United States v. Concepcion

United States Court of Appeals
For the First Circuit
No. 19-2025
UNITED STATES OF AMERICA,
Appellee,
v.
CARLOS CONCEPCION,
a/k/a BIG PAPI, a/k/a PAPI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
J. Martin Richey, Assistant Federal Public Defender, for
appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with
whom Andrew E. Lelling, United States Attorney, was on brief, for
appellee.
March 15, 2021
SELYA, Circuit Judge. Defendant-appellant Carlos
Concepcion pleaded guilty to possession with intent to distribute
and distribution of cocaine base (crack cocaine) in 2008. The
following year, the district court sentenced him to a 228-month
term of immurement. While the defendant was serving his sentence,
Congress passed the Fair Sentencing Act, Pub. L. No. 111-220, 124
Stat. 2372, which reduced the statutory penalties for most federal
crimes involving crack cocaine in an effort to ameliorate
sentencing disparities between crack cocaine offenses and powdered
cocaine offenses.
In 2018, Congress made these changes retroactive through
the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, and the
defendant moved for resentencing. The district court denied his
motion, United States v. Concepcion, No. 07-10197, 2019 WL 4804780(D. Mass. Oct. 1, 2019), and this timely appeal followed.
The defendant contends that the district court was
obliged to, but did not, update and reevaluate the constellation
of sentencing factors adumbrated in 18 U.S.C. § 3553(a).
Relatedly, he contends that, pursuant to this obligation, the
district court should have recalculated his guideline sentencing
range (GSR) anew under the sentencing guidelines in effect at the
time of resentencing.1 Even if a recalculation of his GSR was not
1 It is not clear whether the defendant seeks to have his GSR
recalculated pursuant to the guidelines in effect at the time he
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required, he submits, the district court should have given effect
to guideline changes occurring subsequent to the imposition of his
original sentence. Because we have not yet spoken definitively to
the scope of resentencing under the First Step Act, this appeal
presents issues of first impression in this circuit. After careful
consideration, we reject the defendant's asseverational array and
affirm the district court's order denying resentencing.
I. BACKGROUND
We start by rehearsing the relevant facts and the travel
of the case. In 2006, federal law enforcement officers in New
Bedford, Massachusetts, monitored two drug transactions in which
the defendant participated. Those transactions, in the aggregate,
involved the sale of 27.5 grams of crack cocaine. Warrant-backed
searches of the defendant's home and car turned up an additional
186.34 grams of powdered cocaine, two loaded firearms, and many
rounds of ammunition.
In due course, a federal grand jury sitting in the
District of Massachusetts charged the defendant with possessing
with intent to distribute and distributing five grams or more of
crack cocaine. See 21 U.S.C. § 841(a)(1) (2006). This charge
filed his motion for resentencing or, should his motion be granted,
those in effect at the time of resentencing. As a shorthand, we
refer in this opinion to the guidelines in effect at the time of
resentencing. We note, however, that this appeal does not require
us to explore the choice between these alternatives, and we leave
the question open.
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carried a statutory minimum penalty of five years' imprisonment
and a statutory maximum penalty of forty years' imprisonment. See
id. § 841(b)(1)(B)(iii). The government, acting pursuant to 21
U.S.C. § 851(a)(1), filed an information memorializing that the
defendant had a prior felony drug-offense conviction, which
doubled the mandatory minimum and boosted the maximum available
sentence to life imprisonment. See id.Although initially maintaining his innocence, the
defendant eventually pleaded guilty to the single-count
indictment. The probation department proceeded to prepare a
presentence investigation report (PSI report). After tentatively
concluding that the defendant had a total offense level of twenty-
five and should be placed in Criminal History Category (CHC) V,
the PSI report determined that the defendant qualified as a career
offender under USSG §4B1.1(a). This determination rested, in part,
on the fact that the defendant's criminal record included at least
two prior felony convictions for crimes of violence and/or
controlled substance offenses. Specifically, his criminal history
revealed state convictions for distribution of crack cocaine,
possession with intent to distribute powdered cocaine, armed
carjacking, armed robbery, and assault and battery with a dangerous
weapon. The career offender designation resulted in a total
offense level of thirty-four, a CHC of VI, and a GSR of 262 to 327
months.
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The district court convened the disposition hearing on
May 6, 2009. The court adopted the final guideline calculations
recommended in the PSI report (including the career offender
designation). The defendant argued for a downwardly variant 120-
month sentence (the mandatory minimum), and the government argued
for a 262-month sentence (the bottom of the GSR). The court mulled
the section 3553(a) factors and considered, among other things,
the defendant's troubled youth and then-current guideline and
policy developments. The court found that a below-the-range
sentence of 228 months was "sufficient but not greater than
. . . necessary," and therefore fair and just. Cf. Kimbrough v.
United States, 552 U.S. 85, 111 (2007) (upholding downward variance
when sentencing court had appropriately considered defendant's
GSR, defendant's background, and Sentencing Commission's then-
recent criticism of disparate treatment of crack cocaine
offenses). The defendant appealed, and we summarily affirmed the
challenged sentence. See United States v. Concepcion, No. 09-1691
(1st Cir. Dec. 30, 2009) (unpublished judgment).
This was far from the end of the matter. The defendant
sought collateral review of his sentence through a motion filed
pursuant to 28 U.S.C. § 2255. The district court denied the
motion. Little daunted, the defendant — on August 1, 2016 — again
moved to vacate his sentence under section 2255. The district
court treated the motion as an application for leave to file a
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second or successive section 2255 motion and referred it to this
court. See 28 U.S.C. § 2255(h) (explaining that a second or
successive motion under section 2255 "must be certified . . . by
. . . the appropriate court of appeals"). We denied the
application. See Concepcion v. United States, No. 16-2209 (1st
Cir. Apr. 27, 2017) (unpublished judgment). Mistakenly believing
that the third time was the charm, the defendant filed yet another
section 2255 motion. That motion met a similar fate. See
Concepcion v. United States, No. 17-1637 (1st Cir. July 31, 2017)
(unpublished judgment).
Nearly two years later, the defendant moved pro se to
reduce his sentence pursuant to the First Step Act. See Pub. L.
No. 115-391, 132 Stat. 5194. He argued that the First Step Act,
by retroactively raising the quantity of crack cocaine required to
trigger the statutory penalty provision set forth in 21 U.S.C.
§ 841(b)(1)(B)(iii) (2018), reduced his statutory maximum sentence
to thirty years, see 21 U.S.C. § 841(b)(1)(C), and shrank his GSR
to 188 to 235 months. Once counsel was appointed, an additional
argument was advanced on the defendant's behalf. This argument
posited that the defendant no longer qualified as a career offender
and, thus, should be regarded as having a GSR of fifty-seven to
seventy-one months. The government opposed the motion: although
it agreed that the defendant was eligible for resentencing under
the First Step Act, it cited the leniency originally extended by
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the district court and urged that a reduced sentence be withheld
as a matter of discretion.
The district court, in a thoughtful rescript, denied the
defendant's motion for resentencing. Concepcion, 2019 WL 4804780,
at *2-6. This appeal ensued.
II. ANALYSIS
The defendant assigns error to the district court's
denial of his motion for resentencing. Specifically, he contends
that in deciding whether to reduce his sentence pursuant to the
First Step Act, the court was required to evaluate the 18 U.S.C.
§ 3553(a) factors anew and that, under sections 3553(a)(4) and
(5), such a reevaluation entailed the preparation of a new PSI
report, calculating a new GSR based on the guidelines in effect at
the time of resentencing. As a fallback, the defendant contends
that even if a new GSR calculation was not obligatory, the court
should have at least considered intervening guideline developments
as part of its calibration of the other section 3553(a) factors.
Because the defendant's contentions hinge, in the first instance,
on the nexus between the First Step Act and the Fair Sentencing
Act, we turn directly to this nexus.
In 2010, Congress enacted the Fair Sentencing Act to
ameliorate sentencing disparities between similarly situated
defendants convicted of drug-trafficking offenses involving crack
cocaine, on the one hand, and powdered cocaine, on the other hand.
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See Dorsey v. United States, 567 U.S 260, 263-64 (2012). As the
district court determined, this case fits comfortably within that
paradigm. See Concepcion, 2019 WL 4804780, at *1-2. Prior to the
passage of the Fair Sentencing Act, the defendant's conviction for
an offense involving five or more grams of crack cocaine exposed
him to a statutory sentencing range of five to forty years in
prison. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). The Fair
Sentencing Act increased the amount of crack cocaine needed to
trigger this penalty range to twenty-eight grams. See Fair
Sentencing Act § 2(a)(2). This change, however, did not apply
retroactively. Consequently, it did not inure to the benefit of
offenders — like the defendant — who were sentenced before August
3, 2010. See Dorsey, 567 U.S. at 280-81. As a result, the Fair
Sentencing Act left in place disparate sentences for crack cocaine
offenses meted out before August 3, 2010.
Congress sought to remedy this perceived inequity by
enacting the First Step Act. Section 404 of the First Step Act
applies specified portions of the Fair Sentencing Act
retroactively to defendants whose sentences became final before
August 3, 2010. Specifically, it provides that "[a] court that
imposed a sentence for a covered offense may . . . impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act
. . . were in effect at the time the covered offense was
committed." First Step Act § 404(b). To complete the picture,
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the First Step Act defines a "covered offense" as "a violation of
a Federal criminal statute, the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act . . . that
was committed before August 3, 2010." Id. § 404(a). Importantly,
the First Step Act makes pellucid that the decision to impose or
withhold a reduced sentence is a decision that rests within the
sound discretion of the district court. See id. § 404(c) ("Nothing
in this section shall be construed to require a court to reduce
any sentence pursuant to this section.").
Seen in this light, the defendant's offense is a covered
offense within the purview of the First Step Act. In 2008, he
pleaded guilty to a violation of 21 U.S.C. § 841(a). The offense
to which he pleaded, coupled with his prior felony drug
convictions, subjected him to a mandatory minimum term of ten
years' imprisonment and exposed him to a maximum sentence of up to
life imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). And
this statutory sentencing range was materially altered when the
Fair Sentencing Act increased the triggering amount for the
mandatory minimum penalty to twenty-eight grams. Taken in the
ensemble, these developments brought the defendant's case under
the carapace of the First Step Act. See United States v. Smith,
954 F.3d 446, 450 (1st Cir. 2020) (concluding that violation of 21
U.S.C. § 841(a)(1) involving crack cocaine is a covered offense
under First Step Act).
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The district court recognized that, because the offense
of conviction was a covered offense, the First Step Act rendered
the defendant eligible for a sentence reduction. The defendant
argues that the court should have gone further: it should have
reevaluated the section 3553(a) factors as of the date of the
motion and commissioned a new PSI report — one reflecting that,
under the current iteration of the sentencing guidelines, the
defendant no longer qualifies as a career offender. In support,
the defendant says that one of his prior drug convictions has been
vacated and that emerging case law precludes some of his other
predicate offenses from being classified as crimes of violence.
See, e.g., United States v. Kennedy, 881 F.3d 14, 24 (1st Cir.
2018) (holding that Massachusetts conviction for assault and
battery with dangerous weapon did not qualify as crime of violence
under Armed Career Criminal Act); United States v. Starks, 861
F.3d 306, 319 (1st Cir. 2017) (same with respect to Massachusetts
robbery).2 We proceed to examine this argument.
2 These cases were decided in light of Johnson v. United
States, 576 U.S. 591 (2015), which held "that imposing an increased
sentence under the residual clause of the Armed Career Criminal
Act violates the Constitution's guarantee of due process." Id. at
606. Although the defendant was not sentenced as a career offender
under the Armed Career Criminal Act, the United States Sentencing
Commission amended the career offender guideline defining "crime
of violence" by striking that provision's residual clause in
response to Johnson. See USSG App. C Supp., Amend. 798 (effective
Nov. 1, 2016); see also USSG §4B1.2(a) (2018).
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The scope of resentencing under section 404 of the First
Step Act is a question of statutory interpretation and, thus,
engenders de novo review. See Smith, 954 F.3d at 448; United
States v. Gibbens, 25 F.3d 28, 32 (1st Cir. 1994). Although we
have not previously confronted this question, we have envisioned
"at least two possibilities." Smith, 954 F.3d at 452. A defendant
"might be eligible for plenary resentencing, in which case his GSR
would potentially be recalculated under the current version of the
Sentencing Guidelines Manual . . . or he might be eligible for a
procedure . . . in which . . . his GSR would remain as it was [when
he was sentenced] but the district court might nevertheless vary
downwardly." Id. By demanding "at minimum a present day review
of the section 3553(a) factors" and "a proper calculation of the
guidelines in effect at the time of resentencing," the defendant
seeks what amounts to a plenary review of his sentence. Thus,
this case brings front and center the question left open in Smith
and requires us to decide whether a defendant's eligibility for
First Step Act resentencing entitles him to plenary resentencing.
Although this is an issue of first impression in this
circuit, we do not write on a pristine page. At least five of our
sister circuits have held, albeit in various contexts, that section
404 of the First Step Act does not entitle a defendant to plenary
resentencing. See United States v. Moore, 975 F.3d 84, 90-92 (2d
Cir. 2020); United States v. Denson, 963 F.3d 1080, 1089 (11th
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Cir. 2020); United States v. Kelley, 962 F.3d 470, 471 (9th Cir.
2020); United States v. Alexander, 951 F.3d 706, 708 (6th Cir.
2019); United States v. Hegwood, 934 F.3d 414, 415 (5th Cir.),
cert. denied, 140 S. Ct. 285 (2019); cf. United States v. Hamilton,
790 F. App'x 824, 826 (7th Cir. 2020) (concluding that "district
court did not plainly err by reducing [the defendant's] sentence
without a plenary resentencing"). Four of these courts have
squarely addressed whether First Step Act resentencing entitles a
defendant to a reevaluation of his career offender status under
subsequently amended but non-retroactive guidelines, and all of
them have held that it does not. See Moore, 975 F.3d at 90-91;
Kelley, 962 F.3d at 475-79; United States v. Foreman, 958 F.3d
506, 509-12 (6th Cir. 2020); Hegwood, 934 F.3d at 417-19.
This line of authority, though, is not uniform: four
circuits have espoused a minority view. See United States v.
White, 984 F.3d 76, 90 (D.C. Cir. 2020); United States v. Easter,
975 F.3d 318, 327 (3d Cir. 2020); United States v. Boulding, 960
F.3d 774, 784 (6th Cir. 2020); United States v. Chambers, 956 F.3d
667, 668 (4th Cir. 2020). For example, the Sixth Circuit has held
that a First Step Act resentencing must "includ[e] an accurate
calculation of the amended guidelines range at the time of
resentencing." Boulding, 960 F.3d at 784. So, too, the Fourth
Circuit, concluding (in a two-to-one opinion) that the First Step
Act requires a present-day recalculation of a defendant's GSR, has
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held that "any Guidelines error deemed retroactive . . . must be
corrected in a First Step Act resentencing." Chambers, 956 F.3d
at 668.
Mindful of this divided authority, we begin — as every
exercise in statutory analysis should begin — with the text of the
controlling statute (here, the First Step Act). The statute
explicitly authorizes a "court that imposed a sentence for a
covered offense" to "impose a reduced sentence as if sections 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)
(emphasis supplied). That the First Step Act takes only sections
2 and 3 of the Fair Sentencing Act back in time, stipulating that
a new sentence shall be meted out "as if" those sections (and only
those sections) were in effect when the defendant committed the
covered offense, is a compelling indication that Congress did not
intend that other sections of the Fair Sentencing Act are to apply
retroactively. See Kelley, 962 F.3d at 475; Hegwood, 934 F.3d at
418.
We add, moreover, that section 404(b) conspicuously
constrains a sentencing court's list of newly applicable laws at
a resentencing hearing to only the Fair Sentencing Act. Nothing
in the First Step Act invites the district court to apply changes
in the law external to the Fair Sentencing Act. See United States
v. Smith, 958 F.3d 494, 498 (6th Cir. 2020) (observing that First
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Step Act only provides "limited, discretionary authorization to
impose a reduced sentence" which is "inconsistent with a plenary
resentencing" (quoting Hegwood, 934 F.3d at 418)); Alexander, 951
F.3d at 708 (similar). As the Kelley court explained, the First
Step Act "authorizes the district court to consider the state of
the law at the time the defendant committed the offense, and change
only one variable: the addition of sections 2 and 3 of the Fair
Sentencing Act as part of the legal landscape." 962 F.3d at 475.
The consideration of Amendment 798 and current sentencing
guidelines, as the defendant envisions, goes beyond the limits of
this authorization.
The fact that the First Step Act vests a district court
with wide discretion about whether to reduce a defendant's sentence
for a covered offense, see First Step Act § 404(b); id. § 404(c),
cuts in the same direction. That Congress saw fit to afford
district courts such wide discretion is in tension with the
defendant's argument that the court was obliged to follow a
specific procedure — a full reevaluation of the section 3553(a)
factors and a mandatory recalculation of the defendant's GSR under
current guidelines.
Along the same line, it is clear to us — and our
dissenting brother agrees — that a First Step Act resentencing
constitutes only a modification of an imposed term of imprisonment.
Further Congressional circumscriptions on resentencing apply in
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such cases, and those circumscriptions underscore the limited and
discretionary nature of the authorization afforded to sentencing
courts under the First Step Act. See Smith, 958 F.3d at 498. As
a general matter, a final judgment in a criminal case may not be
revisited by the sentencing court. See 18 U.S.C. § 3582(b)-(c);
see also Dillon v. United States, 560 U.S. 817, 824 (2010). Of
course, this rule — like many general rules — admits of certain
exceptions. But in the absence of an applicable exception, "[a]
court may not modify a term of imprisonment." 18 U.S.C. § 3582(c).
Two such exceptions are relevant here. Under the first,
"the court may modify an imposed term of imprisonment to the extent
. . . expressly permitted by statute." Id. § 3582(c)(1)(B). Under
the second,
"in the case of 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 pursuant
to 28 U.S.C. [§] 994(o), . . . the court may
reduce the term of imprisonment, after
considering the factors set forth in section
3553(a) to the extent that they are
applicable, if such a reduction is consistent
with applicable policy statements issued by
the Sentencing Commission."
Id. § 3582(c)(2).
Because section 2 of the Fair Sentencing Act only reduced
the statutory penalties applicable to defendants convicted of
crack cocaine offenses, and did not address sentences already
imposed, retroactive modification of sentences under the Fair
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Sentencing Act prior to the First Step Act could be sought only
"by reference to reductions in the sentencing range." United
States v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019). And because
those reductions were made "by the Sentencing Commission," section
3582(c)(2) constituted the appropriate exception to the finality
of a sentence for those retroactive modification requests. Id. at
184-85.
A First Step Act motion, by contrast, is grounded in the
Act's explicit authorization for a sentencing court to reduce a
sentence, rather than on actions of the Sentencing Commission.
For this reason, the appropriate framework for the evaluation of
a § 404(b) motion is found in § 3582(c)(1)(B). See id.; United
States v. Holloway, 956 F.3d 660, 665-66 (2d Cir. 2020) ("A First
Step Act motion . . . is not properly evaluated under 18 U.S.C.
§ 3582(c)(2). . . . [S]uch a motion falls within the scope of
§ 3582(c)(1)(B)."). Accordingly, a sentencing court evaluating a
section 404(b) motion may modify a sentence only to the extent
"expressly permitted" by the First Step Act. See § 3582(c)(1)(B).
This exception is narrow: by its terms, the First Step
Act allows only "a specific type of sentence reduction." See
Kelley, 962 F.3d at 477. The permission granted in section 404(b)
is only permission to "impose a reduced sentence as if sections 2
and 3 of the Fair Sentencing Act . . . were in effect." And this
type of sentence reduction is wholly discretionary. See First
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Step Act § 404(b)-(c). It follows, we think, that mandatory
enforcement of intervening changes in the law, not encompassed by
sections 2 and 3 of the Fair Sentencing Act — in this instance,
Amendment 798 and any newly updated guidelines — would fall outside
the compass of the leave Congress granted under the First Step
Act. Simply put, a First Step Act resentencing is not the correct
vehicle through which a defendant may demand the benefits of
emerging legal developments unrelated to sections 2 and 3 of the
Fair Sentencing Act — and Congress has prohibited the courts from
holding otherwise. See 18 U.S.C. § 3582(c).
In addition to these statutory limitations on a
sentencing court's authority, we find persuasive the government's
suggestion that a mechanical application of intervening changes in
the law would lead to anomalous results. Congress enacted the
Fair Sentencing Act to correct the unequal treatment of crack
cocaine offenses as compared to powdered cocaine offenses. To
interpret section 404(b) to allow certain crack cocaine offenders
to avail themselves of case law unrelated to crack cocaine
sentencing disparities would not create a level playing field but,
rather, would put defendants convicted of crack cocaine offenses
in a more advantageous position than defendants convicted of
powdered cocaine offenses. Indeed, such an interpretation would
put crack cocaine defendants who had committed covered offenses in
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a more advantageous position than other criminal defendants
generally. See Kelley, 962 F.3d at 478.
We discern nothing in the text of either the Fair
Sentencing Act or the First Step Act that warrants a conclusion
that Congress intended to replace one set of sentencing disparities
with another. It would, therefore, be an exercise in judicial
hubris to transmogrify a motion for resentencing under the First
Step Act into an exclusive backstreet permitting the free-wheeling
correction of putative errors in a defendant's GSR anytime that
the guidelines change. See Chambers, 956 F.3d at 676 (Rushing,
J., dissenting) ("Congress's concern in Section 404 was to extend
the cocaine sentencing provisions of the Fair Sentencing Act
retroactively, not to provide a general opportunity to
collaterally attack a final sentence.").
In a further effort to broaden the scope of First Step
Act resentencing, the defendant invokes section 404(b)'s statement
that a court may "impose a reduced sentence as if sections 2 and
3 . . . were in effect at the time the covered offense was
committed." First Step Act § 404(b). Focusing with laser-like
intensity on the word "impose," the defendant insists that this
word choice evinces congressional intent that First Step Act
defendants be resentenced under "the familiar . . . framework" of
18 U.S.C. § 3553(a). This word choice is critically important,
the defendant says, because the power to "impose" a sentence is
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more expansive than the power either to "modify" a sentence or to
"reduce" a sentence. Similarly, he gives weight to the fact that
the participle of "impose" is used in section 3553(a)'s enumeration
of "factors to be considered in imposing a sentence." We find
this argument unconvincing.
At the outset, we note that the defendant's tunnel-
vision reading of the word "impose" overlooks the express limiting
language of the First Step Act: the "as if" clause. That clause
permits a sentencing court to apply only sections 2 and 3 of the
Fair Sentencing Act — and no more. See Moore, 975 F.3d at 91
(explaining that "the First Step Act does not simply authorize a
district court to 'impose a sentence' [but] authorizes the court
to do so subject to the 'as if' clause"). The defendant's
selective rendition of the First Step Act sidesteps this plain
statutory language.
What is more, reading the word "impose" in isolation
ignores the fact that the Act permits only a sentence reduction.
First Step Act § 404(b)-(c). Language has its limits and,
situating the word "impose" in context, we are skeptical that a
meaningful difference exists between "imposing" a reduced sentence
and "reducing" a sentence. In all events, no such difference has
been articulated here. Viewed objectively, the fact that the First
Step Act allows only a sentence reduction strongly suggests that
the act does not authorize what would effectively be plenary
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resentencing. See Alexander, 951 F.3d at 708 (noting that
"authorization to impose a reduced sentence is inconsistent with
a plenary resentencing"); cf. Dillon, 560 U.S. at 831 (concluding
that 18 U.S.C. § 3582(c)(2) "does not authorize a resentencing"
but "[i]nstead . . . permits a sentence reduction").
We add a coda. The defendant's entreaty that we mandate
a fresh evaluation of the section 3553(a) factors would, if
honored, impermissibly cabin the discretion that the First Step
Act vests in the district court. It is to that, at an original
sentencing, the district court, "in determining whether to impose
a term of imprisonment shall consider the factors set forth in
section 3553(a)." 18 U.S.C. § 3582(a). By contrast, though, a
sentence reduction under the First Step Act is wholly
discretionary. See First Step Act § 404(b)-(c). In our view, the
wide discretion inherent in First Step Act resentencing undercuts
the defendant's textual argument. See United States v. Moore, 963
F.3d 725, 727-28 (8th Cir. 2020) (rejecting argument that statutory
use of "impose" requires consideration of section 3553(a)
factors); Kelley, 962 F.3d at 477-78 (same); Foreman, 958 F.3d at
510-12 (same).
Nor need we linger long over the defendant's contention
that our construction of the First Step Act is at odds with 18
U.S.C. § 3553(a). At the time of resentencing, a district court
must place itself back at the date of the offense, altering the
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legal landscape only by resort to sections 2 and 3 of the Fair
Sentencing Act. See Hegwood, 934 F.3d at 418. This counterfactual
exercise does not undo the sentencing court's original calibration
of the section 3553(a) factors. See id. at 418-19 (explaining
that resentencing under the First Step Act "is being conducted as
if all the conditions for the original sentencing were again in
place with the one exception"). Because the text and structure of
the First Step Act do not support plenary resentencing, there is
no principled way that we can find reassessment of the section
3553(a) factors mandatory.
The short of it is that the scope of a First Step Act
resentencing is more circumscribed than the defendant envisions.
Application of the First Step Act, which vests great discretion in
the district court, raises two questions: the binary question of
whether a defendant should be resentenced and the conditional
question of what that new sentence should be. See Denson, 963
F.3d at 1087 ("The First Step Act leaves the choice of whether to
resentence and to what extent to the district court's sound
discretion."). Fairly viewed, such a proceeding entails a two-
step inquiry by the district court. At the first step, the
district court should determine whether resentencing of an
eligible defendant is appropriate under the circumstances of the
particular case. At this step, though, the district court's
discretion is cabined by the limited permission that Congress saw
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fit to grant under section 404(b). Consequently, the district
court must place itself at the time of the original sentencing and
keep the then-applicable legal landscape intact, save only for the
changes specifically authorized by sections 2 and 3 of the Fair
Sentencing Act. Cf. Kelley, 962 F.3d at 475 (adopting a two-step
inquiry under which a district court should first "place itself in
the counterfactual situation where all the applicable laws that
existed at the time the covered offense was committed are in place,
making only the changes required by sections 2 and 3 of the Fair
Sentencing Act"). The court must then determine whether the
defendant should be resentenced. Because section 3582(c)(1)(B)
restricts a sentencing court's "permi[ssion]" to modify a
sentence, a district court's decision to permit a modification
must be based solely on the changes that sections 2 and 3 of the
Fair Sentencing Act require to be made with respect to the
defendant's original GSR. See Hegwood, 934 F.3d at 418 (holding
that adjustment of defendant's GSR "'as if' the lower drug offense
sentences were in effect at the time of the commission of the
offense . . . is the only explicit basis . . . for a change in the
sentencing"). If that determination is in the negative, the
inquiry ends and any sentence reduction must be denied.
If, however, the district court's determination is in
the affirmative, it may impose a reduced sentence under step two
of the inquiry. It is at this step that a district court may, in
- 22 -
its discretion, consider other factors relevant to fashioning a
new sentence. See Foreman, 958 F.3d at 513 (explaining that "First
Step Act imposes no additional constraints on a district court's
discretion once it determines the statutory and Guidelines ranges
'as if' the Fair Sentencing Act has been in effect before 2010").
Specifically, the discretion that the First Step Act vests in the
district court leads to the logical conclusion — which we endorse
— that "a district court may, but need not, consider section 3553
factors" in a reduction in sentence. Moore, 963 F.3d at 727. When
mulling these factors, the court may choose to consider conduct
that occurred between the date of the original sentencing and the
date of resentencing. See United States v. Hudson, 967 F.3d 605,
612; Chambers, 956 F.3d at 674; United States v. Jackson, 945 F.3d
315, 322 n.7 (5th Cir. 2019).
So, too, the district court may consider guideline
changes, whether or not made retroactive by the Sentencing
Commission, once it reaches the second step of the resentencing
pavane. After all, a district court may take into consideration
any relevant factors (other than those specifically proscribed),
including current guidelines, when deciding to what extent a
defendant should be granted relief under the First Step Act.3 See
3 The scope of this discretion is consistent with our case
law allowing sentencing courts to consider intervening guideline
amendments in other contexts. See, e.g., United States v. Ahrendt,
560 F.3d 69, 78-80 (1st Cir. 2009) (remanding for discretionary
- 23 -
Foreman, 958 F.3d at 513; see also United States v. Harris, 960
F.3d 1103, 1106 (8th Cir. 2020); Smith, 954 F.3d at 452 n.8. It
follows, we think, that a district court, upon electing to fashion
a reduced sentence pursuant to the First Step Act, may in its
discretion order the preparation of a new PSI report. Such an
updated PSI report may contain a revised GSR, based in part upon
subsequent, non-retroactive guideline amendments. We emphasize,
though, that this discretion is a two-sided coin, and the district
court may choose to forgo a new PSI report entirely.
Our dissenting brother disagrees in part: he diverges
from our view in his interpretation of the scope of the discretion
that a resentencing court possesses when deciding whether to
resentence a defendant under step one. In his view, the discretion
that our opinion affords a district court under step two should
extend to step one such that, in deciding whether resentencing is
appropriate, the district court should be able to consider post-
sentencing information. The main support for the dissent's
proposition is that section 3582(c)(2), the vehicle through which
defendants requested a retroactive application of the Fair
Sentencing Act prior to the First Step Act, expressly allows a
court to consider such information in its determination of
resentencing based on non-retroactive guideline amendment); United
States v. Godin, 522 F.3d 133, 136 (1st Cir. 2008) (per curiam)
(similar).
- 24 -
"whether" to sentence a defendant. See 19 USSG §1B1.10 cmt.
n.1(B)(iii) ("The court may consider post-sentencing conduct of
the defendant that occurred after imposition of the term of
imprisonment in determining: (I) whether a reduction in the
defendant's term of imprisonment is warranted; and (II) the extent
of such reduction . . . ."). Nevertheless, our dissenting brother
argues that, in order to grant post-First-Step-Act defendants an
opportunity for relief "roughly equivalent" to that afforded to
previous defendants, the discretion to consider such information
should apply in section 404(b) proceedings. Post at 60.
But we have determined — and our dissenting brother does
not dispute — that section 3582(c)(1)(B), not section 3582(c)(2),
governs section 404(b) proceedings. See supra at 16. Thus, "there
is no reason to suppose that motions brought pursuant
to 3582(c)(1)(B) are subject to the restrictions particular to
§ 3582(c)(2), which are grounded in the text of the latter
statute." Wirsing, 943 F.3d at 185. Although the application of
section 3582(c)(2) is expressly required to comport with section
1B1.10, neither section 3582(c)(1)(B) nor section 1B1.10 requires
a sentence modification under section 3582(c)(1)(B) "to comport
with U.S.S.G. § 1B1.10 or any other policy statement." Holloway,
956 F.3d 666. It follows that "the defendant's eligibility turns
only on the statutory criteria" in section 3582(c)(1)(B) and the
First Step Act. Id.- 25 -
In fact, the deficiencies in pre-First-Step-Act
resentencing that our dissenting brother identifies were wholly
ameliorated by the removal of the restrictions that section 1B1.10
imposed on section 3582(c)(2) proceedings. Prior to the First
Step Act, a defendant was not eligible for a sentence reduction if
the sentencing amendments introduced by the Fair Sentencing Act
did not have the effect of lowering the defendant's GSR or if the
defendant had been originally sentenced as a career offender.
United States v. Stewart, 964 F.3d 433, 436 (5th Cir. 2020). Both
of these categories of sentence-reduction denials emerged a result
of section 1B1.10 restrictions on section 3582(c)(2) proceedings.
See id. In explicitly authorizing sentence modifications in the
First Step Act, Congress purposefully excised reductions related
to the Fair Sentencing Act from the realm of section 3582(c)(2),
thereby relieving section 404(b) proceedings from section 1B1.10
restrictions. See Holloway, 956 F.3d at 667 ("A defendant's
eligibility for a reduced term of imprisonment under Section 404
of the First Step Act is not governed by 18 U.S.C. § 3582(c)(2),
and thus a district court considering such a motion is not
constrained by U.S.S.G. § 1B1.10[]."); 18 U.S.C. § 3582(c)(1)(B).
The inference that certain portions of section 3582(c)(2) should
animate section 404(b) proceedings that take place under a
different statutory provision simply does not follow.
- 26 -
It is also not clear why only certain portions (as
opposed to all) of the limitations applicable to section 3582(c)(2)
should pertain to First Step Act resentencings. As our dissenting
brother points out, in a court's determination of whether a
defendant should be resentenced under section 3582(c)(2), the
consideration of post-sentencing information is permissive. See
Post at 60; see also 19 USSG §1B1.10 cmt. n.1(B)(iii). In that
same determination, though, the consideration of section 3553(a)
factors is obligatory. See 19 USSG §1B1.10 cmt. n.1(B)(i). But
the dissent does not argue that such an obligation applies to
section 404(b) proceedings. The same is true, for example, of the
section 1B1.10 prohibition on sentence reductions in which an
amendment does not lower a defendant's GSR. Even though nothing
in the First Step Act disavows this limitation, our dissenting
brother infers that this specific provision does not apply to
section 404(b) proceedings. Absent a Congressional directive to
apply limitations on relief expressly applicable to one statutory
provision to another statutory provision, we see no justification
for picking and choosing from the section 1B1.10 list of
limitations.
We make one final observation: there is not much
daylight between the position that we take and the position taken
by our dissenting brother. Indeed, the only defendants who would
be denied a sentence reduction under our framework but who would
- 27 -
be successful under our dissenting brother's vision are those
defendants for whom the Fair Sentencing Act was alone insufficient
to justify a reduction. This result not only comports with, but
also is mandated by, the applicable statutory restrictions.
The sole remaining issue is whether the district court
abused its discretion by denying the defendant's motion for
resentencing. "An abuse of discretion 'occurs when a material
factor deserving significant weight is ignored, when an improper
factor is relied upon, or when all proper and no improper factors
are assessed, but the court makes a serious mistake in weighing
them.'" United States v. Soto-Beníquez, 356 F.3d 1, 30 (1st Cir.
2003) (quoting Indep. Oil & Chem. Workers, Inc. v. Procter & Gamble
Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).
In this instance, the district court carefully analyzed
the First Step Act and its application to the defendant's
situation. It concluded that the defendant was eligible for
resentencing and focused on whether resentencing would be
appropriate as a matter of discretion. Deciding that resentencing
was not warranted, the court stressed its initial leniency. It
made particular note that the downwardly variant sentence it had
imposed in 2009 was within the new GSR dictated by the provisions
of the Fair Sentencing Act. The court proceeded to consider the
amended career offender guideline, noted that the Sentencing
Commission had declined to make it retroactive, and decided not to
- 28 -
pantomime it as a matter of discretion. Summing up, the court
observed that if the defendant "came before the Court today and
the Court considered only the changes in law that the Fair
Sentencing Act enacted, his sentence would be the same."
Consistent with this observation, the court concluded that the
original 228-month sentence was "fair and just" in 2009 and
"remains so today."
We discern nothing resembling a misuse of the sentencing
court's discretion. The court weighed the proper mix of factors,
considered everything of consequence, and made a judgment that was
both reasoned and reasonable. That judgment was well within the
encincture of the court's discretion. No more was exigible.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
-Dissenting Opinion Follows-
- 29 -
BARRON, Circuit Judge, dissenting. The majority finds
no abuse of discretion in this case. But it is a classic abuse of
discretion for a district court to decline to exercise the
discretion that it legally possesses because it mistakenly
believes that it lacks that discretion as a matter of law. In my
view, that is exactly what happened here when, upon Carlos
Concepcion's request for a sentence reduction pursuant to § 404(b)
of the First Step Act, the District Court declined to give any
consideration to the favorable intervening change to the career
offender Guideline that the United States Sentencing Commission
had made since that Guideline had been applied at his original
sentencing proceeding. See U.S.S.G. app. C supp., amend. 798
(eliminating the residual clause from the "crime of violence"
definition at U.S.S.G. § 4B1.2(a)). I thus am convinced that we
must vacate and remand the District Court's ruling denying
Concepcion the relief that he seeks pursuant to § 404(b).
To explain my reasoning, it is necessary to pan out from
Concepcion's particular case. This broader perspective reveals
not merely the problem with the District Court's ruling on this
record but also where, in my view, the majority has erred more
generally in construing § 404(b), which states: "A court that
imposed a sentence for a covered offense may . . . impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010
(Public Law 111-220; 124 Stat. 2372) were in effect at the time
- 30 -
the covered offense was committed." First Step Act of 2018, Pub.
L. No. 115-391, § 404(b), 132 Stat. 5194, 5222.4
Through this provision of the First Step Act, Congress
addressed what had been one of the most glaring inequities in our
highly punitive federal sentencing framework -- the substantially
disparate treatment, under both statutory law and the United States
Sentencing Commission's Guidelines, accorded offenses involving
crack cocaine relative to those involving powder cocaine. Section
404(b) mitigates that inequity by making retroactive the otherwise
prospective-only Fair Sentencing Act, which Congress enacted to
lessen that disparate treatment.
Given the remedial nature of this legislative effort, it
is a mistake in my view to attribute to Congress an intention to
constrain district courts from exercising the kind of discretion
under this provision that they typically may exercise when they
have been authorized to rectify sentences that time has shown to
have been unduly harsh. Cf. 18 U.S.C. § 3582(c)(2) (permitting
sentence reductions for defendants whose sentences were "based on
a sentencing range that has subsequently been lowered by the
Sentencing Commission"). Yet, as I will explain, the majority's
4 Section 404(a) of the First Step Act provides the class of
offenses -- "covered offenses" -- for which the relief provided
for in § 404(b) may be sought. Section 404(c) places limitations,
not relevant here, on circumstances in which relief may be sought
and also makes clear that a district court is not required to
reduce any sentence under § 404(b).
- 31 -
construction of § 404(b), by limiting district courts' ability to
take account of intervening developments (beyond the retroactive
application of the Fair Sentencing Act that § 404(b) itself brings
about), will have that precise consequence in certain important
respects.
I begin by describing in greater detail the particular
questions about the meaning of § 404(b) that this appeal requires
us to resolve. I then describe how the majority answers them and
why I conclude that certain of those answers are mistaken.
Finally, I explain why in my view the District Court's ruling here
cannot be sustained.
I.
District courts enjoy substantial discretion in
selecting a defendant's sentence. True, they must set it within
the prescribed statutory maximum and minimum sentence (if
applicable), and they must do so after properly calculating the
range for the sentence that the United States Sentencing Commission
recommends through the Guidelines that it promulgates. But, at
least in the original sentencing proceeding, a district court need
not set the sentence at any particular point within either range
-- or, it bears mention, within the range at all in the case of
the Guidelines Sentencing Range ("GSR").
Questions do necessarily arise, though, as to the
considerations that may inform both the district court's
- 32 -
determination of the sentence once the applicable sentencing range
has been identified and the calculation of the range itself. And
these questions arise as much in a proceeding to revisit a sentence
already imposed (such as on remand from a direct appeal or in a
proceeding to modify under 18 U.S.C. § 3582(c)(2)) as they do in
a proceeding to impose a sentence for the first time.
One factor that bears on these considerations is the
focus of our concern in Concepcion's case and that factor is
temporal in nature. It concerns the point in time after the
underlying offense has been committed at which the clock stops,
such that the district court is then barred from giving weight in
the defendant's sentencing proceeding to any subsequent
developments (whether factual, such as post-offense conduct by the
defendant, or legal, such as amendments to the Guidelines that the
Commission may have made).
The resolution of this temporal choice may matter
greatly to the outcome of the sentencing proceeding. It will
affect not only the ingredients that the district court may rely
on in calculating the GSR that it will use in that proceeding but
also the ingredients that it then may rely on in deciding, based
off of that GSR, the sentence itself.
In the context of the original sentencing proceeding, it
is relatively clear that the clock stops in most respects only
when the sentencing proceeding itself begins. Thus, barring any
- 33 -
ex post facto concerns, the district court must use the Guidelines
in effect at the time of that sentencing proceeding -- rather than,
say, those in effect at the time the defendant committed the
offense -- to calculate the GSR that will serve as the benchmark
for the sentence to be imposed at that proceeding. See David v.
United States, 134 F.3d 470, 475 (1st Cir. 1998); see also Gall v.
United States, 552 U.S. 38, 50 (2007). Similarly, when setting
both the GSR and the actual length of the sentence in relation to
that range in such an original sentencing proceeding, the
sentencing judge may consider any other pertinent developments
(including factual ones) that have occurred up to the moment of
the sentencing. See 18 U.S.C. § 3553(a); see also, e.g., United
States v. Jordan, 549 F.3d 57, 61 (1st Cir. 2008).
In the context of revisiting proceedings, it also is
clear that the clock does not stop at the time the defendant
committed the underlying offense. But, there necessarily arises
in that context this new temporal choice: Is the sentencing
proceeding that stops that clock the one that was held to impose
the original sentence or the one that is being held thereafter to
revisit it?
Concepcion's appeal requires that we answer that
specific question of timing and that we do so in the particular
context of proceedings that are held pursuant to § 404(b).
Concepcion contends that the District Court abused its discretion
- 34 -
in his case under § 404(b) precisely because it stopped the clock
at the time of his original sentencing proceeding and thus refused
to consider at his § 404(b) proceeding subsequent developments
(both legal, like the amendment to the career offender Guideline
mentioned above, but also factual) that he contends pointed in
favor of reducing his sentence. He further contends that the
District Court's refusal to consider those intervening
developments prejudiced his ability to receive the sentence
reduction that he contends that he was due under that provision,
such that the ruling denying him relief under § 404(b) must be
vacated and remanded.
II.
Having isolated the precise issue before us -- and the
temporal nature of it -- how should we go about resolving it? As
I will explain, the answer does not exactly leap off the pages of
the statute book.
Section 404(b), by its plain terms, does make clear --
through its use of the word "reduced" -- that it is authorizing a
district court to adjust a sentence that has already been imposed
rather than to impose one anew. And, in that respect, the
provision is best read to be authorizing a revisiting proceeding,
notwithstanding the text's use of the word "impose."
In addition, § 404(b) makes clear that the district
court must revisit the original sentence in a counterfactual
- 35 -
manner. As the text states, in deciding to "impose a reduced
sentence," the district court must proceed "as if" the Fair
Sentencing Act had been in effect when the underlying offense was
committed.
And, the text of § 404(b) also makes perfectly clear
still one more thing that is relevant to our inquiry. It
establishes that the district court will be making the reduction
decision in the here and now and thus, necessarily, at a time when
it is at least possible for it to know of post-sentencing
developments beyond the one singled out in the "as if" clause.
After all, at that earlier time, those developments -- like the
mandate to retroactively apply the Fair Sentencing Act itself --
had not yet occurred.
But, § 404(b) is more cryptic than clear when it comes
to the following additional question of timing that it necessarily
also prompts: Is the district court in making the reduction
decision in the here and now supposed to blind itself to the
present state of the world beyond the fact of the existence of
that new mandate imposed by the "as if" clause? And, the text is
similarly hard to decipher when it comes to related questions that
necessarily arise insofar as the district court may take that
broader peek at the present in making such a reduction
determination, such as: What is the extent of the present-day
- 36 -
knowledge that it may draw upon and for what purposes may it do
so?
Is the text saying to the district court that it must go
back in time to the moment of the original sentencing proceeding,
make the one alteration to that prior state of the world that the
"as if" clause compels, and then make the reduction decision
without accounting for what is now also known? Is it saying
instead that the district court should simply be exercising the
same type of discretion to reduce the sentence at hand that it
ordinarily has in revisiting a sentence already imposed based on
some change in the law, such as in a run-of-the-mill modification
proceeding or on a remand from a direct appeal? Or, is § 404(b)
saying instead something distinct from either of those two
positions and, if so, what?
In my view, one could stare at the text of § 404(b) all
day long looking for answers to those questions and not find them.
It is only by placing that text in the context of the overall
federal sentencing framework in which it is embedded that it is
possible to discern answers to them. In what follows, then, I
explain what supplies that context for me and what answers emerge
from it. But, it helps first to set forth more fully how the
majority reads § 404(b) to answer those same questions, as doing
so will make it clearer both why and how I diverge from its
approach.
- 37 -
A.
The majority reads § 404(b) to require the district
court to engage in a two-step inquiry once it determines that the
defendant was originally sentenced for an offense that is covered
by that provision. Those two steps are to be carried out --
temporally speaking -- as follows.
The first step of this inquiry, according to the
majority, requires the district court to make a gating judgment in
which it must ask: Is any reduction in the original sentence
appropriate at all? And, according to the majority, the district
court in answering that question must set aside a presentist
mindset and transport itself back in time to the moment of the
original sentencing proceeding.
Then, having engaged in that time travel, under the
majority's approach to this first step of the inquiry, the district
court, in keeping with § 404(b)'s "as if" clause, must make just
one adjustment to the state of the world as it then existed. It
must proceed at the § 404(b) proceeding "as if" the Fair Sentencing
Act had been in effect at the time the defendant committed the
underlying offense.
As a result, under the majority's approach, the district
court at this first step of the inquiry must alter the GSR that
applied at the defendant's original sentencing proceeding -- based
as it necessarily was on the Guidelines that were in effect at
- 38 -
that earlier time. Or, at least, it must do so in accord with any
alteration in the then-applicable statutory sentencing range that
would be required by the retroactive application of the relevant
provisions of the Fair Sentencing Act that § 404(b) itself brings
about.
Finally, after having made that one adjustment to the
world as it was back then, the district court on the majority's
view must go on at this first step of the § 404(b) inquiry to make
the critical gating determination. In other words, to complete
the first step, the district court must decide, based on only the
inputs thus far described, whether to reduce the defendant's
original sentence given that newly adjusted range.
The majority does conclude that a district court
conducting a § 404(b) proceeding is not so temporally constrained
once it arrives at the second step of the two-step inquiry. At
that second step, according to the majority, the district court
may take account of what it could not at step one -- intervening
factual developments, such as post-sentencing conduct by the
defendant, and intervening legal developments, such as amendments
to the Guidelines that are favorable to the defendant's cause,
whether or not they are themselves retroactive.
The district court's sole temporal constraint at this
second step, then, is relatively minimal. It is implicit in the
majority's approach that, in considering those intervening
- 39 -
developments -- whether factual or legal -- the district court at
this second step must use the GSR that has been calculated based
on the Guidelines from the original sentencing proceeding rather
the ones in effect at the time of the § 404(b) proceeding itself.
But, once it is so rooted in that way, it is free to account for
all that it now knows.
Yet, as much as the majority is willing to permit the
district court to adopt a more presentist mindset in this important
respect at step two of the inquiry, it is crucial to keep in mind
how temporally constrained the majority's approach remains
overall. After all, it is critical to the majority's construction
of § 404(b) that the second step of this two-step inquiry does not
itself concern the threshold question -- posed only at the first
step -- of whether the defendant's sentence should be reduced. It
instead concerns only the ancillary and follow-on question of how
much the sentence should be reduced, which is a question that
arises on the majority's account if and only if the decision at
the first step to reduce the sentence at all has already been made
to the defendant's benefit.
Thus, the upshot of the majority's approach, taken as a
whole, is this: no post-sentencing developments other than the
First Step Act's own mandate to give retroactive effect to the
Fair Sentencing Act may inform the district court's decision as to
whether to reduce the defendant's sentence. Accordingly, under
- 40 -
the majority's approach, no weight may be given at all in making
that critical threshold judgment to (1) post-sentencing statutory
or Guidelines changes unrelated to the crack-powder disparity,
(2) the overturning of the defendant's prior convictions that had
been relied on to determine his criminal history category, or even
(3) the defendant's admirable post-sentencing conduct. And that
is so not only when it comes to deciding what considerations may
inform the setting of the GSR to be used at the § 404(b) proceeding
but also when it comes to deciding whether any reduction at all is
warranted in the defendant's original sentence given the GSR that
applies at that proceeding to revisit that sentence.
B.
For the reasons that I will next explain, I do not share
the majority's bifurcated understanding of how a district court
may proceed -- temporally speaking -- under § 404(b). No other
circuit distinguishes between the "whether to reduce" and "how
much to reduce" determinations with regard to the consideration
that a district court may give under that provision of the First
Step Act to developments that post-date the original sentencing
proceeding (beyond, of course, the development expressly brought
about by the First Step Act's requirement to apply the Fair
Sentencing Act retroactively).5 And, even assuming that the
5Other circuits have, however, adopted the slightly different
two-step approach that I advance, in which the GSR calculation is
- 41 -
reduction decision is not better conceived to be a more holistic
endeavor than the majority makes it out to be, I see no reason
that we should become the first circuit to do so.
I note that § 404(b) supplies no textual support that I
can see for distinguishing between these two types of discretionary
determinations in the manner that the majority does. That
provision appears merely to make a unitary discretionary grant of
authority to "impose a reduced sentence" without purporting to
carve it up into discrete judgments subject to distinct temporal
constraints.6
constrained but both discretionary questions -- whether and how
much to reduce the sentence -- can be informed by at least some
intervening developments. See, e.g., United States v. Foreman,
958 F.3d 506, 513 (6th Cir. 2020) ("[A] district court is
authorized to do two things with respect to a defendant's covered
offense: (1) determine the statutory and Guidelines ranges 'as if
sections 2 and 3 of the Fair Sentencing Act were in effect at the
time the covered offense was committed,' and (2) exercise its
discretion to impose a new sentence somewhere between the revised
statutory minimum and the existing sentence. . . . [T]he First
Step Act imposes no additional constraints on a district court's
discretion once it determines the statutory and Guidelines ranges
'as if' the Fair Sentencing Act had been in effect before 2010.");
see also United States v. Moore, 975 F.3d 84, 89 (2d Cir. 2020)
("First, the court must determine whether the defendant is eligible
for a reduction. Second, if the defendant is eligible, the court
must determine whether, and to what extent, to exercise its
discretion to reduce the sentence."); United States v. McDonald,
944 F.3d 769, 771 (8th Cir. 2019) (similar).
6 Concededly, that grant of authority in § 404(b) is
conditional, but the chief condition -- set forth in the "as if"
clause -- does not by terms purport to speak to whether the clock
stops at the original sentencing proceeding or the § 404(b)
proceeding as to either the question of whether to reduce the
original sentence or the question of by how much to reduce it if
- 42 -
Moreover, the background against which § 404(b) was
enacted and the purposes that underlie that provision combine in
my view to demonstrate the problems with the way the majority
resolves the ambiguities in § 404(b)'s text as to at least certain
of the temporal questions presented here. For, as I will explain,
that background and those purposes indicate to me that this text
should be construed to give the district court not only the
discretion that the majority would afford it to account for
intervening developments in deciding how much to reduce a sentence
but also that same amount of discretion to account for those same
intervening developments in making the threshold determination
about whether to reduce the sentence at all. Or, at least, the
background and purposes suggest to me that the district court has
such discretion once it has calculated the GSR based on the
Guidelines that were in effect at the time of the original
sentencing proceeding while duly accounting for the application of
the Fair Sentencing Act mandated by § 404(b)'s "as if" clause.
1.
The majority implicitly accepts that the first temporal
question that arises under § 404(b) is not the "whether to reduce"
a reduction of any sort is in order. Thus, that conditioning "as
if" clause draws no distinction between the "whether" and the "by
how much" determinations. The clause on its face speaks instead
only to the sentencing range that must be applied in the § 404(b)
proceeding that must serve as the anchor for both of those
determinations.
- 43 -
one that is its focus at the first step of its approach. Rather,
the first temporal question is the logically prior one concerning
how the district court must calculate the GSR to be used in the
§ 404(b) proceeding. Indeed, under the majority's approach, the
Fair Sentencing Act-adjusted GSR supplies the "initial benchmark"
for the determinations that must be made under § 404(b) at each of
the two steps it identifies. See Gall, 552 U.S. at 49.7
Thus, although the majority's two-step approach appears
to me to collapse the temporal question of whether the old or the
new Guidelines must be used to calculate that GSR into the
necessarily follow-on temporal question of which considerations
(old or new) may inform the "whether to reduce" determination, I
think it is important separately to analyze that antecedent
7Section 404(b) of the First Step Act does not by its terms
require the district court to determine the newly applicable GSR
before deciding whether to reduce the defendant's original
sentence. That provision incorporates provisions of the Fair
Sentencing Act that change the statutory penalties setting the
mandatory maximum and minimum sentence for certain crimes
involving cocaine base. See Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372. For defendants sentenced as career
offenders, as Concepcion was, these statutory penalty changes
affect the applicable GSR, too, because the offense level under
the career offender Guideline is keyed to the statutory maximum
for the offense of conviction. See U.S.S.G. § 4B1.1(b). The
parties do not dispute that the district court must adjust the GSR
at least to account for these changes. And, doing so as the
initial step in a sentencing proceeding is the standard practice
across sentencing contexts, including in those modification
proceedings permitting a district court to revisit a sentence in
light of certain subsequent legal developments. See Gall, 552
U.S. at 49; Dillon v. United States, 560 U.S. 817, 827 (2010).
- 44 -
question first. For, while I agree with the majority that the
calculation of the GSR to be used at the § 404(b) proceeding must
be based -- in the main -- on the old Guidelines, the reasons that
lead me to that conclusion do not in my view support the majority's
resolution of the follow-on temporal question regarding the
"whether to reduce" determination.
a.
Notably, the text of § 404(b) does not itself have much
to say about which version of the Guidelines -- old or new -- is
to be used to calculate the GSR that will control at a § 404(b)
proceeding. There is no express reference in this provision to
the GSR that applies, let alone to how the GSR that is to be used
at such a proceeding is to be calculated.
The provision's "as if" clause does -- at least impliedly
-- make clear that the GSR that applies in a § 404(b) proceeding
cannot be the same one that was used in the original sentencing
proceeding, at least insofar as the one that was used at that
earlier time had been keyed to a statutory maximum that would not
apply if the relevant Fair Sentencing Act provisions then had been
in effect. Otherwise, the taint of the disparate treatment of
crack-cocaine offenses that the First Step Act aims to address
would carry through to the § 404(b) proceeding itself.
But, the "as if" clause does not make similarly clear
whether, in calculating the GSR to be used at a proceeding under
- 45 -
that provision, the district court must use the Guidelines that
were in effect at the time of the original sentencing proceeding
or those Guidelines that are in effect at the time of that
revisiting proceeding. It simply does not address that question.
That is not to say that the "as if" clause makes no
temporal reference. It plainly does. But, it does so only by
referring back to the time of the commission of the offense. And,
while that time frame is one that makes sense for purposes of
determining the statutory penalties, see Dorsey v. United States,
567 U.S. 260, 272-73 (2012), it is not one that speaks to the
version of the Guidelines that Congress intended for the district
court to use in calculating the GSR in § 404(b) proceedings. At
the time of the offense's commission, after all, there had been no
sentencing proceeding -- original or otherwise.
Nor can the "as if" clause be thought to offer an
implicit resolution of the temporal question concerning which
version of the Guidelines to use in calculating the GSR for the
§ 404(b) proceeding itself. That clause would not be rendered
wholly superfluous, for example, if § 404(b) were construed to
require that the Guidelines used to calculate the GSR for such a
proceeding were the ones that are in effect at the time of that
proceeding (save for any ex post facto concerns), rather than the
ones that were in effect at the time of the original sentencing
proceeding. Indeed, in that event, the "as if" clause still would
- 46 -
usefully perform a clarifying role, by making plain how far back
in time the Fair Sentencing Act would apply retroactively.
All that said, the text of § 404(b) is not a complete
cipher with respect to the temporal question at hand. The
reference to a "reduced" sentence in § 404(b) does provide a
possible clue as to what Congress intended on that score, as it
necessarily takes the district court back to the earlier sentence
that the defendant originally received and thereby accords with
the notion that the district court in a § 404(b) proceeding should
understand itself to be adjusting -- or determining whether to
adjust -- a sentence that has already been imposed rather than to
be imposing an entirely new one afresh.
Accordingly, the provision's text does in this respect
provide a hook for concluding that Congress intended the district
court to use the version of the Guidelines to calculate the GSR to
use at the § 404(b) proceeding that it uses in other contexts in
which it has been charged with revisiting a previously imposed
sentence for a possible reduction. Nor do I think we strain the
word "reduced" too much by reading it to provide this hook.
It is a familiar interpretive precept that, in resolving
a statutory ambiguity, we may look to the pre-existing legislative
foundation on which a new measure builds for insight into what
Congress meant by the words it enacted. It thus makes sense to me
to look to what came before § 404(b) in analogous contexts to
- 47 -
resolve the ambiguity that is at issue here, which concerns the
version of the Guidelines to use at the § 404(b) proceeding. See
United States v. Martin, 974 F.3d 124, 139 (2d Cir. 2020) (noting
that "[t]o the extent the First Step Act is silent," it "makes
sense to look to . . . analogous resentencing proceeding[s]" given
that "it is more likely that Congress was adopting, rather than
departing from, established assumptions about how our legal or
administrative system works" (quoting Nat. Res. Def. Council, Inc.
v. U.S. Food & Drug Admin., 760 F.3d 151, 166 (2d Cir. 2016))).
b.
Such a review turns out to be most instructive. It
reveals that, unlike in original sentencing proceedings, district
courts in revisiting proceedings do not generally use the
Guidelines that are in effect at the time of those proceedings.
To the contrary, it has been clear since at least the
2003 enactment of 18 U.S.C. § 3742(g)(1) that on remand a district
court is to apply the Guidelines that were in effect at the time
of a defendant's original sentencing to calculate the GSR that
will be used in determining the punishment in the resentencing.
See PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified
at 18 U.S.C. § 3742(g)) ("In determining the range referred to in
subsection 3553(a)(4), the court shall apply the guidelines issued
by the Sentencing Commission . . . that were in effect on the date
of the previous sentencing of the defendant prior to the appeal,
- 48 -
together with any amendments thereto by any act of Congress that
was in effect on such date . . . ."). And, in the seemingly even
more analogous context of sentence modification proceedings under
18 U.S.C. § 3582(c)(2), the relevant statutory text has been
understood by no less seasoned an interpreter than the United
States Sentencing Commission in a way that led it similarly to
require district courts to use the Guidelines provisions applied
at the original sentencing proceeding (as modified only by the
particular retroactive amendments that were the basis for the
§ 3582(c)(2) motion) to calculate the GSR for the modification
proceedings themselves. See U.S.S.G. § 1B1.10(b)(1); see also 28
U.S.C. § 994(a)(2)(C) (providing that the Commission shall
promulgate policy statements "that in the view of the Commission
would further the purposes set forth in [18 U.S.C. § 3553(a)(2)],
including the appropriate use of . . . the sentence modification
provisions set forth in" 18 U.S.C. § 3582(c)).
Thus, against that backdrop, I see little reason to
assume that Congress meant for a revisiting proceeding under
§ 404(b) to be temporally distinct in such a fundamental respect
from other revisiting proceedings. Indeed, in light of the well-
known practice in other types of revisiting proceedings of not
setting the GSR to be used in them on the basis of contemporary
Guidelines, it is reasonable to expect that if Congress did intend
to depart from that practice here it would have been at least as
- 49 -
clear in making that intention known as it was in pronouncing in
the "as if" clause that the otherwise inapplicable Fair Sentencing
Act would apply. See Martin, 974 F.3d at 139-40.
c.
This understanding of § 404(b) is reinforced by the
First Step Act's apparent purposes. Following the enactment of
the Fair Sentencing Act, some defendants sentenced under the former
disparity-tainted regime were able to have their sentences
revisited pursuant to 18 U.S.C. § 3582(c)(2), based on the
retroactive amendments that the Sentencing Commission promulgated
in response to the Fair Sentencing Act. See Dorsey, 567 U.S. at
273 (explaining that the Fair Sentencing Act "require[d] the
Commission to change the Guidelines in the wake of the Act's new
minimums"). But, given the limitations on eligibility for
§ 3582(c)(2) relief, significant gaps to relief remained --
individuals sentenced as career offenders, like Concepcion, as
well as those serving statutory mandatory minimum sentences and
those whose GSR otherwise would not change as a result of the
Commission's responsive amendments, were ineligible to have their
sentences revisited under § 3582(c)(2). See United States v.
Wirsing, 943 F.3d 175, 179 (4th Cir. 2019) (explaining these gaps).
A reading of § 404(b) under which the Guidelines from
the original sentencing proceeding (as adjusted by the impact of
the retroactive application of the Fair Sentencing Act) also serve
- 50 -
as the starting point for calculating the GSR for the revisiting
proceeding enables § 404(b) to fill those gaps. See 164 Cong.
Rec. S7020, S7021 (daily ed. Nov. 15, 2018) (statement of Sen.
Durbin) (describing bill with the text ultimately passed in § 404
as "giv[ing] a chance to thousands of people who are still serving
sentences for nonviolent offenses involving crack cocaine under
the old 100-to-1 rul[e] to petition individually" for a sentence
reduction). But such a reading also ensures that § 404(b) fills
them in a manner that, sensibly, does not entitle the class of
defendants to whom this opportunity for relief has been extended
to a form of review of their original sentences based on a GSR
calculated under a new and more favorable set of Guidelines than
prevailed at their original sentencing just because they happened
to become eligible for post-Fair Sentencing Act review later than
those who were eligible to secure it through the auspices of
§ 3582(c)(2). See United States v. Brown, 974 F.3d 1137, 1144
(10th Cir. 2020) ("Our review demonstrates that Congress, when
passing § 404, authorized only a limited change in the sentences
of defendants who had not already benefitted from the Fair
Sentencing Act. . . . It follows that the First Step Act also does
not empower the sentencing court to rely on revised Guidelines
instead of the Guidelines used at the original sentencing.");
accord United States v. Moore, 975 F.3d 84, 91 (2d Cir. 2020).
- 51 -
d.
Thus, I agree with the majority's resolution of the first
temporal question that § 404(b) presents, which concerns the
proper means of calculating the GSR to be used at a proceeding
held pursuant to that provision. Like the majority, I agree that
the Guidelines to be used in calculating the GSR for that type of
proceeding -- at least absent subsequent clarifying or retroactive
amendments to them -- are the ones that were used in setting the
GSR used at the original sentencing and not those in effect at the
time of the § 404(b) proceeding itself.8
2.
We come, then, to the distinct and follow-on temporal
question that § 404(b) also requires us to resolve, which concerns
8 I do not read any circuit to have expressly held that the
district court must apply the current Guidelines to determine the
GSR for a § 404(b) proceeding. And, given the nature of
Concepcion's arguments to us, we need not decide whether
intervening Guidelines amendments that are merely clarifying, cf.
U.S.S.G. § 1B1.10(a)(2) (providing that "if a court applies an
earlier edition of the Guidelines Manual" due to ex post facto
concerns, "the court shall consider subsequent amendments [so long
as they] are clarifying rather than substantive changes"); United
States v. Sarmiento-Palacios, 885 F.3d 1, 4-5 (1st Cir. 2018)
(discussing the use of clarifying amendments in remand
proceedings), or that are themselves retroactive, see United
States v. Bethany, 975 F.3d 642, 652-53 (7th Cir. 2020) (concluding
that "although the district court could have exercised its
discretion to apply" retroactive Guidelines amendments to save the
defendant the "extra step of filing a motion under § 3582(c)(2),"
"it was not required to do so"); but see, e.g., United States v.
Caraballo, 552 F.3d 6, 11 (1st Cir. 2008) (noting that § 3582(c)(2)
is unavailable to defendants sentenced as career offenders where
the retroactive amendment sought to be considered is not a change
- 52 -
whether a district court conducting a proceeding pursuant to that
provision is just as temporally constrained when it comes to the
"whether to reduce" question as it is in setting the GSR. But,
deploying the same interpretive logic that I deployed above to
answer this temporal question, I conclude that the majority is
wrong to resolve the temporal question in the constraining manner
that it does. For, as I will explain, the background to, and the
purposes of, § 404(b) require me to conclude, unlike the majority,
that the provision's textual ambiguities are best construed to
permit a district court in deciding whether to reduce the
defendant's original sentence to account for post-sentencing
developments (whether factual or legal) no less than the majority
to the career offender Guideline); United States v. Stewart, 964
F.3d 433, 437-38 & 437 n.6 (5th Cir. 2020) (noting that for some
defendants, such as career offenders, ineligible for § 3582(c)(2)
relief, the "prospect of relief under the [Fair Sentencing Act]
would prove illusory . . . if courts were obligated to calculate
sentencing ranges . . . without the benefit of" those retroactive
amendments promulgated in response to the Fair Sentencing Act),
should be accounted for in determining the applicable GSR in
§ 404(b) proceedings. Nor for that same reason need we address
related questions concerning intervening factual developments, cf.
United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999)
(providing that the scope of the appellate court's remand may
determine the effect that may be given to such intervening factual
developments); U.S.S.G. § 1B1.10(b)(1) (providing that, in
§ 3582(c)(2) proceedings, the "court shall substitute only the
amendments listed in subsection (d) for the corresponding
guideline provisions that were applied when the defendant was
sentenced and shall leave all other guideline application
decisions unaffected" (emphasis added)), or intervening case law,
see United States v. Chambers, 956 F.3d 667, 672-74 (4th Cir.
2020), that might affect the GSR even under the old Guidelines.
- 53 -
agrees a district court may account for them in deciding by how
much to reduce that sentence once it decides that some reduction
is required.
a.
The only possible source of the temporal limitation that
the majority would impose on the "whether to reduce" determination
in the text of § 404(b) itself would appear to be found in that
provision's "as if" clause. But, as we have seen, that clause
merely mandates that the statutory sentencing range -- and, by
extension, the GSR -- that must be used in the § 404(b) proceeding
is the one that obtained at the original sentencing proceeding as
adjusted in accord with the mandated retroactive application of
the Fair Sentencing Act. Thus, that clause does not, by terms,
purport to speak to this precise temporal issue at all.9
Nor does § 404(b)'s "as if" clause impliedly speak to
that issue in light of the way it interacts with the canon against
superfluity. See In re Montreal, Me. & Atl. Ry., Ltd., 799 F.3d
1, 9 (1st Cir. 2015) ("[C]ourts should construe statutes to avoid
rendering superfluous any words or phrases therein."). A
9 Indeed, the fact that the only time frame referenced in the
"as if" clause is the time of the commission of the offense
indicates that Congress did not intend for the "as if" clause to
dictate that a district court imagine itself to be inhabiting an
earlier point in time in all respects. For, Congress could not
have intended to direct a district court in a § 404(b) proceeding
to imagine what sentence it would make sense to impose at a time
when even the original sentencing proceeding had not yet occurred.
- 54 -
construction of § 404(b) that would confer on district courts the
discretion to consider intervening developments in deciding
whether to reduce a sentence would not render the "as if" clause
meaningless, even though it would permit a district court to give
weight to a favorable intervening change in the Guidelines. Such
a construction still treats that clause as usefully performing the
role of identifying the sentencing range to be used in the § 404(b)
proceeding by specifying that it is the range that would apply if
the Fair Sentencing Act had been in effect at the time of the
commission of the underlying offense.
The majority does suggest that a separate textual
limitation on discretion -- not to be found within § 404 itself --
compels the resolution of the temporal issue that it embraces.
The majority locates that limitation in 18 U.S.C.
§ 3582(c)(1)(B)'s grant of authority to "modify an imposed term of
imprisonment to the extent . . . expressly permitted by statute."
Id. (emphasis added).
To the majority, this "expressly permitted" language
functions as a global clear-statement rule for sentencing
modification measures generally. Thus, the majority concludes,
this language requires us to read the express grant of authority
in § 404(b) as narrowly as possible when it comes to the "whether
to reduce" determination.
- 55 -
But, such a reading of the "expressly permitted"
language misconstrues the operation of § 3582(c)(1)(B), which is
merely a finality exception that does not itself impose substantive
limits. Cf. United States v. Triestman, 178 F.3d 624, 629 (2d
Cir. 1999) (Sotomayor, J.) (reading § 3582(c)(1)(B) not to impose
its own limitations but merely to "note[] the authority to modify
a sentence if modification is permitted by statute" (emphases
omitted) (quoting S. Rep. No. 98-225 (1984), reprinted in 1984
U.S.C.C.A.N. 3182, 3304)). Thus, insofar as the revisiting
proceeding at issue here is properly deemed a "modification"
proceeding, it is enough to satisfy that textual requirement in
§ 3582(C)(1)(B) in my view that § 404(b) "expressly permit[s]"
modification. And, that being so, we must look to § 404(b) itself
-- and not elsewhere -- for any limits on the extent of the
modification that is allowed, precisely because that provision
does expressly permit a modification to be made. See United States
v. Kelley, 962 F.3d 470, 477 (9th Cir. 2020) ("[T]he First Step
Act expressly permits a specific type of sentence reduction, and
we interpret and implement such an independent congressional
statute on its own terms.").
b.
What, then, are the limits that § 404(b) imposes when it
comes to the precise temporal question before us at this juncture
of the analysis, which concerns a district court's discretion as
- 56 -
to whether to reduce a sentence once the Fair Sentencing Act has
been given its requisite retroactive effect? Once again, because
the text of § 404(b) provides no clear answer, I find it most
helpful to consider the backdrop against which Congress enacted
the provision. See Martin, 974 F.3d at 139-40.
I do not mean to suggest that we may simply pick and
choose from the rules that govern previously established federal
sentencing frameworks in construing § 404(b) in this connection.
We have no warrant to select those aspects of them that we like
and to discard those that we do not in determining the rules that
are to be operative under § 404(b).
I do mean to suggest, however, that, insofar as the face
of § 404(b) is not clear one way or the other as to how it is to
be construed on a crucial interpretive point, then we should apply
the familiar tools of statutory interpretation to resolve that
ambiguity. And, as those familiar tools include considerations of
the background understandings against which Congress legislated,
there is good reason to give interpretive weight to those
understandings in resolving the ambiguity at hand.
Indeed, the evident remedial purposes of the First Step
Act, see United States v. White, 984 F.3d 76, 89-90 (D.C. Cir.
2020) (detailing the remedial purpose of the First Step Act and
arguing that it should be understood in light of that purpose),
accord with following such an interpretive course. They suggest,
- 57 -
if anything, a reason to presume that Congress would have wanted
to confer no less discretion in this context than it has conferred
in seemingly similar ones, especially given the discretionary
manner in which the federal sentencing framework as a whole
operates. Cf. Pepper, 562 U.S. at 488-91 (discussing the
"longstanding principle" granting sentencing courts "broad
discretion to consider various kinds of information" (quoting
United States v. Watts, 519 U.S. 148, 151 (1997))).
For that reason, I find it instructive in construing
Congress's intent that it was well understood prior to § 404(b)'s
passage that, on remand of a sentence, the district court, once it
has identified the applicable GSR for that revisiting proceeding
based on the Guidelines that were in place at the time of the
original sentencing, is still free to consider post-sentencing
developments in selecting the new sentence in light of that
anchoring GSR. See Pepper v. United States, 562 U.S. 476, 490
(2011) ("In light of the federal sentencing framework . . . , we
think 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 . . . ."). And I find it instructive as well
that the same was understood to be true in the context of
modification proceedings under 18 U.S.C. § 3582(c)(2), once the
GSR has been set using the old Guidelines. See U.S.S.G.
- 58 -
§ 1B1.10(b); id. § 1B1.10 cmt. n.1(B). As the Commission has
recognized, moreover, that is true not only with respect to the
"by how much" question but also with respect to the threshold
"whether" question. See id. § 1B1.10 cmt. n.1(B)(iii) ("The court
may consider post-sentencing conduct of the defendant that
occurred after imposition of the term of imprisonment in
determining: (I) whether a reduction in the defendant's term of
imprisonment is warranted; and (II) the extent of such
reduction . . . ."); see also Chavez-Meza v. United States, 138 S.
Ct. 1959, 1967 (2018) (assuming that post-sentencing developments
were properly before the district court).
I thus see little reason to conclude that Congress must
have silently intended not to permit a district court to exercise
a similar amount of discretion pursuant to § 404(b) to consider
things as they are at present. Rather, I would read that cryptic
text to have been intended to permit a district court, in
identifying any new sentence, to account for new developments in
the same manner just described, given that they may be accounted
for on a remand or in a run-of-the-mill modification proceeding.
Of course, it would not make sense to conclude that
Congress intended in enacting § 404(b) to give its beneficiaries
extra-special treatment relative to their fellow intended
beneficiaries of the Fair Sentencing Act. That is in part why I
agree with the majority that a district court in a § 404(b)
- 59 -
proceeding must derive the GSR from the Guidelines in effect at
the original sentencing.
But, as I have explained, the purpose and history of the
First Step Act demonstrate that Congress wanted § 404(b)-eligible
defendants to have an opportunity for relief at least roughly
equivalent to that afforded to those § 3582(c)(2)-eligible
defendants who already had an opportunity to have their sentences
revisited in light of the changes effected by the Fair Sentencing
Act. It thus, in my view, counts rather strongly against the
majority's approach to the temporal constraints that district
courts must labor under in conducting § 404(b) proceedings that
those defendants who seek reductions under that provision would be
worse off under it in this respect than those who seek them under
18 U.S.C. § 3582(c)(2). After all, it is clear that district
courts revisiting sentences in § 3582(c)(2) modification
proceedings are permitted to give favorable post-sentencing
developments weight in deciding not just the extent of the
reduction of a sentence but also whether to reduce a sentence at
all, even if those developments may not be considered in
calculating the applicable GSR for the modification proceedings
themselves. See U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).
I do recognize that it is merely Sentencing Commission
commentary that most clearly confirms as much in the § 3582(c)(2)
modification context. See U.S.S.G. § 1B1.10(a)(1). But, that
- 60 -
commentary does reflect the Commission's evident understanding of
the text of 18 U.S.C. § 3582(c)(2), which authorizes a district
court to "reduce" a prior sentence based on a retroactive legal
change.
Thus, that commentary suggests to me that the Commission
understood that statutory text to be susceptible of a construction
that would read it simultaneously to instruct district courts to
calculate the GSR to be used in the modification proceeding based
on the Guidelines in effect at the time of the original sentencing
(as adjusted by retroactive application of the Fair Sentencing
Act) and to take account of post-sentencing developments in
deciding whether to reduce that sentence in light of that GSR.
See U.S.S.G. § 1B1.10(b)(1); U.S.S.G. § 1B1.10 cmt. n.(1)(B)(iii).
That is significant, in my view, because § 404(b) similarly
authorizes district courts to "impose a reduced sentence" based on
the retroactive legal change brought about by § 404(b). Why not,
then, conclude that Congress similarly contemplated in this
context that a district court could operate in this same variable
temporal manner, such that it could rely on present-day knowledge
in deciding whether a reduction is warranted under § 404(b), even
though it must draw on the old Guidelines to calculate the GSR
that anchors that decision? See Martin, 974 F.3d at 139 ("[I]t is
helpful to look at the parallels between section 3582(c)(2) and
- 61 -
the First Step Act to resolve background questions regarding the
mechanics of the First Step Act.").10
Of course, if our aim is to construe § 404(b)'s text to
accord with the way § 3582(c)(2) had been understood in the
relevant respect, then I acknowledge that it is important to
account for the fact that § 3582(c)(2) expressly refers to the 18
U.S.C. § 3553(a) factors while § 404(b) does not. But, I am not
persuaded that this difference between these two texts shows that
Congress intended to give district courts less discretion --
temporally -- to remedy a past injustice based on a retroactive
change in the law under the First Step Act than they have to remedy
such an injustice in an ordinary modification proceeding.
Implicit in the idea of deciding whether to impose a
reduced sentence is some consideration of the § 3553(a) factors --
and that is no less true under § 404(b) than it is under
§ 3582(c)(2). The majority itself acknowledges as much in its
recognition that the "original calibration of the section 3553(a)
factors" still properly informs the district court's decision
whether to reduce a sentence. Maj. Op. at 21. Thus, the inclusion
It is important to emphasize that each ambiguity in § 404(b)
10
must be taken on its own terms. There is a difference between
construing an ambiguity using background context and ordinary
interpretive tools and importing an arbitrary limitation into
§ 404. For example, I cannot see any reason to import the
limitation on the extent of a sentence reduction in § 3582(c)(2)
proceedings, see U.S.S.G. § 1B1.10(b)(2), into the § 404(b)
context.
- 62 -
of a reference to § 3553(a) in § 3582(c)(2) but not in § 404(b)
cannot in and of itself be understood to suggest that no
consideration of the § 3553(a) factors at all may be given in a
§ 404(b) proceeding.
That, then, leaves only the possibility that the
inclusion of the reference to § 3553(a) in § 3582(c)(2) but not in
§ 404(b) supplies the basis for concluding that intervening
considerations may be given weight in the former type of
proceedings but not the latter. But, that, too, does not follow.
Section 3582(c)(2)'s mandate to consider the § 3553(a)
factors does not itself purport to specify whether district courts
are to use the "new" or the "old" § 3553(a) factors in doing so.
Thus, it cannot be that the inclusion of the bare reference to
§ 3553(a) in § 3582(c)(2) and its absence from § 404(b) compels
drawing such a temporal distinction those two types of proceedings
when it comes to the § 3553(a) analysis that is necessarily
relevant to each.
Put otherwise, even after comparing the text of
§ 3582(c)(2) and § 404(b), we necessarily come back to the same
basic temporal question that § 404(b) does not by its terms purport
to resolve: Must the § 3553(a) analysis be informed only by things
as they were, or can it also be informed by things as they are?
And, as I have explained, precisely because the text of the First
Step Act does not clearly answer that question one way or the
- 63 -
other, I see no reason to construe it in a way that would render
it out of step with the way revisiting proceedings otherwise
proceed.
Indeed, the majority itself finds a new § 3553(a)
analysis permissible to some extent -- in deciding the extent of
a reduction if one is in order -- and yet it provides no textual
explanation for drawing this line where it does. Nor has any other
court, to my knowledge, found such a textual basis.
A construction that would extend that same temporal
discretion to the "whether to reduce" determination also makes
good practical sense. Like run-of-the-mill modification
proceedings, § 404(b) proceedings are in many cases occurring well
after a defendant's original sentencing proceeding. That makes it
a potentially difficult and senseless task to determine the
"original calibration" of the § 3553(a) factors. See United States
v. Rose, 379 F. Supp. 3d 223, 235 (S.D.N.Y. 2019) ("[G]iven the
length of the sentences at issue in crack-cocaine cases, there is
a high degree of likelihood that many of the judges considering
the First Step Act motion will not be the original sentencing
judge."); see also, e.g., United States v. King, 423 F. Supp. 3d
481, 489 (M.D. Tenn. 2019) (finding that because the defendant
seeking a reduction pursuant to § 404(b) was "sentenced more than
a decade and a half ago by a judge who has since retired" and
because the sentencing transcript demonstrated that the
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defendant's "sentence was very much tied to the statutory mandatory
minimum," thus "beg[ging] the question of whether the sentence
would have been less if the statutory floor were only ten instead
of twenty years[,] . . . it falls on this Court to make that
determination and the only effective way to do so is by considering
the [§] 3553(a) factors," the use of which "also necessitates that
the Court consider [post-sentencing] rehabilitation").
The reason to be wary of concluding that Congress must
have intended to impose such a bar as the majority embraces would
seem to be especially strong, moreover, when the Supreme Court has
recognized that such intervening facts as a defendant's admirable
post-sentencing conduct can be "highly relevant to several of the
§ 3553(a) factors." See Pepper, 562 U.S. at 491. And, as I have
noted, the Guidelines commentary expressly permits consideration
of post-sentencing conduct in § 3582(c)(2) sentence modification
proceedings. See U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).
c.
For all of these reasons, then, it is a mistake in my
view to read § 404's silence with respect to the temporal questions
that arise once the GSR is in place (based as it must be on the
old Guidelines) in the constraining manner that the majority does
with respect to the "whether to reduce" determination. Such a
reading requires us to conclude that, with respect to the
consideration of intervening developments in deciding whether a
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sentence reduction is in order, Congress meant for people who were
relying on the Commission's response to a disparity to be better
off than people relying on Congress's own response to that
disparity.
3.
There remains, then, just one loose interpretive end
with regard to the framework that § 404(b) generally establishes.
It concerns the distinction that some courts have drawn between
intervening factual developments (such as the defendant's post-
sentencing conduct or the vacatur of his prior convictions) and
intervening legal ones (such as the advent of Guidelines amendments
that would be favorable to the defendant, even if they have not
been made retroactive). See, e.g., United States v. Robinson, 980
F.3d 454, 463 (5th Cir. 2020) (explaining that the Fifth Circuit
has precluded district courts from "consider[ing] other post-
sentencing changes in the law" aside from those mandated by the
Fair Sentencing Act, but noting that the Fifth Circuit has "not
h[eld] that [district] court[s] cannot consider post-sentencing
conduct" (quoting United States v. Jackson, 945 F.3d 315, 321, 322
n.7 (5th Cir. 2019))); Kelley, 962 F.3d at 474 & n.4, 475 (holding
that the First Step Act "does not authorize the district court to
consider other legal changes that may have occurred after the
defendant committed the offense" but not addressing whether it was
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permissible that the district court considered that the defendant
"had been a model inmate during her incarceration").
The courts that have concluded that § 404(b) draws this
line appear to have relied on the expressio unius canon to tease
out the First Step Act's meaning, treating the "as if" clause's
singling out of that one legal change as a sign that Congress
impliedly intended to preclude the consideration of any other legal
change. See United States v. Hegwood, 934 F.3d 414, 418-19 (5th
Cir. 2019); Kelley, 962 F.3d at 475.11 The government argues that
we should do the same. But, I do not agree.
Although the "as if" clause refers only to the Fair
Sentencing Act, it does not do so, as I have explained, in a way
that necessarily gives rise to a preclusive inference with respect
to the propriety of giving mere consideration in selecting a
sentence to intervening legal developments other than the one
brought about by the clause itself. Nor am I alone in so
concluding. See United States v. Hudson, 967 F.3d 605, 612 (7th
Cir. 2020) ("The First Step Act does not prevent the court from
considering [the change to the defendant's career offender status]
when deciding whether the sentence imposed is 'sufficient, but not
11 Because these courts were considering requests for a new
Guidelines calculation accounting for legal changes, which I agree
is impermissible, it is not clear that they would preclude
consideration of legal changes against a GSR that does not itself
reflect those changes.
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greater than necessary,' under 18 U.S.C.
§ 3553(a). . . . '[T]oday's Guidelines may reflect updated views
about the seriousness of a defendant's offense or criminal
history.'" (quoting United States v. Shaw, 957 F.3d 734, 742 (7th
Cir. 2020))); United States v. Harris, 960 F.3d 1103, 1106 (8th
Cir. 2020) ("[T]he § 3553(a) factors in First Step Act sentencing
may include consideration of the defendant's advisory range under
the current guidelines.").
I thus find myself in a by-now-familiar position: I
face the question under § 404(b) about how much discretion a
district court has to account for present realities that the text
of that provision does not answer with any clarity. And so, for
me, the right way through is to follow the now-familiar approach
of resolving that ambiguity in a manner that most aligns § 404(b)
with other revisiting proceedings.
Following that course, I find it significant that this
Court has repeatedly recognized that legal changes, even when not
used to set the GSR that serves as the benchmark, can inform the
district court's exercise of its discretion to select a reasonable
sentence in light of that benchmark. See, e.g., United States v.
Frates, 896 F.3d 93, 102 (1st Cir. 2018) (recognizing the
distinction between recalculating the GSR on remand to account for
intervening nonretroactive amendments, which would "circumvent the
Sentencing Commission's non-retroactivity determination," and
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considering intervening legal changes that reflect "the
Commission's revised policy position" in exercising the
"discretion to select an appropriate sentence"); United States v.
Godin, 522 F.3d 133, 136 (1st Cir. 2008) (per curiam) (noting that
the Sentencing Commission's "current thinking" about, for example,
who may be deemed a career offender, may properly
"influence . . . the judge's ultimate discretionary choice of
sentence"); United States v. Rodriguez, 630 F.3d 39, 42 (1st Cir.
2010) (finding that courts that must "start with old Guidelines"
can still "consult new ones in choosing suitable sentences," as
"Guidelines revisions [can] help [courts] select reasonable
sentences that (among other things) capture the seriousness of the
crimes and impose the right level of deterrence"). And, I note,
we have come to that conclusion despite the express directions
that Congress has given about which legal changes could be relied
upon to calculate the applicable GSR. See, e.g., 18 U.S.C.
§ 3742(g)(1); see also U.S.S.G. § 1B1.11(b)(1).
To be sure, this body of precedent concerns the proper
approach for a district court to take on the remand of a sentence
from a direct appeal and that is a type of revisiting proceeding
in which the prior sentence is -- strictly speaking -- no longer
in place. Here, by contrast, there is a presumptively valid
sentence from which a reduction is being sought. For that reason,
I suppose, it is possible to understand sentence selection in this
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context to entail not simply a choice of length but also a distinct
initial question as to whether the original sentence remains
appropriate -- in other words, to entail both a "whether to reduce"
inquiry and a "by how much to reduce," insofar as a reduction is
warranted at all, inquiry.
But, even if one accepts that it is not artificial to
divvy up the task of sentence selection under § 404(b) in that
two-step manner, that very same type of task is required in a
§ 3582(c)(2) modification proceeding. There, too, a reduction
from a sentence that is presently in place is being sought based
on an expressly identified retroactive legal change. I know of no
precedent, however, that holds that a subsequent, nonretroactive
Guidelines change favorable to the defendant may not even be
considered -- once the GSR has been calculated for use at the
modification proceeding independent of such a change -- in deciding
whether to modify the sentence in such proceedings. And I
certainly know of none suggesting that while such a legal change
may not be considered for that purpose it may be considered in
determining the extent of the modification.12
12 I am aware that in Dillon, 560 U.S. at 831, the Supreme
Court rejected the defendant's contention that the district court
should have considered intervening legal changes. The Court
concluded that because "the aspects of his sentence that Dillon
seeks to correct were not affected by the Commission's amendment
to § 2D1.1, they are outside the scope of the proceeding authorized
by § 3582(c)(2), and the District Court properly declined to
address them." 560 U.S. at 831. But, Dillon requested a
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Thus, here, too, in the face of the relevant ambiguity
occasioned by § 404(b)'s brief text, I think it sensible to proceed
on the understanding that Congress intended for the conduct of
revisiting proceedings under that provision to be similar to the
conduct of them more generally. And, in this limited respect, I
note that I am actually in interpretive agreement with the
majority, which similarly sees nothing in § 404(b) that would
permit factual and legal considerations to be treated differently
as a temporal matter. See also Jackson, 945 F.3d at 321
recalculation of the sentence to correct a Booker error and adjust
the criminal-history category. See id.; see also United States v.
Jordan, 162 F.3d 1, 3-5 (1st Cir. 1998) (concluding that
§ 3582(c)(2) did not permit defendant to obtain benefit of U.S.S.G.
§ 5K2.0 departure not applied at original sentencing). As I have
explained, this Court has recognized the difference between
accounting for intervening legal and factual developments to
recalculate the Guidelines range and considering them "as a
discretionary factor." Frates, 896 F.3d at 102-03.
I am also aware that a district court under § 3582(c)(2)
generally cannot reduce the sentence below the GSR that obtains
after having been adjusted to account for retroactive amendments.
See Dillon, 560 U.S. at 822 ("Except in limited circumstances,
. . . [U.S.S.G.] § 1B1.10(b)(2)(A) forecloses a court acting under
§ 3582(c)(2) from reducing a sentence 'to a term that is less than
the minimum of the amended guideline range.'"). But, Guidelines
changes that are not retroactive could in that context still impact
where to set the sentence in relation to that range (especially if
the original sentence was set at its higher end), and, in any
event, nothing in § 404 suggests that the limitation on the extent
of a reduction that is allowable in § 3582(c)(2) modification
proceedings applies to § 404(b) proceedings. See U.S.S.G.
§ 1B1.10(a)(1) (referring only to § 3582(c)(2) sentence
reductions). Compare First Step Act § 404, with 18 U.S.C.
§ 3582(c)(2) (providing that such a reduction must be "consistent
with applicable policy statements by the Sentencing Commission").
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(recognizing that disparate treatment of post-sentencing legal and
factual developments "make[s] little sense").
C.
To sum up, then, I do not agree with the majority's
bifurcated treatment of the temporal issue that § 404(b) requires
us to resolve. In my view, when confronted with an eligible
defendant's § 404(b) motion, the district court must proceed as
follows.
The district court first must determine the statutory
sentencing range and the GSR to be used in assessing whether to
reduce the defendant's sentence as requested. In making those
determinations, moreover, the district court must rely on the
relevant provisions of the Fair Sentencing Act as if they had been
in effect when the offense was committed, while using the
Guidelines that were operative at the time of the original
sentencing proceeding (save for the potential caveats I have noted)
and not those presently in effect.
But, although these conclusions align me with the
majority's approach under § 404(b) to this point, the logic that
leads me to them requires me to break with its view of how a
district court conducting a § 404(b) proceeding should act
thereafter. For, in my view, given the purposes and background
against which Congress legislated in passing the First Step Act,
the district court, having set the range in the manner just
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described, is as free to consider intervening developments (both
factual and legal) in making the gating decision under § 404(b) as
to whether to impose a reduced sentence (based on a GSR in whose
determination such developments played no role) as it is under the
majority's approach to consider those developments in making the
follow-on assessment of how much to reduce the original sentence.
III.
With this framework in mind, I am now finally ready to
take up the question of whether Concepcion is right to contend
that, in this particular case, the District Court abused its
discretion in declining to reduce his sentence. I conclude that
he is -- in part.
I am not persuaded by Concepcion's contention that the
District Court abused its discretion by refusing to use the
Guidelines in place at the time of the § 404(b) proceeding to
calculate the newly applicable GSR. For the reasons that I have
already set forth at some length, I see no basis for construing
§ 404(b) to be such an outlier relative to other provisions
structuring revisiting proceedings.
But, I also am not persuaded by Concepcion's contention,
which I have not yet addressed, that the District Court abused its
discretion when it failed to conduct a rebalancing of the § 3553(a)
factors with respect to its assessment of whether subsequent
factual developments -- such as those that Concepcion highlighted
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pertaining to his admirable post-sentencing conduct. For, even if
I were to assume, as Concepcion contends, that such a rebalancing
is obligatory (as opposed to merely permissible) under § 404(b),
I still see no ground for finding error on this score in his case.
We have previously recognized that "simply because the
district court didn't expressly mention" intervening developments
in its ruling on a sentence reduction motion "doesn't mean it
didn't consider" them. United States v. Rodríguez-Rosado, 909
F.3d 472, 480 (1st Cir. 2018). And, it is a familiar proposition
that a sentencing court is not required to "verbalize its
evaluation of each and every [§] 3553(a) factor," United States v.
Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016), or to "afford each
of the § 3553(a) factors equal prominence," United States v. Sosa-
González, 900 F.3d 1, 5 (1st Cir. 2018). Instead, the district
court only must "set forth enough to satisfy the appellate court
that [it] has considered the parties' arguments and has a reasoned
basis for exercising [its] legal decisionmaking authority." Rita
v. United States, 551 U.S. 338, 356 (2007).
The fact that a district court does not consider a
sentence on a blank slate under § 404(b) must be kept in mind as
well in evaluating the district court's explanation of its decision
in a proceeding held pursuant to that provision. Cf. Chavez-Meza,
138 S. Ct. at 1967 (concluding that, when considering an appeal
from a § 3582(c)(2) sentence modification, reviewing courts "need
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not turn a blind eye" to the reasons the judge gave at the initial
sentencing). For, because intervening factual developments might
impact some elements of the § 3553(a) analysis while leaving others
unaffected, a district court's failure to highlight intervening
changes may only suggest "that the district court may have been
unimpressed or unpersuaded by" them. Rodríguez-Rosado, 909 F.3d
at 480.
Thus, even if Concepcion is right that a present-day
rebalancing of the § 3553(a) factors is required under § 404(b),
I conclude that the explanation that the District Court provided
here was sufficient to assure us that it had a "reasoned basis for
exercising [its] legal decisionmaking authority," Chavez-Meza, 138
S. Ct. at 1966 (quoting Rita, 551 U.S. at 356), with respect to
its decision not to reduce the sentence based on the intervening
factual developments that Concepcion identified, see id. (assuming
that the "reasoned basis" standard applied in the § 3582(c)(2)
context and finding it satisfied where the judge -- who had also
imposed the defendant's original sentence -- did not address the
parties' arguments about the defendant's post-sentencing conduct
while in prison). Accordingly, there was no abuse of discretion
here in this regard.
I do note, though, that my reason for so concluding is
not the same as the majority's. Under its view, intervening
factual considerations may not be considered in making the "whether
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to reduce" determination. Under mine, by contrast, those
considerations may be considered. In fact, it is only because --
as far as I can tell -- Concepcion's claim of error on this score
has no merit in his particular case that I reject it.
That brings us, then, to Concepcion's final contention,
which is that the District Court abused its discretion in declining
to reduce his sentence because it failed to recognize that it could
consider intervening legal changes -- specifically, the
Commission's intervening changes to the career offender Guideline
-- in his § 404(b) proceeding. Here, I am persuaded by
Concepcion's challenge.
The District Court appears to have declined to consider
that intervening change because it was of the view that it was
barred -- as a matter of law -- from considering such intervening
legal developments in exercising its discretion in any respect
under § 404(b) of the First Step Act. See United States v.
Concepcion, No. 07-10197, 2019 WL 4804780, at *3-5 (D. Mass. Oct.
1, 2019).13 This aspect of the District Court's analysis, of
13 In assessing whether the First Step Act permits
"consider[ation] [of] any intervening changes in the law other
than those made by the Fair Sentencing Act," the District Court
relied on the Fifth Circuit's analysis in Hegwood and concluded
that, because "Amendment 798 derives from an entirely different
source" than the Fair Sentencing Act, it is "not clear that
Amendment 798's changes are a permissible ground for resentencing
under the First Step Act." Concepcion, 2019 WL 4808780, at *3-4
(citing Hegwood, 934 F.3d at 418). The District Court's analysis
of its possible power to take account of this Guidelines change is
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course, causes no concern for the majority. In its view, the
District Court correctly ascertained this legal bar to its exercise
of discretion, given that such considerations could only come into
play at what the majority describes as the second step of the
inquiry -- which concerns only the extent of the reduction and not
whether one is needed at all, and which the majority views the
District Court as never having reached.
But, for the reasons I have explained, I read § 404(b)
to permit a district court to consider post-sentencing
developments once it has determined the proper GSR, based on the
Fair Sentencing Act's retroactive application. I thus understand
the District Court here to have misapprehended the scope of its
discretion -- as a matter of law -- to consider the fact that
Concepcion may no longer qualify as a career offender under current
Guidelines in making its gating determination about whether to
reduce the sentence at all.14
best read to reflect its legal view that the First Step Act barred
it from considering that new legal development and then its
separate assessment -- outside of the Act -- of whether 18 U.S.C.
§ 3582(c)(2), see id. at *4, or the Godin/Ahrendt doctrine, see
id. at *5 & n.1, nonetheless permitted it to consider the
development.
14 Although the majority notes that the District Court
"consider[ed] the amended career offender guideline, noted that
the Sentencing Commission had declined to make it retroactive, and
decided not to pantomime it as a matter of discretion," Maj. Op.
at 28-29, the District Court's consideration of Amendment 798 was,
crucially, undertaken only outside the rubric of the First Step
Act. As discussed supra note 10, the District Court's opinion
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Such a misapprehension about the extent of the
discretion that a statute confers is -- as I noted at the outset
of this journey -- a classic abuse of discretion. See United
States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998) ("[A] district
court by definition abuses its discretion when it makes an error
of law." (quoting Koon v. United States, 518 U.S. 81, 100 (1996))).
Thus, while the majority affirms the District Court's decision to
deny Concepcion's motion for a sentence reduction pursuant to
§ 404(b), I would vacate and remand the District Court's decision
denying Concepcion § 404(b) relief, so that the District Court may
consider whether to reduce the sentence on the proper understanding
that it may consider the impact of the change to the career
offender Guideline.
I understand that the District Court on remand might
well reach the same result -- perhaps based on its reasoning about
the complexity of any recalculation of the GSR that it invoked in
discussing Godin/Ahrendt, Concepcion, 2019 WL 4804780, at *5 &
n.1. But, I am hesitant to make that assumption when the District
Court was misinformed about what § 404(b) itself permitted it to
do. Cf. United States v. Taylor, 848 F.3d 476, 500 (1st Cir. 2017)
(remanding even upon "recogniz[ing] that [the] sentence on remand
makes clear that it understood the First Step Act not to permit it
to consider Amendment 798 as a ground for resentencing under that
Act.
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may be unchanged," because "the great latitude possessed by the
district court . . . makes it all the more important that the
district judge exercise a fully informed discretion" (quoting
United States v. Hernandez Coplin, 24 F.3d 312, 320 (1st Cir.
1994))).15
IV.
Given the deferential standard of review that we must
apply, in many -- maybe most -- instances concerning § 404(b), the
legal difference between my approach and the majority's will not
matter, practically speaking. In that respect, I agree that there
is not that much "daylight" between my approach and the majority's.
Nonetheless, Concepcion's case does illustrate how this
legal difference might very well matter in some instances. Cf.
Godin, 522 F.3d at 136; Frates, 896 F.3d at 103-04. And, in cases
involving intervening factual developments, I would think the
legal difference might be especially significant.
15Because I find the District Court's error here to inhere
in its misunderstanding about its discretion to consider
intervening legal developments, this case does not pose the
distinct question whether it would be permissible for a district
court to refuse categorically to consider intervening
developments, while understanding that it had the legal authority
to do so. I do note, though, that this Court's decision in
Rodríguez-Rosado, 909 F.3d at 481, though also not addressing a
categorical refusal, did hold that district courts are not required
to consider post-sentencing rehabilitation in § 3582(c)(2)
sentence modification proceedings, even while recognizing that
such evidence can be relevant to the § 3553(a) analysis.
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Thus, while I do not agree with the majority's
disposition in this case, I also wish to emphasize my broader
concern about construing the First Step Act in a manner that
diminishes its remedial impact. This measure represents a rare
instance in which Congress has recognized the need to temper the
harshness of a federal sentencing framework that is increasingly
understood to be much in need of tempering. Indeed, the First
Step Act's very title signals Congress's interest in having more
rather than less done in that regard going forward. Accordingly,
given that the text of § 404(b) is less than clear in the relevant
respect, I see no reason to construe it in a way that would
attribute to Congress an intent to constrain district courts from
exercising the remedial discretion that they are accustomed to
exercising when revisiting a sentence that may have been too harsh
when first imposed. I thus respectfully dissent.
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