United States v. Melvin Lawrence ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 10, 2021 Decided June 15, 2021
No. 20-3061
UNITED STATES OF AMERICA,
APPELLEE
v.
MELVIN LAWRENCE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cr-00092-1)
William L. Welch, III, appointed by the court, argued the
cause and filed the briefs for appellant.
David B. Goodhand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, John P. Mannarino, and Timothy R. Cahill, Assistant
U.S. Attorneys.
Before: ROGERS, MILLETT, and WILKINS, Circuit Judges.
Opinion for the Court by Circuit Judge MILLETT.
MILLETT, Circuit Judge: In 2009, the district court
sentenced Melvin Lawrence to nearly 21 years in prison for
2
selling 21.1 grams of crack cocaine. In 2018, Congress enacted
the First Step Act, Pub. L. No. 115-391, § 404, 132 Stat. 5194,
5222, which permits defendants sentenced for certain crack
offenses before August 3, 2010, to seek sentence reductions
because of the profound (and disproportionately racial)
disparity in the law’s prior treatment of crack and powder
cocaine offenses. Lawrence then filed a motion for sentence
reduction, but the district court reduced his sentence only by
the ten months needed to comply with the new statutory
maximum.
The sole and narrow question presented in this appeal is
whether the law mandated that the district court provide
Lawrence the opportunity to allocute—to speak in person to the
district court judge—before ruling on his motion for a sentence
reduction. Because no categorical right to allocute applies to
motions to reduce a sentence under the First Step Act, we
affirm the judgment of the district court.
I
For nearly 25 years, federal criminal law punished
offenses involving crack cocaine far more harshly than
offenses involving powder cocaine. See Anti-Drug Abuse Act
of 1986, Pub. L. No. 99-570, § 1002, 100 Stat. 3207, 3207–2
to 3207–4; Dorsey v. United States, 567 U.S. 260, 263–264
(2012). For instance, the law required a five-year mandatory
minimum prison sentence for people convicted of possessing
with the intent to distribute either (i) 500 grams of powder
cocaine or (ii) 5 grams of crack cocaine—a 100-to-1 disparity.
Dorsey, 567 U.S. at 263–264. Among other unjust effects, this
punishment scheme particularly affected Black defendants,
who constituted the large majority of defendants convicted of
crack offenses and sentenced to disproportionately long prison
terms. See U.S. SENT’G COMM’N, 2009 SOURCEBOOK OF
3
FEDERAL SENTENCING STATISTICS table 34 (2009), https://
www.ussc.gov/research/sourcebook/archive/sourcebook-2009
(showing that in 2009, Black defendants constituted 79 percent
of defendants convicted of crack cocaine offenses but only 28
percent of defendants convicted of powder offenses);
Kimbrough v. United States, 552 U.S. 85, 98 (2007); United
States v. White, 984 F.3d 76, 89–90 (D.C. Cir. 2020).
After two decades of criticism, see Dorsey, 567 U.S.
at 268, Congress reduced, but did not eliminate, the crack-to-
powder disparity in the Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372. See White, 984 F.3d at 81–82
(“[T]he Fair Sentencing Act * * * reduced the disparity
between cocaine base and powder cocaine from 100-to-1 to 18-
to-1.”). As relevant here, the Fair Sentencing Act amended the
penalties for drug distribution under the Controlled Substances
Act, 21 U.S.C. § 841(b)(1), by raising the amount of crack
cocaine needed to trigger various statutorily mandated
sentences. See Fair Sentencing Act § 2(a), 124 Stat. at 2372;
21 U.S.C. § 841(b)(1)(A)(iii), (b)(1)(B)(iii). For example, the
trigger for a mandatory ten-years-to-life sentencing range was
raised from 50 grams of crack to 280 grams. Fair Sentencing
Act § 2(a)(1), 124 Stat. at 2372. And the trigger for a
mandatory 5-to-40-year sentencing range was raised from 5
grams of crack to 28 grams. Id. § 2(a)(2), 124 Stat. at 2372. 1
But the Fair Sentencing Act’s reduced punishments
applied only prospectively to defendants sentenced after the
Act’s effective date of August 3, 2010. Dorsey, 567 U.S. at
1
The Fair Sentencing Act did not change the much higher
amounts of powder cocaine needed to trigger the same mandatory
sentences. Those amounts remain at 5 kilograms (for ten-years-to-
life) and 500 grams (for a 5-to-40 year sentence). See 21 U.S.C.
§ 841(b)(1)(A)(ii), (b)(1)(B)(ii).
4
264; White, 984 F.3d at 82. Defendants sentenced prior to that
date remained subject to their original sentences. 2
Eight years went by before Congress turned to the
defendants left serving sentences imposed under the
disparately more punitive sentencing regime. In Section 404
of the First Step Act, Congress empowered district courts to
reduce existing sentences for people convicted of certain crack
cocaine offenses. See First Step Act § 404, 132 Stat. at 5222;
21 U.S.C. § 841 note (2019) (“Application of Fair Sentencing
Act”). Section 404 proceeds in three parts.
First, Section 404 applies to a “covered offense[,]” which
means “a violation of a Federal criminal statute, the statutory
penalties for which were modified by section 2 or 3 of the Fair
Sentencing Act of 2010, that was committed before August 3,
2010.” First Step Act § 404(a), 132 Stat. at 5222 (internal
citation omitted).
Second, Section 404 provides that the original sentencing
court “may,” on motion of the defendant, the government, or
the court itself, “impose a reduced sentence as if sections 2 and
3 of the Fair Sentencing Act of 2010 were in effect at the time
2
After the passage of the Fair Sentencing Act, the Sentencing
Commission revised the Sentencing Guidelines to “reduc[e] the base
offense levels for all crack amounts proportionally (using the new
18-to-1 ratio),” Dorsey, 567 U.S. at 276, and made those revisions
retroactive. See U.S. SENT’G GUIDELINES MANUAL app. C, amends.
750, 759 (2011). While some already-sentenced defendants could
seek a sentence reduction under those revised Guidelines pursuant to
18 U.S.C. § 3582(c)(2), the new Guidelines did nothing to alter the
statutory mandatory minimums applicable to defendants sentenced
prior to August 3, 2010. See United States v. Swangin, 726 F.3d 205,
208 (D.C. Cir. 2013).
5
the covered offense was committed.” First Step Act § 404(b),
132 Stat. at 5222 (internal citation omitted). In that way,
Section 404 authorizes courts to apply the Fair Sentencing
Act’s crack-cocaine reforms retroactively. See White, 984 F.3d
at 82.
Third, Section 404 sets out certain “[l]imitations” on the
relief available. First Step Act § 404(c), 132 Stat. at 5222.
Courts may not entertain motions under Section 404 if the
“sentence was previously imposed or previously reduced in
accordance with” the Fair Sentencing Act. Id. Courts also may
not entertain renewed motions under Section 404 if a previous
Section 404 motion was “denied after a complete review of the
motion on the merits.” Id. And finally, “[n]othing in [Section
404] shall be construed to require a court to reduce any
sentence pursuant to [Section 404].” Id.
In short, Section 404 creates a process through which
defendants sentenced for a qualifying offense under the prior,
disparate sentencing regime may seek a sentence reduction,
which the district court may grant in its discretion.
The district court’s discretion in adjudicating a
Section 404 motion is “broad” but not “unfettered[.]” White,
984 F.3d at 88. The district court’s judgment “must take
account of Congress’s intent to rectify disproportionate and
racially disparate sentencing penalties.” Id. at 81. To that end,
the district court must consider “all relevant factors[,]” id. at
93, including not only the sentencing factors outlined at 18
U.S.C. § 3553(a), id. at 92–93, but potentially also “new
statutory minimum or maximum penalties; current Guidelines;
post-sentencing conduct; and other relevant information about
a defendant’s history and conduct[,]” id. at 90 (quoting United
States v. Hudson, 967 F.3d 605, 609 (7th Cir. 2020)). The
district court must also consider relevant mitigating evidence
6
offered by the defendant. Id. at 92–93. As with other
sentencing decisions, see Gall v. United States, 552 U.S. 38, 51
(2007), sentence-reduction decisions under Section 404 “must
be procedurally reasonable and supported by a sufficiently
compelling justification[,]” White, 984 F.3d at 91 (quoting
United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020)).
II
This is Melvin Lawrence’s third appearance before this
court.
A
In 2003, Lawrence was convicted of unlawful distribution
of 5 grams or more of cocaine base (crack cocaine) in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and three charges
related to possession of drugs and firearms. On appeal, we
affirmed Lawrence’s conviction on the distribution charge, but
we reversed his convictions on the three possession charges
and remanded for resentencing. United States v. Lawrence,
471 F.3d 135, 143 (D.C. Cir. 2006).
On remand, the district court held a new sentencing
hearing, in which Lawrence allocuted. Resentencing
Transcript at 11–12, United States v. Lawrence, No. 03-cr-
00092-CKK (D.D.C. Oct. 5, 2009), ECF No. 103. Lawrence
told the court that, while incarcerated, he had “been trying to
do the right things as far as * * * becoming a man so I can
provide for my son, he’s 11 and very big.” Id. Lawrence’s
mother was “getting old” and does “the best that she can[,]” but
his son had “health issues as far as * * * weight gain and a lot
of other things.” Id. at 12. Lawrence explained that he “just
want[ed] a chance to be a father” to his son, and that he “was
just hoping that it’s possible that * * * I can get out in his life
before * * * the streets * * * or anything that maybe I have
7
done affect him[.]” Id. He said he wanted to “be a productive
citizen[,]” and noted that he “read the Bible” and “attended
church, school, [and] college.” Id. He admitted that he had
“gotten into some altercations,” but “not because I wanted to,
but it’s prison, and you know, there’s all types of people in
prison.” Id. While “making no excuses” for his actions, he
said he “was just hoping the Court would have leniency” in his
“particular case.” Id.
Based on the single crack cocaine distribution conviction
and the district court finding that Lawrence was a career
offender, Lawrence’s Sentencing Guidelines range was 262 to
327 months. In addition, because Lawrence’s offense involved
21.1 grams of crack, Lawrence was subject to a mandatory
minimum prison term of five years (60 months) and a statutory
maximum of 40 years (480 months). See 21 U.S.C.
§ 841(b)(1)(B)(iii) (2009). The district court granted Lawrence
a downward variance of twelve months based on the court’s
disagreement with the crack–powder disparity in the
Guidelines. The court rejected Lawrence’s request for a larger
downward variance and sentenced him to 250 months of
imprisonment to be followed by five years of supervised
release.
We affirmed Lawrence’s sentence in 2011. United States
v. Lawrence, 662 F.3d 551, 564 (D.C. Cir. 2011).
B
In 2019, following the passage of the First Step Act,
Lawrence filed a pro se motion in district court requesting that
his sentence be reduced to time served, which at that time was
209 months—more than seventeen years. The district court
appointed counsel for Lawrence, and counsel filed a
supplemental motion explaining that, in light of the Fair
Sentencing Act’s amended sentencing ranges, Lawrence’s
8
conviction now subjected him only to a 0-to-20-year
sentencing range rather than the 5-to-40-year range applied at
his original sentencing. See 21 U.S.C. § 841(b)(1)(B), (C).
The supplemental motion also recalculated Lawrence’s
Guidelines range as 210 to 262 months of imprisonment. In
addition, Lawrence argued that time served would be an
appropriate reduced sentence given his age (50 years old),
consistent with the sentencing factors outlined at 18 U.S.C.
§ 3553(a). Finally, Lawrence’s supplemental motion
incorporated the arguments from his pro se motion, which, as
relevant here, had argued that under Section 404, the district
court had “authority to conduct a full resentencing * * * in the
defendant’s presence.” J.A. 39, 49.
The government did not oppose a ten-month reduction in
Lawrence’s sentence from 250 months to 240 months because
that was necessary to bring the sentence down to the revised
statutory maximum of twenty years. See 21 U.S.C.
§ 841(b)(1)(C). But the government opposed any further
sentence reduction. The government also argued that Section
404 proceedings do not require a hearing at which the
defendant is present.
The district court granted a sentence reduction to 240
months imprisonment and three years of supervised release, but
denied any further reduction in Lawrence’s sentence. It ruled
first that no hearing with the defendant present was required,
pointing to the Supreme Court’s decision in Dillon v. United
States, 560 U.S. 817 (2010), and Rule 43 of the Federal Rules
of Criminal Procedure. On the merits, the court ruled that no
reduction beyond the unopposed adjustment of the sentence
down to 240 months was warranted. The court pointed to
Lawrence’s “long criminal history and the danger to public
safety[,]” as well as his “age, risk of recidivism, and * * * long
disciplinary record while incarcerated[.]” J.A. 115.
9
Lawrence timely appealed.
III
We possess appellate jurisdiction under 28 U.S.C. § 1291,
which provides for review of “final decisions” of the district
court. See United States v. Long, --- F.3d ---, No. 20-3064,
2021 WL 1972245, at *5 (D.C. Cir. May 18, 2021); United
States v. Jones, 846 F.3d 366, 369 (D.C. Cir. 2017) (“Denials
of sentence reductions are unquestionably ‘final decisions of a
district court’ because they close the criminal cases once
again.”) (brackets omitted).
IV
Lawrence argues that the district court “should have
allowed Mr. Lawrence to speak in allocution” and address the
court personally before his sentence was imposed. Lawrence
Br. 7. This court has not decided whether a district court’s
failure to provide allocution is subject to harmless error review.
See United States v. Abney, 957 F.3d 241, 247 (D.C. Cir. 2020)
(noting that this court “ha[s] not weighed in on the review
framework”). But see also id. at 254 (“Given the importance
of the allocution right, there may be few, if any, cases in which
its unremedied denial would not undermine the fairness of the
judicial process.”). We do not reach that question today
because Lawrence has failed to demonstrate that any error—
harmless or not—occurred. Simply put, Lawrence was not
categorically entitled to an opportunity for allocution as part of
his Section 404 proceedings under the First Step Act, and he
10
has made no claim that allocution was necessary in the
particular circumstances of his case. 3
A
Once a federal criminal sentence is imposed, it is generally
considered final. See 18 U.S.C. § 3582(b); see also 18 U.S.C.
§ 3742. Nonetheless, 18 U.S.C. § 3582(c) sets out three
circumstances in which a lawfully imposed term of
imprisonment may be modified. First, certain prisoners may
be granted compassionate release due to their advanced age or
for other “extraordinary and compelling reasons[.]” Id.§ 3582(c)(1)(A); Long, 2021 WL 1972245, at *1. Second,
prison terms can be modified “to the extent otherwise expressly
permitted by statute or by Rule 35 of the Federal Rules of
Criminal Procedure[.]” 18 U.S.C. § 3582(c)(1)(B). And third,
courts can entertain motions to reduce prison terms if the
applicable sentencing range for the defendant has been lowered
by the Sentencing Commission. 18 U.S.C. § 3582(c)(2);
Dillon, 560 U.S. at 824–825.
This case implicates the second of those three exceptions.
In the First Step Act, Congress provided authority for courts to
reduce sentences already imposed. So reductions under the Act
fall within 18 U.S.C. § 3582(c)(1)(B)’s exception for sentence
modifications “expressly permitted by statute[.]” See United
States v. Concepcion, 991 F.3d 279, 287 (1st Cir. 2021); United
3
Lawrence also argues that “he is not a ‘Career Offender.’”
Lawrence Br. 15. Because the argument is conclusory and fails to
provide any legal or factual support for the court to consider, we
reject that claim. He also suggests in his reply brief that the district
court erred by failing to “consider disparity” in Lawrence’s sentence.
Reply Br. 5–6. But arguments raised for the first time in a reply brief
are forfeited. United States v. Powers, 885 F.3d 728, 734 (D.C. Cir.
2018).
11
States v. Denson, 963 F.3d 1080, 1087 (11th Cir. 2020); United
States v. Moore, 975 F.3d 84, 89 (2d Cir. 2020); United States
v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019); see also United
States v. Sutton, 962 F.3d 979, 985 (7th Cir. 2020) (Section
3582 “removes a potential obstacle to relief otherwise
authorized” by the First Step Act.).
B
Allocution is the “right * * * to address the sentencing
judge before imposition of a sentence.” Abney, 957 F.3d at
249; see United States v. Roberts, 570 F.2d 999, 1010 (D.C.
Cir. 1977). This right is “deeply rooted in our legal tradition[,]”
and “serves several interrelated purposes, including eliciting
information relevant to mitigation or mercy, demonstrating to
the public that the courts treat criminal defendants in an
individualized, fair, and openminded manner, and simply
acknowledging the defendant’s humanity.” Abney, 957 F.3d at
250.
The right of allocution before the imposition of a criminal
sentence following conviction is now “codified in the Federal
Rules of Criminal Procedure[.]” Abney, 957 F.3d at 249;
accord United States v. Behrens, 375 U.S. 162, 165 (1963);
Green v. United States, 365 U.S. 301, 304 (1961); Couch v.
United States, 235 F.2d 519, 523–524 (D.C. Cir. 1956).
Specifically, Rule 32 requires the district court, before
imposing a sentence, to “address the defendant personally in
order to permit the defendant to speak or present any
information to mitigate the sentence[.]” FED. R. CRIM. P.
32(i)(4)(A)(ii).
The problem for Lawrence, however, is that Federal Rule
of Criminal Procedure 43 is explicit that the right of allocution
does not apply to a sentence-reduction proceeding conducted
after a sentence has formally been imposed. More specifically,
12
Rule 43 provides that the general requirement that a defendant
be “present” at “sentencing” does not apply to a proceeding
involving “the correction or reduction of [a] sentence under
* * * 18 U.S.C. § 3582(c).” FED. R. CRIM. P. 43(b)(4). And
Section 3582(c)—specifically, Section 3582(c)(1)(B)—is the
vehicle by which Lawrence is able to press his motion for First
Step Act relief. See Wirsing, 943 F.3d at 183. 4
Nothing in 18 U.S.C. § 3582(c)(1)(B) provides a
categorical right to allocution either. As relevant here, that
provision states simply that a court “may modify an imposed
term of imprisonment to the extent otherwise expressly
permitted by statute[.]” Id. On its face, all this provision does
is reconcile sentence modification statutes like the First Step
Act with the criminal law’s general rule of sentence finality.
Section 404 of the First Step Act is similarly of no help to
Lawrence’s allocution argument. It says only that courts may
reduce sentences for defendants convicted of certain crack
offenses “on motion” of the defendant, the government, or the
court “as if section 2 and 3 of the Fair Sentencing Act of 2010
were in effect at the time the covered offense was committed.”
First Step Act § 404(b), 132 Stat. at 5222 (internal citation
omitted). Nothing in the text or structure of Section 404,
however, categorically requires that district courts provide an
opportunity for the defendant to allocute before ruling on such
a motion.
4
A Federal Rule of Criminal Procedure is “as binding as any
statute duly enacted by Congress, and federal courts have no more
discretion to disregard the Rule’s mandate than they do to disregard
constitutional or statutory provisions.” Bank of N.S. v. United States,
487 U.S. 250, 255 (1988); see 28 U.S.C. § 2072 (“All laws in conflict
with such rules shall be of no further force or effect[.]”).
13
That is not to say that district courts do not have weighty
obligations in conducting Section 404 proceedings. For
starters, the court’s resolution of the motion for sentence
reduction must “take into account Congress’s purposes” in
passing the Fair Sentencing Act and the First Step Act, which
“together[] are strong remedial statutes, meant to rectify
disproportionate and racially disparate sentencing penalties.”
White, 984 F.3d at 89–90. In that regard, district courts must
consider “all relevant factors,” including “new statutory
minimum or maximum penalties; current Guidelines; post-
sentencing conduct; and other relevant information about a
defendant’s history and conduct.” Id. at 90, 93 (quoting
Hudson, 967 F.3d at 609). In White, we emphasized the
particular relevance of post-sentencing conduct and the
sentencing factors listed in 18 U.S.C. § 3553(a). 984 F.3d at
90–91. Additionally, district courts must give due
consideration to relevant mitigating evidence offered by the
defendant. Id. at 92–93. And sentence-reduction decisions
under Section 404 “must be procedurally reasonable and
supported by a sufficiently compelling justification.” Id. at 91
(quoting Boulding, 960 F.3d at 784).
But nothing in those duties includes a categorical
requirement that defendants, who presumptively already
allocuted at their original sentencing, be afforded the
opportunity to allocute again.
C
On appeal, Lawrence invokes the common law and
Federal Rule of Criminal Procedure 32 as sources for his
14
asserted right to allocute. See Lawrence Br. 9–10; Reply Br.
8–9. 5
The short answer is that Federal Rule of Criminal
Procedure 43 expressly carves sentence-reduction proceedings
like this out of Rule 32’s compass. Under Federal Rule of
Criminal Procedure 43, a defendant by law need not even be
present at a Section 404 sentence-reduction proceeding. FED.
R. CRIM. P. 43(b)(4) (“A defendant need not be present
* * * [when] [t]he proceeding involves the correction or
reduction of sentence under * * * 18 U.S.C. § 3582(c).”). That
necessarily means that defendants do not possess a categorical
right to be present to allocute at such proceedings. See United
States v. Mannie, 971 F.3d 1145, 1156 (10th Cir. 2020); cf.
Dillon, 560 U.S. at 828 (“Rule 43 therefore sets the
proceedings authorized by § 3582(c)(2) * * * apart from other
sentencing proceedings.”).
To that same point, the common law and Rule 32 right to
address the court in allocution applies “before the sentence is
imposed[.]” Abney, 957 F.3d at 250; see FED. R. CRIM. P.
32(i)(4)(A)(ii) (court must afford right to allocute “[b]efore
imposing sentence”). Lawrence already exercised that
allocution right when his sentence was imposed in 2009.
Nothing in the common law or Rule 32 requires a second
opportunity for allocution in a Section 404 proceeding that just
considers reducing that already-imposed sentence. See Long,
2021 WL 1972245, at *5 (“[B]y definition, a sentence must
already have been imposed before a sentence-modification rule
may be invoked and a sentence reduction contemplated.”)
5
Lawrence does not assert any constitutional right to allocution.
His briefs invoke only a right of allocution “grounded in the common
law.” Lawrence Br. 9.
15
(internal quotation marks omitted) (quoting United States v.
McAndrews, 12 F.3d 273, 277 (1st Cir. 1993)).
If Lawrence means to equate a Section 404 proceeding
with an original sentencing and all of its requirements, he is
mistaken. While a Section 404 proceeding is a weighty one, it
differs meaningfully from an original sentencing.
Most notably, the district court in a Section 404
proceeding has no authority to increase a defendant’s sentence.
The proceeding will either benefit the defendant or leave him
with the same sentence already imposed (and for which he
already had the right and opportunity to allocute). First Step
Act § 404(b), 132 Stat. at 5222 (district court may impose only
“a reduced sentence” or leave the sentence unchanged). So
unlike an original sentencing, a Section 404 proceeding cannot
result in any additional deprivation of liberty. Instead, by the
time of the First Step Act proceeding, “the purpose of
allocution—to allow the defendant the opportunity to challenge
the information the original sentencing judge will rely upon as
well as to present evidence in mitigation—has already been
accomplished.” United States v. Jackson, 923 F.2d 1494, 1498
(11th Cir. 1991); see Mannie, 971 F.3d at 1156 (“We do not
disagree * * * as to the importance of the defendant’s right of
allocution at his initial sentencing; but this is a sentence
modification, not an initial sentencing. There are significant
differences between the two.”) (footnote omitted).
In addition, the Supreme Court ruled in Dillon that a
similar sentence-reduction proceeding “[b]y its terms * * *
does not authorize a sentencing or resentencing proceeding[,]”
but instead “provides for the ‘modification of a term of
imprisonment’ by giving courts the power to ‘reduce’ an
otherwise final sentence[.]” 560 U.S. at 825 (brackets
omitted). In Dillon, the Court was analyzing Section
16
3582(c)(2)—which immediately follows Section
3582(c)(1)(B), the provision at issue here. Subsection (c)(2)
permits district courts to reduce a prison term for a defendant
“who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission[.]” 18 U.S.C. § 3582(c)(2). The
Court held that, even though proceedings under Section
3582(c)(2) involve consideration of the Section 3553(a)
sentencing factors, a district court resolving such a motion for
sentence reduction “does not impose a new sentence in the
usual sense.” Dillon, 560 U.S. at 827.
The exact same rationale applies here. While the district
court may “impose” a different sentence in a Section 404
proceeding, First Step Act § 404(b), 132 Stat. at 5222, it does
not do so “in the usual sense[,]” Dillon, 560 U.S. at 827.
Instead, Section 404 authorizes a special type of post-
sentencing proceeding in which the district court must
undertake a distinct analysis to determine whether, as a matter
of discretion, an already-imposed sentence should be reduced,
with an eye towards “provid[ing] a remedy for defendants who
bore the brunt of a racially disparate sentencing scheme.”
White, 984 F.3d at 91. While the court considers the Section
3553(a) sentencing factors, it does so for that different statutory
purpose.
And importantly, for purposes of the issue in this case,
nothing in the text of Section 3582(c)(1)(B) meaningfully
differentiates it from Section 3582(c)(2)—the provision at
issue in Dillon. Section 3582(c)(1)(B) empowers courts to
“modify an imposed term of imprisonment,” and Section
3582(c)(2) permits courts to “reduce the term of
imprisonment[.]” Neither provision contemplates a complete
do-over of the sentencing process with a mandatory new
opportunity for allocution.
17
In sum, nothing in Section 404 of the First Step Act, the
sentence modification provision of 18 U.S.C. § 3582(c)(1)(B),
the common law, or the Federal Rules of Criminal Procedure
supports Lawrence’s proposed categorical right to allocution in
Section 404 sentence-reduction proceedings. We hold that
there is no such right.
D
Of course, even though defendants do not possess a
categorical right to allocute as part of a Section 404
proceeding, district courts may choose to allow allocution as
an exercise of their reasoned discretion. And nothing in our
holding addresses whether, in the circumstances of a particular
case, allocution might be warranted or required. That is
because Lawrence has not made any as-applied claim of a right
to allocute. Nor could his counsel, at oral argument, provide
any reason why a new opportunity for allocution would have
been uniquely useful or appropriate in this case. See Transcript
of Oral Argument at 8–9. The only question in this case is
whether an absolute right to allocute exists, and the district
court correctly ruled that no such right applies here.
*****
Section 404 of the First Step Act “makes possible the
fashioning of the most complete relief possible” to address a
serious problem of disproportionate and racially inequitable
sentencing law. White, 984 F.3d at 90 (brackets omitted)
(quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 421
(1975)). “This is no small matter.” White, 984 F.3d at 90. But
neither the statute’s text nor its remedial purpose requires that
the defendant in every case be given a new opportunity for
allocution.
18
For all of the foregoing reasons, we affirm the judgment of
the district court.
So ordered.