Monday, May 9, 2022
Patrick Riley has posted When a Second Chance Gets a Second Chance: Reasonableness Review Reigns for Motions Under Section 404(b) of the First Step Act on Appeal (American University Law Review, Vol. 71, No. 1183, 2022) on SSRN. Here is the abstract:
Section 404(b) of the First Step Act applied the changes made by the Fair Sentencing Act retroactively to defendants imprisoned for crack cocaine offenses before the Fair Sentencing Act was passed in 2010. Since the First Step Act was passed, federal courts have diverged in how they interpret their roles and responsibilities under section 404(b). One group of circuit courts interprets section 404(b) to provide limited discretion to the district court and, therefore, the appellate court need only review the district court’s decision under a deferential abuse-of-discretion standard. The second group interprets section 404(b) to provide district courts with broad discretion to resentence defendants in a manner similar to an initial plenary sentencing, which appellate courts are required to review for reasonableness.
This Comment reaches the same result as the second group for two reasons: (1) This Comment applies the sentencing modification in 18 U.S.C. § 3582(c)(1)(B), rather than § 3582(c)(2), to section 404(b) of the First Step Act; and (2) this Comment interprets the text and purpose of section 404(b) as a sweeping remedy granting district courts broad discretion - like initial plenary sentencings - that must be reviewed for reasonableness.