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August 20, 2019

Another perspective on the scope of FIRST STEP Act crack resentencing

A few weeks ago in this post I noted the Fifth Circuit ruling in US v. Hegwood addressing intricate question of whether, when Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, it enabled a district court is to conduct a full resentencing or a more limited sentencing modification for eligible offenders.  The Fifth Circuit panel in Hegwood affirmed an approach FSA retroactivity as involving only a modest sentence modification proceeding rather than a complete resentencing. 

This morning I got an email flagging an earlier district court ruling US v. Payton, No. 07-20498-1, 2019 WL 2775530, at *4 (E.D. Mich. July 2, 2019), that goes the other way on this important and consequential issue.  Though predating Hegwood, Payton provides a useful overview and perspective that seemed worth reprinting to create a counterpoint to Hegwood:

District courts across the country are wrestling with this issue.  Many courts have ruled that the First Step Act, in conjunction with § 3582(c)(1)(B), does not authorize a full resentencing; broadly applying Dillon, they have found that a court’s authority under the First Step Act is as constrained as its limited authority under § 3582(c)(2). See Rose, 2019 WL 2314479, at *6 (internal citations omitted).

But a growing number of courts have found just the opposite — that the First Step Act vests the Court with broad discretion to resentence defendants considering the § 3553(a) factors, including the case law and Guidelines in effect today.  See, e.g., United States v. Stone, No. 96-cr-403, 2019 WL 2475750, at *2 (N.D. Ohio June 13, 2019); United States v. Biggs, No. 05-cr-316, 2019 WL 2120226, at *3 (N.D. Ill. May 15, 2019); Simons, 375 F. Supp. 3d 379; United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa Apr. 9, 2019); United States v. Powell, 360 F. Supp. 3d 134, 140 (N.D.N.Y. 2019); United States v. Newton, No. 02-cr-30020, 2019 WL 1007100, at *5 (W.D. Va. Mar. 1, 2019); see also United States v. Booker, No. 07 CR 843-7, 2019 WL 2544247, at *3 (N.D. Ill. June 20, 2019); United States v. Black, No. 04-cr-100, 2019 WL 2402969, at *5 (E.D. Va. June 7, 2019); Rose, 2019 WL 2314479, at *7; Shelton, 2019 WL 1598921, at *2....

The Court agrees with Defendants that the only way to impose a reduced sentence is to consider the § 3553(a) factors and Guidelines, including the defendant’s record in prison. See Biggs, 2019 WL 2120226, at *3 (“Because the potential reduced penalties for covered offenses could influence the range of recommended penalties for non-covered offenses, ‘impos[ing] a reduced sentence as if ... the Fair Sentencing Act ... were in effect’ entails resentencing on all counts.”); see also Pepper v. United States, 562 U.S. 476, 481 (2011) (holding that “a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range.”).

This interpretation is in keeping with the purposes of the First Step Act which was enacted, in part, to: provide a remedy for individuals subjected to overly harsh and prejudicial penalties for crack cocaine offenses; decrease the number of people caged in our overcrowded prisons largely because of the War on Drugs; and save taxpayer dollars.  See United States v. Allen, No. 3:96-CR-00149, 2019 WL 1877072, at *3 (D. Conn. Apr. 26, 2019); Simons, 375 F. Supp. 3d at 389.

It seems to me quite possible that this issue could be the first (of many?) matters related to the implementation of the FIRST STEP Act that makes its way to the US Supreme Court.

Prior related post:

August 20, 2019 at 10:51 AM | Permalink


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