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CLOSE BUT NO CIGAR IN COMPASSIONATE RELEASE APPEAL
Since last spring’s disappointing Supreme Court decision in Rutherford v. United States, a case that held courts cannot consider non-retroactive statutory changes as extraordinary and compelling reasons for 18 USC § 3582(c)(1)(A)(i) compassionate releases, it looked like sentence disparity as a basis for a compassionate release was dead. And it probably is.
Still, one has to admire James Torentino, whose novel argument that he should get a compassionate release because his sentence was disparately long due to the combined effect of multiple nonretroactive changes to the Sentencing Guidelines found not audience with the 9th Circuit last week.
Jim contended that he is serving “an unusually long sentence” that is “unreasonably disproportionate” to the sentence he would receive if sentenced today, and that this disparity is an “extraordinary and compelling reason” warranting a sentence reduction and attendant compassionate release.
The district court rejected his compassionate release motion because the Guidelines policy statement, USSG § 1B1.13, precludes courts from considering a nonretroactive change to the Guidelines as an extraordinary and compelling reason warranting a sentence reduction. The district judge held that § 1B1.13 implements 28 USC § 994(t), which directs the U.S. Sentencing Commission to describe “what should be considered extraordinary and compelling reasons for sentence reduction.”
However, Jim challenged the policy statement’s validity. His rather slick argument was that because § 994(t) (the statutory source of the Commission’s authority) expressly directs the Commission to describe only what should be considered extraordinary and compelling reasons, the Commission lacks statutory authority to specify what should not be considered extraordinary and compelling reasons.
Last week, the 9th Circuit employed its statutory construction toolbox to reject Jim’s legal theory. It held that “Congress itself – in § 994(t) – partly defined ‘extraordinary and compelling reasons’ by… specif[ying] that rehabilitation alone cannot be considered an extraordinary and compelling reason. Congress’s use of an express exclusion in the authorizing statute suggests that the Commission may also define “extraordinary and compelling” by exclusion. Indeed, it is common to define or clarify a term by specifying what it is not… If Congress preferred that the Commission avoid defining “extraordinary and compelling” by exclusion, it could have said so but did not.
Jim’s last-second “Hail Mary” was to argue that, even if the policy statement validly precluded consideration of a single nonretroactive amendment to the Guidelines, it does not prohibit courts from considering the combined effect of multiple nonretroactive amendments. The Circuit rejected this argument, too, holding that if a single effect is nothing, then a pile of the nothings was still nothing:
If the Commission intended to bar consideration of a single nonretroactive amendment to the Guidelines but allow consideration of the combined effect of multiple nonretroactive amendments, the Commission likely would have used more specific language to make that clear. We therefore conclude that the Policy Statement prohibits consideration of the combined effect of multiple nonretroactive amendments to the Guidelines.
United States v. Troiano, Case No. 24-6621, 2026 U.S.App. LEXIS 28077 (9th Cir. September 14, 2026)
~ Thomas L. Root