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May 18, 2020

Reviewing the emerging jurisprudence around FIRST STEP Act resentencings

Writing al Law360, Emma Cueto has this notable new piece headlined "With First Step, Courts Diverge In Filling In The Law's Gaps."  Here are excerpts:

More than a year after the passage of the First Step Act — which, among other things, made certain sentencing reforms retroactive — courts have continued to work out the procedural questions surrounding how the act should be applied and what judges must consider when resentencing federal offenders.  And some courts have come to very different conclusions, putting defendants on disparate footing depending on where they are based.

In the most recent case examining a First Step Act resentencing, the Sixth Circuit ruled on May 7 that defendants are entitled to appeal a judge's resentencing decisions based on reasonableness, though the courts reiterated a previous decision that trial courts are not required to give defendants a holistic, or what's known as a plenary, review.  The result was that the appellate court upheld the resentencing decision of Benjamin Foreman, who had been convicted of several drug-related crimes, even though it affirmed his right to appeal the sentence....

In the initial wake of the First Step Act, courts spent some time hashing out questions of who, precisely, was eligible to have their sentences recalculated.  With those questions largely resolved, courts have turned now to pinning down the details of what approach judges should take to resentencing under the new law, with different federal appellate courts coming to different conclusions.

The Fourth Circuit, in a case decided in April, issued a more defendant-friendly decision in USA v. Chambers, in which it concluded in a split decision that the trial court should have taken a broader view and could consider a wider-ranging set of factors, including the conduct of Brooks Chambers, who had been convicted of a drug offense, while incarcerated.

The court stopped short of requiring a plenary resentencing, which would give defendants additional rights, such as the right to an in-person hearing, and which Chambers did not explicitly request in the appeal. However, the decision did send a message that judges should consider a wide variety of factors in First Step Act cases, rather than focusing solely on a few select criteria....

At the other end of the spectrum, the Fifth Circuit ruled in 2019 that the First Step Act does not allow for a plenary resentencing. In that case, USA v. Hegwood, Michael Hegwood also objected to his designation as a career offender during resentencing, arguing that since his conviction in 2008, there had been changes to the law that meant he would not be a career offender if sentenced today.... The Fifth Circuit, however, disagreed, saying that when the court recalculates a sentence it should only make the changes specifically triggered by the First Step Act, and should not consider other changes to the law since the original sentence was imposed....

The difference in opinions between the circuit courts may eventually wind up before the U.S. Supreme Court, which is the final authority in deciding circuit splits.  In the meantime, however, defendants and their attorneys find themselves trying to make the most of the existing frameworks.

"To me, a lot of these doctrines don't matter so much as who your judge is," said Michael Holley, a federal public defender in Tennessee, which is part of the Sixth Circuit.... Some judges choose to consider a wide range of factors when recalculating a sentence, including post-sentencing behavior or changes in the law since the sentence was first imposed, which can result in larger reductions. Others choose to take a more narrow approach, keeping sentences from coming down as much.

May 18, 2020 at 11:27 AM | Permalink


Professor Berman,

The portion of the article that you quote above is incorrect insofar as it discusses Hegwood. Take a look at United States v. Jackson, 945 F.3d 315, 322 n.7 (5th Cir. 2019). The article should be corrected (I have just written to the author). Please add some commentary or remove that portion of the excerpt. Misinformation is easy to spread. Also, for the record, I am a defense attorney, although I was a prosecutor in a former life. Thank you for all of your good work.

Posted by: Mowry | May 19, 2020 12:07:16 PM

I am not sure the article is wrong, Mowry. At issue in Hegwood was whether a court could consider other legal changes in a new FIRST STEP sentence reduction proceeding. Hegwood says (and Jackson reiterates) that the FIRST STEP Act does not allow for a full resentencing that considers all changes in LAW. Jackson clarifies that a judge still could (but need not) consider the defendant's post-sentencing conduct. It is a subtle difference, but one that I think makes the discussion above accurate.

Posted by: Doug B. | May 20, 2020 11:43:33 AM

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