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Supreme Court: FIRST STEP Act Allows Courts to Consider Intervening Changes in the Law at Resentencing: Concepcion

In Concepcion, the Supreme Court held that the First Step Act allows district courts to consider intervening changes in law when resentencing a defendant.

On Monday, the Supreme Court issued their ruling in Concepcion vs. United States, No. 20-1650.  Concepcion holds that the First Step Act allows district courts to consider intervening changes in law when resentencing a defendant.

Syllabus of Concepcion

Congress passed the Fair Sentencing Act of 2010 to correct the wide disparity between crack and powder cocaine sentencing. Section 2 of that Act increased the amount of crack cocaine needed to trigger a 5-to-40-year sentencing range from 5 grams to 28 grams. 2(a)(2), 124 Stat. 2372. The Fair Sentencing Act did not apply retroactively, but in 2011, the Sentencing Commission amended the Sentencing Guidelines to lower the Guidelines range for crack-cocaine offenses and applied that reduction retroactively for some defendants. In 2018, Congress enacted the First Step Act, authorizing district courts to “impose a reduced sentence” on defendants serving sentences for certain crack-cocaine offenses “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” Pub. L. 115–391, 404(b), 132 Stat. 5222.

In 2007, petitioner Carlos Concepcion pleaded guilty to one count of distributing five or more grams of crack cocaine in violation of 21 U. S. C. 841(a)(1), and he was sentenced in 2009 to 19 years (228 months) in prison. When Concepcion was sentenced, he qualified for sentencing as a “career offender.” The career offender provision and other enhancements increased Concepcion’s Sentencing Guidelines range from 57 to 71 months to 262 to 327 months. Because Concepcion was sentenced as a career offender, he was not eligible for relief under the Sentencing Commission’s 2011 amendment.

In 2019, Concepcion filed a pro se motion for a sentence reduction under the First Step Act. He argued that he was serving a sentence for a “covered offense” because 2 of the Fair Sentencing Act “modified” the statutory penalties for his conviction under 21 U. S. C. 841(a)(1). Concepcion contended that retroactive application of the Fair Sentencing Act lowered his Guidelines range from 262 to 327 months to 188 to  235 months. The Government conceded Concepcion’s eligibility for relief but opposed the motion, emphasizing that Concepcion’s original sentence of 228 months fell within the new Guidelines range of 188 to 235 months, and citing factors in Concepcion’s prison record that the Government believed counseled against a sentence reduction. In his reply brief, represented by counsel, Concepcion made two primary arguments in support of a reduced sentence. First, he argued that he would no longer be considered a career offender because one of his prior convictions had been vacated and his remaining convictions would not constitute crimes of violence that trigger the enhancement. Without the enhancement, Concepcion contended that his revised Guidelines range should be 57 to 71 months. Second, Concepcion pointed to postsentencing evidence of rehabilitation.

The District Court denied Concepcion’s motion. It declined to consider that Concepcion would no longer qualify as a career offender based on its judgment that the First Step Act did not authorize such relief. App. to Pet. for Cert. 72a. The District Court did not address Concepcion’s evidence of rehabilitation or the Government’s countervailing evidence of Concepcion’s disciplinary record. The Court of Appeals affirmed in a divided opinion, and added to the disagreement among the Circuits as to whether a district court deciding a First Step Act motion must, may, or may not consider intervening changes of law or fact.

Held: The First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence. Pp. 6–18.

(a) Federal courts historically have exercised broad discretion to consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before them. That discretion also carries forward to later proceedings that may modify an original sentence. District courts’ discretion is bounded only when Congress or the Constitution expressly limits the type of information a district court may consider in modifying a sentence. Pp. 6–11.

(1) There is a “long” and “durable” tradition that sentencing judges “enjo[y] discretion in the sort of information they may consider” at an initial sentencing proceeding. Dean v. United States, 581 U. S. 62, 66. That unbroken tradition also characterizes federal sentencing history. Indeed, “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U. S. 81, 113.  Accordingly, a federal judge in deciding to impose a sentence “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446. Pp. 6–8.

(2) The discretion federal judges hold at initial sentencings also characterizes sentencing modification hearings. The Court in Pepper v. United States, 562 U. S. 476, found it “clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing.” Id., at 490. Accordingly, federal courts resentencing individuals whose sentences were vacated on appeal regularly consider evidence of rehabilitation, or evidence of rule breaking in prison, developed after the initial sentencing. Where district courts must calculate new Guidelines ranges as part of resentencing proceedings, courts have also exercised their discretion to consider nonretroactive Guidelines changes. In some cases, a district court is prohibited from recalculating a Guidelines range to account for nonretroactive Guidelines amendments, but the court may nevertheless find those amendments to be germane when deciding whether to modify a sentence at all, and if so, to what extent. Pp. 8–9.

(3) The only limitations on a court’s discretion to consider relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution. See Pepper, 562 U. S., at 489, n. 8; Mistretta v. United States, 488 U. S. 361, 364. Congress has placed such limits where it deems them appropriate. See 18 U. S. C. 3582(a), 3583(c). Congress has further imposed express statutory limitations on one type of sentencing modification proceeding, expressly cabining district courts’ discretion by requiring courts to abide by the Sentencing Commission’s policy statements. See also 3582(c)(1)(A) (compassionate release). Pp. 9–11.

(b) Congress in the First Step Act did not contravene well-established sentencing practices. Pp. 11–18.

(1) Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion. The text of the First Step Act does not so much as hint that district courts are prohibited from considering evidence of rehabilitation, disciplinary infractions, or unrelated Guidelines changes. The only two limitations on district courts’ discretion appear in 404(c): A district court may not consider a First Step Act motion if the movant’s sentence was already reduced under the Fair Sentencing Act or if the court considered and rejected a motion under the First Step Act. Neither limitation applies here. By its terms, 404(c) does not prohibit district courts from considering any arguments in favor of, or against, sentence modification. In fact, 404(c)  only underscores that a district court is not required to modify a sentence for any reason. “Drawing meaning from silence is particularly inappropriate” in the sentencing context, “for Congress has shown that it knows how to direct sentencing practices in express terms.” Kimbrough v. United States, 552 U. S. 85, 103.

The “as if ” clause in 404(b) does not impose any limit on the information a district court can consider in exercising its discretion under the First Step Act. The term “as if ” simply enacts the First Step Act’s central goal: to make retroactive the changes in the Fair Sentencing Act, necessary to overcome 1 U. S. C. 109, which creates a presumption that Congress does not repeal federal criminal penalties unless it says so “expressly.” The “as if ” clause also directs district courts to apply the Fair Sentencing Act as if it applied at the time of the commission of the offense, not at the time of the original sentencing, suggesting that Congress did not intend to constrain district courts to considering only the original sentencing record. Thus, the “as if ” clause requires district courts to apply the legal changes in the Fair Sentencing Act when recalculating a movant’s Guidelines, but it does not limit the information a district court may use to inform its decision whether and how much to reduce a sentence. Pp. 11–14.

(2) Consistent with this text and structure, district courts deciding First Step Act motions regularly have considered evidence of postsentencing rehabilitation and unrelated Guidelines amendments when raised by the parties. First Step Act movants have amassed prison records of over a decade. See 404(a), 132 Stat. 5222 (requiring the movant to have been sentenced for an offense “committed before August 3, 2010”). Those records are naturally of interest to judges authorized by the First Step Act to reduce prison sentences or even to release movants immediately. Likewise, when deciding whether to grant First Step Act motions and in deciding how much to reduce sentences, courts have looked to postsentencing evidence of violence or prison infractions as probative. Moreover, when raised by the parties, district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by how much. Nothing express or implicit in the First Step Act suggests that these courts misinterpreted the Act in considering such relevant and probative information. Pp. 14–16.

(3) The Court therefore holds that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act. When deciding a First Step Act motion, district courts bear the standard obligation to explain their decisions and demonstrate that they considered the parties’ nonfrivolous arguments. See Golan v. Saada,  596 U. S. ___, ___. The district court is not required to articulate anything more than a brief statement of reasons. See Rita v. United States, 551 U. S. 338, 356.

The broad discretion that the First Step Act affords to district courts also counsels in favor of deferential appellate review. See Solem v. Helm, 463 U. S. 277, 290, n. 16. Section 404(c) of the First Step Act confers particular discretion because the Act does not “require a court to reduce any sentence.” Other than legal errors in recalculating the Guidelines to account for the Fair Sentencing Act’s changes, see Gall v. United States, 552 U. S. 38, 51, appellate review should not be overly searching. Pp. 16–18.

991 F. 3d 279, reversed and remanded.

Conception's Application:  Can Conception be Used in the Compassionate Release Context?

So far, we know that Conception can be used for a Motion for Relief under Section 404 of the FIRST STEP Act, which is fine.  But some believe that Conception's holding can be applied to expand the types of 3582 reductions in sentence that can be filed, especially in places like the Sixth and Seventh Circuits.

However the Seventh Circuit has recently offered an opinion on the application of Conception to other cases in United States vs. King.  In finding against the inmate on this issue the seventh circuit said the following:

The statute also says that applications must be assessed according to policy statements issued by the Sentencing Com- mission. 18 U.S.C. §3582(c)(1)(A) [hanging paragraph]. The Sentencing Commission has not updated those statements since the First Step Act of 2018, which allows prisoners to file their own requests without the support of the Bureau of Prisons. But we explained in United States v. Gunn, 980 F.3d 1178 (7th Cir. 2020), that the older policy statements remain useful to guide district judges’ discretion. Those statements, found at U.S.S.G. §1B1.13 and Application Note 1, contemplate the release of prisoners afflicted by severe medical conditions or risks, experiencing a family emergency, or otherwise in unu- sual personal circumstances. They do not hint that the sort of legal developments routinely addressed by direct or collateral review qualify a person for compassionate release.

Concepcion does not alter that understanding. It held that, when substantive changes made by the First Step Act (principally reductions in the authorized ranges for crack-cocaine crimes) entitle a prisoner to be resentenced, the judge may consider everything that would have been pertinent at an original sentencing. We may assume that the same would be true if a district judge were to vacate a sentence on application for compassionate release and hold a full resentencing proceeding. But decisions such as Thacker concern the threshold question: whether the prisoner is entitled to a reduction under §3582(c)(1)(A). Concepcion mentioned the compassionate-release statute only to support the proposition that Congress knows how to limit which considerations may be used to reduce a sentence. Slip op. 10–11 & 13 n.5. That observation un- dermines rather than helps King’s position.

That the First Step Act did multiple things—lowering sentences for some cocaine crimes, enabling prisoners to seek compassionate release on their own motions, and more—does not mean that every decision about any aspect of the First Step Act applies to every potential question under that statute. The First Step Act did not create or modify the “extraordinary and compelling reasons” threshold for eligibility; it just added prisoners to the list of persons who may file motions. We take the Supreme Court at its word that Concepcion is about the majers that district judges may consider when they resentence defendants. So understood, Concepcion is irrelevant to the threshold question whether any given prisoner has established an “extraordinary and compelling” reason for release.

So at least one court has found against this expanded view.  Now we must wait to see what the other courts do.

Fourth Circuit Vacates Denial of 404 Motion Following Concepcion: Byers

United States v. Byers, No. 20-7700 (4th Cir. 2022)

Byers filed a motion for reduction of sentence pursuant to Section 404 of the First Step Act of 2018. The district court denied Byers’ motion by using a form order utilized for compassionate release motions (AO-247) rather than the form used for motions for sentence reduction (AO-248). On appeal, Byers argued that the district court’s misuse of the forms demonstrated that the court did not understand the basis for his motion for reduction in sentence. Further, Byers argued that the district court erred in failing to consider arguments in favor of a sentence reduction, such as his age at the time of the offense, prison record, and post-conviction rehabilitation.

The district court’s order relied on the 18 U.S.C. 3553(a) factors to deny Byers Section 404 relief. The Fourth Circuit held that although the district court properly considered the 3553(a) factors as required, it failed to demonstrate that it considered Byers’ arguments in mitigation.

In Concepcion v. United States, the Supreme Court held that a district court must consider the arguments in mitigation in determining whether to grant Section 404 relief. Here, the Fourth Circuit found the district court failed to do so. Accordingly, the court vacated the district court’s order denying Byer’s 404 motion and remanded the case back to the district court so that it may reassess Byers’ motion in light of Concepcion.

Fourth Circuit Holds that District Court Must Demonstrate that it has Considered the Arguments in 404 Case:  Wyatt

Wyatt filed a motion for a sentence reduction under Section 404 of the FIRST STEP ACT. The district court found that he was eligible for relief under the Act, but exercised their discretion to deny relief. The Fourth Circuit indicated that the district court did not show that they considered Wyatt’s argument that his sentencing guidelines range has been significantly reduced since his original sentencing.

The court noted that Concepcion held that “although a district court is not required ‘to make a point-by-point rebuttal of the parties’ arguments,’ it must ‘demonstrate that it has considered the arguments before it.’”

The Fourth Circuit remanded the case back to the district court for a reassessment.

Third Circuit Vacates Grant of Section 404 Motion and Holds that District Court Must allow Defendant to File a Sentencing Memorandum or Hold a Hearing on Defendant's Mitigation Arguments.

United States v. Shields, No. 19-2717 (3d Cir. 2022)

In 2008, Shields was conceited of one count of conspiracy to distribute and possess with intent to distribute heroin and crack cocaine. The district court determined Shields to be a career offender, which resulted in a Guidelines range of 360 months to life imprisonment. Shields was sentenced to a term of 360 months.

Following passage of the First Step Act of 2018, Shields moved for a sentence reduction under Section 404, which made the Fair Sentencing Act of 2010 fully retroactive and allowed qualifying defendants who were sentenced for a crack cocaine offense to seek a reduction. In his Section 404 motion, Shields requested a full, in-person sentencing hearing or, in the alternative, the opportunity to file a sentencing memorandum with supplemental documentation. Shields also sought to challenge his career offender designation as other changes in the law that are non-retroactive meant that if Shields were sentenced today, he would not be a career offender.

Without addressing Shields’ request to submit a sentencing memorandum, the district court found that Shields did qualify for resentencing, but denied Shields’ request for a full resentencing hearing. The court reduced Shields’ sentence to 262 months. Further, the court declined to consider whether under current law Shields would still be considered a career offender.

On appeal, Shields argued that the district court erred by refusing to consider whether Shields currently qualifies as a career offender and by denying a resentencing hearing. Relying on the Supreme Court’s decision in Concepcion v. United States, 142 S.Ct. 2389 (2022), the Third Circuit held that the district court was required to consider a defendant’s argument regarding intervening developments in law or changes in the defendant’s circumstances. Thus, the district court erred by not considering Shields’ argument that he no longer qualifies as a career offender.

As to Shields’ argument that the district court should have held a full resentencing, the Third Circuit had already held that, under the First Step Act, a defendant is not entitled to a plenary resentencing hearing. However, Shields’ case provided an extra wrinkle because the district judge that decided his 404 motion was not the same judge that originally sentenced Shields. But the Third Circuit dismissed Shields’ argument, concluding that judges who resentence defendants whom they never met are not categorically unable to give the section 404(b) motion due consideration.

However, the Third Circuit did conclude that the district court erred in not considering Shields’ nonfrivolous arguments for resentencing. The court held that when a district court holds an in-person resentencing hearing-and especially when it does not-a sentencing memorandum “offers an invaluable opportunity for First Step Act movants to present their arguments.”

Accordingly, the court of appeals held that the district court must allow either a hearing or a reasonable opportunity to present sentencing arguments in writing prior to resentencing on a section 404 motion. As such, the Third Circuit vacated Shields’ reduced sentence and remanded to the district court for resentencing again.

Eleventh Circuit Reverses a 404 Motion Denial post-ConceptionOdom, 22-10536

Odom filed a motion for a sentence reduction under Section 404(b) of the FIRST STEP Act. Odom “provided a newly obtained Psychological and Behavior Assessment (PBA) evaluation form from the School District of Indian River County, Vero Beach, Florida and requested the court re-evaluate his prior request for a downward variance based on Diminished Mental Capacity.  The PBA form evidences his mental capacity—deemed within the Educable Mental Handicapped range—during his adolescence.”

The district court denied his motion.  On appeal, the Eleventh Circuit, citing Concepcion v. United States, 142 S. Ct. 2389, 2404 (2022), noted that “because district courts must ‘consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them.’ …District courts ruling on First Step Act motions bear the ‘standard obligation to explain their decisions,’ and accordingly must give a “brief statement of reasons to ‘demonstrate that they considered the parties’ arguments.’”

The Eleventh Circuit indicated that the district court failed to address Odom’s PBA form or “indicate that it considered his claim for a diminished mental capacity variance.”  As a result, the Eleventh Circuit vacated the ruling and remanded the case back down for further consideration.

If anything here applies to you, contact us today.

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