Petition for Initial Hearing En Banc, United States v. Michael Norwood

This appeal involves a question of exceptional importance because it implicates binding circuit precedent that directly conflicts with the United States Sentencing Commission’s exercise of statutorily delegated authority. Congress expressly charged the Commission with promulgating policy statements and guidelines establishing, among other things, a framework governing compassionate release of federal prisoners. 28 U.S.C. § 994(a), (t). So, when Congress provided that district courts could consider a sentence reduction if warranted by “extraordinary and compelling reasons,” 18 U.S.C. § 3582(c)(1)(A), Congress did not define that phrase. Instead, it directed the Commission to do so. 28 U.S.C. § 994(t). The Commission did as Congress instructed. In 2023, it issued a binding policy statement clarifying that, in specified circumstances, nonretroactive changes in sentencing law may constitute an extraordinary and compelling reason for a sentence reduction. See U.S.S.G. § 1B1.13(b)(6). But a panel of this Court held that the Commission lacked the authority to promulgate this policy statement. See United States v. Rutherford, 120 F.4th 360, 374-76 (3d Cir. 2024). Rutherford was wrong to invalidate the Commission’s exercise of its expressly delegated authority, and only the en banc court can right that wrong. Under Rutherford, a nonretroactive change in sentencing law can never be an extraordinary and compelling reason to grant compassionate release. As long as Rutherford remains binding, Appellant Michael Norwood’s request for compassionate release is foreclosed. But if this Circuit follows the Commission’s binding policy statement, a district court would have discretion to consider Norwood’s request. The Court should grant en banc review and overrule Rutherford.