United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2020 Decided December 29, 2020
No. 19-3058
UNITED STATES OF AMERICA,
APPELLEE
v.
ANTONE WHITE, ALSO KNOWN AS TONE,
APPELLANT
Consolidated with 19-3059
Appeals from the United States District Court
for the District of Columbia
(No. 1:93-cr-00097-1)
(No. 1:93-cr-00097-2)
A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellants.
Elizabeth Gabriel, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Timothy J. Shea,
U.S. Attorney, and Elizabeth Trosman and John P. Gidez,
Assistant U.S. Attorneys.
2
Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: The Fair Sentencing Act
of 2010 raised the crack-cocaine threshold quantities for
triggering certain penalty ranges for convictions under 21
U.S.C. § 841. However, the modifications to section 841 did
not apply to defendants who were sentenced before enactment
of the Fair Sentencing Act. This was changed with the passage
of the First Step Act of 2018. Section 404 of that Act allows
persons to seek reduced sentences if they committed certain
“covered offense[s]” under section 841 prior to the enactment
of the Fair Sentencing Act. The First Step Act was “intended
to rectify disproportionate and racially disparate penalties” in
federal sentencing. United States v. Boulding, 960 F.3d 774,
782 (6th Cir. 2020).
A “covered offense” under the First Step Act is “a
violation of a Federal criminal statute, the statutory penalties
for which were modified by section 2 or 3 of the Fair
Sentencing Act . . ., that was committed before August 3,
2010.” First Step Act § 404(a). “A court that imposed a
sentence for a covered offense may, [pursuant to a proper
motion], impose a reduced sentence as if sections 2 and 3 of
the Fair Sentencing Act of 2010 . . . were in effect at the time
the covered offense was committed.” Id. § 404(b). However, a
district court may not “entertain a motion” for a defendant who
has already had his sentence imposed or reduced “in
Judge Garland was a member of the panel at the time this case
was argued but did not participate in the final disposition of the
case.
3
accordance with” sections 2 or 3 of the Fair Sentencing Act. Id.
§ 404(c). Nor may a district court “entertain a motion” if a
previous section 404 motion on behalf of the same defendant
was denied “after a complete review of the motion on the
merits.” Id.
Appellants in this case, Antone White and Eric Hicks,
were convicted in 1994 of drug and conspiracy offenses. It was
not until the passage of the First Step Act that defendants like
White and Hicks could seek reduced sentences. In April and
May 2019, Hicks and White filed motions for reduced
sentences under section 404 of the First Step Act. The District
Court denied White’s motion and partially denied Hicks’s
motion. See United States v. White, 413 F. Supp. 3d 15, 53
(D.D.C. 2019). Appellants filed timely appeals to challenge the
judgments of the District Court. We now reverse and remand.
The District Court held that if a defendant was convicted
of a “covered offense” and is thus eligible for relief under
section 404, “the final issues to address are whether relief is
available and, if so, to what extent a sentence reduction is
warranted as a matter of discretion.” Id. at 48. This was error
because, as we explain below, there is no additional
“availability” requirement in section 404 beyond the covered
offense requirement in section 404(a) and the limitations set
forth in section 404(c). In the alternative, the District Court
held that, even if relief might be available, it would not exercise
its discretion to reduce Appellants’ sentences, save for one of
Hicks’s counts. However, in reaching this alternative
judgment, it is unclear whether the court properly weighed the
factors listed in 18 U.S.C. § 3553(a). And there is nothing to
indicate that the District Court weighed the mitigating factors
raised by Appellants, including Appellants’ post-sentencing
conduct. This “silence leaves us without assurance that the
district court considered [Appellants’] arguments.” United
4
States v. Shaw, 957 F.3d 734, 742 (7th Cir. 2020). Finally, it
appears that the court relied on inaccurate information in
weighing the claims raised by Hicks. Given these issues, we
will remand the case with instructions to the District Court to
reconsider Appellants’ motions.
Assessments of motions under section 404 must take
account of Congress’s intent to rectify disproportionate and
racially disparate sentencing penalties. Appellants have raised
claims that are obviously within the remedial compass of the
First Step Act, and they cannot file new motions if their current
section 404 claims are denied “on the merits.” First Step Act
§ 404(c). It is therefore important that they be given full and
fair hearings on their claims to ensure that the goals of the Act
are met.
I. BACKGROUND
A. Statutory Background
Federal drug-offense penalties vary based on the quantity
and type of drugs involved in an offense. See 21 U.S.C.
§ 841(b). The Anti-Drug Abuse Act of 1986 set forth three
quantity-based penalty ranges: 10 years to life in prison, 5 to
40 years in prison, and up to 20 years in prison. Pub. L. No. 99-
570, 100 Stat. 3207, 3207-2 to 3207-4. The act “treated crack
cocaine crimes as far more serious” than powder cocaine
crimes, “impos[ing] upon an offender who dealt in powder
cocaine the same sentence it imposed upon an offender who
dealt in one one-hundredth that amount of crack cocaine.”
Dorsey v. United States, 567 U.S. 260, 263, 266 (2012).
As noted above, in 2010, Congress passed the Fair
Sentencing Act, Pub. L. No. 111-220, 124 Stat. 2372 (2010),
which reduced the disparity between cocaine base and powder
5
cocaine from 100-to-1 to 18-to-1. Dorsey, 567 U.S. at 264.
Section 2 of the Act increased the threshold quantity for the “10
years to life” penalty range from 50 grams of crack cocaine to
280 grams, see Fair Sentencing Act § 2 (codified at 21 U.S.C.
§ 841(b)(1)(A)(iii)), and the threshold quantity for the “5 to 40
years” penalty range from 5 grams of crack cocaine to 28
grams, see id. (codified at 21 U.S.C. § 841(b)(1)(B)(iii)). As a
result of these changes, offenses involving less than 28 grams
of crack cocaine now carry a statutory maximum term of 20
years imprisonment, with no mandatory minimum penalty. See
21 U.S.C. § 841(b)(1)(C). The Fair Sentencing Act’s new
penalty regime, however, offered only limited redress because
it did not apply to defendants sentenced prior to August 3,
2010. United States v. Swangin, 726 F.3d 205, 207 (D.C. Cir.
2013).
The Seventh Circuit has aptly noted that:
[The Fair Sentencing Act] reflected a recognition that
the tremendous disparities in punishment of powder-
cocaine and crack-cocaine offenses disparately
impacted African Americans.
But the Fair Sentencing Act’s changes to the
sentencing scheme applied only to defendants who
were sentenced after the law’s enactment on August
3, 2010, leading us to comment that the Act might
more accurately be known as “The Not Quite as Fair
as it could be Sentencing Act of 2010.”
Congress eventually addressed this deficiency when it
passed the First Step Act of 2018.
Shaw, 957 F.3d at 737 (citations omitted).
6
In 2018, Congress passed the First Step Act. Pub. L. No.
115-391, 132 Stat. 5194 (2018). Section 404 of the Act allows
certain individuals sentenced prior to enactment of the Fair
Sentencing Act to seek a retroactively reduced sentence. Id.
§ 404. The section states in full:
SEC. 404. APPLICATION OF FAIR SENTENCING
ACT.
(a) DEFINITION OF COVERED OFFENSE.—In this
section, the term “covered offense” means a violation
of a Federal criminal statute, the statutory penalties
for which were modified by section 2 or 3 of the Fair
Sentencing Act of 2010 (Public Law 111–220; 124
Stat. 2372), that was committed before August 3,
2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED.—A court
that imposed a sentence for a covered offense may, on
motion of the defendant, the Director of the Bureau of
Prisons, the attorney for the Government, or the court,
impose a reduced sentence as if sections 2 and 3 of the
Fair Sentencing Act of 2010 (Public Law 111–220;
124 Stat. 2372) were in effect at the time the covered
offense was committed.
(c) LIMITATIONS.—No court shall entertain a motion
made under this section to reduce a sentence if the
sentence was previously imposed or previously
reduced in accordance with the amendments made by
sections 2 and 3 of the Fair Sentencing Act of 2010
(Public Law 111–220; 124 Stat. 2372) or if a previous
motion made under this section to reduce the sentence
was, after the date of enactment of this Act, denied
after a complete review of the motion on the merits.
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Nothing in this section shall be construed to require a
court to reduce any sentence pursuant to this section.
Id.
B. Factual Background
Appellants participated in a drug trafficking organization
from 1988 until 1993. See United States v. White, 116 F.3d 903,
909 (D.C. Cir. 1997). They were arrested and charged with,
inter alia, conspiracy to distribute 50 grams or more of cocaine
base (Count 1), Racketeer Influenced and Corrupt Organization
(“RICO”) conspiracy (Count 5), distribution of five grams or
more of a substance containing crack cocaine (Count 18 for
White and Count 11 for Hicks), and distribution of a substance
containing a detectable amount of crack cocaine (Counts 8 and
10 for Hicks and Counts 6 and 7 for White). Following trial,
the jury returned verdicts against White and Hicks finding them
guilty of these counts. However, the jury did not indicate any
additional drug weights on the verdict form.
At sentencing, the trial judge determined the statutory
penalties using drug quantities found by the preponderance of
the evidence. See United States v. Fields, 242 F.3d 393, 395-
96 (D.C. Cir.) (describing sentencing practices prior to
Apprendi v. New Jersey, 530 U.S. 466 (2000)), reh’g granted
on other grounds, 251 F.3d 1041 (D.C. Cir. 2001). White’s
presentence investigation report (“PSR”) stated that the
amounts of crack cocaine involved in his offenses were 21.87
kilograms for Count 1 (the conspiracy count), 3.607 grams for
Count 6, 3.682 grams for Count 7, and 49.99 grams for Count
18. Accordingly, the PSR identified the following statutory
penalties:
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• Count 1: 10 years to life imprisonment for drug
conspiracy under 21 U.S.C. § 846 and
§ 841(b)(1)(A)(iii);
• Count 5: maximum of life imprisonment under 18
U.S.C. § 1962(d) and § 1963;
• Counts 6 and 7: maximum of 20 years imprisonment
under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C); and
• Count 18: 5 to 40 years imprisonment under 21 U.S.C.
§ 841(b)(1)(B)(iii).
White’s counts were grouped pursuant to section 3D1.2(d)
of the United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”), with a base offense level of 42 due to the
amount of crack involved. This base offense level was
increased for possession of a dangerous weapon, a leadership
role, and obstruction of justice. Given his final offense level
and criminal history, White’s mandatory Guidelines range was
life.
The court sentenced White to life imprisonment on Counts
1 and 5, 240 months on Counts 6 and 7, and 480 months on
Count 18, all to run concurrently, to be followed by 5 years of
supervised release on each count, to run concurrently.
Hicks’s PSR stated that the actual amounts of crack
cocaine involved in his offenses were: 21.87 kilograms for
Count 1 (the conspiracy count), 0.109 grams for Count 8, 0.433
grams for Count 10, and 5.426 grams for Count 11. The PSR
identified the following statutory penalties:
9
• Count 1: 10 years to life imprisonment for drug
conspiracy under 21 U.S.C. § 846 and
§ 841(b)(1)(A)(iii);
• Count 5: maximum of life imprisonment under 18
U.S.C. § 1962(d) and § 1963;
• Counts 8 and 10: maximum of 20 years imprisonment
under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(C); and
• Count 11: 5 to 40 years imprisonment under 21 U.S.C.
§ 841(b)(1)(B)(iii).
Hicks’s base offense level was also 42. This offense level
was increased for possession of a dangerous weapon,
leadership, obstruction of justice, and recklessly creating a
substantial risk of death or serious bodily injury to another
person in the course of fleeing from a law enforcement officer.
Given his final offense level and criminal history, Hicks’s
mandatory Guidelines range was life.
The District Court sentenced Hicks to life imprisonment
on Counts 1 and 5, 240 months on Counts 8 and 10, and 480
months on Count 11, all to run concurrently, followed by 5
years of supervised release on each count, to run concurrently.
C. Procedural History
In 2019, Appellants filed motions for sentence reductions
under section 404 of the First Step Act. Each argued he was
eligible for relief under section 404 because he had been
convicted of “covered offense[s]” for which the statutory
penalties had been amended by the Fair Sentencing Act, and
the limitations in section 404(c) did not apply. Each requested
that the District Court exercise discretion under section 404(b)
10
to impose a sentence of time served. Appellants asked the court
to consider the 18 U.S.C. § 3553(a) sentencing factors and
provided the court with information about the mitigating
circumstances of their youth and their accomplishments during
imprisonment.
The Government argued that Appellants were not eligible
for sentence reductions because their offenses were not
“covered offenses” under section 404(a). The Government
contended that a “covered offense” is determined by looking at
the “actual quantity” of drugs involved in a defendant’s
offense, rather than by referencing the statute of conviction.
See United States’ Opp’n to Def.’s Emergency Suppl. Mot. to
Reduce Sentence at 15, Appendix for Appellants (“App.”) 443;
Gov’t’s Opp’n to Def.’s Emergency Suppl. Mot. to Reduce
Sentence Pursuant to the First Step Act of 2018 at 16, App. 654.
The Government further argued that, even if Appellants were
eligible for sentence reductions, the court should exercise its
discretion under section 404(b) to deny relief due to
Appellants’ crimes of conviction and disciplinary records
while in prison.
The District Court denied White’s motion and denied in
part and granted in part Hicks’s motion. White, 413 F. Supp. 3d
at 19. The court first held that a defendant has a “covered
offense” under section 404(a) if sections 2 or 3 of the Fair
Sentencing Act modified the penalties applicable to the
defendant’s statute of conviction, regardless of the actual drug
quantity attributable to the defendant. See id. at 33, 36, 38. The
District Court thus found that Appellants were sentenced for
“covered offenses” and were eligible for relief under section
404(a). Id. at 31, 38.
However, the District Court found that relief was not
“available” to Appellants under section 404(b), except as to
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Count 11 for Hicks. Id. at 48. The court explained that the Fair
Sentencing Act would have had no effect on Appellants’
sentences for Counts 1, 5, and 18, based on the judge-found
quantities of crack cocaine attributed to Appellants for those
counts. See id. at 48-50. The court also noted that under this
reasoning, Appellants’ Guidelines ranges would remain
unchanged. Id. at 51.
In the alternative, the District Court ruled that “[e]ven if
[a]vailable,” relief would not be warranted for any counts
except Hicks’s Count 11. Id. at 51. In reaching this judgment,
the court focused on White’s offense, obstruction of justice,
and disciplinary violations while imprisoned. Id. at 51-52. The
court did not mention any mitigating information relating to
White. Id. In considering Hicks, the court focused on his
offense, flight from police officers, and what the court
described as “obstructive conduct, bribing another First Street
Crew member to withhold information from the grand jury that
was investigating him for murder.” Id. at 52. The court did not
mention any mitigating information relating to Hicks. Id. The
court granted Hicks’s request for a time-served sentence on
Count 11, and otherwise denied Appellants’ motions. Id. at 53.
Appellants filed timely notices of appeal. After briefing in
this case was complete, the Government submitted a letter
“conced[ing] that appellants’ offenses [are] ‘covered
offenses’” under Section 404(a) of the First Step Act. Letter
from Michael R. Sherwin, Acting United States Attorney, U.S.
Dep’t of Justice, to Mark J. Langer, Clerk, U.S. Court of
Appeals for the D.C. Circuit (Oct. 5, 2020) (“28(j) Letter”).
The Government also disagreed with the District Court’s
conclusion “that relief [is] unavailable to appellants under
[s]ection 404(b) because of the actual quantity of crack cocaine
involved in their offenses.” Id. Instead, the Government argued
that the District Court’s judgment should be affirmed because
12
the District Court had made it clear that it would not grant
discretionary relief to Appellants even if such relief were
available.
II. ANALYSIS
A. Standard of Review
In Gall v. United States, 552 U.S. 38 (2007), the Supreme
Court instructed that “the abuse-of-discretion standard of
review applies to appellate review of all sentencing decisions.”
Id. at 49. Our sister circuits have applied the abuse-of-
discretion standard of review in appeals challenging denials of
sentence reductions under section 404 of the First Step Act. For
example, the Fifth Circuit has explained “that abuse of
discretion generally applies [in such situations], because the
[First Step Act] gives the district court broad discretion in
deciding whether to resentence.” United States v. Jackson, 945
F.3d 315, 319 (5th Cir. 2019); see also Boulding, 960 F.3d at
778. But even in the sentencing context, “[w]e review
questions of statutory construction de novo.” Young v. United
States, 943 F.3d 460, 462 (D.C. Cir. 2019) (citation omitted);
see also Jackson, 945 F.3d at 319 (“But to the extent the court’s
determination turns on ‘the meaning of a federal statute’ such
as the [First Step Act], our review is de novo.” (quoting United
States v. Hegwood, 934 F.3d 414, 417 (5th Cir. 2019)). We will
follow our sister circuits and apply the same standard in our
review of section 404 motions. We also note that if the District
Court fails to adequately explain its denial of a motion for a
reduced sentence, the case must be remanded for further
consideration by the trial court in the first instance. Shaw, 957
F.3d at 742; see also Chavez-Meza v. United States, 138 S. Ct.
1959, 1965 (2018).
13
B. “Covered Offense[s]” Under Section 404(a)
Section 404(a) defines a “covered offense” as “a violation
of a Federal criminal statute, the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act of
2010 . . ., that was committed before August 3, 2010.” First
Step Act § 404(a). Section 2(a) of the Fair Sentencing Act
modified 21 U.S.C. § 841. Fair Sentencing Act § 2(a). In this
context, then, a “covered offense” is any violation of 21 U.S.C.
§ 841, or conspiracy to violate 21 U.S.C. § 841, that was
committed before August 3, 2010 and for which the statutory
penalties were modified by the Fair Sentencing Act.
The three counts on appeal all fit this description. Under
Counts 1 and 5, Appellants were convicted of conspiracies to
violate 21 U.S.C. § 841 involving 50 grams or more of cocaine
base, the amount then specified in section 841(b)(1)(A). Under
Count 18, White was convicted of a violation of 21 U.S.C.
§ 841 that involved 5 grams or more of cocaine base, the
amount then specified in 841(b)(1)(B). Section 2(a) of the Fair
Sentencing Act modified the statutory penalties for these
counts because it changed the quantity of crack cocaine
necessary to trigger the penalties for those violations.
Thus, whether an offense is “covered” does not depend on
the actual drug amounts attributed to a defendant, whether by a
judge or a jury. Rather, it depends only on whether the
defendant was convicted of an offense with a statutory penalty
range that the Fair Sentencing Act altered. The Government
agrees with this categorical approach. See 28(j) Letter; see also
United States v. Jones, 962 F.3d 1290, 1301 (11th Cir. 2020)
(“The actual drug-quantity involved in the movant’s offense is
irrelevant as far as . . . the offense [is] concerned.” (emphasis
omitted)). Appellants’ convictions all involved “covered
offense[s]” under section 404(a).
14
Furthermore, as noted above, neither of the express
limitations in section 404(c) apply here. That provision
prevents the court from “entertain[ing] a motion” made by a
defendant who filed a prior First Step Act motion that was
denied on the merits, or whose sentence was already imposed
or reduced in accordance with sections 2 or 3 of the Fair
Sentencing Act. See First Step Act § 404(c). Neither Appellant
is affected by these limitations.
We note that Appellants were also convicted of the charges
in Counts 6, 7, 8, and 10, which involved violations of 21
U.S.C. § 841 that triggered the penalty provision in section
841(b)(1)(C). These charges appear to be covered offenses.
However, they were not raised as part of this appeal, so we will
not address Counts 6, 7, 8, and 10.
C. The Scope of Relief Under Section 404(b)
Section 404(b) permits a “court that imposed a sentence
for a covered offense” to “impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act . . . were in effect
at the time the covered offense was committed.” First Step Act
§ 404(b). For a court to impose a sentence “as if sections 2 and
3 of the Fair Sentencing Act . . . were in effect,” the court must
use the revised penalty range now applicable to the drug
amount in the original statute of conviction. Furthermore, any
new sentence must be “reduced” from the existing sentence.
In this case, Appellants were convicted of a conspiracy to
distribute at least 50 grams of cocaine base for Counts 1 and 5,
and White was additionally convicted of distributing at least 5
grams of cocaine base for Count 18. Given the modified
penalty ranges provided by the Fair Sentencing Act, the District
15
Court therefore had discretion to impose reduced sentences as
low as 5 years for Counts 1 and 5, and 0 years for Count 18.
The District Court construed section 404(b) incorrectly.
The court held that section 404(b)’s authorization to “impose a
reduced sentence as if sections 2 and 3 of the Fair Sentencing
Act . . . were in effect” means that relief is categorically barred
unless, using defendant-specific drug quantities, the Fair
Sentencing Act would have altered the statutory penalties
applicable to a defendant. See White, 413 F. Supp. 3d at 50
(“[I]f [section 2 or 3 of the Fair Sentencing Act] have no effect
on a defendant’s sentence, no sentence reduction is available to
award.”). In other words, the District Court held that relief is
“available” under section 404(b) only if the Fair Sentencing
Act “would have had an effect on a defendant’s sentence” as
calculated using the specific drug quantity attributable to a
defendant. Id. at 48. We hold that section 404(b) does not create
such an availability test.
The District Court’s limitation has no basis in the text of
section 404(b). The plain language of section 404(b) does not
require the court to determine what effect the Fair Sentencing
Act “would have had” on a defendant’s sentence at the time it
was originally imposed. Rather, it simply authorizes the district
court to “impose a reduced sentence as if sections 2 and 3 of
the Fair Sentencing Act . . . were in effect at the time the
covered offense was committed.” First Step Act § 404(b).
A court cannot determine, using judge- or jury-found drug
quantities, what effect the Fair Sentencing Act “would have
had” on a defendant’s sentence. As the Third Circuit explained
in the context of section 404(a):
If § 404 eligibility is based on drug quantity, a court
would have to speculate as to how a charge, plea, and
16
sentencing would have looked had the Fair
Sentencing Act been in effect. Such an analysis is
problematic because it cannot account for the
discretionary authority of either a prosecutor or a
court. Plea negotiations and colloquies are conducted
against the backdrop of the statutory minimum and
range.
United States v. Jackson, 964 F.3d 197, 205 (3d Cir. 2020)
(citation omitted); see also United States v. Johnson, 961 F.3d
181, 192 (2d Cir. 2020) (rejecting the “assumption that there is
a knowable set of pre-Fair Sentencing Act defendants who
would have received the same sentence regardless of the Fair
Sentencing Act” because, had the statutory penalty ranges been
different, defendants might not have been indicted or convicted
for the same drug amount).
Furthermore, “statutory benchmarks likely have an
anchoring effect on a sentencing judge’s decision making.”
United States v. Smith, 954 F.3d 446, 451 (1st Cir. 2020). The
First Step Act provides relief even where the penalty range
applicable to a defendant’s specific drug amount – whether
judge-found or jury-found – would remain the same after
application of the Fair Sentencing Act. See United States v.
Woodson, 962 F.3d 812, 817 (4th Cir. 2020) (“[E]ven
defendants whose offenses remain within the same subsection
after Section 2’s amendments are eligible for relief.”); Jackson,
964 F.3d at 205 (“It seems incongruent with the historical
context of the First Step Act for Congress to have intended
§ 404 to apply only to the select pre-Fair Sentencing Act
defendants whose quantities fell between the old and new
threshold amounts.”). If a defendant committed a “covered
offense” under section 404(a) and neither of the limitations in
section 404(c) apply, relief under section 404(b) is available
even if the Fair Sentencing Act did not modify the statutory
17
range for the specific drug quantity attributed to the defendant.
See Woodson, 962 F.3d at 817. The Government agrees that
relief cannot be made “unavailable to appellants under
[s]ection 404(b) because of the actual quantity of crack cocaine
involved in their offenses.” 28(j) Letter.
Likewise, the District Court was also incorrect to assume
that relief was available only if the Fair Sentencing Act would
have changed the Guidelines range, as determined by the
specific quantity attributed to a defendant. See White, 413 F.
Supp. 3d at 51. “Nothing in the text of the First Step Act
requires the Guidelines range to have changed for a court to
consider whether to reduce an aggregate term of
imprisonment.” United States v. Hudson, 967 F.3d 605, 611
(7th Cir. 2020); see also Jones, 962 F.3d at 1305 (remanding
because district court opinion was unclear “as to whether the
district court understood its authority to reduce [the
defendant’s] sentence below the revised guideline range”);
United States v. Beamus, 943 F.3d 789, 792 (6th Cir. 2019).
On the record before us in this case, the District Court
clearly had discretion to grant Appellants relief under section
404. The court may consider both judge-found and jury-found
drug quantities as part of its exercise of discretion. See United
States v. Ware, 964 F.3d 482, 488-89 (6th Cir. 2020). But the
court may not deem relief categorically unavailable due to
defendant-specific drug quantities.
18
D. The District Court’s Obligation to Exercise
Discretion with Respect to Motions Seeking a
Sentence Reduction Under Section 404
1. Exercising Discretion Under Remedial Statutes
Section 404 is clear as to when relief is permitted, but it
does not give precise directions as to when a motion for
reduced sentence should be granted. Instead, the First Step Act
gives the district court discretion to make the latter
determination. See First Step Act § 404(c) (“Nothing in this
section shall be construed to require a court to reduce any
sentence pursuant to this section.”). If a defendant is eligible
for a sentence reduction, “then the court faces the question of
whether it should reduce the sentence.” Hudson, 967 F.3d at
610 (citation omitted). The District Court has broad discretion
to assess motions for sentence reductions, but it is important to
note that the court does not have unfettered authority.
It is well understood that “[t]he deference afforded
discretionary decisions, even those that are largely
unconstrained by statutory language or judicial precedent, does
not mean that such decisions are ‘unfettered by meaningful
standards or shielded from thorough appellate review.’
Albemarle Paper Co. v. Moody, 422 U.S. 405, 416 (1975); see
also United States v. Taylor, 487 U.S. 326, 336 (1988). ‘In a
system of laws discretion is rarely without limits, even when
the statute [conferring it] does not specify any limits upon the
district courts’ discretion.’ Halo Elecs., Inc. v. Pulse Elecs.,
Inc., 136 S. Ct. 1923, 1931–32 (2016). ‘Without governing
standards or principles, . . . [statutes that seemingly grant open
ended discretion] threaten to condone judicial “whim” or
predilection.’ Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct.
1979, 1986 (2016). . . . And judicial discretion based on whim
is something our system does not tolerate. See Halo, 136 S. Ct.
19
at 1931. ‘[A] motion to a court’s discretion is a motion, not to
its inclination, but to its judgment; and its judgment is to be
guided by sound legal principles.’ Martin v. Franklin Capital
Corp., 546 U.S. 132, 139 (2005) (quoting United States v. Burr,
25 F.Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall,
C.J.)); see also Halo, 136 S. Ct. at 1932 (quoting Burr for the
same proposition); Taylor, 487 U.S. at 336 (same); Albemarle
Paper Co., 422 U.S. at 416 (same).” EDWARDS & ELLIOTT,
FEDERAL STANDARDS OF REVIEW 84-85 (3d ed. 2018) (first
through fourth and sixth alterations in original).
The Supreme Court has instructed that when a statute does
not specify any limits on the district court’s discretion, we must
look to the purpose of the statute to determine whether to
sustain the trial court judge’s exercise of discretion. A good
example of this is seen in the Court’s decision in Albemarle
Paper Co. v. Moody, 422 U.S. 405 (1975). In that case, the
district court judge found that the defendants had discriminated
against the plaintiffs in violation of Title VII of the Civil Rights
Act, and consequently granted injunctive relief. Id. at 408-09.
However, the court refused the plaintiffs’ request for backpay.
Id. at 410. The court of appeals reversed, holding that “a
plaintiff . . . who is successful in obtaining an injunction under
Title VII . . . should ordinarily be awarded back pay unless
special circumstances would render such an award unjust.” Id.
at 412 (citation omitted). Before the Supreme Court, the
petitioning defendants argued that the district court’s backpay
decision should not have been overturned, since “the statutory
scheme provides no guidance, beyond indicating that backpay
awards are within the District Court’s discretion.” Id. at 415.
Looking to the purpose of Title VII, its legislative history, and
analogous statutes, the Supreme Court rejected the defendants’
argument. Id. at 415-22. What the Court said in Albemarle
about discretionary authority is illuminating:
20
[The Court] concluded that “[t]he power to award
backpay was bestowed by Congress, as part of a
complex legislative design directed at a historic evil
of national proportions.” And the equitable nature of
the remedial power did not excuse the district court
from exercising it “in light of the large objectives of
the Act.” “Congress’ purpose in vesting a variety of
[remedial] discretionary powers in the courts was not
to limit appellate review of trial courts, or to invite
inconsistency and caprice, but rather to make possible
the fashioning of the most complete relief possible.”
“It follows,” the Court reasoned, “that, given a finding
of unlawful discrimination, backpay should be denied
only for reasons which, if applied generally, would
not frustrate the central statutory purposes of
eradicating discrimination throughout the economy
and making persons whole for injuries suffered
through past discrimination.”
EDWARDS & ELLIOTT, FEDERAL STANDARDS OF REVIEW 88
(citations omitted). We are obliged to follow the Court’s
guidance in Albemarle in setting guideposts for the District
Court’s exercise of discretion under the First Step Act.
2. The Purposes Underlying the Fair Sentencing Act
and the First Step Act
We believe that any review of a district court’s exercise of
discretion under the First Step Act must take into account
Congress’s purposes in passing the Fair Sentencing Act (which
reduced the 100-to-1 sentencing disparity between crack and
powder cocaine) and the First Step Act (which allows the
retroactive application of the modifications to penalties that
Congress enacted in the Fair Sentencing Act). First and
foremost, it is clear that “[t]he First Step Act is a remedial
21
statute intended to correct earlier statutes’ significant
disparities in the treatment of cocaine base (also known as
crack cocaine) as compared to powder cocaine.” United States
v. Wirsing, 943 F.3d 175, 176-77 (4th Cir. 2019).
Congress obviously meant to reduce sentencing disparities
in the federal courts. However, in passing the First Step Act,
“Congress [also] authorized the courts to provide a remedy for
certain defendants who bore the brunt of a racially disparate
sentencing scheme.” United States v. Chambers, 956 F.3d 667,
674 (4th Cir. 2020) (emphasis added). In other words,
“Congress intended to rectify disproportionate and racially
disparate penalties even where juries could have been asked to
find higher drug quantities.” Boulding, 960 F.3d at 782; see
also 164 CONG. REC. S7021 (daily ed. Nov. 15, 2018)
(statement of Sen. Dick Durbin) (describing the same bill as an
opportunity “to give a chance to thousands of people who are
still serving sentences for nonviolent offenses involving crack
cocaine under the old 100-to-1 rul[e] to petition individually”
for a sentencing reduction); 164 CONG. REC. S7764 (daily ed.
Dec. 18, 2018) (statement of Sen. Cory Booker) (“Making this
fix in this bill alone will mean that thousands of Americans
who have more than served their time will become eligible for
release, and it addresses some of the racial disparities in our
system because 90 percent of the people who will benefit from
that are African Americans; 96 percent are Black and Latino.”).
In short, the Fair Sentencing Act and First Step Act,
together, are strong remedial statutes, meant to rectify
disproportionate and racially disparate sentencing penalties. It
is not incongruous that the statutes offer the possibility of
remedial action for persons who were convicted of criminal
conduct. Congress determined that persons who are eligible for
sentence reductions under the First Step Act were likely
victims of unfair and racially discriminatory treatment in our
22
criminal justice system. Therefore, the affected defendants are
serving sentences that Congress now deems unfair. The First
Step Act “make[s] possible the fashion[ing] [of] the most
complete relief possible.” Albemarle, 422 U.S. at 421 (second
and third alterations in original) (citation omitted). This is no
small matter.
3. Reviewing an Exercise of Discretion Under
Section 404 of the First Step Act
Given the important goals of the statute, we agree with the
recent decision in the Seventh Circuit that “a district court may
consider all relevant factors when determining whether an
eligible defendant merits relief under the First Step Act.”
Hudson, 967 F.3d at 611. The court explained that:
the First Step Act authorizes a court to consider a
range of factors to determine whether a sentence
imposed is sufficient, but not greater than necessary,
to fulfill the purposes of § 3553(a). These include new
statutory minimum or maximum penalties; current
Guidelines; post-sentencing conduct; and other
relevant information about a defendant's history and
conduct.
Id. at 609 (citation omitted). We agree.
In particular, we strongly concur in the court’s holding that
“[t]he district court is authorized to consider . . . post-sentencing
conduct. The conduct is relevant to [Appellants’] criminal
history and characteristics; it is pertinent to the need for the
sentence imposed; and it can inform a court in carrying out its
duty to impose a sentence sufficient, but not greater than
necessary to comply with the sentencing purposes set forth in
§ 3553(a).” Id. at 613 (citing Shaw, 957 F.3d at 741); see also
23
18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United
States may receive and consider for the purpose of imposing an
appropriate sentence.”).
Every circuit court that has examined the issue has held
that a district court may, or must, consider the 18 U.S.C.
§ 3553(a) sentencing factors when passing on a motion for
relief under section 404 of the First Step Act. See, e.g.,
Boulding, 960 F.3d at 784; United States v. Easter, 975 F.3d
318, 323-26 (3d Cir. 2020); Jackson, 945 F.3d at 322 n.7.
Those factors include consideration of the defendant’s post-
sentencing behavior. See Hudson, 967 F.3d at 612. In a case
with a record of this complexity, we think it is especially
important that the District Court consider the section 3553(a)
sentencing factors when passing on a motion for relief under
section 404. In addition, “[w]hile district courts have wide
discretion in the First Step Act context, the resentencing
decision must be procedurally reasonable and supported by a
sufficiently compelling justification.” Boulding, 960 F.3d at
784 (citation omitted). Nothing less is sufficient to meet the
goals of the Fair Sentencing Act and the First Step Act to
provide a remedy for defendants who bore the brunt of a
racially disparate sentencing scheme.
4. Relevant Factors Not Addressed by the District
Court
In assessing Appellants’ motions for resentencing, the
District Court in this case focused primarily on the crimes that
Appellants committed almost 30 years ago. Their past
misdeeds are not irrelevant. Although criminal convictions are
a given in any motion for resentencing under section 404 of the
First Step Act, they are not the whole story.
24
Appellants raised several reasonable mitigation arguments
before the District Court in support of their motions for
sentence reductions. What they offered paints a very different
picture than the portrayal of Appellants in the District Court’s
opinion.
Appellant White was born to a 15-year-old mother who
suffered from drug addiction and was incarcerated during his
adolescence. Br. for Appellants at 7. His father had been in and
out of prison his entire life. Id. White was sentenced when he
was only 21. Id. at 13. He is now 47 years old and has been
imprisoned for 27 years. Id. While incarcerated, White has
earned his GED and taken more than 85 classes. App. 383-84.
He has had no disciplinary incidents in the past 4.5 years. See
App. 377. The District Court opinion found notable that
White’s disciplinary record included violent infractions, of
which “the most recent occur[ed] 10 years ago.” 413 F. Supp.
3d at 52 (citation omitted). Equally notable, in our view, is the
fact that Appellant has incurred no violent infractions in the
past ten years.
White also provided the District Court with numerous
letters of support from family, friends, and individuals that
White has mentored while in prison. See, e.g., App. 402
(describing how several incarcerated individuals felt that “if
they had met [White] in our society . . . his mentorship would
have changed their paths”); App. 404 (“We need men like
Antone back in our communities to do for others what he has
done for me; inspire me, uplift me, challenge me and never give
up.”); App. 399 (stating that White “consistently made himself
available to support” efforts to “teach[] effective conflict
resolution to youth and young adults”); App. 393 (explaining
that White “made an enormous impression” on two
incarcerated individuals and was “instrumental in helping them
25
obtain their GED’s”); App. 390 (offering to provide White with
“immediate employment, housing, and emotional support”
upon release).
Appellant Hicks’s parents disappeared when he was five
years old. Br. for Appellants at 8. Hicks was sentenced at the
age of 24. Id. at 15. He is now 50 years old and has been
imprisoned for 27 years. Id. at 16. Hicks has had no disciplinary
reports in the past 10 years and only five reports in total, none
involving drugs or violence. App. 612. He obtained his
paralegal certificate with an A+ average. App. 615. Hicks
submitted a letter to the court explaining that he “sincerely
cares about paying his debt to society” and “striv[es] to make
amends.” App. 609. To that end, Hicks and other incarcerated
individuals started an organization, Project D.A.D. (“Donate-
A-Dollar”) that raises money from inmates and gives it to the
community to “illustrate to the people in the community that
we care about the problems that they endure.” App. 619; Br.
for Appellants at 16.
Furthermore, Hicks has maintained strong relationships
with his family and friends, including with his wife. See App.
623-36; see also App. 632 (“Hicks has played an instrumental
role in my life and the lives of our Sons and that of our family
and close friends.”); App. 635 (“He has missed out on so much
of his life and I think it’s time for him to return home before
there is no family left.”). Hicks has tutored and mentored his
fellow inmates, acting as an important role model. See App.
624-630; see also App. 624-25 (explaining that Hicks was
“instrumental in helping to change [a fellow inmate’s] life” and
that “EVERYONE looks up to [Hicks] as a role model”); App.
625 (“If anyone has completely changed and turned their life
around and deserves a second chance I would vote Eric Hicks,
even before myself.”); App. 629 (describing how Hicks
26
volunteered to teach a GED tutoring program “on his days off
of work”).
The District Court’s opinion fails to mention any of this
evidence. Nor did the court hold a hearing on Appellants’
motions for relief. We therefore have no indication that the
court considered the extensive mitigation arguments presented
by Appellants.
5. Remand to the District Court
The District Court misunderstood the legal requirements
governing review of motions for reduced sentences under
section 404(b) of the First Step Act. In addition, the record is
unclear whether the court took account of all factors that are
relevant to Appellants’ motions for reduced sentences.
Therefore, we are constrained to reverse the judgement of the
District Court and remand for new proceedings.
The District Court held that even though Appellants were
“eligible” for relief under section 404(a), relief was not
“available” under section 404(b), except as to Hicks’s sentence
for Count 11. White, 413 F. Supp. 3d at 48-51. The court
determined relief was “available” as to Count 11 because, using
judge-found drug quantities, the statutory penalties for that
count would have been modified by section 2 of the Fair
Sentencing Act. See id. at 51. As explained above, section
404(b) contains no “availability” requirement. Relief may be
awarded to defendants so long as their offenses are “covered”
under section 404(a) and neither of the limitations in section
404(c) apply. The District Court therefore erred as a matter of
law in its judgment.
The District Court also erred in weighing Appellants’
claims because the court referenced only judge-found drug
27
quantities and failed to mention the jury-found drug quantities.
White, 413 F. Supp. 3d at 51-52. Given the District Court’s
mistaken holdings regarding judge-found drug quantities and
the “availability” of relief, it is unclear whether the court
understood that jury-found drug quantities may properly be
considered in weighing Appellants’ requests for relief under
section 404. On remand, the District Court may properly
consider both judge-found and jury-found drug quantities as
part of its exercise of discretion. See Ware, 964 F.3d 482 at
488-89 (holding that both judge- and jury-found quantities may
be considered in exercising discretion under section 404(b)).
The parties agree that the District Court should give proper
consideration to the sentencing factors outlined in 18 U.S.C.
§ 3553(a) in assessing Appellants’ motions for reduced
sentences. See White, 413 F. Supp. 3d at 49; Br. for Appellants
at 47-48; Br. for Appellee at 31. We agree that the court must
do this on remand.
The District Court’s opinion makes no reference to the
extensive mitigating evidence offered by Appellants. Compare
White, 413 F. Supp. 3d at 51-52, with App. 375-80, 383-418,
477-81, 601-05, 608-36, 689-90. And the court did not hold a
hearing on Appellants’ motion for relief, see App. 84, so we
have no hearing transcript to consult. Because we cannot
determine whether the District Court gave any consideration to
the mitigating evidence presented by Appellants, the case must
be remanded. See Shaw, 957 F.3d at 740-42 (remanding
because district court did not provide sufficient explanation for
its alternative holding to deny discretionary relief, where
opinion did not address evidence of post-sentencing conduct
and no hearing transcript was available); see also Pepper v.
United States, 562 U.S. 476, 491 (2011) (explaining that
“evidence of postsentencing rehabilitation may be highly
relevant to several of the § 3553(a) factors”); Chambers, 956
28
F.3d at 674; United States v. Allen, 956 F.3d 355, 357 (6th Cir.
2020).
The District Court must also base its determinations on
accurate factual findings. The District Court’s opinion appears
to rely on clearly erroneous evidence in weighing Hicks’s
request for relief. See Gall, 552 U.S. at 51 (holding that reliance
on a clearly erroneous factual finding at sentencing constitutes
an abuse of discretion). The District Court’s opinion states that
Hicks’s sentence enhancement for obstruction of justice was
due to Hicks “bribing another First Street Crew member to
withhold information from the grand jury that was
investigating him [i.e., Hicks] for murder.” White, 413 F. Supp.
3d at 52; accord id. at 25. It is unclear from the opinion whether
the District Court mistakenly believed that Hicks was
investigated for committing murder or instead for inappropriate
involvement in a murder investigation. See Reply to Gov’t’s
Opp’n to First Step Act Mot. 18 n.7, App. 688 (“[The]
obstruction of justice enhancement was based on testimony
from Michael Jackson that Mr. Hicks offered to provide him
with cocaine and pay his rent if he did not disclose information
to a grand jury investigating the murder of Gregory Jackson.”).
Given the uncertain state of the record in this case, we are
constrained to remand. See Chavez-Meza, 138 S. Ct. at 1965
(“If the court of appeals considers an explanation inadequate in
a particular case, it can send the case back to the district court
for a more complete explanation.”). The District Court is
required to give due consideration to all relevant factors in
weighing Appellants’ requests for relief under section 404. It is
crucially important that this be done in cases arising under the
First Step Act, a remedial statute that was enacted to rectify
disproportionate and racially disparate sentencing penalties.
Because we have no assurance that this happened in this case,
we remand for further consideration.
29
III. CONCLUSION
For the foregoing reasons, we reverse the District Court’s
order and remand the case so that the District Court may
exercise its discretion under section 404 of the First Step Act
as to both Appellants.