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Seventh Circuit: District Court’s Failure to Address Nonfrivolous Argument Raised in First Step Act Motion Constitutes Procedural Error in Violation of Concepcion

by Douglas Ankney

The U.S. Court of Appeals for the Seventh Circuit ruled that when deciding a motion for a sentence reduction under § 404 of the First Step Act (“FSA”), a District Court must demonstrate it considered every nonfrivolous argument raised by the defendant.

In 2005, Jamell Newbern pleaded guilty to possessing crack cocaine with intent to distribute. Sentencing Judge David Herndon on the U.S. District Court for the Southern District of Illinois found that Newbern had been convicted of two prior crimes of violence (including reckless discharge of a firearm), qualifying Newbern as a career offender under the U.S. Sentencing Guidelines § 4B1.1(a). Herndon also determined that Newbern had distributed at least 50 grams of crack cocaine. The drug-quantity finding combined with the career-offender status resulted in an advisory Sentencing Guidelines range of 282-327 months. Herndon imposed a sentence of 300 months.

In 2008, the Seventh Circuit held that reckless discharge of a firearm is not a crime of violence. United States v. Smith, 544 F.3d 781 (7th Cir. 2008). Newbern twice sought relief based upon this change in the law, but both times, Herndon reiterated he would have imposed the same sentence regardless of Newbern’s career-offender status.

In 2018, Congress enacted the FSA, which made the provisions of the Fair Sentencing Act of 2010 regarding the sentencing disparities of the crack versus powder cocaine ratios retroactive. All parties agreed that Newbern met the criteria to qualify for sentence reduction under the FSA – his original sentence was based on the pre-Fair Sentencing Act crack-to-powder ratio; he committed his crime before August 2, 2010; his sentence had not been previously reduced under the FSA; and a previous motion for a sentence reduction had not been denied on the merits. See FSA § 404.

But in addition to Newbern’s argument that he was entitled to FSA relief based upon drug quantities, he also argued he was entitled to relief based on the holding of Smith and based upon his record in prison, i.e., clean disciplinary record, completed drug-education course, employment in prison, and earning a GED.

Newbern’s FSA motion was denied by Judge Staci Yandle. She saw no reason to disagree with Herndon’s earlier denial regarding the Smith decision, and she noted that Newbern’s Sentencing Guidelines range remained the same even after accounting for the crack-to-powder disparity adjustment. But at no point did Yandle address Newbern’s argument based on his conduct while in prison. Newbern appealed.

The Court began by reiterating that it conducts its own independent review when evaluating the procedure District Courts follow in denying FSA relief. See United States v. Fowowe, 1 F.4th 522 (7th Cir. 2021).

The Court then observed that in Concepcion v. United States, 142 S. Ct. 2389 (2022), the Supreme Court of the United States (“SCOTUS”) answered a question that had divided courts across the country: “When ruling on First Step Act motions, are district courts required to, permitted to, or never allowed to consider intervening legal and factual developments beyond the changes to the crack-to-powder sentencing ratio?” The Court explained that this question involves both substantive and procedural considerations.

As to substantive considerations, SCOTUS “emphasized that district courts have discretion to consider any information relevant to the sentencing factors enumerated in 18 U.S.C. section 3553(a) – even if that information does not relate to the new crack-to-powder ratio.” See Concepcion. Of particular relevance to the present case, the Court pointed out that Concepcion “specifically highlighted and endorsed examples from district courts where a defendant’s conduct in prison or intervening legal developments affected a determination of what, if any, sentencing reduction to award.” The Court noted that one example Concepcion cited is strikingly similar to this case – the defendant had “incurred no disciplinary infractions over his last fourteen years in prison” and “would no longer be considered a career offender based on intervening change in law.” Conception (citing United States v. Mitchell, U.S. Dist. LEXIS 107396 (D.D.C. June 27, 2019)). Consequently, Conception instructed that District Courts are permitted to consider this type of “relevant and probative information.” Id.

As to the procedural considerations, Conception reminded District Courts that they “must generally consider the parties’ nonfrivolous arguments” and make it clear that they “reasoned through [the parties] arguments.” Id. (quoting United States v. Maxwell, 991 F.3d 685 (6th Cir. 2021)). Although District Courts are not required to provide a detailed explanation for every argument presented, Conception instructed that they must at least “respond to defendants’ nonfrivolous arguments for relief.”

Turning to the present case, the Court stated that there is a substantial difference procedurally between the way the District Court handled Newbern’s argument about his career-offender status and his argument about his good conduct while in prison. The District Court provided “a very brief – but sufficient – explanation” as to why it was denying Newbern’s first argument, i.e., respecting Herndon’s familiarity with the case and his judgment since there were no intervening legal developments that merited disturbing his prior determination, the Court stated.

However, the same cannot be said for the District Court’s handling of Newbern’s second argument, according to the Court. Conception clearly established that conduct in prison, both good and bad, is a proper consideration in an FSA motion. Newbern devoted a full page in his FSA motion to detail his positive record of achievement and behavior while in prison. Under Conception, that is a nonfrivolous argument, yet the District Court failed to even respond to it, the Court observed. Because the District Court failed to provide any explanation as to why it denied Newbern’s prison-conduct argument, “we cannot be sure that the district court considered Newbern’s argument,” the Court stated. Thus, the Court held that the District Court’s failure to even address this argument “rises to the level of procedural error.”

Accordingly, the Court vacated and remanded for further proceedings consistent with Concepcion. See: United States v. Newbern, 51 F.4th 230 (7th Cir. 2022).

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