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Fifth Circuit: First Step Act Doesn’t Permit Plenary Resentencing in Retroactive Application of the Fair Sentencing Act

by Douglas Ankney

The U.S. Court of Appeals for the Fifth Circuit ruled that the First Step Act of 2018 (“First Step Act”) does not permit plenary resentencing when the district court retroactively applies the Fair Sentencing Act of 2010 (“Fair Sentencing Act”). In July 2008, Michael Dewayne Hegwood pleaded guilty to selling 9.32 grams of cocaine base. The probation officer recommended a career offender sentence enhancement under U.S.S.G. § 4B1.1 based on two prior convictions for delivery of a controlled substance. Hegwood was sentenced in January 2010 to serve 200 months “after the credit” for 27 months on a related state sentence.

In January 2019, Hegwood filed a motion for appointment of counsel and a sentencing hearing. He invoked the First Step Act, which allows a court to reduce a sentence by making the Fair Sentencing Act retroactive. He also argued that he no longer qualified for the career-offender enhancement pursuant to United States v. Tanksley, 854 F.3d 284 (5th Cir. 2017). Hegwood concluded his Guidelines range is now 77 to 96 months. The district court stated it was resentencing Hegwood only on the congressional change and resentenced him to 153 months, leaving the enhancement intact. Hegwood appealed.

The Fifth Circuit observed § 404 of the First Step Act permits a sentencing court to impose a reduced sentence by retroactively applying §§ 2 and 3 of the Fair Sentencing Act as if those sections were in effect at the time the offense was committed. Section 2 of the Fair Sentencing Act increased the required cocaine base amount from 5 grams to 28 grams before a sentence from 5 to 40 years could be imposed. Section 3 eliminated a mandatory life sentence for simple possession of cocaine base. 

The Fifth Circuit concluded that retroactive application of the Fair Sentencing Act reduced Hegwood’s statutory maximum sentence from 40 years to 20 years. This meant his Guidelines range, with adjustments for accepting responsibility and the career-offender enhancement, would be 151 to 188 months.

The Court rejected Hegwood’s contention that resentencing under the First Step Act also required the district court, pursuant to Tanksley, to apply the factors of 18 U.S.C § 3553(a). Courts start with the text when interpreting a statute. POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102 (2014). In statutory construction, the expression of one thing generally excludes another. TRW Inc. v. Andrews, 534 U.S. 19 (2001).

Since Congress expressed retroactive application of §§ 2 and 3 of the Fair Sentencing Act and did not express anything regarding the § 3553(a) factors, then retroactive application of those factors was not intended. The Fifth Circuit opined that this was consistent with the Supreme Court’s interpretation of the similar 18 U.S.C. § 3582(c)(2): “Section 3582(c)(2)’s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon v. United States, 560 U.S. 817 (2010). 

Accordingly, the Fifth Circuit found that the district court made no error in continuing to apply the career-criminal enhancement and affirmed the judgment. See: United States v. Hegwood, 934 F.3d 414 (5th Cir. 2019). 

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