In Concepcion v. United States, No. 20-1650 (June 27, 2022), a 5 to 4 Supreme Court held the First Step Act allows district courts to consider intervening changes of law (such as changes to the Guidelines) or fact (such as behavior in prison) in exercising their discretion to reduce a sentence. This reverses the law in the First, Fifth, Ninth and Eleventh Circuits, which before today, limited the discretion of district court's to consider only one variable in conducting a resentencing under Section 404(b) of the First Step Act--the change to the statutory minimum and maximum. But the decision also makes plain the First Step Act does not compel courts to their discretion to reduce any sentence based on intervening changes in the law or facts. While Concepcion is about crack resentencing under Section 404 of the First Step Act, Professor Douglas Berman suggests here the Court's ruling should also resolve circuit split on compassionate release factors.
Justice Sotomayor delivered the opinion of the court, joined by Justices Thomas, Breyer, Kagan, and Gorsuch. Justice Kavanaugh dissented, joined by Chief Justice Roberts, and Justices Alito and Barrett.
Petitioner Carlos Concepcion pleaded guilty to possession with intent to distribute at least 5 grams of crack cocaine in 2008. He was sentenced in 2009 as a career offender to nineteen years’ imprisonment (228 months), about one year before the Fair Sentencing Act of 2010 (FSA) substantially increased the quantity of crack cocaine required to trigger a mandatory minimum sentence. In 2019, Concepcion sought relief under § 404(b) of the First Step Act of 2018, which made the 2010 FSA reforms retroactive. He argued, and the government agreed, he was eligible for a sentence reduction under the 2010 FSA because it reduced his statutory maximum from life to 30 years, and reduced his career-offender Guideline range from 262-327 months to 188-235 months. Concepcion also argued that he was no longer a career offender based on intervening changes in the law and facts, and that his accurate Guideline range was 57-71 months. Further, he asked the court to consider other sentencing factors, such as his postsentence rehabilitation. The district court denied relief, reasoning that district courts may not consider intervening legal developments in First Step Act resentencings. On appeal, Concepcion argued the district court erred by refusing to consider present-day law and facts in resentencing him. A divided First Circuit panel affirmed, relying on the reasoning of certain other circuits 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 new statutory minimum and maximum sentence.
Reversing the First Circuit, Justice Sotomayor’s Majority Opinion for the Court starts this way:
There is a longstanding tradition in American law, dating back to the dawn of the Republic, that a judge at sentencing considers the whole person before him or her “as an individual.” Koon v. United States, 518 U. S. 81, 113 (1996). In line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence used” to craft appropriate sentences. Williams v. New York, 337 U. S. 241, 246 (1949). When a defendant appears for sentencing, the sentencing court considers the defendant on that day, not on the date of his offense or the date of his conviction. Pepper v. United States, 562 U. S. 476, 492 (2011). Similarly, when a defendant’s sentence is set aside on appeal, the district court at resentencing can (and in many cases, must) consider the defendant’s conduct and changes in the Federal Sentencing Guidelines since the original sentencing. Ibid.
Congress enacted the First Step Act of 2018 against that backdrop. The First Step Act authorizes district courts to reduce the prison sentences of defendants convicted of cer- tain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised penalties for crack cocaine enacted in the Fair Sentencing Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion.
The Court holds that they may. It is only when Congress or the Constitution limits the scope of information that a district court may consider in deciding whether, and to what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when parties raise them. By its terms, however, the First Step Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.
The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening changes of law and fact supported his motion, erroneously believing that it did not have the discretion to do so, and the Court of Appeals affirmed. The Court now reverses.
The Opinion in Concepsion is here; the oral argument is here; the merits briefing is here.