Second Circuit: On a motion under the First Step Act, a court isn’t obligated to “recalculate” the Sentencing Guidelines range to account for new Guidelines provisions “or new judicial interpretations of existing Guidelines.” Only Guideline-changes “that flow from the Fair Sentencing Act of 2010” have to be considered. But there’s an acknowledged circuit split. United States v. Moore, __F.3d__, No. 19-1390-cr, 2020 WL 5523205 (2d Cir. Sept. 15, 2020).

In United States v. Moore, No. 19-1390-cr (available here), the Circuit (Nardini, joined by Chin and Sullivan), holds that, on a motion for a sentence reduction under Section 404 of the First Step Act, a court isn’t required to “recalculate” the Guidelines range under the current law, unless (and only to the extent) the Fair Sentencing Act of 2010 changed the Guidelines range.

Here, the district court found Moore eligible for relief under the First Step Act, as indeed he was: he was sentenced in 2009 for  “possessing with intent to distribute more than 5 grams of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).” Op. at 4.  The district court  nevertheless declined to exercise it’s discretionary authority, under the Act, to reduce the (188-month) sentence. The Circuit affirmed that decision. Op. at 2, 26-27.

Moore’s argument was that the district court miscalculated the Guidelines range — on his First Step Act motion — because under the Circuit’s decision in United States v. Townsend, 897 F.3d 66, 75 (2d Cir. 2018), his drug conviction under N.Y. Penal Law § 220.31 (for fifth-degree criminal sale) couldn’t “serve as a ‘controlled substance offense’ triggering application of the career offender Guideline.” Op. at 15-16 (emphasis added).  At the original (2009) sentencing, Moore’s career offender range was 188 to 235 months. After the Fair Sentencing Act of 2010, the career offender range became 151 to 188 months. But if he weren’t a career offender — which would be the case, based on Townsend, if he were sentenced today –- the applicable range would be 110 to 137 months. Op.  at 5-6, 16.

The Circuit held that the district court was required only to consider the 151-to-188-month career offender range because it reflected changes in the Guidelines calculation resulting from the Fair Sentencing Act of 2010.  Thus, the Circuit held, the district court didn’t commit any “error at all” in failing to consider the 110-to-137-month range. See Op at 17; id. at 23 (“there was no legal error here”).

In deciding Moore’s appeal, the Circuit noted that “Moore’s Townsend argument raises a question of first impression in our Circuit.” Op. at 17. And the Circuit “ha[d]  not previously addressed whether the First Step Act requires a district court to recalculate a defendant’s Guidelines range to account for . . .  new Guidelines provisions or new judicial interpretations of existing Guidelines.” Op. at 17. But “other Circuits have split on this issue.” Id. at 17-18 n.30 (setting out the circuit split).

The Circuit sided with the restrictive view. It stated that the First Step Act doesn’t require a plenary resentencing. And a court’s only obligation, in calculating the Guidelines range on a First Step Act motion, is this: “[T]he district court must take into account Guidelines range changes that result directly from the retroactive application of Sections 2 and 3 [of the Fair Sentencing Act].” Op. at 19. “But § 404(b) issues no directive to allow re-litigation of other Guidelines issues—whether factual or legal—which are unrelated to the retroactive application of the Fair Sentencing Act.” Op. at 19-20.

On a positive note, however, the Circuit made clear that a court has authority to impose a below-Guidelines sentence under the First Step Act. It explained: “We hold only that the First Step Act does not obligate a district court to consider post-sentencing developments [in Guidelines law]. We note, however, that a district court retains discretion to decide what factors are relevant as it determines whether and to what extent to reduce a sentence.” Op at 23-24 n.36. And because the Circuit has “previously held that First Step Act motions are not governed by 18 U.S.C. § 3582(c)(2)[,] [s]ee Holloway, 956 F.3d at 665-66 ….,  it is clear that a district court’s discretion under the First Step Act as to whether to reduce a defendant’s  sentence (and if so, to what extent) is not limited by the applicable Guidelines range.” Op. at 24 n.36.

So, “[w]hen considering whether to impose a reduced sentence under the First Step Act, the district court retains the same discretion under United States v. Booker, 543 U.S. 220 (2005), to vary from the advisory Guidelines that it would have had at the time of the defendant’s sentencing.” Op 24 n.36.

The Circuit reviewed Moore’s legal claim for plain error because the “appeal marks the first time that Moore has argued that the First Step Act obligated the district court to consider Townsend in calculating his Guidelines range.” Op. at 15-17.  But it held that Moore couldn’t get past the prong-one requirement of plain error: a showing there was an actual error. Op. at 15-17, 23.

Moore also claimed a factual error in the district court’s discussion of his prison disciplinary record. The Circuit concluded the lower court had made a mistake; however, the mistake didn’t rise to plain error. Op at 24-26.

The take-aways for practitioners are:

1. There’s a circuit split about whether the First Step Act requires a district court to recalculate the Sentencing Guidelines range to account for new Guidelines provisions or new judicial interpretations of the Guidelines. See Op. at 17-18 n.30 (setting out the split). Practitioners, therefore, should raise this issue, whenever it’s implicated in a case, to preserve the client’s rights in the event the Supreme Court takes up the issue. (And don’t be put off by a remark in the opinion that one of Moore’s arguments was like claiming to have found “an elephant in a mousehole.” Op at 22. Very amusing – Not! Moore raised  an issue on which there’s a circuit split, in the context of a statute that’s not even 2 years young. So “keep it movin’”; raise Moore’s argument whenever the facts permit.)
2. For an eligible defendant, the district court’s authority to reduce a sentence isn’t limited by the Sentencing Guidelines range. A court can vary down to the statutory minimum for an eligible defendant. Op. at 24 n.36 (“a district court’s discretion under the First Step Act as to whether to reduce a defendant’s sentence (and if so, to what extent) is not limited by the applicable Guidelines range.”); id. (“When considering whether to impose a reduced sentence under the First Step Act, the district court retains the same discretion under United States v. Booker, 543 U.S. 220 (2005), to vary from the advisory Guidelines…”).