The First Few Steps of First Step Act Litigation
The First Step Act of 2018 is just under two years old, and so the contours of the rights and remedies it created are just starting to come into view. The Sixth Circuit provided some more clarity this week in a handful of published and unpublished cases.
Eligibility. So far, the Sixth Circuit has said that the Act provides a chance for resentencing even for those who were sentenced under the career-offender guidelines, not the drug guidelines. See United States v. Beamus, 943 F.3d 789, 791 (6th Cir. 2019). This week, in United States v. Flowers, the Court clarified that people are eligible for relief under the First Step Act even if their Guidelines remain unchanged.
Procedure. People are not entitled to have a fresh hearing where all mitigating and aggravating circumstances are reweighed. United States v. Alexander, 951 F.3d 706 (6th Cir. 2019) (per curiam order); see also United States v. Foreman, 958 F.3d 506, 510–12 (6th Cir. 2020). But sentencing judges have discretion to do so and are wrong to think they cannot consider a person’s efforts to improve himself or herself while in prison. United States v. Allen, 956 F.3d 355, 357–58 (6th Cir. 2020). And district courts must recalculate and consider the current Guidelines. United States v. Boulding, No. 19-1590, --- F.3d ---, 2020 WL 2832110, at *7–8 (6th Cir. June 1, 2020). Decisions to maintain the original sentence that is above the post-First Step Act Guidelines require compelling justification. United States v. Smith, 959 F.3d 701, 704 (6th Cir. 2020).
This week, in United States v. Domenech, the Sixth Circuit provided an illustration of how these principles should be applied in the process. In 2007, two brothers, William and Alejandro, were convicted and sentenced for various drug and firearms offenses. They filed a motion for a sentence reduction. William originally received a 174-month sentence. The new Guidelines range applicable to him is 120-150 months. The district judge sentenced Alejandro to serve 360 months in prison. The amended range now is 262-327 months. The judge denied both motions.
On appeal, the Sixth Circuit held that a district court abused its discretion by rejecting a motion for a sentence reduction relying on the reasons provided at the original sentencing. The court failed to treat the reduced ranges as the starting point and identified factors already incorporated into the Guidelines calculation.
Limitations. United States v. Wylie, offers an odd wrinkle to the mix. The district court sentenced Mr. Wylie to serve a 51-month sentence for being a felon in possession of a firearm and ammunition. Fifteen days later, the judge notified the parties that he’d changed his mind and wanted to impose a lower sentence to make it more consistent with the First Step Act. The government appealed the 41-month sentence arguing that the district court did not have jurisdiction to do this.
The Sixth Circuit agreed because Federal Rule of Criminal Procedure 35(c) allows only for clerical changes after the imposition of a sentence, which is the date of the oral pronouncement, not the date the judgment is entered on the docket.18 U.S.C. § 3582(c)(2) is an additional obstacle because it prescribes only two methods to reduce a sentence: a motion by the Bureau of Prisons or a motion by the defendant. So, Mr. Wylie will have to file a motion for a sentence reduction. At least his chances of having it granted look good.
Appeals. Lurking beneath this week’s First Step Act opinions is an unaddressed issue: jurisdiction. For years, the Sixth Circuit dismissed for lack of jurisdiction appeals of the denial of a motion for a sentence reduction. It was the only court to interpret 18 U.S.C. § 3742 this way. In United States v. Marshall, 954 F.3d 823 (6th Cir. 2020), the Court changed course, holding that § 3742 is a mandatory claims processing rule, not a jurisdictional limitation.
Still, some panels dismissed appeals of the denial of a sentence reduction under the First Step Act for lack of subject-matter jurisdiction. See United State v. Butler, 805 F. App’x 365 (6th Cir. 2020). Recently, that debate was put to rest when another panel held that 28 U.S.C. § 1291 is the source of appellate jurisdiction to review an appeal of the denial of a motion for a sentence reduction under the First Step Act. United States v. Richardson, 960 F.3d 761 (6th Cir. 2020). The Richardson panel saved for another day whether § 3742 imposes any limitation on the scope of appellate review and assumed without deciding that it could decide if the denial was substantively reasonable. Judge Kethledge wrote a concurrence to highlight that he does not believe § 3742 has any role to play when a district judge denies a motion for a sentence reduction.
In each of the First Step Act cases the Sixth Circuit decided this week, the panels did not even mention § 3742. Instead, they reviewed the denial of the motion for an abuse of discretion.