Nonretroactive Guideline Amendments Are Excluded from U.S.S.G. § 1B1.13(b)(6)’s “Change in the Law” Compassionate-Release Path

Nonretroactive Guideline Amendments Are Excluded from U.S.S.G. § 1B1.13(b)(6)’s “Change in the Law” Compassionate-Release Path

I. Introduction

United States v. Jose Romeu (11th Cir. Jan. 6, 2026) concerns a pro se federal prisoner serving a life sentence for large-scale drug-trafficking offenses committed between 1986 and 1991. After serving more than 30 years, Jose Romeu moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A), relying primarily on the Sentencing Commission’s newer policy statement at U.S.S.G. § 1B1.13(b)(6) (effective Nov. 2023), which provides a narrow avenue for relief when a long-served “unusually long sentence” has become grossly disparate because of an intervening change in law.

The key issues were whether Romeu could satisfy § 1B1.13(b)(6)’s prerequisites by pointing to various post-sentencing developments—specifically Amendments 782, 821, and 826 to the Sentencing Guidelines—and, for the first time on appeal, Supreme Court decisions Alleyne and Apprendi. The government also challenged the validity of § 1B1.13(b)(6), though the district court did not reach that challenge.

II. Summary of the Opinion

The Eleventh Circuit affirmed the denial of compassionate release. The court held Romeu failed to satisfy § 1B1.13(b)(6) because the changes he relied on did not qualify as the sort of “change in the law” that can create the required “gross disparity”:

  • Amendment 782 did not change Romeu’s guideline range (the court had already so held in prior litigation).
  • Amendment 821 did not apply because Romeu received an aggravating-role adjustment under § 3B1.1, which disqualifies him from the new “zero-point offender” reduction.
  • Amendment 826 (excluding acquitted conduct from guideline calculations) is a nonretroactive guideline amendment and is therefore expressly excluded from § 1B1.13(b)(6)’s “change in the law” clause.

On Romeu’s newly raised Alleyne/Apprendi theory, the court applied plain-error review and concluded any error was not “plain,” noting circuit disagreement on whether § 1B1.13(b)(6) can incorporate nonretroactive legal developments and pointing to pending Supreme Court review. Because Romeu failed § 1B1.13(b)(6)’s threshold conditions, the panel did not reach whether the district court properly weighed the § 3553(a) factors or whether § 1B1.13(b)(6) is valid.

III. Analysis

A. Precedents Cited

1) Framework for compassionate release (eligibility + discretion)

  • United States v. Giron, 15 F.4th 1343 (11th Cir. 2021)
    The court used Giron for both the standard of review (de novo for eligibility; abuse of discretion for denial) and the substantive three-part test requiring: (1) extraordinary and compelling reasons, (2) § 3553(a) support, and (3) consistency with policy statements.
  • United States v. Tinker, 14 F.4th 1234 (11th Cir. 2021)
    Tinker supplied the decisive “all three conditions are necessary” principle: failure on any single prong forecloses relief. This allowed the panel to affirm based solely on failure to satisfy § 1B1.13(b)(6), without addressing § 3553(a) or policy-statement validity.
  • United States v. Harris, 989 F.3d 908 (11th Cir. 2021)
    Cited for the baseline rule that federal courts may not modify a sentence once imposed except as authorized by statute—reinforcing that compassionate release is a limited statutory exception.

2) Interpreting “may” and discretion

  • Biden v. Texas, 597 U.S. 785 (2022)
    The court cited Biden v. Texas to emphasize that “may” connotes discretion. Even if § 1B1.13(b)(6) conditions are met, relief is not automatic; the court retains discretion after considering individualized circumstances.

3) Prior Romeu litigation and guideline-amendment limits

  • United States v. Romeu, 106 F.3d 416 (11th Cir. 1997) (table)
    The panel referenced its prior affirmance of Romeu’s original conviction and life sentence, establishing procedural history.
  • United States v. Romeu, 639 F. App'x 622 (11th Cir. 2016)
    This earlier decision was central to rejecting Romeu’s reliance on Amendment 782; the court had already held that even under Romeu’s own proposed drug quantity, the highest base offense level still applied after Amendment 782.

4) Plain-error review and unpreserved arguments

  • United States v. Moore, 22 F.4th 1258 (11th Cir. 2022) and United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005)
    These cases supplied the rule that unpreserved issues are reviewed for plain error and set out the four-part plain-error test.
  • United States v. Hesser, 800 F.3d 1310 (11th Cir. 2015)
    Used for the proposition that an error is “plain” only when the legal rule is clearly established at the time of appellate review.
  • United States v. Aguillard, 217 F.3d 1319 (11th Cir. 2000)
    Key to the court’s conclusion: when neither the Supreme Court nor the Eleventh Circuit has resolved an issue and other circuits are split, there is no “plain error.”

5) Alleyne/Apprendi retroactivity and compassionate release

  • Alleyne v. United States, 570 U.S. 99 (2013) and Apprendi v. New Jersey, 530 U.S. 466 (2000)
    Romeu argued these cases would limit his statutory maximum because the jury made no drug-quantity findings. The panel treated this as a “change in law” argument raised too late (first on appeal), and in any event emphasized Eleventh Circuit precedent that these rules are not retroactive.
  • Jeanty v. Warden, FCI-Miami, 757 F.3d 1283 (11th Cir. 2014)
    Cited for the Eleventh Circuit’s holding that the Alleyne/Apprendi rule is not retroactive. This mattered both substantively and as context for the plain-error analysis.

6) Circuit split on § 1B1.13(b)(6) and nonretroactive changes

  • United States v. Bricker, 135 F.4th 427 (6th Cir. 2025) and United States v. Austin, 125 F.4th 688 (5th Cir. 2025)
    The Eleventh Circuit cited these decisions as examples of circuits holding nonretroactive changes in law cannot constitute extraordinary and compelling reasons under § 3582(c)(1)(A). Their existence supported the conclusion that the law is unsettled, defeating “plainness.”
  • Rutherford v. United States, No. 24-820 (U.S. Nov. 12, 2025)
    The panel noted the Supreme Court had heard argument on the question, underscoring that the issue remains unresolved and reinforcing the “no plain error” conclusion.

B. Legal Reasoning

1) The structure of § 1B1.13(b)(6): a gated pathway

The opinion treats § 1B1.13(b)(6) as a strictly conditional “gate.” Before any discretionary consideration of circumstances, the movant must satisfy the provision’s prerequisites: (i) an unusually long sentence, (ii) at least 10 years served, and (iii) a qualifying change in law producing a “gross disparity” between the sentence served and the sentence likely imposed now.

The panel’s analysis effectively turns on the third requirement: none of the asserted changes created a qualifying disparity under the text of § 1B1.13(b)(6).

2) Textual exclusion of nonretroactive guideline amendments

The most concrete doctrinal move is the court’s application of § 1B1.13(b)(6)’s parenthetical: “(other than an amendment to the Guidelines Manual that has not been made retroactive)”. That language forecloses reliance on nonretroactive guideline amendments as the “change in the law” needed to trigger (b)(6).

This is why Amendment 826—even if it would substantially change how relevant conduct is calculated today by excluding acquitted conduct—cannot serve as the (b)(6) change-in-law predicate unless it has been made retroactive.

3) Application-specific rejection of Amendments 782 and 821

The panel rejected Romeu’s other cited amendments on straightforward grounds:

  • Amendment 782: already litigated; it did not lower his base offense level because the drug quantity remained above the highest threshold even under Romeu’s own lower estimate.
  • Amendment 821: the “zero criminal-history points” reduction does not apply if the defendant received an aggravating-role enhancement under § 3B1.1. Romeu received a four-level organizer/leader enhancement, so he is categorically ineligible for that decrease.

4) The court’s handling of Alleyne/Apprendi: forfeiture + plain error + unsettled law

Romeu’s Alleyne/Apprendi theory—if credited—would potentially reframe his statutory exposure because the jury made no drug-quantity findings. But the panel did not reach the merits. Instead, it relied on:

  • Forfeiture: the argument was raised for the first time on appeal, triggering plain-error review.
  • Unsettled legal landscape: the panel emphasized circuit disagreement on whether § 1B1.13(b)(6) can incorporate nonretroactive developments, and it noted the Supreme Court’s pending consideration (Rutherford). Under Aguillard, this defeats any claim that the district court’s failure to grant relief was “plain” error.

5) Strategic appellate consequence: affirmance without reaching § 3553(a) or policy-statement validity

Invoking Tinker, the panel affirmed because Romeu failed one necessary condition—satisfying § 1B1.13(b)(6)’s predicate. That allowed the court to expressly decline to decide (i) whether the district court abused discretion in its § 3553(a) weighing, and (ii) whether § 1B1.13(b)(6) is valid in light of the government’s challenge.

C. Impact

1) A clear, text-driven limitation: Amendment 826 cannot be the (b)(6) trigger if nonretroactive

The opinion’s most concrete takeaway is operational: defendants in the Eleventh Circuit cannot use nonretroactive guideline amendments (such as Amendment 826, as presented here) as the “change in the law” predicate for § 1B1.13(b)(6). The court treated the parenthetical exclusion as dispositive.

2) Narrowing “disparity” arguments by requiring a qualifying predicate change

Romeu’s theory—that multiple guideline developments cumulatively make a life sentence unlikely today—failed because § 1B1.13(b)(6) is not an open-ended fairness inquiry. It requires a qualifying change and a gross disparity tied to that change, not a general sense that sentencing norms have evolved.

3) Procedural lesson: preserve theories in the district court

The plain-error discussion underscores that new compassionate-release theories (especially those invoking major constitutional sentencing decisions) should be presented in the district court. Raising them on appeal invites the “no plain error where the law is unsettled” barrier.

4) Doctrinal uncertainty remains: nonretroactive judicial decisions and § 1B1.13(b)(6)

The panel highlighted circuit splits and pending Supreme Court review (Rutherford). As a result, the Eleventh Circuit did not adopt a definitive, published rule on whether § 1B1.13(b)(6) permits reliance on nonretroactive judicial decisions such as Alleyne/Apprendi; it held only that failure to grant such relief was not “plain” error in this case.

IV. Complex Concepts Simplified

  • Compassionate release (§ 3582(c)(1)(A)): A statutory mechanism allowing sentence reduction after imprisonment begins, but only if specific conditions are met (extraordinary reasons, § 3553(a), and policy-statement consistency).
  • Policy statement (U.S.S.G. § 1B1.13): The Sentencing Commission’s guidance on what counts as “extraordinary and compelling reasons.” Courts must ensure reductions are consistent with applicable policy statements.
  • § 1B1.13(b)(6) “unusually long sentence” pathway: A narrow provision permitting courts, in limited cases, to consider an intervening change in law when it would create a gross disparity with the sentence likely imposed today—subject to textual limitations.
  • Nonretroactive amendment: A Guidelines change that does not automatically apply to people sentenced before it took effect. Under § 1B1.13(b)(6), such amendments are explicitly excluded as a qualifying “change in the law.”
  • Acquitted conduct: Conduct a defendant was found not guilty of, but which historically could be used in guideline calculations under a lower standard of proof. Amendment 826 addresses this prospectively, but (as applied here) not retroactively via (b)(6).
  • Plain error: A demanding appellate standard used when an argument was not raised in the trial court; relief is generally unavailable unless the error is clear under settled law and affects fairness and outcomes.

V. Conclusion

United States v. Jose Romeu reaffirms a disciplined, text-based approach to compassionate release under the post-2023 version of U.S.S.G. § 1B1.13(b)(6). The Eleventh Circuit held Romeu could not use (i) amendments that do not change his guideline range, (ii) amendments that are inapplicable due to disqualifying guideline findings, or (iii) a nonretroactive guideline amendment (Amendment 826) that is expressly excluded by the policy statement’s text. The opinion also illustrates how forfeiture and unsettled law can defeat appellate claims under plain-error review, particularly regarding whether nonretroactive judicial developments may qualify under (b)(6)—an issue the panel noted is actively contested and pending further guidance.

Case Details

Year: 2026
Court: Court of Appeals for the Eleventh Circuit

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