More than a year after the passage of the First Step Act — which, among other things, made certain sentencing reforms retroactive — courts have continued to work out the procedural questions surrounding how the act should be applied and what judges must consider when resentencing federal offenders.
And some courts have come to very different conclusions, putting defendants on disparate footing depending on where they are based.
In the most recent case examining a First Step Act resentencing, the Sixth Circuit ruled on May 7 that defendants are entitled to appeal a judge's resentencing decisions based on reasonableness, though the courts reiterated a previous decision that trial courts are not required to give defendants a holistic, or what's known as a plenary, review.
The result was that the appellate court upheld the resentencing decision of Benjamin Foreman, who had been convicted of several drug-related crimes, even though it affirmed his right to appeal the sentence.
Foreman had argued that the court should have considered his situation more broadly, which would have resulted in the court eliminating his designation as a "career offender" and reduced his sentence even further.
As it stands, Foreman's sentence was lowered from 25 years to a little over 19 years.
"It was bittersweet," said Beth LaCosse, the public defender for Foreman. "Bitter for Mr. Foreman directly, but sweeter in the actual recognition by the court [of the right to a reasonableness appeal], and a published opinion on that."
However, Foreman's case is not the only time that courts have considered this type of question.
In the initial wake of the First Step Act, courts spent some time hashing out questions of who, precisely, was eligible to have their sentences recalculated. With those questions largely resolved, courts have turned now to pinning down the details of what approach judges should take to resentencing under the new law, with different federal appellate courts coming to different conclusions.
The Fourth Circuit, in a case decided in April, issued a more defendant-friendly decision in USA v. Chambers, in which it concluded in a split decision that the trial court should have taken a broader view and could consider a wider-ranging set of factors, including the conduct of Brooks Chambers, who had been convicted of a drug offense, while incarcerated.
The court stopped short of requiring a plenary resentencing, which would give defendants additional rights, such as the right to an in-person hearing, and which Chambers did not explicitly request in the appeal. However, the decision did send a message that judges should consider a wide variety of factors in First Step Act cases, rather than focusing solely on a few select criteria.
"To self-circumscribe a sentencing court's authority under the First Step Act would not only subvert Congress' will but also undermine judicial integrity," the court wrote in its decision.
At the other end of the spectrum, the Fifth Circuit ruled in 2019 that the First Step Act does not allow for a plenary resentencing.
In that case, USA v. Hegwood , Michael Hegwood also objected to his designation as a career offender during resentencing, arguing that since his conviction in 2008, there had been changes to the law that meant he would not be a career offender if sentenced today.
Hegwood argued that the court should have recalculated his sentence from scratch, rather than simply modifying his original sentence, and that if it had done so, the range of his potential sentence would have been about six to eight years, rather than roughly 12 to 15 years.
The Fifth Circuit, however, disagreed, saying that when the court recalculates a sentence it should only make the changes specifically triggered by the First Step Act, and should not consider other changes to the law since the original sentence was imposed.
"It is clear that the First Step Act grants a district judge limited authority to consider reducing a sentence previously imposed," the Fifth Circuit panel said.
The Fifth Circuit also ruled in a later case, USA v. Jackson, that courts were not obligated to consider post-sentencing conduct either, though it left room for judges to consider such information if they chose.
The difference in opinions between the circuit courts may eventually wind up before the U.S. Supreme Court, which is the final authority in deciding circuit splits. In the meantime, however, defendants and their attorneys find themselves trying to make the most of the existing frameworks.
"To me, a lot of these doctrines don't matter so much as who your judge is," said Michael Holley, a federal public defender in Tennessee, which is part of the Sixth Circuit.
The Foreman decision, he said, would be a big help to defendants by giving them the right to appeal a resentencing based on reasonableness. Without that ability, he said, there would be far less protection for people asserting their right to a new sentence. However, he added, not having the right to a plenary resentencing meant that outcomes would vary based on the judge.
Some judges choose to consider a wide range of factors when recalculating a sentence, including post-sentencing behavior or changes in the law since the sentence was first imposed, which can result in larger reductions. Others choose to take a more narrow approach, keeping sentences from coming down as much.
LaCosse said that much of the ambiguity in this arena comes from the First Step Act itself, which she described as creating a kind of "hybrid" when it comes to resentencing hearings. The act did not outright guarantee a full plenary resentencing, but it also didn't outline specific limits on the factors judges should consider.
Holley pointed out that attorneys can typically present all the information they think a judge should consider in a First Step Act resentencing. The question is then what the judge chooses to do with it.
For Benjamin Foreman, whose case resulted in the Sixth Circuit decision, the fact that his sentence was not reduced further has already had major consequences. According to an emergency motion filed in April, Foreman contracted COVID-19 while incarcerated and was placed on a ventilator.
While his attorney indicated that he is expected to recover, she has also asked the court to grant Foreman compassionate release once he is well enough to be moved, saying that his family is prepared to to care for him in quarantine.
The motion relies once again on a provision in the First Step Act.
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--Editing by Katherine Rautenberg.
Updated: This story has been updated with information about the Fifth Circuit decision in USA v. Jackson.