Justices' Resentencing Ruling Boosts Judicial Discretion

By Mark Osler | July 8, 2022, 5:07 PM EDT ·

Mark Osler
Mark Osler
The final few weeks of the U.S. Supreme Court's term featured several bombshell decisions that spurred furious debate over abortion, climate protection, the regulation of guns and the legitimacy of the Supreme Court itself. Hidden amid this barrage was a quiet gem: Concepcion v. U.S.

There, the court held on June 27 that when resentencing a defendant under the First Step Act, a district court judge may consider not only changes in the law contained in the First Step Act itself, but other changes in the law and changes in the life of the defendant.

The result will enable judges to cut more deeply into lengthy sentences for trafficking crack cocaine. This will enable a more thorough and humane correction of overlong sentences — but it may also create significant interjudge disparities.

The First Step Act was one of the bigger surprises to emerge from the Trump administration, which most assumed would be entirely hostile to criminal justice reform. Among other provisions, it gave retroactive effect to the Fair Sentencing Act of 2010, which partially corrected a grievously unfair 100-to-1 sentencing ratio between powder and crack cocaine in the federal statute and sentencing guidelines.

Before the Fair Sentencing Act, the guidelines and mandatory statutory minimums directed the same sentence for cases involving 500 grams of powder cocaine or 5 grams of crack cocaine. The Fair Sentencing Act changed that ratio to 18-to-1 — better, but not perfect.

In 2011, the U.S. Sentencing Commission made the change retroactive as to guideline calculations, but that left the mandatory minimums embedded in statute without retroactive effect — a mistake finally addressed in 2018 by the First Step Act.

Unfortunately, a circuit split developed as to whether a court conducting a resentencing under the First Step Act was required to consider laws or facts outside of the basic sentencing recalculation described in the First Step Act.

The U.S. Courts of Appeals for the Third, Fourth, Tenth and District of Columbia Circuits held that at least some additional facts must be considered by a district court at resentencing under the First Step Act if raised by a party, while the U.S. Courts of Appeals for the Second, Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh took a narrower view.

Justice Sonia Sotomayor, writing for a five-justice majority — including Justices Clarence Thomas, Stephen Breyer, Elena Kagan and Neil Gorsuch — resolved this split in favor of the broader consideration of factors at resentencing.

She rooted this in the "longstanding tradition in American law … that a judge at sentencing considers the whole person before him or her 'as an individual.'"

In other words, the judge conducting resentencing is to take the defendant as they are in that moment, including those things that may have changed — in the law or the life of the defendant — rather than limiting consideration to things that were true at the time of the original sentencing, other than the factor that allowed resentencing.

Carlos Concepcion pled guilty to distributing 13.8 grams of crack cocaine and was sentenced in 2009 to 228 months, or 19 years, in prison. This sentence was enhanced by the fact that he was categorized as a career offender.

According to Concepcion, two important things changed after his sentencing, one legal and one personal: (1) Because of new rules on how career offenders were defined, he was no longer subject to that enhancement, and (2) he had changed by successfully completing drug treatment and vocational programming in prison.

The First Step Act allowed Concepcion to be resentenced, as the government conceded. However, the U.S. District Court for the District of Massachusetts found that it was limited to the facts and law in place at the time of the first sentencing — other than the change embedded in the First Step Act — and concluded that his sentence would be the same. The court denied his motion, and the U.S. Court of Appeals for the First Circuit affirmed.

The Supreme Court majority reversed, concluding that "[t]he First Step Act does not require a district court to be persuaded by nonfrivolous arguments raised by the parties before it, but it does require the court to consider them."

That opens the door to a broad consideration at resentencing that takes into account changes in the law or the person — an acknowledgment that the defendant may be more than the worst thing they ever did.

A dissent for the remaining justices, written by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and Justices Samuel Alito and Amy Coney Barrett, turned on a simple difference of definition.

While the majority did not distinguish between resentencings after a successful appeal by the defendant and those coming after a new law or guideline amendment, the dissenters recognized two distinct categories. They refer to the former as "resentencings" and the latter as "sentence-modification proceedings."

This allowed the dissent to assert different rules for the two categories: At resentencing, a judge may broadly consider facts and current law, but in a sentence-modification proceeding, the court may only consider the specific changes included in the law or guideline amendment that created the possibility of that proceeding.

Justice Kavanaugh's dissent did not invent this bifurcation. It had been described by the Supreme Court in its 2010 Dillon v. U.S. decision, a case in which a man convicted of trafficking crack sought relief under a guideline change that came after his sentencing.

Dillon had argued that there was no difference between a resentencing after a guideline change and "any other resentencing." The court rejected that argument and embraced the term "sentence-modification proceeding" to describe such a hearing. That part of Dillon was set aside by the majority in Concepcion.

Is Concepcion good for criminal defendants? Well, it doubtlessly will be good for some of them — those who are in front of judges who are inclined to reduce a sentence based on rehabilitation or new law. However, if they are in front of a judge who cares mostly about the original facts and finality, the ruling probably won't be good for those defendants.

That dynamic will not only create disparities based on judge, but will enhance existing disparities. After all, the judge who was likely to give a longer sentence at the front end is also most likely to deny a break down the road, while the judge who gave a lighter sentence at the initial hearing is probably more amenable to reducing a sentence at the second-chance hearing.

By setting aside Dillon's dichotomy between resentencings and sentence-modification hearings, Concepcion allows for a broader consideration of rehabilitation in other kinds of second-chance hearings, beyond those rooted in the First Step Act. That will become particularly important if we ever see a second step that legislates broader cuts in drug or other sentences with retroactive effect.

In the broadest strokes, Concepcion weighed in favor of more recognition of human dignity in the criminal justice system by allowing a fuller view of a defendant. While this decision, in isolation, may bring mixed results, that trend is a good one.

Mark Osler is a professor and the Robert and Marion Short distinguished chair in law at the University of St. Thomas School of Law.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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