Tuesday, July 20th, 2021

Second Circuit holds that the district court is not required to consider the sentencing factors of 18 U.S.C. §3553(a) in deciding whether to reduce a sentence under §404 of the First Step Act.

In United States v. Moyhernandez, No. 20-625 (2d Cir. July 15, 2021), a split panel of the Second Circuit held that a district judge need not consider the sentencing factors of section 3553(a), deepening a Circuit split. (Jacobs, Park in the majority, Pooler dissenting) The district court denied defendant’s motion for a reduction in a 360-month sentence for a conspiracy to distribute crack cocaine, after concluding that he was eligible for relief under the First Step Act.

The original sentence was imposed under the mandatory career offender guideline and the sentencing judge made clear at the time that he would have imposed a lower sentence if not for the mandatory guideline. In the defendant’s  motion for a  reduced sentence, he urged the new judge to consider the §3553(a) factors and exercise her discretion to impose a lower sentence. In denying the motion because of the defendant’s lengthy record and career-offender designation, the district court ruled that “there is no mandate to consider the §3553(a) factors when reducing a sentence under [the First Step Act].”

The  Moyhernandez majority agreed. Its opinion is based primarily on the fact that section 404 does not explicitly require consideration of the sentencing factors. The Court relied on its opinion in United States v. Moore, 975 F.3d 84 (2d Cir. 2020), which held that the First Step Act provided a “limited procedural vehicle” and did not require courts to consider changes in the law or any factors other than those “that flow from Sections 2 and 3 of the Fair Sentencing Act.” The Court held: “[I]t follows from Moore that, because the  § 3553(a) factors do not flow from §§ 2 and 3 of the Fair Sentencing Act, district courts have no obligation to apply them.”

The majority acknowledged that four Circuits do require consideration of the §3553(a) factors in deciding a First Step Act motion, some on the theory that the “review” of the sentence contemplates consideration of those factors, e.g. United States v. Boulding, 960 F.3d 774, 784 (6th Cir. 2020), and others reasoning that §404’s mandate that the court “impose” a sentence contemplates a full resentencing. E.g, United States v. Easter, 975 F.3d 318, 323 (3d Cir. 2020). The D.C. Circuit  requires consideration of the factors because the First Step Act provides remedial relief for those who were sentenced under disproportionate and racially disparate laws and should provide “the most complete relief possible.” United States v. White, 984 F.3d 76 (D.C. Cir. 2020). The majority rejected those arguments on the theory that §404 focuses only on the changes of the Fair Sentencing Act, which are not affected by section § 3553(a). The fact that other sentencing statutes, 18 U.S.C. §3553(a) itself and § 3582(a), explicitly require consideration of the sentencing factors shows, the majority reasoned, that “[w]hen Congress intends to mandate The majority held that the district court’s denial of the motion was not an abuse of discretion, despite the original sentencing court’s reluctance to impose the mandatory 360-month sentence, because it “did not erroneously assess the evidence or otherwise reach an impermissible decision.”

Judge Pooler dissented.  The dissent first pointed out that the government did not contend that the §3553(a) factors did not apply here and had conceded in other cases that they did apply. Thus, “the district court and our Court have advanced a narrow reading of an important remedial statute despite the government’s evident disagreement with this position.” In addition, the U.S. Sentencing Commission has agreed that the § 3553(a) factors apply under the First Step Act. Judge Pooler disagreed that Moore dictated the outcome here, reasoning that Moore addressed the far narrower issue of whether the district court had to consider specific changes in the law outside of the FSA and recalculate the guidelines range based on those intervening changes.

The § 3553(a) factors, Judge Pooler reasoned, are as universal to sentencing as the Booker holding that the guidelines are not mandatory, and both the FSA and the First Step Act were passed in the post-Booker, 3553(a)-driven sentencing world. The logic of the majority’s reasoning would allow the district court to ignore Booker – also a change in the law since the original sentencing —  and operate in a world of mandatory guidelines,  since Booker does not flow directly from the changes made by the FSA. Judge Pooler endorsed the reasoning of the Third Circuit in Easter, 975 F.3d at 325, that 1) the term “impose” reflected congressional intent that courts use the same procedures as are used in an original sentencing, and 2) a consistent policy that the 3553(a) factors be considered, as opposed to allowing individual judges to consult the factors or not, makes sentencing more predictable, straightforward, and reviewable. Haphazard application of the factors may result in unwarranted disparities.

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Categories: 3553(a), First Step Act
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