, “‘unusually long,’ an inherently comparative term, must be determined in the context of a particular defendant and his offense conduct” (Rodriguez-Mendez at 6). Because he had led “a large, violent drug trafficking conspiracy,” his sentence was not unusually long: “There is nothing unusual about the most serious offenders receiving the harshest sentences.”

The opinion then does something the Supreme Court never had to reach, and it is the part practitioners should read. It holds, independently, that he “has also not shown a gross disparity between his life sentence and the sentence he would likely receive if sentenced when he filed” — because the First Step Act “did not reduce his guidelines range — which still includes a life sentence — nor eliminate the sentencing judge’s likely decision to sentence [him] at the high end of that range” (at 7). The court noted that the sentencing judge had already gone to the statutory maximum on a lesser count whose guideline range began at 360 months. That is what a gross-disparity analysis actually looks like: not statutory minimum versus statutory minimum, but the whole realistic sentencing picture today. And footnote 3 is what preserves all of it — the panel “assume[d] without deciding that § 1B1.13(b)(6) is a valid applicable policy statement,” so its reading of the guideline’s terms stands on its own.

“The term of imprisonment” means the sentence that court imposed

United States v. Chachanko, No. 24-2440 (8th Cir. Dec. 17, 2025) (published), opens with the sentence that decides it: “Definite articles like ‘the’ can make a difference.” Chachanko had been sentenced in Montana to 219 months, then in South Dakota to a consecutive 300 months for a second § 924(c) count. Seventeen years into his total federal time, he moved to reduce the South Dakota sentence and argued the two should be added together to satisfy the ten-year threshold.

The Eighth Circuit said no. “The” in “the term of imprisonment” refers back to the specific sentence the court imposed and is being asked to reduce, so “‘the term of imprisonment’ requiring service of ‘at least 10 years’ is the South Dakota sentence — the same one Chachanko seeks to have reduced — and that one only” (Chachanko at 6). The aggregation rule in 18 U.S.C. § 3584(c), which treats consecutive terms as a single aggregate term, applies “for administrative purposes” — that is, for the Bureau of Prisons, which administers sentences, not for the court deciding eligibility (at 6–7). The district court had observed that if he were serving the sentences in the reverse order, it might have granted the motion.

The practical consequence outlives the provision. Anyone whose federal time is spread across two judgments needs to know which judgment the ten-year clock runs on before anyone counts years — and that is a sentence-computation question with a legal answer, not an arithmetic one.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: These two decisions are the reason we do not describe Rutherford as the only obstacle. Before the Supreme Court ever ruled, (b)(6) motions were failing on the provision’s own terms, because the Commission defined neither “unusually long sentence” nor “gross disparity” and left both to district judges who were free to look at the offense conduct. When we evaluate a file where a (b)(6) motion was denied, the first question is what the court actually held. A denial that rested on “not unusually long given this conduct,” or on “no gross disparity because the guideline range is unchanged,” is a merits ruling on facts that have not changed, and refiling the same argument will not move it. A denial that rested only on the government’s Rutherford argument is a different posture. The distinction determines whether there is anything to work with, and it is in the order — not in the summary anyone gives you over the phone.

Why an Invalid Provision Is Still Printed in the Guidelines Manual

Because nobody has taken it out, and no one is required to. The Sentencing Commission has not amended § 1B1.13 in response to Rutherford. The only change to the guideline 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.

So the 2025 Guidelines Manual on the Commission’s website, the printed volumes in federal prison law libraries, and every commercial copy in circulation all still carry § 1B1.13(b)(6) in full, with no annotation, no strikethrough, and no note that the Supreme Court has held it invalid in significant part. A person in a housing unit who looks up the guideline finds a provision that on its face authorizes precisely the argument the Court foreclosed.

The companion decision states the problem more bluntly than Rutherford does. Fernandez v. United States, 146 S. Ct. 1292 (2026), decided the same morning, 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 (Fernandez slip op. at 13 n.5). Two opinions issued the same day, one saying “invalid to the extent that it counsels otherwise” and the other saying “exceeds the Commission’s authority.”

The consequence is measurable in filings. Motions built on the printed text are still reaching the courts of appeals — Chineag and Loggins are recent examples — and they are being denied. A denial on a theory that cannot work is not free: it consumes a request to the warden, a briefing schedule, and months of a person’s remaining time. For how long that sequence actually takes, see how long does compassionate release take.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: From inside a federal facility, this gap arrives as bad information that looks authoritative. The law-library copy of the Manual is the official book, and it still prints the provision in full. Packets sold and traded on compounds were built around it and are still circulating. When a family calls after a denial, the first thing worth doing is not legal at all — it is getting the actual documents: the judgment and commitment order, the statute of conviction, the sentence-computation data sheet showing which judgment the person is serving and when it started, the full BOP medical file rather than the summary, and the institutional conduct and programming record. Those documents determine whether any ground survives, and they take weeks to assemble through the institution. Whether the case then supports a motion, and what that motion argues, is a legal judgment that Elizabeth Franklin-Best and the firm’s attorneys make.

Where the Change-in-Law Argument Still Lives: § 1B1.13(c) at Step Two

The second sentence of § 1B1.13(c) is the part of the guideline that Rutherford did not touch, and it is routinely overlooked because it sits directly under the provision everyone is reading about.

“However, if a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction under this policy statement, a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction.” (USSG § 1B1.13(c))

The Commission designed this deliberately. Subsection (b)(6) “narrowly limits the circumstances in which a non-retroactive change in the law can constitute an extraordinary and compelling reason,” while 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” (Amendment 814, Reason for Amendment).

Rutherford is consistent with that structure, and it said so in the course of rejecting the petitioners’ argument. They contended a sentencing court may consider all relevant information, including disparity under 18 U.S.C. § 3553(a)(6). The Court’s answer was four words — “Petitioners skip a step” — followed by the rule: before determining the extent of a reduction under § 3553(a), “a court must first ensure that a movant is part of the ‘limited class of prisoners’ who are ‘eligibl[e]'” (Dillon v. United States, 560 U.S. 817 (2010), quoted at Rutherford slip op. at 13). Eligibility “is not, as petitioners seem to believe, a free-for-all. It is a distinct analytical step” (slip op. at 13–14).

So the sequence after May 2026 is fixed, and getting it backwards is what loses motions:

1. Establish eligibility on a ground that has nothing to do with a change in law. Medical condition, age plus time served, family circumstances, or abuse in custody — see compassionate release medical condition, compassionate release for elderly inmates, caregiver compassionate release, and victims of sexual abuse lawyer.
2. Only then introduce the change in law, expressly framed as bearing on the extent of the reduction under § 1B1.13(c) and on unwarranted disparity under § 3553(a)(6).
3. Brief the sentencing factors affirmatively, because that is where most motions die, and answer the danger finding — see 3553(a) factors, danger to the community, and what do judges consider when sentencing.

Two cautions. We have found no decision holding that § 1B1.13(c)’s second sentence is itself invalid — but the argument must be labeled extent-only, in terms, or a court reading Rutherford broadly may treat it as the eligibility theory the Court just rejected wearing a different hat. And clearing step one is not winning: in FY2025 courts cited the § 3553(a) factors 1,260 times as a denial reason, 24.9% of all reasons given for denials and more than twice the next most common (USSC FY2025 Compassionate Release Data Report, Table 11).

What to Do Instead, Depending on Where Your Case Stands

For a meaningful number of people the honest answer is that this route is now closed. Saying so quickly is more useful than a second motion on the same theory. Here is how the posture changes the next step.

If a motion is pending and its theory was the length of the sentence. Assume the § 1B1.13(b)(6) argument is gone and move to whatever else the record supports — medical decline, age plus time served, a caregiving collapse at home, abuse in custody. If a genuinely new ground is added, most practitioners submit 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 of administrative rights or the lapse of 30 days from the warden’s receipt of the request, whichever is earlier — and whether the grounds raised with the warden must match the grounds raised in court is unsettled across the circuits. Put every ground in the request: compassionate release request to warden.

If a motion was already granted on a (b)(6) theory. Hall is the cautionary case: the government appealed a grant, and the Sixth Circuit reversed it. A grant is not final while the appeal period runs or an appeal is pending, and a person released under an order later reversed is in a genuinely difficult position. This is a situation to put in front of counsel immediately rather than to wait out.

If the motion was denied. A denial for failure to show extraordinary and compelling reasons is ordinarily without prejudice to a later motion resting on genuinely changed circumstances — but refiling the same argument is treated as a motion for reconsideration in substance regardless of its label, which carries a much shorter appeal clock. What a new motion has to show, and what the appeal deadline is, are covered at compassionate release denial and can you file compassionate release twice.

If the real claim is that the conviction or the sentence is unlawful. That is not a compassionate release claim at all after Fernandez, which held that “[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). A great many “unusually long sentence” arguments are really this — the enhancement should not have applied, the predicate was not a crime of violence, counsel failed to object. Section 2255 carries a one-year deadline that § 3582 does not, which makes this the most time-sensitive item on the list. Start with compassionate release vs 2255 and post-conviction deadlines.

If nothing judicial is left. Executive relief operates on different standards and a different timeline, and it is the route that does not care whether Congress made a change retroactive. See federal clemency attorney and commutation of sentence.

And if the goal is simply to get home sooner. Where 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, all of which run through the Bureau of Prisons rather than the sentencing court. See First Step Act time credits and federal prison early release. Which route actually applies is what compassionate release attorneys sort out in the first conversation, and the categorical exclusions are set out at who is not eligible for compassionate release. Whatever route is chosen, a concrete compassionate release plan is required for the judicial one and useful for all of them.

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, was named South Carolina Public Defender of the Year in 2010, and is the author of Reversing Your Criminal Conviction: Develop Your Winning Strategy (2023).

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. If the words “unusually long sentence” are new to you, the plain-language starting point is what is a compassionate release.

Talk to a federal compassionate release lawyer

If a motion was built on § 1B1.13(b)(6), the useful next step is not a second motion on the same theory. It is a look at the actual record to find out what else is there — and, where nothing is, to say so.

That review covers the judgment and the statute of conviction; which judgment the person is actually serving and when the clock on it started; the complete BOP medical file and Care Level designation rather than the summary; institutional conduct and programming records; 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; and how the sentencing judge and district have actually ruled on these motions. Background on the guidelines themselves is at federal sentencing guidelines, and how the First Step Act reshaped this area is at compassionate release first step act.

Call (843) 620-1100 or schedule a consultation directly. Our federal compassionate release lawyers handle these motions nationwide, and a federal compassionate release attorney can tell you in one conversation whether the theory your motion rested on still exists.

Frequently Asked Questions About the Unusually Long Sentence Provision

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