PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-2717
_____________
UNITED STATES OF AMERICA
v.
CLIFTON SHIELDS, a/k/a D,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-08-cr-00314-002)
District Judge: Hon. Malachy Mannion
_______________
Argued September 28, 2021
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges.
(Opinion Filed: September 1, 2022)
David R. Fine [ARGUED]
Brian J. Smith
K&L Gates
17 North Second Street
18th Floor
Harrisburg, PA 17101
Counsel for Court-Appointed Amicus Curiae
Daryl F. Bloom [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
_______________
KRAUSE, Circuit Judge.
In the four years since Congress enacted the First Step
Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194, the
parameters of the resentencing proceedings it authorizes have
evolved as courts labored to understand what the Act requires,
what it permits, and what it prohibits. What has remained
consistent, however, are background principles of sentencing
law, including a court’s foundational obligations to allow the
parties an opportunity to make arguments and to consider all
nonfrivolous arguments they present. Here, Appellant Clifton
Shields, appealing the District Court’s decision to reduce his
2
sentence from 360 to 262 months’ imprisonment under the
First Step Act, contends that the Court abused its discretion by
failing to consider his arguments concerning intervening
changes in law affecting his career-offender status and by
denying him the opportunity to make other arguments in favor
of a downward variance. Because the Court erred in finding
that it did not have the discretion to consider these arguments,
and because it denied Shields the opportunity to make his case
in full, we will vacate his reduced sentence and remand for
resentencing.
I. Factual and Procedural Background
In 2008, Shields was convicted after a jury trial of one
count of conspiracy to distribute and possess with intent to
distribute heroin and 50 grams or more of crack cocaine, in
violation of 21 U.S.C. § 846, and one count of distributing and
possessing with intent to distribute 50 grams or more of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii). In anticipation of Shields’s sentencing, the
United States Probation Office prepared a Presentence Report
(PSR) in which it found that his offense level was 37, based on
the quantity of drugs involved, his possession of a dangerous
weapon in connection with the conspiracy, and his status as a
“career offender” as a result of (1) his 1995 conviction for
robbery with a deadly weapon in violation of Maryland law
and (2) his 2002 conviction for conspiracy to distribute crack
cocaine in violation of Maryland law. With the criminal
history category of VI, which automatically applied due to his
career-offender designation, this calculation resulted in an
advisory Guidelines range of 360 months to life.
At sentencing, Shields raised two objections to the PSR
that are relevant to this appeal: one, to the enhancement for the
3
use of a firearm in connection with the offense,1 and the other,
to the drug quantity attributed to him, which exceeded that
found by the jury.2 The District Court declined to rule on either
because, as Shields’s counsel conceded, neither would have
had any effect on his Guidelines range given his career-
offender status. The Court sentenced Shields to a term of 360
months’ imprisonment on each count, to run concurrently,
followed by five years’ supervised release.
At the time Shields was sentenced, an offense involving
50 or more grams of crack cocaine triggered a mandatory
minimum sentence of 10 years’ imprisonment, while an
offense involving powder cocaine would not result in the same
mandatory minimum unless the drug quantity was 100 times as
great. The following year, Congress enacted the Fair
Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372,
to reduce this and other disparities between the sentencing
schemes for crack and powder cocaine. Shields became
eligible for resentencing under the new regime in 2018, when
Congress passed the First Step Act, which authorized district
courts to “impose a reduced sentence” for qualifying movants
“as if sections 2 and 3 of the Fair Sentencing Act . . . were in
1
Shields was acquitted of the charge of possession of a
firearm during and in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A).
2
Specifically, the PSR attributed to him at least 7.6
ounces of cocaine base (crack), at least 3.77 grams of heroin,
and 5.46 grams of marijuana, while the jury’s only finding as
to drug weight was 50 grams or more of crack cocaine in
connection with both his conspiracy conviction and
distribution and possession with intent to distribute conviction.
4
effect at the time the covered offense was committed.” §
404(b), 132 Stat. at 5222.
Shields sought relief under the First Step Act by filing a
motion for resentencing under § 404(b) in 2019. Notably, his
case had by that time been reassigned to a different judge
because the judge who oversaw his trial and imposed his
original sentence had passed away. In his § 404(b) motion,
Shields requested a full, in-person sentencing hearing or, in the
alternative, the opportunity to file a sentencing memorandum
with supplemental documentation because he “wishe[d] to
present evidence of his post-sentence rehabilitation, including
information from family members and others.” United States
v. Shields, No. 1:08-cr-00314-MEM-2 (M.D. Pa. Apr. 12,
2019), Dkt. No. 252 [hereinafter “First Step Act Mot.”] at 13–
14. He also sought to dispute his career-offender status, as he
believed one of his prior convictions would no longer be
considered a predicate offense, and to renew his objections to
the firearm enhancement and the drug weight used to calculate
his Guidelines range. Shortly after filing his reply brief,
Shields submitted two “supplements” to demonstrate his
rehabilitation, consisting of his Bureau of Prisons
Individualized Reentry Plan and numerous certificates of
completion and achievement from classes and other programs
he had attended in prison.
Without addressing Shields’s request to submit a
sentencing memorandum, the District Court issued an opinion
finding that he qualified for resentencing, denying his request
for a full resentencing hearing, and reducing his sentence to
262 months’ imprisonment on each count, to run concurrently,
followed by four years’ supervised release. The Court also
declined to consider “whether under current law [Shields]
would be considered a career offender” because it believed that
5
“[t]he First Step Act does not permit the court to consider other
statutory or sentencing guideline amendments enacted since
the date the defendant committed his or her offense.” United
States v. Shields, No. 1:08-cr-00314-MEM-2 (M.D. Pa. July
10, 2019), Dkt. No. 262 [hereinafter “Dist. Ct. Op.”] at 8 n.3
(quoting United States v. Crews, 385 F. Supp. 3d 439, 447 n.7
(W.D. Pa. 2019)). It then proceeded to consider the factors set
out in 18 U.S.C. § 3553(a) and noted that the reduced sentence
it was imposing, at the bottom of Shields’s amended
Guidelines range, reflected its consideration of those factors as
well as the documents Shields had submitted as evidence of
rehabilitation.
On appeal, Shields contends that the District Court erred
by refusing to consider whether he currently qualifies as a
career offender and declining to rule on his objections to drug
weight and the firearm enhancement. He also argues that the
Court erred in denying him a resentencing hearing.
Shields was initially represented by counsel on appeal,
but after his opening brief was filed, his counsel filed a motion
to withdraw and Shields moved to proceed pro se, citing his
counsel’s refusal to include certain arguments that he wished
to press. We granted those motions3 and then appointed
amicus curiae to address whether the District Court erred by
disposing of Shields’s motion without (1) holding a hearing
3
As a result, the brief and appendix filed by Shields’s
counsel were stricken from the record and Shields’s pro se
briefs represent his only written submissions.
6
and/or (2) granting Shields’s request for permission to file a
sentencing memorandum.4
In view of two opinions we handed down after the
District Court’s resentencing in this case, United States v.
Easter, 975 F.3d 318 (3d Cir. 2020), and United States v.
Murphy, 998 F.3d 549 (3d Cir. 2021), as amended (Aug. 4,
2021), amicus agreed with Shields that the District Court had
erred by declining to recalculate Shields’s Guidelines range at
the time of resentencing and by refusing to reassess his career-
offender designation. Amicus also supported Shields’s view
that the District Court should have held an in-person
sentencing hearing because the judge who resentenced him
was not the same judge who imposed his original sentence. At
a minimum, amicus urged, the Court should have allowed
Shields to file a sentencing memorandum with additional
exhibits.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction over the initial
criminal proceeding pursuant to 18 U.S.C. § 3231 and
jurisdiction to consider Shields’s request for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(1)(B) and § 404 of
4
The Court commends David Fine, Esq. and Brian
Smith, Esq. for the excellent written and oral advocacy they
provided the Court as amicus curiae. We also extend our
thanks to their firm, K&L Gates, for supporting this important
public service and professional development opportunity for
rising attorneys. Attorneys who act pro bono fulfill the highest
service that members of the bar can offer to the court system
and to the legal profession.
7
the First Step Act, 132 Stat. at 5222. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We review a criminal sentence for a “violation of law,”
18 U.S.C. § 3742(a)(1), which includes “(i) matters of statutory
interpretation over which we have plenary review, as well as
(ii) questions about reasonableness,” which we review for
abuse of discretion. Easter, 975 F.3d at 322 (quoting United
States v. Manzella, 475 F.3d 152, 156 (3d Cir. 2007)). Where
a district court finds a defendant eligible for a sentence
modification under 18 U.S.C. § 3582(c) but either declines to
reduce the sentence or imposes a reduced sentence with which
the movant is not satisfied, we review for abuse of discretion.
See Easter, 975 F.3d at 322; Murphy, 998 F.3d at 553–54.
III. Discussion
This case raises two questions concerning resentencing
under the First Step Act. As we explain below, the first—
whether a district court, short of recalculating the benchmark
Guidelines range, is required to consider a defendant’s
arguments regarding intervening developments in law or
changes in the defendant’s circumstances—was just answered
in the affirmative by the Supreme Court in Concepcion v.
United States, 142 S. Ct. 2389 (2022). The second question
relates to the procedures adopted at resentencing, including
whether the district judge, at least when different from the
original sentencing judge, is required to hold an in-person
hearing or, in any case, must allow a defendant a reasonable
opportunity to file a sentencing memorandum before
resentencing. We address each question in turn.
8
A. Consideration of Intervening Changes in the
Facts or Law.
Shields, supported by amicus, argues that the District
Court was obligated to recalculate his benchmark Guidelines
range to account for the fact that, under current law, he would
no longer be considered a career offender. At the time this case
was argued, they were correct, and the Government admitted
as much. That is because our decisions in Easter and Murphy
controlled and dictated that the District Court was required not
only to consider Shields’s argument that he would no longer
qualify as a career offender, but also to undertake and apply
“an accurate calculation of the Guidelines range at the time of
resentencing.”5 Murphy, 998 F.3d at 552 (emphasis added);
see also Easter, 975 F.3d at 325–26.
After we heard argument on Shields’s appeal, however,
the Supreme Court issued its opinion in Concepcion,
abrogating these decisions in certain respects but upholding
them in others. In Concepcion, the Court took up the question
of whether district courts “must, may, or may not consider
intervening changes of law or fact” when deciding a First Step
Act motion. 142 S. Ct. at 2398.
In the category of what courts “may not” do, the Court
held, contrary to Easter and Murphy, that a district court’s
discretion does not empower it to “recalculate a movant’s
5
To be clear, the District Court was not disregarding
our guidance when it declined to consider whether Shields
would qualify as a career offender under current law because
Easter and Murphy were decided in 2020 and 2021,
respectively, after the District Court resentenced Shields in
2019.
9
benchmark Guidelines range in any way other than to reflect
the retroactive application of the Fair Sentencing Act,” as “the
First Step Act directs district courts to calculate the Guidelines
range as if the Fair Sentencing Act’s amendments had been in
place at the time of the offense.” Id. at 2402 n.6. Concepcion
thus validated the District Court’s decision to recalculate
Shields’s Guidelines range as if the Fair Sentencing Act’s
amendments had been in place at the time of his offense,
without taking into account any other intervening changes in
law, and to use that revised Guidelines range of 262 to 327
months as its starting point in deciding whether to reduce
Shields’s sentence. See id. (instructing that a defendant’s
Guidelines range, revised to reflect the retroactive application
of the Fair Sentencing Act, “anchor[s]” the resentencing
proceeding (quoting Peugh v. United States, 569 U.S. 530, 541
(2013)).
As far as what courts “may” consider, we had held that
they are authorized to take into account, at the time of
resentencing, any changed circumstances, “includ[ing] post-
sentencing developments, such as health issues or
rehabilitation arguments, as were raised” by the parties, Easter,
975 F.3d at 327, Murphy, 998 F.3d at 559, and the Supreme
Court in Concepcion agreed. In resolving the circuit split on
this matter, the Court reviewed the text and structure of the
First Step Act, noted the broad discretion that judges have
historically exercised when imposing and modifying
sentences, and acknowledged that district courts deciding
§ 404(b) motions regularly consider evidence of a movant’s
postsentencing rehabilitation or misconduct, as well as
unrelated, nonretroactive Guidelines amendments when raised
by the parties. Concepcion, 142 S. Ct. at 2398–2403. It
concluded that sentencing courts’ “broad discretion to consider
10
all relevant information . . . consistent with their responsibility
to sentence the whole person before them” also applies to “later
proceedings that may modify an original sentence,” id. at 2398,
and that “a district court adjudicating a motion under the First
Step Act may consider [any] intervening changes of law (such
as changes to the Sentencing Guidelines) or changes of fact
(such as behavior in prison) in adjudicating a First Step Act
motion,” id. at 2396.
The Court grounded this holding in Pepper v. United
States, 562 U.S. 476 (2011), which “found it ‘clear that when .
. . resentencing, a district court may consider evidence of a
defendant’s rehabilitation since his prior sentencing.’”
Concepcion, 142 S. Ct. at 2399 (quoting Pepper, 562 U.S. at
490). Pepper recognized that “postsentencing rehabilitation
bears directly on the District Court’s overarching duty to
‘impose a sentence sufficient, but not greater than necessary,’
to serve the purposes of sentencing.” Pepper, 562 U.S. at 493
(quoting 18 U.S.C. § 3553(a)). For that reason, and after
considering how the defendant’s postsentencing conduct
informed various of the § 3553(a) factors, including “the
‘history and characteristics’ of a defendant that Congress
intended sentencing courts to consider [under] § 3553(a),” id.
at 492, the Pepper Court held that § 3553(a) “permits district
courts to consider [not] only postsentencing evidence
detrimental to a defendant,” but also “favorable evidence” of a
defendant’s conduct postsentencing, id. at 504.
In Concepcion, the Court described Pepper’s deeply
rooted “federal sentencing framework” as “allow[ing]
sentencing judges to consider the ‘fullest information possible
concerning the defendant’s life and characteristics.’”
Concepcion, 142 S. Ct. at 2399 (quoting Pepper, 562 U.S. at
488, 490). It also observed that though Congress “is not shy”
11
about imposing such limits where it sees fit, it had not done so
in the First Step Act. Id. at 2400–01. Rather, “[n]othing in the
text and structure . . . expressly, or even implicitly, overcomes
the established tradition of district courts’ sentencing
discretion.” Id. at 2401. So combining that discretion with
courts’ long-standing “obligat[ion] to consider nonfrivolous
arguments presented by the parties,” Concepcion concluded
that a district court confronting a § 404(b) motion is “require[d]
. . . to consider intervening changes when parties raise them”—
including evidence of both “postsentencing rehabilitation and
unrelated Guidelines amendments when raised by the parties.”
Id. at 2396, 2402–03.
But while the resentencing court must “consider
nonfrivolous arguments presented by the parties,” id. at 2396,
it is not required to accept those arguments. To the contrary,
the First Step Act neither “require[s] a district court to accept
a movant’s argument that evidence of rehabilitation or other
changes in law counsel in favor of a sentence reduction, or the
Government’s view that evidence of violent behavior in prison
counsels against providing relief.” Id. at 2404–05. It “may, in
its discretion, dismiss arguments that it does not find
compelling,” and it may decline to grant any reduction
whatsoever. Id. at 2404. But “when raised by the parties,” any
information “relevant and probative” to sentencing must at
least be considered, consistent with the court’s “standard
obligation[s]” at sentencing and “background principles” of
sentencing jurisprudence. Id. at 2403–04.
As Concepcion applies here, the District Court erred in
holding that “[t]he First Step Act does not permit . . .
consider[ation] [of] other statutory or sentencing guideline
amendments enacted since the date [Shields] committed his . .
. offense,” and, on the basis of that mistaken premise, refusing
12
to consider Shields’s argument that, under current law, he
would not be considered a career offender. Dist. Ct. Op. 8 n.3.
On remand, then, the District Court should start with the
benchmark Guidelines range recalculated only to the extent it
adjusts for the Fair Sentencing Act and should consider
Shields’s arguments that he no longer qualifies as a career
offender6 and his renewed objections to the firearm
6
In his briefing before the District Court, Shields argued
only that his 1995 robbery conviction is no longer a predicate
offense under the career-offender guideline because it qualified
as a crime of violence under the residual clause of U.S.S.G.
§ 4B1.2(a), which has been excised from the Guidelines. And
the District Court was understandably skeptical, as Shields did
not explain why this offense would not qualify under the
“elements clause” of § 4B1.2(a). See United States v. Redrick,
841 F.3d 478, 484 (D.C. Cir. 2016) (holding that the same
Maryland conviction qualifies as a “violent felony” under the
“elements clause” of the Armed Career Criminal Act, which
contains identical language as U.S.S.G. § 4B1.2(a)). But as
amicus points out, it appears that Shields would not be
considered a career offender today in any event because our
decision in United States v. Nasir, 17 F.4th 459 (3d Cir. 2021),
established that inchoate crimes, like Shields’s 2002
conviction for conspiracy to distribute crack cocaine under
Maryland law, do not count as “controlled substance offenses”
under U.S.S.G. § 4B1.2(b) for purposes of the career-offender
guideline. See id. at 471–72. For that reason, we cannot accept
the Government’s argument that the District Court’s failure to
consider intervening changes in the law was merely harmless
error.
13
enhancement and the drug weight that was used to calculate his
Guidelines range.7
B. Resentencing Procedures
This brings us to Shields’s and amicus’s second
argument: that the District Court abused its discretion when it
denied his request for an in-person resentencing hearing or, in
the alternative, the opportunity to submit a sentencing
memorandum.
1. Resentencing Hearing After
Reassignment
As both parties and amicus acknowledge, we have
already held that in the normal course, a First Step Act movant
is not “entitled to a plenary resentencing hearing at which he
would be present.”8 Easter, 975 F.3d at 326. Shields and
7
While we held in Murphy that a resentencing court
cannot reconsider factual findings made by the original
sentencing court concerning the underlying offense, 998 F.3d
at 554–55, the District Court in this case did not make any
findings pertaining to these enhancements during Shields’s
original sentencing because it concluded that neither
enhancement would change his Guidelines range given his
career-offender status. As a result, just as the Court is
obligated to consider Shields’s argument that he would not be
considered a career offender under current law, it must also
consider his renewed factual objections going to the basis for
those enhancements.
8
In doing so, we joined “the clear consensus among our
sister circuits.” Easter, 975 F.3d at 326 (collecting cases); see
14
amicus assert, however, that this case presents a new wrinkle
precluding the straightforward application of that rule because
the judge who decided Shields’s First Step Act motion is not
the same judge who imposed his original sentence. The
question of whether an in-person hearing must be held under
these circumstances is one of first impression for our Court.
Amicus contends that an in-person hearing takes on
special importance where a district judge has not previously
“observe[d] and interact[ed] with the defendant” and therefore
may not be able to meaningfully consider a movant’s
sentencing arguments. Amicus Br. 9. This argument finds
support in the rationale for our review of sentences for abuse
of discretion: that “[t]he sentencing judge is in a superior
position to find facts and judge their import” because “[t]he
judge sees and hears the evidence, makes credibility
determinations, has full knowledge of the facts and gains
insights not conveyed by the record.” United States v. Tomko,
562 F.3d 558, 566 (3d Cir. 2009) (en banc) (first alteration in
Tomko) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). For obvious reasons, a district judge who conducts a
First Step Act resentencing based purely on a paper record will
not have this advantage over the reviewing appellate court.
It is certainly true that an in-person hearing may
enhance a district court’s ability to consider relevant factual
and legal arguments and, of course, nothing precludes a district
court from holding such a hearing on a First Step Act
resentencing if it sees fit in its discretion to do so. But we
also United States v. Smith, 982 F.3d 106, 112 (2d Cir. 2020)
(holding that no in-person hearing is required to decide a First
Step Act motion).
15
cannot say that judges resentencing defendants whom they
have never met are categorically unable to give the § 404(b)
motion due consideration.
First and foremost, a judge who presided over a
defendant’s sentencing hearing years or even decades ago may
not have a clear memory of the original sentencing, especially
considering that district judges sentence, on average, over a
hundred defendants each year. See Gall, 552 U.S. at 52 n.7
(noting that, as of 2006, district court judges were sentencing
an average of 117 defendants every year). Yet, we held in
Easter that First Step Act movants are not entitled to in-person
plenary resentencing hearings, and we made no distinction
between those judges who specifically recalled the original
proceedings and those who did not. In either case, as in the
case of a judge to whom a matter involving a motion for First
Step Act resentencing has been reassigned, we are confident
our colleagues on the district courts can and will carefully
consider the factual information and legal arguments raised by
the parties.
Second, a district judge resentencing a defendant under
the First Step Act is not starting from scratch. Rather, that
judge has the benefit of the record from the original sentencing,
including the PSR, the transcript of the sentencing hearing, and
the sentence imposed, which reflects the original sentencing
judge’s consideration of the § 3553(a) factors. And although a
court deciding a § 404(b) motion is obligated to consider
relevant intervening legal or factual developments brought to
their attention by the parties, there is no requirement that the
court conduct a de novo presentence investigation or raise
arguments about new developments sua sponte. See
Concepcion, 142 S. Ct. at 2404 (emphasizing the “broad
discretion that the First Step Act affords to district courts”). It
16
stands to reason, then, that unlike in an initial or plenary
resentencing, a hearing is not essential in a First Step Act
sentencing modification proceeding, as the record of the
original sentencing, along with the arguments of the parties,
provide the judge with sufficient information to decide whether
and by how much to reduce the movant’s sentence.
Finally, with or without a hearing, the district court’s
exercise of discretion in ruling on a § 404(b) motion is subject
to judicial review. Judges conducting First Step Act
resentencings are required to “articulate . . . a brief statement
of reasons” in which they “explain their decisions and
demonstrate that they considered the parties’ arguments.” Id.;
see Easter, 975 F.3d at 326–27 (requiring district courts to
demonstrate their consideration of the parties’ arguments). On
appeal, our review is deferential in that we do not “substitute
[our] judgment for that of the sentencing court as to the
appropriateness of a particular sentence,” Concepcion, 142 S.
Ct. at 2404, but we analyze the record to ensure that the district
court has made no legal errors and “has demonstrate[d] that it
has considered the arguments before it.” Id. at 2404–05; see
United States v. Grier, 475 F.3d 556, 572 (3d Cir. 2007) (en
banc) (remanding where district court had not provided “a
sufficiently detailed explanation” of its reasoning in imposing
a particular sentence “that lends itself to effective review”).
This additional level of review ensures district courts satisfy
their “standard obligation to explain their decisions and
demonstrate that they considered the parties’ [nonfrivolous]
arguments.” Concepcion, 142 S. Ct. at 2404.
Of course, that explanation need not “‘expressly rebut
each argument’ made by the parties.” Id. (quoting United
States v. Maxwell, 991 F.3d 685, 694 (6th Cir. 2021)). No
doubt it would be prudent and facilitate appellate review (in
17
effect, the better practice) for a district court judge who did not
also impose the defendant’s initial sentence to allow a fuller
opportunity to present his case, thus allowing the judge “more
extensively” to set forth her reasons for modifying or declining
to modify a sentence. United States v. Jones, 980 F.3d 1098,
1113 (6th Cir. 2020); see United States v. High, 997 F.3d 181,
189 (4th Cir. 2021) (noting that it was “significant” that the
judge who denied a defendant’s motion for compassionate
release was the same judge who originally sentenced him for
purposes of evaluating the sufficiency of the judge’s
explanation); cf. Chavez-Mesa v. United States, 138 S. Ct.
1959, 1967 (2018) (affirming resentencing within the amended
Guidelines range based on a brief statement of reasons where
the same judge had imposed the defendant’s original sentence
and stated on the record his reasons for the original sentence).
But as a general matter, a district judge need only “set forth
enough [in his statement of reasons] to satisfy the appellate
court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356 (2007).
In sum, neither the original sentencing judge nor a judge
to whom the case has been reassigned is required to hold an in-
person resentencing hearing on a First Step Act motion, so the
District Court here did not err in denying that request.
2. Opportunity to Submit a Sentencing
Memorandum
Even when a district court holds an in-person
resentencing hearing—and certainly when it does not—a
sentencing memorandum offers an invaluable opportunity for
First Step Act movants to present their arguments. And under
well-established sentencing jurisprudence, “district courts are
18
always obligated to consider nonfrivolous arguments presented
by the parties” and provide an explanation of their decisions
demonstrating “that [they] ‘reasoned through [those]
arguments.’” Concepcion, 142 S. Ct. at 2396, 2404 (quoting
Maxwell, 991 F.3d at 693). But if a district court does not allow
a movant a reasonable opportunity to present his arguments, a
fortiori it cannot consider them.
Unfortunately, that is how things played out here.
Shields’s motion requested a resentencing hearing, or, in the
alternative, “the opportunity to file a memorandum and
supplemental documentation to support his position
concerning the appropriate guideline range and for a variance.”
First Step Act Mot. 15. He reiterated that request “to
supplement the record in support of a variance” in his reply
brief. United States v. Shields, No. 1:08-cr-00314-MEM-2
(M.D. Pa. June 11, 2019), Dkt. No. 258 at 9. But without
addressing Shields’s request to file a sentencing memorandum
and supplement the record, the District Court simply denied the
request for a hearing and imposed its reduced sentence.
Shields thus was not afforded a full opportunity to present his
resentencing arguments to the District Court.
The Government counters by pointing out that Shields
did submit two “supplements” that pertained to his
rehabilitation, including his Bureau of Prisons Individualized
Reentry Plan and the various certificates of completion and
achievement from prison programs. But these supplements
consisted solely of exhibits, not arguments, and Shields
conveyed in both his briefing before the District Court and on
appeal that he would have filed a sentencing memorandum,
accompanied by additional exhibits if permitted. The District
Court erred by denying Shields either a hearing or a reasonable
19
opportunity to present his sentencing arguments in writing.
See Concepcion, 142 S. Ct. at 2396.
As amicus helpfully points out, several district courts in
our Circuit have adopted a procedure in deciding First Step Act
motions that is designed to avoid this misstep, and there is
much to recommend it. First, upon receiving the motion, the
court determines whether the defendant is eligible for relief
under the statute; second, the court orders the Probation Office
to prepare an addendum to the PSR addressing the proper
Guidelines calculation; third, the Court gives the parties the
opportunity to file memoranda noting any objections to the
PSR, discussing the § 3553(a) factors, and attaching any
relevant documentation; and fourth, the Court decides whether
to reduce the defendant’s sentence, and if so, by how much.9
While we decline to mandate this approach, we applaud those
courts that have developed and adopted it, as it ensures an
orderly and fair process and reduces the likelihood of remand
on appeal.
IV. Conclusion
For the foregoing reasons, we will vacate Shields’s
reduced sentence and remand for further proceedings in line
with this opinion.
9
See, e.g., United States v. Patterson, No. 1:08-cr-383
(M.D. Pa. Oct. 3, 2019), Dkt. No. 121; United States v. Brown,
No. 1:02-cr-83 (M.D. Pa. Sept. 5, 2019), Dkt. No. 133; United
States v. Reaves, No. 1:07-cr-104 (M.D. Pa. Jun. 14, 2019),
Dkt. No. 483; United States v. Rhines, No. 4:01-cr-310 (M.D.
Pa. Jun. 3, 2019), Dkt. No. 355.
20