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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-11349
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
ABEL RIZO,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:96-cr-00075-JIC-8
Before BRANCH, BRASHER, and HULL, Circuit Judges.
HULL, Circuit Judge:
In 1997, Abel Rizo was convicted of participating in a
conspiracy to rob drug dealers at gunpoint, stealing large quantities
of money and drugs. Rizo was sentenced to 468 months (39 years)
of imprisonment, consisting of: (1) two concurrent 168-month
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sentences for his drug convictions; (2) three concurrent 60-month
sentences for his three Hobbs Act robbery convictions; (3) one
consecutive 60-month sentence for his first 18 U.S.C. § 924(c)
firearm conviction; and (4) a second consecutive, or stacked on top,
240-month sentence for his second § 924(c) firearm conviction.
In 2024, Rizo moved for a sentence reduction under 18
U.S.C. § 3582(c)(1)(A)(i) based on a 2018 non-retroactive statutory
amendment to § 924(c) that eliminated the 20-year stacking
requirement for certain § 924(c) offenders. Rizo argued that this
change in the law constituted an “extraordinary and compelling”
reason for a reduction because, if he were sentenced today, he
would receive only a consecutive 60-month (5-year) sentence for
his second § 924(c) firearm conviction instead of a consecutive
240-month (20-year) sentence. Rizo relied on a 2023 Sentencing
Commission policy statement, which provides that non-retroactive
changes in the law can constitute an “extraordinary and
compelling” reason for a sentence reduction. U.S.S.G.
§ 1B1.13(b)(6) (2023).
Over the government’s objection, the district court granted
Rizo’s motion and reduced Rizo’s consecutive sentence for his
second § 924(c) conviction from 20 to 5 years. The government
timely appealed.
After careful review, and with the benefit of oral argument,
we conclude that (1) we have jurisdiction over the government’s
appeal, and (2) the district court erred in reducing Rizo’s sentence
in light of Rutherford v. United States, 608 U.S. 454 (2026) (holding
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this same 2018 non-retroactive statutory amendment to § 924(c)
could not, as a matter of law, constitute an “extraordinary and
compelling” reason for a § 3582(c)(1)(A)(i) sentence reduction).
Our analysis proceeds in four parts. First, as legal
background, we review the two statutes involved in this appeal:
§ 3582(c) and § 924(c), plus the Sentencing Commission’s policy
statement in § 1B1.13(b)(6). Next, we outline the factual and
procedural history of Rizo’s case.
Third, we address Rizo’s claim that we lack jurisdiction and
must dismiss the government’s appeal of his reduced criminal
sentence under § 3582(c)(1)(A)(i). We survey the relevant
precedent and explain why we have jurisdiction over the
government’s appeal.
Lastly, reaching the merits, we conclude Rutherford requires
reversal of the district court’s sentence reduction.
I. LEGAL BACKGROUND
A. 18 U.S.C. § 3582(c)(1)(A)(i)—Sentence Reductions
As a general rule, a district court “may not modify a term of
imprisonment once it has been imposed.” 18 U.S.C. § 3582(c).
Congress, however, created certain limited exceptions to this
general rule and allowed defendants to request a sentence
reduction if they meet one of the exceptions. See id.
As is relevant here, one of the exceptions in § 3582(c) states
that a district court “may” reduce a defendant’s sentence “after
considering the factors set forth in [18 U.S.C. §] 3553(a)” if it finds
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that “extraordinary and compelling reasons warrant such a
reduction” and “such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.” Id.
§ 3582(c)(1)(A)(i). This exception is referred to as “compassionate
release.” See Rutherford, 608 U.S. at 458.
Under this § 3582(c)(1)(A)(i) exception, a district court may
grant a sentence reduction if (1) there is an “extraordinary and
compelling” reason for a reduction, (2) the defendant is not a
danger to the community (as provided in a policy statement), and
(3) the § 3553(a) factors weigh in favor of a reduction. See United
States v. Giron, 15 F.4th 1343, 1346 (11th Cir. 2021).
Congress did not define the phrase “extraordinary and
compelling reasons” in § 3582(c)(1)(A)(i). Instead, it directed the
Sentencing Commission to define that phrase through policy
statements. See 28 U.S.C. § 994(t). Congress instructed: “The
Commission, in promulgating general policy statements regarding
the sentencing modification provisions in section 3582(c)(1)(A) of
title 18, shall describe what should be considered extraordinary and
compelling reasons for sentence reduction, including the criteria to
be applied and a list of specific examples.” Id.
Congress also required that the Commission’s policy
statements be “consistent with all pertinent provisions of any
Federal statute.” Id. § 994(a). Any policy statement defining
“extraordinary and compelling reasons” thus must be consistent
with the text of § 3582(c)(1)(A)(i). Rutherford, 608 U.S. at 472–73.
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B. U.S.S.G. § 1B1.13(b)(6)—Policy Statement
This appeal involves the Commission’s policy statement,
promulgated in U.S.S.G. § 1B1.13(b)(6), which outlines when a
change in sentencing law may be considered in determining
whether a defendant presents an extraordinary and compelling
reason for a sentence reduction. That policy statement addresses a
change in the law that produces a gross sentencing disparity.
Section 1B1.13(b)(6) reads:
If a defendant received an unusually long sentence
and has served at least 10 years of the term of
imprisonment, a change in the law (other than an
amendment to the Guidelines Manual that has not
been made retroactive) may be considered in
determining whether the defendant presents an
extraordinary and compelling reason, but only where
such change would produce a gross disparity between
the sentence being served and the sentence likely to
be imposed at the time the motion is filed, and after
full consideration of the defendant’s individualized
circumstances.
U.S.S.G. § 1B1.13(b)(6) (2023).
C. 18 U.S.C. § 924(c)—2018 Amendment
The change in the law at issue here is the 2018 statutory
amendment to 18 U.S.C. § 924(c), a statute which criminalizes
using or carrying a firearm “during and in relation to any crime of
violence or drug trafficking crime.” 18 U.S.C. § 924(c).
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At the time of Rizo’s 1997 sentencing, the § 924(c) statute
required that a defendant found guilty under § 924(c) be sentenced
to a default mandatory-minimum consecutive sentence of 5 years.
18 U.S.C. § 924(c)(1) (1997). On top of that, § 924(c) added that
“[i]n the case of his second or subsequent conviction under this
subsection,” a defendant found guilty must be sentenced to a
mandatory-minimum consecutive sentence of 20 years stacked on
top of the sentence for any other § 924(c) conviction. Id. The
phrase “second or subsequent conviction” in § 924(c) applied to any
§ 924(c) conviction after the first, including where a first-time
offender received multiple § 924(c) convictions within a single
prosecution. Deal v. United States, 508 U.S. 129, 131–34 (1993),
abrogated by statute as stated in Hewitt v. United States, 606 U.S. 419,
423–24 (2025).
Here, in 1997, Rizo, although a first-time offender, was
convicted of two § 924(c) offenses in a single prosecution. This
resulted in a 5-year mandatory-minimum consecutive sentence for
his first § 924(c) conviction and a 20-year mandatory-minimum
consecutive sentence for his second § 924(c) conviction.1
In 2018, however, Congress amended § 924(c)’s mandatory
penalty scheme. The amended § 924(c) required a consecutive
25-year mandatory-minimum sentence for defendants who
1 In 1998, Congress increased the 20-year mandatory minimum for “second or
subsequent” § 924(c) convictions to 25 years. 18 U.S.C. § 924(c)(1)(C)(i) (1998).
Because Rizo was sentenced in 1997, his sentence for his second § 924(c)
conviction was 20 years.
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violated § 924(c) and were previously convicted under § 924(c), but
only when that “prior conviction under this subsection has become
final.” 18 U.S.C. § 924(c)(1)(C)(i) (2018). Pursuant to the 2018
amendment, a first-time offender, like Rizo, with two § 924(c)
convictions in the same prosecution would not receive the
enhanced mandatory minimum for his second § 924(c) conviction.
See Hewitt, 606 U.S. at 424.
Congress made the 2018 amendment to § 924(c)
(1) retroactive as to defendants not yet sentenced, and
(2) non-retroactive as to those defendants, like Rizo, already
sentenced. See id. at 424, 436–38. We now turn to Rizo’s case.
II. FACTUAL AND PROCEDURAL HISTORY
A. Rizo’s 1997 Conviction
In 1996, Rizo, along with fourteen codefendants, was
charged in a superseding indictment with (1) one count of
conspiracy to possess cocaine with intent to distribute from
approximately 1987 to 1995, in violation of 21 U.S.C.
§§ 846, 841(a)(1); (2) one count of possession of cocaine with intent
to distribute on June 29, 1992, in violation of 21 U.S.C. § 841(a)(1);
(3) one count of Hobbs Act robbery committed on June 29, 1992,
in violation of 18 U.S.C. § 1951(a); (4) two counts of attempted
Hobbs Act robbery committed on April 30, 1993, and November
24, 1993; (5) one count of using and carrying a firearm during and
in relation to a crime of violence and a drug-trafficking crime on
June 29, 1992, in violation of 18 U.S.C. § 924(c); and (6) a second
count of violating § 924(c) on November 24, 1993.
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During a multi-week jury trial, the government submitted
evidence that Rizo participated with members of his family and
others in a years-long conspiracy to rob drug dealers of their money
and drugs. In Rizo’s direct appeal, we described Rizo’s and his
co-conspirators’ offense conduct. The overall scheme involved
one individual gathering information about certain drug dealers,
including by conducting controlled buys, while other
co-conspirators conducted surveillance. United States v. Gallego, 247
F.3d 1191, 1195 (11th Cir. 2001). The co-conspirators used the
gathered information to (1) identify the targeted drug dealer’s stash
house and (2) then, posing as police officers, rob the drug dealer at
gun-point in the stash house. Id.
The jury found Rizo guilty of all seven charged offenses.
B. Initial Sentence and Appeal
On August 26, 1997, the district court sentenced Rizo to a
total term of 468 months (39 years) of imprisonment, to be
followed by 5 years of supervised release.
As recounted above, Rizo’s 468-month sentence consisted of
(1) two concurrent 168-month sentences for his two drug
convictions; (2) three concurrent 60-month sentences for his three
separate Hobbs Act robbery convictions; (3) one consecutive
60-month (5-year) sentence for his first § 924(c) conviction; and
(4) a second consecutive 240-month (20-year) sentence for his
second § 924(c) conviction.
Rizo appealed only his sentence, arguing that the district
court violated Apprendi v. New Jersey, 530 U.S. 466 (2000), in
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sentencing him for his two drug convictions. Gallego, 247 F.3d
at 1196–97. This Court affirmed. Id.
C. Section 3582(c)(1)(A)(i) Motion for Sentence Reduction
Over 20 years later, in 2023, Rizo filed a pro se motion to
reduce his sentence under 18 U.S.C. § 3582(c). The district court
denied that motion without prejudice because Rizo failed to
exhaust his administrative remedies. After exhausting his
administrative remedies, in 2024 Rizo filed another § 3582(c)
motion that was identical to his first.
In his motion, Rizo argued that he was entitled to a sentence
reduction under § 3582(c)(1)(A)(i) because of the 2018 amendment
to § 924(c)’s mandatory sentencing scheme for “second or
subsequent convictions.” Rizo recognized that the 2018
amendment to § 924(c) did not apply retroactively to his 1997
sentence. Nevertheless, Rizo argued that (1) the 2018 amendment
was an “extraordinary and compelling” reason for a sentence
reduction under the policy statement in § 1B1.13(b)(6), and (2) he
met all of the other criteria for a § 3582(c)(1)(A)(i) sentence
reduction.
The government opposed Rizo’s § 3582(c) motion. It
argued that the 2018 non-retroactive amendment to § 924(c) did
not constitute an “extraordinary and compelling” reason for a
sentence reduction because (1) non-retroactive statutory changes
in the law were not “extraordinary” or “compelling” under
§ 3582(c)(1)(A)(i), and (2) the policy statement in § 1B1.13(b)(6) was
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contrary to the text, context, and purpose of § 3582(c)(1)(A)(i) and
thus invalid.
D. Order Granting Rizo’s Sentence-Reduction Motion
In 2024, the district court granted Rizo’s § 3582(c)(1)(A)(i)
motion.
The district court rejected the government’s challenge to
the validity of the policy statement in § 1B1.13(b)(6). The court
found that (1) the phrase “extraordinary and compelling reasons”
in § 3582(c)(1)(A)(i) was ambiguous, and (2) the Commission’s
definition of that phrase in § 1B1.13(b)(6) to include
non-retroactive statutory changes in the law was not invalid.
Next, the district court determined that Rizo satisfied all of
§ 1B1.13(b)(6)’s requirements for an “extraordinary and
compelling” reason for a sentence reduction under
§ 3582(c)(1)(A)(i). The court found that (1) Rizo served over 10
years of imprisonment, (2) his 468-month sentence was “unusually
long,” and (3) the 2018 amendment to § 924(c) created a “gross
disparity” between the 20-year consecutive sentence Rizo received
for his second § 924(c) conviction in 1997 and the 5-year
consecutive sentence he would receive if sentenced in 2024.
Finally, the district court concluded that Rizo satisfied the
other requirements in § 3582(c)(1)(A)(i), including that (1) he was
no longer a danger to the community, and (2) the § 3553(a) factors
counseled in favor of reducing his sentence for his second § 924(c)
conviction.
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The district court reduced Rizo’s consecutive sentence for
his second § 924(c) conviction from 20 years to 5 years. Rizo’s new
2024 sentence was a total of 288 months (24 years) of
imprisonment. This resulted in Rizo’s release from federal custody
on December 6, 2024, according to the website run by the Bureau
of Prisons.
The government appealed. Upon motion, we appointed
counsel to represent Rizo. 2
III. STANDARDS OF REVIEW
“We review our appellate jurisdiction de novo.” United States
v. Solomon, 136 F.4th 1310, 1316 (11th Cir. 2025), cert. denied, 2026
WL 79892 (Jan. 12, 2026). “We review de novo whether a defendant
is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A).”
Giron, 15 F.4th at 1345. If a defendant is eligible for a § 3582(c)
sentence reduction, we review the district court’s decision to grant
or deny a reduction for an abuse of discretion. United States v.
Caraballo-Martinez, 866 F.3d 1233, 1238 (11th Cir. 2017).
2 On October 31, 2024, this Court issued a jurisdictional question to the parties.
After receiving responses from counsel for the parties, this Court carried the
jurisdictional issue with the case. Merits briefing was then completed on May
9, 2025. On June 17, 2025, the government moved to stay the appeal in light
of the then-pending Supreme Court case Rutherford v. United States, which was
not decided until May 28, 2026. On September 30, 2026, we held oral
argument.
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IV. APPELLATE JURISDICTION
We have a duty to assure ourselves that we have appellate
jurisdiction over the government’s appeal. See Overlook Gardens
Props., LLC v. ORIX USA, L.P., 927 F.3d 1194, 1198 (11th Cir. 2019).
We have never explicitly addressed whether we have
appellate jurisdiction in a criminal case to hear a government
appeal from a § 3582(c)(1)(A)(i) sentence reduction.3 See United
States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (explaining that
§ 3582(c) “is criminal in nature and therefore covered by rules
applying to criminal cases, not civil cases”). To answer that
question, we review (1) the finality rule in 28 U.S.C. § 1291;
(2) Supreme Court and our precedent about § 1291 in government
criminal appeals; (3) 18 U.S.C. § 3742, entitled “Review of a
sentence”; and (4) our precedent about § 3742(b). Then, we
explicate the parties’ arguments and why we have jurisdiction.
A. 28 U.S.C. § 1291
“Federal courts are courts of limited jurisdiction. They
possess only that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
The § 1291 statute provides that: “The courts of appeals . . . shall
have jurisdiction of appeals from all final decisions of the district
3 Our decisions in government appeals from § 3582(c) rulings do not mention
jurisdiction. See, e.g., United States v. Melvin, 556 F.3d 1190, 1190–94 (11th Cir.
2009) (government appeal with no mention of jurisdiction). Jurisdictional
holdings made sub silentio do not constitute authoritative precedent. See Main
Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1231 (11th Cir. 2007). USCA11 Case: 24-11349 Document: 59-1 Date Filed: 10/27/2026 Page: 13 of 25
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courts of the United States . . . except where a direct review may
be had in the Supreme Court.” 28 U.S.C. § 1291.
As a general matter, a final decision for purposes of § 1291 is
“one which ends the litigation on the merits and leaves nothing for
the court to do but execute the judgment.” Dunn v. Comm’r, Ala.
Dep’t of Corr., 179 F.4th 1277, 1298 (11th Cir. 2026) (quotation
marks omitted). This Court applies the finality rule “with ‘utmost
strictness in criminal cases.’” United States v. Shalhoub, 855 F.3d
1255, 1260 (11th Cir. 2017) (quoting Flanagan v. United States, 465
U.S. 259, 265 (1984)). The final judgment in a criminal case is the
sentence. United States v. Curry, 760 F.2d 1079, 1079 (11th
Cir. 1985).
Despite § 1291’s plain statement that the courts of appeals
have jurisdiction from “all final decisions of the district courts,” the
Supreme Court has imposed restrictions on government appeals in
criminal cases brought under § 1291, as explained below.
B. Supreme Court: Restrictions on Government Criminal
Appeals
Over the years, the Supreme Court has read § 1291 in
conjunction with the common law. Specifically, the Supreme
Court has held that § 1291 alone does not permit government
criminal appeals unless (1) the government has an additional
express statutory authorization to appeal under federal law, or
(2) the order being appealed from under § 1291 possesses sufficient
independence from the main course of the prosecution to warrant
treatment as a plenary order. See Arizona v. Manypenny, 451 U.S.
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232, 246–47 (1981) (“[T]he Federal Government enjoys no inherent
right to appeal a criminal judgment, and . . . the grant of general
appellate jurisdiction, now contained in 28 U.S.C. § 1291, does not
authorize such a federal appeal.”); 4 Carroll v. United States, 354 U.S.
394, 400–03 (1957) (explaining that the government may not appeal
in a criminal case based on § 1291 alone unless the order being
appealed possesses “sufficient independence from the main course
of the prosecution to warrant treatment as [a] plenary order[]”);
see also United States v. Sanges, 144 U.S. 310, 323 (1892).
The Supreme Court imposed these restrictions based in part
on the federal common-law presumption that the government is
not allowed to appeal in a criminal case. See Manypenny, 451 U.S.
at 245–46 (describing common-law “presumption that the
prosecution lacks appellate authority absent express legislative
authorization to the contrary”); Sanges, 144 U.S. at 311–19
(describing the history of the common-law rule that the
government cannot appeal in a criminal case without express
statutory authorization).
4 Although Manypenny concerned an appeal by a state government of a
criminal case tried in federal court, it discussed at length the background of
the federal rule that the United States government may not appeal in a federal
criminal case without express statutory authorization from Congress. See 451
U.S. at 244–47.
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C. 18 U.S.C. § 3742(b): Broadens Government Criminal
Appeals
In 1984, however, the appellate landscape for government
appeals of sentences broadened when Congress enacted 18 U.S.C.
§ 3742. Section 3742(b) expressly authorized the government to
appeal a defendant’s final criminal sentence in explicit
circumstances. See 18 U.S.C. § 3742(b). Section 3742(b) provides:
“The Government may file a notice of appeal in the district court
for review of an otherwise final sentence if the sentence” (1) “was
imposed in violation of law;” (2) “was imposed as a result of an
incorrect application of the sentencing guidelines;” (3) “is less than
the sentence specified in the applicable guideline range;” or
(4) “was imposed for an offense for which there is no sentencing
guideline and is plainly unreasonable.” Id.
D. Our Circuit Precedent: Government Criminal Appeals
Our precedent for government criminal appeals is a bit at
odds but seemingly reconcilable as § 1291 cases decided before and
after the effective date of 18 U.S.C. § 3742(b).
Before the enactment of § 3742(b), this Court had dismissed
government appeals of defendants’ criminal sentences because
(1) the government lacked express statutory authorization of
Congress and (2) the Carroll exception did not apply. See United
States v. Denson, 588 F.2d 1112, 1125–27 (5th Cir.) (dismissing
government appeal of defendants’ final sentences because (1) there
was “no statutory authority permitting the Government to appeal”
the defendants’ sentences, and (2) the “Carroll doctrine” did not
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apply since the defendants’ sentences were not “severable from,
and collateral to, the main case”), 5 aff’d in part and rev’d in part on
reh’g en banc, 603 F.2d 1143 (5th Cir. 1979) (en banc); 6 United States
v. Dean, 752 F.2d 535, 539–40 (11th Cir. 1985) (rejecting the
government’s argument that it had appellate jurisdiction over the
government’s appeal of a Federal Rule of Criminal Procedure 35(a)
sentence reduction under § 1291 alone because (1) the government
did not have express statutory authority to appeal, and (2) the
exception stated in Carroll did not apply).7
Yet after the enactment of § 3742, this Court held that it had
jurisdiction over two government appeals of criminal sentences,
albeit with somewhat diverging views about the jurisdictional roles
of § 1291 and § 3742(b). Compare United States v. Chotas, 913 F.2d
897 (11th Cir. 1990), with United States v. Chavarria-Herrara, 15 F.3d
1033 (11th Cir. 1994).
First came Chotas, which involved the government’s
cross-appeal of a defendant’s final original sentence. The Chotas
5 To be complete, in Denson the Court also examined 18 U.S.C. § 3731, which
outlines statutory bases for government appeals from certain court decisions
in criminal cases. 588 F.2d at 1125–26. No party suggests we have jurisdiction
here under § 3731.
6 All decisions of the former Fifth Circuit handed down prior to the close of
business on September 30, 1981, are binding precedent in the Eleventh Circuit.
Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
7 Dean, decided in 1985, did not apply § 3742(b) because the underlying
proceedings occurred before the statute’s effective date. See Dean, 752 F.2d
at 537 n.*.
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Court summarily concluded that “our jurisdiction to review the
sentence imposed by the district court derives from 28 U.S.C.
§ 1291.” 913 F.2d at 898. Chotas did not cite Denson and Dean or
mention that those cases had ruled that § 1291 alone does not
provide jurisdiction for a government appeal of a defendant’s
criminal sentence unless (1) the government has express statutory
authorization to appeal or (2) the Carroll independent-order
exception applies. Compare id., with Denson, 588 F.2d at 1125–27,
and Dean, 752 F.2d at 539–40.
The Chotas Court did cite in passing § 3742(b), but not as the
statutory authorization required to appeal under § 1291.
See Chotas, 913 F.2d at 898–99. Rather, the Chotas Court cited
§ 3742(b) as not affecting its appellate jurisdiction under § 1291.
See id. The Chotas Court said that § 3742 did “not alter this [§ 1291]
proposition” because § 3742 merely “defines the claims that the
court of appeals may hear in reviewing an appeal.” Id. (quoting
United States v. Fossett, 881 F.2d 976, 979 (11th Cir. 1989)). 8
In contrast, in Chavarria-Herrara, this Court expressly held
that § 3742(b) “confers appellate jurisdiction” to hear the
government’s appeal of a defendant’s sentence reduction for
substantial assistance under Federal Rule of Criminal Procedure
35(b). 15 F.3d at 1034–36. This Court noted that it had previously
8 The Chotas Court cited to Fossett, but that case involved a defendant’s direct
appeal of a final sentence, not a government appeal. See Fossett, 881 F.2d
at 978–79. The Fossett Court properly had jurisdiction over a defendant’s
appeal from his sentence under § 1291 alone. See id.
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held that § 3742 “confers jurisdiction” on this Court over a
defendant appeal from a Rule 35(b) ruling. Id. at 1035 (citing United
States v. Yesil, 991 F.2d 1527, 1531 & n.4 (11th Cir. 1992)). This
Court reasoned that § 3742(b) must therefore also control its
appellate jurisdiction over government appeals from Rule 35(b)
orders because of the “symmetrical structure of § 3742,” which
indicated that “Congress intended appellate review of sentences to
be available to the government on the same terms as to
defendants.” Id. This Court thus held that “§ 3742(b) allows the
government to appeal a Rule 35(b) determination and confers
appellate jurisdiction on this court, when that determination
results in a sentence that satisfies one of the criteria for appeal set
out in § 3742.” Id.
The Chavarria-Herrara Court also (1) pointed out that § 3742
allows for the appeal of an “otherwise final sentence,” id. at 1035
(quoting 18 U.S.C. § 3742(b)), and (2) determined that the words
“sentence” and “imposed” in § 3742(b) extended both to the
original imposition of sentence and a sentence modification, id.
at 1035–36. This Court reasoned that “[t]he sentence that is
ordered by a sentencing court in ruling on a Rule 35 motion readily
falls within the meaning of the concept of imposition of sentence.”
Id. at 1036 (citing Dean and adopting its determination that “a
modification of a sentence is part of the sentencing process”). The
Court concluded that the government may appeal a Rule 35
reduced sentence if it satisfies one of the four criteria in § 3742(b).
Id. at 1035–36. The Court held the district court’s reduced sentence
to time served was based on factors other than substantial
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assistance and so “violated the law.” Id. at 1037. The Court vacated
the reduced sentence and remanded for further proceedings. Id.
Chavarria-Herrara appears consistent with Supreme Court
and our Denson/Dean precedent because it (1) rejected the
government’s contention that § 1291 alone could be the
jurisdictional basis for a government appeal of a criminal sentence
and (2) required the government to have an express statutory
authorization to appeal, which was satisfied by § 3742(b). See id.
at 1034–36. With our precedent covered, we return to this case.
E. The Parties’ Arguments
The government argues that we have jurisdiction under 28
U.S.C. § 1291 alone. The government acknowledged, however, at
oral argument that it also needs express statutory authorization to
appeal, which it contends is provided by § 3742(b).
Rizo, on the other hand, asserts that (1) § 1291 alone cannot
establish our jurisdiction given our binding precedent in Denson
and Dean, (2) § 3742(b) is the only jurisdictional basis for the
government’s appeal given Chavarria-Herrara, and (3) in this case
the government failed to satisfy the requirements in § 3742(b).
The government responds that (1) Denson and Dean are
distinguishable from this case because they were decided in
different procedural contexts, and (2) Chavarria-Herrara’s 1994
holding—that § 3742(b) “confers appellate jurisdiction”—is no
longer good law because it has been effectively abrogated by the
Supreme Court’s intervening precedent analyzing when a statute
is jurisdictional or merely presents a claim-processing rule.
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See, e.g., Fort Bend Cnty. v. Davis, 587 U.S. 541, 547–50 (2019)
(describing in a civil case the difference between jurisdictional
requirements and claim-processing rules).
F. Jurisdiction Analysis
We need not decide whether (1) the government is correct
that our appellate jurisdiction over a government appeal of a
§ 3582(c)(1)(A)(i) sentence reduction in a criminal case rests on
§ 1291 alone, and § 3742(b) provides merely statutory
authorization for the government’s appeal, or (2) Rizo is correct
that our appellate jurisdiction derives from § 3742(b), not § 1291.
That is because, under either approach, the analysis and outcome
in this case are identical.
Under either approach, the government must satisfy two
requirements. First, the ruling the government appeals must be
final because both § 1291 and § 3742(b) require finality. See 28
U.S.C. § 1291 (stating courts of appeals have appellate jurisdiction
over “all final decisions of the district courts”); 18 U.S.C. § 3742(b)
(stating the government may appeal “an otherwise final sentence”
if it satisfies certain criteria). Second, the government must satisfy
one of the criteria listed in § 3742(b), either to establish that it has
authorization to appeal or to establish our appellate jurisdiction.
Both requirements are satisfied in this case, so we have appellate
jurisdiction.
As to the first requirement, the district court’s order
reducing Rizo’s sentence clearly satisfies the finality rule (in both
§ 1291 and § 3742(b)) because it left “nothing for the court to do
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but execute the judgment.” Dunn, 179 F.4th at 1298;
see also Shalhoub, 855 F.3d at 1260; Curry, 760 F.2d at 1079. The
sentence-reduction order was a post-judgment ruling that
completely resolved the motion that initiated the post-judgment
proceedings and is therefore final.
As to the second requirement, the government has satisfied
one of the criteria listed in § 3742(b). The government has
presented a cognizable claim that the district court’s reduction of
Rizo’s sentence under § 3582(c)(1)(A)(i) was “in violation of law.”
See 18 U.S.C. § 3742(b)(1). On appeal, the government argues that
the district court was not legally authorized to reduce Rizo’s
sentence because (1) the 2018 non-retroactive statutory
amendment to § 924(c), as a matter of law, does not constitute an
“extraordinary and compelling” reason for a sentence reduction
under § 3582(c)(1)(A)(i), and (2) § 1B1.13(b)(6) is invalid to the
extent it counsels otherwise. Those purely legal arguments clearly
satisfy § 3742(b)(1)’s criterion of a sentence imposed “in violation
of law.” Indeed, a district court’s decision regarding whether it is
authorized to reduce a sentence under § 3582(c) is a question of law
we review de novo. See United States v. Melvin, 556 F.3d 1190, 1191
(11th Cir. 2009); Giron, 15 F.4th at 1345–46.
In sum, regardless of whether our jurisdiction derives from
§ 3742(b) alone or from § 1291 with § 3742(b) merely providing the
authorization to appeal, we have appellate jurisdiction because
(1) the district court’s order reducing Rizo’s sentence is final under
§ 1291 and § 3742(b), and (2) the government has presented a
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cognizable claim that the district court violated the law in reducing
Rizo’s sentence for purposes of § 3742(b)(1).
V. RIZO’S SENTENCE REDUCTION
Having concluded appellate jurisdiction exists, we turn to
the merits of whether Rizo’s reduced sentence on his second
§ 924(c) conviction was “in violation of law.” The merits issue is
controlled by Rutherford v. United States, 608 U.S. 454 (2026).
A. Rutherford v. United States
Rutherford arose from the cases of two defendants who, like
Rizo, (1) were first-time offenders convicted of multiple violations
of § 924(c) in a single prosecution and (2) received consecutive
stacked mandatory-minimum sentences for their multiple § 924(c)
convictions. 608 U.S. at 459. Also like Rizo, the two defendants
moved to reduce their sentences under § 3582(c)(1)(A)(i), arguing
that the 2018 non-retroactive statutory amendment to § 924(c)’s
mandatory penalty scheme for “second or subsequent” convictions
created a gross disparity and constituted an “extraordinary and
compelling” reason for a reduction. Id. at 463–64. The defendants’
motions were denied, and the Third Circuit affirmed the
denials. Id.
Affirming too, the Supreme Court concluded that the 2018
non-retroactive statutory amendment to § 924(c) could not qualify,
as a matter of law, as an “extraordinary and compelling” reason for
a sentence reduction under § 3582(c)(1)(A)(i). Id. at 465–73. The
Supreme Court stated: “When Congress declines to make a
sentencing amendment retroactive, the fact that a preamendment
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sentence is longer than it would have been postamendment is not
an extraordinary and compelling reason that warrants a sentence
reduction.” Id. at 465 (citation modified).
The Supreme Court also reasoned that the 2018 amendment
was neither “extraordinary” nor “compelling” because (1) the
disparity between the defendants’ earlier sentences and the
sentences they would now receive under the amended § 924(c) was
“an unexceptional feature of a system in which nonretroactivity is
the default,” and (2) Congress deliberately decided not to make the
2018 amendment retroactive for those already sentenced when the
amendment went into effect. Id. at 465–66. The Supreme Court
emphasized that the 2018 amendment fell “well outside the
heartland of compassionate release, which has long been defined
by a prisoner’s personal circumstances.” Id. at 466–67.
Further, the Supreme Court determined that the Sentencing
Commission’s policy statement in § 1B1.13(b)(6) did not change
this conclusion. Id. at 472–73. The Supreme Court explained that,
in defining “extraordinary and compelling reasons” pursuant to
§ 994(t), “the Commission’s policy statement[] must be ‘consistent
with’ the governing statute,” 28 U.S.C. § 994(a), and the
Commission “exceeds its statutory authority by adopting a
definition of a term that is inconsistent with the statute.” Id.
(citation modified). Although not nailing down the boundaries of
the phrase “extraordinary and compelling,” the Supreme Court
concluded the plain and unambiguous meaning of the statute made
clear that Congress’s non-retroactive change to § 924(c) cannot
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make a defendant eligible for release under § 3582(c)(1)(A)(i). Id.
at 473 (citing Batterton v. Francis, 432 U.S. 416, 426 (1977)). Because
§ 3582(c)(1)(A)(i) did not allow a sentence reduction for the 2018
amendment to § 924(c), the Court held that, “[t]o the extent that it
counsels otherwise, [§ 1B1.13(b)(6)] is invalid.” Id.
B. Merits Analysis
In light of Rutherford, we hold that the district court erred in
concluding that Rizo was eligible for a sentence reduction under
§ 3582(c)(1)(A)(i) based on the 2018 non-retroactive statutory
amendment to § 924(c) and the policy statement in § 1B1.13(b)(6).
Rutherford, 608 U.S. at 465–73. The disparity between the
consecutive 20-year sentence Rizo received for his second § 924(c)
conviction in 1997 and the 5-year sentence he would have received
for that conviction after the 2018 amendment does not constitute,
as a matter of law, an “extraordinary and compelling” reason for a
sentence reduction. Id. The district court thus erred in granting
Rizo’s § 3582(c)(1)(A)(i) motion.9 Id.
VI. CONCLUSION
We reverse the district court’s order granting Rizo’s
§ 3582(c)(1)(A)(i) motion and reducing Rizo’s sentence on his
second § 924(c) conviction. On remand, we direct the district court
9 Rizo’s motion also asserted that Amendments 782 and 599 to the Sentencing
Guidelines entitled him to a § 3582(c)(2) sentence reduction. The district court
did not address or rely on those amendments in reducing Rizo’s sentence. In
this appeal, no issue is raised as to Amendments 782 and 599.
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to vacate Rizo’s amended sentence entered on April 2, 2024, and
reinstate Rizo’s original sentence entered on August 25, 1997.
REVERSED.