Fifth Circuit articulates limiting account of FIRST STEP Act crack resentencing

A helpful colleague made sure I did not miss the notable Fifth Circuit opinion on FIRST STEP Act resentencing this past week in US v. Hegwood, No. 19-40117 (5th Cir. Aug 8, 2019) (available here). Congress finally provided for complete retroactivity of the Fair Sentencing Act (FSA) in section 404 of the FIRST STEP Act, but the language of that section left unclear whether a sentencing court is to conduct a full resentencing under the Act or a more limited sentencing modification for eligible offenders. District courts have been dealing with this resentencing question in various ways, and the Fifth Circuit panel ruling in Hegwood may be the first to address the issue. Here is its key passages:

This appeal concerns the First Step Act, in which Congress permitted a sentencing court to “impose a reduced sentence as if . . . the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offense was committed.” The issue is whether district courts are authorized to conduct a plenary resentencing, which would include recalculating the Sentencing Guidelines range as if the defendant were being sentenced for the first time under present law, or whether courts are limited to reductions resulting from the Fair Sentencing Act. Concluding that the First Step Act does not allow plenary resentencing, we AFFIRM....

Hegwood argues that a new sentence under the First Step Act requires a Guidelines calculation to be made that is correct as of the time of the new sentencing, and Section 3553(a) factors are to be applied anew....

It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed. The calculations that had earlier been made under the Sentencing Guidelines are adjusted “as if” the lower drug offense sentences were in effect at the time of the commission of the offense. That is the only explicit basis stated for a change in the sentencing. In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19, 28-29 (2001).  The express backdating only of Sections 2 and 3 of the Fair Sentencing Act of 2010 — saying the new sentencing will be conducted “as if” those two sections were in effect “at the time the covered offense was committed” — supports that Congress did not intend that other changes were to be made as if they too were in effect at the time of the offense.

These limits make the First Step Act similar to Section 3582(c), which opens the door only slightly for modification of previously imposed sentences for certain specified reasons, including the lowering by the Sentencing Commission of the sentencing range that was in effect for the defendant at the time of initial sentencing. 18 U.S.C. § 3582(c)(2).  The Supreme Court held that “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817, 826 (2010).

We do not see any conflict in this interpretation of Section 404 of the First Step Act with the provisions of 18 U.S.C. §§ 3582 and 3553. The district court under Section 3582(a) is only required to consider the Section 3553(a) factors “to the extent that they are applicable.” The government, relying on the fact that the First Step Act gives the court discretion whether to reduce a sentence, argues that the ordinary Section 3553(a) considerations apply to determine whether to reduce the defendant’s sentence.

The mechanics of First Step Act sentencing are these.  The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.  The district court’s action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception.  The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.

As a matter of statutory interpretation, I can understand why the Fifth Circuit is inclined in Hegwood to approach FSA retroactivity as only a modest sentence modification proceeding.  But as a matter of sound policy and practice, I think it makes more sense to approach these cases as full resentencings with all subsequent changes in both  applicable sentencing laws and relevant sentencing facts available for, an integral to, the judge's resentencing decision.  Otherwise, as seems to be the case in Hegwood, a defendant already subject to the undue harshness of the old 100-1 crack mandatory minimums is still forced to endure the undue harshness of other problems with the guidelines that have been fixed since his original sentencing.

I am hopeful, but not optimistic, that only a small number of defendants will be adversely impacted by the Hegwood approach to resentencing. And this case provides yet another example of how implementation of statutory sentencing reform can often be just as important for some defendants as the reform itself.