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Third Circuit: Defendant Entitled to Reasonable Opportunity to File Sentencing Memo Before Resentencing Under First Step Act

by David M. Reutter

The U.S. Court of Appeals for the Third Circuit held that when a prisoner seeks resentencing under the First Step Act, a district court has discretion to consider arguments concerning intervening changes of law since the original sentencing and other arguments in favor of a downward variance. While the Court held prisoners are not required to appear in-person for First Step Act resentencing, a district court must permit the opportunity to submit a sentencing memorandum if a hearing is not held.

Clifton Shields was convicted in 2008 by a jury of one count of conspiracy to distribute and possess 50 or more grams of crack cocaine and one count of distributing and possessing 50 or more grams of crack cocaine. A presentence report found that based on the quantity of drugs involved, Shields’ possession of a weapon in connection with the conspiracy, and his status as a “career offender” that was based on two Maryland convictions, resulted in an offense level of 37 and a Category IV offense history.

His Guidelines range was 360 months to life. The U.S. District Court for the Middle District of Pennsylvania sentenced him to 360 months’ imprisonment and five years’ supervised release on each count, run concurrently.

At the time Shields was sentenced in 2009, an offense involving 50 or more grams of crack cocaine triggered a mandatory minimum of ten years’ imprisonment. Meanwhile, an offense involving powder cocaine would not trigger a mandatory minimum unless the drug quantity was 100 times as great. In 2010, Congress enacted the Fair Sentencing Act to reduce this and other disparities between sentencing for crack and powder cocaine. Then, in 2018, Congress enacted the First Step Act, which authorizes district courts to “impose a reduced sentence” for qualifying movants “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect at the time the covered offense was committed.” § 404(b).

Shields filed for resentencing under the First Step Act, and it was heard by a different judge because the sentencing judge had passed away. His motion requested an in-person sentencing hearing or the opportunity to submit a sentencing memorandum to present information from family members and others. He also disputed whether he currently qualifies as a career offender.

Without addressing Shields’ request to submit a sentencing memorandum, the district court in 2019 found he qualified for resentencing, denied an in-person sentencing, and reduced his sentence to 262 months’ imprisonment and four years’ supervised release on each count, run concurrently. Believing the First Step Act did not permit it to address the career offender designation, the district court did not consider that issue. It then noted its new sentence was at the bottom of the Guidelines range. Shields appealed.

The first issue considered by the Third Circuit was what a district court “may” consider in a First Step Act resentencing. Shields argued that the district court is required to recalculate his benchmark Guidelines range to account for the fact that under “current law” he would not qualify as a career offender. The Government agreed.

The Third Circuit noted that at the time those arguments were made, the parties were correct under then-governing circuit case law, but since that time, the U.S. Supreme Court issued its opinion in Concepcion v. United States, 142 S. Ct. 2389 (2022). The Concepcion Court held a district court is not empowered with discretion to “recalculate a movant’s benchmark Guidelines range in any way other than to reflect the retroactive application of the Fair Sentencing Act,” as “the First Step Act directs district courts to calculate the Guidelines range as if the Fair Sentencing Act’s amendments had been in place at the time of the offense.”

As such, the district court was correct “to recalculate Shields’s Guidelines range as if the Fair Sentencing Act’s amendments had been in place at the time of his offense, without taking into account any other intervening changes in law, and to use that revised Guidelines range of 262 to 327 months as its starting point in deciding whether to reduce Shields’s sentence,” the Court determined.

While the district court was correct in not considering the other changes in law in that particular calculation, that does not relieve it of considering Shields’s arguments, according to the Court. The Concepcion Court further held that district courts faced with a First Step Act motion are “required . . . to consider intervening changes when parties raise them,” including evidence of both “postsentencing rehabilitation and unrelated Guidelines amendments when raised by the parties.” The district court erred in ruling the First Step Act does not permit it to consider other statutory or sentencing guideline amendments since the date Shields committed his offense. Thus, on remand, the Court instructed that the district court must consider Shields’ other arguments.

The Court stated: “the District Court should start with the benchmark Guidelines range calculated only to the extent it adjusts for the Fair Sentencing Act and should consider Shields’s arguments that he no longer qualifies as a career offender and his renewed objections to the firearm enhancement and the drug weight that was used to calculate his Guidelines range.”

The Court then turned to the resentencing procedures. In United States v. Easter, 975 F.3d 318 (3d Cir. 2020), the court held a First Step Act movant is not “entitled to a plenary resentencing hearing at which he would be present.” Shields, however, presented a wrinkle to that holding because he is facing sentencing from a judge other than the sentencing judge, which is an issue of first impression in the circuit, the Court explained.

Nevertheless, the Court concluded that fact does not alter its general position under Easter. While a district court may hold an in-person resentencing hearing, it is not required to do so, the Court ruled, stating that it is “confident our colleagues on the district courts can and will carefully consider the factual information and legal arguments raised by the parties.” But the district court “erred by denying Shields either a hearing or a reasonable opportunity to present his sentencing arguments in writing,” the Court determined, noting that Concepcion held “district courts are always obliged to consider nonfrivolous arguments presented by the parties” and provide an explanation of their decisions demonstrating “that [they] ‘reasoned through [those] arguments.’”

Accordingly, the Court vacated the reduced sentence and remanded for further proceedings consistent with its opinion. See: United States v. Shields, 48 F.4th 183 (3d Cir. 2022). 

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