Criminal Law--Crack-Cocaine Sentencing Guidelines Allow Judges to Consider Intervening Changes--Concepcion v. United States, 142 S. Ct. 2389 (2022).
Congress created the United States Sentencing Commission under the Comprehensive Crime Control Act of 1984 to formulate national sentencing guidelines that help federal judges make fair, consistent decisions across similar crimes. (1) In 2010, Congress passed the Fair Sentencing Act to reduce the sentencing disparity between crack-cocaine and powder-cocaine sentences; in 2011 the Sentencing Commission applied the Fair Sentencing Act's new federal sentencing guidelines retroactively to offenses that took place prior to 2010, but only applied the sentencing guidelines to sentences imposed after the passage of the Fair Sentencing Act. (2) In Concepcion v. United States, (3) the Supreme Court analyzed whether judges may consider "intervening changes of law or fact" when determining the degree of sentence reduction for offenders under the First Step Act of 2018, which allowed crack-cocaine defendants sentenced prior to 2010 to apply for reduced sentencing. (4) The Court held that judges may consider intervening changes when reducing sentences and are only limited in their reduction analysis when Congress or the Constitution limits judicial discretion. (5)
In 2007, Carlos Concepcion admitted to selling 13.8 grams of crack-cocaine and subsequently pled guilty to one count of distributing five or more grams of crack-cocaine in violation of 21 U.S.C. [section] 841(a)(1). (6) In 2009, the trial court sentenced Concepcion to 228 months in prison. (7) When the court sentenced Concepcion, his crack-cocaine offense carried a sentencing guidelines range of five to forty years' imprisonment. (8) The court also sentenced Concepcion as a career offender, which increased his sentencing guidelines range from 57 to 71 months to 262 to 327 months; nevertheless, in considering his troubled past and current policy developments, the court allowed for a downward variance of 228 months. (9)
Following Congress's passage of the Fair Sentencing Act in 2010, the Sentencing Commission began to retroactively amend sentencing guidelines in accordance with the 2011 amendment. (10) The First Step Act's passage vacated one of Concepcion's convictions, reversing his status as a career offender and allowed him to apply for a reduced sentence under the Fair Sentencing Act's 2011 amendment. (11) In 2019, Concepcion filed a pro se motion to reduce his sentence; despite conceding Concepcion's eligibility, the government opposed his motion stating that his original sentence of 228 months fell within the Fair Sentencing Act's new sentencing guidelines range of 188 to 235 months. (12) Although the government considered Concepcion's participation in various prison programs, it ultimately advised against his sentence reduction due to other issues he had in prison. (13) Concepcion argued in his reply brief that he was no longer a career offender under the amended sentencing guidelines, citing the completion of various programs exemplifying his rehabilitation. (14) The district court adopted the Fifth Circuit's reasoning that the original sentencing remained within the new sentencing guidelines, and denied Concepcion's motion because it was not required to consider evidence of rehabilitation. (15)
In creating the Sentencing Commission in 1984, Congress aimed to introduce more certainty and fairness in the sentencing process, especially among offenders convicted of similar crimes. (16) The Sentencing Commission further attempted to incorporate scientific developments in human behavior into the sentencing process to maximize fairness--such as integrating alternative sentencing methods, like community service, to assess their effectiveness on rehabilitation. (17) When the sentencing guidelines went into effect on November 1, 1987, many defendants questioned their constitutionality, claiming the new sentencing process constituted improper legislative delegation and violated the separation of powers doctrine. (18) The Supreme Court, however, upheld the constitutionality of the Sentencing Commission, establishing that the sentencing guidelines have the force and effect of laws. (19) Further, the Supreme Court recognized that, while not bound by the sentencing guidelines, district courts must consider them when making sentencing decisions. (20) Nevertheless, the Supreme Court held that appellate courts may apply a presumption of reasonableness when reviewing a district court's application of the sentencing guidelines. (21)
In 2010, Congress passed the Fair Sentencing Act, which reduced the disparity between powder-cocaine and crack-cocaine statutory sentences. (22) In 2011, the Sentencing Commission submitted an amendment to the Fair Sentencing Act, making the Act retroactive and applying the new sentencing guidelines to sentences imposed after August 3, 2010, regardless of when the offense occurred. (23) Between 2010 and 2014, the Fair Sentencing Act halved the number of crack- cocaine offenders in the federal system. (24) In 2018, Congress passed the First Step Act, which aimed to further reduce the size of the federal prison population. (25) The First Step Act attempted to reduce prison populations by retroactively applying the Fair Sentencing Act, resentencing any qualified prisoners. (26)
As of August 31, 2020, the retroactive application reduced 2,387 offenders' sentences. (27) By implementing the First Step Act, the Department of Justice (DOJ) and BOP incorporated new resentencing guidelines, including an assessment of risks related to prisoners' reentry and prisoners' rehabilitative progress while incarcerated. (28) In practice, however, the First Step Act had issues in its application, its implementation, and in the recalculation of sentences. (29) The lack of direction from the Sentencing Commission became especially salient during the COVID-19 pandemic when the courts were inundated with compassionate release motions, leaving judges with only their discretion to interpret and apply the new sentencing guidelines. (30)
In Concepcion, the Supreme Court held that, in addition to reducing crackcocaine sentences under the Fair Sentencing Act, district court judges have wide discretion to consider intervening changes of law and fact raised by defendants to reduce their sentences. (31) The district court initially denied Concepcion's motion because his sentence would remain unchanged even when retroactively applying the Fair Sentencing Act under the First Step Act. (32) In a split decision, the First Circuit affirmed the district court's decision, analyzing the First Step Act as a "two-step inquiry." (33) The First Circuit's dissenting opinion argued that there is only one step in this analysis and that district courts have "substantial discretion" to consider evidence of factual or legal developments. (34)
Ultimately, the Supreme Court reversed the First Circuit's decision, agreeing with the lower court's dissent. (35) The Supreme Court stated that district courts have the discretion to consider intervening factors--such as other applicable changes of law and fact, or defendants' rehabilitation in prison--and remanded Concepcion's case for further proceedings. (36) The Court clarified that a district court judge needs only to consider arguments for reduced sentences rather than be bound by them, thus not limiting their discretion. (37) Justice Kavanaugh's dissent argued that the First Step Act aimed to reduce crack-cocaine sentences consistently, implying that the majority's decision will create disparity if district courts consider intervening factors. (38) Further, the dissent indicated that the First Step Act's function is not to give judges wide discretion in making sentencing determinations based on legal or factual changes to reduce sentences further. (39) The dissent also emphasized that by giving district court judges wide discretion, the application of the First Step Act will result in inequities in sentencing reductions. (40)
Although inequities in the resentencing of crack-cocaine offenders under the First Step Act may occur, the results are unlikely to result in the disparities predicted by the Supreme Court's dissenting justices. (41) Judicial discretion generally toes the line between subjectivity and consistency with judges trying, on the one hand, to tailor sentences to the individual circumstances of the defendant and their case, and on the other, aiming to deliver the same sentence for the same crime for all defendants. (42) This tension in the judicial system is essential to ensuring maximum fairness, including tailoring crack-cocaine resentencing to the individual. (43) Mandatory minimums set by the U.S. Code for specific offenses provide limitations to judges when making sentencing reductions. (44) Despite the dissent's concerns, and although there may be some variation between judges in their use of other intervening changes of law and fact, disparities in resentencing under the First Step Act so far are minimal across all the circuits in the U.S. Courts of Appeals: There is only a 6.3% difference between the circuit granting the largest decrease and the circuit granting the lowest decrease in sentence. (45) Therefore, consideration of intervening changes is unlikely to impact sentence reductions drastically, as shown by the fairly uniform sentence reductions across circuits. (46)
The dissent's issue with potential disparities that may follow from considering intervening changes fails to address the bigger picture post-Concepcion: If judges are considering...
