In 2009, Carlos Concepcion was convicted of possessing crack cocaine and sentenced to 19 years of imprisonment. In 2010, Congress passed the Fair Sentencing Act which reduced the sentencing penalties for most federal crimes involving crack cocaine, based on decades of research and experience that demonstrated that crack cocaine penalties were too high and perpetuated unjustified race-based differences in sentences when compared to penalties for powder cocaine. In 2018, Congress passed the First Step Act, which made the Fair Sentencing Act’s changes retroactive and allowed federal courts to “impose a reduced sentence” on offenders such as Concepcion, who were sentenced under the old penalties for crack cocaine offenses.

In 2019, Concepcion moved for a reduced sentence pursuant to the First Step Act and urged the district court to consider his age, family connections, and pursuit of education, job training, and drug treatment while in prison. He cited 18 U.S.C. § 3553(a), which requires judges to consider a number of factors, including the “nature and circumstances of the offense” as well as the defendant’s “history and characteristics,” when imposing a sentence under any federal statute. Because § 3553(a) also requires consideration of the Sentencing Guidelines “in effect on the date the defendant is sentenced,” Concepcion urged the court to consider changes to the Sentencing Guidelines, as well as the fact that one of his prior convictions was vacated, which would have further reduced his recommended sentence. The district court, however, declined to impose a reduced sentence, reasoning that the legal changes that Concepcion described were “beyond the scope” of the Act. On appeal, the First Circuit affirmed, and Concepcion subsequently asked the Supreme Court to hear his case.

On November 22, 2021, CAC filed a friend of the court brief in support of Concepcion, arguing that the lower court’s decision is at odds with the text and history of the First Step Act. Our brief made three main points.

First, our brief explained that by instructing courts to “impose a reduced sentence as if” the Fair Sentencing Act were in effect when the covered offense was committed, the First Step Act directs courts to apply the same procedures and substantive law that have applied in sentencing proceedings for crack cocaine crimes subsequent to the Fair Sentencing Act’s passage. And every defendant sentenced for the first time after the enactment of the Fair Sentencing Act has been entitled to the sentencing court’s mandatory consideration of the § 3553(a) factors. Courts are therefore required to consider the § 3553(a) factors, which themselves require reviewing present-day law and facts, as well as the current Sentencing Guidelines.

Second, our brief showed that the history of the First Step Act supports what the plain text of the law requires: judges must consider the § 3553(a) factors, including intervening legal and factual changes, whenever imposing a new sentence. As our brief recounted, after the enactment of the Fair Sentencing Act, a major disparity remained: individuals sentenced for crack cocaine crimes prior to enactment of the Act were still serving disproportionately long sentences compared to those convicted of powder cocaine crimes. Congress sought to remedy these lingering disparities by making the Fair Sentencing Act retroactive through the First Step Act. Drawing on legislative debates that preceded the First Step Act’s passage, our brief made clear that Congress’s plan was for judges to take into account the whole individual being sentenced, including any intervening legal and factual developments that affect that individual’s case.

Finally, our brief argued that concerns about unfairness cannot supersede a sentencing court’s obligation under § 3553(a). The court below concluded that considering intervening legal and factual changes would put crack cocaine defendants in a more advantageous position than other defendants generally. Our brief countered this argument by discussing the Supreme Court’s consistent recognition in analogous contexts that concerns about unfairness do not supplant a sentencing court’s obligation to follow Congress’s instructions. Here, any disparity resulting from the consideration of Concepcion’s post-sentencing rehabilitation, vacated conviction, and new Guidelines range does not stem from the arbitrary sentencing practices that Congress has forbidden, but rather from Congress’s explicit decision to pass a law that permits only certain defendants to seek imposition of a reduced sentence. By focusing on the so-called “advantage” the First Step Act provides to eligible defendants, the court below ignored the clear text and history of the law.

On June 27, 2022, the Supreme Court issued a decision in favor of Concepcion. The Court held that by instructing courts to “impose a reduced sentence as if” the Fair Sentencing Act were in effect, the First Step Act requires, at minimum, that courts consider any intervening changes of law or fact raised by the defendant when exercising their discretion to reduce a sentence.