This Report summarizes cases granted review on September 30, 2021 (Part I).
Case Granted Review: Concepcion v. United States, 20-1650
Concepcion v. United States, 20-1650. The question presented is “[w]hether, when deciding if it should ‘impose a reduced sentence’ on an individual under Section 404(b) of the First Step Act of 2018, 21 U.S.C. §841 note, a district court must or may consider intervening legal and factual developments.” For more than three decades, federal drug laws treated one gram of crack-cocaine as the equivalent of 100 grams of powder cocaine for purposes of setting the statutory minimum and maximum sentence. To reduce “unjustified race-based differences” in sentences for crack and powder cocaine offenses, the Fair Sentencing Act of 2010 substantially increased the quantity of crack cocaine needed to trigger the mandatory minimum sentence. The First Step Act of 2018 makes the Fair Sentencing Act’s reforms retroactive. As relevant here, Section 404(b) of the First Step Act allows a person convicted of crack-cocaine offenses and sentenced before August 3, 2010, to receive a reduced sentence “as if” Section 2 of the Fair Sentencing Act were “in effect at the time the covered offense was committed.”
In 2008, petitioner Carlos Concepcion pleaded guilty to a single count of possession with intent to distribute, and distributing, at least five grams of crack cocaine. At sentencing, the district court applied the 2008 edition of the federal Sentencing Guidelines to calculate the sentencing range. The district court made two calculations under the 2008 Guidelines to determine which sentencing range would govern: one based on the drug quantities under U.S.S.G. §2D1.1(c), and the other using the career-offender provisions of U.S.S.G. §4B1.1. The district court treated Concepcion as a “career offender” under U.S.S.G. §4B1.1(a), reasoning that he met the requirements of that section due to prior convictions for controlled-substance offenses and prior convictions for carjacking, robbery, and assault. The district court then sentenced Concepcion to 19 years’—or 228 months’—imprisonment. After the First Step Act became law, Concepcion sought relief under Section 404(b) of the Act. He made three arguments. First, he asserted that Section 2 of the Fair Sentencing Act reduced the statutory maximum sentence applicable to his offense from life to 30 years, reducing his career offender Guidelines range from 262 to 327 months to 188 to 235 months. Second, Concepcion argued that he was no longer a career offender under the 2018 Guidelines. That was because (1) one of the prior drug convictions on which his career-offender status was based had been vacated and a notice of nolle prosequi entered; and (2) his convictions for carjacking, robbery, and assault no longer qualified as “crimes of violence” under the Sentencing Guidelines based on an intervening Supreme Court decision. Third, Concepcion invoked the factors to be considered in imposing a sentence under 18 U.S.C. §3553(a), noting his post-offense rehabilitation. The district court denied relief, adopting the holding of the Fifth Circuit that district courts may not consider any intervening legal developments in a First Step Act resentencing. The district court therefore declined to reduce Concepcion’s sentence based on changes to the Guidelines, the vacatur of one of prior his convictions, or his submission of current facts concerning the Section 3553(a) factors. The First Circuit affirmed. 991 F.3d 279.
The First Circuit held that “[t]he 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,’ not to conduct a plenary resentencing.” The court stated that 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.” The First Circuit went on to conclude that allowing First Step Act defendants to invoke current law “would put crack cocaine defendants who had committed covered offenses in a more advantageous position than other criminal defendants generally.” Conception’s petition notes that “[f]our circuits require a district court to consider intervening case law, updated sentencing Guidelines, or intervening factual developments when resentencing. Five circuits allow district courts to ignore those issues. And three circuits bar consideration of intervening law or updated Guidelines entirely.”
On the merits, Conception argues that “the First Step Act authorizes district courts to ‘impose a reduced sentence.’ As other federal sentencing statutes make clear, the term ‘impose’ capaciously allows a court to consider any thing relevant to what is an appropriate sentence.” (Citation omitted.) He insists that “[w]hen a district court imposes a reduced sentence under the First Step Act, it must calculate ‘the sentencing range established’ under the Sentencing Guidelines as it exists at the time of the motion’s adjudication. 18 U.S.C. §3553(a)(4), (5).” He also says that “[t]he district court also must consider all §3553(a) factors, including factual ones such as ‘the history and characteristics of the defendant,’ 18 U.S.C. § 3553(a). And, as th[e] Court held in Pepper v. United States, a district court cannot artificially limit itself to a defendant’s past history and circumstances while ignoring more recent developments. 562 U.S. 476, 488-89 (2011).”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]