Plenary Resentencing Denied in First Step Act Case

          In a published order on March 4, 2020, the Sixth Circuit held in United States v. Alexander that a person seeking a sentence reduction under the First Step Act (FSA) is not entitled to a de novo resentencing hearing.[1]

          When Mr. Alexander was sentenced in 2007 for an offense involving 50 grams or more of cocaine base (crack), his statutory penalty range was 10 years to life. As a career offender, his guidelines range was 360 months to life. He was sentenced to 360 months imprisonment and 5 years of supervised release.

          Mr. Alexander filed a pro se motion for a sentence reduction under § 404 of the FSA which made certain provisions of the Fair Sentencing Act retroactive. Under the latter Act, the statutory maximum for an offense involving 50 grams of crack was lowered to 40 years imprisonment. That statutory change lowered the career offender guidelines range to 262 to 327 months.

          Mr. Alexander maintained that he should again be sentenced “at the bottom end of the career offender guideline” and that a “sentence of 262 months would be reasonable in this matter.” The government agreed that Mr. Alexander was eligible for an FSA sentence reduction and that his new guidelines range would be 262 to 327 months. The district court granted Mr. Alexander’s motion and reduced his sentence to 262 months.

          Proceeding pro se on appeal, Mr. Alexander contended that the FSA required the district court to conduct a de novo resentencing hearing so he could present arguments in support of a sentence outside the lowered guidelines range. The Sixth Circuit said that the FSA’s “limited, discretionary authorization to impose a reduced sentence is inconsistent with a plenary resentencing.” Slip. Op. at 4 (citations omitted). The court also noted that Fed.R.Crim.Proc. 43(b)(4) supported the conclusion that the FSA and 18 U.S.C. § 3582(c)(1)(B) do not require a de novo resentencing hearing because under the Rule the defendant “need not be present” if the “proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).” Consequently, Mr. Alexander “was not entitled to a plenary resentencing.” Slip. Op. at 4.

          The door is not, however, completely closed on the possibility of a plenary resentencing for a person eligible for FSA relief. Although one may not be entitled to plenary resentencing that does not mean a district court cannot conduct one if warranted by the circumstances in a given case. Mr. Alexander’s case suggests as much.

          On appeal, Mr. Alexander offered several reasons to support his argument for a de novo resentencing hearing at which he would maintain that he should get more of a sentence reduction. Mr. Alexander contended that “the district court was unaware of or failed to understand its discretion to depart from the career offender range;” he should have received a 1-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b); and “his post-offense rehabilitation and serious medical condition should have been considered.” Slip. Op. at 5. However, those reasons were not raised in the motion for a sentence reduction. The Sixth Circuit simply noted that the district court did what Mr. Alexander requested in his motion and reduced his sentence to 262 months. Thus, it appears that if a district court is given sufficient reasons, it could grant a de novo resentencing hearing on a motion seeking FSA relief.

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[1] The order was unpublished when it was originally issued on October 18, 2019. The Sixth Circuit has now designated it for publication.