United States v. VanHoesen, No. 24-2692 (2d Cir. Aug. 24, 2026) (Cabranes, Livingston (writing), Menashi).

The Second Circuit affirmed VanHoesen’s sentence of time served and eight years of supervised release, imposed on a § 404(b) First Step Act resentencing. The sole issue is the term of supervision. Judge Livingston’s opinion affirms the eight-year term because it’s the mandatory minimum.

VanHoesen holds that § 404(b) authorizes resentencing only “as if” the Fair Sentencing Act’s revised drug-quantity thresholds had been in effect. Nothing else in the First Step Act goes along for the retroactive ride. And § 401(a)(2)(B), which narrowed the prior-conviction trigger for the eight-year minimum, is nonretroactive by its own terms.

Background

A jury convicted VanHoesen in 2009 of a crack conspiracy involving 50 grams or more. He had two prior New York felony drug convictions and was sentenced in February 2010 to life in prison plus lifetime supervised release.

The Fair Sentencing Act of 2010 raised the § 841(b)(1)(A) crack threshold from 50 to 280 grams and the § 841(b)(1)(B) threshold from 5 to 28 grams. Section 404(b) of the First Step Act allowed prisoners sentenced under the former law to be resentenced “as if” the new, higher thresholds were applicable to them.

Resentenced under § 404(b) with those thresholds applied, VanHoesen’s conspiracy count fell under § 841(b)(1)(B). This triggered an imprisonment range of 10 years to life and, “if there was such a prior conviction,” supervised release “of at least 8 years.” 21 U.S.C. § 841(b)(1)(B) (2012); slip op. at 14.

The court imposed a sentence of time served. VanHoesen then argued that the floor for supervised release was four years, not eight, because § 401(a)(2)(B) of the First Step Act amended § 841(b)(1)(B) so that the eight-year minimum reaches only defendants with a prior “serious drug felony or serious violent felony.” And the New York statutes under which he was convicted don’t count because they’re categorically broader than the federal CSA.

The district court agreed. It acknowledged that § 401 is not retroactive to VanHoesen, but held that Concepcion v. United States, 597 U.S. 481 (2022), nonetheless allowed it to consider § 401 and its implementing Guidelines in calculating the statutory minimum. It then imposed eight years anyway, as a discretionary matter.

The Panel’s Ruling

On appeal, VanHoesen argued the district court abused its discretion. The panel never reached that question because the court had no discretion to abuse. Eight years is the statutory minimum.

Section 404(b) permits a reduced sentence “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” That’s the entirety of the reach-back — the higher quantity thresholds.

Section 401(c), by contrast, applies § 401’s amendments to pre-enactment offenses only “if a sentence for the offense has not been imposed as of such date of enactment.” That’s not VanHoesen. For him and other “defendants sentenced before the Act, the general rule of nonretroactivity remains in place.” Rutherford v. United States, 146 S. Ct. 1320, 1327 (2026); see United States v. Bryant, 991 F.3d 452, 458 (2d Cir. 2021), vacated and remanded on other grounds, 142 S. Ct. 2900 (2022). Section 404 did not countermand that limitation.

Concepcion doesn’t help because it’s only about discretion. It permits consideration of intervening changes of law and fact, including Guidelines amendments — but “[o]utside of statutory and constitutional limits.” Slip op. at 16. “Concepcion addresses the discretionary aspects of resentencing pursuant to the First Step Act. It does not authorize a district court to vary from an applicable mandatory minimum imposed by Congress.” Id.; see United States v. Caver, 101 F.4th 422, 429 (6th Cir. 2024) (same as to Guidelines implementing nonretroactive statutory changes).

“A district court is never free — even in an individual case — to reject a [sentencing term] that Congress has required.” Rutherford, 146 S. Ct. at 1334 n.7. The district court’s contrary view was thus error, but harmless. Slip op. at 12–13, 19.

Practitioner’s Notes

First, VanHoesen is about where the floor comes from, not what a court may consider once that’s set. Concepcion governs thereafter – the court may consider intervening changes of law and fact, including Guidelines amendments unrelated to the Fair Sentencing Act.

Second, eight years may be less than it looks. Section 3583(e)(1) permits termination “at any time after the expiration of one year.” The Sixth and Eighth Circuits hold that § 841(b)(1)’s mandate constrains imposition only, not the court’s later authority to end supervision. United States v. Spinelle, 41 F.3d 1056, 1060 (6th Cir. 1994); United States v. Lester, 92 F.4th 740 (8th Cir. 2024). The Second Circuit has assumed this is so, without deciding. See United States v. Vargas, 564 F.3d 618, 622–23 n.3 (2d Cir. 2009).