Anti-Stacking Amendment
Before the First Step Act, a second or subsequent conviction under section 924(c) mandated the imposition of a minimum sentence of 25 years to run consecutive to all other sentences, including any sentence imposed for a first conviction under section 924(c) (even in the same case). The First Step Act’s anti-stacking amendment removed reference to a “second or subsequent conviction” and amended the statute as follows:
In the case of a second or subsequent conviction [violation of this subsection that occurs after a prior conviction under this subsection has become final], the person shall—
(i) be sentenced to a term of imprisonment of not less than 25 years; and
(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.
18 U.S.C. § 924(c)(1)(C).
The act thereby eliminated stacking the 25-year mandatory minimum sentences for multiple convictions of section 924(c) except under certain circumstances. The act also explicitly made section 924(c)’s anti-stacking amendment nonretroactive. See Pub. L. No. 115-391, §§ 403(b), 132 Stat. 5194, 5221.
Black is serving a 40-year sentence, 30 years of which come from stacked section 924(c) convictions of consecutive 5- and 25-year terms. Under the First Step Act’s revised stacking regime, Black’s section 924(c) convictions would carry consecutive 5-year mandatory minimum terms, so his total sentence would be 20 years rather than 40.
Prisoner-Initiated Sentence Reduction Motions
In addition to the anti-stacking amendment, the First Step Act also included an amendment of section 3582(c)(1)(A) to allow prisoners to initiate sentence reduction motions.
But shortly after the First Step Act became law, the Commission lost its quorum and with it the ability to issue a policy statement applicable to the newly enabled prisoner-initiated compassionate release motions. During the period when the Commission lacked its quorum, the Seventh Circuit held in United States v. Thacker that the First Step Act’s anti-stacking amendment cannot be considered an extraordinary and compelling reason to authorize a sentencing reduction because doing so would give the amendment retroactive effect, which Congress expressly prohibited. Thacker, 4 F.4th 569 (7th Cir. 2021).
After the Seventh Circuit decided Thacker, however, the Commission regained a quorum and issued an updated policy statement, section 1B1.13(b)(6), which directly contradicts Thacker’s holding. U.S.S.G. § 1B1.13(b)(6). That policy statement says that under certain conditions, a change in the law—such as the First Step Act’s anti-stacking amendment—can be considered an extraordinary and compelling reason to warrant a sentence reduction as long as the change in the law produces a gross disparity between the sentence the defendant is serving and the sentence the defendant would receive if the motion were granted.
Black invoked section 1B1.13(b)(6) and moved for a sentence reduction under section 3582(c)(1)(A), arguing that section 924(c)’s anti-stacking amendment constitutes an extraordinary and compelling reason to reduce his sentence. The district court denied Black’s motion, finding that the Commission’s policy statement in section 1B1.13(b)(6) yields to Thacker’s contrary holding that section 924(c)’s anti-stacking amendment cannot constitute an extraordinary and compelling reason. On appeal, the Seventh Circuit therefore had to determine which interpretation of section 3582(c)(1)(A) controls—Thacker or the revised section 1B1.13(b)(6).
Seventh Circuit’s Holding
The Seventh Circuit held that its interpretation of extraordinary and compelling in Thacker prevails over the Commission’s because the Commission exceeded its statutory authority. It cited Loper Bright, in which the Supreme Court held that when Congress explicitly delegates to an agency the authority to interpret a statute—as it did when it assigned the Sentencing Commission the task of defining what constitutes an extraordinary and compelling reason to warrant a sentencing reduction—the role of the reviewing court, to independently interpret the statute and effectuate the will of Congress, entails determining the boundaries of the delegated authority and ensuring that the agency has engaged in “reasoned decisionmaking.” See Loper Bright, 603 U.S. 369, 394–95 (2024).
The Seventh Circuit noted that the Commission’s interpretation of extraordinary and compelling must be “consistent with all pertinent provisions of any Federal statute.” 28 U.S.C. § 994(a). Thus, if the Commission’s revised policy statement at section 1B1.13(b)(6) conflicts with another statute (here, the First Step Act), the Commission has exceeded the scope of its explicitly delegated authority, and section 1B1.13(b)(6) is invalid.
The court found that section 1B1.13(b)(6) conflicts with the First Step Act because it makes section 924(c)’s anti-stacking amendment an extraordinary and compelling reason and thereby renders it retroactive, in violation of Congress’s explicit directive that the anti-stacking amendment be nonretroactive. The court held that the Commission’s policy statement exceeds the scope of its explicitly delegated authority and is therefore invalid.
The court held that because the only extraordinary and compelling reason that Black argued in his motion for compassionate release was section 924(c)’s anti-stacking amendment, he was ineligible for a sentence reduction, and the district court properly denied his motion.
Circuit Judge David Hamilton dissented. He argued that once the Commission issued its revised policy statement at section 1B1.13(b)(6), the issue no longer became whether Thacker controls but rather whether the Commission’s interpretation was reasonable within the bounds of the law. Because Congress imposed only one specific limitation when it delegated authority to the Commission to interpret extraordinary and compelling—namely, as specified in 28 U.S.C. § 994(t), that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason”—the Court needed to defer to the Commission’s interpretation as long as it was consistent with that limitation.
Hamilton also argued that section 1B1.13(b)(6) can easily coexist with the First Step Act’s nonretroactive provision because the policy statement requires the district court to engage in a multifactor analysis before automatically entitling all defendants to resentencing under the anti-stacking amendment.
Circuit Split
The Black decision deepens a circuit split on this issue. The Seventh, Third, Fifth, Sixth, Eighth, and D.C. Circuits have held that section 924(c)’s anti-stacking amendment cannot constitute an extraordinary and compelling reason for a sentence reduction. See Thacker, 4 F.4th at 571, 576; United States v. Andrews, 12 F.4th 255, 260–61 (3d Cir. 2021); United States v. Austin, 125 F.4th 688, 692 (5th Cir. 2025); United States v. McCall, 56 F.4th 1048, 1050 (6th Cir. 2022); United States v. Crandall, 25 F.4th 582, 585–86 (8th Cir. 2022); United States v. Jenkins, 50 F.4th 1185, 1198 (D.C. Cir. 2022). The First, Fourth, Ninth, and Tenth Circuits have held to the contrary. See United States v. Ruvalcaba, 26 F.4th 14, 24–26 (1st Cir. 2022); United States v. McCoy, 981 F.3d 271, 286–88 (4th Cir. 2020); United States v. Chen, 48 F.4th 1092, 1097–98 (9th Cir. 2022); United States v. McGee, 992 F.3d 1035, 1047–48 (10th Cir. 2021).
Loper Bright: Court Interpretive Authority and Compassionate Release
Black is an early example of Loper Bright’s influence over a district court’s discretion to interpret Sentencing Commission guidelines and compassionate release motions.
