Amicus Curiae Brief — Carlos Concepcion, Petitioner v. United States

No. 20-1650

IN THE

Supreme Court of the United States

_________________________________________________

CARLOS CONCEPCION,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 22, 2021

i

TABLE OF CONTENTS

Table of Authorities……………………………………...ii

Brief of Amicus Curiae in Support of Petitioner ...…...1

Interest of Amicus Curiae..…….…………………….….1

Summary of Argument….………………………….…...3

Argument………………….………………………….…...5

I.

Section 404 Provides a Chance at a Another

Chance—Not a Get-Out-of-Jail-Free Card.…...5

A. District Courts Have Wide Latitude to

Determine Whether and How to Exercise

Discretion to Grant Sentence Reductions.…...5

B. Courts Should Apply the Section 3553(a)

Factors Afresh, Accounting for Post-Sentencing

Developments……………………..…..………….7

C. Use of the Section 3553(a) Rubric to Take Into

Account Post-Sentencing Factual and Legal

Developments Makes Sense …………………..11

II.

The Panel Majority’s Approach Is As Illogical As

It Is Atextual……………………..………….…...15

III.

The Rule of Lenity Resolves Any Lingering

Doubts……………………………………………..19

Conclusion..……………….………………………….….23

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Bifulco v. United States,

447 U.S. 381 (1980) ............................................... 21

Carter v. Illinois,

329 U.S. 173 (1946) ................................................. 5

Dorsey v. United States,

567 U.S. 260 (2012) ................................................. 3

Gall v. United States,

552 U.S. 38 (2007) ................................................. 11

Ladner v. United States,

358 U.S. 169 (1958) ............................................... 22

McNally v. United States,

483 U.S. 350 (1987) .............................................. 22

Moskal v. United States,

498 U.S. 103 (1990) ............................................... 21

Opati v. Republic of Sudan,

140 S. Ct. 1601 (2020) ............................................. 5

Pepper v. United States,

562 U.S. 476 (2011) ....................................... 7, 9, 10

Shular v. United States,

140 S. Ct. 779 (2020) ............................................. 20

iii

Taylor v. United States,

495 U.S. 575 (1990) ............................................... 21

Terry v. United States,

141 S. Ct. 1858 (2021) ....................................... 3, 19

United States v. Allen,

956 F.3d 355 (6th Cir. 2020) .................................. 6

United States v. Barber,

966 F.3d 435 (6th Cir. 2020) ............................ 8, 12

United States v. Benson,

No. 08-135, 2020 U.S. Dist. LEXIS

241722 (E.D. Tenn. Dec. 23, 2020) ...................... 12

United States v. Davis,

139 S. Ct. 2319 (2019) ..................................... 20, 21

United States v. Davis,

423 F. Supp. 3d 13 (W.D.N.Y. 2019) .................... 12

United States v. Day,

No. 1:05-cr-460-AJT-1, 2020 U.S.

Dist. LEXIS 133586 (E.D. Va. July

23, 2020) ................................................................. 21

United States v. Fields,

No. 08-11, 2020 U.S. Dist. LEXIS

102769 (N.D. Ind. June 11, 2020) ........................ 12

United States v. Granderson,

511 U.S. 39 (1994) ................................................. 21

iv

United States v. Holman,

No. 5:04-964, 2020 U.S. Dist. LEXIS

167604 (D.S.C. Sep. 10, 2020) .............................. 22

United States v. Jones,

962 F.3d 1290 (11th Cir. 2020) ...................... 6, 8, 9

United States v. Lawson,

824 F. App’x 411 (6th Cir. 2020) .......................... 10

United States v. Maxwell,

991 F.3d 685 (6th Cir. 2021) ........................ passim

United States v. Martin,

No. 03-CR-795 (ERK), 2019 U.S.

Dist. LEXIS 103559 (E.D.N.Y. June

20, 2019) ........................................................... 21, 22

United States v. McDonald,

No. 09-268, 2020 U.S. Dist. LEXIS

133592 (W.D. Pa. July 28, 2020) .......................... 21

United States v. Moore,

975 F.3d 84 (2d Cir. 2020) .................................... 11

United States v. Morales,

No. 3:94-cr-112 (SRU), 2020 U.S.

Dist. LEXIS 151584 (D. Conn. Aug.

20, 2020) ................................................................. 10

United States v. Murphy,

998 F.3d 549 (3d Cir. 2021) ............................. 9, 10

v

United States v. Santos,

553 U.S. 507 (2008) ............................................... 22

United States v. Smith,

756 F.3d 1179 (10th Cir. 2014) .................... passim

United States v. Stevens,

997 F.3d 1307 (11th Cir. 2021) .......................... 6, 8

United States v. Wiltberger,

18 U.S. 76, 5 Wheat. 76 (1820)............................. 20

United States v. White,

984 F.3d 76 (D.C. Cir. 2020)................................... 8

United States v. Young,

No. 02-078, 2020 U.S. Dist. LEXIS

217894 (E.D. Tenn. Nov. 20, 2020) ...................... 12

Yates v. United States,

574 U.S. 528 (2015) ........................................... 6, 21

Statutes

18 U.S.C. § 3553(a) ............................................ passim

18 U.S.C. § 3661 ........................................................... 7

First Step Act, § 404, Pub. L. No. 115391, 132 Stat. 5194, 5222 (2018).................. passim

Rules

Sup. Ct. Rule 37.3 ......................................................... 1

vi

Other Authorities

Amy Coney Barrett, Substantive Canons

and Faithful Agency,

90 B.U. L. Rev. 109 (2010) .................................... 20

Antonin Scalia & Bryan Garner,

Reading Law (2012) .................................... 6, 20, 21

Charles Koch with Brian Hooks,

Believe in People: Bottom-Up Solutions

for a Top-Down World (2020) ........................... 2, 14

First Step Act, ESP Insider Express (U.S.

Sentencing Comm’n, Washington,

D.C.), Feb. 2019 ..................................................... 20

Ivan J. Dominguez, et al.,

NACDL and Charles Koch Foundation

Mark the One-Year Anniversary of the

First Step Act with the NACDL First

Step Act Resource Center,

44 Champion 10 (2020) ........................................... 2

Marc Mauer,

Long Term Sentences: Time to

Reconsider the Scale of Punishment,

87 UMKC L. Rev. 114 (2018) ............................... 12

Office of the Inspector General, U.S. DOJ,

The Impact of an Aging Inmate

Population on the Federal Bureau of

Prisons (Rev. Feb. 2016) ....................................... 12

vii

Shon Hopwood,

The Effort to Reform the Federal

Criminal Justice System,

128 Yale L.J. F. 791 (2019)..................................... 1

Shon Hopwood,

Second Looks & Second Chances,

41 Cardozo L. Rev. 83 (2019) ..................... 2, 14, 15

U.S. DOJ, Federal Prison System FY 2019

Performance Budget ............................................. 15

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.3(a), Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society.

Some of those key ideas are the separation of powers

and constitutionally limited government. As part of

this mission, it appears as amicus curiae before

federal and state courts.

AFPF is part of a transpartisan coalition of

organizations that advocate for a broad array of

consensus-based criminal justice reforms, such as the

First Step Act (“FSA”), Pub. L. No. 115-391,132 Stat.

5194 (2018). As Professor Shon Hopwood has

explained, “with the efforts of the criminal justice

reform community pushing from all sides of the

political aisle, Congress finally broke the logjam and

passed meaningful reform” via the FSA. Shon

Hopwood, The Effort to Reform the Federal Criminal

Justice System, 128 Yale L.J. F. 791, 817 (2019).

1 All parties have consented to the filing of this brief. Amicus

states that no counsel for a party authored this brief in whole or

in part and that no person other than amicus or its counsel made

any monetary contributions intended to fund the preparation or

submission of this brief.

2

“Republicans and Democrats worked together to pass

. . . [this] historic bill that eliminated some of the

worst injustices in the federal criminal justice system.

The First Step Act makes it possible for thousands of

people with criminal records to rejoin society and start

to realize their potential.” Charles Koch with Brian

Hooks, Believe in People: Bottom-Up Solutions for a

Top-Down World, 224 (2020). “Because of provisions

in the law, as of the one-year anniversary of its

passage [in December 2019], more than 3,000

incarcerated individuals have been released, and

more than 2,000 had their sentences reduced.” Ivan J.

Dominguez, et al., NACDL and Charles Koch

Foundation Mark the One-Year Anniversary of the

First Step Act with the NACDL First Step Act Resource

Center, 44 Champion 10 (2020).

AFPF supports the FSA and believes in additional

chances—everyone has a gift and something to offer to

society, people can change, and incarcerated persons

who do not pose a danger to public safety and have

paid their debt to society deserve to have a chance to

rejoin their families and communities. Examples

abound of individuals who despite being incarcerated

have managed to grow from whatever mistakes they

made, overcome obstacles, and use their unique

experiences and gifts to benefit society. After all,

“[c]haracter is not static, people change, and the law

must recognize this reality.” Shon Hopwood, Second

Looks & Second Chances, 41 Cardozo L. Rev. 83, 119

(2019). Many incarcerated persons have the potential

to make significant contributions to our society.

3

AFPF has an interest in this case because it

believes the panel majority erred by adding

limitations onto Section 404 of the FSA’s grant of

discretionary authority.2 At the least, district courts

are empowered to, and should, take post-sentencing

factual and legal developments into consideration

when handling pleas for leniency filed under Section

404(b) by incarcerated persons with covered offenses,

particularly at the critical gatekeeping stage of

determining whether to grant the motion.

SUMMARY OF ARGUMENT

“An offender is eligible for a sentence reduction

under the First Step Act only if he previously received

‘a sentence for a covered offense.’” Terry v. United

States, 141 S. Ct. 1858, 1862 (2021) (quoting FSA

§ 404(b)). “[T]he term ‘covered offense’ means a

violation of a Federal criminal statute, the statutory

penalties for which were modified by section 2 or 3 of

the Fair Sentencing Act of 2010 . . . that was

committed before August 3, 2010.” FSA § 404(a). See

also Dorsey v. United States, 567 U.S. 260, 264 (2012).

This means an incarcerated person eligible to ask a

district court to exercise its discretion to reduce a

sentence pursuant to Section 404 of the FSA has

necessarily spent over a decade in prison already.

2 AFPF also believes the FSA should be construed consistent with

the rule of lenity, to the extent it applies, with any lingering

ambiguities resolved in favor of affording eligible incarcerated

persons who have rehabilitated themselves over the past decadeplus a chance to rejoin their families and contribute to their

communities.

4

Yet, the panel majority found district courts may

not even look at what an incarcerated person has done

to rehabilitate him or herself (or not) over the past

decade-plus in making the critical gatekeeping

determination of whether to exercise discretion to

grant a sentence reduction pursuant to Section 404,

let alone consider other intervening factual and legal

developments. That cannot be, and is not, the law.

Given Section 404’s discretionary nature, as well as

the FSA’s broader structure and purpose, it blinks

reality to suggest Congress intended to hamstring

district courts from taking into account conspicuously

relevant information in making a judgment call

whether to grant a motion for a sentence reduction.

At bottom, the question presented by this case can

be framed as follows: “Must a sentencing court

studiously ignore one of the most conspicuous facts

about a defendant when deciding how long he should

spend in prison?” United States v. Smith, 756 F.3d

1179, 1180 (10th Cir. 2014) (Gorsuch, J.) (addressing

a different sentencing dispute). Or as Judge Barron

put it below: “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?” Pet. App. 30a (Barron, J.,

dissenting). We believe the answer to that question

must be “no.”

Nothing in Section 404 requires a district court to

be an ostrich, burying its head in the sand as to the

most relevant information to the decisions whether to

grant discretionary sentencing relief and to what

extent. “Sentencing in this context may proceed just as

it does elsewhere, with a humble recognition that ‘no

5

more difficult task confronts judges than the

determination of punishment’ and ‘[e]ven the most

self-assured judge may well want to bring to his aid

every consideration that counsel for the accused can

appropriately urge.’” See Smith, 756 F.3d at 1193

(quoting Carter v. Illinois, 329 U.S. 173, 178 (1946)).

So too here. Contrary to the panel majority, a federal

district court can, and should, account for intervening

factual and legal developments—most prominently, a

defendant’s post-sentencing conduct—when deciding

if it should “impose a reduced sentence.” Any lingering

doubts should be resolved in favor of principles of

lenity and common sense.

ARGUMENT

I.

SECTION 404 PROVIDES A CHANCE AT ANOTHER

CHANCE—NOT A GET-OUT-OF-JAIL-FREE CARD.

A. District Courts Have Wide Latitude to

Determine Whether and How to Exercise

Discretion to Grant Sentence Reductions.

Section 404 of the FSA does not require federal

district courts to reduce sentences. See FSA § 404(b)

(“A court . . . may . . . impose a reduced sentence[.]”

(emphasis added));3 see also FSA § 404(c) (“Nothing in

this section shall be construed to require a court to

3 Cf. Opati v. Republic of Sudan, 140 S. Ct. 1601, 1609 (2020)

(“[T]he word ‘may’ clearly connotes discretion.” (cleaned up)).

6

reduce any sentence[.]”).4 “The statutory language

used by Congress in section 404(b) of the First Step

Act is wholly permissive.” United States v. Stevens,

997 F.3d 1307, 1315 (11th Cir. 2021) (Lagoa, J.). “The

upshot is that the Act gives a district court authority

to reduce a defendant’s sentence retroactively to

account for the changes established by the Fair

Sentencing Act. But that authority is discretionary.”

United States v. Maxwell, 991 F.3d 685, 689 (6th Cir.

2021) (Sutton, J.).

“District courts have wide latitude to determine

whether and how to exercise their discretion in”

handling Section 404(b) motions. United States v.

Jones, 962 F.3d 1290, 1304 (11th Cir. 2020) (Pryor,

C.J.) (emphasis added). That latitude extends to the

types of information properly considered in deciding

whether to grant relief and, if so, to what extent. See

also United States v. Allen, 956 F.3d 355, 357 (6th Cir.

2020) (“Section 404’s silence regarding the standard

that courts should use in determining whether to

reduce a defendant’s sentence cannot be read to limit

the information that courts may consider.”). Section

4 Section 404(c) of the FSA is titled “Limitations,” FSA § 404(c).

See also Yates v. United States, 574 U.S. 528, 552 (2015) (Alito,

J., concurring in the judgment) (“Titles can be useful devices to

resolve doubt about the meaning of a statute.” (cleaned up)). If

Congress intended to impose unusual temporal limitations on

the information district courts could consider in handling Section

404(b) petitions, it would presumably have in Section 404(c). It

did not. See also Antonin Scalia & Bryan Garner, Reading Law

107 (2012) (“The expression of one thing implies the exclusion of

others[.]”).

7

404 thus allows district courts to account for postsentencing factual and legal developments.

Buttressing this conclusion, Section 404 was

enacted against the backdrop of 18 U.S.C. § 3661,

which provides: “No limitation shall be placed on the

information concerning the background, character,

and conduct of a person . . . which a [federal] court . .

. may receive and consider for the purpose of imposing

an appropriate sentence.” 18 U.S.C. § 3661. As thenJudge Gorsuch has observed: “As the Supreme Court

has explained, this provision ensures sentencing

judges access to ‘the widest possible breadth of

information about a defendant’ so that the

punishments they issue ‘suit not merely the offense

but the individual.’” Smith, 756 F.3d at 1181 (quoting

Pepper v. United States, 562 U.S. 476, 488 (2011)). “In

this way, the statute preserves a long tradition, one

extending back ‘before . . . the American colonies

became a nation,’ a tradition of affording judges

‘discretion in the sources and types of evidence’ they

may consult at sentencing, subject of course and

always to the Constitution’s constraints.” Id. at 1181

(quoting Pepper, 562 U.S. at 488). Nothing in Section

404 purports to displace the traditional sentencing

principles codified in 18 U.S.C. § 3661.

B. Courts Should Apply the Section 3553(a)

Factors Afresh, Accounting for PostSentencing Developments.

Nor can Section 404 reasonably be read to

categorically displace the traditional sentencing

principles codified in 18 U.S.C. § 3553(a). Accordingly,

in deciding whether to grant Section 404(b) petitions,

district courts properly consider post-sentencing

8

factual and legal developments, such as postimprisonment rehabilitation and changes to the

Guidelines, through the lens of the Section 3553(a)

factors. See United States v. Barber, 966 F.3d 435, 438

(6th Cir. 2020) (Thapar, J.) (“[T]he court may consider

all relevant information (including post-sentencing

conduct) and should consider the sentencing factors

laid out in 18 U.S.C. § 3553(a).” (emphasis added)); see

also Stevens, 997 F.3d at 1318 (“[T]he district court

may consider the § 3553(a) factors, as well as the

probation

office’s

submissions,

post-sentence

rehabilitation, post-imprisonment rehabilitation, or

any other relevant facts and circumstances.”

(emphasis added)). And district courts should do so.

After all, as Judge Sutton observed: “How could a

district court exercise its discretion in deciding

whether to make a First Step Act reduction without

considering the § 3553(a) factors?” Maxwell, 991 F.3d

at 691; see also United States v. White, 984 F.3d 76, 90

(D.C. Cir. 2020) (“Every circuit court that has

examined the issue has held that a district court may,

or must, consider the 18 U.S.C. § 3553(a) sentencing

factors when passing on a motion for relief under

section 404 of the First Step Act.”). The answer to that

question is, at the least, far from obvious. And while

Section 404(b) of the FSA may not require

consideration of the § 3553(a) factors in all cases, at

the least, as Judge Lagoa has suggested, “it may be a

best practice for the district court to consider § 3553(a)

factors when exercising its discretion to either grant

or deny a motion for a sentence reduction based on an

eligible covered offense[.]” See Stevens, 997 F.3d at

1318; see also Jones, 962 F.3d at 1304 (“In exercising

their discretion, . . . [courts] may consider all the

9

relevant factors, including the statutory sentencing

factors, 18 U.S.C. § 3553(a).”).

In order for the second looks contemplated by

Section 404 to be meaningful, they must also include

consideration of up-to-date information about the

defendant, as well as the state of the world. And

nothing in Section 404 requires courts to turn a blind

eye to the most relevant information or engage in

theoretical time-travel exercises. See Pet. App. 35a &

n.6 (Barron, J., dissenting) (“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[.]”); Maxwell, 991 F.3d at 691 (“The Act’s

‘as if’ directive tells us some things, but not all things,

. . . about the extent to which a sentencing judge must

separate the present from the past in ruling on these

motions.”). Cf. United States v. Murphy, 998 F.3d 549,

562 (3d Cir. 2021) (Bibas, J., dissenting) (“In

exercising its discretion to vary downwards, . . . [the

court] can consider new facts and new law.”).

As this Court has explained, “evidence of

postsentencing rehabilitation may be highly relevant

to several of the Section 3553(a) factors that Congress

has expressly instructed district courts to consider at

sentencing. For example, evidence of postsentencing

rehabilitation may plainly be relevant to ‘the history

and characteristics of the defendant.’” Pepper, 562

U.S. at 491 (quoting 18 U.S.C. § 3553(a)(1)); see also

Pet. App. 54a (Barron, J., dissenting) (“[T]he Supreme

Court has recognized that such intervening facts as a

defendant’s admirable post-sentencing conduct can be

10

‘highly relevant to several of the § 3553(a) factors.’”

(citing Pepper, 562 U.S. at 491)).5 So too here.

And at a minimum, district courts should also

recalculate eligible defendants’ Guidelines range to

account for changes ushered in by Sections 2 and 3 of

the Fair Sentencing Act. See also Maxwell, 991 F.3d

at 689; Murphy, 998 F.3d at 560–61 (Bibas, J.,

dissenting) (“[T]he First Step Act, Congress

authorized district courts to reduce sentences ‘as if

sections 2 and 3 of the Fair Sentencing Act of 2010 . . .

were in effect at the time’ of the crime. So a court must

update the Guidelines range to reflect these new

statutory punishments.” (citing FSA § 404(b)). But

district courts may also take into consideration other

intervening factual and legal developments that

would affect a defendant’s Guidelines range in some

form or fashion, at least as part of the § 3553(a)

analysis, in deciding both whether and, if so, how

much to reduce a defendant’s sentence. See also

United States v. Lawson, 824 F. App’x 411, 412 (6th

Cir. 2020) (Kethledge, J.) (Under applicable

precedent, “in deciding whether to grant a defendant’s

motion under the First Step Act, the district court

may consider—as simply a ‘factor’ under 18 U.S.C.

§ 3553—that the defendant was sentenced based in

part on what would now be considered a legal

To be sure, there are instances where post-sentencing

rehabilitative conduct may not outweigh the severity of the

underlying criminal conduct apart from the “covered offense.”

See, e.g., United States v. Morales, No. 3:94-cr-112 (SRU), 2020

U.S. Dist. LEXIS 151584, at *15 (D. Conn. Aug. 20, 2020)

(denying Section 404(b) motion on the merits based on

defendant’s multiple murder convictions).

5

11

mistake.”); see also Gall v. United States, 552 U.S. 38,

49 (2007) (“[A] district court should begin all

sentencing proceedings by correctly calculating the

applicable Guidelines range.”).

This approach makes sense, particularly because

district courts’ authority to vary downward from the

advisory Guidelines range was well established when

the Fair Sentencing Act was enacted. See also United

States v. Moore, 975 F.3d 84, 92 n.36 (2d Cir. 2020).

Accordingly, Section 404, at a minimum, empowers

courts to take into account what the defendant has

done after being sentenced to rehabilitate him or

herself and make amends, as well as other

intervening factual and legal developments, in

applying the Section 3553(a) factors afresh.

C. Use of the Section 3553(a) Rubric to Take

Into Account Post-Sentencing Factual and

Legal Developments Makes Sense.

Regardless of the extent to which Section 404

permits district courts to take into account postsentencing legal and factual developments (beyond

those ushered in by Sections 2 and 3 of the Fair

Sentencing Act) in recalculating a defendant’s

Guidelines range, this much seems clear: at the least,

district courts can—and should—take these

intervening factual and legal developments into

account through the lens of the Section 3553(a) factors

in deciding whether to grant a sentence reduction and,

if so, by how much. And for good reason.

Handling Section 404(b) motions through the

Section 3553(a) lens empowers courts to take into

account who an incarcerated person is today (good or

12

bad), as opposed to ten-plus years ago.6 See also

Barber, 966 F.3d at 438; 18 U.S.C. § 3553(a)(1) (“The

court . . . shall consider . . . the history and

characteristics of the defendant[.]”). Someone who has

been incarcerated for over a decade may well be a very

different person with a different character. Cf. Smith,

756 F.3d at 1184 (“Under a longstanding American

tradition embodied in § 3661 and § 3553(a), federal

courts seeking a just sentence may look to the whole of

the defendant’s person, character, and crimes.”

(emphasis added)).

Incarcerated persons who have made mistakes

(even many or very bad mistakes) in their teenage

years or early twenties often, though not always, are

able to change for the better over time, and when they

are in their thirties or forties have addressed the

issues that led them to make those mistakes. See Marc

Mauer, Long Term Sentences: Time to Reconsider the

Scale of Punishment, 87 UMKC L. Rev. 114 (2018)

(discussing “aging out” of crime). 7 Section 404

6 See, e.g., United States v. Benson, No. 08–135, 2020 U.S. Dist.

LEXIS 241722, at *14 (E.D. Tenn. Dec. 23, 2020) (reducing

sentence to time served and three years supervised release “[i]n

light of defendant’s post-sentencing conduct and his seemingly

low risk of recidivism”); United States v. Fields, No. 08-11, 2020

U.S. Dist. LEXIS 102769, at *11–13 (N.D. Ind. June 11, 2020)

(similar); United States v. Young, No. 02-078, 2020 U.S. Dist.

LEXIS 217894, at *14 (E.D. Tenn. Nov. 20, 2020); United States

v. Davis, 423 F. Supp. 3d 13, 17 (W.D.N.Y. 2019).

7 See also Office of the Inspector General, U.S. DOJ, The Impact

of an Aging Inmate Population on the Federal Bureau of Prisons,

i, iii (Rev. Feb. 2016) (finding that “aging inmates are more costly

13

provides a procedural pathway for individuals

sentenced for a “covered offense” who have

rehabilitated themselves to petition for leniency,

based in part on their post-sentencing positive work.

Consider the following observation by a district

court judge on the real-world impact of the FSA:

[U]nder a new law that came out, the

[FSA], . . . [defendants with covered

offenses] are eligible to be resentenced,

have their sentence reduced. I have had

the benefit of them coming back to court

and telling me what they have been

doing in the ten, 15 years in jail, and it is

remarkable how much positive work

they have done in terms of bettering

themselves, or as you say, wanting to do

better and learn from your mistakes.

They have taken classes and courses, the

list goes on and on of the educational

programs they have taken. . . . I noticed

with these particular Defendants they

had no real disciplinary record while

they have been there despite being there

to incarcerate than their younger counterparts due to increased

medical needs” and that “the rate of recidivism of aging inmates

is significantly lower”).

14

for many, many years. . . . So, this is a

long way of saying don’t give up hope[.]8

That well describes the subset of incarcerated

persons with “covered offenses” who are generally

most deserving of relief under Section 404. Cf. Pet. Br.

11, 45–46. And it is simply wrong to bar judges from

even looking at incarcerated persons’ efforts to change

for the better over the past decade-plus in deciding

whether to grant relief under Section 404.

For many individuals with covered offenses, it is

also hard to see how continued incarceration would

serve any rehabilitative benefit. Indeed, as Professor

Hopwood has observed more broadly: “Several studies

have concluded that more prison time doesn’t equal

more success; longer terms of imprisonment do not

reduce the likelihood of reoffending. . . . Long

sentences of incarceration can actually increase crime

because incarceration is criminogenic[.]” Hopwood, 41

Cardozo L. Rev. at 93. “By imprisoning so many people

for so long, we’ve made it harder for them to develop

skills and find employment after their release—

controlling, rather than empowering, or at least

rehabilitating, them.” Believe in People, 211.

8 Sentencing Tr., at 16, United States v. Curry, No. 9:19–CR–

80087–001 (S.D. Fla., Dec. 4, 2019), available at

https://www.supremecourt.gov/DocketPDF/20/207284/169843/20210224133805514_Cert.%20Appendix.pdf#page

=68

15

More broadly, as Professor Hopwood has observed:

It is difficult, if not impossible, to

determine who, after having been

convicted of a serious crime, has the

capacity to become rehabilitated and

redeemed. . . .

There is little reason to continue

warehousing people who have been

adequately punished by serving long

sentences, and who are no longer a

danger to society. The social costs to the

families left behind, the loss of human

capital and productivity, and the need to

give people a second chance at

redemption all favor identifying [these]

people . . . and releasing them.

Hopwood, 41 Cardozo L. Rev. at 119. This resonates

here and captures a core theme of the FSA. On top of

these societal costs caused by the problem of

overincarceration, it is also a waste of resources. 9

II.

THE PANEL MAJORITY’S APPROACH IS AS

ILLOGICAL AS IT IS ATEXTUAL.

The panel majority’s judicially created bifurcated

process for handling Section 404 petitions is not only

9 See U.S. DOJ, Federal Prison System FY 2019 Performance

Budget, at 2 (FY 2016 chart showing that cost per inmate ranges

between over $20,000 per year to well above $60,000 per year,

depending

on

nature

of

facility),

https://www.justice.gov/jmd/page/file/1034421/download.

16

wrong as a matter of statutory interpretation but

contrary to common sense. The reason why is that the

panel majority interprets Section 404(b) to “cabin[]”

the “district court’s discretion” with respect to the

critical threshold inquiry of “whether resentencing of

an eligible defendant is appropriate under the

circumstances of the particular case.” See Pet. App.

18a. According to the panel majority, a district court

must essentially engage in a theoretical time-travel

exercise and “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.” Pet. App. 18a. That is, a district court must put

on blinders.

“[T]he 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.” Pet. App. 33a

(Barron, J., dissenting). This means that district

courts must, as a categorical matter, turn a blind eye

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,” Pet. App. 33a–

34a (Barron, J., dissenting), in deciding whether to

17

exercise discretion to grant a sentence reduction. 10 Cf.

Smith, 756 F.3d at 1180.

Yet, curiously, the panel majority concluded a

district court “may choose to consider conduct that

occurred between the date of the original sentencing

and the date of resentencing,” as well as “guideline

changes, whether or not made retroactive by the

Sentencing Commission, once it reaches the second

step of the resentencing pavane”—“what the new

sentence should be”—and even “in its discretion order

the preparation of a new PSI report” including nonretroactive guidelines changes. Pet. App. 18a–20a.

That distinction makes no sense. Section 404(b)

grants district courts discretion to, on motion, “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.” FSA § 404(b).

Whatever else Section 404(b)’s “as if” clause

accomplishes, it does not limit the universe of

information courts can, and should, consider in ruling

on these requests at any point. See also Pet. App. 35a

& n.6 (Barron, J., dissenting); Maxwell, 991 F.3d at

691. Cf. Smith, 756 F.3d at 1186 (providing example

of statute in different sentencing context showing that

10 “While in prison, Mr. Concepcion completed drug treatment

and regularly attended AA meetings. The prison chaplain wrote

a letter supporting Mr. Concepcion, noting that he is ‘dedicated

to personal spiritual growth,’ ‘leads his faith community by being

a positive influence,’ and ‘encourages other individuals at the

institution.’” Pet. Br. 45–46 (citing C.A. J.A. 110). He also has an

“ongoing, supportive relationship with his teenage daughter,

who has special needs.” Pet. Br. 11 (citing C.A. J.A. 110).

18

“Congress knows exactly how to strip district courts of

their traditional sentencing discretion when it wishes

to do so”).

And, as Judge Barron explained, the distinction

drawn under the panel majority’s approach is hardly

without a difference:

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. . . . Nonetheless,

Concepcion’s case does illustrate how

this legal difference might very well

matter in some instances. And, in cases

involving

intervening

factual

developments, I would think the legal

difference might be especially significant.

Pet. App. 66a (Barron, J., dissenting) (emphasis

added).

More broadly, as Judge Sutton has observed:

To say that the First Step Act does not

require plenary resentencing hearings is

not to say that it prohibits trial judges

from considering intervening legal and

factual developments in handling First

Step Act requests. . . . And if a court may

consider these [Section 3553(a)] factors

in making that decision, why can’t it

account for future dangerousness and

up-to-date notions about the risk of

19

recidivism of this defendant, including

his career-offender status under the law

today?

Maxwell, 991 F.3d at 691 (emphasis in original).11 The

upshot is the panel majority’s bifurcated approach to

handling Section 404(b) petitions is out of step with

not only the statutory scheme but the practical

realities of federal sentencing law.

III.

THE RULE OF LENITY

LINGERING DOUBTS.

RESOLVES

ANY

To the extent the answer to the question presented

by this case remains a mystery after a thorough

statutory investigation and reasonable doubts persist,

this Court should not “default to a presumption of

severity but to the rule of lenity.” Smith, 756 F.3d at

1191. Cf. Pet. App. 30a–31a (Barron, J., dissenting)

(noting “§ 404(b) is more cryptic than clear” on

questions of timing and expressing the view that “one

could stare at the text of § 404(b) all day long looking

for answers to those questions and not find them,”

suggesting that “only by placing that text in the

context of the overall federal sentencing framework in

The mere fact that someone was sentenced as a so-called

“career offender”—particularly under the old Guidelines—does

not necessarily suggest a high degree of culpability justifying a

draconian prison sentence. Cf. Terry, 141 S. Ct. at 1866

(Sotomayor, J., concurring in part and concurring in the

judgment) (Mr. “Terry was sentenced as a career offender

because of two prior drug convictions committed when he was a

teenager and for which he spent a total of only 120 days in jail.

That enhancement caused Terry’s Guidelines range to skyrocket

[from about 3 or 4 years] to about 15 to 20 years.”).

11

20

which it is embedded that it is possible to discern

answers to them”).

“The maxim that penal statutes should be

narrowly construed is one of the oldest canons of

interpretation. . . . Schooled in the English tradition,

American judges applied the principle of lenity from

the start.” Amy Coney Barrett, Substantive Canons

and Faithful Agency, 90 B.U. L. Rev. 109, 128, 129

(2010). Indeed, “[t]hat rule is ‘perhaps not much less

old than’ the task of statutory ‘construction itself.’”

United States v. Davis, 139 S. Ct. 2319, 2333 (2019)

(quoting United States v. Wiltberger, 18 U.S. 76, 5

Wheat. 76, 95 (1820) (Marshall, C. J.)).

To be sure, “[t]he rule applies only when, after

consulting

traditional

canons

of

statutory

construction,” the Court finds it is “left with an

ambiguous statute.”12 Shular v. United States, 140 S.

Ct. 779, 787 (2020) (internal quotation marks and

citation omitted). Cf. Antonin Scalia & Bryan Garner,

Oddly, shortly after the FSA was signed into law, the

Sentencing Commission informally advised: “Courts will have to

decide whether a resentencing under the Act is a plenary

resentencing proceeding or a more limited resentencing.” First

Step Act, ESP Insider Express (U.S. Sentencing Comm’n,

Washington,

D.C.),

Feb.

2019,

at

10

https://www.ussc.gov/sites/default/files/pdf/training/newsletters/

2019-special_FIRST-STEP-Act.pdf. If the Commission is correct,

lenity ought to play a role in implementing this provision of the

FSA. “In this situation, a judge applying a canon like lenity to

implement unclear text is not deviating from her best

understanding

of

Congress’s

instructions;

the

best

understanding of Congress’s instructions is that Congress left

the problem to her.” Barrett, 90 B.U. L. Rev. at 123.

12

21

Reading Law 299 (2012) (“The criterion we favor [for

whether lenity applies] is this: whether, after all

legitimate tools of interpretation have been applied, ‘a

reasonable doubt persists.’” (citing Moskal v. United

States, 498 U.S. 103, 108 (1990) (per Marshall, J.)).

But under the rule of lenity, “ambiguities about the

breadth of a criminal statute should be resolved in the

defendant’s favor.” Davis, 139 S. Ct. at 2333. That

is, “any doubts at the end of a thorough statutory

investigation must be resolved for the defendant, any

tie must go to the citizen, not the state.” Smith, 756

F.3d at 1191; see also Yates v. United States, 574 U.S.

528, 547 (2015).

“[T]his principle of statutory construction applies

not only to interpretations of the substantive ambit of

criminal prohibitions, but also to the penalties they

impose.” Bifulco v. United States, 447 U.S. 381, 387

(1980); see, e.g., United States v. Granderson, 511 U.S.

39, 56–57 (1994); see Taylor v. United States, 495 U.S.

575, 596 (1990) (suggesting “sentencing provisions[]

are to be construed in favor of the accused”). The rule

of lenity thus applies with full force to Section 404, to

the extent it contains ambiguities unresolvable even

after a full statutory investigation.13

13 Numerous federal district courts have also found the rule of

lenity applicable to the FSA. See, e.g., United States v. Day, No.

1:05-cr-460-AJT-1, 2020 U.S. Dist. LEXIS 133586, at *19 n.20

(E.D. Va. July 23, 2020) (lenity principle would apply to the FSA);

United States v. McDonald, No. 09-268, 2020 U.S. Dist. LEXIS

133592, at *9 n.2 (W.D. Pa. July 28, 2020); United States v.

22

“This policy of lenity means that the Court will not

interpret a federal criminal statute so as to increase

the penalty that it places on an individual when such

an interpretation can be based on no more than a

guess as to what Congress intended.” Ladner v.

United States, 358 U.S. 169, 178 (1958). Thus, “when

there are two rational readings of a criminal statute,

one harsher than the other, [courts] are to choose the

harsher only when Congress has spoken in clear and

definite language.” McNally v. United States, 483 U.S.

350, 359–60 (1987).

As Justice Scalia explained: “This venerable rule

not only vindicates the fundamental principle that no

citizen should be . . . subjected to punishment that is

not clearly prescribed. It also places the weight of

inertia upon the party that can best induce Congress

to speak more clearly and keeps courts from making

criminal law in Congress’s stead.” United States v.

Santos, 553 U.S. 507, 514 (2008).

To the extent this Court, after a thorough and

searching statutory investigation, is unable to discern

an answer to the question presented using traditional

tools of statutory interpretation, this Court should

resolve any reasonable doubts in favor of this

venerable rule of lenity. And here, at the least, the

Martin, No. 03-CR-795 (ERK), 2019 U.S. Dist. LEXIS 103559, at

*5 (E.D.N.Y. June 20, 2019) (“Multiple district courts

interpreting . . . [§ 404(a)] of the First Step Act have applied the

rule of lenity.”); United States v. Holman, No. 5:04-964, 2020 U.S.

Dist. LEXIS 167604, at *5-6 (D.S.C. Sep. 10, 2020).

23

panel majority’s cramped reading of Section 404 is not

unambiguously correct.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment of the court of appeals.

Respectfully submitted,

Michael Pepson

Counsel of Record

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

November 22, 2021