Section 404(b) of the First Step Act provides that a court "may" reduce the sentence of a defendant convicted of a "covered offense." See United States v. Bethany, 975 F.3d 642, 650 (7th Cir. 2020). "A 'covered offense' is defined as an offense (1) committed before the enactment of the Fair Sentencing Act on August 3, 2010, and (2) involving a quantity of drugs that no longer triggers enhanced penalties."
(Doc. 53 at 6 n.1) Citing United States v. Henry, 983 F.3d 214, 222 (6th Cir. 2020) and United States v. Bethany, 975 F.3d 642, 649 (7th Cir. 2020), Movant concludes that “[s]everal circuits have held that § 403(a) of the First Step Act applies at a resentencing.” (Id.)
Accordingly, at the time the Act passed, Defendant was under a 'valid sentence' that the district court 'imposed' on November 29, 1994. Defendant's reliance on Henry, United States v. Uriarte, 975 F.3d 596 (7th Cir. 2020) (en banc) and United States v. Bethany, 975 F.3d 642 (7th Cir. 2020) is misplaced. A close reading of each reflects that the Circuit Courts focused on December 21, 2018, the date of the Act's enactment.
I do not read any circuit to have expressly held that the district court must apply the current Guidelines to determine the GSR for a § 404(b) proceeding. And, given the nature of Concepcion's arguments to us, we need not decide whether intervening Guidelines amendments that are merely clarifying, cf. U.S.S.G. § 1B1.10(a)(2) (providing that "if a court applies an earlier edition of the Guidelines Manual" due to ex post facto concerns, "the court shall consider subsequent amendments [so long as they] are clarifying rather than substantive changes"); United States v. Sarmiento-Palacios, 885 F.3d 1, 4-5 (1st Cir. 2018) (discussing the use of clarifying amendments in remand proceedings), or that are themselves retroactive, see United States v. Bethany, 975 F.3d 642, 652-53 (7th Cir. 2020) (concluding that "although the district court could have exercised its discretion to apply" retroactive Guidelines amendments to save the defendant the "extra step of filing a motion under § 3582(c)(2)," "it was not required to do so"); but see, e.g., United States v. Caraballo, 552 F.3d 6, 11 (1st Cir. 2008) (noting that § 3582(c)(2) is unavailable to defendants sentenced as career offenders where the retroactive amendment sought to be considered is not a change to the career offender Guideline); United States v. Stewart, 964 F.3d 433, 437-38 & 437 n.6 (5th Cir. 2020) (
Farmer cannot overcome the procedural hurdle that these issues were already decided on his direct appeal. United States v. Bethany, 975 F.3d 642, 651 (7th Cir. 2020).
II. LEGAL STANDARD Section 404(b) of the First Step Act permits a defendant convicted of a “covered offense” to seek “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.'” United States v. Bethany, 975 F.3d 642, 650 (7th Cir. 2020) (quoting First Step Act, § 404(b)). A “covered offense” means “a violation of a federal criminal statute, the statutory penalties for which were modified by” certain provisions in the Fair Sentencing Act. First Step Act, § 404(a).
First Step Act of 2018, Pub. L. No. 115-391, § 404, 132 Stat. 5194, 115th Cong. (2018). Under § 404(b), a defendant is eligible for a sentence reduction if: (1) his offense was committed before enactment of the Fair Sentencing Act in August 2010; (2) he has not previously sought and been denied relief under § 404 after a complete review on the merits; and (3) he was convicted of an offense involving a quantity of drugs that no longer triggers enhanced penalties. United States v. Bethany, 975 F.3d 642, 650 (7th Cir. 2020). If a court determines that a defendant is eligible for a sentence reduction under § 404, it must also determine whether it should reduce the defendant's sentence.
So even though the two defendants' relevant conduct exceeded the new trigger amount, they were still eligible for relief “because the Fair Sentencing Act modified the penalties” under § 841(b)(1)(A). Id.; e.g., United States v. Bethany, 975 F.3d 642, 651 (7th Cir. 2020). Applying Shaw here, Lambert is eligible for a sentence reduction.
So even though two defendants' relevant conduct exceeded the new trigger amount, they were still eligible for relief "because the Fair Sentencing Act modified the penalties" under § 841(b)(1)(A). Id.; e.g., United States v. Bethany, 975 F.3d 642, 651 (7th Cir. 2020). Applying Shaw here, Jones is eligible for a sentence reduction.
So even though two defendants' relevant conduct exceeded the new trigger amount, they were still eligible for relief "because the Fair Sentencing Act modified the penalties" under § 841(b)(1)(A). Id.; e.g., United States v. Bethany, 975 F.3d 642, 651 (7th Cir. 2020). For all that, the Seventh Circuit decided Shaw after the parties filed their briefs.