United States v. James Murphy

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 20-1411

UNITED STATES OF AMERICA

v.

JAMES E. MURPHY, a/k/a JIMMY MURPHY,
a/k/a BLACK,

Appellant

Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal Action No. 1-08-cr-00433-001)
District Judge: Honorable John E. Jones, III

Argued November 17, 2020

Before: AMBRO, BIBAS, and ROTH, Circuit Judges

(Opinion filed: May 27, 2021)
John F. Yaninek (Argued)
Thomas Thomas & Hafer
225 Grandview Avenue
Fifth Floor
Camp Hill, PA 17101

Counsel for Appellant

Daryl F. Bloom
Stephen R. Cerutti, II (Argued)
Eric Pfisterer
Office of United States Attorney
Middle District of Pennsylvania
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

Counsel for Appellee

OPINION OF THE COURT

AMBRO, Circuit Judge

In United States v. Easter, 975 F.3d 318 (3d Cir. 2020),
we established two goalposts concerning the scope of
resentencings under the First Step Act of 2018, Pub. L. No.
115-391, § 404(b), 132 Stat. 5194, 5222. We first held that a
district court must consider the sentencing factors in 18 U.S.C.
§ 3553(a) anew at resentencing. Id. at 324. But we also held
that the First Step Act does not “entitle[]” a defendant “to a

2
plenary resentencing hearing at which he would be present.”
Id. at 326. This case requires us to explore the space between
the uprights.

Defendant-appellant James Murphy was convicted of
two counts of distribution and possession of heroin and
cocaine, and the District Court sentenced him to the mandatory
minimum of 360 months’ imprisonment. This sentence was
based in part on the quantity of drugs attributed to him and his
designation as a career offender. He later sought a sentence
reduction under the First Step Act, arguing that the District
Court should reconsider both aspects of his initial sentence. It
declined, and Murphy appeals to us.

The District Court correctly refused to reconsider
Murphy’s attributable drug amounts. But because Murphy was
entitled to an accurate calculation of the Guidelines range at
the time of resentencing, we still need to know whether he
qualified for the career-offender enhancement based on the law
as it stood at resentencing. We therefore vacate his sentence
and remand for the Court to reconsider it.

I. BACKGROUND

In 2009, a federal jury convicted Murphy on two counts:
(1) conspiracy to distribute and possess with the intent to
distribute heroin and 50 grams or more of cocaine base,1 under

1
“Cocaine base” is cocaine in its chemically basic form (e.g.,
crack cocaine, coca paste, and freebase), as opposed to cocaine
hydrochloride (cocaine powder). DePierre v. United States,
564 U.S. 70, 74 (2011). The primary difference is that the body

3
21 U.S.C. § 846; and (2) distribution and possession with the
intent to distribute heroin and 50 grams or more of cocaine
base, under 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). The jury
specifically found that the weight of the cocaine base
attributable to Murphy on both counts was 50 grams or more,
which triggered the highest mandatory minimum sentence at
the time. Each count carried a mandatory minimum sentence
of 10 years’ imprisonment and a maximum sentence of life.

At sentencing, the Probation Office “conservatively
estimated” that Murphy was personally responsible for 595
grams of crack cocaine and 24 grams of heroin. PSR ¶ 12. It
also concluded that Murphy qualified for a career-offender
enhancement based on prior convictions in Maryland for
robbery and second-degree assault. Taking the career-offender
designation into account, Probation calculated Murphy’s final
offense level as 37 with a category VI criminal history. Based
on that calculation, the applicable Guidelines sentencing range
was 360 months to life. The District Court ultimately
sentenced Murphy to 360 months on each count, to be served
concurrently, and five years’ supervised release.

In 2019, Murphy moved for resentencing under Section
404(b) of the First Step Act. Probation filed an addendum to
the presentence report (“PSR”) decreasing Murphy’s
Guidelines sentencing range to 262–327 months, but that
calculation preserved the previously attributed drug amounts
and the career-offender designation from Murphy’s initial
sentencing. Murphy objected to both the drug amounts and the
career-offender designation. As for the former, Murphy

absorbs cocaine base more quickly, thus “producing a shorter,
more intense high” than other forms of cocaine. Id.

4
argued that the jury had only specifically found that he was
responsible for 50 grams of cocaine base instead of the 595
grams in the PSR. And as to the career-offender designation,
Murphy contended that his Maryland second-degree assault
convictions were no longer predicates for career-offender
status under intervening Fourth Circuit precedent.

The District Court overruled both objections,
concluding that the First Step Act did not permit
reconsideration of either factor on resentencing. However, it
acknowledged that Murphy would not have qualified for the
career-offender designation in a de novo sentencing. Thus,
although it declined to remove formally the career-offender
status, the Court varied downward from the Guidelines range
and sentenced Murphy to 210 months’ imprisonment—the
high end of the range if the career-offender designation had
been formally removed. Murphy now appeals to us.

II. ANALYSIS2

As with all First Step Act cases, we start with the Fair
Sentencing Act of 2010. That Act aimed to lessen sentencing
disparities between convictions involving crack cocaine and
convictions involving powder cocaine. United States v.
Jackson, 964 F.3d 197, 200 n.2 (3d Cir. 2020). It did this by,

2
The District Court had jurisdiction over the initial criminal
proceeding under 18 U.S.C. § 3231. It had jurisdiction to
consider Murphy’s request for a sentence reduction under 18
U.S.C. § 3582(c)(1)(B) and Section 404 of the First Step Act
of 2018, Pub. L. No. 115-391, 132 Stat. 5194, 5222. We have
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a).

5
among other things, increasing the amount of crack cocaine
necessary to trigger higher statutory minimum sentences
(Section 2) and eliminating mandatory minimums for simple
possession (Section 3). Fair Sentencing Act of 2010, Pub. L.
No. 111-220, §§ 2, 3, 124 Stat. 2372, 2372; see also Dorsey v.
United States, 567 U.S. 260, 264 (2012). These changes meant
more sentencing discretion for district court judges.

The First Step Act made certain provisions of the Fair
Sentencing Act retroactive. Section 404(b) of the former
provides that a trial court that has previously sentenced a
criminal defendant for certain “covered offenses” may, on
motion of the defendant or others, “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 of 2018, Pub. L. No. 115-391, § 404(b), 132 Stat.
5194, 5222. We recently observed that the Act “does not
guarantee anyone a lower sentence”—it merely allows “an
eligible prisoner to ask the court for a shorter one.” United
States v. Hart, 983 F.3d 638, 639 (3d Cir. 2020). Here, the
Government does not dispute that Murphy was convicted of a
“covered offense” entitling him to a First Step Act resentencing
under § 404. The parties disagree only whether the District
Court must have reconsidered Murphy’s attributable drug
amounts and career-offender status during that proceeding.

We have previously said that we typically review the
denial of a request for sentencing modification under the First
Step Act for abuse of discretion. See Easter, 975 F.3d at 322.
But where, as here, a district court’s decision rests on a pure
question of law, our review is de novo. United States v. Birt,
966 F.3d 257, 259 n.2 (3d Cir. 2020).

6
 A. Attributable Drug Amounts

Murphy first argues that the District Court should have
reconsidered the drug quantity attributable to his offenses at
resentencing. However, he does not assert that the Court made
any factual errors for the drug quantity.3 Instead, he contends
that the jury’s drug-quantity findings are insufficient to support
his sentence under Alleyne v. United States, 570 U.S. 99
(2013).4
In Alleyne, the Supreme Court held that “[a]ny fact that
increases the mandatory minimum is an ‘element’ that must be
submitted to the jury” and found beyond a reasonable doubt.
Id. at 103. This means that a jury must find, beyond a
reasonable doubt, any drug quantities that increase the
mandatory minimum punishment. See Birt, 966 F.3d at 262.
The jury here found Murphy responsible for 50 grams or more
of cocaine base, while he was sentenced based on the 595
grams of cocaine base noted in the PSR. At the time of his

3
The parties disagree on whether Murphy objected to the drug
quantity at his initial sentencing, but our conclusion would not
change even if he had objected.
4
Murphy also makes several less compelling arguments. For
instance, he argues that § 401 of the First Step Act
contemplates a fresh resentencing based on its legislative
history. But he was eligible for resentencing under § 404, not
§ 401. And § 401 applies only to offenses that predate the Act
for which a sentence has not yet been imposed. See First Step
Act of 2018, Pub. L. No. 115-391, § 401(c), 132 Stat. 5194,
5221. We are not persuaded that the purposes behind § 401
transpose to § 404, particularly in light of our holding in Easter
that § 404 resentencings are not entirely new. See 975 F.3d at
326.

7
trial, a 50-gram finding triggered the highest possible
mandatory minimum; however, the Fair Sentencing Act later
increased that threshold from 50 grams to 280 grams. See
Dorsey, 567 U.S. at 269.

At the outset, Murphy does not explain how Alleyne
changes the outcome in his case, as it appears his conviction
complied fully with Alleyne under the mandatory minimum
thresholds in place at that time. But even assuming he has a
plausible explanation, it is unpersuasive for at least two
reasons. First, in United States v. Jones, the Eleventh Circuit
held that a resentencing court “is bound by a previous finding
of drug quantity that could have been used to determine the
movant’s statutory penalty at the time of sentencing,”
including findings by a district court instead of a jury. 962 F.3d
1290, 1303 (11th Cir. 2020). The Court observed that Alleyne
requires specific factual findings when those findings increase
a defendant’s sentence. Id. at 1303–04; see also Alleyne, 570
U.S. at 103 (“[A]ny fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury.
(emphasis added)). But under the First Step Act a district court
may only decrease the sentence or leave it as is. See First Step
Act § 404(b), 132 Stat. 5194, 5222 (providing that a court
“may . . . impose a reduced sentence”); see also Jones, 962
F.3d at 1303. We are thus persuaded that Alleyne has nothing
to say about First Step Act proceedings because there is no
danger that a defendant’s sentence will increase on
resentencing.

Second, § 404(b) of the First Step Act provides that a
trial court that has previously sentenced a defendant may, on
the defendant’s motion, “impose a reduced sentence as if
sections 2 and 3 of the Fair Sentencing Act . . . were in effect

8
at the time the covered offense was committed” (emphasis
added). In Easter we interpreted this language to mean that
First Step Act does not “entitle[]” a defendant “to a plenary
resentencing hearing at which he would be present.” 975 F.3d
at 326. In so doing, we joined the “clear consensus among our
sister circuits” that a First Step Act resentencing is not a “let’s
start all over.” See id. (citing cases from the 5th, 6th, 9th, and
11th Circuits for this general proposition). This is because the
“as if” provision in § 404(b) permits a district court to consider
only the effect of sections 2 and 3 of the Fair Sentencing Act
on the defendant’s sentence. See United States v. Moore, 975
F.3d 84, 91 (2d Cir. 2020).

As we discuss in the following section, a court is still
“imposing” a sentence, and it must therefore apply the
§ 3553(a) factors as they stand at the time of resentencing.
Easter, 975 F.3d at 326 (quoting United States v. Hegwood,
934 F.3d 414, 418–19 (5th Cir. 2019)). This new assessment
must include any new, relevant facts that did not exist, or could
not reasonably have been known by the parties, at the time of
the first sentencing (e.g., a defendant’s post-sentencing
rehabilitation or new health problems). Id. at 327. But the
resentencing court cannot reach beyond those circumstances to
reconsider the facts as they stood at the initial sentencing. Such
an approach would make “as if,” and what follows, in § 404(b)
superfluous. Plus, the Easter Court’s holding concerning the
limited nature of First Step Act proceedings would ring hollow.
See Easter, 975 F.3d at 326.

We thus join the Eleventh Circuit in holding that a
district court is “bound by a previous finding of drug quantity
that could have been used to determine the movant’s statutory

9
penalty at the time of sentencing.”5 Jones, 962 F.3d at 1303.
Hence the District Court in our case did not err by not
reconsidering Murphy’s previous drug-quantity findings.

B. Career-Offender Enhancement

Murphy next argues that the District Court failed to
reconsider his career-offender designation. He stresses that,
after his initial sentencing, the Fourth Circuit determined that
second-degree assault convictions under Maryland law no
longer qualify as predicate offenses to support career-offender
status.6 See United States v. Royal, 731 F.3d 333, 342 (4th Cir.
2013). Murphy thus contends that the District Court should
have recalculated the Guidelines range—which would include
a reconsideration of his career-offender designation in light of
the Fourth Circuit’s intervening decision—on resentencing.

5
We do not intend to suggest that a resentencing court may
never revisit a defendant’s attributable drug quantity. We hold
only that a resentencing court may not do so if the relevant facts
are those depended on by the district court at the first
sentencing.
6
A defendant is a career offender if: (1) he was at least eighteen
years old on the date of the current offense; (2) it is “a felony
that is either a crime of violence or a controlled substance
offense”; and (3) he has at least two previous felony offenses
that are either crimes of violence or controlled substance
offenses. U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S.
Sentencing Comm’n 2020). Murphy’s current offense was a
controlled-substance crime, and two of his three previous
offenses for second-degree assault under Maryland law were
considered crimes of violence at the time of his sentencing. See
Royal, 731 F.3d at 342.

10
 The Government concedes that Maryland second-
degree assaults no longer count toward a defendant’s career-
offender designation. It maintains, however, that the District
Court did not err when it did not reconsider Murphy’s career-
offender status on resentencing. The text of the First Step Act,
the Government posits, permits a resentencing court to
consider only how the Fair Sentencing Act affects the
defendant’s sentence. In other words, a district court
conducting a First Step Act resentencing is limited to
“considering a single changed variable”—the retroactivity of
the minimum sentences in sections 2 and 3 of the Fair
Sentencing Act. Government’s Br. at 14 (quoting and citing
United States v. Kelley, 962 F.3d 470, 478 (9th Cir. 2020)).

But, here again, Easter controls. We considered there
whether a district court must apply the sentencing factors set
out in 18 U.S.C. § 3553(a) when imposing a reduced sentence
under the Act. Easter, 975 F.3d at 320. Despite our holding
that the defendant was not entitled to a fresh resentencing
hearing, we ruled that the court must consider the sentencing
factors anew. Id. at 323. We observed that § 3553(a) requires
a district court to consider the statutory factors whenever the
court is “imposing a sentence.” Id. at 324; see also 18 U.S.C.
§ 3582(a) (providing that a court “impos[ing]” a term of
imprisonment “shall consider the factors set forth in section
3553(a) to the extent that they are applicable” (emphasis
added)). Further, § 404(b) uses nearly identical language to
describe its resentencing proceedings, as it gives initial
sentencing courts the power to “impose a reduced sentence”
under the Fair Sentencing Act. Easter, 975 F.3d at 324. We
thus recognized that the text of the First Step Act does more
than the Government suggests here—it requires courts to

11
reconsider fully the § 3553(a) factors on resentencing,
including any relevant facts that did not exist at the first
sentencing. Id. at 325–26, 327. In this context, the
Government’s position cabins too closely what can be
considered at resentencing.

In so holding, we again join the Sixth Circuit’s
conclusion that a resentencing under § 404(b) “includes an
accurate calculation of the amended guidelines range at the
time of resentencing and a thorough renewed consideration of
the § 3553(a) factors.” Id. at 325–26 (emphasis added)
(quoting United States v. Boulding, 960 F.3d 774, 784 (6th Cir.
2020)). Indeed, one of the § 3553(a) factors is the applicable
Guidelines sentencing range. See 18 U.S.C. § 3553(a)(4)(A).
It stands to reason, then, that a “renewed consideration of the
§ 3553(a) factors” must include an accurate Guidelines
calculation “at the time of resentencing.” See Easter, 975 F.3d
at 325–26. In Murphy’s case, this means the District Court had
to consider whether Murphy qualified as a career offender at
that time.

This approach aligns with the broader principles of
federal sentencing that we held applied to § 404 proceedings in
Easter. Section § 3553(a) demands that a district court
“impose a sentence sufficient, but not greater than necessary,
to comply with the purposes” set out in § 3553(a)(2). See
Pepper v. United States, 562 U.S. 476, 491 (2011). Those
purposes include “the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense,” as well as
“to protect the public from further crimes of the defendant.” 18
U.S.C. § 3553(a)(2)(A), (C). As the Seventh Circuit explained
in an analogous context, a change in the applicable Guidelines

12
range “may reflect updated views about the seriousness of a
defendant’s offense or criminal history.” United States v.
Hudson, 967 F.3d 605, 612 (7th Cir. 2020) (holding that a
district court may resentence a defendant under § 404 “with an
eye toward current Guidelines” when the Sentencing
Commission removed the defendant’s burglary convictions
from the list of predicate offenses for a career-offender
designation) (internal quotation marks omitted). Put
differently, a district court potentially could impose a sentence
“greater than necessary,” in violation of § 3553(a), if it does
not accurately calculate the Guidelines range at resentencing.
And an accurate calculation necessarily includes a correct
determination of whether the defendant is a career offender at
that time.7 Cf. United States v. White, 984 F.3d 76, 90 (D.C.

7
In support of his argument, Murphy also urges us to follow
the path of the Fourth Circuit in United States v. Chambers,
956 F.3d 667 (4th Cir. 2020). While our holding appears
similar to that in Chambers, it rests on different grounds. The
Chambers Court held that a district court must reconsider a
defendant’s career-offender enhancement in a First Step Act
resentencing, but it emphasized that the intervening case law
removing the defendant’s career-offender designation was
retroactive. See id. at 672–73. We do not adopt the Chambers
Court’s approach here, as nothing in the § 3553(a) factors
supports a distinction between retroactive and non-retroactive
changes to the applicable Guidelines range. We similarly do
not adopt the Tenth Circuit’s reasoning in United States v.
Brown, 974 F.3d 1137, 1139–40 (10th Cir. 2020), as that
decision rested on the Court’s view that the intervening law
“clarifie[d],” rather than “amend[ed],” the career-offender
provision at issue. What occurred here is a change in law, not
the refining of a prior understanding.

13
Cir. 2020) (endorsing the Seventh Circuit’s view that a district
court may consider current Guidelines ranges in a § 404
resentencing); United States v. Harris, 960 F.3d 1103, 1106
(8th Cir. 2020) (holding that, though a district court is not
required to apply current Guidelines, “the § 3553(a) factors in
[a] First Step Act sentencing may include consideration of the
defendant’s advisory range under the current guidelines”).

We are mindful that several of our sister circuits have
taken the opposite approach. See, e.g., United States v.
Concepcion, 991 F.3d 279, 290 (1st Cir. 2021) (holding that “a
district court may, but need not, consider section 3553 factors”
in a First Step Act resentencing, including changes to the
defendant’s Guidelines sentencing range (internal quotation
marks omitted)); Moore, 975 F.3d at 92 (holding that the First
Step Act “does not obligate a district court to recalculate an
eligible defendant’s Guidelines range,” including
reconsideration of a career-offender enhancement); United
States v. Moore, 963 F.3d 725, 727 (8th Cir. 2020) (“In the
First Step Act, Congress does not mandate that district courts
analyze the section 3553 factors for a permissive reduction in
sentence.”); United States v. Denson, 963 F.3d 1080, 1089
(11th Cir. 2020) (holding that a district court “is not free to
change the defendant’s original guidelines calculations that are
unaffected by” the Fair Sentencing Act); United States v.
Kelley, 962 F.3d 470, 475–76 (9th Cir. 2020) (holding that a
sentencing court may not “consider other legal changes that
may have occurred after the defendant committed the offense,”
including intervening case law that would remove a
defendant’s career-offender enhancement); United States v.
Hegwood, 934 F.3d 414, 419 (5th Cir. 2019) (holding that the
First Step Act does not permit district courts to recalculate the
Guidelines range, including any changes to the career-offender

14
designation, on resentencing). These decisions largely rest on
three distinct arguments, none of which persuades us.

First, most other circuits to address this issue have
adopted the Government’s current argument that the text of the
First Step Act permits the resentencing court to alter only the
“single variable” of applying sections 2 and 3 of the Fair
Sentencing Act retroactively. Kelley, 962 F.3d at 475; see also
Moore, 975 F.3d at 91; Hegwood, 934 F.3d at 418. But we
necessarily rejected this narrow approach in concluding that
the language in § 404(b) requires district courts to consider
fresh the § 3553(a) sentencing factors based on the relevant
post-conviction facts as they stand at the time of resentencing.
See Easter, 975 F.3d at 325–27. As we have explained,
Congress did not “legislat[e] on a blank slate” when it used the
term “impose” in the First Step Act. Id. at 324 (quoting United
States v. Rose, 379 F. Supp. 3d 223, 233 (S.D.N.Y. 2019)).
While the “as if” language read in isolation may permit only
the consideration of a single changed variable, Congress did
not use that provision in a vacuum. Instead, it chose to pair it
with a sentencing term of art that already has its own well-
established meaning. But see Moore, 975 F.3d at 91
(concluding that “impose” in § 404(b) does not have the same
meaning as “impose” in § 3553 because Congress used the
term in the former in conjunction with the “as if” language).
As with any statute, § 404(b) comes to us as a whole, and we
do not leave out unchanged meanings long accorded other parts
of that whole. See United States v. Atl. Rsch. Corp., 551 U.S.
128, 135 (2007).

Second, at least two of our sister circuits have drawn an
analogy between First Step Act proceedings and those under
18 U.S.C. § 3582(c)(2). See Kelley, 962 F.3d at 478; Hegwood,

15
934 F.3d at 418. The latter directly authorizes a court to
“reduce” a defendant’s sentence “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission.” In Dillon v. United States, 560 U.S. 817, 831
(2010), the Supreme Court held that a defendant could not seek
to correct other errors in his sentence under that section beyond
any changes in the applicable Guidelines ranges. Our sister
circuits have applied Dillon by analogy to First Step Act
proceedings, seizing on the facial similarity between “reduce”
in § 3582(c)(2) and “impose a reduced sentence” in § 404(b).
They reason that “congressional authorization to reduce a term
of imprisonment does not necessarily carry with it
authorization to correct any errors in the original sentencing
proceeding.” Kelley, 962 F.3d at 478.

We agree with this proposition in general—
congressional authorization to reduce a sentence is not
unbounded. We must look to the text of the authorizing statute.
But for us a First Step Act proceeding falls not under
§ 3582(c)(2), but § 3582(c)(1)(B), which permits a court to
“modify an imposed term of imprisonment to the extent
otherwise expressly permitted by statute . . . .” See Easter, 975
F.3d at 323. That provision looks to other statutes to authorize
and limit any modification proceedings under it. See United
States v. Chambers, 956 F.3d 667, 671 (4th Cir. 2020) (noting
that we must “look to the underlying statute” to determine the
extent of a modification under § 3582(c)(1)(B)). And in this
context, the other statute that authorizes and limits
modifications under § 3582(c)(1)(B) is § 404(b). Hence the
relevant statutory text here is § 3582(c)(1)(B) as informed by
§ 404(b), not § 3582(c)(2).

16
 This matters because the language of § 3582(c)(2) —the
only relevant statutory text in Dillon—differs significantly
from that of § 3582(c)(1)(B) and § 404(b). Section 3582(c)(2)
permits a district court to “reduce” a defendant’s sentence
based on a changed Guidelines range. This is a specific,
limited function. Indeed, as the Dillon Court noted, the
Sentencing Commission’s policy statement on subsection
(c)(2) specifically directs a district court to “leave all other
guideline application decisions,” besides the changed
Guidelines range, “unaffected.” Dillon, 560 U.S. at 831
(quoting U.S. Sentencing Guidelines Manual § 1B1.10(b)(1)).

But § 3582(c)(1)(B) does not provide any similar
limitations, providing only that a district court may “modify” a
previously imposed sentence “to the extent otherwise expressly
permitted by statute.” We thus look to § 404(b), which permits
explicitly a court to “impose a reduced sentence as if section 2
and 3 of the Fair Sentencing Act” applied. And again, we held
in Easter that “impose” is a term of art that we assume
Congress used on purpose. See 975 F.3d at 324–25. Thus,
while “congressional authorization to reduce a term of
imprisonment does not necessarily carry with it authorization
to correct” all errors, Kelley, 962 F.3d at 478 (emphasis added),
the authorization at issue here is broader than that in Dillon.
Section 404(b) authorizes district courts to take into account,
at the time of resentencing, any changed circumstances made
relevant by § 3553(a). Our take is that the outcome in Dillon
was “grounded in” the distinct text of § 3582(c)(2) and
therefore does not control the outcome for § (c)(1)(B). See
Chambers, 956 F.3d at 671 (quoting United States v. Wirsing,
943 F.3d 175, 185 (4th Cir. 2019), as amended (Nov. 21,
2019)).

17
 Third, we acknowledge that our interpretation of
§ 3582(c)(1)(B) allows only a “limited class” of offenders to
benefit from intervening changes in the law. Kelley, 962 F.3d
at 478. But the First Step Act necessarily singles out this class
to benefit from subsequent changes in the law, including the
Fair Sentencing Act, because the class initially “bore the brunt
of a racially disparate sentencing scheme.” See White, 984
F.3d at 91. And, as the Second Circuit observed, the First Step
Act aimed to “eliminate unwarranted sentencing disparities.”
United States v. Davis, 961 F.3d 181, 191 (2d Cir. 2020). Thus,
“if it is unfair to afford some pre-Fair Sentencing Act
defendants a procedural opportunity that is unavailable to
similar post-Fair Sentencing Act defendants,” it would be
inconsistent with the First Step Act’s “overarching purposes to
solve that problem by ‘leveling down’—that is, by withholding
the opportunity from everyone alike.” Id.; see also United
States v. Brown, 974 F.3d 1137, 1146 (10th Cir. 2020). In any
case, Easter bars this approach by requiring a new Guidelines
range calculation at resentencing.

We emphasize that nothing in our holding today
constrains a district court’s discretion to depart or vary from
the Guidelines range as it sees fit. See Beckles v. United States,
137 S. Ct. 886, 894 (2017) (noting that the Guidelines “merely
guide the district courts’ discretion”). As the permissive
language in § 404(b) indicates, a sentencing court is free to
consider a defendant’s changed career-offender status and still
retain his previously imposed sentence. See Easter, 975 F.3d
at 327 (noting that § 404(b) permits, but does not require, a
district court to impose a reduced sentence). But the court must
begin from an accurate starting point—the proper Guidelines
range—in making that determination. See id. (holding that a
district court “must consider the factors Congress has

18
prescribed to provide assurance that it is making an
individualized determination” (emphasis added) (internal
quotation marks omitted)).

Finally, some of our sister circuits have assumed that
any proceeding that permits or requires a district court to
consider the § 3553(a) factors anew is necessarily a “plenary”
resentencing in violation of the limiting language in § 404(b).
See, e.g., Moore, 975 F.3d at 90, 91; Kelley, 962 F.3d at 477;
Hegwood, 934 F.3d at 415, 418. But as our twin holdings in
Easter demonstrate, this is a false dichotomy. A district court
may not reach beyond the § 3553(a) factors to reexamine, for
example, factual disputes that could have been raised at the
defendant’s initial sentencing. But the court must make “an
accurate calculation of the amended guidelines range at the
time of resentencing,” which includes a fresh inquiry into
whether the defendant qualifies as a career offender. See
Easter, 975 F.3d at 325. The District Court therefore needed
to reconsider formally Murphy’s career-offender status.8

C. Harmless-Error Analysis

The Government last argues that even if the District
Court erred in failing to reconsider Murphy’s career-offender
designation, any error was harmless. With the career-offender
designation, Murphy’s Guidelines range was 262–327 months;
without it, his range would decrease to 168–210 months.

8
We note that, although the Government conceded on appeal
that Murphy’s second-degree assault charges no longer qualify
as predicate offenses, we do not reach the ultimate issue of
whether Murphy still qualifies as a career offender. We leave
that issue for the District Court to consider on remand.

19
Although the District Court ruled that it could not formally
reconsider Murphy’s career-offender designation, it varied
downward and sentenced Murphy to 210 months “based on
what [defense counsel] has sort of glibly indicated as a fake
career offender designation.” App. at 35. The Court thus
sentenced Murphy within the Guidelines range that would have
applied had he been a career offender.

But an error in this context is harmless only if “it is
highly probable that the error did not prejudice the defendant.”
United States v. Langford, 516 F.3d 205, 215 (3d Cir. 2008)
(internal quotation marks omitted). And something is highly
probable only when “the court possess[es] a sure conviction.”
Id. (internal quotation marks omitted). Although the District
Court technically sentenced Murphy within the Guidelines
range for non-career offenders, we do not have a sure
conviction that the career-offender sentencing range failed to
“affect the sentence actually imposed.” Id. at 216; see also
Molina-Martinez v. United States, 136 S. Ct. 1338, 1345
(2016) (“When a defendant is sentenced under an incorrect
Guidelines range—whether or not the defendant’s ultimate
sentence falls within the correct range—the error itself can, and
most often will, be sufficient to show a reasonable probability
of a different outcome absent the error.”). Thus we cannot say
the error here was harmless, and we must ask the Court to
reconsider Murphy’s sentence on remand.

* * * * *

Our decision today does no more than navigate the
goalposts set by our decision in Easter. On one hand, the First
Step Act does not permit a district court to conduct a plenary
resentencing. Easter, 975 F.3d at 326. The District Court in

20
this case correctly declined to reconsider a previous drug-
quantity finding. But, on the other hand, the Act requires a
court to “impose” a sentence in accord with the § 3553(a)
sentencing factors as they stand at the time of resentencing. Id.
at 327. That means a recalculation that reconsiders Murphy’s
career-offender designation. We therefore vacate Murphy’s
sentence and remand the case to the District Court for further
proceedings consistent with this opinion.

21
BIBAS, Circuit Judge, dissenting.
Sentences are usually final. Congress has the power to
make exceptions to finality; courts should heed their scope. In
the First Step Act, Congress authorized district courts to reduce
sentences “as if sections 2 and 3 of the Fair Sentencing Act of
2010 … were in effect at the time” of the crime. § 404(b). So a
court must update the Guidelines range to reflect these new
statutory punishments. On that, my colleagues and I agree. But
they go further, holding that the resentencing court must also
update that range to reflect other changes in law. That is more
than Congress said.
We are late to the circuit split. All eleven other circuits have
taken sides in a three-way conflict. Three have held that a dis-
trict court cannot recalculate the defendant’s range from
scratch; it can only factor in the new statutory punishments.
Hegwood, 934 F.3d at 418–19; Kelley, 962 F.3d at 477–78;
Denson, 963 F.3d at 1089 (alternative holding). Three have
held that it must recalculate the range based on current law. See
Chambers, 956 F.3d at 672, 675; Boulding, 960 F.3d at 784–
85; Brown, 974 F.3d at 1144–45. And five more have said that
it can consider a fully updated range but need not. Concepcion,
991 F.3d at 290; Moore, 975 F.3d at 92 & n.36; Hudson, 967
F.3d at 611–12; White, 984 F.3d at 90 (dictum); Harris, 960
F.3d at 1106 (same). The Majority joins the second group. But
the Act directs us to the third.
 I. NO STATUTE REQUIRES REDOING THE
DEFENDANT’S GUIDELINES RANGE FROM SCRATCH

A sentence is part of a “final judgment.” 18 U.S.C.
§ 3582(b). So a court can reduce it only as “expressly permitted
by statute” or rule. § 3582(c)(1)(B). Two statutes, the Majority
holds, not only expressly permit but require redoing the Guide-
lines range based on current law. But those statutes do not go
that far.
The Act lets a sentencing court reduce a drug sentence. To
do that, the court must calculate the defendant’s sentence “as
if” the Fair Sentencing Act’s new statutory minima were in
place at the time of the crime. § 404(b). But that is it. By sin-
gling out one law, Congress did not “invite[ ] the district court
to apply [other] changes in the law.” Concepcion, 991 F.3d at
286. The court sits as if it were in the past, updating just one
variable. Id. at 286, 289. It need not look to other laws passed
after “the covered offense was committed.” § 404(b).
In holding otherwise, the Majority and other circuits rest on
just one statutory word: “impose.” The court “impose[s]” a
sentence. § 404(b). To do that, the sentencing court must con-
sider the § 3553(a) factors, including the Guidelines range,
“anew.” Maj. Op. 11; Chambers, 956 F.3d at 672–73. This
means, my colleagues reason, that the court must apply new
law and correct errors in the Guidelines range that have popped
up in the meantime.
But the statutory sentencing factors imported by the Act do
not require that. True, the sentencing court must start with the
defendant’s Guidelines range. § 3553(a)(4). But considering

2
the Guidelines range is not the same as redoing it from scratch.
The statute says nothing about updating that range at a sentence
reduction to account for new statutes or cases. It speaks only
of the Guidelines that “are in effect on the date the defendant
is sentenced.” § 3553(a)(4)(A)(ii). So “impose” cannot bear
that much weight.
Seeking more textual footing, the Majority suggests that a
reduction based on an older Guidelines range might be “greater
than necessary” to punish the defendant. § 3553(a); Maj. Op.
12–13. But that textual directive is not about the Guidelines
range. It is the sentence, not the range, that must be “no[ ]
greater than necessary” to punish the defendant and protect the
public. If a range does not reflect a defendant’s danger or
blameworthiness, courts can and do vary downward. But that
is up to their sound discretion.
II. THOUGH COURTS NEED NOT REDO RANGES, THEY
HAVE DISCRETION TO CONSIDER UPDATED GUIDELINES

The First Step Act and § 3553 neither require recalculating
ranges from scratch nor forbid it. Congress did not draft the
Act “on a blank slate.” Easter, 975 F.3d at 324 (quoting United
States v. Rose, 379 F. Supp. 3d 223, 233 (S.D.N.Y. 2019)). It
expected courts to exercise broad sentencing discretion. Con-
gress told courts not that they must reduce sentences, but that
they “may” do so. § 404(b). The Act set no limits on what
courts can consider in exercising that discretion, only what
they must.
Faced with a First Step Act motion, the court starts with the
defendant’s Guidelines range, updated “as if” the new statutory

3
punishments were in place back then. § 404(b). That range an-
chors the court’s discretion but does not limit it. Then, the court
must look holistically at the whole case, including the defend-
ant and his crime. Easter, 975 F.3d at 326–27. In exercising its
discretion to vary downwards, it can consider new facts and
new law.
The District Court did just that here. It started with Mur-
phy’s original range, amended only to reflect the new statutory
punishments. Then, doubtful that he would be a career offender
if sentenced today, it exercised its discretion to vary down-
wards. In doing so, the court followed the law.

III. EASTER IS NOT ON POINT

Finally, the Majority insists that Easter requires this new
Guidelines calculation. Maj. Op. 11, 18. It does not.
Easter dealt with a different issue. There, the district court
refused to consider the defendant’s rehabilitation in prison. 975
F.3d at 322. We held that it must. Id. at 323. When deciding
whether to reduce a sentence, district courts must consider all
the relevant § 3553(a) factors. Id. Easter did not involve any
changed Guidelines or case law. The parties neither briefed nor
argued about redoing the Guidelines range to reflect new law.
So we had no occasion to consider that issue. Easter does not
control this case; the Act’s text does.
* * * * *
The First Step Act requires a sentencing court to update one
law but lets it consider others. The District Court saw that dis-
cretion and exercised it here, giving Murphy a break. Even so,

4
the Majority vacates and remands, requiring it to redo the
Guidelines range to account for every new law. Because that
approach misreads the Act, upsets finality, and puts us on the
wrong side of a three-way circuit split, I respectfully dissent.

5