United States v. Concepcion

• Decision Date: 15 March 2021
• Docket Number: No. 19-2025,19-2025
• Citation: 991 F.3d 279
• Parties: UNITED STATES of America, Appellee, v. Carlos CONCEPCION, a/k/a Big Papi, a/k/a Papi, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

991 F.3d 279

UNITED STATES of America, Appellee,

v.Carlos CONCEPCION, a/k/a Big Papi, a/k/a Papi, Defendant, Appellant.

No. 19-2025

United States Court of Appeals, First Circuit.

March 15, 2021

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.

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

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 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 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.

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, 128 S.Ct. 558, 169 L.Ed.2d 481 (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 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 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. See Dorsey v. United States, 567 U.S. 260, 263-64, 132 S.Ct. 2321, 183 L.Ed.2d 250 (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, 132 S.Ct. 2321. 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...