Seventh Circuit Invalidates U.S.S.G. § 1B1.13(b)(6) as Applied to First Step Act § 924(c) Anti-Stacking: Commission Cannot Use Compassionate Release to Create De Facto Retroactivity

I. Introduction

In United States v. Eural Black (7th Cir. Mar. 11, 2025), the Seventh Circuit confronted a direct conflict between: (1) its earlier statutory interpretation in United States v. Thacker, 4 F.4th 569 (7th Cir. 2021), and (2) the U.S. Sentencing Commission’s 2023 policy statement, U.S.S.G. § 1B1.13(b)(6), which permits consideration of certain nonretroactive “changes in the law” as an “extraordinary and compelling reason” for compassionate release.

Defendant Eural Black, serving a 40-year sentence driven largely by “stacked” 18 U.S.C. § 924(c) counts, sought a reduction under 18 U.S.C. § 3582(c)(1)(A) (compassionate release). He argued that the First Step Act’s 2018 anti-stacking amendment—though expressly nonretroactive—now would yield a dramatically shorter sentence if imposed today, and that § 1B1.13(b)(6) makes that disparity an extraordinary and compelling reason.

The district court denied relief as foreclosed by Thacker. On appeal, the Seventh Circuit affirmed, holding that the Commission’s attempt to authorize relief based on the nonretroactive § 924(c) change exceeds the Commission’s statutory authority and is invalid to that extent.

II. Summary of the Opinion

  • Holding: Thacker remains binding in the Seventh Circuit: the First Step Act’s nonretroactive anti-stacking amendment to § 924(c) cannot be an “extraordinary and compelling” reason for compassionate release, whether alone or in combination with other factors.
  • Agency-conflict resolution: Although Congress delegated to the Sentencing Commission authority to “describe” extraordinary and compelling reasons (28 U.S.C. § 994(t)), that authority is constrained by 28 U.S.C. § 994(a), requiring policy statements to be “consistent with all pertinent provisions of any Federal statute.”
  • Invalidity of § 1B1.13(b)(6) as applied: To the extent § 1B1.13(b)(6) permits treating § 924(c) anti-stacking as an extraordinary and compelling reason, it conflicts with Congress’s decision to make the anti-stacking amendment nonretroactive and is therefore beyond the Commission’s power.
  • Disposition: Black was ineligible because his only asserted extraordinary and compelling reason was the § 924(c) anti-stacking change; denial affirmed.
  • Clarification: The court noted the § 924(c) change may still be considered at the discretionary stage if eligibility rests on other independent extraordinary and compelling grounds.

III. Analysis

A. Precedents Cited (and Their Role)

1. Seventh Circuit’s controlling line: Gunn and Thacker

  • United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020)
    Role: Explained the post-First Step Act “gap”: because the Commission lacked a quorum, its policy statement then in force applied only to BOP-initiated motions. District courts therefore had discretion to identify extraordinary and compelling reasons in prisoner-initiated motions, subject to statutory limits.
  • United States v. Thacker, 4 F.4th 569 (7th Cir. 2021)
    Role: The centerpiece. Thacker held that allowing the First Step Act’s nonretroactive § 924(c) anti-stacking amendment to qualify as an extraordinary and compelling reason would effectively confer retroactivity that Congress explicitly withheld. Black treats Thacker not as a mere application of a policy statement, but as a direct statutory interpretation of § 3582(c)(1)(A) that polices the retroactivity boundary Congress drew.
  • United States v. King, 40 F.4th 594 (7th Cir. 2022)
    Role: Identified as Thacker’s “progeny” and evidence of the Seventh Circuit’s consistent approach; also referenced by the Commission as part of a circuit split the Commission purported to resolve in § 1B1.13(b)(6).

2. Supreme Court and delegation/agency-authority cases used to frame the dispute

  • Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
    Role: Provides the opinion’s modern framework: even when Congress delegates interpretive authority, courts must ensure the agency acts within the scope of that delegation. Black uses Loper Bright to emphasize (a) agencies can supersede judicial interpretations only within delegated bounds, and (b) courts independently police statutory limits on agency power.
  • Batterton v. Francis, 432 U.S. 416 (1977)
    Role: Cited through Loper Bright for the proposition that agency interpretations can displace prior judicial constructions where Congress has delegated interpretive authority—unless the agency exceeds that authority.
  • United States v. LaBonte, 520 U.S. 751 (1997)
    Role: Reinforces that the Sentencing Commission’s discretion “must bow to the specific directives of Congress.” Black treats the First Step Act’s nonretroactivity decision as precisely such a directive that forecloses Commission workarounds.

3. Structural sentencing cases and background authorities

  • Neal v. United States, 516 U.S. 284 (1996) and Mistretta v. United States, 488 U.S. 361 (1989)
    Role: Provide institutional context: the Commission’s place in the sentencing system, its guideline/policy-statement function, and Congress’s framework for Commission action.
  • United States v. Davis, 588 U.S. 445 (2019)
    Role: Used for historical description of pre-First Step Act § 924(c) stacking practices and mandatory minimum consequences.
  • United States v. Williams, 65 F.4th 343 (7th Cir. 2023)
    Role: Supplies the standard of review: abuse of discretion for denial of compassionate release, with de novo review of legal questions.

4. Circuit-split authorities (mapping the broader dispute)

The court explicitly acknowledged a deep circuit split on whether § 924(c) anti-stacking disparities may support compassionate release:

  • Against treating anti-stacking as extraordinary/compelling: United States v. Andrews, 12 F.4th 255 (3d Cir. 2021); United States v. Austin, 125 F.4th 688 (5th Cir. 2025); United States v. McCall, 56 F.4th 1048 (6th Cir. 2022); United States v. Crandall, 25 F.4th 582 (8th Cir. 2022); United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022) (along with Thacker).
  • In favor (at least in some form): United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020); United States v. Chen, 48 F.4th 1092 (9th Cir. 2022); United States v. McGee, 992 F.3d 1035 (10th Cir. 2021).

Critically, the Seventh Circuit aligned itself with the Third Circuit’s post-§ 1B1.13(b)(6) response: United States v. Rutherford, 120 F.4th 360 (3d Cir. 2024), which held that § 1B1.13(b)(6), as applied to § 924(c), conflicts with Congress’s will.

The dissent also referenced the Fifth Circuit’s internal evolution: United States v. Jean, 108 F.4th 275 (5th Cir. 2024), “overruled by” United States v. Austin, 125 F.4th 688 (5th Cir. 2025), illustrating instability and the significance of Commission intervention.

B. Legal Reasoning

1. The core statutory constraint: Commission policy statements must be consistent with federal statutes

The majority’s reasoning turns on a statutory boundary condition: Congress gave the Commission power to “describe” extraordinary and compelling reasons (28 U.S.C. § 994(t)), but required that its policy statements be “consistent with all pertinent provisions of any Federal statute” (28 U.S.C. § 994(a)).

The court treated the First Step Act’s explicit nonretroactivity clause for § 924(c) anti-stacking (First Step Act § 403(b)) as a “pertinent” statutory provision with which Commission policy must comply. In other words, even if the Commission has delegated interpretive authority, it cannot deploy that authority to defeat a congressional choice about retroactivity.

2. Why the court saw § 1B1.13(b)(6) (as applied) as retroactivity by another name

Black argued that § 1B1.13(b)(6) is not “retroactive” because it does not automatically resentence anyone; it creates a multi-factor eligibility screen (“unusually long sentence,” 10 years served, “gross disparity,” individualized circumstances) and still leaves the ultimate reduction discretionary under § 3582(c)(1)(A).

The majority rejected this distinction as inconsistent with Thacker’s logic and language. Thacker had already held that using § 924(c) anti-stacking “whether considered alone or in connection with other facts and circumstances” cannot qualify as extraordinary and compelling. For the Black majority, any eligibility rule that makes nonretroactive anti-stacking disparities a gateway to relief functionally undermines Congress’s prospective-only decision—whether relief is mandatory or discretionary and whether the disparity is filtered through additional considerations.

3. Resolving “who controls”: the Commission versus circuit precedent

Black presents the confrontation as one between delegated agency interpretation and judicial precedent. The court’s resolution has two steps:

  1. Delegation principle: Under Loper Bright Enters. v. Raimondo, an agency’s interpretation can prevail within its delegated sphere.
  2. Boundary enforcement: Courts must independently determine whether the agency has exceeded the delegation. Here, because § 1B1.13(b)(6) (as applied to § 924(c) anti-stacking) conflicts with the First Step Act’s nonretroactivity determination, the Commission exceeded its authority under § 994(a). Therefore, Thacker controls.

4. Limiting principle: anti-stacking may still matter at the discretionary stage

To avoid reading its decision as categorically forbidding consideration of sentencing disparities, the court offered a key clarification: even though § 924(c) anti-stacking cannot establish eligibility, a judge may consider it when deciding how much relief to grant once eligibility is independently established on other grounds. This preserves some practical relevance for changed sentencing landscapes while protecting the eligibility gate from being used to undo nonretroactivity choices.

C. Impact

1. Immediate doctrinal effect in the Seventh Circuit

  • Eligibility rule: Defendants cannot use § 924(c) anti-stacking disparities—alone or packaged within § 1B1.13(b)(6)’s multi-factor test—as an extraordinary and compelling reason.
  • Commission-policy limitation: The decision functions as a partial invalidation of § 1B1.13(b)(6) as applied to § 924(c) anti-stacking in this circuit.
  • Litigation posture: Motions in the Seventh Circuit will likely pivot toward other asserted extraordinary and compelling reasons (medical, family circumstances, age/time served, etc.), with anti-stacking disparity argued only as a discretionary consideration after eligibility is shown.

2. National consequences: deepening a “second-order” circuit split

Before § 1B1.13(b)(6), circuits split on whether courts could treat the nonretroactive anti-stacking change as extraordinary and compelling. Black acknowledges that split, but it also highlights a newer fault line: whether the Commission can resolve the split by policy statement and, if so, whether doing so conflicts with the First Step Act.

By expressly aligning with United States v. Rutherford, the Seventh Circuit stakes out an approach that not only rejects anti-stacking as a reason, but also rejects the Commission’s attempt to authorize it—thereby increasing pressure for Supreme Court resolution or congressional clarification.

3. Administrative-law significance post-Loper Bright

Black is notable for how it operationalizes Loper Bright Enters. v. Raimondo in a sentencing context: courts will not treat an agency’s delegated interpretive role as license to contradict Congress’s explicit statutory design choices. The Commission is framed as an agency whose interpretive authority is real but cabined, and whose compliance with statutory consistency requirements is judged by courts, not the Commission itself.

4. Internal court dynamics

  • Concurrence (Ripple, J.): Emphasizes stare decisis and the procedural fact that Thacker was circulated under Circuit Rule 40(e) and not taken en banc—underscoring institutional commitment to precedent even amid disagreement.
  • Dissent (Hamilton, J.): Argues Thacker was an interim “gap-filling” decision during the Commission quorum vacuum and that § 1B1.13(b)(6) is a reasonable, delegated interpretation that can coexist with Congress’s nonretroactivity choice because it does not mandate resentencing and imposes limiting conditions (“unusually long,” 10 years served, “gross disparity,” individualized review).

IV. Complex Concepts Simplified

  • “Stacking” under 18 U.S.C. § 924(c): Before 2018, multiple § 924(c) convictions in a single case triggered a 5-year mandatory minimum for the first count and 25-year mandatory minimums for later counts—stacked consecutively. The First Step Act restricted those 25-year add-ons to later prosecutions after a prior conviction is final.
  • Nonretroactivity: When Congress changes a sentencing law but says it applies only prospectively, it is choosing not to reopen already-imposed sentences. The First Step Act did this for § 924(c) anti-stacking.
  • Compassionate release (18 U.S.C. § 3582(c)(1)(A)): A narrow exception allowing sentence reductions for “extraordinary and compelling reasons,” subject to statutory limits and (where applicable) Commission policy statements.
  • Policy statements (U.S.S.G. § 1B1.13): Guidance from the Sentencing Commission on how to apply compassionate release. After the First Step Act enabled prisoner-filed motions, courts disagreed on how binding older policy statements were; the Commission updated § 1B1.13 in 2023 to address prisoner-filed motions.
  • Commission’s statutory limits (28 U.S.C. §§ 994(a), 994(t)): Congress empowered the Commission to define extraordinary and compelling reasons, but required consistency with federal statutes and barred “rehabilitation alone” from being sufficient.
  • “As-applied invalidity”: The court did not declare § 1B1.13(b)(6) invalid in all uses; it held it is invalid insofar as it makes § 924(c) anti-stacking a basis for eligibility, because that application conflicts with the First Step Act.
  • Eligibility vs. discretion: “Eligibility” is whether a prisoner may be considered for a reduction at all (extraordinary and compelling reasons). “Discretion” is whether, and by how much, a judge reduces the sentence after eligibility is satisfied. Black allows anti-stacking to affect discretion but not eligibility.

V. Conclusion

United States v. Eural Black cements in the Seventh Circuit a hard boundary between compassionate release and congressional retroactivity decisions: when Congress explicitly makes a sentencing change nonretroactive—here, the First Step Act’s § 924(c) anti-stacking amendment—neither courts nor the Sentencing Commission may treat that change as an “extraordinary and compelling” reason that opens the door to sentence reduction.

The opinion’s broader significance lies in its institutional message. Even under an express delegation to the Sentencing Commission, courts retain the duty (invoking Loper Bright Enters. v. Raimondo) to ensure the Commission’s policy statements remain consistent with federal statutes. In practical terms, federal prisoners in the Seventh Circuit cannot use § 1B1.13(b)(6) to obtain compassionate release eligibility based on § 924(c) anti-stacking disparities—though those disparities may still inform a judge’s discretionary decision once eligibility is established on other grounds.