Issues
Whether drug offenders that are eligible for a sentencing reduction based on Section 404(b) of the First Step Act are entitled to have intervening legal factors and developments considered at their resentencing?
This case asks the Supreme Court to determine whether the First Step Act requires or merely allows courts to consider post-sentencing developments during First Step Act sentence modifications. Petitioner Carlos Concepcion argues that the First Step Act requires courts to consider post-sentencing legal and factual developments during sentence modifications. Respondent United States counters that the First Step Act grants courts the discretion to consider post-sentencing developments during sentence modifications. The outcome of this case will impact the sentencing of many low-level drug offenders as well as a court’s authority over resentencing under Section 404 of the First Step Act.
Questions as Framed for the Court by the Parties
Whether, when deciding if it should “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act of 2018, a district court must or may consider intervening legal and factual developments?
Facts
In 2006, Petitioner Carlos Concepcion (“Concepcion”) was arrested on felony drug charges. Concepcion v. United States at 283. Federal investigators alleged Concepcion was involved in the illegal sale of at least 27.5 grams of crack cocaine and 186.34 grams of powdered cocaine. Id. In 2008, Petitioner Carlos Concepcion pled guilty to one count of possessing with intent to distribute or distributing at least 5 grams of crack cocaine. Id. The U.S. District Court for the District of Massachusetts sentenced him to nineteen years in prison. Id. at 293. The district court decided Concepcion’s prison term, in part, because of his previous state convictions for armed carjacking, assault and battery with a dangerous weapon, and distributing crack cocaine, which elevated his status to a career criminal under USSG § 4B1.1(a). Id. at 283, 285. Concepcion’s felony drug charge carried a minimum term of five years in prison, and a maximum term of forty years. Id. at 285. Concepcion’s prior felony convictions boosted his mandatory sentence to a minimum of ten years in prison, and maximum sentence to life in prison. Id.
In 2010, the U.S. Congress passed the Fair Sentencing Act Id. at 284. The Fair Sentence Act’s purpose was to reduce “sentencing disparities” between crack cocaine and powdered cocaine offenses. Id. The Fair Sentence Act outlawed mandatory minimum sentencing for the possession of a small quantity of crack cocaine by raising the quantity threshold necessary to trigger a mandatory minimum sentence. Id at 285. The Fair Sentence Act stipulates that a drug offender must possess or sell at least twenty-eight grams of crack cocaine to trigger a mandatory minimum penalty. Id. However, the Fair Sentence Act’s sentence reduction did not apply retroactively to cases with sentencing before August 3, 2010. Id. Therefore, the Fair Sentence Act did not apply to Concepcion’s sentencing. Id.
In 2018, Congress passed the First Step Act to remedy inequity in the application of the Fair Sentencing Act. Id. at 285. The First Step Act allowed the Fair Sentencing Act’s sentence reduction to apply retroactively. Id. That meant low-level drug offenders convicted before August 3, 2010 could use Section 404(b) of the First Step Act to have their sentences reduced. Id. The statute defines a covered entity as a federal criminal offense. Id. The First Step Act also grants discretion to the court to “impose or withhold” reducing a sentence. Id.
Subsequently, Concepcion filed a motion to have his sentence reduced based on Section 404(b) of the First Step Act. Id. at 285. Concepcion argued the court must consider legal and factual developments that occurred after his original sentencing at his resentencing. Id. Concepcion argued, at his resentencing proceeding, the district court was required to consider the factors listed in 18 U.S.C. § 3553(a). Id. Concepcion also argued that the district court was required to consider changes to the career-offender guidelines issued under the recently adopted 2018 Federal Sentencing Guidelines. Id. Concepcion argued that if the court applied the new Federal Sentencing Guidelines, he would no longer classify as a career criminal, and consequently his guided sentencing range (GSR) should be reduced to fifty-seven to seventy-one months. Id. at 284. According to Concepcion, he is not classified as a career criminal, in part, because one of his felony convictions was vacated. Id. at 285.
The District Court agreed that Concepcion’s crack cocaine offense was a covered offense under the First Step Act, and thus the court concluded he was eligible for resentencing pursuant to the statute. Id. Still, the court denied his motion to reduce his sentence. Id. at 293 The court declined to reduce Concepcion’s prison term. Id. at 283.
Concepcion appealed to the First Circuit Court of Appeals. Id. at 293. The First Circuit affirmed. Id. The First Circuit maintained that Concepcion attempted to “broaden the scope” of the First Step Act’s resentencing guidelines. Id. at 285 Further, the First Circuit held that Section 404(b) motions do not grant a plenary resentencing or a new proceeding. Id. at 286. The First Circuit also held that whether a court imposes a resentencing is “wholly discretionary” under the First Step Act. Id. at 288. For that reason, the First Circuit concluded the district court was not required to consider post-sentencing factors such as Section 3553 factors or changes to Federal Sentencing Guidelines adopted in 2018 in deciding not to reduce Concepcion’s sentence. See Id. at 294.
The United States Supreme Court granted Concepcion certiorari on September 30, 2021.
Analysis
THE TEXT OF THE FIRST STEP ACT
Petitioner Carlos Concepcion argues that the text of the First Step Act does not prohibit the district court from considering post-sentencing legal and factual developments when determining whether to resentence a conviction. Brief for Petitioner, Carlos Concepcion at 17, 34–35. Instead, Concepcion contends that the text of the First Step Act requires the district court to consider post-sentencing legal and factual developments during resentencing. Id. at 18, 21. Concepcion argues that since Congress phrased the resentencing of convictions as “impos[ing] a reduced sentence” in the First Step Act, the district court must follow the protocols for imposing a sentence as laid out in 18 U.S.C. § 3553. Id. at 18. Per the protocols for imposing a sentence found in 18 U.S.C. § 3553, Concepcion contends that the district court must consider the factors found in 18 U.S.C. § 3553(a) when imposing his reduced sentence. Id. Concepcion specifically points to the inclusion of the word “shall” in 18 U.S.C. § 3553(a) to support the mandatory consideration of the factors. Id. And according to Concepcion, the factors found in 18 U.S.C. § 3553(a) include post-sentencing legal changes as well as the defendant’s post-sentencing activities. Id. at 20–21. Concepcion supports this contention by arguing that the first factor of 18 U.S.C. § 3553(a), “the history and characteristics of the defendant,” implicitly includes post-sentencing activities. Id. at 20. Moreover, Concepcion argues that the fourth factor in 18 U.S.C. § 3553(a), “the kinds of sentence and the sentencing range established…that…are in effect on the date the defendant is sentenced,” implicitly includes current law. Id.
Concepcion further supports his argument by relying on the rules of statutory construction. Id. at 20. In particular, Concepcion argues that since the word “imposed” is used in § 404(b) to describe 18 U.S.C. § 3553(a) sentencing when it is first referenced in the text, its second usage – “impose a reduced sentence” – should have the same meaning. Id. at 19–20. According to Concepcion, interpreting the second usage of “impose” differently than the first would violate the rule of statutory construction that identical words used in a statute are intended by the legislature to have the same meaning. Id. at 20.
Respondent United States counters that the text of the First Step Act does not require district courts to consider post-sentencing legal and factual developments. Brief for Respondent, United States at 19–20. According to the United States, the First Step Act places only one mandatory requirement on district courts when they reduce sentences under the First Step Act: to apply the penalties for crack cocaine offenses from Sections 2 and 3 of the Fair Sentencing Act for the defendant’s offense. Id. at 26–27. Moreover, the United States contends that district courts do not impose sentences under the First Step Act. Id. at 31. Instead, the United States argues that district courts reduce sentences when they change sentences under the First Step Act. Id. As such, the United States asserts that district courts do not have to follow the protocols for imposing a sentence found in 18 U.S.C. § 3553. Id. Therefore, the United States contends that courts are not required to consider the factors set forth in these protocols – such as post-sentencing legal or factual developments – when modifying sentences under the First Step Act. Id. at 30–32. The United States further supports its argument by pointing out that the First Step Act does not even mention the 18 U.S.C. § 3553 factors when describing the process for changing sentences per § 404. Id. at 33.
While it asserts that the First Step Act does not require district courts to consider post-sentencing developments, the United States argues that the act grants courts the autonomy to consider post-sentencing developments if they wish to. Id. at 40. According to the United States, the inclusion of the phrase “may . . . impose a reduced sentence” in § 404(b) of the First Step Act grants the district courts discretion in determining whether to reduce a sentence as well as discretion in their calculation of the reduced sentence. Id.
CONGRESSIONAL INTENT AND THE PURPOSE OF THE FIRST STEP ACT
According to Concepcion, the First Step Act was intended to retroactively correct the sentencing disparities between crack cocaine and powder cocaine offenders. Brief for Petitioner at 25. Concepcion further asserts that the First Circuit affirmed that one of the goals of the First Step Act was to address the disparity in sentencing of crack cocaine and powder cocaine offenses. Id. at 27. Concepcion argues that requiring district courts to consider post-sentencing legal developments would facilitate this goal by making resentencing more uniform. Id. at 29. According to Concepcion, it would make all of the First Step Act resentencing proceedings more uniform by requiring them all to follow the same sentencing legislation. See id. Thus, Concepcion suggests that offenders with identical fact patterns that were convicted in different years in which different sentencing laws were in place would no longer suffer disparate sentences on account of the year in which they were originally sentenced. See id.
The United States counters that requiring district courts to consider post-sentencing developments would stymie the goal of the First Step Act by worsening sentencing disparities. See Brief for Respondent at 37. In particular, the United States argues that requiring district courts to consider post-sentencing developments would worsen sentencing disparities by granting crack cocaine offenders the opportunity to have their career offender statuses changed, while denying said opportunity to offenders who did not commit crack cocaine offenses. Id. at 38. Moreover, the United States asserts that it would allow crack cocaine offenders convicted prior to 2010 – who are eligible under the First Step Act – to have their sentences be reduced based on current sentencing guidelines, while denying cocaine offenders convicted between 2010 and 2018 – who are ineligible under the First Step Act, but eligible for sentence modifications under different laws – the opportunity to have their sentences be changed based on current sentencing guidelines. Id. at 37.
THE CASE LAW REGARDING SENTENCE MODIFICATION AND THE CONSIDERATION OF POST-SENTENCING DEVELOPMENTS
Concepcion asserts that the case law requires district courts to consider post-sentencing legal and factual developments during resentencing. Brief for Petitioner at 31. In particular, Concepcion contends that United States v. Steward requires courts to consider the current law during resentencing. Id. Additionally, Concepcion argues that Pepper v. United States requires courts to take into consideration post-sentencing factual developments. Id. at 20. According to Concepcion, this includes the rehabilitation of the defendant and rehabilitation efforts taken by the defendant. Id.
The United States asserts that the case law allows, but does not require, district courts to consider post-sentencing legal and factual developments. Brief for Respondent at 19, 34–35. The United States argues that the cases Concepcion uses to support the mandatory consideration of post-sentencing developments do not control First Step Act sentence reductions. Id. at 34–35. Instead, the United States argues that the cases are only controlling for sentencing and resentencing proceedings after convictions are vacated on direct appeal or during collateral proceedings. Id. In addition, the United States relies on United States v. Moyhernandez (“Moyhernandez”) to further support its argument. Brief for Respondent at 41. According to the United States, Moyhernandez finds that post-sentencing developments could be useful to consider when reducing sentences under the First Step Act: however, the court did not say that they were mandatory. See id.
Discussion
JUDICIAL DISCRETION AND the Fair Step Act
The Drug Policy Alliance (“DPA”) et al., in support of Concepcion, argues Congress granted the court broad discretion to consider “all factors” when deciding resentencing based on Section 404(b) of the First Step Act. Brief for Amici Curiae Drug Policy Alliance et. al. at 13. The American For Prosperity Foundation (“AFDF”) concurs that courts have “wide latitude” to consider a range of post-sentencing legal and factual developments in its Section 404 decisions. Brief For Amici Curiae American for Prosperity Foundation et. al. at 6. The AFDF assert courts’ Section 404 decisions are allowed to consider post-sentencing factors such as changes to the Federal Sentencing Guidelines and post-sentencing conduct along with the traditional Section 3553(a) factors. Id. at 8. Further, the AFDF highlights that the U.S. Supreme Court favors judges including rehabilitation in their sentencing decisions. See Id. at 8–9. According to the AFDF, the U.S. Supreme Court ruled rehabilitation was “highly relevant to several of the 3553(a) factors.”
Id. at 9. AFDF acknowledges it is crucial for courts to consider rehabilitation because this post-sentencing factor is connected to various Section 3553(a) factors including the defendant’s history and character. Id. at 9. Moreover, the AFDF maintains allowing courts to consider post-sentencing factors in a deciding a Section 404 motion preserves a longstanding American’s legal tradition—granting courts the authority to consult various “sources and types of evidence” in their sentencing decisions. Id. at 7.
The United States counters that Congress did not intend a Section 404 motion under the First Step Act to qualify for a plenary resentencing proceeding, and that is why the court is not obligated to consider “all factors” for imposing a sentence reduction. Brief for Respondent at 18–19. Further, the United States maintains Congress did not enact the First Step Act to grant courts the authority to impose a new sentence to an otherwise final judgement on sentencing in a criminal proceeding. Id. at 22–23. Instead, the United States argues, regarding a Section 404 motion, the court is allowed a “limited adjustment” of a district court’s final sentencing decision. Id. at 22. Moreover, the United States maintains Congress intended only a small number of drug offenders to qualify for relief under Section 404(b) of the Fair Step Act. Specifically, the United States asserts Section 404(b) relief applies only to drug offenders whose sentences could be amended pursuant to Sections 2 and 3 of the First Step Act. Id. 23. Further, the United States maintains prohibiting a court from amending a district court’s final sentencing decision is a core principle of the American criminal justice system. See Id. at 22. The United States argues that upholding the district court’s final sentencing decision is “essential to the operation of our criminal justice system.” Id. Hence, the United States acknowledges that not obligating a court’s Section 404 decision to reexamine “all aspects of the original sentencing” ensures the finality of a criminal judgement. See id. at 25.
Intervening Legal Developments and Post-Sentencing Conduct OF OFFENDERS
In support of Concepcion, the National Association of Criminal Defense (“NACDL”) et al., argues courts must consider intervening legal developments and post-sentencing conduct in their Section 404 decisions. Brief for Amici Curiae The National Association of Criminal Defense Lawyer et al., at 19–20. The NACDL acknowledges Congress granted the court broad authority to consider different post-sentencing factors under the First Step Act. Id. at 20. The Constitutional Accountability Center (“CAC”) further maintains Congress intended the First Step Act to encourage judges to give “individualized sentences” or case by case review of each defendant. Brief for Amici Curiae the Constitutional Accountability Center, at 15. Therefore, CAC maintains courts can consider post-sentencing factors along with Section 3553 factors in deciding on a Section 404 motion. Id. at 21. Still NACDL maintains the court must consider “all factors relevant to the imposition of a sentence.” Id. 24, 27. Moreover, NACDL contends requiring courts to consider post-sentencing developments in its Section 404 decisions ensures “fairer and appropriate” prison terms are rendered. Id. at 13. NACDL also points out that many drug offenders eligible for Section 404 relief have shown significant rehabilitation and many offenders have served at least eleven years in prison. Id. at 6. Thus, NACDL maintains it is irrational to not obligate courts to consider an offender’s changed behavior when deciding to reduce his or her sentence under the First Step Act. Id. at 7. The NACDL reiterates the Fair Step Act’s purpose is to eliminate unfair sentencing disparities, and thus requiring courts to consider intervening legal development and post-sentencing conduct in its Section 404 decisions is aligned with accomplishing this goal. Id. at 27.
The United States argues that a court should not be required to consider post-sentencing developments in a Section 404 sentencing reduction because such a requirement would grant crack-cocaine offenders an unfair advantage over other drug offenders. Brief for Respondent at 38. The United States concurs that the First Step Act’s main purpose was to ensure the Fair Sentence Act applied retroactively to drug offenders sentenced before August 3, 2010. Id. at 8. The United States further acknowledges the First Step Act granted courts the authority to reduce the sentence of drug offenders eligible for a Section 404 motion. Id. 8–9. However, the United States maintains requiring courts to consider changes to a career-offender guidelines issued under the 2018 of Federal Sentencing Guideline is not retroactive and “creates inequalities.” Id. at 37. The reason is the United States argues other drug offenders cannot request for their resentencing to be based on changes to the new Federal Sentencing Guidelines like crack-cocaine offenders eligible for resentencing under Section 404(b). Id. at 38. Likewise, the United States argues obligating the court to consider a wide range of other post-sentencing factors in Section 404 resentencing proceedings would also produce inequalities since other drug offenders could not have these factors considered in their resentencing proceedings. Id. at 38–39. The United States asserts Congress did not enact the Fair Step Act to “promote such disparities.” Id. at 38.
Conclusion
Acknowledgments
Additional Resources
- Conception v. United States, Ballotpedia.
- Conception v. United States, National Association of Attorneys General (Oct. 7, 2021)