Another FSA case

In United States v. Bailey, the Sixth Circuit added to its expanding and “less than clear” First Step Act jurisprudence.

In 2008, Mr. Bailey was sentenced to 360 months as a career offender. After the FSA passed, he moved for a sentence reduction based on his rehabilitation, lack of disciplinary history, and the unwarranted sentencing disparities posed by leaving his 360-month career offender sentence intact. The district court denied his motion in a one-page order, dedicating two sentences toward explaining its decision.

The Sixth Circuit found this denial to be procedurally reasonable despite the brevity of the order. It held that the judge appropriately considered Mr. Bailey’s post-conviction conduct and gave several of the 18 U.S.C. § 3553(a) factors “renewed consideration.” In concurrence, Judge Gilman reviewed the “contradictory” state of the law regarding procedural requirements for FCA motions, discerning two principles: that a court’s order will not be deemed insufficient simply based on its length, and that looking anew at FSA cases is especially important because the judge on an FSA motion will often be different than the judge who conducted the initial sentencing.

Perhaps more interesting is the Court’s brief discussion of the substantive reasonableness of the district court’s decision. Mr. Bailey’s utilized Sentencing Commission data and argued that his sentence creates, rather than avoids, unwarranted disparity because it is unlike most of the sentences similar offenders receive today. The Court disagreed, stating plainly that within-guidelines sentences reduce disparities.The concurrence also did not engage with the data, instead emphasizing the point made in United States v. Hymes, 19 F.4th 928, 935 (6th Cir. 2021), that district courts are not required to consider the Commission’s data.

 

 

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