Summary
finding that because the defendant seeking a reduction pursuant to § 404(b) was "sentenced more than a decade and a half ago by a judge who has since retired" and because the sentencing transcript demonstrated that the defendant's "sentence was very much tied to the statutory mandatory minimum," thus "beg[ging] the question of whether the sentence would have been less if the statutory floor were only ten instead of twenty years ... it falls on this Court to make that determination and the only effective way to do so is by considering the 3553 factors," the use of which "also necessitates that the Court consider [post-sentencing] rehabilitation"
Summary of this case from United States v. ConcepcionOpinion
No. 3:02-cr-00067
10-30-2019
UNITED STATES of America v. Reginald D. KING
Sunny A.M. Koshy, U. S. Attorneys, Nashville, TN, for Plaintiff. Thomas J. Drake, Jr., Craig & Drake, Kathleen G. Morris, Nashville, TN, for Defendant.
Sunny A.M. Koshy, U. S. Attorneys, Nashville, TN, for Plaintiff.
Thomas J. Drake, Jr., Craig & Drake, Kathleen G. Morris, Nashville, TN, for Defendant.
MEMORANDUM OPINION
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
Sentenced to 25 years imprisonment in 2003, Reginald King has filed a Motion for Imposition of a Reduced Sentence (Doc. No. 118) requesting that his sentence for intent to distribute crack cocaine be reduced to 130 months pursuant to Section 404 of the First Step Act of 2018. The Government has filed a response in opposition to that Motion (Doc. No. 120), to which King has replied (Doc. No. 121).
I.
On April 11, 2002, a federal grand jury returned an Indictment against King charging conspiracy to commit money laundering (Count One); money laundering and aiding and abetting the same (Count Two); possession with intent to distribute 50 grams or more of cocaine base and aiding and abetting the same (Count Three); possession of firearms in furtherance of drug trafficking (Count Four); and being a convicted felon in possession of a firearm (Count Five). The Indictment also sought criminal forfeiture of a residence at 3521 Country Way Road, Antioch, Tennessee that allegedly was purchased through laundered drug proceeds. On July 2, 2003, the Government filed a Section 851 Information asserting that King had a prior felony drug conviction.
On July 3, 2003, pursuant to a Rule 11(c)(1)(B) agreement, King pled guilty to Counts One through Four, agreed to the forfeiture count, and the Government agreed to dismiss Count Five. In pleading guilty, King acknowledged that he knowingly possessed 589 grams of crack cocaine with the intent to distribute, that he used a firearm in furtherance of drug trafficking, and that he had a prior felony drug conviction. During the plea colloquy and in the plea agreement, King stated that he knew that he faced a mandatory sentence of not less than 20 years and up to life imprisonment on Count Three, plus an additional 5-year mandatory minimum on the gun count.
On January 15, 2004, Judge Echols sentence King to 300 months (25 years) imprisonment. In arriving at that sentence, Judge Echols began by noting that King had an Offense Level of 33 and a Criminal History Category II under the United States Sentencing Guidelines, which resulted in a range of from 151 to 188 months, but this was trumped by the required mandatory minimum of 20 years on Count Three. Judge Echols also noted that King faced an additional, consecutive five years for the firearm offense alleged in Count Three. Accordingly, King was sentenced to 300 months, consisting of 240 months on Counts One to Three, and 60 months on Count Four, consecutive to all other counts.
II.
The Fair Sentencing Act of 2010 was enacted to "alleviate the severe sentencing disparity between crack and powder cocaine." United States v. Peters, 843 F.3d 572, 575 (4th Cir. 2016). Under Section 2 of the Fair Sentencing Act,"[w]hat used to be a 100:1 ratio between the amount of powder and crack needed to trigger the mandatory minimums [became] an 18:1 ratio," United States v. Blewett, 746 F.3d 647, 649 (6th Cir. 2013), while Section 3 "eliminated the 5–year mandatory minimum for simple possession of crack," Dorsey v. United States, 567 U.S. 260, 269–270, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012).
The First Step Act of 2018, in turn, provided additional relief to some offenders by making certain provisions of the Fair Sentencing Act retroactive. Specifically, Section 404 of the First Step Act provides in relevant part:
(a) Definition of Covered Offense. – In this section, the term "covered offense" means a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372), that was committed before August 3, 2010.
(b) Defendants Previously Sentenced. – A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) were in effect at the time the covered offense was committed.
(c) Limitations. – No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act (Public Law 111-220; 124 Stat. 2372), or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denied after a complete review of the motion on the merits. Nothing in this section shall be
construed to require a court to reduce any sentence pursuant to this section.
Pub. L. No. 115-391, § 404, 132 Stat. 5194 (2018).
At the time of King's sentencing in 2003, fifty grams of crack cocaine triggered a statutory mandatory minimum sentence of 10 years. See 21 U.S.C. § 841(b)(1)(B)(iii) (2003). With a qualifying prior felony under 21 U.S.C. § 851, the mandatory minimum increased to 20 years. Id. 841(b)(1)(A)(iii). However, because Section 2 of the Fair Sentencing Act increased the amount of cocaine base required to trigger the 20-year mandatory minimum for a defendant with a prior qualifying drug felony from fifty grams to 280 grams, 21 U.S.C. § 841(b)(1)(A)(iii) (2012), King seeks the retroactive relief afforded by the First Step Act. He contends that because he pled guilty to possessing with the intent to distribute 50 grams of cocaine and because that amount is greater than 28 but less than 280 grams, he is subject to only a 10 year statutory minimum, even with his prior felony drug conviction. Id. § 841(b)(1)(B)(iii).
The Government argues otherwise. It submits that because King admitted to possessing 589 grams of crack and did not object to the Presentence Report's statement that he possessed that amount of cocaine base, the First Step Act is inapplicable. In other words, because King admitted to possessing more than the heightened threshold of 280 grams, the Court has no authority to reduce King's sentence. As support, the Government cites United States v. Glover, 377 F.Supp.3d 1346, 1361 (S.D. Fla. 2019) and United States v. Haynes, 2019 WL 1430125, at *2 (D. Neb. Mar. 29, 2019), both of which looked to offense conduct – rather than the count of conviction – in determining whether the First Step Act applied. Those cases, however, represent the minority viewpoint.
To date, it does not appear that any Court of Appeals has weighed in on the issue, but the vast majority of district court to have addressed the matter have concluded that the count of conviction controls in determining eligibility under the First Step Act. See, United States v. Rose, 379 F. Supp. 3d 223, 230 (S.D.N.Y. 2019) (stating that "Government's interpretation of § 404(a) is contrary to the clear weight of persuasive authority, both within and outside the Second Circuit" and collecting cases); United States v. White, No. 99-CR-628-04, 2019 WL 3228335, at *2 n.1 (S.D. Tex. July 17, 2019) (noting that "[o]nly a few courts have sided with the government's position that eligibility turns on the defendant's actual conduct, rather than the charged offense" and listing over 40 cases finding that statute of conviction controls eligibility for § 404 relief). For a number of reasons, this Court, too, finds that the offense of conviction controls.
First, the First Step Act allows a court to reduce a sentence for a "covered offense" with that term being defined as "a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010." This suggests that the court must examine the statute the defendant has violated and whether that statute is one for which the statutory penalties were modified by the Fair Sentencing Act. United States v. Boulding, 379 F.Supp.3d 646, 651 (W.D. Mich. 2019) ("[E]ligibility under the language of the First Step Act turns on a simple, categorical question: namely, whether a defendant's offense of conviction was a crack cocaine offense affected by the Fair Sentencing Act. If so, the defendant is categorically eligible for consideration regardless of actual quantities[.]"); United States v. Davis, No. 07-CR-245, 2019 WL 1054554, at *3 (W.D.N.Y. Mar. 6, 2019) (citation omitted) ("Under the plain language of the [First Step] Act, whether an offense is a ‘covered offense’ is determined by examining the statute that the defendant violated. If that statute is one for which the statutory penalties were modified by section 2 or 3 of the Fair Sentencing Act, it is a ‘covered offense.’ ").
Second, relying on the offense of conviction eliminates nettlesome issues that could arise under cases like Apprendi v. New Jersey, 530 U.S. 466, 476, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that "any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt," and Alleyne v. United States, 570 U.S. 99, 103, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), which held "that any fact that increases the mandatory minimum is an "element" that must be submitted to the jury." Surely, "Congress when drafting the First Step Act in 2018 ... did not intend for courts to disregard the last six [to sixteen] years of Supreme Court federal sentencing jurisprudence[.]" United States v. Smith, 379 F. Supp. 3d 543, 546 (W.D. Va. 2019). Indeed, "[a]lthough Apprendi and Alleyne are not retroactively applicable on collateral review, district courts have found that their holdings are applicable in the context of the First Step Act." United States v. Ballinger, No. 2:09-CR-105, 2019 WL 3292156, at *3 (E.D. Tenn. July 22, 2019) (collecting cases); see also, United States v. Dodd, 372 F. Supp. 3d 795, 797–98 (S.D. Iowa 2019) (internal citation omitted) ("Both Apprendi and Alleyne are binding on this Court for sentencings held today. That these procedural rules do not trigger a right to relief retroactively on collateral review ... is distinct from whether they apply to proceedings independently authorized under the First Step Act’); United States v. Smith, 379 F. Supp. 3d 543, 546 (W.D. Va. 2019) (collecting cases) ("[A]lthough Apprendi and Alleyne are not retroactively applicable on collateral review, this court joins other courts in finding that their holdings are applicable in the context of the First Step Act.")
Third, and somewhat related to the last point, utilizing the offense of conviction eliminates the need to speculate about hypotheticals, such as the one suggested by the Government here. Specifically, the Government asserts that if the present-day version of 21 U.S.C. § 841 (b)(1)(A)(iii) was in effect at the time King was sentenced, "he would have been charged with that offense and by his own admission the proof would have established his guilt for that offense." (Doc. No. 120 at 6). Rejecting virtually the same argument, one court has observed:
While it is possible that the government would have proceeded against [defendant] under 18 U.S.C. § 841(b)(1)(A) [sic], it also is possible that it would not have chosen to do so. The government could have determined that evidence was insufficient to prove the quantity beyond a reasonable doubt, or if it did indict him on that amount, the parties might have entered into a plea agreement involving less than 280 grams of cocaine base. The retroactive assumption suggested by the government simply is too speculative a basis on which to determine [defendant's] eligibility for a sentence reduction.
United States v. Stanback, 377 F. Supp. 3d 618, 624 (W.D. Va. 2019) ; Dodd, 372 F. Supp. 3d at 799 (rejecting government's argument that it "would have charged Defendant with the proper drug quantity had he been charged after the passage of the Fair Sentencing Act" because it was "speculative," and commenting that "[m]any things might have been different if this crime had been committed and charged years later or the Fair Sentencing Act had been passed years earlier").
Finally, assuming that "covered offense" could somehow be read as including offense conduct, such a reading would violate the rule of lenity, which holds that, "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." United States v. Eason, 919 F.3d 385, 392 (6th Cir. 2019) (quoting United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971) ). "This principle ... has roots deep within the Anglo–American legal tradition, and it ‘embodies the instinctive distastes against men languishing in prison unless the lawmaker has clearly said they should.’ " United States v. Canelas-Amador, 837 F.3d 668, 674 (6th Cir. 2016) (quoting Bass, 404 U.S. at 348, 92 S.Ct. 515 ).
Because the Court concludes that (1) the offense of conviction controls; (2) King was convicted of possessing 50 grams or more of crack cocaine; and (3) the threshold for a mandatory sentence of 20 years for a prior drug offender has been raised to 280 grams or more, the First Step Act applies. This does not mean however, that a reduction in sentence is warranted.
III.
Whether to reduce a sentence pursuant to the First Step Act is a matter of discretion for the Court. This is confirmed not only by the statement in Section 404(b) that a court "may ..., impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 applied," but also by Section 404(c)'s statement that "[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section." Pub. L. No. 115-391, §§ 404(b) & (c); Wright v. United States, 393 F. Supp. 3d 432, 439 (E.D. Va. 2019) (stating that a court has broad discretion under the terms of the Act); United States v. Glore, 371 F. Supp. 3d 524, 527 (E.D. Wis. 2019) (same). What the Court should consider in determining how best to exercise that discretion is unanswered by the First Step Act, and courts that have considered the question have reached different results. This difference of opinion extends not only to that nature of the proceedings to be conducted, but also to the scope of the information properly considered.
A.
Most courts view sentencing under the First Step Act as actually a modification of a sentence authorized by 18 U.S.C. § 3582(c), meaning that a hearing and defendant's presence are both unnecessary. See e.g., United States v. McKinney, 382 F. Supp. 3d 1163, 1165 (D. Kan. 2019) ("[T]he court agrees with the majority of courts that have addressed this issue and concludes that the First Step Act does not authorize a full resentencing but only an adjustment of an otherwise final sentence[.]"); United States v. Sampson, 360 F. Supp. 3d 168, 171 (W.D.N.Y. 2019) (stating that "a full resentencing is neither required nor called for" by the First Step Act); United States v. Lawson, 2019 WL 1959490, at *3 (N.D. Ohio May 2, 2019) ("[N]othing in the First Step act anticipates a full re-sentencing ... other than the retroactive application of the reduced penalties for crack cocaine set out in the Fair Sentencing Act."). One court explained:
Section 3582(c) provides limited exceptions to the general rule that a court cannot modify a sentence once it has been imposed, including when such a modification is "otherwise expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure[.]" 18 U.S.C. § 3582(c)(1)(B).
A district court's limited authority to modify defendant's sentence is provided by § 3582(c)(1)(B), which, in pertinent part, provides: "the court may modify an imposed term of imprisonment to the extent otherwise expressly permitted by statute...." 18 U.S.C. § 3582(c)(1)(B) (emphasis added). The express provisions of the First Step Act provide this court with the authority to "impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act ... were in effect at the time the covered offense was committed." The First Step Act does not expressly authorize a district court to conduct a plenary resentencing of the defendant. As [defendant argues], this court is "not free to add words to a statute that Congress did not include in the statute it enacted." .... This court, therefore, cannot conduct plenary resentencing under the First Step Act because the First Step Act specifically provides that the sentencing is limited to imposing a reduced sentence "as if sections 2 and 3 of the Fair Sentencing Act" were in effect when the defendant committed the offense.
United States v. Crews, 385 F. Supp. 3d 439, 444–45 (W.D. Pa. 2019) (footnotes omitted) (citation to the record omitted).
A small number of courts have allowed for plenary hearings. For example, in United States v. Medina, No. 3:05-CR-58 (SRU), 2019 WL 3769598, at *5-6 (D. Conn. July 17, 2019), the court "respectfully decline[d]" to follow the majority approach of not providing plenary hearings, "believ[ing] the First Step Act should [not] be read so narrowly" and instead "should be read in the broadest way possible, consistent with the [its] remedial purposes." This is because "[i]nterpreting the First Step Act to have only a limited application would constrain the judicial discretion expressly authorized by the Act itself. Further, a limited application of the First Step Act would weaken the intent of the Act and would undermine the consistent understanding that ambiguities should be resolved in favor of the defendant." Id. at *6 ; see also, United States v. Opher, 404 F.Supp.3d 853, 870 (D.N.J. 2019) (holding that defendants were entitled to a plenary resentencing hearing under the First Step Act, and noting that "to individualize themselves in the context of the § 3553(a) factors, as any defendant facing sentence is entitled to, the defendants must be present").
These differences in opinions extend even to this District. For example, in United States v. McMurry, Case No. 2:07–cr-0004-1, Judge William Campbell opted to hold a sentencing hearing, before which he required that the parties file sentencing memoranda that addressed the 18 U.S.C. § 3553(a) factors (including any requests for a variance or departure), and after which he issued an Amended Judgment. In United States v. Stone, No. 3:04-CR-00142, 416 F.Supp.3d 721, 732–33, 2019 WL 4259455, at *7 (M.D. Tenn. Sept. 6, 2019), on the other hand, Judge Eli Richardson declined to hold a plenary hearing, even "assuming [a court] has such discretion," and chose to reduce defendant's sentence based upon the filings made by the parties.
B.
Regardless of the need for a plenary hearing or not, it appears that courts generally apply the 3553(a) factors when determining a reduction in sentence authorized by the First Step Act. See e.g., United States v. Abdullah, No. CR 08-014 WES, 410 F.Supp.3d 346, 350, 2019 WL 5076379, at *3 (D.R.I. Oct. 10, 2019) (collecting cases and stating that "most courts agree that a re-sentencing court should consider the new statutory range along with the sentencing factors set forth in 18 U.S.C. § 3553(a)"). There is disagreement, however, as to the scope of that application, particularly as it relates to post-conviction rehabilitation.
The vast majority of courts find that evidence of rehabilitation is an appropriate consideration. See, Opher, 404 F.Supp.3d at 868–69 (looking at post-sentence rehabilitation in First Step Act case); United States v. Nance, No. 8:08CR449, 2019 WL 2436210, at *2–3 (D. Neb. June 10, 2019) (stating "it has been the practice in this district to consider a defendant's post-incarceration conduct when exercising discretion to reduce a defendant's term of incarceration due to retroactive changes in statutes or sentencing guidelines" and "[n]othing in the First Step Act prohibits such a practice"); United States v. Mitchell, No. CR 05-00110 (EGS), 2019 WL 2647571, at *7 (D.D.C. June 27, 2019) ("The Court is persuaded that consideration of [defendant's] post-sentencing conduct ... is appropriate under Section 404(b) of the First Step Act). This appears to be in keeping with the Supreme Court's decision in Pepper v. United States, 562 U.S. 476, 504, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011) that "[d]istrict courts post-Booker may consider evidence of a defendant's postsentencing rehabilitation at resentencing" after an initial sentence is set aside on appeal.
A few courts have refused to consider post-conviction rehabilitation. See e.g., United States v. Martin, No. 03-CR-795 (BMC), 2019 WL 1558817, at *4 (E.D.N.Y. Apr. 10, 2019) (stating that a sentence reduction triggers consideration of neither the sentencing factors articulated in 18 U.S.C. § 3553(a) nor post-sentencing conduct"). As Judge Richardson of this Court explained, rehabilitation has
nothing to do with the purposes of § 404 or the objectives of resentencing under § 404. Although the Court does not begrudge any sentenced defendant seeking a second bite at the plenary sentencing apple, the Court will not allow Defendant such a bite when the vast majority of federal inmates get no such bite and are no less deserving of it (and no less likely to have a compelling case of, for example, rehabilitation) than federal inmates who happened to be eligible for relief under § 404.
Stone, 416 F.Supp.3d at 732–33, 2019 WL 4259455, at *7.
IV.
Having considered the developing case law and, more importantly, the language of the First Step Act, the Court will exercise its discretion in determining whether King is entitled to a reduction in sentence by (1) utilizing the Section 3553(a) factors; (2) considering rehabilitation (or the lack thereof); and (3) deciding the matter after a hearing. The Court's reasoning is as follows.
A.
In a newsletter, the United States Sentencing Commission has opined that "Courts will have to decide whether a resentencing under the Act is a plenary resentencing proceeding or a more limited resentencing," but that "[i]n either instance, the Act made no changes to 18 U.S.C. § 3553(a), so the courts should consider the guidelines and policy statements, along with the other 3553(a) factors, during the resentencing." Although a newsletter from the Sentencing Commission is no more binding than the Guidelines themselves post-Booker, use of the Section 3553(a) factors makes abundant sense, if for no other reason than the they provide an air of familiarity and consistency that the alternative does not. As one court has cogently explained:
www.ussc.gov/sites/default/files/pdf/training/newsletters/2019-special_FIRST-STEP-Act.pdf
The application of § 3553(a) factors to current facts is also more manageable than the alternative, which would require the current sentencing court to reconstruct the original record and to imagine what the original judge would have done had he or she not been bound by the then-applicable mandatory minimum sentence. First, given the length of the sentences at issue in crack-cocaine cases, there is a high degree of likelihood that many of the judges considering the First Step Act motion will not be the original sentencing judge. The court would, therefore, have to predict how another judge would have ruled more than a decade ago, which may be impossible to do depending on the level of detail in the previous judge's explanation of the original sentence. Second, given the passage of time and changes to record retention methods, the current court may have difficulties re-creating the exact record that was before the original judge. Third, because the original sentences in these cases were largely dictated by the high mandatory minimums, defense counsel may have prioritized or raised different arguments than he or she would have if the defendant had been subject to a lower mandatory minimum sentence or no mandatory minimum at all. In other words, the frozen-in-time approach would require a district court to exercise discretion based on a record that was not created with the current statutory framework in mind.
Rose, 379 F. Supp. 3d at 235.
That is exactly the scenario presented here where King was sentenced more than a decade and a half ago by a judge who has since retired. What the Court can tell from the sentencing transcript is that King's sentence was very much tied to the statutory mandatory minimum because Judge Echols mentioned it several times. While Judge Echols could have sentenced upwards – even to life imprisonment – he chose not to. This begs the question of whether the sentence would have been less if the statutory floor were only ten instead of twenty years. Since Judge Echols has retired, it falls on this Court to make that determination and the only effective way to do so is by considering the Section 3553(a) factors "to the extent that they are applicable." 18 U.S.C. 3582(c)(1)(A).
B.
Use of the 3553(a) factors also necessitates that the Court consider rehabilitation. Section 3553(a)(1) is person specific. It requires the court to consider the "history and characteristics of the defendant," which, more often than not, will likely change for better or worse. Consideration of rehabilitation also plays into 3535(a)(2)(C) and (D) because it will help inform the court as to the need "to protect the public from further crimes of the defendant," and whether the "needed education or vocation training... or other correctional treatment" thought necessary by the original sentencing judge has been provided. All of this is no doubt proper as the Court fashions a sentence unique to the particular defendant.
Considering rehabilitation is also in keeping with the Supreme Court's decision in Pepper, which began with the observation that it had "long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.’ " 562 U.S. at 480, 131 S.Ct. 1229 (quoting Williams v. New York, 337 U.S. 241, 246–247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) ). Thus, the Supreme Court reversed the Eighth Circuit's conclusion that a trial court could not consider rehabilitation when resentencing after the initial sentence has been overturned because such a ruling "conflicts with longstanding principle of federal sentencing" and Section 3553(a) and Section 3661, that guarantees that " ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant's] background, character, and conduct[.]’ " Id. (citation omitted).
To be sure, a resentencing under the Fair Sentencing Act is not the same as resentencing after an appellate court has found an initial sentence to be erroneous. But unlike Guideline Amendments that lowered offense levels – like Amendment 782 that reduced by 2 the base offense level for most drug convictions – reductions under the First Step Act are not rote. This is clearly the situation here where, as here, the statutory minimum has been halved.
The Court acknowledges the concern raised by some that considering rehabilitation permits a defendant a "second bite at the apple," not allowed to most. But this cuts both ways. That is, good behavior post-conviction should inure to a defendant's benefit because one of the major goals of sentencing is rehabilitation. Likewise, bad behavior should not benefit a defendant and, while a sentence cannot be increased under the First Step Act, it certainly can stay the same. See United States v. Rose, 379 F. Supp. 3d 223, 235 (S.D.N.Y. 2019) (finding that because a court may look at both good and bad conduct, "there is nothing inherently inequitable about considering the full range of the defendant's history and characteristics," including rehabilitaiton under the First Step Act)
In any event, a similar argument was raised and rejected in Pepper. There, amicus argued that " ‘allowing [postentencing rehabilitation] evidence to influence [defendant's] sentence would be grossly unfair to the vast majority of defendants who receive no sentencing-court review of any positive post-sentencing rehabilitative efforts.’ " Id. at 503, 131 S.Ct. 1229 (brackets in original). Rejecting the argument, the Supreme Court noted that "[t]he differences in the procedural opportunity that may result because some defendants are inevitably sentence in error and must be resentenced are not the kinds of ‘unwarranted’ sentencing disparities that Congress sought to eliminate under § 3553(a)(6)." Id. Furthermore, "the logic of [that] approach ... would require sentencing courts categorically to ignore not only postsentencing rehabilitation, but any postsentencing information, including, for example, evidence that a defendant had committed postsentencing offenses." Id. (emphasis in original).
C.
Finally, use of the Section 3553(a) factors also seems to require that King be provided a plenary hearing based upon the recent Sixth Circuit opinion in United States v. Flack, 941 F.3d 238 (6th Cir. 2019), which, like Pepper, involved a resentencing. Specifically, in Flack, a general remand was ordered requiring the district court in a child pornography case to dismiss either a receipt or possession count and sentence the defendant on the remaining count. The district court did so without a hearing or defendant's presence on the grounds that its sentence – 262 months – remained appropriate. This was found to be an abuse of discretion, however, because every circuit to have addressed the matter had concluded "that, ‘upon a general remand for resentencing, a defendant has a right to a plenary resentencing hearing at which he may be present and allocute.’ " Id. at 240. The same was true under Fed. R. Crim. P. 43(a)(3) which provides "that the defendant must be present" at sentencing, and under Section 3553 "which requires a sentencing court to state the reasons underlying a sentence ‘in open court.’ " Id. That Flack raised his claim in the context of collateral review under 28 U.S.C. § 2255 was irrelevant because "a sentencing is sentencing, regardless of the docket entries that precede it. And a sentencing must occur in open court with the defendant present." Id. at 240–41.
Again, a resentencing after an appeal is different than a sentencing under the First Step Act, particularly if one recalls that most courts generally view sentencings under the Act as a modification of sentence under Section 3582(c). However, as the Sixth Circuit pointed out in Flack, a distinction must be drawn between whether a defendant is being resentenced, or whether his or her sentence is being corrected:
[Section] § 2255(b) allows a district court either to "resentence" a defendant or to "correct" his sentence, "as may appear appropriate." And we have said that a court may "correct" a defendant's sentence without holding a resentencing hearing. See, e.g., United States v. Mitchell, 905 F.3d 991, 994 (6th Cir. 2018) ; cf. Fed. R. Crim. P. 43(b)(4) (stating that a defendant need not be present if "[t]he proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c)"). Whether Flack was entitled to a sentencing hearing on remand, therefore, depends on whether the court corrected his sentence or resentenced him.
A district court "corrects" a defendant's sentence when its action is arithmetical, technical, or mechanical. See Fed. R. Crim P. 35(a) ; [United States v.] Brown, 879 F.3d [1231,] at 1236 [ (11th Cir. 2018) ] ; United States v. Palmer, 854 F.3d 39, 48 (D.C. Cir. 2017). For example, the court corrects a sentence when—at a circuit court's direction on remand—the court merely cuts back to the statutory maximum a sentence that had exceeded it, cf. United States v. Bryant, 643 F.3d 28, 32 (1st Cir. 2011) ; or when the court does "no more than mechanically vacate ... unlawful convictions (and accompanying sentences)[,]" see Palmer, 854 F.3d at 48. Correction of a sentence therefore does not involve "a reevaluation of the appropriateness of [the defendant's] original sentence." Id. at 42. In contrast, a district court resentences the defendant, for purposes of § 2255, when it revisits the § 3553(a) factors and determines anew what the sentence should be. See Brown, 879 F.3d at 1236. A resentencing could thus result in the same sentence as the one the district court imposed initially.
Flack, 941 F.3d at 241.
Here, should King ultimately be entitled to a reduction in sentence, this would not be as a result of a arithmetical, technical or mechanical computation. Rather, in making the determination, the Court is required to decide whether the original sentence remains appropriate in light of the reduction of the statutory minimum and this necessarily entails consideration of the 3553(a) factors. As Flack makes clear, when a court "cho[oses] to apply the 3553(a) factors anew, [this] mean[s] that its action [is] a resentencing and the court [is] required to hold a sentencing hearing." Id. In reaching this conclusion, the Court acknowledges that this reading of Flack may present some tension with Rule 43(b)'s provision that "a defendant need not be present ... [when] [t]he proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c)." But, just as the First Step Act does not require that there be a plenary hearing or defendant's presence, Rule 43(b) does not preclude it either.
The Court also recognizes that this reading of Flack may not square with the Fifth Circuit's recent decision in United States v. Hegwood, 934 F.3d 414 (5th Cir. 2019), which, although not controlling, is worth considering. There, the court found a plenary hearing to be unwarranted, describing "the mechanics of First Step Act sentencing" as follows:
The district court decides on a new sentence by placing itself in the time frame of the original sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act. The district court's action is better understood as imposing, not modifying, a sentence, because the sentencing is being conducted as if all the conditions for the original sentencing were again in place with the one exception. The new sentence conceptually substitutes for the original sentence, as opposed to modifying that sentence.
Id. at 418–19. This court chooses not to follow those mechanics because of the impracticality of placing itself in the shoes of the judge who pronounced sentence many years ago, and because considering only the "one exception," i.e. , the change in the statutory minimum, does not account for the rehabilitation that may or may not have occurred or consideration of the § 3553(a) factors.
To be clear and so there is no doubt, this Court is not saying that Flack must be read as requiring a plenary hearing for any resentencing or modification under Section 404 of the First Step Act. Nor is the Court suggesting that it will hold such a hearing in every case brought under Section 404. What the Court simply holds is that where (1) Congress has chosen to significantly reduce a mandatory minimum; (2) defendant has served a lengthy prison term, presented some evidence of rehabilitation, and seeks a reduction that will place him in a halfway house in the near future; and (3) the Government opposes any reduction based upon the old law and unproven conduct, the Court can better exercise its discretion under the First Step Act by holding a hearing where the Defendant is present and can argue in favor of the reduction he seeks. See, United States v. Hawkins, No. CR 00-323-05 (KSH), 2019 WL 3297497, at *14-15 (D.N.J July 23, 2019) ("The Court is entitled to question each man about the significance of his participation in programs over the years of confinement. Each man in turn is entitled to speak at such an important time – after all, a hearing offers the opportunity to be heard.").
V.
Based upon the foregoing, a ruling on King's Motion for Imposition of a Reduced Sentence (Doc. No. 118) will be deferred pending a sentencing hearing at which he is entitled to be present. The Probation Office will be instructed to file a supplemental Presentence Report that focuses on King's behavior while in prison, and the parties will be required to file sentencing memorandum that discuss the 3553(a) factors, including any efforts King has made towards rehabilitation. None of this precludes the parties from presenting to the Court an agreed sentence that is supported by consideration of the 3553(a) factors.
An appropriate Order will enter.