United States v. Concepcion, 991 F.3d 279

Background

In 2006 Concepcion sold ~27.5 g of crack and police seized additional cocaine and firearms; he pleaded guilty in 2008 to crack-distribution offenses.
At sentencing in 2009 the court designated him a career offender (USSG §4B1.1), computed a GSR of 262–327 months, and gave a downward variance to 228 months.
The Fair Sentencing Act (2010) raised crack quantity thresholds but was not retroactive; the First Step Act (2018) made those Fair Sentencing Act changes retroactive via §404.
Concepcion moved under the First Step Act for resentencing, arguing the district court must redo the §3553(a) analysis and recalculate his GSR under current guidelines (which would eliminate his career-offender status).
The district court found him eligible but denied relief as a matter of discretion; Concepcion appealed. The First Circuit affirms.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §404 entitles defendant to plenary resentencing (new §3553(a) analysis and application of current Guidelines).	Concepcion: §404 requires present-day §3553(a) reevaluation and recalculation of GSR under Guidelines then in effect.	Government: §404 authorizes only a discretionary, limited reduction “as if” Fair Sentencing Act §§2–3 applied; not plenary resentencing.	Held: No plenary resentencing required; §404 permits discretionary reduction but not mandatory full resentencing.
Whether district court must apply intervening non‑retroactive guideline amendments (e.g., Amendment 798) to recalculate career‑offender status.	Concepcion: Court should consider Amendment 798 and recalculate career‑offender status, which could lower his GSR.	Government: Non‑FSA guideline changes are not automatically retroactive under §404; court may but is not required to apply them.	Held: Court may (in its discretion) consider intervening guideline changes when fashioning a reduction, and may order a new PSI, but it is not required to recalculate GSR.
Whether court must prepare a new PSI and use Guidelines in effect at resentencing.	Concepcion: New PSI and Guidelines calculation are mandatory.	Government: New PSI/calculation optional; §404 leaves procedure to district court's discretion.	Held: New PSI and recalculation are discretionary, not obligatory.
Whether the district court abused discretion in denying relief here.	Concepcion: District court erred by refusing to consider intervening guideline change and recalculation.	Government: District court reasonably relied on its original downward variance and found sentence remains "fair and just."	Held: No abuse of discretion; district court reasonably denied reduction. (Dissent would remand because the court misunderstood scope of its discretion regarding Amendment 798.)

Key Cases Cited

Kimbrough v. United States, 552 U.S. 85 (2007) (upholding downward variance where court reasonably considered Guidelines and sentencing disparities)
Dorsey v. United States, 567 U.S. 260 (2012) (Fair Sentencing Act timing and retroactivity issues)
Dillon v. United States, 560 U.S. 817 (2010) (limits of §3582 sentence‑modification authority)
Pepper v. United States, 562 U.S. 476 (2011) (post‑sentencing rehabilitation may inform resentencing)
Chavez‑Meza v. United States, 138 S. Ct. 1959 (2018) (appellate review need not ignore initial sentencing court's reasons)
United States v. Smith, 954 F.3d 446 (1st Cir. 2020) (First Circuit on First Step Act eligibility)
United States v. Moore, 975 F.3d 84 (2d Cir. 2020) (First Step Act does not guarantee plenary resentencing)
United States v. Kelley, 962 F.3d 470 (9th Cir. 2020) (First Step Act limited to Fair Sentencing Act changes)
United States v. Hegwood, 934 F.3d 414 (5th Cir. 2019) (scope of §404 limited; courts should not apply unrelated guideline changes automatically)
United States v. Chambers, 956 F.3d 667 (4th Cir. 2020) (contrasting view that recalculation under current Guidelines is required)