In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 20-2943 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

ROSS THACKER, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Central District of Illinois. 

No. 2:03-cr-20004-MMM-2 — Michael M. Mihm, Judge. 

____________________ 

ARGUED MAY 13, 2021 — DECIDED JULY 15, 2021

____________________ 

Before SYKES, Chief Judge, and SCUDDER and KIRSCH, Circuit 

Judges. 

SCUDDER, Circuit Judge. Ross Thacker is serving a 33-year 

federal sentence for a series of armed robberies he committed 

in 2002. The sentence included so-called stacked penalties—

imposed to run consecutively to one another—for two convictions under 18 U.S.C. § 924(c) for using and carrying a firearm 

during two of the robberies. The first § 924(c) conviction resulted in a mandatory minimum sentence of 7 years, and the 
2 No. 20-2943 

second added a mandatory consecutive sentence of at least 25 

years. In September 2020 Thacker invoked 18 U.S.C. 

§ 3582(c)(1)(A) and sought to reduce his sentence based not 

only on the health risks of exposure to COVID-19 within 

prison, but also on the amendment Congress enacted in the 

First Step Act of 2018 to limit the circumstances in which multiple sentences for violations of § 924(c) can be stacked. The 

district court denied Thacker’s motion, concluding in part 

that the discretion in § 3582(c)(1)(A) to reduce a sentence upon 

finding “extraordinary and compelling reasons” does not include the authority to reduce § 924(c) sentences lawfully imposed before the effective date of the First Step Act’s antistacking amendment. 

Federal courts across the country have—and continue to—

weigh in on this question, sometimes reaching different conclusions. We now weigh in too—and agree with the district 

court. Given Congress’s express decision to make the First 

Step Act’s change to § 924(c) apply only prospectively, we 

hold that the amendment, whether considered alone or in 

connection with other facts and circumstances, cannot constitute an “extraordinary and compelling” reason to authorize a 

sentencing reduction. So we affirm. 

I 

A 

Ross Thacker and a friend committed several armed robberies in and around Champaign, Illinois in 2002. Federal 

charges followed and two jury trials resulted in Thacker being 

convicted of two violations of 18 U.S.C. § 1951 (commercial 

robbery) and two accompanying violations of 18 U.S.C. 
No. 20-2943 3

§ 924(c) for using and carrying a firearm in furtherance of a 

crime of violence. 

The district court sentenced Thacker to 33 years and 

4 months’ imprisonment and 5 years of supervised release. 

Seven of those 33 years came from the sentence imposed for 

Thacker’s first § 924(c) violation. See 18 U.S.C. 

§ 924(c)(1)(A)(ii) (2002). A consecutive 25 years followed for 

the second violation of § 924(c). See id. § 924(c)(1)(C)(i) (2002). 

Those sentences reflected the mandatory minimum and consecutive terms of imprisonment Congress prescribed for violations of § 924(c) at the time of Thacker’s sentencing. In short, 

the district court had no choice but to sentence Thacker to at 

least 7 years for the first § 924(c) violation and then to at least 

25 consecutive years for the second. We affirmed Thacker’s 

convictions on direct appeal. See United States v. Thacker, 

206 F. App’x 580 (7th Cir. 2006). 

B 

In August 2020, after exhausting his remedies within the 

Bureau of Prisons, Thacker filed a pro se motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Upon reviewing Thacker’s motion, the district court appointed counsel to 

represent him. Thacker’s counsel then submitted an amended 

motion. The amended motion pointed to the significance of 

the First Step Act’s change to § 924(c)’s penalty structure and 

added health-related considerations amid the COVID-19 pandemic. Thacker explained that he suffered from Type-2 diabetes and hypertension and faced an increased risk of exposure 

to and complications from COVID-19 within the federal correctional institution in Gilmer County, West Virginia, where 

he is serving his sentence. 
4 No. 20-2943 

The First Step Act of 2018 effected significant changes to 

aspects of federal criminal sentencing. See Pub. L. No. 115-

391, 132 Stat. 5194. For one, federal prisoners acquired the 

right under 18 U.S.C. § 3582(c)(1)(A) to request a reduction in 

their sentences. No longer do they have to persuade and depend on the Bureau of Prisons to bring the motion on their 

behalf, which rarely happened before the First Step Act. For 

another, Congress amended the penalties mandated by certain statutes, including § 924(c). 

Before the Act, a second or subsequent conviction under 

§ 924(c) mandated the imposition of a minimum sentence of 

25 years to run consecutive to all other sentences, including 

any sentence imposed (even in the same case) for a first conviction under § 924(c). See 18 U.S.C. § 924(c)(1)(C)(i) (2002). 

The First Step Act changed that. An enhanced sentence for a 

second or subsequent conviction under § 924(c) now applies 

only when the first § 924(c) conviction arises from a separate 

case and becomes final before the second conviction. See 

§ 403, 132 Stat. at 5221–22. 

Had Ross Thacker been sentenced after the First Step Act 

became law, he would have faced a 14-year mandatory minimum—7 years for each of his two § 924(c) convictions for 

brandishing a firearm during an armed robbery. Instead, 

Thacker faced a 32-year sentence for his two § 924(c) convictions. That 18-year difference understandably means all the 

world to Thacker. 

The district court denied Thacker’s motion for two primary reasons. First, the district court found that COVID-19 

was well controlled within FCI Gilmer and otherwise that 

Thacker’s health conditions were being managed with medication. In short, the district court concluded that Thacker’s 
No. 20-2943 5

health conditions did not amount to an extraordinary and 

compelling reason for early release. 

Second, and as for the First Step Act’s amendment to 

§ 924(c), the district court observed that the amendment, by 

its terms, applied only prospectively and therefore that the 

sentencing disparity highlighted by Thacker could not serve 

as an extraordinary and compelling reason warranting a sentencing reduction. 

In denying Thacker’s motion, the district court lacked the 

benefit of our recent decision in United States v. Gunn, 980 F.3d 

1178 (7th Cir. 2020). As a result, the district court made the 

mistake of resting a part of its reasoning on the Sentencing 

Commission’s policy statement defining what may constitute 

an extraordinary and compelling reason for purposes of a discretionary compassionate release sentencing reduction under 

§ 3582(c)(1)(A)(i). In Gunn, we concluded that while the policy 

statement could serve as a guide to district courts, it was binding only on compassionate release motions made by the Director of the Bureau of Prisons. See id. at 1179. 

But that mistake is of no moment on appeal because the 

district court also expressly addressed Thacker’s argument on 

the merits, and observed that Congress, in § 403(b) of the First 

Step Act, expressly made the anti-stacking amendment effective only prospectively. Congress’s choice, the district court 

concluded, meant that the sentencing disparity resulting from 

the amendment to § 924(c) could not constitute an extraordinary and compelling reason for a discretionary sentencing reduction and early release under § 3582(c)(1)(A). 

Reasoning in the alternative, the district court also underscored that, even if the First Step Act’s amendment to § 924(c) 
6 No. 20-2943 

were retroactive, the court would not exercise its discretion to 

grant Thacker early release. On this front, the district court 

applied the factors in 18 U.S.C. § 3553(a) and found that 

Thacker, in light of his offense conduct and criminal history, 

continued to present a danger to the community. 

Thacker now appeals. 

II

Congress made plain in § 403(b) of the First Step Act that 

the amendment to 18 U.S.C. § 924(c) “shall apply to any offense that was committed before the date of the enactment of 

this Act, if a sentence for the offense has not been imposed as 

of such date of enactment.” By its terms, then, the First Step 

Act’s anti-stacking amendment applies prospectively. 

There is no way to read that choice as anything other than 

deliberate, for Congress charted a different course in other 

provisions of the First Step Act. Consider, for example, § 404, 

in which Congress permitted defendants who were sentenced 

before the Fair Sentencing Act of 2010 to benefit from that 

law’s sentencing reform—including the elimination of mandatory minimum sentences for simple possession and the increased threshold quantity of crack cocaine necessary to trigger mandatory penalties. Congress made those changes retroactive. These distinctions matter, and they are ones reserved 

for Congress to make. Interpreting § 403 to apply retroactively would unwind and disregard Congress’s clear direction that the amendment apply prospectively. The district 

court was right to see Thacker’s motion, at least in part, as an 

attempted end-run around Congress’s decision in the First 

Step Act to give only prospective effect to its amendment of 

§ 924(c)’s sentencing scheme. 
No. 20-2943 7

The compassionate release statute, § 3582(c)(1)(A), affords 

district courts discretion to reduce a term of imprisonment 

upon finding, among other requirements, “extraordinary and 

compelling reasons to warrant such a reduction.” If a district 

court finds such reasons exist, it then must weigh any of the

applicable sentencing factors in 18 U.S.C. § 3553(a) in determining whether to reduce a sentence. See 18 U.S.C. 

§ 3582(c)(1)(A). Many a federal prisoner has invoked the extraordinary and compelling reasons provision as part of seeking a sentencing reduction, often citing extraordinary health 

circumstances involving terminal illness. See Gunn, 980 F.3d 

at 1179. We recently explained that, until the Sentencing Commission updates its policy statement to reflect prisoner-initiated compassionate release motions, district courts have 

broad discretion to determine what else may constitute “extraordinary and compelling reasons” warranting a sentence 

reduction. See id. at 1180–81. 

But the discretionary authority conferred by 

§ 3582(c)(1)(A) only goes so far. It cannot be used to effect a 

sentencing reduction at odds with Congress’s express determination embodied in § 403(b) of the First Step Act that the 

amendment to § 924(c)’s sentencing structure apply only prospectively. To conclude otherwise would allow a federal prisoner to invoke the more general § 3582(c) to upend the clear 

and precise limitation Congress imposed on the effective date 

of the First Step Act’s amendment to § 924(c). See United States 

v. Jarvis, 999 F.3d 442, 2021 WL 2253235, at *2 (6th Cir. June 3, 

2021). Put another way, there is nothing “extraordinary” 

about leaving untouched the exact penalties that Congress 

prescribed and that a district court imposed for particular violations of a statute. See United States v. Maumau, 993 F.3d 821, 

838 (10th Cir. 2021) (Tymkovich, C.J., concurring) (“Indeed, 
8 No. 20-2943 

the imposition of a sentence that was not only permissible but 

statutorily required at the time is neither an extraordinary nor 

a compelling reason to now reduce that same sentence.”). 

We harbor broader concerns with allowing § 3582(c)(1)(A) 

to serve as the authority for relief from mandatory minimum 

sentences prescribed by Congress. We see nothing preventing 

the next inmate serving a mandatory minimum sentence under some other federal statute from requesting a sentencing 

reduction in the name of compassionate release on the basis 

that the prescribed sentence is too long, rests on a misguided 

view of the purposes of sentencing, reflects an outdated legislative choice by Congress, and the like. Rationales along 

those lines cannot supply an extraordinary and compelling 

reason to reduce a lawful sentence whose term Congress enacted, and the President signed, into law. Any other conclusion offends principles of separation of powers. 

In making this observation, we are not saying that extraordinary and compelling individual circumstances, such as a 

terminal illness, cannot in particular cases supply the basis for 

a discretionary sentencing reduction of a mandatory minimum sentence. See Gunn, 980 F.3d at 1179. But we are saying 

that the discretion conferred by § 3582(c)(1)(A) does not include authority to reduce a mandatory minimum sentence on 

the basis that the length of the sentence itself constitutes an 

extraordinary and compelling circumstance warranting a sentencing reduction. 

And so too do we worry that a contrary conclusion about 

the scope of the discretion conferred by § 3582(c)(1)(A) would 

allow the compassionate release statute to operate in a way 

that creates tension with the principal path and conditions 

Congress established for federal prisoners to challenge their 
No. 20-2943 9

sentences. That path is embodied in the specific statutory 

scheme authorizing post-conviction relief in 28 U.S.C. § 2255 

and accompanying provisions. See Hrobowski v. United States, 

904 F.3d 566, 567–68 (7th Cir. 2018). 

We previously affirmed Thacker’s convictions on direct 

appeal. And Thacker already unsuccessfully attacked his sentence under § 2255, so he would need express authorization 

to bring a second or successive request for post-conviction relief. See 28 U.S.C. § 2244(a). But he cannot do so, at least not 

on the basis of the First Step Act’s amendment to § 924(c). 

Congress permits a second or successive § 2255 motion only 

if it contains “newly discovered evidence” or relies on a “new 

rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(1)–(2); 

see Hrobowski, 904 F.3d at 568. We have already twice rejected 

Thacker’s attempts at a successive § 2255 appeal. See Thacker 

v. United States, No. 16-3530 (7th Cir. October 6, 2016); Thacker 

v. United States, No. 16-1191 (7th Cir. March 2, 2016). He presents no new evidence nor has the Supreme Court made any 

such ruling with respect to the § 924(c) stacking provision. To 

the contrary, the Supreme Court has found no constitutional

infirmity with the prior § 924(c) stacked sentencing scheme. 

See Deal v. United States, 508 U.S. 129, 136–37 (1993) (involving 

a challenge that § 924(c)(1) is facially ambiguous).

In the end, our conclusion is limited. We hold only that the 

discretionary sentencing reduction authority conferred by 

§ 3582(c)(1)(A) does not permit—without a district court finding some independent “extraordinary or compelling” reason—the reduction of sentences lawfully imposed before the 

effective date of the First Step Act’s amendment to § 924(c). 

Nothing about our holding precludes district courts, upon 
10 No. 20-2943 

exercising the discretion conferred by § 3582(c)(1)(A) and determining that a sentence reduction is warranted, from considering the First Step Act’s amendment to § 924(c) in determining the length of the warranted reduction. In fact, as other 

courts have persuasively explained, this may be the more effective way to get at the § 924(c) sentencing disparity. See Jarvis, 999 F.3d 442, 2021 WL 2253235, at *3. 

III

In closing, we observe that we are not the only court to 

deal with this issue. In fact, it has come up across the country, 

and courts have come to principled and sometimes different 

conclusions as to whether the change to § 924(c) can constitute 

an extraordinary and compelling reason for compassionate 

release. 

The Fourth Circuit, on the one hand, takes the view that 

the sentencing disparity resulting from the anti-stacking 

amendment to § 924(c) may constitute an extraordinary and 

compelling reason for release. See United States v. McCoy, 

981 F.3d 271, 285–87 (4th Cir. 2020). 

On the other hand, a panel of the Sixth Circuit more recently took the opposite view. See Jarvis, 999 F.3d 442, 2021 

WL 2253235, at *3. This followed from a previous decision of 

the Sixth Circuit concluding that another nonretroactive 

change to sentencing law in the First Step Act could not, by 

itself, constitute an extraordinary and compelling reason for 

release. See United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 

2021). To a lesser extent and with little elaboration, the Eighth 

Circuit seems to be on this side of the ledger too. See United 

States v. Loggins, 966 F.3d 891, 892–93 (8th Cir. 2020) (observing that the district court did not misstate the law in finding 
No. 20-2943 11

“that a non-retroactive change in law did not support a finding of extraordinary or compelling reasons for release”). 

The Tenth Circuit has adopted a middle ground, determining that the sentencing disparity resulting from a nonretroactive change to sentencing law in the First Step Act may 

serve in combination with other rationales as an extraordinary and compelling reason for early release. See United States 

v. McGee, 992 F.3d 1035, 1048 (10th Cir. 2021); see also 

Maumau, 993 F.3d at 837. Another panel of the Sixth Circuit, 

in a decision issued before Jarvis, echoed this same approach 

for the change to § 924(c). See United States v. Owens, 996 F.3d 

755, 764 (6th Cir. 2021). 

Our own court is familiar with this debate too. We heard

United States v. Black, — F.3d —, 2021 WL 2283876 (7th Cir. 

June 4, 2021), Thacker’s appeal, and a third case, United States 

v. Sutton, No. 20-2876 (7th Cir. argued Apr. 27, 2021), earlier 

this year. All three appeals implicated, to one degree or another, the First Step Act’s amendment to § 924(c) and its relation to a request for a compassionate release sentencing reduction under § 3582(c)(1)(A). But whether the change to 

§ 924(c) could constitute an extraordinary and compelling 

reason for release was squarely presented in only this appeal 

and Sutton. Black, by contrast, principally concerned whether 

the district court in that case should have weighed the change 

to § 924(c) when applying the § 3553(a) factors after the prisoner identified serious medical concerns as an independent 

extraordinary and compelling reason for release. 

In vacating the district court’s denial of compassionate release in Black, we cited with favor the views of both the Fourth 

and Tenth Circuits, while also observing that Congress’s 

changes to the statutory sentencing scheme in § 924(c) might 
12 No. 20-2943 

factor into a district court’s individualized determination of 

whether the § 3553(a) sentencing factors weighed in favor of 

Eural Black’s early release. See Black, — F.3d —, 2021 WL 

2283876, at *3. We then remanded the case with instructions 

allowing the district court to consider the change to § 924(c) 

as part of deciding Black’s request for a sentencing reduction. 

Black’s broad language and express reliance on the Fourth Circuit’s decision in McCoy left the opinion open to the observation that we had concluded Congress’s recent amendment to 

§ 924(c) can itself constitute an extraordinary and compelling 

reason justifying early release under § 3582(c)(1)(A). See id. at 

*5 n.3 (Kirsch, J., dissenting) (advancing this precise point).

We take the opportunity here to answer squarely and definitively whether the change to § 924(c) can constitute an extraordinary and compelling reason for a sentencing reduction. It cannot. 

The proper analysis when evaluating a motion for a discretionary sentencing reduction under § 3582(c)(1)(A) based 

on “extraordinary and compelling” reasons proceeds in two 

steps. At step one, the prisoner must identify an “extraordinary and compelling” reason warranting a sentence reduction, but that reason cannot include, whether alone or in combination with other factors, consideration of the First Step 

Act’s amendment to § 924(c). Upon a finding that the prisoner 

has supplied such a reason, the second step of the analysis requires the district court, in exercising the discretion conferred 

by the compassionate release statute, to consider any applicable sentencing factors in § 3553(a) as part of determining what 

sentencing reduction to award the prisoner. 

Before issuing this opinion, we circulated it to the full 

court under Circuit Rule 40(e). No judge in active service 
No. 20-2943 13

requested to hear this case en banc.* Accordingly, the legal 

framework articulated in this opinion reflects the law of the 

Circuit. 

For these reasons, we AFFIRM the district court’s denial 

of Thacker’s compassionate release motion.

* Circuit Judge Jackson-Akiwumi did not participate in the consideration 

or decision of this case.