In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3197
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OLAITAN FOWOWE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 08-cr-20006 — James E. Shadid, Judge.
____________________
ARGUED MARCH 31, 2021 — DECIDED JUNE 16, 2021
____________________
Before SYKES, Chief Judge, and FLAUM and EASTERBROOK,
Circuit Judges.
FLAUM, Circuit Judge. In 2009, defendant-appellant Olaitan
Fowowe was sentenced for a conviction for conspiracy to dis-
tribute crack cocaine. The following year, Congress passed the
Fair Sentencing Act of 2010, Pub. L. No. 111-220,
124 Stat. 2372, which prospectively reduced the amount and
kind of punishment for crack cocaine convictions like
Fowowe’s. Fowowe—sentenced well before the Fair
2 No. 20-3197
Sentencing Act’s August 3, 2010 enactment—was ineligible
for reduced sentencing under the Fair Sentencing Act.
Despite this initial ineligibility, eight years later, the First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194, created
an avenue for people, like Fowowe, sentenced before August
3, 2010, to seek retroactive application of the Fair Sentencing
Act. Section 404(b) of the First Step Act authorizes—but does
not require—district courts to reduce the punishment for a
crack offense that occurred prior to August 3, 2010, with the
Fair Sentencing Act’s shorter sentences.
In federal district court, Fowowe requested a reduced
prison sentence under § 404(b) of the First Step Act to no avail.
On appeal, Fowowe now argues the district court’s evaluation
of his request was deficient because the court failed to apply
a Seventh Circuit decision that post-dated his initial sentenc-
ing by more than eleven years. To address Fowowe’s argu-
ment, we must resolve a legal issue of first impression in this
Circuit: Does § 404(b) authorize or require a district court to
apply a judicial decision issued after the defendant was ini-
tially sentenced? This question is one narrow issue within a
broader, emerging circuit split on the parameters of district
court § 404(b) motion evaluation. We hold that § 404(b) au-
thorizes but does not require district courts to apply an inter-
vening judicial decision in evaluating First Step Act motions.
Given this, we conclude the district court did not abuse its
discretion in declining to recalculate Fowowe’s sentencing
range. We now affirm.
I. Background
In 2008, Fowowe was indicted for conspiring to distribute
a controlled substance, namely cocaine and 50 or more grams
No. 20-3197 3
of a mixture and substance containing a cocaine base, in vio-
lation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A). Pursu-
ant to a plea agreement, Fowowe pleaded guilty to conspiracy
to distribute 50 or more grams of cocaine base (“crack co-
caine”). In calculating his original sentence, the district court
determined that Fowowe’s sentencing range was a statutory
mandatory minimum of life imprisonment. 1 In May 2009, the
district court sentenced Fowowe to 262 months of imprison-
ment and ten years of supervised release. Years later, in May
2015, Fowowe moved for a reduced sentence pursuant to
Amendment 782 to the federal sentencing guidelines, to
which the government agreed, so long as Fowowe amended
his motion. On July 15, 2015, the district court reduced
Fowowe’s sentence to 235 months of imprisonment and ten
years of supervised release.
Most recently, Fowowe sought another reduction in his
sentence based on various developments in federal law. In
2010, Congress changed how the federal government pun-
ishes convictions involving crack cocaine. See Dorsey v. United
States, 567 U.S. 260, 264 (2012). Until that time, federal law
“imposed 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.” Id. at 263. Fol-
lowing “strong[] critici[sm]” of that disparity and on recom-
mendation of the United States Sentencing Commission, Con-
gress passed the Fair Sentencing Act of 2010. See id. at 268–69.
1 Before sentencing, however, the government filed a motion under
18 U.S.C. § 3553(e) attesting to Fowowe’s substantial assistance. The gov-
ernment’s motion permitted the judge to impose a sentence below the stat-
utory minimum. See id. § 3553(e).
4 No. 20-3197
The Fair Sentencing Act “reduc[ed] the crack-to-powder
cocaine disparity from 100-to-1 to 18-to-1,” see id. at 264, by
first, “increas[ing] the drug amounts triggering mandatory
minimums for crack trafficking offenses” and second, “elimi-
nat[ing] the 5-year mandatory minimum for simple posses-
sion of crack,” id. at 269 (first citing Fair Sentencing Act, § 2(a);
and then citing § 3). Stated another way, the law reset the pa-
rameters under which a district court is required to impose a
prison sentence for applicable drug offenses. For example,
among other things, § 2 raised the quantity of applicable
drugs that triggered a ten-year mandatory minimum prison
term; the Fair Sentencing Act changed the amount from an
offense involving fifty grams of crack cocaine under prior fed-
eral law to two hundred and eighty grams. See, e.g., United
States v. Shaw, 957 F.3d 734, 736–37 (7th Cir. 2020) (comparing
penalties under 21 U.S.C. § 841 prior to and following the Fair
Sentencing Act’s enactment). Furthermore, under § 3 of the
Fair Sentencing Act, Congress eliminated a mandatory mini-
mum sentence for simple possession. Id. at 736 n.1.
The Fair Sentencing Act was initially inapplicable to
Fowowe because it did not apply retroactively to those sen-
tenced prior to August 3, 2010, the Fair Sentencing Act’s ef-
fective date. See Dorsey, 567 U.S. at 264. In 2018, Congress sub-
sequently enacted the First Step Act to pave the way for peo-
ple sentenced before August 3, 2010, to seek a sentence reduc-
tion. See United States v. Sutton, 962 F.3d 979, 982 (7th Cir.
2020).
Hoping to take advantage of that avenue, Fowowe moved
for a second time to reduce his sentence, this time under
No. 20-3197 5
§ 404(b) of the First Step Act on May 12, 2020. 2 All parties
agreed that the district court could exercise its discretion to
reduce Fowowe’s sentence because his crack cocaine convic-
tion qualified as a “covered offense” under the First Step Act.
See § 404(a). The parties also initially agreed on the newly ap-
plicable mandatory minimum and maximum sentence, corre-
sponding to the sentencing range that would have attached
had the Fair Sentencing Act been in effect at the time of
Fowowe’s sentencing. This range informs the district court’s
consideration of whether to reduce an eligible § 404(b) mo-
vant’s sentence. Thus, the parties agreed that the district court
needed to consider that the Fair Sentencing Act only assigns
a ten-year mandatory minimum sentence to Fowowe’s crack
cocaine conviction, rather than the mandatory life prison sen-
tence that attached in 2009, and that his guidelines range was
324–405 months of imprisonment. However, Fowowe sought
a downward departure to 180 months of imprisonment and
eight years of supervised release. The government opposed
this request.
Relevant on appeal, Fowowe then supplemented his brief-
ing, arguing that the decision of this Court in United States v.
Ruth, 966 F.3d 642 (7th Cir. 2020), cert. denied, 141 S. Ct. 1239
(2021), altered his sentencing range. Ruth held that a violation
of 720 Ill. Comp. Stat. 570/401(c)(2) involving cocaine does not
trigger the statutory enhancement under 21 U.S.C.
§ 841(b)(1)(C). See Ruth, 966 F.3d at 650. According to
Fowowe, the 324–405 month range in his original First Step
Act motion erroneously incorporated that very sentencing
2 Fowowe filed an earlier motion, pro se. However, the district court
then appointed counsel, and Fowowe filed the May 2020 motion repre-
sented by counsel.
6 No. 20-3197
enhancement, but under Ruth, his three prior cocaine-related
convictions under Illinois state law no longer qualified for the
enhancement. By Fowowe’s account, Ruth meaningfully im-
pacted his sentencing ranges; he argued the applicable statu-
tory penalty now ranged from a statutory minimum of five
years to forty years of imprisonment along with four years of
supervised release, as opposed to the ten years of imprison-
ment and eight years of supervised release calculated in his
original § 404(b) motion. The government did not respond to
Fowowe’s supplemental briefing.
The district court granted Fowowe’s motion in part; it de-
nied the request for modification of his custodial sentence but
granted the request for a shorter term of supervised release.
The district court resentenced Fowowe to an unchanged—but
previously reduced—term of imprisonment of 235 months
and a reduced term of supervised release of eight years.
In reaching this decision, the court reasoned that although
Fowowe was eligible for a reduction under the First Step Act,
he had “already received a reduction in sentence from 262 to
235 months, and while the amended mandatory minimum is
now [ten] years, the 235 months is still well below the
amended guideline range of 324–405 months.” Continuing
on, the court stated that “while Defendant Fowowe ha[d]
many achievements since his sentencing, which include[d]
courses in financial responsibility, drug education and GED,
any further reduction, given the large scale organization of
purchasing and trafficking [crack cocaine] … along with the
number of weapons retrieved …, would deprecate the seri-
ous[ness] of the offense, the need for deterrence and the desire
to avoid unwarranted sentencing disparities.” In listing the
case filings, the court noted in passing that Fowowe had filed
No. 20-3197 7
supplemental briefing, but it did not otherwise discuss the
Ruth-based arguments.
Fowowe now appeals.
II. Discussion
On appeal, Fowowe argues that the district court proce-
durally erred in its review of his First Step Act § 404(b) mo-
tion. We review the discretionary denial of a sentence-reduc-
tion motion for an abuse of discretion. Sutton, 962 F.3d at 986.
However, we review questions regarding matters of statutory
interpretation and proper sentencing procedures de novo. See
United States v. Hudson, 967 F.3d 605, 609 (7th Cir. 2020) (stat-
utory interpretation); United States v. Conley, 777 F.3d 910, 913
(7th Cir. 2015) (sentencing procedures).
In relevant part, § 404(b) of the First Step Act of 2018 states
that:
A court that imposed a sentence for a covered
offense may, on motion of the defendant, … im-
pose 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.
In weighing a First Step Act § 404(b) motion, district courts
have discretion in determining whether and how much to re-
duce a defendant’s sentence. See United States v. Corner,
967 F.3d 662, 665 (7th Cir. 2020) (per curiam) (“[T]he court’s
decision is discretionary; section 404(c) makes clear that the
court is never required to reduce a sentence under sec-
tion 404(b).”). We have described a district court’s review of a
First Step Act § 404(b) motion as a two-step process. “First, a
judge considering a motion for a reduced sentence under the
8 No. 20-3197
First Step Act is faced with the question of whether the de-
fendant is eligible for a sentence reduction. [Second,] [i]f the
defendant is eligible, then the court faces the question of
whether it should reduce the sentence.” Hudson, 967 F.3d at
610.
The parties do not dispute that Fowowe’s conviction qual-
ifies as a “covered offense” that is eligible for a reduced sen-
tence and therefore satisfies the first step of the § 404(b) in-
quiry. See id. at 611 (describing eligibility as a prerequisite to
reaching step two). Thus, this appeal centers on the second
step: Should the district court have reduced Fowowe’s sen-
tence? See id. at 610.
On appeal, Fowowe advances two arguments for why the
district court erred in executing step two. First, Fowowe con-
tends that the district court miscalculated his “guideline
range” or “sentencing range”—in other words, the statutory
minimum and maximum sentence that attached to his convic-
tion—which a district court consults when deciding whether
and by how much to reduce the movant’s prison sentence.
Second, he argues the district court procedurally erred be-
cause it did not engage substantively with his argument that
Ruth altered his sentencing range. We will address these ar-
guments in turn. Because whether the court must substan-
tively engage with a defendant’s First Step motion arguments
is a threshold issue, we begin our analysis there.
A. Failure to Consider Sentence Reduction Argu-
ments
As a threshold issue, we consider whether the district
court erred by failing to acknowledge any of Fowowe’s Ruth-
based arguments. Fowowe argues that “[a]though [he] does
No. 20-3197 9
not have the right to a sentence reduction under the First Step
Act, he does have a right to have all his arguments consid-
ered.” By Fowowe’s formulation, the district court’s consider-
ation failure “alone is grounds for reversal.”
In examining the sufficiency of district court explanations
with respect to First Step Act findings, we look for an “indi-
cation that [the court] had considered the arguments pre-
sented in [a defendant’s] motion.” See Shaw, 957 F.3d at 740.
Notably, a “barebones” district court explanation of its inher-
ently discretionary First Step Act ruling “amounts to no exer-
cise of discretion at all,” a “non-exercise of discretion [that] is
itself an abuse of discretion.” See Corner, 967 F.3d at 666.
Here, the district court’s explanation was more than “bare-
bones.” The district court acknowledged Fowowe’s argu-
ments regarding the sentencing factors and provided several
considerations in its decisionmaking. The district court noted
that the sentencing range had been amended under §§ 2 and
3 of the Fair Sentencing Act and explained the factors in its
decision to disregard them, specifically, (1) that Fowowe’s
sentence was already reduced, and (2) “the need for deter-
rence and the desire to avoid unwarranted sentencing dispar-
ities” based on the “large scale organization” of drug traffick-
ing and weapons retrieved in connection with his conviction.
It also acknowledged, albeit summarily, that Fowowe had
filed supplemental briefing, indicating on review the district
court could have considered and subsequently declined the
application of Ruth.
In conclusion, we reject Fowowe’s threshold failure-to-
consider arguments.
10 No. 20-3197
B. Challenge to Sentencing Range Calculation
We turn next to the parties’ subsidiary dispute over
whether the district court miscalculated the sentencing range.
Fowowe does not (nor can he) assert that the district court
must have reduced his prison term. 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.”). Rather, he
takes issue with the district court’s procedure. Specifically, ac-
cording to Fowowe, the district court consulted the “incor-
rect” sentencing range because the statutory minimums it re-
lied on incorporated a sentencing enhancement that Ruth
eliminated.
However, Fowowe was initially sentenced in 2009, and
Ruth was issued in 2020. Fowowe’s argument therefore as-
sumes that the district court was required to apply a judicial
decision issued after the defendant was originally sentenced,
(an “intervening decision”). The government disagrees and
raises another facet of the proper § 404(b) procedure, namely
whether a district court is authorized to apply an intervening
decision. 3 Specifically, the government contends that even if
we conclude the district court procedurally erred in failing to
address Fowowe’s Ruth-based arguments, then that error was
3 The parties do not dispute that, if Ruth applied, the sentencing range
that the district court should have considered when evaluating Fowowe’s
First Step Act motion would have changed. In reaching its decision not to
reduce Fowowe’s sentence, the district court stated that “the amended
mandatory minimum [prison term] is now [ten] years.” However, if Ruth
applied, then the range that the court should have considered would have
been a mandatory minimum of five years of imprisonment and four years
of supervised release.
No. 20-3197 11
harmless because the district court was not authorized to ap-
ply Ruth.
This appeal thus raises the legal question: Does § 404(b) of
the First Step Act require or authorize a district court to apply
an intervening judicial decision? If applying an intervening
judicial decision is required, then the district court must cal-
culate the sentencing range based on the judicial decision
when it assesses whether and how much to grant a sentence
reduction. As applied here, this would mean that the district
court’s failure to apply Ruth when calculating the sentencing
range would then amount to a procedural error.
Before answering that question, we clarify our word
choice. Although courts and litigants sometimes refer to a
court’s application of judicial decisions issued after the de-
fendant was originally sentenced as “plenary resentencing,”
we avoid that term here. That is because litigants sometimes
use that term interchangeably with other facets of sentenc-
ing. 4 For precision and consistency we refer to the question at
the heart of this appeal as follows: Does § 404(b) require or
authorize a district court to apply intervening judicial deci-
sions?
4 See, e.g., United States v. Foreman, 958 F.3d 506, 509 (6th Cir. 2020)
(“Foreman argued that the First Step Act required the district court to en-
gage in a plenary resentencing, including an in-person hearing, de novo
application of current law, and reconsideration of his career offender sta-
tus.”); United States v. Hamilton, 790 F. App’x 824, 826 (7th Cir. 2020) (Liti-
gant argued the “district court … should have conducted a full, plenary
resentencing hearing. Had it done so, he continues, the court would have
had to analyze anew whether any of his prior state drug convictions con-
stituted a serious drug felony … .”).
12 No. 20-3197
Turning now to our answer, the parties suggest we have
already resolved this issue. We disagree. As we have previ-
ously explained, “[w]hat[] procedure, if any, a court must fol-
low” under step two of a First Step Act analysis “is up for de-
bate.” Corner, 967 F.3d at 665. We begin with a brief overview
of what guidance we have about the procedures for a First
Step Act motion: First, we address what we have stated
§ 404(b) requires a district court to do, then second, we turn to
what we have stated § 404(b) authorizes.
First, as to the former, this Court has set the procedural
floor. We stated the First Step Act requires “a baseline of pro-
cess.” Id. Recall from Part I, above, that §§ 2 and 3 of the Fair
Sentencing Act lowered the penalties for certain crack cocaine
convictions by shortening or eliminating the prison term de-
pending on the quantity of drugs involved. We stated that a
district court evaluating a First Step Act motion is not re-
quired to lower a First Step Act movant’s prison term. See Cor-
ner, 967 F.3d at 665 (“[T]he court is never required to reduce a
sentence under section 404(b).”). However, the court still
must determine the lower penalties set by the Fair Sentencing
Act and consult that updated sentencing range to reach its de-
cision. See id. (“We conclude that a district court’s discretion-
ary determination whether to grant a petitioner’s motion for
a reduced sentence under the First Step Act must be informed
by a calculation of the new sentencing parameters.”). Practi-
cally speaking, a district court ruling on a § 404(b) motion
therefore must begin by recalculating the statutory minimum
and maximum that would have applied had §§ 2 and 3 of the
Fair Sentencing Act been in effect at the time the movant was
originally convicted. Accordingly, “[n]ot considering the
lower statutory penalties now applicable to [a defendant’s] of-
fense of conviction [is] procedural error.” Id. at 666.
No. 20-3197 13
Second, we have stated what a district court is author-
ized—as distinct from required—to consider when assessing
how much to reduce a defendant’s sentence. Federal law does
not impose a precise formula to select a sentence. Section 3553
of Title 18 instructs a district court to consider a plethora of
factors, including (among others) the nature of the crime,
characteristics of the defendant, the needs of the community
and victim, as well as the Sentencing Guidelines and policy
statements issued by the Sentencing Commission. See
18 U.S.C. § 3553(a)(1)–(7). We have therefore authorized a dis-
trict court exercising its § 404(b) authority to draw on that
menu of legal and factual considerations. As we explained in
Hudson:
[T]he First Step Act authorizes a court to con-
sider a range of factors to determine whether a
sentence imposed is sufficient, but not greater
than necessary, to fulfill the purposes of
[18 U.S.C.] § 3553(a). These include new statu-
tory minimum or maximum penalties; current
Guidelines; post-sentencing conduct; and other
relevant information about a defendant’s his-
tory and conduct.
967 F.3d at 609 (citing Shaw, 957 F.3d at 741–42).
In sum, Fowowe’s case succeeds a line of decisions de-
scribing what factors a district court must and may draw on
when exercising its statutory discretion under § 404(b) of the
First Step Act to reduce a defendant’s sentence. None of those
decisions answered the question here of whether a district
court must apply an intervening judicial decision. The parties
have not pointed to—nor could we find—a single case in this
Circuit that resolves that issue. The question central to this
14 No. 20-3197
appeal is therefore an issue of first impression. See, e.g., United
States v. Earnest, 834 F. App’x 259, 260 (7th Cir. 2021) (“Alt-
hough some courts have held that a plenary resentencing and
a hearing are not required, we have not defined the minimum
procedures a court must follow when deciding a motion un-
der § 404(b).” (citing Corner, 967 F.3d at 665)).
Although this is an issue of first impression in this circuit,
we do not write on a blank page. Our sister circuits have
mixed views on whether a district court must apply an inter-
vening judicial decision when calculating a defendant’s new
sentencing range. On the one hand, the Fourth Circuit has
held that a district court must apply an intervening judicial
decision. See United States v. Lancaster, 997 F.3d 171, 176 (4th
Cir. 2021); United States v. Chambers, 956 F.3d 667, 675 (4th Cir.
2020). 5 On the other hand, the First, Second, Fifth, Sixth,
Ninth, and Eleventh Circuits have each held that a district
court is not required to apply a judicial decision issued after
the defendant was initially sentenced when calculating the
movant’s new sentencing range. See United States v.
5 Specifically, the Fourth Circuit held that the district court had erro-
neously designated a defendant as a career offender without “recalcu-
lat[ing] the Guidelines sentencing range in light of ‘intervening case law,’”
and remanded with instruction to recalculate the range without the en-
hancement. See Lancaster, 997 F.3d at 176 (quoting Chambers, 956 F.3d at
672).
Similar to Lancaster, although in narrower circumstances, in United
States v. Chambers, 956 F.3d at 675, the Fourth Circuit reasoned that under
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), a case held
retroactive by Miller v. United States, 735 F.3d 141 (4th Cir. 2013), the de-
fendant no longer qualified as a career offender, so continuing to apply
the enhancement would amount to a “Guidelines error.” Chambers,
956 F.3d at 673.
No. 20-3197 15
Concepcion, 991 F.3d 279, 292 (1st Cir. 2021), petition for cert.
docketed (U.S. May 26, 2021) (No. 20-1650); United States v.
Moore, 975 F.3d 84, 92 (2d Cir. 2020); United States v. Hegwood,
934 F.3d 414, 419 (5th Cir. 2019), cert. denied, 140 S. Ct. 285
(2019); United States v. Foreman, 958 F.3d 506, 516–17 (6th Cir.
2020); United States v. Kelley, 962 F.3d 470, 479 (9th Cir. 2020),
petition for cert. docketed (U.S. Mar. 17, 2021) (No. 20-7474);
United States v. Taylor, 982 F.3d 1295, 1302 (11th Cir. 2020). 6 In
6 Specifically, the First Circuit affirmed a district court’s order that in-
corporated a sentencing enhancement that the defendant argued would
have been precluded by “emerging case law.” See Concepcion, 991 F.3d at
284, 292.
Likewise, the Second Circuit approved a district court’s decision not
to apply an intervening judicial decision and “h[eld] that the First Step Act
does not entail a plenary resentencing, and that it does not obligate a dis-
trict court to recalculate an eligible defendant’s Guidelines range, except
for those changes that flow from Sections 2 and 3 of the Fair Sentencing
Act of 2010.” See Moore, 975 F.3d at 90–92.
The Fifth Circuit approved the district court’s decision not to apply an
intervening judicial decision when calculating the defendant’s sentencing
range. See Hegwood, 934 F.3d at 416, 419.
The Sixth Circuit rejected a defendant’s argument that the “First Step
Act required the district court to engage in a … de novo application of cur-
rent law, and reconsideration of his career offender status,” see Foreman,
958 F.3d at 509, and reiterated its prior holding in United States v. Alexan-
der, 951 F.3d 706 (6th Cir. 2019) (per curiam), that “the district court was
not required to conduct a plenary resentencing[,]” see Foreman, 958 F.3d at
511, 515–17.
The Ninth Circuit similarly approved a district court’s decision to cal-
culate the sentencing range without applying an intervening judicial de-
cision. See Kelley, 962 F.3d at 475–76, 479.
16 No. 20-3197
short, only the Fourth Circuit has required a district court to
apply an intervening judicial decision in recalculating a de-
fendant’s sentencing range.
Despite the growing consensus that a district court is not
required to apply intervening judicial decisions, those courts
disagree over whether § 404(b) authorizes a district court to
apply such a decision. The Sixth Circuit has held that a district
court is permitted to apply an intervening legal decision to
calculate a sentencing range. See United States v. Maxwell,
991 F.3d 685, 692 (6th Cir. 2021), petition for cert. docketed (U.S.
May 27, 2021) (No. 20-1653). The First Circuit has aligned with
that logic; in addressing the second step of the § 404(b) pro-
cess, the First Circuit authorized district courts to “consider
guideline changes, whether or not made retroactive by the
Sentencing Commission,” which we read to include interven-
ing legal decisions. See Concepcion, 991 F.3d at 290 (describing
district court’s discretion as applied only to step two of the
legal analysis). However, the Fifth, Ninth, and Eleventh Cir-
cuits have imposed limits on a district court’s § 404(b) discre-
tion by instructing courts to “decide[] on a new sentence by
placing itself in the time frame of the original sentencing, al-
tering the relevant legal landscape only by the changes man-
dated by the 2010 Fair Sentencing Act.” Hegwood, 934 F.3d at
418–19; Kelley, 962 F.3d at 475 (similar); Taylor, 982 F.3d at 1302
(similar). 7
The Eleventh Circuit rejected a defendant’s argument that he was “en-
titled to a full resentencing hearing, with the benefit of all the changes in
the law since his original sentencing in 2001.” Taylor, 982 F.3d at 1302.
7 The Ninth Circuit likewise stated that “the First Step Act … does not
authorize the district court to consider other legal changes that may have
No. 20-3197 17
Other circuits have not squarely addressed the issue of
whether district courts are authorized to apply intervening ju-
dicial decisions. However, as already summarized, we au-
thorize courts to reevaluate the § 3553(a) factors when execut-
ing step two of the § 404(b) analysis. See Hudson, 967 F.3d at
609 (holding § 404(b) evaluation may but need not entail
reevaluation of the § 3553(a) factors). A majority of our sister
circuits share this Court’s view that step two could entail a
comprehensive review of the § 3553(a) factors, including the
First, Second, Third, Fourth, Sixth, Tenth, and D.C. Circuits.
See Concepcion, 991 F.3d at 290; Moore, 975 F.3d at 92 n.36;
Chambers, 956 F.3d at 674; United States v. Boulding, 960 F.3d
774, 784 (6th Cir. 2020); United States v. Mannie, 971 F.3d 1145,
1158 n.18 (10th Cir. 2020); United States v. White, 984 F.3d 76,
90–91 (D.C. Cir. 2020). But see United States v. Easter, 975 F.3d
318, 327 (3d Cir. 2020) (requiring rather than permitting con-
sideration of § 3553(a) factors).
occurred after the defendant committed the offense.” Kelley, 962 F.3d at
475.
The Eleventh Circuit instructed that “[t]he authority to reduce [the de-
fendant’s] sentence ‘as if sections 2 and 3 of the Fair Sentencing Act’ were
in effect when [the defendant] committed his offense does not permit the
court to reduce [the defendant’s] ‘sentence on the covered offense based
on changes in the law beyond those mandated by’ those sections.” Taylor,
982 F.3d at 1302 (quoting United States v. Denson, 963 F.3d 1080, 1089 (11th
Cir. 2020)); see also Denson, 963 F.3d at 1089 (“[I]n ruling on a defendant’s
First Step Act motion, the district court … is not free to change the defend-
ant’s original guidelines calculations that are unaffected by sections 2 and
3, to reduce the defendant’s sentence on the covered offense based on
changes in the law beyond those mandated by sections 2 and 3, or to
change the defendant’s sentences on counts that are not ‘covered of-
fenses.’” (first citing First Step Act § 404(b); and then citing Hegwood,
934 F.3d at 418)).
18 No. 20-3197
With this emerging split in mind, we join the Sixth Cir-
cuit’s view that § 404 of the First Step Act authorizes but does
not require a district court to apply intervening judicial deci-
sions. We begin with the First Step Act § 404(b)’s plain lan-
guage, which does not require application of intervening ju-
dicial decisions. Instead, § 404(b) expressly establishes the
district court’s permissive authority to reduce a sentence: “as
if sections 2 and 3 of the Fair Sentencing Act of 2010 … were
in effect.”
We read § 404(b) to mean what it says: to require a district
court to recalculate the sentencing range under the Sentencing
Guidelines “as if” the lower drug offense sentences articu-
lated in §§ 2 and 3 of the Fair Sentencing Act were in effect at
the time of the commission of the offense when executing step
two. See Moore, 975 F.3d at 90–91 (“The text of the First Step
Act runs contrary to [defendant’s] argument.”). Backdating
§§ 2 and 3 is the explicit basis for and therefore the only re-
quirement Congress imposed on a district court exercising its
discretion. See id. at 91 (“Through its ‘as if’ clause, all that
§ 404(b) instructs a district court to do is to determine the im-
pact of Sections 2 and 3 of the Fair Sentencing Act … .”).
The statute’s grant of discretionary authority further rein-
forces our view that § 404(b) authorizes but does not require
application of intervening judicial decisions. Section 404(b)
affords the district court significant latitude, stating that it
“may … impose a reduced sentence.” See also Corner, 967 F.3d
at 665 (noting discretionary nature of the analysis); Hudson,
967 F.3d at 612 (noting § 404(b) permits a district court to ap-
ply 18 U.S.C. § 3553(a) “[w]ithout mandating a particular set
of procedures”). Moreover, § 404(c) of the First Step Act refers
to “a complete review of the motion on the merits,” which
No. 20-3197 19
suggests that the First Step Act contemplates a “close review,”
even if it does not require one. See Corner, 967 F.3d at 665. 8 The
statute does so while remaining silent on what else a district
court must do. In other words, to say a district court may con-
duct such a review is not to say it must.
We are further persuaded by the remedial purpose of the
First Step Act. The First Step Act’s design of addressing dis-
parities in sentencing underscores that “utilizing 18 U.S.C.
§ 3553(a)’s familiar framework in considering a motion under
the First Step Act makes good sense.” Hudson, 967 F.3d at 612
(citation and internal quotation marks omitted). That is be-
cause “today’s Guidelines may reflect updated views about
the seriousness of a defendant’s offense or criminal history.”
Id. (quoting Shaw, 957 F.3d at 742). “The First Step Act does
not prevent the court from considering” any such changes
“when deciding whether the sentence imposed is ‘sufficient,
8 But see Moore, 975 F.3d at 91 (questioning utility of § 404(c) in ad-
dressing the scope of § 404(b) because “it would be strange for Congress
to have obliquely slipped a standard for adjudicating First Step Act mo-
tions into a provision that bars repetitive litigation”). In light of the brevity
of the provision’s language, we do not take such a restrictive reading.
However, it does not affect our analysis because the Second Circuit still
continues to authorize courts to assess intervening sentencing guideline
changes and factual developments. See id. at 92 n.36 (“Accordingly, it is
clear that a district court’s discretion under the First Step Act as to whether
to reduce a defendant’s sentence (and if so, to what extent) is not limited
by the applicable Guidelines range. When considering whether to impose
a reduced sentence under the First Step Act, the district court retains the
same discretion under United States v. Booker, 543 U.S. 220 (2005), to vary
from the advisory Guidelines that it would have had at the time of the
defendant’s sentencing.”).
20 No. 20-3197
but not greater than necessary,’ under 18 U.S.C. § 3553(a).” Id.
(quoting § 3553(a)).
Most courts have broadly said that courts are authorized,
but not required, to consider § 3553(a) factors (of which appli-
cation of judicial decisions is a part). The Sixth Circuit, as we
noted above, has gone so far as to agree with the more specific
view we now endorse that a district court is authorized, but
not required, to apply an intervening judicial decision. See
Maxwell, 991 F.3d at 692. We share the Sixth Circuit’s view
that our cases “do not require district courts to conduct ple-
nary resentencing hearings in response to a petition under the
First Step Act, [but] they permit courts to consider subsequent
developments in deciding … by how much” to modify the
original sentence. See id. at 691 (authorizing district court to
apply an intervening decision because “[a]ny ‘consideration
of the impact that [an intervening judicial decision] would
have had on [the defendant’s] statutory sentencing range is a
factor that the district court may consider when deciding
whether, in its discretion, to grant relief.’” (some alterations
in original) (citation omitted)).
More generally, a majority of other circuits support the
consistent (albeit distinct) proposition that district courts are
authorized, but not required, to consider § 3553(a) factors. It
follows, then, that intervening changes in the law shed light
as a district court assesses those factors. See Maxwell, 991 F.3d
at 692 (“All told, our decisions and most of our sister circuits
permit defendants to raise these intervening developments,
such as changes to the career-offender guidelines, as grounds
for reducing a sentence, and they permit (but do not require)
district courts to consider these developments in balancing
No. 20-3197 21
the § 3553(a) factors and in deciding whether to modify the
original sentence.”).
Our view that district courts are not required to apply in-
tervening judicial decisions is not altered by any of the com-
mon arguments presented to other courts on this issue. Some
have argued that § 404(b)’s use of the verb “impose” suggests
application of intervening judicial decisions. The argument
goes that the statute’s invocation of the word “impose” re-
flects Congress’s intentional decision to establish rigorous
procedural requirements, including de novo review of judi-
cial decisions. In Chambers, the Fourth Circuit agreed, reason-
ing that the First Step Act “expressly permits the court to ‘im-
pose a reduced sentence,’” rather than to merely “‘modify’ or
‘reduce,’ which might suggest a mechanical application of the
Fair Sentencing Act.” See 956 F.3d at 672 (comparing
§ 404(b)’s use of “impose” to 18 U.S.C. § 3582(c)(2)).
Despite the Fourth Circuit’s reasoning, the term “impose”
does not alter our view that § 404 does not require application
of intervening judicial decisions because that argument disre-
gards the other language of § 404. “[T]he First Step Act does
not simply authorize a district court to ‘impose a sentence,’
period. Instead, it authorizes the court to do so subject to the
‘as if’ clause—that is, to determine the impact of sections 2
and 3 of the Fair Sentencing Act.” Moore, 975 F.3d at 91; see
also Kelley, 962 F.3d at 476 (reasoning that viewing “impose”
in isolation “fails to account for the First Step Act’s ‘limiting
language,’ namely, the ‘as if’ clause”); Foreman, 958 F.3d at 511
(reasoning “a district court ‘impose[s] a new sentence’ even
when it engages in a limited modification or reduction of an
existing sentence—not just when it conducts a plenary resen-
tencing,” including application of intervening judicial
22 No. 20-3197
decisions (alteration in original)). Furthermore, Congress did
not use “impose” uniformly throughout the statute. See Fore-
man, 958 F.3d at 511. “If … Congress had intended to create”
such a comprehensive resentencing scheme “using a single
term, we would at least expect it to have uniformly relied on
that term.” Id.
Recognizing that our and the Sixth Circuit’s position may
be in some tension with that of certain of our sister circuits,
we obviously cannot predict their future views on the matter
squarely before us. However, the Fifth, Ninth, and Eleventh
Circuits’ decisions do not dissuade us from holding that ap-
plication of intervening judicial decisions is permissible be-
cause we cannot reconcile our view that a district court may
consider § 3553(a) factors with a command to turn a blind eye
to developments in our own jurisprudence that update our
notions about the severity and dangerousness of a crime
while carrying out that inquiry.
Furthermore, it is unclear the precise contours of the limits
certain of our sister circuits impose on district courts regard-
ing what constitute changes flowing from §§ 2 and 3 of the
Fair Sentencing Act. For example, the Fifth Circuit’s subse-
quent cases illustrate that its view that district courts could
only consider “changes in the law” “mandated” by the Fair
Sentencing Act may encompass more than Hegwood suggests
at first blush. In United States v. Stewart, 964 F.3d 433, 438 (5th
Cir. 2020), for example, the Fifth Circuit did not limit the
“changes mandated by [the Fair Sentencing Act]” to exclu-
sively the lower statutory penalties imposed by §§ 2 and 3 of
the Fair Sentencing Act. See id. at 438–39. Rather, the court
held that a district court erred in declining to consider a
Guidelines amendment that constituted a “change in the law
No. 20-3197 23
that did result from [the Fair Sentencing Act].” Id. That Guide-
lines amendment was promulgated pursuant to the Fair Sen-
tencing Act’s instruction to “the Sentencing Commission to
make changes to the Guidelines in order to bring them into
conformity with sections 2 and 3 of [the Fair Sentencing Act],”
and it deemed the amendment in question as “one such
change.” Id.
Turning to Fowowe’s specific arguments on appeal, we
conclude none rescue his position that a district court is re-
quired to apply intervening judicial decisions. Fowowe’s con-
tention that our trio of cases (Corner, Hudson, and Shaw) re-
quired the district court to apply Ruth misunderstands those
cases. As summarized, the trio made clear how we have not
authoritatively resolved this issue. Hudson and Shaw de-
scribed what a district court is authorized to consider. See
Hudson, 967 F.3d at 609; Shaw, 957 F.3d at 741–42. Corner, too,
did not resolve the debate over whether application of judicial
decisions is required, but rather held that at a minimum, the
district court must recalculate the defendant’s sentencing
range to account for lower statutory penalties that the Fair
Sentencing Act assigned to certain quantities of crack cocaine.
See Corner, 967 F.3d at 665–66. We have stated time and again
that we left open whether § 404(b) requires application of in-
tervening judicial decisions. See, e.g., Earnest, 834 F. App’x at
260–61; see also Hamilton, 790 F. App’x at 826. Finally, several
other arguments advanced were unpersuasive and did not
impact our outcome.
In sum, we authorize a district court to apply intervening
judicial decisions when exercising its discretion to reduce a
petitioner’s sentence under the First Step Act § 404(b). A dis-
trict court, however, is not required and thus does not
24 No. 20-3197
procedurally err by failing to apply intervening judicial deci-
sions. Accordingly, the district court here did not abuse its
discretion.
III. Conclusion
For the foregoing reasons, we AFFIRM the decision of the
district court.