Case Information
*1 Before F LAUM , S CUDDER , and S T . E VE , Circuit Judges .
S T . E VE , Circuit Judge . Over a decade ago, the district court (then Chief Judge McCuskey) sentenced Gene Su on to his then statutory minimum 15 years’ imprisonment for distrib- uting cocaine base (“crack”) and carrying a rearm during a drug-tra ffi cking crime. In announcing the sentence, the court emphasized that it had no authority to reduce the sentence further or amend it later, except on the government’s motion, and that the court’s authority had been so limited since the Sentencing Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1837. “Nobody’s going to change it,” the court told Su tt on.
But Congress did change things when it passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Under § 404 of this new law, a defendant sentenced for a covered of- fense (which includes Su on’s crack cocaine charge) may move for the district court to impose a reduced sentence. Sut- ton submi ed his motion seeking relief and the district court, now Judge Shadid, denied it. On Su on’s pro se appeal, we recruited counsel to submit supplemental brie ng on the nar- row question of the proper vehicle for a First Step Act motion. In other words, we asked the parties to brief how the First Step Act interacts with the Sentencing Reform Act, which, as Judge McCuskey recognized, generally prohibits a court from modifying a sentence.
We hold that the First Step Act is its own procedural vehi- cle. The dispute between the parties is, at this point, mostly semantic, though our conclusion does clarify that the only limits on the district court’s authority under the First Step Act come from the interpretation of the First Step Act itself. With that said, this is not the case to explore fully what those limits might be. We conclude that the district court did not abuse its discretion and, therefore, a ffi rm the judgment.
I. Background on pleaded guilty to his two charges in 2008 and ad-
mi ed that he distributed 124 grams of crack cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(A), and had carried a rearm in con- nection with that o ense, 18 U.S.C. § 924(c). Distributing more than 50 grams of crack carried a 10-year statutory mini- mum sentence at the time, and § 924(c) required the court to impose a ve-year sentence consecutive to that of the under- lying o ff ense, 18 U.S.C. § 924(c)(1)(A)(i), (D)(ii). The minimum total sentence for Su tt on’s conduct was, thus, 15 years’ impris- onment.
As sentencing approached, the parties disagreed on the importance of this minimum sentence. Su on contended that he was entitled to a three-o ff ense-level reduction for ac- ceptance of responsibility. See U.S.S.G. § 3E1.1. By his calcula- tion, his Guidelines range should have been 147–168 months’ imprisonment (including the 60 months for the § 924(c) charge) and so the minimum 180-month sentence was appro- priate. See U.S.S.G. § 5G1.1(b). The government, however, ar- gued that Su on had lied under oath at his detention hearing. It opposed the three-level reduction and sought a further two- level enhancement for obstruction of justice. U.S.S.G. § 3C1.1. This would have resulted in a sentencing range of 248–295 months. (The parties also di ered on whether Su on was responsible for 19 kilograms of powder cocaine, though it was irrelevant to the Guidelines calculation.)
The district court never resolved these disputes. Instead, the parties entered a sentencing agreement re fl ecting an agreed 180-month sentence. Su on and the government would “agree to disagree,” according to defense counsel, and the government likewise said it intended to “short-circuit th[e] process.” In imposing the sentence re fl ected in the agree- ment, the district court similarly asserted that the agreement would “supersede the presentence report” and make all dis- putes “irrelevant” and “moot.”
The year after entry of judgment in Su on’s case, Congress passed the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. Section 2 of the Fair Sentencing Act raised from 50 grams to 280 grams the amount of crack cocaine necessary to trigger the 10-year minimum sentence. See United States v. Shaw , 957 F.3d 734, 736–37 (7th Cir. 2020) (providing tables listing changes). This could have helped Su tt on, who had been convicted for distributing less than 280 grams, but the Fair Sentencing Act was not initially retroactive for defend- ants sentenced before its e ff ective date, August 3, 2010. Dorsey v. United States , 567 U.S. 260, 264 (2012).
Congress made the Fair Sentencing Act retroactive for someone like Su tt on eight years later. Under the First Step Act,
[a] court that imposed a sentence for a covered o ff ense may, on motion of the defendant, the Director of the Bureau of Prisons, the a tt orney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in e ff ect at the time the covered o ff ense was commi tt ed. First Step Act, § 404(b) (citation omi ed). A covered o ense is de fi ned as “a violation of a Federal criminal statute, the stat- utory penalties for which were modi fi ed by section 2 or 3 of the Fair Sentencing Act of 2010 that was commi ed before Au- gust 3, 2010.” Id. § 404(a) (citation omi ed); see Shaw , 957 F.3d at 739 (interpreting this de nition). on moved for a reduced sentence in early 2019. (The
parties have consistently agreed he is eligible for relief.) He primarily argued that the agreement entitled him to his new statutory minimum—ten years—and, thus, immediate re- lease. The government responded that Su on had already re- ceived a sentencing bene t from the agreement as is. The dis- trict court sided with the government and declined to reduce Su tt on’s sentence further. In doing so, the court characterized the government’s sentencing agreement as being in exchange for Su tt on’s “withdrawal” of his objections to the PSR. Thus, it used probation’s amended Guidelines range, which as- sumed Su tt on had obstructed justice and was responsible for the 19 kilograms of powder cocaine. Su on unsuccessfully sought reconsideration and submi ed an untimely notice of appeal.
II. Jurisdiction
We start with some jurisdictional housekeeping. First, Sut- ton’s late notice of appeal does not deprive us of authority to hear this case. Federal Rule of Appellate Procedure 4(b), which governs the timing of criminal appeals, is a non-juris- dictional claim-processing rule whose enforcement the gov- ernment may either waive or forfeit. United States v. Ne , 598 F.3d 320, 323 (7th Cir. 2010). The government has expressly waived its rights, so we consider the appeal on its merits. on was also released from prison a month before oral argument, though the parties agree that his release does not moot the appeal. Su on is serving a ve-year term of super- vised release. If we were to nd that the district court erred in denying a sentence reduction, it would not “automatically en- title him to less supervised release” but it would carry “great weight” in a motion to terminate supervised release under 18 U.S.C. § 3583(e)(1). Pope v. Perdue , 889 F.3d 410, 415 (7th Cir. 2018) (citing United States v. Johnson , 529 U.S. 53 (2000)). More- over, the parties also agree the First Step Act permits the dis- trict court to reduce Su on’s term of supervised release, be- cause § 404(b) refers to imposing a reduced sentence and not just a term of imprisonment. The sentence includes not only the term of imprisonment but also the term of supervised release and any fi nes. See 18 U.S.C. §§ 3551, 3583. If we were to remand, the district court could decide whether to reduce on’s supervised release term and, in doing so, “factor in how much (if at all) it would have reduced [his] prison term.” United States v. Holloway , 956 F.3d 660, 664 (2d Cir. 2020); see also United States v. Kelley , No. 19-30066, 2020 WL 3168518, at *3 n.5 (9th Cir. June 15, 2020) (same).
There are, thus, at least two possible remedies. Because we can order “e ectual relief,” even if not Su on’s early release from prison, this appeal is not moot. Church of Scientology v. United States , 506 U.S. 9, 12 (1992).
III. Procedural Vehicle
We now turn to the question on which we sought supple- mental brie fi ng: what the proper procedural vehicle is for a motion under § 404(b) of the First Step Act. The problem pre- sented is the interaction between the First Step Act and the Sentencing Reform Act. The former permits an already sen- tenced defendant to request, and a district court to impose, a reduced sentence. Under the la er, though, “[t]he court may not modify a term of imprisonment once it has been im- posed,” with three identi fi ed exceptions. 18 U.S.C. § 3582(c).
The rst exception under the Sentencing Reform Act per- mits a court to reduce a term of imprisonment for “extraordi- nary and compelling reasons” or for certain elderly prisoners. 18 U.S.C. § 3582(c)(1)(A). Originally, only the Bureau of Pris- ons could submit a motion under this subsection, but the First Step Act added that a defendant can now le a motion himself after exhausting administrative remedies. id. ; First Step Act, § 603(b)(1).
The second exception is a catch-all: “the court may modify an imposed term of imprisonment to the extent otherwise ex- pressly permi ed by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). Rule 35 is a limited remedy, available only within 14 days of sentencing for “clear error” or through the government’s motion based on substantial assistance. Fed. R. Crim. P. 35; United States v. Townsend , 762 F.3d 641, 645 (7th Cir. 2014). Beyond that rule, we have previously identi fi ed only two statutes that “ex- pressly permit[]” modi cation under this exception. The fi rst is the statute authorizing appellate review of sentences, 18 U.S.C. § 3742(f)–(g), and the second is the statute permi ing collateral a ack of sentences, 28 U.S.C. § 2255. See United States v. Bailey , 777 F.3d 904, 906 (7th Cir. 2015). Before the First Step Act, other circuits considering the question had added only 28 U.S.C. § 2106, the general statute permi ing appellate review, and 28 U.S.C. § 2241, the general habeas cor- pus statute. See United States v. Wirsing , 943 F.3d 175, 184 (4th Cir. 2019) (collecting cases).
The third exception, § 3582(c)(2), allows the defendant or the Bureau of Prisons to move to reduce a sentence for “a de- fendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been low- ered by the Sentencing Commission … if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The statute itself allows modi cation only of a sentence that is “based on” a sentencing range, so some sentencing agreements are ex- cluded. See, e.g. , Koons v. United States , 138 S. Ct. 1783, 1786 (2018). It also adopts the Sentencing Commission’s policy statements, which are binding, not advisory. Dillon v. United States , 560 U.S. 817, 819 (2010). These statements, among other things, prohibit a sentence reduction if an amendment fails to lower the defendant’s actual Guidelines range, require the court to “substitute only the amendments … leav[ing] all other guideline application decisions una ff ected,” and limit the court’s authority to vary below the amended range. U.S.S.G. § 1B1.10(a)(2)(B), (b)(1), (b)(2)(A). on’s pro se motion invoked § 3582(c)(2), but everyone
agrees that was the wrong vehicle. (This mistake is of no con- sequence, as we review pro se lings by substance, not label. United States v. Antonelli , 371 F.3d 360, 361 (7th Cir. 2004) (per curiam).) Even in the district court, the government noted Sut- ton wrongly relied on subsection (c)(2). Su on joins that as- sessment on appeal, as do we. Section 3582(c)(2) applies to those whose sentencing ranges were reduced “by the Sentenc- ing Commission.” Congress, though, not the Sentencing Commission, promulgated the First Step Act and Fair Sen- tencing Act. See Shaw , 957 F.3d at 743 (“[T]he First Step Act does not include the limitations particular to § 3582(c)(2)”).
The parties also agree that § 3582(c)(1)(A) does not apply, leaving only subsection (c)(1)(B) among the listed exceptions to the general prohibition on modifying sentences. The gov- ernment argues that § 3582(c)(1)(B) must, therefore, provide the procedural vehicle under which § 404(b) of the First Step Act operates to permit a modi cation to a term of imprison- ment. Su on o ers a more nuanced argument. He contends that the First Step Act is its own procedural vehicle. Though he admits that § 3582(c)(1)(B) is relevant, he objects to the la- bel “vehicle,” since the First Step Act independently author- izes a court to impose a reduced sentence. on concedes that the di erence between his and the
government’s position is mostly semantic. Still, we agree that, to be precise, the First Step Act is its own procedural vehicle.
Section 3582(c)(1)(B) does not itself provide a basis for a defendant to move for a sentence reduction. It provides only that “the court may modify an imposed term of imprisonment to the extent otherwise permi ed by statute” or Rule 35. It of- fers no relief and imposes no conditions, limits, or restrictions on the relief permi ed by that other statute or the Rule. United States v. Allen , 956 F.3d 355, 357 (6th Cir. 2020). Criti- cally, and unlike the other two exceptions to § 3582(c), subsec- tion (c)(1)(B) does not even refer to who can move for modi - cation or how. All that information is contained in the other statute, here § 404(b) of the First Step Act.
Just compare those statutes that we and the other courts of appeals have previously said “expressly permit[]” modi ca- tion of a term of imprisonment. 18 U.S.C. § 3582(c)(1)(B). They include appellate review statues, 18 U.S.C. § 3742; 28 U.S.C. § 2106, and collateral a ack statutes, 28 U.S.C. §§ 2241, 2255. See Bailey , 777 F.3d at 906; Wirsing , 943 F.3d at 184. Sec- tion 3582(c)(1)(B) is not the “vehicle” through which a defend- ant seeks relief when he petitions for a writ of habeas corpus, moves to vacate his sentence, or appeals. The petition, motion, or appeal—and the statute authorizing each—is the vehicle, and each has its own procedures and limitations unique to it. So, too, with the First Step Act.
None of this is to say that § 3582(c)(1)(B) is irrelevant. The government insists if we were to treat the First Step Act as its own procedural vehicle, then that would amount to an im- plied repeal of § 3582(c). Implied repeals are disfavored. E.g. , Epic Sys. Corp. v. Lewis , 138 S. Ct. 1612, 1624 (2018). The value of § 3582(c)(1)(B), though, is precisely the fact that it allows us to avoid implied repeal. It makes explicit what would other- wise be implicit: the general prohibition against modi fi cation of a term of imprisonment gives way to speci fi c exceptions without either repealing the other. In doing so, it does not au- thorize relief; it just removes a potential obstacle to relief oth- erwise authorized. Kelley , 2020 WL 3168518, at *5 (“§ 3582(c)(1)(B) does not ‘implement’ the First Step Act.”). [1]
Our distinction is mostly semantic, so we do not split from the Fourth Circuit. True, that court held that “§ 3582(c)(1)(B) is the appropriate vehicle for a First Step Act motion.” Wirsing , 943 F.3d at 183. But it said that in the context of re- jecting the district court’s reliance on § 3582(c)(2). Id. at 182– 83. We agree with that conclusion for the reasons stated above and in Shaw , 957 F.3d at 742–43. We di ff er not on substance, but on the use of the word “vehicle” to describe the substan- tive e ect of § 3582(c)(1)(B). And our quibble with word choice comes only from the nuanced positions the parties pre- sent here. Given those positions, we might prefer the Second Circuit’s phrasing, that § 3582(c)(1)(B) “provides the correct framework.” Holloway , 956 F.3d at 661 . It is, at most, the road on which the First Step Act vehicle travels.
Beyond semantics, there is a conceptual advantage from using the First Step Act as its own vehicle. Doing so clari es that any limits on relief that the First Step Act authorizes must come from interpretation of the First Step Act itself. See Kelley , 2020 WL 3168518, at *5; cf. United States v. Chambers , 956 F.3d 667, 671 (4th Cir. 2020) (reaching same result without this framing); Allen , 956 F.3d at 357 (same).
The government asks us to hold that the First Step Act must be read in conjunction with § 3582(c)(1)(B). We do not disagree, but all § 3582(c)(1)(B) says is that a court may mod- ify a term of imprisonment as “expressly permi ed by stat- ute.” So, to read the First Step Act in conjunction with § 3582(c)(1)(B) is just to read the First Step Act and assess what it permits.
The only consequence the government perceives from deeming § 3582(c)(1)(B) the appropriate vehicle is that a dis- trict court would then be allowed to modify a sentence only “ to the extent … expressly permi ed,” § 3582(c)(1)(B) (emphasis added). In the government’s view, this language demands that a court construe its discretion narrowly. Speci cally, be- cause the First Step Act authorizes a court only to impose a sentence as if the Fair Sentencing Act were in e ect, the gov- ernment asserts that it does not allow changes to the rest of the sentencing analysis. See United States v. Hegwood , 934 F.3d 414, 418 (5th Cir.) (adopting this rule), cert. denied, 140 S. Ct. 285 (2019); see also Kelley , 2020 WL 3168518, at *4 (same).
We express no opinion on whether the government’s pro- posed limitations are appropriate. See Shaw , 957 F.3d at 742– 43 (similarly reserving question). The district court here had not, in any meaningful sense, made ndings on sentencing issues for it to consider revisiting. [2] Regardless of whether the First Step Act o ers a district court broad or only narrow dis- cretion, the answer will not depend on § 3582(c)(1)(B).
Indeed, we have found no examples of an appellate court using the language of § 3582(c)(1)(B) to cabin the district court’s remedial powers under another statute, as the govern- ment proposes. There is even some authority to the contrary. S ee United States v. Triestman , 178 F.3d 624, 629 (2d Cir. 1999) (concluding that § 3582(c)(1)(B) does not limit relief available through habeas corpus petition). When a court grants collat- eral relief or remands on appeal, resentencing can be either plenary or limited depending on the court’s judgment and the other statute. See, e.g. , United States v. Adams , 746 F.3d 734, 743–45 (7th Cir. 2014) (discussing types of remands for resen- tencing). Section 3582(c)(1)(B) is not part of that calculus. Again, this conclusion does not separate us from the other cir- cuits. The Fifth Circuit’s reasons for limiting district courts’ discretion had nothing to do with § 3582(c)(1)(B)—which it did not even cite—and everything to do with the text of the First Step Act. Hegwood , 934 F.3d at 418; see also Kelley , 2020 WL 3168518, at *4 (same). Even if one can debate whether the Fifth Circuit’s reading is correct, the answer is in the First Step Act, not § 3582(c).
IV. Su tt on’s Motion
With the procedural vehicle for Su on’s motion identi ed, we can address the district court’s ruling on it.
A district court has broad discretion in addressing a First Step Act motion. The text of the statute provides that a court “ may … impose a reduced sentence.” First Step Act, § 404(b) (emphasis added). The use of “may” is quintessential discre- tionary language. E.g., Halo Elecs., Inc. v. Pulse Elecs., Inc. , 136 S. Ct. 1923, 1931 (2016). If that were not enough, the Act itself makes clear that “[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this sec- tion.” First Step Act, § 404(c); see also Shaw , 957 F.3d at 743 (“It is for the district court, in its discretion, to undertake a ‘com- plete review’ of [a] motion” under the First Step Act). It fol- lows from the district court’s broad discretion that we review the denial of a First Step Act motion for, at most, an abuse of that discretion.
We see no such abuse here. Su on contends, in his pro se brief, that the government breached the sentencing agreement by opposing his request to be resentenced to his new mini- mum. The government, though, did not agree to any statutory minimum; it agreed to the speci c 180-month statutory mini- mum in play at the time. The parties bargained away litiga- tion risks. The government forfeited its opportunity to con- vince the court that its higher recommended sentence was warranted because of Su on’s criminal activities, and Su on gave up the chance to vindicate himself of those activities. At the time, this was a great deal for Su on. Even if he did prove the government’s accusations wrong, he still faced the 180- month minimum to which he had acquiesced. The deal be- came slightly worse after the First Step Act, as now he had more to gain (though nearly as much to lose). Still, the court was not obligated to let Su on have his cake and eat it, too, keeping his 180-month sentence while maintaining his argu- ments for why it should be lower.
The sentencing agreement also distinguishes this case from the Sixth Circuit’s recent decision in United States v. Boulding , Nos. 19-1590 & 19-1706, 2020 WL 2832110, at *1 (6th Cir. June 1, 2020). There, the Sixth Circuit found an abuse of discretion in a super cially similar situation: a Guidelines dis- pute abandoned at the initial sentencing but resolved in the government ʹ s favor on a First Step Act motion. Id. at *1–2. In Boulding’s case, though, his statutory minimum was life im- prisonment, so he could make only “frivolous objections to sentencing enhancements.” Id. at *2. Su on’s objections were never frivolous, since the alternative was a longer sentence that might well have remained appropriate to this day. Even if Su on did not “withdraw” his objections, he chose to leave the dispute unresolved in exchange for the certainty of a 180- month sentence. The district court did not abuse its discretion leaving him to that choice.
V. Conclusion
We conclude that the proper vehicle for Su on’s motion for a reduced sentence is § 404(b) of the First Step Act. Regard- less of the vehicle, however, the district court did not abuse its discretion in denying Su on’s motion. Accordingly, we A FFIRM the judgment.
[1] Su ton goes a bit too far when he insists that § 3582(c) is inconsistent with the First Step Act because it authorizes modi cations of more than the term of imprisonment. The First Step Act may give a district court dis- cretion to modify an entire sentence, but the part of that discretion that includes modifying the term of imprisonment is recognized by § 3582(c). The statutes are consistent, even if § 3582(c)(1)(B) does not add anything.
[2] The government rightly notes that the Guidelines require a district court to calculate a sentencing range before accepting a sentencing agree- ment. U.S.S.G. § 6B1.2(c). That did not happen here, but we must take the record we are given. A First Step Act motion is often “heavily reliant on a previous explanation and record that was ‘not created with the current statutory framework in mind.’” Shaw , 957 F.3d at 741 (quoting Allen , 956 F.3d at 358).