In United States v. Kelly, --- F.3d ---, No. 19-30066 (9th Cir. 2020), the Court "deepen[ed] a circuit split" on whether the First Step Act (FSA) allows plenary drug resentencing.
The Court held the FSA does not permit a plenary resentencing proceeding in
which a defendant’s career offender status can be
reconsidered. Although the parties agreed the defendant would not be a career offender under current law, the Court held the FSA prohibited the district court from reaching that issue.
Instead, a district court that decides to
exercise its discretion under the First Step Act must: "(1) place itself in the counterfactual situation where all the
applicable laws that existed at the time the covered offense
was committed are in place, making only the changes
required by sections 2 and 3 of the Fair Sentencing Act; and
(2) determine the appropriate sentence under this
counterfactual legal regime."
[Sections 2 and 3 of the Fair Sentencing Act have to do with revised sentencing ranges for crack cocaine].
The upshot is this: The district court calculates the sentencing range as if it were sentencing under sections 2 and 3 of the Fair Sentencing Act. Then, it can impose sentence considering the 3553 factors, like post-sentence rehabilitation.
