United States v. Concepcion

991 F.3d 279

• Court: Court of Appeals for the First Circuit
• Decided: March 15, 2021
• Docket: 19-2025P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-2025

UNITED STATES OF AMERICA,

Appellee,

v.

CARLOS CONCEPCION, a/k/a BIG PAPI, a/k/a PAPI,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Howard, Chief Judge, Selya and Barron, Circuit Judges.

J. Martin Richey, Assistant Federal Public Defender, for appellant. Jennifer Hay Zacks, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.

March 15, 2021 SELYA, Circuit Judge. Defendant-appellant Carlos

Concepcion pleaded guilty to possession with intent to distribute

and distribution of cocaine base (crack cocaine) in 2008. The

following year, the district court sentenced him to a 228-month

term of immurement. While the defendant was serving his sentence,

Congress passed the Fair Sentencing Act, Pub. L. No. 111-220, 124

Stat. 2372, which reduced the statutory penalties for most federal

crimes involving crack cocaine in an effort to ameliorate

sentencing disparities between crack cocaine offenses and powdered

cocaine offenses.

In 2018, Congress made these changes retroactive through

the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194, and the

defendant moved for resentencing. The district court denied his

motion, United States v. Concepcion, No. 07-10197, 2019 WL 4804780

(D. Mass. Oct. 1, 2019), and this timely appeal followed.

The defendant contends that the district court was

obliged to, but did not, update and reevaluate the constellation

of sentencing factors adumbrated in 18 U.S.C. § 3553(a).

Relatedly, he contends that, pursuant to this obligation, the

district court should have recalculated his guideline sentencing

range (GSR) anew under the sentencing guidelines in effect at the

time of resentencing.1 Even if a recalculation of his GSR was not

1 It is not clear whether the defendant seeks to have his GSR recalculated pursuant to the guidelines in effect at the time he

- 2 - required, he submits, the district court should have given effect

to guideline changes occurring subsequent to the imposition of his

original sentence. Because we have not yet spoken definitively to

the scope of resentencing under the First Step Act, this appeal

presents issues of first impression in this circuit. After careful

consideration, we reject the defendant's asseverational array and

affirm the district court's order denying resentencing.

I. BACKGROUND

We start by rehearsing the relevant facts and the travel

of the case. In 2006, federal law enforcement officers in New

Bedford, Massachusetts, monitored two drug transactions in which

the defendant participated. Those transactions, in the aggregate,

involved the sale of 27.5 grams of crack cocaine. Warrant-backed

searches of the defendant's home and car turned up an additional

186.34 grams of powdered cocaine, two loaded firearms, and many

rounds of ammunition.

In due course, a federal grand jury sitting in the

District of Massachusetts charged the defendant with possessing

with intent to distribute and distributing five grams or more of

crack cocaine. See 21 U.S.C. § 841(a)(1) (2006). This charge

filed his motion for resentencing or, should his motion be granted, those in effect at the time of resentencing. As a shorthand, we refer in this opinion to the guidelines in effect at the time of resentencing. We note, however, that this appeal does not require us to explore the choice between these alternatives, and we leave the question open.

- 3 - carried a statutory minimum penalty of five years' imprisonment

and a statutory maximum penalty of forty years' imprisonment. See

id. § 841(b)(1)(B)(iii). The government, acting pursuant to 21

U.S.C. § 851(a)(1), filed an information memorializing that the

defendant had a prior felony drug-offense conviction, which

doubled the mandatory minimum and boosted the maximum available

sentence to life imprisonment. See id.

Although initially maintaining his innocence, the

defendant eventually pleaded guilty to the single-count

indictment. The probation department proceeded to prepare a

presentence investigation report (PSI report). After tentatively

concluding that the defendant had a total offense level of twenty-

five and should be placed in Criminal History Category (CHC) V,

the PSI report determined that the defendant qualified as a career

offender under USSG §4B1.1(a). This determination rested, in part,

on the fact that the defendant's criminal record included at least

two prior felony convictions for crimes of violence and/or

controlled substance offenses. Specifically, his criminal history

revealed state convictions for distribution of crack cocaine,

possession with intent to distribute powdered cocaine, armed

carjacking, armed robbery, and assault and battery with a dangerous

weapon. The career offender designation resulted in a total

offense level of thirty-four, a CHC of VI, and a GSR of 262 to 327

months.

- 4 - The district court convened the disposition hearing on

May 6, 2009. The court adopted the final guideline calculations

recommended in the PSI report (including the career offender

designation). The defendant argued for a downwardly variant 120-

month sentence (the mandatory minimum), and the government argued

for a 262-month sentence (the bottom of the GSR). The court mulled

the section 3553(a) factors and considered, among other things,

the defendant's troubled youth and then-current guideline and

policy developments. The court found that a below-the-range

sentence of 228 months was "sufficient but not greater than

. . . necessary," and therefore fair and just. Cf. Kimbrough v.

United States, 552 U.S. 85, 111 (2007) (upholding downward variance

when sentencing court had appropriately considered defendant's

GSR, defendant's background, and Sentencing Commission's then-

recent criticism of disparate treatment of crack cocaine

offenses). The defendant appealed, and we summarily affirmed the

challenged sentence. See United States v. Concepcion, No. 09-1691

(1st Cir. Dec. 30, 2009) (unpublished judgment).

This was far from the end of the matter. The defendant

sought collateral review of his sentence through a motion filed

pursuant to 28 U.S.C. § 2255. The district court denied the

motion. Little daunted, the defendant — on August 1, 2016 — again

moved to vacate his sentence under section 2255. The district

court treated the motion as an application for leave to file a

- 5 - second or successive section 2255 motion and referred it to this

court. See 28 U.S.C. § 2255(h) (explaining that a second or

successive motion under section 2255 "must be certified . . . by

. . . the appropriate court of appeals"). We denied the

application. See Concepcion v. United States, No. 16-2209 (1st

Cir. Apr. 27, 2017) (unpublished judgment). Mistakenly believing

that the third time was the charm, the defendant filed yet another

section 2255 motion. That motion met a similar fate. See

Concepcion v. United States, No. 17-1637 (1st Cir. July 31, 2017)

(unpublished judgment).

Nearly two years later, the defendant moved pro se to

reduce his sentence pursuant to the First Step Act. See Pub. L.

No. 115-391, 132 Stat. 5194. He argued that the First Step Act,

by retroactively raising the quantity of crack cocaine required to

trigger the statutory penalty provision set forth in 21 U.S.C.

§ 841(b)(1)(B)(iii) (2018), reduced his statutory maximum sentence

to thirty years, see 21 U.S.C. § 841(b)(1)(C), and shrank his GSR

to 188 to 235 months. Once counsel was appointed, an additional

argument was advanced on the defendant's behalf. This argument

posited that the defendant no longer qualified as a career offender

and, thus, should be regarded as having a GSR of fifty-seven to

seventy-one months. The government opposed the motion: although

it agreed that the defendant was eligible for resentencing under

the First Step Act, it cited the leniency originally extended by

- 6 - the district court and urged that a reduced sentence be withheld

as a matter of discretion.

The district court, in a thoughtful rescript, denied the

defendant's motion for resentencing. Concepcion, 2019 WL 4804780,

at *2-6. This appeal ensued.

II. ANALYSIS

The defendant assigns error to the district court's

denial of his motion for resentencing. Specifically, he contends

that in deciding whether to reduce his sentence pursuant to the

First Step Act, the court was required to evaluate the 18 U.S.C.

§ 3553(a) factors anew and that, under sections 3553(a)(4) and

(5), such a reevaluation entailed the preparation of a new PSI

report, calculating a new GSR based on the guidelines in effect at

the time of resentencing. As a fallback, the defendant contends

that even if a new GSR calculation was not obligatory, the court

should have at least considered intervening guideline developments

as part of its calibration of the other section 3553(a) factors.

Because the defendant's contentions hinge, in the first instance,

on the nexus between the First Step Act and the Fair Sentencing

Act, we turn directly to this nexus.

In 2010, Congress enacted the Fair Sentencing Act to

ameliorate sentencing disparities between similarly situated

defendants convicted of drug-trafficking offenses involving crack

cocaine, on the one hand, and powdered cocaine, on the other hand.

- 7 - See Dorsey v. United States, 567 U.S 260, 263-64 (2012). As the

district court determined, this case fits comfortably within that

paradigm. See Concepcion, 2019 WL 4804780, at *1-2. Prior to the

passage of the Fair Sentencing Act, the defendant's conviction for

an offense involving five or more grams of crack cocaine exposed

him to a statutory sentencing range of five to forty years in

prison. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). The Fair

Sentencing Act increased the amount of crack cocaine needed to

trigger this penalty range to twenty-eight grams. See Fair

Sentencing Act § 2(a)(2). This change, however, did not apply

retroactively. Consequently, it did not inure to the benefit of

offenders — like the defendant — who were sentenced before August

3, 2010. See Dorsey, 567 U.S. at 280-81. As a result, the Fair

Sentencing Act left in place disparate sentences for crack cocaine

offenses meted out before August 3, 2010.

Congress sought to remedy this perceived inequity by

enacting the First Step Act. Section 404 of the First Step Act

applies specified portions of the Fair Sentencing Act

retroactively to defendants whose sentences became final before

August 3, 2010. Specifically, it provides that "[a] court that

imposed a sentence for a covered offense may . . . 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." First Step Act § 404(b). To complete the picture,

- 8 - the First Step Act defines a "covered offense" 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 . . . that

was committed before August 3, 2010." Id. § 404(a). Importantly,

the First Step Act makes pellucid that the decision to impose or

withhold a reduced sentence is a decision that rests within the

sound discretion of the district court. See id. § 404(c) ("Nothing

in this section shall be construed to require a court to reduce

any sentence pursuant to this section.").

Seen in this light, the defendant's offense is a covered

offense within the purview of the First Step Act. In 2008, he

pleaded guilty to a violation of 21 U.S.C. § 841(a). The offense

to which he pleaded, coupled with his prior felony drug

convictions, subjected him to a mandatory minimum term of ten

years' imprisonment and exposed him to a maximum sentence of up to

life imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii) (2006). And

this statutory sentencing range was materially altered when the

Fair Sentencing Act increased the triggering amount for the

mandatory minimum penalty to twenty-eight grams. Taken in the

ensemble, these developments brought the defendant's case under

the carapace of the First Step Act. See United States v. Smith,

954 F.3d 446, 450 (1st Cir. 2020) (concluding that violation of 21

U.S.C. § 841(a)(1) involving crack cocaine is a covered offense

under First Step Act).

- 9 - The district court recognized that, because the offense

of conviction was a covered offense, the First Step Act rendered

the defendant eligible for a sentence reduction. The defendant

argues that the court should have gone further: it should have

reevaluated the section 3553(a) factors as of the date of the

motion and commissioned a new PSI report — one reflecting that,

under the current iteration of the sentencing guidelines, the

defendant no longer qualifies as a career offender. In support,

the defendant says that one of his prior drug convictions has been

vacated and that emerging case law precludes some of his other

predicate offenses from being classified as crimes of violence.

See, e.g., United States v. Kennedy, 881 F.3d 14, 24 (1st Cir.

2018) (holding that Massachusetts conviction for assault and

battery with dangerous weapon did not qualify as crime of violence

under Armed Career Criminal Act); United States v. Starks, 861

F.3d 306, 319 (1st Cir. 2017) (same with respect to Massachusetts

robbery).2 We proceed to examine this argument.

2 These cases were decided in light of Johnson v. United States, 576 U.S. 591 (2015), which held "that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." Id. at 606. Although the defendant was not sentenced as a career offender under the Armed Career Criminal Act, the United States Sentencing Commission amended the career offender guideline defining "crime of violence" by striking that provision's residual clause in response to Johnson. See USSG App. C Supp., Amend. 798 (effective Nov. 1, 2016); see also USSG §4B1.2(a) (2018).

- 10 - The scope of resentencing under section 404 of the First

Step Act is a question of statutory interpretation and, thus,

engenders de novo review. See Smith, 954 F.3d at 448; United

States v. Gibbens, 25 F.3d 28, 32 (1st Cir. 1994). Although we

have not previously confronted this question, we have envisioned

"at least two possibilities." Smith, 954 F.3d at 452. A defendant

"might be eligible for plenary resentencing, in which case his GSR

would potentially be recalculated under the current version of the

Sentencing Guidelines Manual . . . or he might be eligible for a

procedure . . . in which . . . his GSR would remain as it was [when

he was sentenced] but the district court might nevertheless vary

downwardly." Id. By demanding "at minimum a present day review

of the section 3553(a) factors" and "a proper calculation of the

guidelines in effect at the time of resentencing," the defendant

seeks what amounts to a plenary review of his sentence. Thus,

this case brings front and center the question left open in Smith

and requires us to decide whether a defendant's eligibility for

First Step Act resentencing entitles him to plenary resentencing.

Although this is an issue of first impression in this

circuit, we do not write on a pristine page. At least five of our

sister circuits have held, albeit in various contexts, that section

404 of the First Step Act does not entitle a defendant to plenary

resentencing. See United States v. Moore, 975 F.3d 84, 90-92 (2d

Cir. 2020); United States v. Denson, 963 F.3d 1080, 1089 (11th

- 11 - Cir. 2020); United States v. Kelley, 962 F.3d 470, 471 (9th Cir.

2020); United States v. Alexander, 951 F.3d 706, 708 (6th Cir.

2019); United States v. Hegwood, 934 F.3d 414, 415 (5th Cir.),

cert. denied, 140 S. Ct. 285 (2019); cf. United States v. Hamilton,

790 F. App'x 824, 826 (7th Cir. 2020) (concluding that "district

court did not plainly err by reducing [the defendant's] sentence

without a plenary resentencing"). Four of these courts have

squarely addressed whether First Step Act resentencing entitles a

defendant to a reevaluation of his career offender status under

subsequently amended but non-retroactive guidelines, and all of

them have held that it does not. See Moore, 975 F.3d at 90-91;

Kelley, 962 F.3d at 475-79; United States v. Foreman, 958 F.3d

506, 509-12 (6th Cir. 2020); Hegwood, 934 F.3d at 417-19.

This line of authority, though, is not uniform: four

circuits have espoused a minority view. See United States v.

White, 984 F.3d 76, 90 (D.C. Cir. 2020); United States v. Easter,

975 F.3d 318, 327 (3d Cir. 2020); United States v. Boulding, 960

F.3d 774, 784 (6th Cir. 2020); United States v. Chambers, 956 F.3d

667, 668 (4th Cir. 2020). For example, the Sixth Circuit has held

that a First Step Act resentencing must "includ[e] an accurate

calculation of the amended guidelines range at the time of

resentencing." Boulding, 960 F.3d at 784. So, too, the Fourth

Circuit, concluding (in a two-to-one opinion) that the First Step

Act requires a present-day recalculation of a defendant's GSR, has

- 12 - held that "any Guidelines error deemed retroactive . . . must be

corrected in a First Step Act resentencing." Chambers, 956 F.3d

at 668.

Mindful of this divided authority, we begin — as every

exercise in statutory analysis should begin — with the text of the

controlling statute (here, the First Step Act). The statute

explicitly authorizes a "court that imposed a sentence for a

covered offense" to "impose a reduced sentence as if sections 2

and 3 of the Fair Sentencing Act of 2010 were in effect at the

time the covered offense was committed." First Step Act § 404(b)

(emphasis supplied). That the First Step Act takes only sections

2 and 3 of the Fair Sentencing Act back in time, stipulating that

a new sentence shall be meted out "as if" those sections (and only

those sections) were in effect when the defendant committed the

covered offense, is a compelling indication that Congress did not

intend that other sections of the Fair Sentencing Act are to apply

retroactively. See Kelley, 962 F.3d at 475; Hegwood, 934 F.3d at

418.

We add, moreover, that section 404(b) conspicuously

constrains a sentencing court's list of newly applicable laws at

a resentencing hearing to only the Fair Sentencing Act. Nothing

in the First Step Act invites the district court to apply changes

in the law external to the Fair Sentencing Act. See United States

v. Smith, 958 F.3d 494, 498 (6th Cir. 2020) (observing that First

- 13 - Step Act only provides "limited, discretionary authorization to

impose a reduced sentence" which is "inconsistent with a plenary

resentencing" (quoting Hegwood, 934 F.3d at 418)); Alexander, 951

F.3d at 708 (similar). As the Kelley court explained, the First

Step Act "authorizes the district court to consider the state of

the law at the time the defendant committed the offense, and change

only one variable: the addition of sections 2 and 3 of the Fair

Sentencing Act as part of the legal landscape." 962 F.3d at 475.

The consideration of Amendment 798 and current sentencing

guidelines, as the defendant envisions, goes beyond the limits of

this authorization.

The fact that the First Step Act vests a district court

with wide discretion about whether to reduce a defendant's sentence

for a covered offense, see First Step Act § 404(b); id. § 404(c),

cuts in the same direction. That Congress saw fit to afford

district courts such wide discretion is in tension with the

defendant's argument that the court was obliged to follow a

specific procedure — a full reevaluation of the section 3553(a)

factors and a mandatory recalculation of the defendant's GSR under

current guidelines.

Along the same line, it is clear to us — and our

dissenting brother agrees — that a First Step Act resentencing

constitutes only a modification of an imposed term of imprisonment.

Further Congressional circumscriptions on resentencing apply in

- 14 - such cases, and those circumscriptions underscore the limited and

discretionary nature of the authorization afforded to sentencing

courts under the First Step Act. See Smith, 958 F.3d at 498. As

a general matter, a final judgment in a criminal case may not be

revisited by the sentencing court. See 18 U.S.C. § 3582(b)-(c);

see also Dillon v. United States, 560 U.S. 817, 824 (2010). Of

course, this rule — like many general rules — admits of certain

exceptions. But in the absence of an applicable exception, "[a]

court may not modify a term of imprisonment." 18 U.S.C. § 3582(c).

Two such exceptions are relevant here. Under the first,

"the court may modify an imposed term of imprisonment to the extent

. . . expressly permitted by statute." Id. § 3582(c)(1)(B). Under

the second,

"in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o), . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission."

Id. § 3582(c)(2).

Because section 2 of the Fair Sentencing Act only reduced

the statutory penalties applicable to defendants convicted of

crack cocaine offenses, and did not address sentences already

imposed, retroactive modification of sentences under the Fair

- 15 - Sentencing Act prior to the First Step Act could be sought only

"by reference to reductions in the sentencing range." United

States v. Wirsing, 943 F.3d 175, 184 (4th Cir. 2019). And because

those reductions were made "by the Sentencing Commission," section

3582(c)(2) constituted the appropriate exception to the finality

of a sentence for those retroactive modification requests. Id. at

184-85.

A First Step Act motion, by contrast, is grounded in the

Act's explicit authorization for a sentencing court to reduce a

sentence, rather than on actions of the Sentencing Commission.

For this reason, the appropriate framework for the evaluation of

a § 404(b) motion is found in § 3582(c)(1)(B). See id.; United

States v. Holloway, 956 F.3d 660, 665-66 (2d Cir. 2020) ("A First

Step Act motion . . . is not properly evaluated under 18 U.S.C.

§ 3582(c)(2). . . . [S]uch a motion falls within the scope of

§ 3582(c)(1)(B)."). Accordingly, a sentencing court evaluating a

section 404(b) motion may modify a sentence only to the extent

"expressly permitted" by the First Step Act. See § 3582(c)(1)(B).

This exception is narrow: by its terms, the First Step

Act allows only "a specific type of sentence reduction." See

Kelley, 962 F.3d at 477. The permission granted in section 404(b)

is only permission to "impose a reduced sentence as if sections 2

and 3 of the Fair Sentencing Act . . . were in effect." And this

type of sentence reduction is wholly discretionary. See First

- 16 - Step Act § 404(b)-(c). It follows, we think, that mandatory

enforcement of intervening changes in the law, not encompassed by

sections 2 and 3 of the Fair Sentencing Act — in this instance,

Amendment 798 and any newly updated guidelines — would fall outside

the compass of the leave Congress granted under the First Step

Act. Simply put, a First Step Act resentencing is not the correct

vehicle through which a defendant may demand the benefits of

emerging legal developments unrelated to sections 2 and 3 of the

Fair Sentencing Act — and Congress has prohibited the courts from

holding otherwise. See 18 U.S.C. § 3582(c).

In addition to these statutory limitations on a

sentencing court's authority, we find persuasive the government's

suggestion that a mechanical application of intervening changes in

the law would lead to anomalous results. Congress enacted the

Fair Sentencing Act to correct the unequal treatment of crack

cocaine offenses as compared to powdered cocaine offenses. To

interpret section 404(b) to allow certain crack cocaine offenders

to avail themselves of case law unrelated to crack cocaine

sentencing disparities would not create a level playing field but,

rather, would put defendants convicted of crack cocaine offenses

in a more advantageous position than defendants convicted of

powdered cocaine offenses. Indeed, such an interpretation would

put crack cocaine defendants who had committed covered offenses in

- 17 - a more advantageous position than other criminal defendants

generally. See Kelley, 962 F.3d at 478.

We discern nothing in the text of either the Fair

Sentencing Act or the First Step Act that warrants a conclusion

that Congress intended to replace one set of sentencing disparities

with another. It would, therefore, be an exercise in judicial

hubris to transmogrify a motion for resentencing under the First

Step Act into an exclusive backstreet permitting the free-wheeling

correction of putative errors in a defendant's GSR anytime that

the guidelines change. See Chambers, 956 F.3d at 676 (Rushing,

J., dissenting) ("Congress's concern in Section 404 was to extend

the cocaine sentencing provisions of the Fair Sentencing Act

retroactively, not to provide a general opportunity to

collaterally attack a final sentence.").

In a further effort to broaden the scope of First Step

Act resentencing, the defendant invokes section 404(b)'s statement

that a court may "impose a reduced sentence as if sections 2 and

3 . . . were in effect at the time the covered offense was

committed." First Step Act § 404(b). Focusing with laser-like

intensity on the word "impose," the defendant insists that this

word choice evinces congressional intent that First Step Act

defendants be resentenced under "the familiar . . . framework" of

18 U.S.C. § 3553(a). This word choice is critically important,

the defendant says, because the power to "impose" a sentence is

- 18 - more expansive than the power either to "modify" a sentence or to

"reduce" a sentence. Similarly, he gives weight to the fact that

the participle of "impose" is used in section 3553(a)'s enumeration

of "factors to be considered in imposing a sentence." We find

this argument unconvincing.

At the outset, we note that the defendant's tunnel-

vision reading of the word "impose" overlooks the express limiting

language of the First Step Act: the "as if" clause. That clause

permits a sentencing court to apply only sections 2 and 3 of the

Fair Sentencing Act — and no more. See Moore, 975 F.3d at 91

(explaining that "the First Step Act does not simply authorize a

district court to 'impose a sentence' [but] authorizes the court

to do so subject to the 'as if' clause"). The defendant's

selective rendition of the First Step Act sidesteps this plain

statutory language.

What is more, reading the word "impose" in isolation

ignores the fact that the Act permits only a sentence reduction.

First Step Act § 404(b)-(c). Language has its limits and,

situating the word "impose" in context, we are skeptical that a

meaningful difference exists between "imposing" a reduced sentence

and "reducing" a sentence. In all events, no such difference has

been articulated here. Viewed objectively, the fact that the First

Step Act allows only a sentence reduction strongly suggests that

the act does not authorize what would effectively be plenary

- 19 - resentencing. See Alexander, 951 F.3d at 708 (noting that

"authorization to impose a reduced sentence is inconsistent with

a plenary resentencing"); cf. Dillon, 560 U.S. at 831 (concluding

that 18 U.S.C. § 3582(c)(2) "does not authorize a resentencing"

but "[i]nstead . . . permits a sentence reduction").

We add a coda. The defendant's entreaty that we mandate

a fresh evaluation of the section 3553(a) factors would, if

honored, impermissibly cabin the discretion that the First Step

Act vests in the district court. It is to that, at an original

sentencing, the district court, "in determining whether to impose

a term of imprisonment shall consider the factors set forth in

section 3553(a)." 18 U.S.C. § 3582(a). By contrast, though, a

sentence reduction under the First Step Act is wholly

discretionary. See First Step Act § 404(b)-(c). In our view, the

wide discretion inherent in First Step Act resentencing undercuts

the defendant's textual argument. See United States v. Moore, 963

F.3d 725, 727-28 (8th Cir. 2020) (rejecting argument that statutory

use of "impose" requires consideration of section 3553(a)

factors); Kelley, 962 F.3d at 477-78 (same); Foreman, 958 F.3d at

510-12 (same).

Nor need we linger long over the defendant's contention

that our construction of the First Step Act is at odds with 18

U.S.C. § 3553(a). At the time of resentencing, a district court

must place itself back at the date of the offense, altering the

- 20 - legal landscape only by resort to sections 2 and 3 of the Fair

Sentencing Act. See Hegwood, 934 F.3d at 418. This counterfactual

exercise does not undo the sentencing court's original calibration

of the section 3553(a) factors. See id. at 418-19 (explaining

that resentencing under the First Step Act "is being conducted as

if all the conditions for the original sentencing were again in

place with the one exception"). Because the text and structure of

the First Step Act do not support plenary resentencing, there is

no principled way that we can find reassessment of the section

3553(a) factors mandatory.

The short of it is that the scope of a First Step Act

resentencing is more circumscribed than the defendant envisions.

Application of the First Step Act, which vests great discretion in

the district court, raises two questions: the binary question of

whether a defendant should be resentenced and the conditional

question of what that new sentence should be. See Denson, 963

F.3d at 1087 ("The First Step Act leaves the choice of whether to

resentence and to what extent to the district court's sound

discretion."). Fairly viewed, such a proceeding entails a two-

step inquiry by the district court. At the first step, the

district court should determine whether resentencing of an

eligible defendant is appropriate under the circumstances of the

particular case. At this step, though, the district court's

discretion is cabined by the limited permission that Congress saw

- 21 - fit to grant under section 404(b). Consequently, the district

court must place itself at the time of the original sentencing and

keep the then-applicable legal landscape intact, save only for the

changes specifically authorized by sections 2 and 3 of the Fair

Sentencing Act. Cf. Kelley, 962 F.3d at 475 (adopting a two-step

inquiry under which a district court should first "place itself in

the counterfactual situation where all the applicable laws that

existed at the time the covered offense was committed are in place,

making only the changes required by sections 2 and 3 of the Fair

Sentencing Act"). The court must then determine whether the

defendant should be resentenced. Because section 3582(c)(1)(B)

restricts a sentencing court's "permi[ssion]" to modify a

sentence, a district court's decision to permit a modification

must be based solely on the changes that sections 2 and 3 of the

Fair Sentencing Act require to be made with respect to the

defendant's original GSR. See Hegwood, 934 F.3d at 418 (holding

that adjustment of defendant's GSR "'as if' the lower drug offense

sentences were in effect at the time of the commission of the

offense . . . is the only explicit basis . . . for a change in the

sentencing"). If that determination is in the negative, the

inquiry ends and any sentence reduction must be denied.

If, however, the district court's determination is in

the affirmative, it may impose a reduced sentence under step two

of the inquiry. It is at this step that a district court may, in

- 22 - its discretion, consider other factors relevant to fashioning a

new sentence. See Foreman, 958 F.3d at 513 (explaining that "First

Step Act imposes no additional constraints on a district court's

discretion once it determines the statutory and Guidelines ranges

'as if' the Fair Sentencing Act has been in effect before 2010").

Specifically, the discretion that the First Step Act vests in the

district court leads to the logical conclusion — which we endorse

— that "a district court may, but need not, consider section 3553

factors" in a reduction in sentence. Moore, 963 F.3d at 727. When

mulling these factors, the court may choose to consider conduct

that occurred between the date of the original sentencing and the

date of resentencing. See United States v. Hudson, 967 F.3d 605,

612; Chambers, 956 F.3d at 674; United States v. Jackson, 945 F.3d

315, 322 n.7 (5th Cir. 2019).

So, too, the district court may consider guideline

changes, whether or not made retroactive by the Sentencing

Commission, once it reaches the second step of the resentencing

pavane. After all, a district court may take into consideration

any relevant factors (other than those specifically proscribed),

including current guidelines, when deciding to what extent a

defendant should be granted relief under the First Step Act.3 See

3 The scope of this discretion is consistent with our case law allowing sentencing courts to consider intervening guideline amendments in other contexts. See, e.g., United States v. Ahrendt, 560 F.3d 69, 78-80 (1st Cir. 2009) (remanding for discretionary

- 23 - Foreman, 958 F.3d at 513; see also United States v. Harris, 960

F.3d 1103, 1106 (8th Cir. 2020); Smith, 954 F.3d at 452 n.8. It

follows, we think, that a district court, upon electing to fashion

a reduced sentence pursuant to the First Step Act, may in its

discretion order the preparation of a new PSI report. Such an

updated PSI report may contain a revised GSR, based in part upon

subsequent, non-retroactive guideline amendments. We emphasize,

though, that this discretion is a two-sided coin, and the district

court may choose to forgo a new PSI report entirely.

Our dissenting brother disagrees in part: he diverges

from our view in his interpretation of the scope of the discretion

that a resentencing court possesses when deciding whether to

resentence a defendant under step one. In his view, the discretion

that our opinion affords a district court under step two should

extend to step one such that, in deciding whether resentencing is

appropriate, the district court should be able to consider post-

sentencing information. The main support for the dissent's

proposition is that section 3582(c)(2), the vehicle through which

defendants requested a retroactive application of the Fair

Sentencing Act prior to the First Step Act, expressly allows a

court to consider such information in its determination of

resentencing based on non-retroactive guideline amendment); United States v. Godin, 522 F.3d 133, 136 (1st Cir. 2008) (per curiam) (similar).

- 24 - "whether" to sentence a defendant. See 19 USSG §1B1.10 cmt.

n.1(B)(iii) ("The court may consider post-sentencing conduct of

the defendant that occurred after imposition of the term of

imprisonment in determining: (I) whether a reduction in the

defendant's term of imprisonment is warranted; and (II) the extent

of such reduction . . . ."). Nevertheless, our dissenting brother

argues that, in order to grant post-First-Step-Act defendants an

opportunity for relief "roughly equivalent" to that afforded to

previous defendants, the discretion to consider such information

should apply in section 404(b) proceedings. Post at 60.

But we have determined — and our dissenting brother does

not dispute — that section 3582(c)(1)(B), not section 3582(c)(2),

governs section 404(b) proceedings. See supra at 16. Thus, "there

is no reason to suppose that motions brought pursuant

to 3582(c)(1)(B) are subject to the restrictions particular to

§ 3582(c)(2), which are grounded in the text of the latter

statute." Wirsing, 943 F.3d at 185. Although the application of

section 3582(c)(2) is expressly required to comport with section

1B1.10, neither section 3582(c)(1)(B) nor section 1B1.10 requires

a sentence modification under section 3582(c)(1)(B) "to comport

with U.S.S.G. § 1B1.10 or any other policy statement." Holloway,

956 F.3d 666. It follows that "the defendant's eligibility turns

only on the statutory criteria" in section 3582(c)(1)(B) and the

First Step Act. Id.

- 25 - In fact, the deficiencies in pre-First-Step-Act

resentencing that our dissenting brother identifies were wholly

ameliorated by the removal of the restrictions that section 1B1.10

imposed on section 3582(c)(2) proceedings. Prior to the First

Step Act, a defendant was not eligible for a sentence reduction if

the sentencing amendments introduced by the Fair Sentencing Act

did not have the effect of lowering the defendant's GSR or if the

defendant had been originally sentenced as a career offender.

United States v. Stewart, 964 F.3d 433, 436 (5th Cir. 2020). Both

of these categories of sentence-reduction denials emerged a result

of section 1B1.10 restrictions on section 3582(c)(2) proceedings.

See id. In explicitly authorizing sentence modifications in the

First Step Act, Congress purposefully excised reductions related

to the Fair Sentencing Act from the realm of section 3582(c)(2),

thereby relieving section 404(b) proceedings from section 1B1.10

restrictions. See Holloway, 956 F.3d at 667 ("A defendant's

eligibility for a reduced term of imprisonment under Section 404

of the First Step Act is not governed by 18 U.S.C. § 3582(c)(2),

and thus a district court considering such a motion is not

constrained by U.S.S.G. § 1B1.10[]."); 18 U.S.C. § 3582(c)(1)(B).

The inference that certain portions of section 3582(c)(2) should

animate section 404(b) proceedings that take place under a

different statutory provision simply does not follow.

- 26 - It is also not clear why only certain portions (as

opposed to all) of the limitations applicable to section 3582(c)(2)

should pertain to First Step Act resentencings. As our dissenting

brother points out, in a court's determination of whether a

defendant should be resentenced under section 3582(c)(2), the

consideration of post-sentencing information is permissive. See

Post at 60; see also 19 USSG §1B1.10 cmt. n.1(B)(iii). In that

same determination, though, the consideration of section 3553(a)

factors is obligatory. See 19 USSG §1B1.10 cmt. n.1(B)(i). But

the dissent does not argue that such an obligation applies to

section 404(b) proceedings. The same is true, for example, of the

section 1B1.10 prohibition on sentence reductions in which an

amendment does not lower a defendant's GSR. Even though nothing

in the First Step Act disavows this limitation, our dissenting

brother infers that this specific provision does not apply to

section 404(b) proceedings. Absent a Congressional directive to

apply limitations on relief expressly applicable to one statutory

provision to another statutory provision, we see no justification

for picking and choosing from the section 1B1.10 list of

limitations.

We make one final observation: there is not much

daylight between the position that we take and the position taken

by our dissenting brother. Indeed, the only defendants who would

be denied a sentence reduction under our framework but who would

- 27 - be successful under our dissenting brother's vision are those

defendants for whom the Fair Sentencing Act was alone insufficient

to justify a reduction. This result not only comports with, but

also is mandated by, the applicable statutory restrictions.

The sole remaining issue is whether the district court

abused its discretion by denying the defendant's motion for

resentencing. "An abuse of discretion 'occurs when a material

factor deserving significant weight is ignored, when an improper

factor is relied upon, or when all proper and no improper factors

are assessed, but the court makes a serious mistake in weighing

them.'" United States v. Soto-Beníquez, 356 F.3d 1, 30 (1st Cir.

2003) (quoting Indep. Oil & Chem. Workers, Inc. v. Procter & Gamble

Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988)).

In this instance, the district court carefully analyzed

the First Step Act and its application to the defendant's

situation. It concluded that the defendant was eligible for

resentencing and focused on whether resentencing would be

appropriate as a matter of discretion. Deciding that resentencing

was not warranted, the court stressed its initial leniency. It

made particular note that the downwardly variant sentence it had

imposed in 2009 was within the new GSR dictated by the provisions

of the Fair Sentencing Act. The court proceeded to consider the

amended career offender guideline, noted that the Sentencing

Commission had declined to make it retroactive, and decided not to

- 28 - pantomime it as a matter of discretion. Summing up, the court

observed that if the defendant "came before the Court today and

the Court considered only the changes in law that the Fair

Sentencing Act enacted, his sentence would be the same."

Consistent with this observation, the court concluded that the

original 228-month sentence was "fair and just" in 2009 and

"remains so today."

We discern nothing resembling a misuse of the sentencing

court's discretion. The court weighed the proper mix of factors,

considered everything of consequence, and made a judgment that was

both reasoned and reasonable. That judgment was well within the

encincture of the court's discretion. No more was exigible.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment of the district court is

Affirmed.

-Dissenting Opinion Follows-

- 29 - BARRON, Circuit Judge, dissenting. The majority finds

no abuse of discretion in this case. But it is a classic abuse of

discretion for a district court to decline to exercise the

discretion that it legally possesses because it mistakenly

believes that it lacks that discretion as a matter of law. In my

view, that is exactly what happened here when, upon Carlos

Concepcion's request for a sentence reduction pursuant to § 404(b)

of the First Step Act, the District Court declined to give any

consideration to the favorable intervening change to the career

offender Guideline that the United States Sentencing Commission

had made since that Guideline had been applied at his original

sentencing proceeding. See U.S.S.G. app. C supp., amend. 798

(eliminating the residual clause from the "crime of violence"

definition at U.S.S.G. § 4B1.2(a)). I thus am convinced that we

must vacate and remand the District Court's ruling denying

Concepcion the relief that he seeks pursuant to § 404(b).

To explain my reasoning, it is necessary to pan out from

Concepcion's particular case. This broader perspective reveals

not merely the problem with the District Court's ruling on this

record but also where, in my view, the majority has erred more

generally in construing § 404(b), which states: "A court that

imposed a sentence for a covered offense may . . . 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

- 30 - the covered offense was committed." First Step Act of 2018, Pub.

L. No. 115-391, § 404(b), 132 Stat. 5194, 5222.4

Through this provision of the First Step Act, Congress

addressed what had been one of the most glaring inequities in our

highly punitive federal sentencing framework -- the substantially

disparate treatment, under both statutory law and the United States

Sentencing Commission's Guidelines, accorded offenses involving

crack cocaine relative to those involving powder cocaine. Section

404(b) mitigates that inequity by making retroactive the otherwise

prospective-only Fair Sentencing Act, which Congress enacted to

lessen that disparate treatment.

Given the remedial nature of this legislative effort, it

is a mistake in my view to attribute to Congress an intention to

constrain district courts from exercising the kind of discretion

under this provision that they typically may exercise when they

have been authorized to rectify sentences that time has shown to

have been unduly harsh. Cf. 18 U.S.C. § 3582(c)(2) (permitting

sentence reductions for defendants whose sentences were "based on

a sentencing range that has subsequently been lowered by the

Sentencing Commission"). Yet, as I will explain, the majority's

4 Section 404(a) of the First Step Act provides the class of offenses -- "covered offenses" -- for which the relief provided for in § 404(b) may be sought. Section 404(c) places limitations, not relevant here, on circumstances in which relief may be sought and also makes clear that a district court is not required to reduce any sentence under § 404(b).

- 31 - construction of § 404(b), by limiting district courts' ability to

take account of intervening developments (beyond the retroactive

application of the Fair Sentencing Act that § 404(b) itself brings

about), will have that precise consequence in certain important

respects.

I begin by describing in greater detail the particular

questions about the meaning of § 404(b) that this appeal requires

us to resolve. I then describe how the majority answers them and

why I conclude that certain of those answers are mistaken.

Finally, I explain why in my view the District Court's ruling here

cannot be sustained.

I.

District courts enjoy substantial discretion in

selecting a defendant's sentence. True, they must set it within

the prescribed statutory maximum and minimum sentence (if

applicable), and they must do so after properly calculating the

range for the sentence that the United States Sentencing Commission

recommends through the Guidelines that it promulgates. But, at

least in the original sentencing proceeding, a district court need

not set the sentence at any particular point within either range

-- or, it bears mention, within the range at all in the case of

the Guidelines Sentencing Range ("GSR").

Questions do necessarily arise, though, as to the

considerations that may inform both the district court's

- 32 - determination of the sentence once the applicable sentencing range

has been identified and the calculation of the range itself. And

these questions arise as much in a proceeding to revisit a sentence

already imposed (such as on remand from a direct appeal or in a

proceeding to modify under 18 U.S.C. § 3582(c)(2)) as they do in

a proceeding to impose a sentence for the first time.

One factor that bears on these considerations is the

focus of our concern in Concepcion's case and that factor is

temporal in nature. It concerns the point in time after the

underlying offense has been committed at which the clock stops,

such that the district court is then barred from giving weight in

the defendant's sentencing proceeding to any subsequent

developments (whether factual, such as post-offense conduct by the

defendant, or legal, such as amendments to the Guidelines that the

Commission may have made).

The resolution of this temporal choice may matter

greatly to the outcome of the sentencing proceeding. It will

affect not only the ingredients that the district court may rely

on in calculating the GSR that it will use in that proceeding but

also the ingredients that it then may rely on in deciding, based

off of that GSR, the sentence itself.

In the context of the original sentencing proceeding, it

is relatively clear that the clock stops in most respects only

when the sentencing proceeding itself begins. Thus, barring any

- 33 - ex post facto concerns, the district court must use the Guidelines

in effect at the time of that sentencing proceeding -- rather than,

say, those in effect at the time the defendant committed the

offense -- to calculate the GSR that will serve as the benchmark

for the sentence to be imposed at that proceeding. See David v.

United States, 134 F.3d 470, 475 (1st Cir. 1998); see also Gall v.

United States, 552 U.S. 38, 50 (2007). Similarly, when setting

both the GSR and the actual length of the sentence in relation to

that range in such an original sentencing proceeding, the

sentencing judge may consider any other pertinent developments

(including factual ones) that have occurred up to the moment of

the sentencing. See 18 U.S.C. § 3553(a); see also, e.g., United

States v. Jordan, 549 F.3d 57, 61 (1st Cir. 2008).

In the context of revisiting proceedings, it also is

clear that the clock does not stop at the time the defendant

committed the underlying offense. But, there necessarily arises

in that context this new temporal choice: Is the sentencing

proceeding that stops that clock the one that was held to impose

the original sentence or the one that is being held thereafter to

revisit it?

Concepcion's appeal requires that we answer that

specific question of timing and that we do so in the particular

context of proceedings that are held pursuant to § 404(b).

Concepcion contends that the District Court abused its discretion

- 34 - in his case under § 404(b) precisely because it stopped the clock

at the time of his original sentencing proceeding and thus refused

to consider at his § 404(b) proceeding subsequent developments

(both legal, like the amendment to the career offender Guideline

mentioned above, but also factual) that he contends pointed in

favor of reducing his sentence. He further contends that the

District Court's refusal to consider those intervening

developments prejudiced his ability to receive the sentence

reduction that he contends that he was due under that provision,

such that the ruling denying him relief under § 404(b) must be

vacated and remanded.

II.

Having isolated the precise issue before us -- and the

temporal nature of it -- how should we go about resolving it? As

I will explain, the answer does not exactly leap off the pages of

the statute book.

Section 404(b), by its plain terms, does make clear --

through its use of the word "reduced" -- that it is authorizing a

district court to adjust a sentence that has already been imposed

rather than to impose one anew. And, in that respect, the

provision is best read to be authorizing a revisiting proceeding,

notwithstanding the text's use of the word "impose."

In addition, § 404(b) makes clear that the district

court must revisit the original sentence in a counterfactual

- 35 - manner. As the text states, in deciding to "impose a reduced

sentence," the district court must proceed "as if" the Fair

Sentencing Act had been in effect when the underlying offense was

committed.

And, the text of § 404(b) also makes perfectly clear

still one more thing that is relevant to our inquiry. It

establishes that the district court will be making the reduction

decision in the here and now and thus, necessarily, at a time when

it is at least possible for it to know of post-sentencing

developments beyond the one singled out in the "as if" clause.

After all, at that earlier time, those developments -- like the

mandate to retroactively apply the Fair Sentencing Act itself --

had not yet occurred.

But, § 404(b) is more cryptic than clear when it comes

to the following additional question of timing that it necessarily

also prompts: Is the district court in making the reduction

decision in the here and now supposed to blind itself to the

present state of the world beyond the fact of the existence of

that new mandate imposed by the "as if" clause? And, the text is

similarly hard to decipher when it comes to related questions that

necessarily arise insofar as the district court may take that

broader peek at the present in making such a reduction

determination, such as: What is the extent of the present-day

- 36 - knowledge that it may draw upon and for what purposes may it do

so?

Is the text saying to the district court that it must go

back in time to the moment of the original sentencing proceeding,

make the one alteration to that prior state of the world that the

"as if" clause compels, and then make the reduction decision

without accounting for what is now also known? Is it saying

instead that the district court should simply be exercising the

same type of discretion to reduce the sentence at hand that it

ordinarily has in revisiting a sentence already imposed based on

some change in the law, such as in a run-of-the-mill modification

proceeding or on a remand from a direct appeal? Or, is § 404(b)

saying instead something distinct from either of those two

positions and, if so, what?

In my view, one could stare at the text of § 404(b) all

day long looking for answers to those questions and not find them.

It is only by placing that text in the context of the overall

federal sentencing framework in which it is embedded that it is

possible to discern answers to them. In what follows, then, I

explain what supplies that context for me and what answers emerge

from it. But, it helps first to set forth more fully how the

majority reads § 404(b) to answer those same questions, as doing

so will make it clearer both why and how I diverge from its

approach.

- 37 - A.

The majority reads § 404(b) to require the district

court to engage in a two-step inquiry once it determines that the

defendant was originally sentenced for an offense that is covered

by that provision. Those two steps are to be carried out --

temporally speaking -- as follows.

The first step of this inquiry, according to the

majority, requires the district court to make a gating judgment in

which it must ask: Is any reduction in the original sentence

appropriate at all? And, according to the majority, the district

court in answering that question must set aside a presentist

mindset and transport itself back in time to the moment of the

original sentencing proceeding.

Then, having engaged in that time travel, under the

majority's approach to this first step of the inquiry, the district

court, in keeping with § 404(b)'s "as if" clause, must make just

one adjustment to the state of the world as it then existed. It

must proceed at the § 404(b) proceeding "as if" the Fair Sentencing

Act had been in effect at the time the defendant committed the

underlying offense.

As a result, under the majority's approach, the district

court at this first step of the inquiry must alter the GSR that

applied at the defendant's original sentencing proceeding -- based

as it necessarily was on the Guidelines that were in effect at

- 38 - that earlier time. Or, at least, it must do so in accord with any

alteration in the then-applicable statutory sentencing range that

would be required by the retroactive application of the relevant

provisions of the Fair Sentencing Act that § 404(b) itself brings

about.

Finally, after having made that one adjustment to the

world as it was back then, the district court on the majority's

view must go on at this first step of the § 404(b) inquiry to make

the critical gating determination. In other words, to complete

the first step, the district court must decide, based on only the

inputs thus far described, whether to reduce the defendant's

original sentence given that newly adjusted range.

The majority does conclude that a district court

conducting a § 404(b) proceeding is not so temporally constrained

once it arrives at the second step of the two-step inquiry. At

that second step, according to the majority, the district court

may take account of what it could not at step one -- intervening

factual developments, such as post-sentencing conduct by the

defendant, and intervening legal developments, such as amendments

to the Guidelines that are favorable to the defendant's cause,

whether or not they are themselves retroactive.

The district court's sole temporal constraint at this

second step, then, is relatively minimal. It is implicit in the

majority's approach that, in considering those intervening

- 39 - developments -- whether factual or legal -- the district court at

this second step must use the GSR that has been calculated based

on the Guidelines from the original sentencing proceeding rather

the ones in effect at the time of the § 404(b) proceeding itself.

But, once it is so rooted in that way, it is free to account for

all that it now knows.

Yet, as much as the majority is willing to permit the

district court to adopt a more presentist mindset in this important

respect at step two of the inquiry, it is crucial to keep in mind

how temporally constrained the majority's approach remains

overall. After all, it is critical to the majority's construction

of § 404(b) that the second step of this two-step inquiry does not

itself concern the threshold question -- posed only at the first

step -- of whether the defendant's sentence should be reduced. It

instead concerns only the ancillary and follow-on question of how

much the sentence should be reduced, which is a question that

arises on the majority's account if and only if the decision at

the first step to reduce the sentence at all has already been made

to the defendant's benefit.

Thus, the upshot of the majority's approach, taken as a

whole, is this: no post-sentencing developments other than the

First Step Act's own mandate to give retroactive effect to the

Fair Sentencing Act may inform the district court's decision as to

whether to reduce the defendant's sentence. Accordingly, under

- 40 - the majority's approach, no weight may be given at all in making

that critical threshold judgment to (1) post-sentencing statutory

or Guidelines changes unrelated to the crack-powder disparity,

(2) the overturning of the defendant's prior convictions that had

been relied on to determine his criminal history category, or even

(3) the defendant's admirable post-sentencing conduct. And that

is so not only when it comes to deciding what considerations may

inform the setting of the GSR to be used at the § 404(b) proceeding

but also when it comes to deciding whether any reduction at all is

warranted in the defendant's original sentence given the GSR that

applies at that proceeding to revisit that sentence.

B.

For the reasons that I will next explain, I do not share

the majority's bifurcated understanding of how a district court

may proceed -- temporally speaking -- under § 404(b). No other

circuit distinguishes between the "whether to reduce" and "how

much to reduce" determinations with regard to the consideration

that a district court may give under that provision of the First

Step Act to developments that post-date the original sentencing

proceeding (beyond, of course, the development expressly brought

about by the First Step Act's requirement to apply the Fair

Sentencing Act retroactively).5 And, even assuming that the

5Other circuits have, however, adopted the slightly different two-step approach that I advance, in which the GSR calculation is

- 41 - reduction decision is not better conceived to be a more holistic

endeavor than the majority makes it out to be, I see no reason

that we should become the first circuit to do so.

I note that § 404(b) supplies no textual support that I

can see for distinguishing between these two types of discretionary

determinations in the manner that the majority does. That

provision appears merely to make a unitary discretionary grant of

authority to "impose a reduced sentence" without purporting to

carve it up into discrete judgments subject to distinct temporal

constraints.6

constrained but both discretionary questions -- whether and how much to reduce the sentence -- can be informed by at least some intervening developments. See, e.g., United States v. Foreman, 958 F.3d 506, 513 (6th Cir. 2020) ("[A] district court is authorized to do two things with respect to a defendant's covered offense: (1) determine the statutory and Guidelines ranges 'as if sections 2 and 3 of the Fair Sentencing Act were in effect at the time the covered offense was committed,' and (2) exercise its discretion to impose a new sentence somewhere between the revised statutory minimum and the existing sentence. . . . [T]he First Step Act imposes no additional constraints on a district court's discretion once it determines the statutory and Guidelines ranges 'as if' the Fair Sentencing Act had been in effect before 2010."); see also United States v. Moore, 975 F.3d 84, 89 (2d Cir. 2020) ("First, the court must determine whether the defendant is eligible for a reduction. Second, if the defendant is eligible, the court must determine whether, and to what extent, to exercise its discretion to reduce the sentence."); United States v. McDonald, 944 F.3d 769, 771 (8th Cir. 2019) (similar). 6 Concededly, that grant of authority in § 404(b) is conditional, but the chief condition -- set forth in the "as if" clause -- does not by terms purport to speak to whether the clock stops at the original sentencing proceeding or the § 404(b) proceeding as to either the question of whether to reduce the original sentence or the question of by how much to reduce it if

- 42 - Moreover, the background against which § 404(b) was

enacted and the purposes that underlie that provision combine in

my view to demonstrate the problems with the way the majority

resolves the ambiguities in § 404(b)'s text as to at least certain

of the temporal questions presented here. For, as I will explain,

that background and those purposes indicate to me that this text

should be construed to give the district court not only the

discretion that the majority would afford it to account for

intervening developments in deciding how much to reduce a sentence

but also that same amount of discretion to account for those same

intervening developments in making the threshold determination

about whether to reduce the sentence at all. Or, at least, the

background and purposes suggest to me that the district court has

such discretion once it has calculated the GSR based on the

Guidelines that were in effect at the time of the original

sentencing proceeding while duly accounting for the application of

the Fair Sentencing Act mandated by § 404(b)'s "as if" clause.

1.

The majority implicitly accepts that the first temporal

question that arises under § 404(b) is not the "whether to reduce"

a reduction of any sort is in order. Thus, that conditioning "as if" clause draws no distinction between the "whether" and the "by how much" determinations. The clause on its face speaks instead only to the sentencing range that must be applied in the § 404(b) proceeding that must serve as the anchor for both of those determinations.

- 43 - one that is its focus at the first step of its approach. Rather,

the first temporal question is the logically prior one concerning

how the district court must calculate the GSR to be used in the

§ 404(b) proceeding. Indeed, under the majority's approach, the

Fair Sentencing Act-adjusted GSR supplies the "initial benchmark"

for the determinations that must be made under § 404(b) at each of

the two steps it identifies. See Gall, 552 U.S. at 49.7

Thus, although the majority's two-step approach appears

to me to collapse the temporal question of whether the old or the

new Guidelines must be used to calculate that GSR into the

necessarily follow-on temporal question of which considerations

(old or new) may inform the "whether to reduce" determination, I

think it is important separately to analyze that antecedent

7Section 404(b) of the First Step Act does not by its terms require the district court to determine the newly applicable GSR before deciding whether to reduce the defendant's original sentence. That provision incorporates provisions of the Fair Sentencing Act that change the statutory penalties setting the mandatory maximum and minimum sentence for certain crimes involving cocaine base. See Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. For defendants sentenced as career offenders, as Concepcion was, these statutory penalty changes affect the applicable GSR, too, because the offense level under the career offender Guideline is keyed to the statutory maximum for the offense of conviction. See U.S.S.G. § 4B1.1(b). The parties do not dispute that the district court must adjust the GSR at least to account for these changes. And, doing so as the initial step in a sentencing proceeding is the standard practice across sentencing contexts, including in those modification proceedings permitting a district court to revisit a sentence in light of certain subsequent legal developments. See Gall, 552 U.S. at 49; Dillon v. United States, 560 U.S. 817, 827 (2010).

- 44 - question first. For, while I agree with the majority that the

calculation of the GSR to be used at the § 404(b) proceeding must

be based -- in the main -- on the old Guidelines, the reasons that

lead me to that conclusion do not in my view support the majority's

resolution of the follow-on temporal question regarding the

"whether to reduce" determination.

a.

Notably, the text of § 404(b) does not itself have much

to say about which version of the Guidelines -- old or new -- is

to be used to calculate the GSR that will control at a § 404(b)

proceeding. There is no express reference in this provision to

the GSR that applies, let alone to how the GSR that is to be used

at such a proceeding is to be calculated.

The provision's "as if" clause does -- at least impliedly

-- make clear that the GSR that applies in a § 404(b) proceeding

cannot be the same one that was used in the original sentencing

proceeding, at least insofar as the one that was used at that

earlier time had been keyed to a statutory maximum that would not

apply if the relevant Fair Sentencing Act provisions then had been

in effect. Otherwise, the taint of the disparate treatment of

crack-cocaine offenses that the First Step Act aims to address

would carry through to the § 404(b) proceeding itself.

But, the "as if" clause does not make similarly clear

whether, in calculating the GSR to be used at a proceeding under

- 45 - that provision, the district court must use the Guidelines that

were in effect at the time of the original sentencing proceeding

or those Guidelines that are in effect at the time of that

revisiting proceeding. It simply does not address that question.

That is not to say that the "as if" clause makes no

temporal reference. It plainly does. But, it does so only by

referring back to the time of the commission of the offense. And,

while that time frame is one that makes sense for purposes of

determining the statutory penalties, see Dorsey v. United States,

567 U.S. 260, 272-73 (2012), it is not one that speaks to the

version of the Guidelines that Congress intended for the district

court to use in calculating the GSR in § 404(b) proceedings. At

the time of the offense's commission, after all, there had been no

sentencing proceeding -- original or otherwise.

Nor can the "as if" clause be thought to offer an

implicit resolution of the temporal question concerning which

version of the Guidelines to use in calculating the GSR for the

§ 404(b) proceeding itself. That clause would not be rendered

wholly superfluous, for example, if § 404(b) were construed to

require that the Guidelines used to calculate the GSR for such a

proceeding were the ones that are in effect at the time of that

proceeding (save for any ex post facto concerns), rather than the

ones that were in effect at the time of the original sentencing

proceeding. Indeed, in that event, the "as if" clause still would

- 46 - usefully perform a clarifying role, by making plain how far back

in time the Fair Sentencing Act would apply retroactively.

All that said, the text of § 404(b) is not a complete

cipher with respect to the temporal question at hand. The

reference to a "reduced" sentence in § 404(b) does provide a

possible clue as to what Congress intended on that score, as it

necessarily takes the district court back to the earlier sentence

that the defendant originally received and thereby accords with

the notion that the district court in a § 404(b) proceeding should

understand itself to be adjusting -- or determining whether to

adjust -- a sentence that has already been imposed rather than to

be imposing an entirely new one afresh.

Accordingly, the provision's text does in this respect

provide a hook for concluding that Congress intended the district

court to use the version of the Guidelines to calculate the GSR to

use at the § 404(b) proceeding that it uses in other contexts in

which it has been charged with revisiting a previously imposed

sentence for a possible reduction. Nor do I think we strain the

word "reduced" too much by reading it to provide this hook.

It is a familiar interpretive precept that, in resolving

a statutory ambiguity, we may look to the pre-existing legislative

foundation on which a new measure builds for insight into what

Congress meant by the words it enacted. It thus makes sense to me

to look to what came before § 404(b) in analogous contexts to

- 47 - resolve the ambiguity that is at issue here, which concerns the

version of the Guidelines to use at the § 404(b) proceeding. See

United States v. Martin, 974 F.3d 124, 139 (2d Cir. 2020) (noting

that "[t]o the extent the First Step Act is silent," it "makes

sense to look to . . . analogous resentencing proceeding[s]" given

that "it is more likely that Congress was adopting, rather than

departing from, established assumptions about how our legal or

administrative system works" (quoting Nat. Res. Def. Council, Inc.

v. U.S. Food & Drug Admin., 760 F.3d 151, 166 (2d Cir. 2016))).

Such a review turns out to be most instructive. It

reveals that, unlike in original sentencing proceedings, district

courts in revisiting proceedings do not generally use the

Guidelines that are in effect at the time of those proceedings.

To the contrary, it has been clear since at least the

2003 enactment of 18 U.S.C. § 3742(g)(1) that on remand a district

court is to apply the Guidelines that were in effect at the time

of a defendant's original sentencing to calculate the GSR that

will be used in determining the punishment in the resentencing.

See PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) (codified

at 18 U.S.C. § 3742(g)) ("In determining the range referred to in

subsection 3553(a)(4), the court shall apply the guidelines issued

by the Sentencing Commission . . . that were in effect on the date

of the previous sentencing of the defendant prior to the appeal,

- 48 - together with any amendments thereto by any act of Congress that

was in effect on such date . . . ."). And, in the seemingly even

more analogous context of sentence modification proceedings under

18 U.S.C. § 3582(c)(2), the relevant statutory text has been

understood by no less seasoned an interpreter than the United

States Sentencing Commission in a way that led it similarly to

require district courts to use the Guidelines provisions applied

at the original sentencing proceeding (as modified only by the

particular retroactive amendments that were the basis for the

§ 3582(c)(2) motion) to calculate the GSR for the modification

proceedings themselves. See U.S.S.G. § 1B1.10(b)(1); see also 28

U.S.C. § 994(a)(2)(C) (providing that the Commission shall

promulgate policy statements "that in the view of the Commission

would further the purposes set forth in [18 U.S.C. § 3553(a)(2)],

including the appropriate use of . . . the sentence modification

provisions set forth in" 18 U.S.C. § 3582(c)).

Thus, against that backdrop, I see little reason to

assume that Congress meant for a revisiting proceeding under

§ 404(b) to be temporally distinct in such a fundamental respect

from other revisiting proceedings. Indeed, in light of the well-

known practice in other types of revisiting proceedings of not

setting the GSR to be used in them on the basis of contemporary

Guidelines, it is reasonable to expect that if Congress did intend

to depart from that practice here it would have been at least as

- 49 - clear in making that intention known as it was in pronouncing in

the "as if" clause that the otherwise inapplicable Fair Sentencing

Act would apply. See Martin, 974 F.3d at 139-40.

c.

This understanding of § 404(b) is reinforced by the

First Step Act's apparent purposes. Following the enactment of

the Fair Sentencing Act, some defendants sentenced under the former

disparity-tainted regime were able to have their sentences

revisited pursuant to 18 U.S.C. § 3582(c)(2), based on the

retroactive amendments that the Sentencing Commission promulgated

in response to the Fair Sentencing Act. See Dorsey, 567 U.S. at

273 (explaining that the Fair Sentencing Act "require[d] the

Commission to change the Guidelines in the wake of the Act's new

minimums"). But, given the limitations on eligibility for

§ 3582(c)(2) relief, significant gaps to relief remained --

individuals sentenced as career offenders, like Concepcion, as

well as those serving statutory mandatory minimum sentences and

those whose GSR otherwise would not change as a result of the

Commission's responsive amendments, were ineligible to have their

sentences revisited under § 3582(c)(2). See United States v.

Wirsing, 943 F.3d 175, 179 (4th Cir. 2019) (explaining these gaps).

A reading of § 404(b) under which the Guidelines from

the original sentencing proceeding (as adjusted by the impact of

the retroactive application of the Fair Sentencing Act) also serve

- 50 - as the starting point for calculating the GSR for the revisiting

proceeding enables § 404(b) to fill those gaps. See 164 Cong.

Rec. S7020, S7021 (daily ed. Nov. 15, 2018) (statement of Sen.

Durbin) (describing bill with the text ultimately passed in § 404

as "giv[ing] a chance to thousands of people who are still serving

sentences for nonviolent offenses involving crack cocaine under

the old 100-to-1 rul[e] to petition individually" for a sentence

reduction). But such a reading also ensures that § 404(b) fills

them in a manner that, sensibly, does not entitle the class of

defendants to whom this opportunity for relief has been extended

to a form of review of their original sentences based on a GSR

calculated under a new and more favorable set of Guidelines than

prevailed at their original sentencing just because they happened

to become eligible for post-Fair Sentencing Act review later than

those who were eligible to secure it through the auspices of

§ 3582(c)(2). See United States v. Brown, 974 F.3d 1137, 1144

(10th Cir. 2020) ("Our review demonstrates that Congress, when

passing § 404, authorized only a limited change in the sentences

of defendants who had not already benefitted from the Fair

Sentencing Act. . . . It follows that the First Step Act also does

not empower the sentencing court to rely on revised Guidelines

instead of the Guidelines used at the original sentencing.");

accord United States v. Moore, 975 F.3d 84, 91 (2d Cir. 2020).

- 51 - d.

Thus, I agree with the majority's resolution of the first

temporal question that § 404(b) presents, which concerns the

proper means of calculating the GSR to be used at a proceeding

held pursuant to that provision. Like the majority, I agree that

the Guidelines to be used in calculating the GSR for that type of

proceeding -- at least absent subsequent clarifying or retroactive

amendments to them -- are the ones that were used in setting the

GSR used at the original sentencing and not those in effect at the

time of the § 404(b) proceeding itself.8

2.

We come, then, to the distinct and follow-on temporal

question that § 404(b) also requires us to resolve, which concerns

8 I do not read any circuit to have expressly held that the district court must apply the current Guidelines to determine the GSR for a § 404(b) proceeding. And, given the nature of Concepcion's arguments to us, we need not decide whether intervening Guidelines amendments that are merely clarifying, cf. U.S.S.G. § 1B1.10(a)(2) (providing that "if a court applies an earlier edition of the Guidelines Manual" due to ex post facto concerns, "the court shall consider subsequent amendments [so long as they] are clarifying rather than substantive changes"); United States v. Sarmiento-Palacios, 885 F.3d 1, 4-5 (1st Cir. 2018) (discussing the use of clarifying amendments in remand proceedings), or that are themselves retroactive, see United States v. Bethany, 975 F.3d 642, 652-53 (7th Cir. 2020) (concluding that "although the district court could have exercised its discretion to apply" retroactive Guidelines amendments to save the defendant the "extra step of filing a motion under § 3582(c)(2)," "it was not required to do so"); but see, e.g., United States v. Caraballo, 552 F.3d 6, 11 (1st Cir. 2008) (noting that § 3582(c)(2) is unavailable to defendants sentenced as career offenders where the retroactive amendment sought to be considered is not a change

- 52 - whether a district court conducting a proceeding pursuant to that

provision is just as temporally constrained when it comes to the

"whether to reduce" question as it is in setting the GSR. But,

deploying the same interpretive logic that I deployed above to

answer this temporal question, I conclude that the majority is

wrong to resolve the temporal question in the constraining manner

that it does. For, as I will explain, the background to, and the

purposes of, § 404(b) require me to conclude, unlike the majority,

that the provision's textual ambiguities are best construed to

permit a district court in deciding whether to reduce the

defendant's original sentence to account for post-sentencing

developments (whether factual or legal) no less than the majority

to the career offender Guideline); United States v. Stewart, 964 F.3d 433, 437-38 & 437 n.6 (5th Cir. 2020) (noting that for some defendants, such as career offenders, ineligible for § 3582(c)(2) relief, the "prospect of relief under the [Fair Sentencing Act] would prove illusory . . . if courts were obligated to calculate sentencing ranges . . . without the benefit of" those retroactive amendments promulgated in response to the Fair Sentencing Act), should be accounted for in determining the applicable GSR in § 404(b) proceedings. Nor for that same reason need we address related questions concerning intervening factual developments, cf. United States v. Ticchiarelli, 171 F.3d 24, 35 (1st Cir. 1999) (providing that the scope of the appellate court's remand may determine the effect that may be given to such intervening factual developments); U.S.S.G. § 1B1.10(b)(1) (providing that, in § 3582(c)(2) proceedings, the "court shall substitute only the amendments listed in subsection (d) for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected" (emphasis added)), or intervening case law, see United States v. Chambers, 956 F.3d 667, 672-74 (4th Cir. 2020), that might affect the GSR even under the old Guidelines.

- 53 - agrees a district court may account for them in deciding by how

much to reduce that sentence once it decides that some reduction

is required.

The only possible source of the temporal limitation that

the majority would impose on the "whether to reduce" determination

in the text of § 404(b) itself would appear to be found in that

provision's "as if" clause. But, as we have seen, that clause

merely mandates that the statutory sentencing range -- and, by

extension, the GSR -- that must be used in the § 404(b) proceeding

is the one that obtained at the original sentencing proceeding as

adjusted in accord with the mandated retroactive application of

the Fair Sentencing Act. Thus, that clause does not, by terms,

purport to speak to this precise temporal issue at all.9

Nor does § 404(b)'s "as if" clause impliedly speak to

that issue in light of the way it interacts with the canon against

superfluity. See In re Montreal, Me. & Atl. Ry., Ltd., 799 F.3d

1, 9 (1st Cir. 2015) ("[C]ourts should construe statutes to avoid

rendering superfluous any words or phrases therein."). A

9 Indeed, the fact that the only time frame referenced in the "as if" clause is the time of the commission of the offense indicates that Congress did not intend for the "as if" clause to dictate that a district court imagine itself to be inhabiting an earlier point in time in all respects. For, Congress could not have intended to direct a district court in a § 404(b) proceeding to imagine what sentence it would make sense to impose at a time when even the original sentencing proceeding had not yet occurred.

- 54 - construction of § 404(b) that would confer on district courts the

discretion to consider intervening developments in deciding

whether to reduce a sentence would not render the "as if" clause

meaningless, even though it would permit a district court to give

weight to a favorable intervening change in the Guidelines. Such

a construction still treats that clause as usefully performing the

role of identifying the sentencing range to be used in the § 404(b)

proceeding by specifying that it is the range that would apply if

the Fair Sentencing Act had been in effect at the time of the

commission of the underlying offense.

The majority does suggest that a separate textual

limitation on discretion -- not to be found within § 404 itself --

compels the resolution of the temporal issue that it embraces.

The majority locates that limitation in 18 U.S.C.

§ 3582(c)(1)(B)'s grant of authority to "modify an imposed term of

imprisonment to the extent . . . expressly permitted by statute."

Id. (emphasis added).

To the majority, this "expressly permitted" language

functions as a global clear-statement rule for sentencing

modification measures generally. Thus, the majority concludes,

this language requires us to read the express grant of authority

in § 404(b) as narrowly as possible when it comes to the "whether

to reduce" determination.

- 55 - But, such a reading of the "expressly permitted"

language misconstrues the operation of § 3582(c)(1)(B), which is

merely a finality exception that does not itself impose substantive

limits. Cf. United States v. Triestman, 178 F.3d 624, 629 (2d

Cir. 1999) (Sotomayor, J.) (reading § 3582(c)(1)(B) not to impose

its own limitations but merely to "note[] the authority to modify

a sentence if modification is permitted by statute" (emphases

omitted) (quoting S. Rep. No. 98-225 (1984), reprinted in 1984

U.S.C.C.A.N. 3182, 3304)). Thus, insofar as the revisiting

proceeding at issue here is properly deemed a "modification"

proceeding, it is enough to satisfy that textual requirement in

§ 3582(C)(1)(B) in my view that § 404(b) "expressly permit[s]"

modification. And, that being so, we must look to § 404(b) itself

-- and not elsewhere -- for any limits on the extent of the

modification that is allowed, precisely because that provision

does expressly permit a modification to be made. See United States

v. Kelley, 962 F.3d 470, 477 (9th Cir. 2020) ("[T]he First Step

Act expressly permits a specific type of sentence reduction, and

we interpret and implement such an independent congressional

statute on its own terms.").

What, then, are the limits that § 404(b) imposes when it

comes to the precise temporal question before us at this juncture

of the analysis, which concerns a district court's discretion as

- 56 - to whether to reduce a sentence once the Fair Sentencing Act has

been given its requisite retroactive effect? Once again, because

the text of § 404(b) provides no clear answer, I find it most

helpful to consider the backdrop against which Congress enacted

the provision. See Martin, 974 F.3d at 139-40.

I do not mean to suggest that we may simply pick and

choose from the rules that govern previously established federal

sentencing frameworks in construing § 404(b) in this connection.

We have no warrant to select those aspects of them that we like

and to discard those that we do not in determining the rules that

are to be operative under § 404(b).

I do mean to suggest, however, that, insofar as the face

of § 404(b) is not clear one way or the other as to how it is to

be construed on a crucial interpretive point, then we should apply

the familiar tools of statutory interpretation to resolve that

ambiguity. And, as those familiar tools include considerations of

the background understandings against which Congress legislated,

there is good reason to give interpretive weight to those

understandings in resolving the ambiguity at hand.

Indeed, the evident remedial purposes of the First Step

Act, see United States v. White, 984 F.3d 76, 89-90 (D.C. Cir.

2020) (detailing the remedial purpose of the First Step Act and

arguing that it should be understood in light of that purpose),

accord with following such an interpretive course. They suggest,

- 57 - if anything, a reason to presume that Congress would have wanted

to confer no less discretion in this context than it has conferred

in seemingly similar ones, especially given the discretionary

manner in which the federal sentencing framework as a whole

operates. Cf. Pepper, 562 U.S. at 488-91 (discussing the

"longstanding principle" granting sentencing courts "broad

discretion to consider various kinds of information" (quoting

United States v. Watts, 519 U.S. 148, 151 (1997))).

For that reason, I find it instructive in construing

Congress's intent that it was well understood prior to § 404(b)'s

passage that, on remand of a sentence, the district court, once it

has identified the applicable GSR for that revisiting proceeding

based on the Guidelines that were in place at the time of the

original sentencing, is still free to consider post-sentencing

developments in selecting the new sentence in light of that

anchoring GSR. See Pepper v. United States, 562 U.S. 476, 490

(2011) ("In light of the federal sentencing framework . . . , we

think it clear that when a defendant's sentence has been set aside

on appeal and his case remanded for resentencing, a district court

may consider evidence of a defendant's rehabilitation since his

prior sentencing . . . ."). And I find it instructive as well

that the same was understood to be true in the context of

modification proceedings under 18 U.S.C. § 3582(c)(2), once the

GSR has been set using the old Guidelines. See U.S.S.G.

- 58 - § 1B1.10(b); id. § 1B1.10 cmt. n.1(B). As the Commission has

recognized, moreover, that is true not only with respect to the

"by how much" question but also with respect to the threshold

"whether" question. See id. § 1B1.10 cmt. n.1(B)(iii) ("The court

may consider post-sentencing conduct of the defendant that

occurred after imposition of the term of imprisonment in

determining: (I) whether a reduction in the defendant's term of

imprisonment is warranted; and (II) the extent of such

reduction . . . ."); see also Chavez-Meza v. United States, 138 S.

Ct. 1959, 1967 (2018) (assuming that post-sentencing developments

were properly before the district court).

I thus see little reason to conclude that Congress must

have silently intended not to permit a district court to exercise

a similar amount of discretion pursuant to § 404(b) to consider

things as they are at present. Rather, I would read that cryptic

text to have been intended to permit a district court, in

identifying any new sentence, to account for new developments in

the same manner just described, given that they may be accounted

for on a remand or in a run-of-the-mill modification proceeding.

Of course, it would not make sense to conclude that

Congress intended in enacting § 404(b) to give its beneficiaries

extra-special treatment relative to their fellow intended

beneficiaries of the Fair Sentencing Act. That is in part why I

agree with the majority that a district court in a § 404(b)

- 59 - proceeding must derive the GSR from the Guidelines in effect at

the original sentencing.

But, as I have explained, the purpose and history of the

First Step Act demonstrate that Congress wanted § 404(b)-eligible

defendants to have an opportunity for relief at least roughly

equivalent to that afforded to those § 3582(c)(2)-eligible

defendants who already had an opportunity to have their sentences

revisited in light of the changes effected by the Fair Sentencing

Act. It thus, in my view, counts rather strongly against the

majority's approach to the temporal constraints that district

courts must labor under in conducting § 404(b) proceedings that

those defendants who seek reductions under that provision would be

worse off under it in this respect than those who seek them under

18 U.S.C. § 3582(c)(2). After all, it is clear that district

courts revisiting sentences in § 3582(c)(2) modification

proceedings are permitted to give favorable post-sentencing

developments weight in deciding not just the extent of the

reduction of a sentence but also whether to reduce a sentence at

all, even if those developments may not be considered in

calculating the applicable GSR for the modification proceedings

themselves. See U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).

I do recognize that it is merely Sentencing Commission

commentary that most clearly confirms as much in the § 3582(c)(2)

modification context. See U.S.S.G. § 1B1.10(a)(1). But, that

- 60 - commentary does reflect the Commission's evident understanding of

the text of 18 U.S.C. § 3582(c)(2), which authorizes a district

court to "reduce" a prior sentence based on a retroactive legal

change.

Thus, that commentary suggests to me that the Commission

understood that statutory text to be susceptible of a construction

that would read it simultaneously to instruct district courts to

calculate the GSR to be used in the modification proceeding based

on the Guidelines in effect at the time of the original sentencing

(as adjusted by retroactive application of the Fair Sentencing

Act) and to take account of post-sentencing developments in

deciding whether to reduce that sentence in light of that GSR.

See U.S.S.G. § 1B1.10(b)(1); U.S.S.G. § 1B1.10 cmt. n.(1)(B)(iii).

That is significant, in my view, because § 404(b) similarly

authorizes district courts to "impose a reduced sentence" based on

the retroactive legal change brought about by § 404(b). Why not,

then, conclude that Congress similarly contemplated in this

context that a district court could operate in this same variable

temporal manner, such that it could rely on present-day knowledge

in deciding whether a reduction is warranted under § 404(b), even

though it must draw on the old Guidelines to calculate the GSR

that anchors that decision? See Martin, 974 F.3d at 139 ("[I]t is

helpful to look at the parallels between section 3582(c)(2) and

- 61 - the First Step Act to resolve background questions regarding the

mechanics of the First Step Act.").10

Of course, if our aim is to construe § 404(b)'s text to

accord with the way § 3582(c)(2) had been understood in the

relevant respect, then I acknowledge that it is important to

account for the fact that § 3582(c)(2) expressly refers to the 18

U.S.C. § 3553(a) factors while § 404(b) does not. But, I am not

persuaded that this difference between these two texts shows that

Congress intended to give district courts less discretion --

temporally -- to remedy a past injustice based on a retroactive

change in the law under the First Step Act than they have to remedy

such an injustice in an ordinary modification proceeding.

Implicit in the idea of deciding whether to impose a

reduced sentence is some consideration of the § 3553(a) factors --

and that is no less true under § 404(b) than it is under

§ 3582(c)(2). The majority itself acknowledges as much in its

recognition that the "original calibration of the section 3553(a)

factors" still properly informs the district court's decision

whether to reduce a sentence. Maj. Op. at 21. Thus, the inclusion

It is important to emphasize that each ambiguity in § 404(b) 10

must be taken on its own terms. There is a difference between construing an ambiguity using background context and ordinary interpretive tools and importing an arbitrary limitation into § 404. For example, I cannot see any reason to import the limitation on the extent of a sentence reduction in § 3582(c)(2) proceedings, see U.S.S.G. § 1B1.10(b)(2), into the § 404(b) context.

- 62 - of a reference to § 3553(a) in § 3582(c)(2) but not in § 404(b)

cannot in and of itself be understood to suggest that no

consideration of the § 3553(a) factors at all may be given in a

§ 404(b) proceeding.

That, then, leaves only the possibility that the

inclusion of the reference to § 3553(a) in § 3582(c)(2) but not in

§ 404(b) supplies the basis for concluding that intervening

considerations may be given weight in the former type of

proceedings but not the latter. But, that, too, does not follow.

Section 3582(c)(2)'s mandate to consider the § 3553(a)

factors does not itself purport to specify whether district courts

are to use the "new" or the "old" § 3553(a) factors in doing so.

Thus, it cannot be that the inclusion of the bare reference to

§ 3553(a) in § 3582(c)(2) and its absence from § 404(b) compels

drawing such a temporal distinction those two types of proceedings

when it comes to the § 3553(a) analysis that is necessarily

relevant to each.

Put otherwise, even after comparing the text of

§ 3582(c)(2) and § 404(b), we necessarily come back to the same

basic temporal question that § 404(b) does not by its terms purport

to resolve: Must the § 3553(a) analysis be informed only by things

as they were, or can it also be informed by things as they are?

And, as I have explained, precisely because the text of the First

Step Act does not clearly answer that question one way or the

- 63 - other, I see no reason to construe it in a way that would render

it out of step with the way revisiting proceedings otherwise

proceed.

Indeed, the majority itself finds a new § 3553(a)

analysis permissible to some extent -- in deciding the extent of

a reduction if one is in order -- and yet it provides no textual

explanation for drawing this line where it does. Nor has any other

court, to my knowledge, found such a textual basis.

A construction that would extend that same temporal

discretion to the "whether to reduce" determination also makes

good practical sense. Like run-of-the-mill modification

proceedings, § 404(b) proceedings are in many cases occurring well

after a defendant's original sentencing proceeding. That makes it

a potentially difficult and senseless task to determine the

"original calibration" of the § 3553(a) factors. See United States

v. Rose, 379 F. Supp. 3d 223, 235 (S.D.N.Y. 2019) ("[G]iven 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."); see also, e.g., United States v. King, 423 F. Supp. 3d

481, 489 (M.D. Tenn. 2019) (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

- 64 - 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(a) factors," the use of which "also necessitates that

the Court consider [post-sentencing] rehabilitation").

The reason to be wary of concluding that Congress must

have intended to impose such a bar as the majority embraces would

seem to be especially strong, moreover, when the Supreme Court has

recognized that such intervening facts as a defendant's admirable

post-sentencing conduct can be "highly relevant to several of the

§ 3553(a) factors." See Pepper, 562 U.S. at 491. And, as I have

noted, the Guidelines commentary expressly permits consideration

of post-sentencing conduct in § 3582(c)(2) sentence modification

proceedings. See U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).

For all of these reasons, then, it is a mistake in my

view to read § 404's silence with respect to the temporal questions

that arise once the GSR is in place (based as it must be on the

old Guidelines) in the constraining manner that the majority does

with respect to the "whether to reduce" determination. Such a

reading requires us to conclude that, with respect to the

consideration of intervening developments in deciding whether a

- 65 - sentence reduction is in order, Congress meant for people who were

relying on the Commission's response to a disparity to be better

off than people relying on Congress's own response to that

disparity.

3.

There remains, then, just one loose interpretive end

with regard to the framework that § 404(b) generally establishes.

It concerns the distinction that some courts have drawn between

intervening factual developments (such as the defendant's post-

sentencing conduct or the vacatur of his prior convictions) and

intervening legal ones (such as the advent of Guidelines amendments

that would be favorable to the defendant, even if they have not

been made retroactive). See, e.g., United States v. Robinson, 980

F.3d 454, 463 (5th Cir. 2020) (explaining that the Fifth Circuit

has precluded district courts from "consider[ing] other post-

sentencing changes in the law" aside from those mandated by the

Fair Sentencing Act, but noting that the Fifth Circuit has "not

h[eld] that [district] court[s] cannot consider post-sentencing

conduct" (quoting United States v. Jackson, 945 F.3d 315, 321, 322

n.7 (5th Cir. 2019))); Kelley, 962 F.3d at 474 & n.4, 475 (holding

that the First Step Act "does not authorize the district court to

consider other legal changes that may have occurred after the

defendant committed the offense" but not addressing whether it was

- 66 - permissible that the district court considered that the defendant

"had been a model inmate during her incarceration").

The courts that have concluded that § 404(b) draws this

line appear to have relied on the expressio unius canon to tease

out the First Step Act's meaning, treating the "as if" clause's

singling out of that one legal change as a sign that Congress

impliedly intended to preclude the consideration of any other legal

change. See United States v. Hegwood, 934 F.3d 414, 418-19 (5th

Cir. 2019); Kelley, 962 F.3d at 475.11 The government argues that

we should do the same. But, I do not agree.

Although the "as if" clause refers only to the Fair

Sentencing Act, it does not do so, as I have explained, in a way

that necessarily gives rise to a preclusive inference with respect

to the propriety of giving mere consideration in selecting a

sentence to intervening legal developments other than the one

brought about by the clause itself. Nor am I alone in so

concluding. See United States v. Hudson, 967 F.3d 605, 612 (7th

Cir. 2020) ("The First Step Act does not prevent the court from

considering [the change to the defendant's career offender status]

when deciding whether the sentence imposed is 'sufficient, but not

11 Because these courts were considering requests for a new Guidelines calculation accounting for legal changes, which I agree is impermissible, it is not clear that they would preclude consideration of legal changes against a GSR that does not itself reflect those changes.

- 67 - greater than necessary,' under 18 U.S.C.

§ 3553(a). . . . '[T]oday's Guidelines may reflect updated views

about the seriousness of a defendant's offense or criminal

history.'" (quoting United States v. Shaw, 957 F.3d 734, 742 (7th

Cir. 2020))); United States v. Harris, 960 F.3d 1103, 1106 (8th

Cir. 2020) ("[T]he § 3553(a) factors in First Step Act sentencing

may include consideration of the defendant's advisory range under

the current guidelines.").

I thus find myself in a by-now-familiar position: I

face the question under § 404(b) about how much discretion a

district court has to account for present realities that the text

of that provision does not answer with any clarity. And so, for

me, the right way through is to follow the now-familiar approach

of resolving that ambiguity in a manner that most aligns § 404(b)

with other revisiting proceedings.

Following that course, I find it significant that this

Court has repeatedly recognized that legal changes, even when not

used to set the GSR that serves as the benchmark, can inform the

district court's exercise of its discretion to select a reasonable

sentence in light of that benchmark. See, e.g., United States v.

Frates, 896 F.3d 93, 102 (1st Cir. 2018) (recognizing the

distinction between recalculating the GSR on remand to account for

intervening nonretroactive amendments, which would "circumvent the

Sentencing Commission's non-retroactivity determination," and

- 68 - considering intervening legal changes that reflect "the

Commission's revised policy position" in exercising the

"discretion to select an appropriate sentence"); United States v.

Godin, 522 F.3d 133, 136 (1st Cir. 2008) (per curiam) (noting that

the Sentencing Commission's "current thinking" about, for example,

who may be deemed a career offender, may properly

"influence . . . the judge's ultimate discretionary choice of

sentence"); United States v. Rodriguez, 630 F.3d 39, 42 (1st Cir.

2010) (finding that courts that must "start with old Guidelines"

can still "consult new ones in choosing suitable sentences," as

"Guidelines revisions [can] help [courts] select reasonable

sentences that (among other things) capture the seriousness of the

crimes and impose the right level of deterrence"). And, I note,

we have come to that conclusion despite the express directions

that Congress has given about which legal changes could be relied

upon to calculate the applicable GSR. See, e.g., 18 U.S.C.

§ 3742(g)(1); see also U.S.S.G. § 1B1.11(b)(1).

To be sure, this body of precedent concerns the proper

approach for a district court to take on the remand of a sentence

from a direct appeal and that is a type of revisiting proceeding

in which the prior sentence is -- strictly speaking -- no longer

in place. Here, by contrast, there is a presumptively valid

sentence from which a reduction is being sought. For that reason,

I suppose, it is possible to understand sentence selection in this

- 69 - context to entail not simply a choice of length but also a distinct

initial question as to whether the original sentence remains

appropriate -- in other words, to entail both a "whether to reduce"

inquiry and a "by how much to reduce," insofar as a reduction is

warranted at all, inquiry.

But, even if one accepts that it is not artificial to

divvy up the task of sentence selection under § 404(b) in that

two-step manner, that very same type of task is required in a

§ 3582(c)(2) modification proceeding. There, too, a reduction

from a sentence that is presently in place is being sought based

on an expressly identified retroactive legal change. I know of no

precedent, however, that holds that a subsequent, nonretroactive

Guidelines change favorable to the defendant may not even be

considered -- once the GSR has been calculated for use at the

modification proceeding independent of such a change -- in deciding

whether to modify the sentence in such proceedings. And I

certainly know of none suggesting that while such a legal change

may not be considered for that purpose it may be considered in

determining the extent of the modification.12

12 I am aware that in Dillon, 560 U.S. at 831, the Supreme Court rejected the defendant's contention that the district court should have considered intervening legal changes. The Court concluded that because "the aspects of his sentence that Dillon seeks to correct were not affected by the Commission's amendment to § 2D1.1, they are outside the scope of the proceeding authorized by § 3582(c)(2), and the District Court properly declined to address them." 560 U.S. at 831. But, Dillon requested a

- 70 - Thus, here, too, in the face of the relevant ambiguity

occasioned by § 404(b)'s brief text, I think it sensible to proceed

on the understanding that Congress intended for the conduct of

revisiting proceedings under that provision to be similar to the

conduct of them more generally. And, in this limited respect, I

note that I am actually in interpretive agreement with the

majority, which similarly sees nothing in § 404(b) that would

permit factual and legal considerations to be treated differently

as a temporal matter. See also Jackson, 945 F.3d at 321

recalculation of the sentence to correct a Booker error and adjust the criminal-history category. See id.; see also United States v. Jordan, 162 F.3d 1, 3-5 (1st Cir. 1998) (concluding that § 3582(c)(2) did not permit defendant to obtain benefit of U.S.S.G. § 5K2.0 departure not applied at original sentencing). As I have explained, this Court has recognized the difference between accounting for intervening legal and factual developments to recalculate the Guidelines range and considering them "as a discretionary factor." Frates, 896 F.3d at 102-03.

I am also aware that a district court under § 3582(c)(2) generally cannot reduce the sentence below the GSR that obtains after having been adjusted to account for retroactive amendments. See Dillon, 560 U.S. at 822 ("Except in limited circumstances, . . . [U.S.S.G.] § 1B1.10(b)(2)(A) forecloses a court acting under § 3582(c)(2) from reducing a sentence 'to a term that is less than the minimum of the amended guideline range.'"). But, Guidelines changes that are not retroactive could in that context still impact where to set the sentence in relation to that range (especially if the original sentence was set at its higher end), and, in any event, nothing in § 404 suggests that the limitation on the extent of a reduction that is allowable in § 3582(c)(2) modification proceedings applies to § 404(b) proceedings. See U.S.S.G. § 1B1.10(a)(1) (referring only to § 3582(c)(2) sentence reductions). Compare First Step Act § 404, with 18 U.S.C. § 3582(c)(2) (providing that such a reduction must be "consistent with applicable policy statements by the Sentencing Commission").

- 71 - (recognizing that disparate treatment of post-sentencing legal and

factual developments "make[s] little sense").

To sum up, then, I do not agree with the majority's

bifurcated treatment of the temporal issue that § 404(b) requires

us to resolve. In my view, when confronted with an eligible

defendant's § 404(b) motion, the district court must proceed as

follows.

The district court first must determine the statutory

sentencing range and the GSR to be used in assessing whether to

reduce the defendant's sentence as requested. In making those

determinations, moreover, the district court must rely on the

relevant provisions of the Fair Sentencing Act as if they had been

in effect when the offense was committed, while using the

Guidelines that were operative at the time of the original

sentencing proceeding (save for the potential caveats I have noted)

and not those presently in effect.

But, although these conclusions align me with the

majority's approach under § 404(b) to this point, the logic that

leads me to them requires me to break with its view of how a

district court conducting a § 404(b) proceeding should act

thereafter. For, in my view, given the purposes and background

against which Congress legislated in passing the First Step Act,

the district court, having set the range in the manner just

- 72 - described, is as free to consider intervening developments (both

factual and legal) in making the gating decision under § 404(b) as

to whether to impose a reduced sentence (based on a GSR in whose

determination such developments played no role) as it is under the

majority's approach to consider those developments in making the

follow-on assessment of how much to reduce the original sentence.

III.

With this framework in mind, I am now finally ready to

take up the question of whether Concepcion is right to contend

that, in this particular case, the District Court abused its

discretion in declining to reduce his sentence. I conclude that

he is -- in part.

I am not persuaded by Concepcion's contention that the

District Court abused its discretion by refusing to use the

Guidelines in place at the time of the § 404(b) proceeding to

calculate the newly applicable GSR. For the reasons that I have

already set forth at some length, I see no basis for construing

§ 404(b) to be such an outlier relative to other provisions

structuring revisiting proceedings.

But, I also am not persuaded by Concepcion's contention,

which I have not yet addressed, that the District Court abused its

discretion when it failed to conduct a rebalancing of the § 3553(a)

factors with respect to its assessment of whether subsequent

factual developments -- such as those that Concepcion highlighted

- 73 - pertaining to his admirable post-sentencing conduct. For, even if

I were to assume, as Concepcion contends, that such a rebalancing

is obligatory (as opposed to merely permissible) under § 404(b),

I still see no ground for finding error on this score in his case.

We have previously recognized that "simply because the

district court didn't expressly mention" intervening developments

in its ruling on a sentence reduction motion "doesn't mean it

didn't consider" them. United States v. Rodríguez-Rosado, 909

F.3d 472, 480 (1st Cir. 2018). And, it is a familiar proposition

that a sentencing court is not required to "verbalize its

evaluation of each and every [§] 3553(a) factor," United States v.

Reyes-Rivera, 812 F.3d 79, 89 (1st Cir. 2016), or to "afford each

of the § 3553(a) factors equal prominence," United States v. Sosa-

González, 900 F.3d 1, 5 (1st Cir. 2018). Instead, the district

court only must "set forth enough to satisfy the appellate court

that [it] has considered the parties' arguments and has a reasoned

basis for exercising [its] legal decisionmaking authority." Rita

v. United States, 551 U.S. 338, 356 (2007).

The fact that a district court does not consider a

sentence on a blank slate under § 404(b) must be kept in mind as

well in evaluating the district court's explanation of its decision

in a proceeding held pursuant to that provision. Cf. Chavez-Meza,

138 S. Ct. at 1967 (concluding that, when considering an appeal

from a § 3582(c)(2) sentence modification, reviewing courts "need

- 74 - not turn a blind eye" to the reasons the judge gave at the initial

sentencing). For, because intervening factual developments might

impact some elements of the § 3553(a) analysis while leaving others

unaffected, a district court's failure to highlight intervening

changes may only suggest "that the district court may have been

unimpressed or unpersuaded by" them. Rodríguez-Rosado, 909 F.3d

at 480.

Thus, even if Concepcion is right that a present-day

rebalancing of the § 3553(a) factors is required under § 404(b),

I conclude that the explanation that the District Court provided

here was sufficient to assure us that it had a "reasoned basis for

exercising [its] legal decisionmaking authority," Chavez-Meza, 138

S. Ct. at 1966 (quoting Rita, 551 U.S. at 356), with respect to

its decision not to reduce the sentence based on the intervening

factual developments that Concepcion identified, see id. (assuming

that the "reasoned basis" standard applied in the § 3582(c)(2)

context and finding it satisfied where the judge -- who had also

imposed the defendant's original sentence -- did not address the

parties' arguments about the defendant's post-sentencing conduct

while in prison). Accordingly, there was no abuse of discretion

here in this regard.

I do note, though, that my reason for so concluding is

not the same as the majority's. Under its view, intervening

factual considerations may not be considered in making the "whether

- 75 - to reduce" determination. Under mine, by contrast, those

considerations may be considered. In fact, it is only because --

as far as I can tell -- Concepcion's claim of error on this score

has no merit in his particular case that I reject it.

That brings us, then, to Concepcion's final contention,

which is that the District Court abused its discretion in declining

to reduce his sentence because it failed to recognize that it could

consider intervening legal changes -- specifically, the

Commission's intervening changes to the career offender Guideline

-- in his § 404(b) proceeding. Here, I am persuaded by

Concepcion's challenge.

The District Court appears to have declined to consider

that intervening change because it was of the view that it was

barred -- as a matter of law -- from considering such intervening

legal developments in exercising its discretion in any respect

under § 404(b) of the First Step Act. See United States v.

Concepcion, No. 07-10197, 2019 WL 4804780, at *3-5 (D. Mass. Oct.

1, 2019).13 This aspect of the District Court's analysis, of

13 In assessing whether the First Step Act permits "consider[ation] [of] any intervening changes in the law other than those made by the Fair Sentencing Act," the District Court relied on the Fifth Circuit's analysis in Hegwood and concluded that, because "Amendment 798 derives from an entirely different source" than the Fair Sentencing Act, it is "not clear that Amendment 798's changes are a permissible ground for resentencing under the First Step Act." Concepcion, 2019 WL 4808780, at *3-4 (citing Hegwood, 934 F.3d at 418). The District Court's analysis of its possible power to take account of this Guidelines change is

- 76 - course, causes no concern for the majority. In its view, the

District Court correctly ascertained this legal bar to its exercise

of discretion, given that such considerations could only come into

play at what the majority describes as the second step of the

inquiry -- which concerns only the extent of the reduction and not

whether one is needed at all, and which the majority views the

District Court as never having reached.

But, for the reasons I have explained, I read § 404(b)

to permit a district court to consider post-sentencing

developments once it has determined the proper GSR, based on the

Fair Sentencing Act's retroactive application. I thus understand

the District Court here to have misapprehended the scope of its

discretion -- as a matter of law -- to consider the fact that

Concepcion may no longer qualify as a career offender under current

Guidelines in making its gating determination about whether to

reduce the sentence at all.14

best read to reflect its legal view that the First Step Act barred it from considering that new legal development and then its separate assessment -- outside of the Act -- of whether 18 U.S.C. § 3582(c)(2), see id. at *4, or the Godin/Ahrendt doctrine, see id. at *5 & n.1, nonetheless permitted it to consider the development. 14 Although the majority notes that the District Court "consider[ed] the amended career offender guideline, noted that the Sentencing Commission had declined to make it retroactive, and decided not to pantomime it as a matter of discretion," Maj. Op. at 28-29, the District Court's consideration of Amendment 798 was, crucially, undertaken only outside the rubric of the First Step Act. As discussed supra note 10, the District Court's opinion

- 77 - Such a misapprehension about the extent of the

discretion that a statute confers is -- as I noted at the outset

of this journey -- a classic abuse of discretion. See United

States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998) ("[A] district

court by definition abuses its discretion when it makes an error

of law." (quoting Koon v. United States, 518 U.S. 81, 100 (1996))).

Thus, while the majority affirms the District Court's decision to

deny Concepcion's motion for a sentence reduction pursuant to

§ 404(b), I would vacate and remand the District Court's decision

denying Concepcion § 404(b) relief, so that the District Court may

consider whether to reduce the sentence on the proper understanding

that it may consider the impact of the change to the career

offender Guideline.

I understand that the District Court on remand might

well reach the same result -- perhaps based on its reasoning about

the complexity of any recalculation of the GSR that it invoked in

discussing Godin/Ahrendt, Concepcion, 2019 WL 4804780, at *5 &

n.1. But, I am hesitant to make that assumption when the District

Court was misinformed about what § 404(b) itself permitted it to

do. Cf. United States v. Taylor, 848 F.3d 476, 500 (1st Cir. 2017)

(remanding even upon "recogniz[ing] that [the] sentence on remand

makes clear that it understood the First Step Act not to permit it to consider Amendment 798 as a ground for resentencing under that Act.

- 78 - may be unchanged," because "the great latitude possessed by the

district court . . . makes it all the more important that the

district judge exercise a fully informed discretion" (quoting

United States v. Hernandez Coplin, 24 F.3d 312, 320 (1st Cir.

1994))).15

IV.

Given the deferential standard of review that we must

apply, in many -- maybe most -- instances concerning § 404(b), the

legal difference between my approach and the majority's will not

matter, practically speaking. In that respect, I agree that there

is not that much "daylight" between my approach and the majority's.

Nonetheless, Concepcion's case does illustrate how this

legal difference might very well matter in some instances. Cf.

Godin, 522 F.3d at 136; Frates, 896 F.3d at 103-04. And, in cases

involving intervening factual developments, I would think the

legal difference might be especially significant.

15Because I find the District Court's error here to inhere in its misunderstanding about its discretion to consider intervening legal developments, this case does not pose the distinct question whether it would be permissible for a district court to refuse categorically to consider intervening developments, while understanding that it had the legal authority to do so. I do note, though, that this Court's decision in Rodríguez-Rosado, 909 F.3d at 481, though also not addressing a categorical refusal, did hold that district courts are not required to consider post-sentencing rehabilitation in § 3582(c)(2) sentence modification proceedings, even while recognizing that such evidence can be relevant to the § 3553(a) analysis.

- 79 - Thus, while I do not agree with the majority's

disposition in this case, I also wish to emphasize my broader

concern about construing the First Step Act in a manner that

diminishes its remedial impact. This measure represents a rare

instance in which Congress has recognized the need to temper the

harshness of a federal sentencing framework that is increasingly

understood to be much in need of tempering. Indeed, the First

Step Act's very title signals Congress's interest in having more

rather than less done in that regard going forward. Accordingly,

given that the text of § 404(b) is less than clear in the relevant

respect, I see no reason to construe it in a way that would

attribute to Congress an intent to constrain district courts from

exercising the remedial discretion that they are accustomed to

exercising when revisiting a sentence that may have been too harsh

when first imposed. I thus respectfully dissent.

- 80 -