• Bennett Nuss

Legal tracking: Concepcion v. United States

The Supreme Court heard oral argument this term in a case that could substantively change how low-risk prisoners apply for resentencing under the First Step Act. The First Step Act was a bill passed by the 115th Congress to reform the sentencing programs for those convicted before the passage of the Fair Sentencing Act of 2010, which restructured the penalties for crack cocaine possession, among other felonies. Prior to the Fair Sentencing Act, the sentencing lengths for distributing crack cocaine as compared to powder cocaine were 100:1. Those convicted of selling crack cocaine faced substantially longer sentences than those who sold similar amounts of powder cocaine. This resulted from federal drug prosecution being targeted primarily at low-income Black neighborhoods, where the distribution of crack cocaine was far more common than powder cocaine. The Fair Sentencing Act reformed the disparity in sentencing from 100:1 to 18:1. Subsequently, the First Step Act permitted resentencing for those charged under the 100:1 regime as if they had been charged after the passage of the Fair Sentencing Act. Concepcion v. United States is based on one of these resentencing cases.


The clause at issue in Concepcion is Section 404 of the First Step Act, specifically subsections (a)-(c). Within subsections (b) and (c), there are procedural guidelines that felons with a low risk of recidivism can use for resentencing as guided by 18 U.S.C. § 3553.

The relevant portions read:


“(b) A court that imposed a sentence for a covered offense may, on motion of the defendant . . . impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . were in effect at the time the covered offence was committed . . . (c) Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.”


Under these sections, it is unclear how judges determine whether a prisoner should be considered for resentencing. In Concepcion’s case, he petitioned for resentencing based on a crack cocaine possession and distribution charge from 2008. The judge refused to review the case in light of developing legal and policy changes surrounding crack cocaine convictions before deciding whether to grant Concepcion a hearing. On appeal, Concepcion argued the trial judge violated subsections (b) and (c) because the judge must consider intervening facts and developments when deciding whether to resentence under § 3553. Concepcion further argued that ignoring these factors would be an abuse of judicial discretion. The government argued nothing within the statute required the judge to consider outside factors when deciding whether to resentence.

On appeal, the 1st Circuit Court of Appeals held the trial judge in Concepcion’s case did not abuse his discretion because he acted in accordance with the stated text of § 841(c), which grants a great deal of discretion to judges when resentencing appeals. The judge further declared that under the First Step Act there is an implied two-step process for resentencing. The first step is determining whether resentencing should occur at all, followed by the actual evaluation, which considers the totality of issues. The first step is governed by the circumstances and fact pattern of the original offense, and the second is based on intervening developments in the law. Concepcion appealed this decision to the Supreme Court, arguing the two-step process is legally contrived and not implied by the statute and that a reconsideration of the facts is necessary under the First Step Act.


At oral argument, the Court did not seem to favor Concepcion’s argument. Justices across the Court’s ideological spectrum seemed to prefer resentencing as discretionary. They also seemed to believe that requiring a court to review certain facts from a specific purview, regardless of the case in question, would unfairly restrict a judge’s ability to tailor sentences to each case. As Justice Gorsuch said during oral argument, “This is going to be enormously burdensome for district courts.” Justice Sotomayor further said that it seems Congress’ intent in this statute was not to limit the discretion of sentencing judges and that this intent is not present in the law in question.


If Concepcion’s argument holds, it could mean a considerable number of resentencing appeals would be heard, especially for decades-old possession charges. Cases would be reconsidered as if the original hearing took place after the Fair Sentencing Act and not take into consideration the court’s decision at the time of original sentencing. If Concepcion’s argument fails, the Supreme Court could codify the 1st Circuit’s two-step approach, in which intervening facts may not be considered when deciding to resentence. This process would be more uniform but would likely result in fewer sentencing changes for charges imposed before the Fair Sentencing Act. It is also possible that the Court takes a middle road, which would be up to their discretion.


It appears the Court will grant federal courts as much discretion as possible, likely in a near unanimous opinion, but this case’s result should be followed closely as it can heavily impact resentencings for possession and other low-level offenses in the foreseeable future.

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