71 Am. U. L. Rev. 1183 (2022).

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Abstract

The First Step Act of 2018 was an historic criminal justice reform bill that, among its many provisions, retroactively reduced the disparity in sentencing for offenses involving crack and powder cocaine. Before 2010, federal law mandated the same minimum criminal penalties for conduct involving an amount of crack cocaine one hundred times smaller than an amount of powder cocaine. In 2010, Congress passed the Fair Sentencing Act, which reduced this disparity from 100:1 to 18:1. However, the updated penalties only applied to sentences imposed after the passage of the Fair Sentencing Act. Those already sentenced under the 100:1 ratio were left without any recourse until the First Step Act was passed in 2018.

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.

* Junior Staffer, American University Law Review, Volume 71; J.D. Candidate, May 2023, American University Washington College of Law; B.A., Political Science and Economics, 2016, The Ohio State University. Thank you to everyone who provided helpful feedback on this piece—from my Comment editor, Ben Reyes, to my final editor, Bethany Callahan, and everyone in between, including Steve Fisher, Sarah Shor, Anna Drew, Ethan Falk, Annemarie Gregoire, Luke Hancox, Margaret Helein, Jonathan Hoadley, Alexis Hughes, Ariel Rawls, Matthew Sokol, Adriana Morquecho, and Professor Jenny Roberts.