By: Rhianna Torgerud, Volume 106 Staff Member
From 1986 to 2010, one gram of crack cocaine was treated as equivalent to 100 grams of powder cocaine when setting federal statutory minimum and maximum sentences. This 100-to-1 sentencing disparity was widely criticized as discriminatory against African Americans, and other minorities, who are more likely to be convicted of a crack cocaine offense than white individuals. In 2010, Congress enacted the Fair Sentencing Act which reduced the disparity from 100-to-1 to an 18-to-1 crack-to-powder ratio. In effect, the Fair Sentencing Act substantially increased the amount of crack cocaine needed to trigger a mandatory-minimum sentence.
However, the Fair Sentencing Act did not apply retroactively to defendants who were sentenced under the 100-to-1 regime. It wasn’t until 2018, when Congress enacted the First Step Act, that the Fair Sentencing Act became retroactive. This opened the door to relief for thousands of defendants who had been disproportionately, and discriminatorily, sentenced between 1986 and 2010.
In 2008, just two years before the Fair Sentencing Act, Carlos Concepcion pled guilty to possession with intent to distribute crack cocaine. Because of his particular criminal history, Concepcion was deemed a “career offender.” In light of this, Concepcion faced a mandatory minimum sentence of ten years. Ultimately the U.S. District Court for the District of Massachusetts deemed a nineteen-year sentence appropriate.
Following the passage of the Fair Sentencing Act, Concepcion filed several motions to review his sentence, each failing. Then, after the enactment of the First Step Act, Concepcion again filed a motion to reduce his sentence. In his arguments to the district court, he asked the court to consider intervening legal and factual developments since his initial sentencing. Specifically, Concepcion argued that he no longer qualified as a career offender under current law. Furthermore, he argued for a new sentencing range between fifty-seven and seventy-one months (between four and a half to six years), asking the court to sentence him to time served in consideration of his drug treatment, pursuit of education, and overall good behavior while in prison.
Section 404 of the First Step Act allows defendants who were previously convicted of “covered offense[s]” involving crack cocaine to seek a reduction in their sentence. The district court “may impose a reduced sentence as if” the revised penalties for crack cocaine contained in the Fair Sentencing Act were “in effect at the time the covered offense was committed.”
The district court declined to resentence Concepcion, stating that they could not consider “any intervening developments.” The First Circuit affirmed the district court’s decision, holding that a district court cannot consider current facts and law when deciding whether to reduce a sentence under the First Step Act.
Every circuit has answered the question of a district court’s authority during a First Step Act resentencing, leading to varying results. The Court in Concepcion v. United States must tackle this circuit split and answer the question whether District Courts: 1) must, 2) may, or 3) cannot consider intervening legal and factual developments when deciding whether to “impose a reduced sentence” on an individual under Section 404(b) of the First Step Act. This decision could impact the resentencing of thousands of individuals who were disproportionately, and discriminatorily, sentenced under the 100-to-1 regime.
I. MUST OR MAY: CONCEPCION’S POSITION
According to Concepcion, the text of the Act does not prohibit considering current facts and law, but rather requires such consideration, because the Act gives district courts discretion to “impose a reduced sentence” on eligible defendants. In the sentencing context, “impose” has a known and settled meaning that points district courts to 18 U.S.C. § 3553(a) which mandates courts to consider certain outlined factors when determining the sentence. Concepcion argues that because “impose” has a settled meaning in the sentencing context, it is reasonable to believe that Congress intended for it to have the same meaning here so the entirety of sentencing law is consistent. Ultimately, the way Section 3553(a) has been interpreted by the Court requires district courts to consider current facts and law when “imposing” a sentence. Therefore, if the Court were to give the same import to the word “impose” in this context as they do in the regular sentencing context, district courts would have to consider current law and facts when deciding whether to impose a new sentence under Section 404(b).
Additionally, Concepcion gives reasons for why, at a minimum, district courts may consider current law and facts when deciding whether to impose a new sentence under Section 404(b). These include 1) the discretionary nature of the statute, 2) the lack of explicit limitations in the statute regarding what factors the court may consider, 3) the legislative history indicating the purpose of the statute was to provide “individualized” relief rather than a restricted one size fits all approach, and 4) longstanding sentencing and judicial decision-making principles which generally mandate consideration of current law and facts during initial sentencing and general resentencing, or at minimum leave it to the court’s discretion.
II. THE GOVERNMENT PARTIALLY AGREES: CANNOT IS INCORRECT, BUT SO IS MUST
At a high level, the government agrees with Concepcion’s alternative position that district courts may consider new facts and law. Notably, the government does not take the position that district courts cannot consider such things.
However, the bulk of the government’s argument is spent on attacking the must approach. Essentially, the government argues that the must approach would transform the First Step Act resentencing process into a “plenary resentencing” process. Instead, the government characterizes First Step Act proceedings as “modifications to a term of imprisonment” rather than a resentencing proceeding. Citing Dillon v. United States, the government argues that in a First Step Act “sentencing modification” proceeding, courts “may” consider the Section 3553(a) factors, which include current facts.
Furthermore, the government points to the phrase “as if” to argue that the only mandate Congress gave to district courts in Fair Step Act proceedings was to place themselves at the time of the original sentencing and alter the legal landscape to consider what penalties would have applied if Sections 2 and 3 of the Fair Sentencing Act had been in effect at the time the offense was committed. The government agrees that courts may go beyond these considerations, but they are not required to absent another express mandate in the statute’s language.
III. A BALANCING ACT: WHAT APPROACH SHOULD THE COURT ADOPT?
The Court should adopt the must approach because it is supported by textual evidence, allows judges to consider relevant information when making resentencing decisions, and corrects and avoids (re)sentencing disparities. While the other approaches have some of these elements, the must approach strikes the best balance out of all the approaches.
As Concepcion argues, there is textual evidence that Congress intended to require district courts to consider current law and facts when making a First Step Act decision. This is evidenced by the use of the term “impose” which has a settled meaning in the sentencing context to mandate that courts look to Section 3553(a) and consider current facts and law. Furthermore, that the Act includes two explicit limitations, yet no limitation on what the court may consider, suggests that Congress did not intend to prohibit consideration of current law and facts. Thus, the cannot approach is less supported by textual evidence than the must and may approaches.
Additionally, the must approach, like the may approach, does not prohibit judges from considering relevant information that happens to be current law or facts when making a First Step Act resentencing decision. As pointed out by Concepcion’s attorney during oral argument, under the cannot approach, “the fact that a defendant was suspected in the murder of a prison guard would be an impermissible consideration when deciding whether to reduce that defendant’s sentence.” Concepcion and the government agree that courts should not be prohibited, absent an express limitation, from considering highly relevant information to resentencing—a strength of the must and may approaches.
Finally, when it comes to correcting sentencing disparities and avoiding resentencing disparities, the must approach is better than the cannot and may approaches respectively. While the must approach’s appeal is undercut by the fact that it can lead to sentencing disparities between incarcerated individuals who are eligible for First Step Act relief and those who are ineligible, this is outweighed by the increased effectiveness of the must approach over the cannot approach in correcting disparities created by the 100-to-1 regime. If judges are not prohibited from considering current law and fact, they likely have more reasons to reduce individuals’ original sentences which were affected in every facet by the 100-to-1 regime and the disparate attitudes and views about crack cocaine compared to other drugs.
Furthermore, the must approach avoids resentencing disparities in First Step Act proceedings better than the may approach. As several of the justices noted during oral argument, the may approach’s delegation of absolute discretion would inevitably result in disparities in First Step Act proceedings because some courts will consider current law and facts while other courts will not. Because the must approach mandates district courts to consider current facts and law it better avoids resentencing disparities than the may approach.
In balancing the key considerations of textual support, allowing judges to consider relevant information when making resentencing decisions, and correcting and avoiding (re)sentencing disparities, it becomes clear that although none of the approaches presented to the court are perfect, the must approach strikes the best balance. The must approach allows for greater reductions in sentences and has the potential to make up for the disparities created not only by the 100-to-1 ratio, but also the disproportionately negative and unwarranted attitudes toward crack that inherently influenced defendants’ original sentences. The must approach also avoids creating vast resentencing disparities among defendants seeking relief under the First Step Act. For these reasons, the Court should adopt the must approach so current facts and law are considered when deciding to resentence the thousands of individuals seeking relief under the First Step Act from their disproportionate and discriminatory original sentences.
 Jim Abrams, Congress Passes Bill to Reduce Disparity in Crack, Powder Cocaine Sentencing, Wash. Post (July 29, 2010), https://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072802969.html [https://perma.cc/PRM9-E432].
 Aamra Ahmad, After 35 Years Congress Should Finally End the Sentencing Disparity Between Crack and Powder Cocaine, ACLU (Dec. 20, 2021), https://www.aclu.org/news/criminal-law-reform/after-35-years-congress-should-finally-end-the-sentencing-disparity-between-crack-and-powder-cocaine [https://perma.cc/L54G-ZTPX] (“In 2020, 77% of individuals convicted of crack cocaine offenses were Black, while historical data tells us that 66% of crack cocaine users have been white or Hispanic.”).
 The First Step Act of 2018 One Year of Implementation, at 41, U.S. Sentencing Comm. (Aug. 31, 2020), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/20200831_First-Step-Report.pdf [https://perma.cc/S2X2-TBJE].
 Id. (explaining that the Fair Sentencing Act increased the quantity of crack cocaine required to trigger the 5-year mandatory minimum from 5 grams to 28 grams and the 10-year mandatory minimum from 50 to 280 grams).
 Id. at 42.
 Id. at 42.
 Id. at 41 (reporting that in the first year after the passage of the First Step Act, courts granted 2,387 reductions in sentences pursuant to Section 404).
 Brief for Petitioner at 9, Concepcion v. United States, No. 20-1650 (U.S. filed Nov. 15, 2021).
 Id. at 10.
 Id. at 10.
 Marco Poggio, Supreme Court Will Seek to Solve Crack Resentencing Puzzle, Law360 (Sept. 30, 2021), https://www.law360.com/pulse/articles/1426778/supreme-court-will-seek-to-solve-crack-resentencing-puzzle [https://perma.cc/42SU-WGE2].
 Brief for Petitioner at 10, Concepcion v. United States, No. 20-1650 (U.S. filed Nov. 15, 2021).
 Id. at 11.
 First Step Act of 2018, § 404(a), Pub. L. No. 115-391, 132 Stat. 5194, 5222.
 Id. at 404(b).
 Id. at 12.
 See Poggio, supra note 12 (explaining that the Third, Fourth, Tenth, and D.C. circuits employ the must approach, while the Fifth, Ninth, Eleventh and now First circuits employ the cannot approach and the Second, Sixth, Seventh, and Eighth circuits employ the may approach).
 Brief for Petitioner at 18, Concepcion v. United States, No. 20-1650 (U.S. filed Nov. 15, 2021) (citing Section 404(b) of the Fair Sentencing Act).
 18 U.S.C. § 3553(a); see also 18 U.S.C. § 3551(a)–(b) (dictating that when a court imposes a sentence for “an offense described in any Federal statute,” the individual “shall be sentenced, in accordance with the provisions of section 3553”).
 Brief for Petitioner at 19, Concepcion v. United States, No. 20-1650 (U.S. filed Nov. 15, 2021) (citing Tanzin v. Tanvir, 141 S. Ct. 486, 490–91 (2020)).
 See id. at 20 for an explanation of how 3553(a) mandates district courts to consider current facts when imposing a sentence under United States v. Bryson, 229 F.3d 425, 426 (2d Cir. 2000) and Pepper v. United States, 562 U.S. 476, 480 (2011). Furthermore, see id. at 20–21 for an explanation of how 3553(a) mandates district courts to consider current law when imposing a sentence under 18 U.S.C. 3553(a) and Gall v. United States, 552 U.S. at 49.
 Id. at 21.
 Id. at 21–22.
 Id. at 26.
 Id. at 30–33. Judges are rarely precluded from considering current facts and law, and when they are it is typically explicit. Id.
 Brief for Respondent at 19, Concepcion v. United States, No. 20-1650 (U.S. filed Dec. 15, 2021).
 Id. at 20.
 Id. at 16.
 Id. at 16–17.
 Id. at 17.
 See supra note 22 and accompanying text.
 See supra note 26 and accompanying text.
 Transcript of Oral Argument at 3, Concepcion v. United States, No. 20-1650 (U.S. argued Jan. 19, 2022).
 See id.; Brief for Respondent at 19, Concepcion v. United States, No. 20-1650 (U.S. filed Dec. 15, 2021).
 For example, under the must approach, First Step Act eligible individuals who were affected by the career offender enhancement, like Concepcion, get the benefit of considering the current state of that guideline as it applies to them in their resentencing, while thousands of other ineligible individuals affected by the old career offender enhancement are left without relief. See Transcript of Oral Argument at 22, Concepcion v. United States, No. 20-1650 (U.S. argued Jan. 19, 2022) (providing Justice Kavanaugh’s concerns about disparities arising from considering changes in the career offender enhancement during First Step Act proceedings).
 For decades the 100-to-1 ratio was justified because people believed crack was “more addictive, linked with violent crime, prevalent among youth, inexpensive, and posed prenatal threats to children.” See Alyssa L. Beaver, Getting a Fix on Cocaine Sentencing Policy: Reforming the Sentencing Scheme of the Anti-Drug Abuse Act of 1986, 78 Fordham L. Rev. 2531, 2570. However, intervening research has shown this demonization of crack compared to other drugs and the disparate sentencing was unwarranted. See id. at 2570–72.
 Notably Chief Justice Roberts voiced concern saying, “It sounds to me like we’re delegating to—or Congress or somebody is delegating to—individual district judges the authority to determine what the law is.” Transcript of Oral Argument at 7, Concepcion v. United States, No. 20-1650 (U.S. argued Jan. 19, 2022). Justice Gorsuch expressed similar doubt about the may approach stating, “In what world does it make sense that some district courts will take cognizance of changes in the law like that and others will not, and the results will be . . . dramatically different for different—individuals? I just don’t know another area in which we give lower courts that kind of latitude.” Transcript of Oral Argument at 64, Concepcion v. United States, No. 20-1650 (U.S. argued Jan. 19, 2022).