Virginia Lawyers Weekly VA Lawyers Weekly
Where procedural and substantive reasonableness requirements are necessary to ensure the broad remedial purposes of the First Step Act, but the district court here did not explain why it believed a large upward variance was warranted when it resentenced the defendant under § 404 of the First Step Act, its sentence was vacated.
Background
Mitchell Swain appeals the district court’s denial of his motion for a reduced sentence pursuant to § 404 of the First Step Act of 2018, which makes retroactive the provisions of the Fair Sentencing Act of 2010. Appellant contends that pursuant to United States v. Collington, 995 F.3d 347 (4th Cir. 2021), § 404 decisions must be procedurally and substantively reasonable, and the district court’s decision not to reduce his sentence was substantively unreasonable.
‘Collington’
The government contends that Collington is distinguishable because here, the district court had the discretion to deny appellant’s motion outright since appellant’s sentence did not exceed the revised statutory maximum, whereas, in Collington, the district court abused its discretion by not reducing a sentence that exceeded the revised statutory maximum. It relies on a single sentence in Collington that the government contends limits its holding to §404(c) grants: “when a court exercises discretion to reduce a sentence, the imposition of the reduced sentence must be procedurally and substantively reasonable.”
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The government further argues that applying “substantive reasonableness review for a reduction but not for the decision not to reduce makes sense,” because § 404(c) of the First Step Act explicitly provides “[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section.” The government’s arguments are unpersuasive.
First, as the government admitted at oral argument, the district court in Collington, like the district court below, declined to reduce the defendant’s sentence and denied the § 404 motion outright. Contrary to the government’s assertion otherwise, the fact that the district court in Collington retained a sentence above the revised statutory maximum does not make the case meaningfully distinguishable from the instant matter.
Second, the considerations that persuaded the court in Collington that the typical procedural and substantive reasonableness requirements apply in the § 404 context —specifically, the distinctions between § 404 and § 3582(c) proceedings and the broad remedial purpose of the Fair Sentencing Act and First Step Act — did not turn on the manner in which the district court exercised its discretion. Indeed, aside from the single sentence that the government clings to in asserting that Collington is limited to § 404 grants, the decision speaks about § 404 proceedings generally without distinguishing grants from denials.
Finally, there is no principled reason to review § 404 grants under a different standard of review than § 404 denials — either procedural and substantive reasonableness requirements are necessary to ensure the broad remedial purposes of the Fair Sentencing Act and First Step Act are effectuated in the § 404 context, or they are not. For these reasons, the court holds that pursuant to Collington, substantive reasonableness review applies to all section 404 proceedings.
Reasonableness
Appellant complains that the district court relied too heavily on his offense conduct and criminal history. But the 18 U.S.C. § 3553(a) factors explicitly require the district court to consider these factors and § 404 does not provide that in the resentencing context, certain factors are more relevant than others. Moreover, generally, a defendant’s disagreement with how a district court balances the § 3553(a) factors is insufficient to overcome the district court’s discretion.
However the district court did not explicitly acknowledge it was effectively retaining a variant sentence, let alone why it believed such a large upward variance was warranted. The district court’s failure to justify such a variance is particularly troubling given that “Congress was the actor that reduced [appellant’s] guideline range through the passage of the First Step Act, rather than the Sentencing Commission.” While Congress certainly gave district courts the discretion under § 404 not to impose sentence reductions, that discretion must be reviewed in light of the First Step Act’s remedial purpose. And that remedial context, “if anything[,] increases rather than decreases the need to justify disagreement with the guideline.”
But, here, the district court relied on largely the same factual basis to deny appellant’s motion for a reduced sentence as it did to impose its initial bottom-of-the- guidelines sentence — despite the fact that appellant’s amended guidelines range decreased by five to ten years. In addition, the court placed too little weight on the remedial aims of the First Step Act.
Vacated and remanded.
United States v. Swain, Case No. 21-6167, Sept. 14, 2022. 4th Cir. (Thacker), from EDNC at Greenville (Dever). Eric Joseph Brignac for Appellant. Joshua L. Rogers for Appellee. VLW 022-2-219. 11 pp.
