UNITED STATES OF AMERICA, Appellee, v. CARLOS CONCEPCION, a/k/a BIG PAPI, a/k/a PAPI, Defendant, Appellant.
No. 19-2025
United States Court of Appeals For the First Circuit
March 15, 2021
Howard, Chief Judge, Selya and Barron, Circuit Judges.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
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.
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
required, he submits, the
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
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.
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
This was far from the end of the matter. The defendant sought collateral review of his sentence through a motion filed pursuant to
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
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
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. 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
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, 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.”
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
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
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.”
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 Cir. 2020); United States v. Kelley, 962 F.3d 470, 471 (8th 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. 2019), 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 held that
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 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.” Kelley, 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);
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 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
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.”
“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.”
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 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
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 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
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 a more advantageous position than other criminal
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
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 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
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).”
Nor need we linger long over the defendant‘s contention that our construction of the First Step Act is at odds with
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 fit to grant under
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 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
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 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
But we have determined — and our dissenting brother does not dispute — that
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
It is also not clear why only certain portions (as opposed to all) of the limitations applicable to
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 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.
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 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-
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
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
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.
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.
construction of
I begin by describing in greater detail the particular questions about the meaning of
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 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
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 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 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
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
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.
In addition,
And, the text of
But,
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
In my view, one could stare at the text of
A.
The majority reads
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
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 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
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
The majority does conclude that a district court conducting a
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 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
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
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
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 isB.
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
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
Moreover, the background against which
1.
The majority implicitly accepts that the first temporal question that arises under
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 question first. For, while I agree with the majority that the calculation of the GSR to be used at the
a.
Notably, the text of
The provision‘s “as if” clause does — at least impliedly — make clear that the GSR that applies in a
But, the “as if” clause does not make similarly clear whether, in calculating the GSR to be used at a proceeding under 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
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
All that said, the text of
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
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
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
Thus, against that backdrop, I see little reason to assume that Congress meant for a revisiting proceeding under
c.
This understanding of
A reading of
d.
Thus, I agree with the majority‘s resolution of the first temporal question that
We come, then, to the distinct and follow-on temporal question that
a.
The only possible source of the temporal limitation that the majority would impose on the “whether to reduce” determination in the text of
Nor does
The majority does suggest that a separate textual limitation on discretion — not to be found within
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
But, such a reading of the “expressly permitted” language misconstrues the operation of
b.
What, then, are the limits that
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
I do mean to suggest, however, that, insofar as the face of
For that reason, I find it instructive in construing Congress‘s intent that it was well understood prior to
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
Of course, it would not make sense to conclude that Congress intended in enacting
But, as I have explained, the purpose and history of the First Step Act demonstrate that Congress wanted
I do recognize that it is merely Sentencing Commission commentary that most clearly confirms as much in the
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
Of course, if our aim is to construe § 404(b)‘s text to accord with the way
Implicit in the idea of deciding whether to impose a reduced sentence is some consideration of the
That, then, leaves only the possibility that the inclusion of the reference to
Put otherwise, even after comparing the text of
Indeed, the majority itself finds a new
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
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
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 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 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,
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 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.,
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 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.
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
I am also aware that a district court under
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.
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 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
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
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
Thus, even if Concepcion is right that a present-day rebalancing of the
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 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
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
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
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 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
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. 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.