Concepcion v. United States

P R E L I M I N A R Y P R I N T
Volume 597 U. S. Part 2
Pages 481–506
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 27, 2022
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2021
481
Syllabus
CONCEPCION v. UNITED STATES
certiorari
to the united states court of appeals for
the rst circuit
No. 20–1650. Argued January 19, 2022—Decided June 27, 2022
Congress passed the Fair Sentencing Act of 2010 to correct the wide dis-
parity between crack and powder cocaine sentencing. Section 2 of that
Act increased the amount of crack cocaine needed to trigger a 5-to-40-
year sentencing range from 5 grams to 28 grams. § 2(a)(2), 124 Stat.
2372. The Fair Sentencing Act did not apply retroactively, but in 2011,
the Sentencing Commission amended the Sentencing Guidelines to
lower the Guidelines range for crack-cocaine offenses and applied that
reduction retroactively for some defendants. In 2018, Congress en-
acted the First Step Act, authorizing district courts to “impose a re-
duced sentence” on defendants serving sentences for certain crack-
cocaine offenses “as if sections 2 and 3 of the Fair Sentencing Act . . .
were in effect at the time the covered offense was committed.” Pub.
L. 115–391, § 404(b), 132 Stat. 5222.
In 2007, petitioner Carlos Concepcion pleaded guilty to one count of
distributing fve or more grams of crack cocaine in violation of 21
U. S. C. § 841(a)(1), and he was sentenced in 2009 to 19 years (228
months) in prison. When Concepcion was sentenced, he qualifed for
sentencing as a “career offender.” The career offender provision and
other enhancements increased Concepcion's Sentencing Guidelines
range from 57 to 71 months to 262 to 327 months. Because Concepcion
was sentenced as a career offender, he was not eligible for relief under
the Sentencing Commission's 2011 amendment.
In 2019, Concepcion fled a pro se motion for a sentence reduction
under the First Step Act. He argued that he was serving a sentence
for a “covered offense” because § 2 of the Fair Sentencing Act “modifed”
the statutory penalties for his conviction under 21 U. S. C. § 841(a)(1).
Concepcion contended that retroactive application of the Fair Sentenc-
ing Act lowered his Guidelines range from 262 to 327 months to 188 to
235 months. The Government conceded Concepcion's eligibility for re-
lief but opposed the motion, emphasizing that Concepcion's original sen-
tence of 228 months fell within the new Guidelines range of 188 to 235
months, and citing factors in Concepcion's prison record that the Gov-
ernment believed counseled against a sentence reduction. In his reply
brief, represented by counsel, Concepcion made two primary arguments
in support of a reduced sentence. First, he argued that he would no
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482 CONCEPCION
v. UNITED STATES
Syllabus
longer be considered a career offender because one of his prior convic-
ti
ons had been vacated and his remaining convictions would not con-
stitute crimes of violence that trigger the enhancement. Without the
enhancement, Concepcion contended that his revised Guidelines range
should be 57 to 71 months. Second, Concepcion pointed to postsentenc-
ing evidence of rehabilitation.
The District Court denied Concepcion's motion. It declined to con-
sider that Concepcion would no longer qualify as a career offender based
on its judgment that the First Step Act did not authorize such relief.
App. to Pet. for Cert. 72a. The District Court did not address Con-
cepcion's evidence of rehabilitation or the Government's countervailing
evidence of Concepcion's disciplinary record. The Court of Appeals af-
frmed in a divided opinion, and added to the disagreement among the
Circuits as to whether a district court deciding a First Step Act motion
must, may, or may not consider intervening changes of law or fact.
Held: The First Step Act allows district courts to consider intervening
changes of law or fact in exercising their discretion to reduce a sentence.
Pp. 490–502.
(a) Federal courts historically have exercised broad discretion to con-
sider all relevant information at an initial sentencing hearing, consistent
with their responsibility to sentence the whole person before them.
That discretion also carries forward to later proceedings that may mod-
ify an original sentence. District courts' discretion is bounded only
when Congress or the Constitution expressly limits the type of informa-
tion a district court may consider in modifying a sentence. Pp. 490–495.
(1) There is a “long ” and “durable” tradition that sentencing judges
“enjo[y] discretion in the sort of information they may consider” at an
initial sentencing proceeding. Dean v. United States, 581 U. S. 62, 66.
That unbroken tradition also characterizes federal sentencing history.
Indeed, “[i]t has been uniform and constant in the federal judicial tradi-
tion for the sentencing judge to consider every convicted person as an
individual and every case as a unique study in the human failings that
sometimes mitigate, sometimes magnify, the crime and the punishment
to ensue.” Koon v. United States, 518 U. S. 81, 113. Accordingly, a
federal judge in deciding to impose a sentence “may appropriately con-
duct an inquiry broad in scope, largely unlimited either as to the kind
of information he may consider, or the source from which it may come.”
United States v. Tucker, 404 U. S. 443, 446. Pp. 491–492.
(2) The discretion federal judges hold at initial sentencings also
characterizes sentencing modifcation hearings. The Court in Pepper
v. United States, 562 U. S. 476, found it “clear that when a defendant's
sentence has been set aside on appeal and his case remanded for resen-

Cite
as: 597 U. S. 481 (2022)
483
Syllabus
tencing, a district court may consider evidence of a defendant's rehabili-
t
ation since his prior sentencing.” Id., at 490. Accordingly, federal
courts resentencing individuals whose sentences were vacated on appeal
regularly consider evidence of rehabilitation, or evidence of rule break-
ing in prison, developed after the initial sentencing. Where district
courts must calculate new Guidelines ranges as part of resentencing
proceedings, courts have also exercised their discretion to consider non-
retroactive Guidelines changes. In some cases, a district court is pro-
hibited from recalculating a Guidelines range to account for nonretroac-
tive Guidelines amendments, but the court may nevertheless fnd those
amendments to be germane when deciding whether to modify a sentence
at all, and if so, to what extent. Pp. 492–494.
(3) The only limitations on a court's discretion to consider relevant
materials at an initial sentencing or in modifying that sentence are those
set forth by Congress in a statute or by the Constitution. See Pepper,
562 U. S., at 489, n. 8; Mistretta v. United States, 488 U. S. 361, 364.
Congress has placed such limits where it deems them appropriate. See
18 U. S. C. §§ 3582(a), 3583(c). Congress has further imposed express
statutory limitations on one type of sentencing modifcation proceeding,
expressly cabining district courts' discretion by requiring courts to
abide by the Sentencing Commission's policy statements. See also
§ 3582(c)(1)(A) (compassionate release). Pp. 494–495.
( b) Congress i n the First Step Ac t did not contravene wel l-
established sentencing practices. Pp. 495–502.
(1) Nothing in the text and structure of the First Step Act ex-
pressly, or even implicitly, overcomes the established tradition of district
courts' sentencing discretion. The text of the First Step Act does not
so much as hint that district courts are prohibited from considering
evidence of rehabilitation, disciplinary infractions, or unrelated Guide-
lines changes. The only two limitations on district courts' discretion
appear in § 404(c): A district court may not consider a First Step Act
motion if the movant's sentence was already reduced under the Fair
Sentencing Act or if the court considered and rejected a motion under
the First Step Act. Neither limitation applies here. By its terms,
§ 404(c) does not prohibit district courts from considering any arguments
in favor of, or against, sentence modifcation. In fact, § 404(c) only un-
derscores that a district court is not required to modify a sentence for
any reason. “Drawing meaning from silence is particularly inappropri-
ate” in the sentencing context, “for Congress has shown that it knows
how to direct sentencing practices in express terms.” Kimbrough v.
United States, 552 U. S. 85, 103.
The “as if ” clause in § 404(b) does not impose any limit on the informa-
tion a district court can consider in exercising its discretion under the
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484 CONCEPCION
v. UNITED STATES
Syllabus
First Step Act. The term “as if ” simply enacts the First Step Act's
centra
l goal: to make retroactive the changes in the Fair Sentencing
Act, necessary to overcome 1 U. S. C. § 109, which creates a presumption
that Congress does not repeal federal criminal penalties unless it says
so “expressly.” The “as if ” clause also directs district courts to apply
the Fair Sentencing Act as if it applied at the time of the commission of
the offense, not at the time of the original sentencing, suggesting that
Congress did not intend to constrain district courts to considering only
the original sentencing record. Thus, the “as if ” clause requires dis-
trict courts to apply the legal changes in the Fair Sentencing Act when
recalculating a movant's Guidelines, but it does not limit the information
a district court may use to inform its decision whether and how much
to reduce a sentence. Pp. 495–498.
(2) Consistent with this text and structure, district courts deciding
First Step Act motions regularly have considered evidence of postsen-
tencing rehabilitation and unrelated Guidelines amendments when
raised by the parties. First Step Act movants have amassed prison
records of over a decade. See § 404(a), 132 Stat. 5222 (requiring the
movant to have been sentenced for an offense “committed before Au-
gust 3, 2010”). Those records are naturally of interest to judges author-
ized by the First Step Act to reduce prison sentences or even to release
movants immediately. Likewise, when deciding whether to grant First
Step Act motions and in deciding how much to reduce sentences, courts
have looked to postsentencing evidence of violence or prison infractions
as probative. Moreover, when raised by the parties, district courts
have considered nonretroactive Guidelines amendments to help inform
whether to reduce sentences at all, and if so, by how much. Nothing
express or implicit in the First Step Act suggests that these courts
misinterpreted the Act in considering such relevant and probative infor-
mation. Pp. 498–500.
(3) The Court therefore holds that the First Step Act allows dis-
trict courts to consider intervening changes of law or fact in exercising
their discretion to reduce a sentence pursuant to the First Step Act.
When deciding a First Step Act motion, district courts bear the stand-
ard obligation to explain their decisions and demonstrate that they con-
sidered the parties' nonfrivolous arguments. See Golan v. Saada, 596
U. S. –––, –––. The district court is not required to articulate anything
more than a brief statement of reasons. See Rita v. United States, 551
U. S. 338, 356.
The broad discretion that the First Step Act affords to district courts
also counsels in favor of deferential appellate review. See Solem v.
Helm, 463 U. S. 277, 290, n. 16. Section 404(c) of the First Step Act
confers particular discretion because the Act does not “require a court

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Cite
as: 597 U. S. 481 (2022)
485
Syllabus
to reduce any sentence.” Other than legal errors in recalculating the
Guidel
ines to account for the Fair Sentencing Act's changes, see Gall v.
United States, 552 U. S. 38, 51, appellate review should not be overly
searching. Pp. 500–502.
991 F. 3d 279, reversed and remanded.
Sotomayor, J., delivered the opinion of the Court, in which Thomas,
Breyer, Kagan, and Gorsuch, JJ., joined. Kavanaugh, J., fled a dis-
senting opinion, in which Roberts, C. J., and Alito and Barrett, JJ.,
joined, post, p. 502.
Charles L. M cCl o ud arg ued the cause for petiti oner.
With him on the briefs were Lisa S. Blatt and J. Martin
Richey.
Ma t thew G u ar n i e r i arg ued the cause for the United
States. With him on the brief were Solicitor General Pre-
logar, Assistant Attorney General Polite, Deputy Solicitor
General Feigin, and Joel S. Johnson.*
*Briefs of amici curiae urging reversal were fled for the District of
Columbia et al. by Karl A. Racine, Attorney General of the District of
Columbia, Loren L. Alikhan, Solicitor General, Caroline S. Van Zile, Prin-
cipal Deputy Solicitor General, Ashwin P. Phatak, Deputy Solicitor Gen-
eral, and Caroline W. Tan, Assistant Attorney General, by Leevin T. Ca-
macho, Attorney General of Guam, by Andrew J. Bruck, Acting Attorney
General of New Jersey, and by the Attorneys General for their respective
States as follows: Philip J. Weiser of Colorado, Kwame Raoul of Illinois,
Thomas J. Miller of Iowa, Brian E. Frosh of Maryland, Maura Healey of
Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Joshua H.
Stein of North Carolina, Ellen F. Rosenblum of Oregon, Thomas J. Dono-
van, Jr., of Vermont, Mark R. Herring of Virginia, and Robert W. Fergu-
son of Washington; for the Americans for Prosperity Foundation by Mi-
chael Pepson; for the Constitutional Accountability Center by Elizabeth
B. Wydra and Brianne J. Gorod; for Criminal Law Scholars by Dawinder
S. Sidhu and Shon Hopwood; for FAMM et al. by Andrew J. Pincus,
Charles A. Rothfeld, Eugene R. Fidell, Mary Price, David M. Porter, and
Michael C. Holley; and for Dr. Karen Swanson et al. by Joshua C. Mc-
Daniel and James A. Sonne.
Briefs of amici curiae urging vacatur were fled for the American Con-
servative Union Foundation by John M. Masslon II and David H. Sa-
favian; for the Drug Policy Alliance et al. by Vincent Levy and Gregory

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486 CONCEPCION
v. UNITED STATES
Opinion of the Court
Justice Sotomayor delivered the opinion of the Court.
There
is a longstanding tradition in American law, dating
back to the dawn of the Republic, that a judge at sentencing
considers the whole person before him or her “as an individ-
ual.” Koon v. United States, 518 U. S. 81, 113 (1996). In
line with this history, federal courts today generally “exer-
cise a wide discretion in the sources and types of evidence
used” to craft appropriate sentences. Williams v. New
York, 337 U. S. 241, 246 (1949). When a defendant appears
for sentencing, the sentencing court considers the defendant
on that day, not on the date of his offense or the date of
his conviction. Pepper v. United States, 562 U. S. 476, 492
(2011). Similarly, when a defendant's sentence is set aside
on appeal, the district court at resentencing can (and in many
cases, must) consider the defendant's conduct and changes in
the Federal Sentencing Guidelines since the original sentenc-
ing. Ibid.
Congress enacted the First Step Act of 2018 against that
backdrop. The First Step Act authorizes district courts to
reduce the prison sentences of defendants convicted of cer-
tain offenses involving crack cocaine. The Act allows a dis-
trict court to impose a reduced sentence “as if ” the revised
penalties for crack cocaine enacted in the Fair Sentencing
Act of 2010 were in effect at the time the offense was com-
mitted. The question in this case is whether a district court
adjudicating a motion under the First Step Act may consider
other intervening changes of law (such as changes to the Sen-
tencing Guidelines) or changes of fact (such as behavior in
prison) in adjudicating a First Step Act motion.
The Court holds that they may. It is only when Congress
or the Constitution limits the scope of information that a
district court may consider in deciding whether, and to what
Dubinsky; for the Due Process Institute et al. by Bradley N. Garcia, Ken-
dall Turner, Shana-Tara O'Toole, David D. Cole, and Matthew R. Segal;
and for the Howard University School of Law Civil Rights Clinic by Tif-
fany R. Wright.

Cite
as: 597 U. S. 481 (2022)
487
Opinion of the Court
extent, to modify a sentence, that a district court's discretion
to
consider information is restrained. Nothing in the First
Step Act contains such a limitation. Because district courts
are always obligated to consider nonfrivolous arguments pre-
sented by the parties, the First Step Act requires district
courts to consider intervening changes when parties raise
them. By its terms, however, the First Step Act does not
compel courts to exercise their discretion to reduce any sen-
tence based on those arguments.
The District Court in this case declined to consider peti-
ti oner Car los Concepci on's arguments that intervening
changes of law and fact supported his motion, erroneously
believing that it did not have the discretion to do so, and the
Court of Appeals affrmed. The Court now reverses.
I
A
In 2007, Concepcion pleaded guilty to one count of distrib-
uting fve or more grams of crack cocaine in violation of 21
U. S. C. § 841(a)(1) (2006 ed.). Concepcion admitted that he
sold 13.8 grams of crack cocaine, and he was sentenced in
2009 to 19 years (228 months) in prison. Two features of his
sentencing are relevant here. First, Concepcion was sen-
tenced under a scheme that created a 100-to-1 disparity be-
tween crack-cocaine and powder-cocaine offenders. At the
time Concepcion was sentenced, an offense involving fve or
more grams of crack cocaine resulted in a statutory sentenc-
ing range of 5 to 40 years' imprisonment; it required 100
times as much powder cocaine to trigger the same penalties.
Second, when Concepcion was initially sentenced, he quali-
fed as a “career offender.” The career offender provision,
together with other enhancements, increased Concepcion's
Guidelines range from 57 to 71 months to 262 to 327 months.
Both of these features of Concepcion's sentencing have
since been altered. Just one year after Concepcion was sen-
tenced, Congress passed the Fair Sentencing Act of 2010 to
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488 CONCEPCION
v. UNITED STATES
Opinion of the Court
correct the harsh disparities between crack and powder
cocai
ne sentencing. Section 2 of that Act increased the
amount of crack cocaine needed to trigger the 5-to-40-year
sentencing range from 5 grams to 28 grams. § 2(a)(2), 124
Stat. 2372. The Sentencing Commission then retroactively
amended the Sentencing Guidelines to lower the Guidelines
range for crack-cocaine offenses, but that amendment did not
beneft all prisoners serving sentences handed down during
the 100-to-1 regime. See United States Sentencing Com-
mission, Guidelines Manual App. C, Amdt. 750 (Supp. Nov.
2011) (USSG). Concepcion was not eligible for retroactive
relief under that 2011 Sentencing Commission's amendment
because he was sentenced under the career offender en-
hancement, but he became eligible to have his sentence re-
duced in 2018, when Congress passed the First Step Act.
The First Step Act authorized district courts to “impose a
reduced sentence” for qualifying movants “as if sections 2
and 3 of the Fair Sentencing Act . . . were in effect at the
time the covered offense was committed.” Pub. L. 115–391,
§ 404(b), 132 Stat. 5222.
B
Concepcion fled a pro se motion under the First Step Act
in 2019. He argued that he was serving a sentence for a
“covered offense” because § 2 of the Fair Sentencing Act
“modifed” the statutory penalties for his conviction under 21
U. S. C. § 841(a)(1). Concepcion contended that retroactive
application of the Fair Sentencing Act lowered his Guidelines
range from 262 to 327 months to 188 to 235 months. The
Government conceded Concepcion's eligibility for relief and
his calculation of the Guidelines but opposed the motion, em-
phasizing that Concepcion's original sentence of 228 months
fell within the new Guidelines range of 188 to 235 months.
While recognizing Concepcion's participation in various pro-
grams in prison, the Government detailed “troubling behav-
iors such as `[f]ighting (12/19/2017); Interfering with Staff
(11/15/2012); and Possession of a Weapon' ” in Concepcion's
prison records that, in the Government's view, counseled
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Cite
as: 597 U. S. 481 (2022)
489
Opinion of the Court
against a sentence reduction. Electronic Case Filing in
N
o. 1:07–cr–10197 (Mass.) (ECF), Doc. 78, pp. 4–5, n. 4.
In his reply brief, represented by counsel, Concepcion
made two primary arguments in support of a reduced sen-
tence. First, he argued that he would no longer be consid-
ered a career offender under the amended Guidelines, be-
cause one of his prior convictions had been vacated and his
remaining convictions would no longer be considered crimes
of violence that trigger the enhancement.
1
Without the ca-
reer offender enhancement, Concepcion argued that his re-
vised Guidelines range should be 57 to 71 months. Second,
Concepcion pointed to postsentencing evidence of rehabili-
tation. Concepcion highlighted his successfully completed
drug and vocational programming, as well as his stable reen-
try plan. He also submitted a letter from a Bureau of Pris-
ons chaplain who attested to Concepcion's spiritual growth
while incarcerated.
The D istr ic t Cour t denied Concepci on's moti on. It
adopted the Government's argument that if the Court “con-
sidered only the changes in law that the Fair Sentencing Act
enacted, [Concepcion's] sentence would be the same.” App.
to Pet. for Cert. 71a. The court declined to consider that
Concepcion would no longer qualify as a career offender on
the ground that the First Step Act “does not authorize such
relief.” Id., at 72a. In doing so, the District Court adopted
the reasoning of the Fifth Circuit, which understood the
First Step Act to require a district court to “ `plac[e] itself in
the time frame of the original sentencing, altering the rele-
vant legal landscape only by the changes mandated by the
2010 Fair Sentencing Act.' ” Id., at 74a (quoting United
States v. Hegwood, 934 F. 3d 414, 418 (CA5 2019)). The Dis-
trict Court did not address Concepcion's evidence of rehabili-
1
In 2015, this Court held that the Armed Career Criminal Act's residual
clause was unconstitutional, see Johnson v. United States, 576 U. S. 591,
prompting the Sentencing Commission to amend the identical clause of the
career offender Guideline, see USSG App. C, Amdt. 798 (Supp. Aug. 2016).
The Sentencing Commission did not apply the amendment retroactively.
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490 CONCEPCION
v. UNITED STATES
Opinion of the Court
tation or the Government's countervailing evidence of Con-
cepci
on's disciplinary record.
The Court of Appeals affrmed in a divided opinion. The
court interpreted the First Step Act as requiring a “two-
step inquiry.” 991 F. 3d 279, 289 (CA1 2021). At the frst
step of that inquiry, a district court decides whether a
movant should be resentenced at all, considering only the
changes wrought by the Fair Sentencing Act. Ibid. If the
district court answers in the affrmative at the frst step,
it may then, in its discretion, consider new factual or legal
developments in determining how to resentence the movant.
Id., at 289–290. Judge Barron dissented, rejecting the pan-
el's bifurcated approach. In his view, the First Step Act re-
quires only one step of analysis, at which district courts have
“substantial discretion” to consider evidence of rehabilitation
and Guidelines changes. Id., at 293, 309–310.
The Court of Appeals opinion added to the disagree-
ment among the Circuits as to whether a district court decid-
ing a First Step Act motion must, may, or may not consider
intervening changes of law or fact.
2
This Court granted
cer ti orar i to resolve th is disagreement. 594 U. S. –––
(2021).
II
“From the beginning of the Republic, federal judges were
entrusted with wide sentencing discretion.” K. Stith & J.
2
Compare United States v. Collington, 995 F. 3d 347, 355, 360 (CA4
2021) (must consider changed law and facts); United States v. Easter, 975
F. 3d 318, 325–327 (CA3 2020) (same); United States v. Brown, 974 F. 3d
1137, 1144–1145 (CA10 2020) (must consider intervening Circuit prece-
dent); United States v. White, 984 F. 3d 76, 93 (CADC 2020) (must consider
changed facts), with United States v. Maxwell, 991 F. 3d 685, 689 (CA6
2021) (may consider); United States v. Moore, 975 F. 3d 84, 92, n. 36 (CA2
2020) (same); United States v. Harris, 960 F. 3d 1103, 1106 (CA8 2020)
(same); United States v. Shaw, 957 F. 3d 734, 741–742 (CA7 2020) (same),
with United States v. Denson, 963 F. 3d 1080, 1089 (CA11 2020) (may
not consider); United States v. Kelley, 962 F. 3d 470, 475 (CA9 2020)
(same); United States v. Hegwood, 934 F. 3d 414, 418–419 (CA5 2019)
(same).

Cite
as: 597 U. S. 481 (2022)
491
Opinion of the Court
Cabranes, Fear of Judging: Sentencing Guidelines in the
F
ederal Courts 9 (1998) (Stith & Cabranes). Federal courts
historically have exercised this broad discretion to consider
all relevant information at an initial sentencing hearing, con-
sistent with their responsibility to sentence the whole person
before them. That discretion also carries forward to later
proceedings that may modify an original sentence. Such
discretion is bounded only when Congress or the Constitu-
tion expressly limits the type of information a district court
may consider in modifying a sentence.
A
There is a “long ” and “durable” tradition that sentencing
judges “enjo[y] discretion in the sort of information they
may consider” at an initial sentencing proceeding. Dean v.
United States, 581 U. S. 62, 66 (2017).
3
This history dates
back to before the founding: “[B]oth before and since the
American colonies became a nation, courts in this country
and in England practiced a policy under which a sentencing
judge could exercise a wide discretion in the sources and
types of evidence used to assist him in determining the kind
and extent of punishment to be imposed within limits fxed
by law.” Williams, 337 U. S., at 246. Early state and Eng-
lish courts broadly recognized this discretion. See, e. g., Rex
v. Bunts, 2 T. R. 683, 100 Eng. Rep. 368 (K. B. 1788) (“[W]hen
any defendant shall be brought up for sentence on any indict-
ment” the court shall hear evidence from the prosecution and
the defense in determining an appropriate sentence); State
v. Summers, 98 N. C. 702, 705, 4 S. E. 120, 121 (1887) (“It
was competent for [the trial judge] to hear such evidence as
he might deem necessary and proper to aid his judgment and
discretion in determining the punishment to be imposed”);
State v. Reeder, 79 S. C. 139, 141, 60 S. E. 434, 435 (1908)
3
The dissent invokes another background principle: the importance of
“fnality of criminal judgments.” Post, at 504 (opinion of Kavanaugh,
J.). No one doubts the importance of fnality. Here, however, the Court
interprets a statute whose very purpose is to reopen fnal judgments.
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492 CONCEPCION
v. UNITED STATES
Opinion of the Court
(rejecting claim that trial court erred in considering aggra-
vati
ng evidence at sentencing, and explaining that “[t]he cir-
cuit judge merely permitted himself to be informed as to the
character of the accused and the circumstances of the crime,
so that he might be able to exercise his discretion intelli-
gently and pronounce a just sentence”).
That unbroken tradition characterizes federal sentencing
history as well. “Federal judges exercising sentencing dis-
cretion have always considered a wide variety of aggravat-
ing and mitigating factors relating to the circumstances of
both the offense and the offender.” Stith & Cabranes 14.
Indeed, “[i]t has been uniform and constant in the federal
judicial tradition for the sentencing judge to consider every
convicted person as an individual and every case as a unique
study in the human failings that sometimes mitigate, some-
times magnify, the crime and the punishment to ensue.”
Koon, 518 U. S., at 113; see, e. g., United States v. Randall,
27 F. Cas. 696, 708 (No. 16,118) (DC Ore. 1869) (considering
the defendant's “former good reputation” in imposing sen-
tence); United States v. Nye, 27 F. Cas. 210, 211 (No. 15,906)
(CC Mass. 1855) (considering “palliating circumstance[s],” in-
cluding that the defendants were “sober, and ft for duty,” in
imposing sentence); Lyon's Case, 15 F. Cas. 1183, 1185
(No. 8,646) (CC Vt. 1798) (considering the “reduced condition
of [the defendant's] estate” in imposing sentence). Accord-
ingly, a federal judge in deciding to impose a sentence “may
appropriately conduct an inquiry broad in scope, largely un-
limited either as to the kind of information he may consider,
or the source from which it may come.” United States v.
Tucker, 404 U. S. 443, 446 (1972).
B
The discretion federal judges hold at initial sentencings
also characterizes sentencing modifcation hearings. Rely-
ing on Williams and Koon, the Court in Pepper found it
“clear that when a defendant's sentence has been set aside
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Cite
as: 597 U. S. 481 (2022)
493
Opinion of the Court
on appeal and his case remanded for resentencing, a district
cour
t may consider evidence of a defendant's rehabilitation
since h is pri or sentencing. ” 562 U. S., at 490. Pepper
reached that conclusion in light of the “federal sentencing
framework” that allows sentencing judges to consider the
“ `fullest information possible concerning the defendant's life
and characteristics.' ” Id., at 488, 490.
Accordingly, federal courts resentencing individuals whose
sentences were vacated on appeal regularly consider evi-
dence of rehabilitation developed after the initial sentencing.
See, e. g., United States v. Rodriguez, 2020 WL 2521551, *5
(SDNY, May 18, 2020) (considering the movant's “exemplary
conduct during a lengthy period of incarceration”); United
States v. Raifsnider, 2020 WL 1503527, *3 (D Kan., Mar. 30,
2020) (considering that the movant “has completed his GED,
taken hundreds of hours of programming offered by the Bu-
reau of Prisons, and is taking college classes”). Similarly,
district courts in resentencing proceedings frequently con-
sider evidence of violence and rule breaking in prison. See,
e. g., United States v. Riley, 785 Fed. Appx. 282, 285 (CA6
2019) (considering a “ `series of disciplinary violations while
in the Bureau of Prisons' ”); United States v. Diaz, 486 Fed.
Appx. 979, 980 (CA3 2012) (considering “infractions while in
prison, e. g., possession of marijuana”).
Where district courts must calculate new Guidelines
ranges as part of resentencing proceedings, courts have also
considered unrelated Guidelines changes in their discretion.
See, e. g., United States v. Frates, 896 F. 3d 93, 101–102 (CA1
2018) (distinguishing between recalculating a Guidelines
range based on nonretroactive intervening changes of law
and considering those changes as a matter of “discretion to
select an appropriate sentence”); United States v. Taylor, 648
F. 3d 417, 425 (CA6 2011) (“[T]he district court can consider
subsequent amendments to the Guidelines for purposes of
fash i oning an appropriate sentence [at resentencing] ”);
United States v. Gilmore, 599 F. 3d 160, 166–167 (CA2 2010)
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494 CONCEPCION
v. UNITED STATES
Opinion of the Court
(considering subsequently updated Guidelines as “evidence
of
society's judgment of the seriousness of [the movant's] of-
fense”). In many cases, a district court is prohibited from
recalculating a Guidelines range in light of nonretroactive
Guidelines amendments, but the court may fnd those amend-
ments to be germane when deciding whether to modify a
sentence at all, and if so, to what extent.
C
The only limitations on a court's discretion to consider any
relevant materials at an initial sentencing or in modifying
that sentence are those set forth by Congress in a statute or
by the Constitution. See Pepper, 562 U. S., at 489, n. 8 (“Of
course, sentencing courts' discretion . . . is subject to consti-
tutional constraints”); Mistretta v. United States, 488 U. S.
361, 364 (1989) (“[T]he scope of judicial discretion with re-
spect to a sentence is subject to congressional control”).
Congress is not shy about placing such limits where it
deems them appropriate. At an initial sentencing, Congress
has provided generally that “[n]o limitation shall be placed
on the information concerning the background, character,
and conduct of a person convicted of an offense” when decid-
ing what sentence to impose. 18 U. S. C. § 3661. Congress
has, however, expressly prohibited a district court in craft-
ing an initial sentence from considering a defendant's need
for rehabilitation in support of a prison sentence. See
§ 3582(a); Tapia v. United States, 564 U. S. 319, 328 (2011).
In other aspects of sentencing, Congress also has expressly
limited district courts to considering only certain factors.
For example, in determining whether to include a term of
supervised release, and the length of any such term, Con-
gress has expressly precluded district courts from consider-
ing the need for retribution. See § 3583(c); id., at 326.
Congress has further imposed express statutory limita-
tions on one type of sentencing modifcation proceeding.
Section 3582(c)(2) provides that
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495
Opinion of the Court
“in the case of a defendant who has been sentenced to a
ter
m of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Com-
mission . . . the court may reduce the term of imprison-
ment, after considering the factors set forth in section
3553(a) to the extent that they are applicable, if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”
For those proceedings, Congress expressly cabined district
courts' discretion by requiring courts to abide by the Sen-
tencing Commission's policy statements. See also § 3582(c)
(1)(A) (permitting district courts to grant compassionate re-
lease in certain circumstances if “such a reduction is consist-
ent with applicable policy statements issued by the Sentenc-
ing Commission”).
4
III
A
Congress in the First Step Act simply did not contravene
this well-established sentencing practice. Nothing in the
text and structure of the First Step Act expressly, or even
implicitly, overcomes the established tradition of district
courts' sentencing discretion.
The frst section of the First Step Act, § 404(a), sets out
who is eligible for relief:
“In this section, the term `covered offense' means a
violation of a Federal criminal statute, the statutory
penalties for which were modifed by section 2 or 3 of
the Fair Sentencing Act of 2010 . . . that was committed
before August 3, 2010.” 132 Stat. 5222.
4
The dissent brushes aside this venerable tradition of discretion by em-
phasizing the differences between initial sentencings and sentence modif-
cation proceedings. See post, at 503–504. Of course there are differ-
ences between the two, but the feature common to both is that only
Congress and the Constitution limit the historic scope of district courts'
discretion.
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496 CONCEPCION
v. UNITED STATES
Opinion of the Court
The second section, § 404(b), describes what relief is avail-
able
for the parties who meet § 404(a)'s criteria:
“A court that imposed a sentence for a covered offense
may, on motion of the defendant, the Director of the Bu-
reau of Prisons, the attorney for the Government, or the
court, 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.” 132
Stat. 5222.
The third section, § 404(c), places two explicit limitations
on available relief:
“No court shall entertain a motion made under this
section to reduce a sentence if the sentence was pre-
viously imposed or previously reduced in accordance
with the amendments made by sections 2 and 3 of the
Fair Sentencing Act of 2010 . . . or if a previous motion
made under this section to reduce the sentence was,
after the date of enactment of this Act, denied after a
complete review of the motion on the merits. Nothing
in this section shall be construed to require a court to
reduce any sentence pursuant to this section.” 132
Stat. 5222.
The text of the First Step Act does not so much as hint
that district courts are prohibited from considering evidence
of rehabilitation, disciplinary infractions, or unrelated Guide-
lines changes. The only two limitations on district courts'
discretion appear in § 404(c): A district court may not con-
sider a First Step Act motion if the movant's sentence was
already reduced under the Fair Sentencing Act or if the
court considered and rejected a motion under the First Step
Act. Neither of those limitations applies here. By its
terms, § 404(c) does not prohibit district courts from consid-
ering any arguments in favor of, or against, sentence modif-
cation. In fact, § 404(c) only underscores that a district
court is not required to modify a sentence for any reason.
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497
Opinion of the Court
“Drawing meaning from silence is particularly inappropri-
ate”
in the sentencing context, “for Congress has shown
that it knows how to direct sentencing practices in express
terms.” Kimbrough v. United States, 552 U. S. 85, 103
(2007).
5
Nor did Congress hide any limitations on district courts'
discretion outside of § 404(c). Section 404(b) does not erect
any additional such limitations. The term “as if ” simply
enacts the First Step Act's central goal: to make retroactive
the changes in the Fair Sentencing Act. That language is
necessary to overcome 1 U. S. C. § 109, which creates a pre-
sumption that Congress does not repeal federal criminal pen-
alties unless it says so “expressly.” To defeat the presump-
tion established by this statute, Congress needed to make
clear that the Fair Sentencing Act applied retroactively.
Notably, the “as if ” clause requires a district court to apply
the Fair Sentencing Act as if it applied at the time of the
commission of the offense, not at the time of the original
sentencing. Had Congress intended to constrain district
courts to consider only the record as it existed at the time
of the original sentencing, Congress would have written the
“as if ” clause to refer to that sentencing, not the commission
of the offense. Thus, the language Congress enacted in the
5
The dissent demands that Congress expressly specify the scope of in-
formation that a district court can consider in a sentencing modifcation
proceeding. See post, at 504–505. This gets it backward. The consist-
ent historic norm is that a district court can consider any information in
crafting a new or modifed sentence, subject to congressional or constitu-
tional limits. See supra, at 490–495. Moreover, the dissent's reliance on
§ 3582(c)(1)(B), post, at 504, misses the point. Section 3582(c)(1)(B) is sim-
ply a gateway provision that refers to whichever statute “expressly per-
mit[s]” the sentencing modifcation. Ibid. It does not impose any sub-
stantive or procedural limits on a district court's discretion; for those
details, it refers to the statute authorizing the sentence modifcation. See
United States v. Triestman, 178 F. 3d 624, 629 (CA2 1999) (“ `[S]ubsection
(c)(1)(B) simply notes the authority to modify a sentence if modifcation
is permitted by statute' ” (quoting S. Rep. No. 98–225 (1984)).
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498 CONCEPCION
v. UNITED STATES
Opinion of the Court
First Step Act specifcally requires district courts to apply
the
legal changes in the Fair Sentencing Act when calculat-
ing the Guidelines if they chose to modify a sentence.
6
The
“as if ” clause does not, however, limit the information a dis-
trict court may use to inform its decision whether and how
much to reduce a sentence.
B
Consistent with this text and structure, district courts de-
ciding First Step Act motions regularly have considered
evidence of postsentencing rehabilitation and unrelated
Guidelines amendments when raised by the parties. By
defnition, First Step Act movants have amassed prison rec-
ords of over a decade. See § 404(a), 132 Stat. 5222 (requiring
the movant to have been sentenced for an offense “com-
mitted before August 3, 2010”). Those records are naturally
of interest to judges authorized by the First Step Act to
reduce prison sentences or even to release movants immedi-
ately. See, e. g., United States v. Crawford, 483 F. Supp. 3d
378, 381 (ND W. Va. 2020) (considering that the movant
earned his GED in prison, obtained a carpentry certifcation
through a local community college, and was sanctioned for
only “two minor write-ups” in the nine years preceding his
motion); United States v. Henderson, 399 F. Supp. 3d 648,
656 (WD La. 2019) (considering that the movant “ha[d] not
seen his children in eight years,” that he had “possible em-
ployment opportunities . . . upon his release,” and that he
6
A district court cannot, however, recalculate a movant's benchmark
Guidelines range in any way other than to refect the retroactive applica-
tion of the Fair Sentencing Act. Rather, the First Step Act directs dis-
trict courts to calculate the Guidelines range as if the Fair Sentencing
Act's amendments had been in place at the time of the offense. That
Guidelines range “anchor[s]” the sentencing proceeding. Peugh v. United
States, 569 U. S. 530, 541 (2013). The district court may then consider
postsentencing conduct or nonretroactive changes in selecting or rejecting
an appropriate sentence, with the properly calculated Guidelines range as
the benchmark.
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499
Opinion of the Court
“ha[d] received only two incident reports” while incarcer-
ated);
United States v. Mitchell, 2019 WL 2647571, *8 (D DC,
June 27, 2019) (considering that the movant “incurred no dis-
ciplinary infractions over his last fourteen years in prison”
and that the movant would no longer be considered a career
offender based on an intervening change of law).
Likewise, when deciding whether to grant First Step Act
motions and in deciding how much to reduce sentences,
courts have looked to postsentencing evidence of violence or
prison infractions as probative. See, e. g., United States v.
Rose, 841 Fed. Appx. 328, 329 (CA2 2021) (affrming partial
denial of motion where the district court relied on the mov-
ant's “ lengthy history of prison disciplinary infractions,
which included many recent violent infractions”); United
States v. Barlow, 544 F. Supp. 3d 491, 505 (NJ 2021) (consid-
ering, in denying motion, that the movant was disciplined in
prison seven times, including “three times for possessing a
dangerous weapon,” “once for possessing marijuana,” and
“once for fghting ”); United States v. Slutzkin, 2019 WL
5696122, *8 (Conn., Nov. 4, 2019) (considering in denying mo-
tion the movant's “behavior once incarcerated [as] perhaps
the greatest concern to the Court,” in light of “25 discipli-
nary citations while in state incarceration and six more in
federal prison”).
7
Moreover, when raised by the parties, district courts have
considered nonretroactive Guidelines amendments to help in-
form whether to reduce sentences at all, and if so, by how
much. See, e. g., United States v. Coachman, 2020 WL
6939890, *3 (ND Fla., June 22, 2020) (considering that the
7
In the dissent's view, each of these District Courts erred in considering
evidence outside of the original sentencing record. See post, at 503. In-
stead, the dissent's interpretation would require a district court adjudicat-
ing a First Step Act motion to decide whether, and by how much, to reduce
a sentence based only on the original sentencing record. But again, the
text of the First Step Act does not require that counterfactual
procedure.
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500 CONCEPCION
v. UNITED STATES
Opinion of the Court
movant “would not qualify for career offender status” at the
ti
me of his sentence modifcation hearing); United States v.
Frederick, 2020 WL 555302, *4 (WD Pa., Feb. 4, 2020) (con-
sidering “the fact that [the movant] would not qualify as a
career offender under the current version of the career of-
fender provisions . . . as a factor favoring the exercise of the
discretionary relief that may be awarded”); United States v.
Newton, 2019 WL 1007100, *5 (WD Va., Mar. 1, 2019) (consid-
ering that the movant, “if he were sentenced today,” would
no longer qualify for career offender status). Nothing ex-
press or implicit in the First Step Act suggests that these
courts misinterpreted the Act in considering such relevant
and probative information.
8
C
The Court therefore holds that the First Step Act allows
district courts to consider intervening changes of law or fact
in exercising their discretion to reduce a sentence pursuant
to the First Step Act.
It follows, under the Court's sentencing jurisprudence,
that when deciding a First Step Act motion, district courts
8
The dissent contends that permitting a district court to consider non-
retroactive Guidelines amendments will create a disparity between First
Step Act-eligible movants and other defendants. See post, at 505. To
reiterate, the First Step Act does not require a district court to recalculate
a movant's Guidelines in any respect other than applying the Fair Sentenc-
ing Act. See n. 6, supra. In any event, it is a feature of our sentencing
law that different judges may respond differently to the same sentencing
arguments. Cf. Kimbrough v. United States, 552 U. S. 85, 110 (2007) (per-
mitting, but not requiring, district courts to consider certain policy argu-
ments at sentencing). Moreover, disparities are always unavoidable when
some, but not all, defendants are permitted to move for modifcations of
an original sentence. Even the dissent's interpretation would create dis-
parities between First Step Act movants and defendants eligible for a
sentence reduction under the 2011 retroactive crack-cocaine Guidelines,
see supra, at 487–488, because the Commission permitted the latter group
to argue postsentencing developments, see USSG § 1B1.10, comment,
n. 1(B)(iii).
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as: 597 U. S. 481 (2022)
501
Opinion of the Court
bear the standard obligation to explain their decisions and
demonstrate
that they considered the parties' arguments.
It is well established that a district court must generally
consider the parties' nonfrivolous arguments before it. See
Golan v. Saada, 596 U. S. –––, ––– (2022). Of course, a dis-
trict court is not required to be persuaded by every argu-
ment parties make, and it may, in its discretion, dismiss argu-
ments that it does not fnd compelling without a detailed
explanation. Nor is a district court required to articulate
anything more than a brief statement of reasons. See Rita
v. United States, 551 U. S. 338, 356 (2007). Nothing in the
First Step Act contravenes those background principles.
When it comes to that reasoned explanation, the First Step
Act “ `leaves much . . . to the judge's own professional judg-
ment.' ” Chavez-Meza v. United States, 585 U. S. –––, –––
(2018) (quoting Rita, 551 U. S., at 356). The First Step Act
does not “require courts to expressly rebut each argument”
made by the parties. United States v. Maxwell, 991 F. 3d
685, 694 (CA6 2021). In exercising its discretion, the court
is free to agree or disagree with any of the policy arguments
raised before it. Cf. Kimbrough, 552 U. S., at 111. All that
the First Step Act requires is that a district court make clear
that it “reasoned through [the parties'] arguments.” 991
F. 3d, at 693.
The broad discretion that the First Step Act affords to
district courts also counsels in favor of deferential appellate
review. As a general matter, “it is not the role of an appel-
late court to substitute its judgment for that of the sentenc-
ing court as to the appropriateness of a particular sentence.”
Solem v. Helm, 463 U. S. 277, 290, n. 16 (1983). Section
404(c) of the First Step Act confers particular discretion,
clarifying that the Act does not “require a court to reduce
any sentence.” Other than legal errors in recalculating the
Guidelines to account for the Fair Sentencing Act's changes,
see Gall v. United States, 552 U. S. 38, 51 (2007), appellate
review should not be overly searching.
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502 CONCEPCION
v. UNITED STATES
Kavanaugh, J., dissenting
Put simply, the First Step Act does not require a district
cour
t to accept a movant's argument that evidence of rehabil-
itation or other changes in law counsel in favor of a sentence
reduction, or the Government's view that evidence of violent
behavior in prison counsels against providing relief. Nor
does the First Step Act require a district court to make a
point-by-point rebuttal of the parties' arguments. All that
is required is for a district court to demonstrate that it has
considered the arguments before it.
***
The First Step Act does not require a district court to be
persuaded by the nonfrivolous arguments raised by the par-
ties before it, but it does require the court to consider them.
The contrary judgment of the Court of Appeals for the First
Circuit is reversed, and the case is remanded for further pro-
ceedings consistent with this opinion.
It is so ordered.
Justice Kavanaugh, with whom The Chief Justice,
Justice Alito, and Justice Barrett join, dissenting.
Beginning in the mid-1980s, Congress prescribed higher
criminal sentences for crack-cocaine offenses than for powder-
cocaine offenses involving the same amounts of cocaine. In
2010, Congress enacted the Fair Sentencing Act to narrow
that crack/powder disparity by lowering the sentencing
ranges for certain crack-cocaine offenses. But the Act low-
ered those crack-cocaine sentencing ranges only prospec-
tively—that is, for crack-cocaine offenders who were sen-
tenced on or after the Act's effective date of August 3, 2010.
The First Step Act of 2018 changed that. It provided that
the 2010 Fair Sentencing Act's lower crack-cocaine sentenc-
ing ranges would also apply retroactively to offenders who
were sentenced before August 3, 2010. But how to imple-
ment that change? Congress did not mandate a specifc
across-the-board reduction to all pre-August 3, 2010, crack-
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as: 597 U. S. 481 (2022)
503
Kavanaugh, J., dissenting
cocaine sentences. Instead, the First Step Act authorized
distr
ict courts, on motion, to “impose a reduced sentence as
if ” the lower sentencing ranges for crack-cocaine offenses
“were in effect at the time the covered offense was com-
mitted.” § 404(b), 132 Stat. 5222.
The straightforward question in this case is whether dis-
trict courts in First Step Act sentence-modifcation proceed-
ings may reduce sentences based not only on the changes to
the crack-cocaine sentencing ranges, but also on other unre-
lated legal or factual changes that have occurred since the
original sentencing. For many crack-cocaine offenders who
were sentenced before August 3, 2010, the most signifcant
such change is a non-retroactive 2016 Sentencing Guidelines
amendment that substantially altered the career-offender
guideline and would signifcantly lower many of those offend-
ers' Guidelines ranges. See United States Sentencing Com-
mission, Guidelines Manual, App. C, Amdt. 798 (Nov. 2021).
The Court today concludes that district courts in First
Step Act sentence-modifcation proceedings may reduce sen-
tences based not only on the changes to the crack-cocaine
sentencing ranges, but also on other unrelated legal or
fac tua l changes that have occurred si nce the or ig i na l
sentencing.
I respectfully disagree. The text of the First Step Act
authorizes district courts to reduce sentences based only on
changes to the crack-cocaine sentencing ranges, not based on
other unrelated changes that have occurred since the origi-
nal sentencing. In other words, the First Step Act directs
district courts to answer one fundamental question: What
would the offender's sentence have been if the lower crack-
cocaine sentencing ranges had been in effect back at the time
of the original sentencing?
The Court sidesteps the text of the Act and equates
sentence-modifcation proceedings with plenary sentencing
proceedings. But as this Court has recognized, there are
“fundamental differences between sentencing and sentence-
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504 CONCEPCION
v. UNITED STATES
Kavanaugh, J., dissenting
modifcation proceedings.” Dillon v. United States, 560
U
. S. 817, 830 (2010). The fnality of criminal judgments is
essential to the operation of the criminal justice system.
See Calderon v. Thompson, 523 U. S. 538, 555–556 (1998);
United States v. Frady, 456 U. S. 152, 166 (1982). Once a
federal sentence becomes fnal, a court may alter that
sentence “only in very limited circumstances.” Pepper v.
United States, 562 U. S. 476, 501–502, n. 14 (2011). As rele-
vant here, Congress has made clear that courts may reduce
“an imposed term of imprisonment to the extent” such a re-
duction is “expressly permitted by statute.” 18 U. S. C.
§ 3582(c)(1)(B) (emphasis added).
The First Step Act states that the district court “may . . .
impose a reduced sentence as if ” the lower sentencing
ranges for crack-cocaine offenses “were in effect at the time
the covered offense was committed.” § 404(b), 132 Stat.
5222. By its terms, the First Step Act authorizes consider-
ation only of the lower sentencing ranges for crack-cocaine
offenses. The First Step Act does not authorize consider-
ation of unrelated intervening legal or factual changes. In-
deed, the relevant provision of the First Step Act does not
mention changes other than the lower sentencing ranges for
crack-cocaine offenses. Therefore, the First Step Act does
not “expressly permi[t]” reductions based on those unrelated
intervening changes. 18 U. S. C. § 3582(c)(1)(B).
In support of its conclusion that district courts in First
Step Act sentence-modifcation proceedings may consider
other unrelated changes, the Court cites Pepper and similar
decisions. See ante, at 492–494. But those decisions in-
volved resentencings, not sentence-modifcation proceedings.
See Pepper, 562 U. S., at 486–487. Those cases therefore do
not support the Court's approach here. To reiterate, for
sentence-modifcation proceedings, Congress has declared
that courts may reduce a sentence only as “expressly permit-
ted by statute.” 18 U. S. C. § 3582(c)(1)(B). And the First

Cite
as: 597 U. S. 481 (2022)
505
Kavanaugh, J., dissenting
Step Act does not authorize consideration of unrelated inter-
veni
ng legal or factual changes since the original sentencing.
The Court's disregard of the text of the First Step Act and
§ 3582(c)(1)(B) will create signifcant and inexplicable sen-
tencing inequities. Consider the following. First Step Act
sentence-modifcation proceedings are available only for of-
fenders who were sentenced before August 3, 2010. So a
crack-cocaine offender such as Concepcion who was sen-
tenced before August 3, 2010, may now obtain the beneft
of the non-retroactive 2016 change to the career-offender
guideline. But a crack-cocaine offender who was sentenced
from August 3, 2010, to July 31, 2016, will not be able to
obtain the beneft of the non-retroactive 2016 change to
the career-offender guideline. What sense does that make?
That anomalous outcome will amount to a “haphazard wind-
fall” for crack-cocaine offenders sentenced before August 3,
2010. United States v. Lancaster, 997 F. 3d 171, 180 (CA4
2021) (Wilkinson, J., concurring in judgment).
Still more inequities will ensue because the Court affords
district courts blanket discretion to choose between two
vastly different approaches to First Step Act proceedings.
To be sure, the Court properly notes that district courts
must begin a First Step Act proceeding by calculating the
new Guidelines range based solely on the changes to the
crack-cocaine sentencing ranges. See ante, at 498, n. 6. So
far, so good. But district courts then have free rein either
to take into account—or to completely disregard—other in-
tervening changes since the original sentencing.
Needless to say, different district courts will choose differ-
ent approaches. The Court's decision will therefore produce
massive inequities in how the First Step Act is implemented
on the ground. Those inequities further illustrate why to-
day's decision is wrong as a matter of statutory interpre-
tation: Congress enacted the First Step Act to provide a
targeted retroactive reduction in crack-cocaine sentencing
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506 CONCEPCION
v. UNITED STATES
Kavanaugh, J., dissenting
ranges, not to unleash a sentencing free-for-all in the lower
cour
ts.
The Court's disregard of the text of the First Step Act is
especially audacious because the Act was a heavily negoti-
ated and vigorously debated piece of legislation. The Act
refects a compromise among competing interests. Not for
the frst time in a sentencing case, the Court's decision today
unravels the legislative compromise refected in the statu-
tory text. The Court in effect green-lights district courts,
if they wish, to make the 2016 amendment to the career-
offender guideline retroactive in First Step Act proceed-
ings—even though neither Congress nor the Sentencing
Commission has made that amendment retroactive. Per-
haps the Court's decision represents better sentencing policy.
Perhaps not. But under the Constitution's separation of
powers, this Court may not simply rewrite the First Step
Act as the Court thinks best.
In sum, I would conclude that the First Step Act author-
izes district courts to reduce a sentence based on changes to
the crack-cocaine sentencing ranges, but not based on other
unrelated legal or factual changes since the original sentenc-
ing. The Court holds otherwise. Therefore, I respectfully
dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 17, frst full paragraph, line 7, “excising ” is changed to “exercising