United States v. 2020-06-15 | 19-30066 | USA V. EZRALEE KELLEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EZRALEE J. KELLEY,
Defendant-Appellant.
No. 19-30066
D.C. No.
2:06-cr-00136-LRS-2
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
Argued and Submitted March 5, 2020
Seattle, Washington
Filed June 15, 2020
Before: Sandra S. Ikuta and Ryan D. Nelson, Circuit
Judges, and Solomon Oliver, Jr.,
*
District Judge.
Opinion by Judge Ikuta
*
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.

UNITED STATES V. KELLEY2
SUMMARY
**
Criminal Law
Affirming the sentence imposed on a motion for a
reduced sentence, the panel held that the First Step Act of
2018 does not permit a plenary resentencing proceeding in
which a defendant’s career offender status can be
reconsidered.
The panel explained that the First Step Act permits the
court to sentence as if parts of the Fair Sentencing Act of
2010 had been in place at the time the offense occurred, not
as if every subsequent judicial opinion had been rendered or
every subsequent statute had been enacted. The panel
concluded that the district court in this case properly
exercised its discretion when it applied the applicable laws
that existed when the defendant’s covered offense was
committed, as if the Fair Sentencing Act was also in
existence, resulting in a recalculated Sentencing Guidelines
range of 188 to 255 months, and in imposing a reduced term
of imprisonment of 180 months at the second step of
resentencing.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

UNITED STATES V. KELLEY3
COUNSEL
Matthew Campbell (argued), Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
Richard Barker (argued), and Russell E. Smoot, Assistant
United States Attorneys; William D. Hyslop, United States
Attorney; United States Attorney’s Office, Spokane,
Washington; for Plaintiff-Appellee.
OPINION
IKUTA, Circuit Judge:
This appeal requires us to address whether the First Step
Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), permits a
plenary resentencing proceeding in which a defendant’s
career offender status can be reconsidered. We hold that it
does not.
I
In 2010, Congress enacted the Fair Sentencing Act, Pub.
L. No. 111-220, 124 Stat. 2372 (2010), to reduce the
disparate treatment of offenders who dealt crack cocaine
compared to offenders who dealt powder cocaine, see Dorsey
v. United States, 567 U.S. 260, 268–69 (2012). Before the
Fair Sentencing Act, an offense involving 50 or more grams
of crack cocaine would be subject to a statutory sentencing
range of 10 years to life in prison, 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006), and an offense involving 5 or
more grams of crack cocaine would be subject to a statutory

UNITED STATES V. KELLEY4
sentencing range of 5 to 40 years in prison, 21 U.S.C.
§ 841(b)(1)(B)(iii) (2006). Section 2 of the Fair Sentencing
Act amended these sections so that a higher quantity of drugs
would be needed to trigger the same sentences; thus, an
offense involving 280 or more grams (rather than 50 or more
grams) of crack cocaine was subject to a sentence of 10 years
to life in prison, and an offense involving 28 or more grams
(rather than 5 or more grams) of crack cocaine was subject to
a sentence of 5 to 40 years in prison. See Fair Sentencing Act
§ 2.
1
These changes did not apply to offenders whose
convictions became final before Congress enacted the Fair
Sentencing Act. See Dorsey, 567 U.S. at 280–81.
Eight years after the Fair Sentencing Act, Congress
enacted the First Step Act to implement various criminal-
justice reforms. Section 404 of the First Step Act addresses
how the Fair Sentencing Act applies to offenders whose
sentences were final before Congress enacted the Fair
Sentencing Act. It states, in pertinent part:
A court that imposed a sentence for a covered
offense may, on motion of the defendant, . . .
impose a reduced sentence as if sections 2 and
3 of the Fair Sentencing Act . . . were in effect
at the time the covered offense was
committed.
First Step Act § 404(b). A covered offense is “a violation of
a Federal criminal statute, the statutory penalties for which
were modified by section 2 or 3 of the Fair Sentencing Act
. . . that was committed before August 3, 2010.” First Step
1
Section 3 of the Fair Sentencing Act eliminated mandatory
minimum sentences for simple possession of crack cocaine.

UNITED STATES V. KELLEY5
Act § 404(a). Section 404(c) provides that a court’s decision
to reduce a sentence under the First Step Act is discretionary,
stating that “[n]othing in this section shall be construed to
require a court to reduce any sentence pursuant to this
section.” First Step Act § 404(c).
2
In other words, the First
Step Act permits a defendant who was sentenced for a crack
cocaine offense to move the court to “impose a reduced
sentence as if” the First Step Act had been in effect at the
time the defendant committed the offense, and it gives the
district court discretion to do so.
II
In 2007, three years before the Fair Sentencing Act was
enacted, Ezralee Kelley pleaded guilty to one count of
conspiracy to distribute 50 or more grams of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006).
Her offense involved 262.2 grams of a mixture containing
162.5 grams of cocaine base. In the plea agreement, the
government and Kelley agreed that an appropriate sentence
would range from 180 to 262 months in prison followed by
five years of supervised release.
2
Section 404(c) provides, in full:
LIMITATIONS.—No court shall entertain a motion
made under this section to reduce a sentence if the
sentence was previously imposed or previously reduced
in accordance with the amendments made by sections
2 and 3 of the Fair Sentencing Act of 2010 (Public Law
111-220; 124 Stat. 2372) 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.

UNITED STATES V. KELLEY6
The United States Federal Sentencing Guidelines are the
“starting point and the initial benchmark” for the sentencing
process. Gall v. United States, 552 U.S. 38, 49 (2007).
Before Kelley was sentenced, the probation officer prepared
a Presentence Investigation Report (PSR), which proceeded
through the steps required by the then-current 2006
Guidelines. See U.S.S.G. § 1B1.1 (2006) (Application
Instructions).
Pursuant to the Guidelines, the PSR first determined that
the applicable offense Guideline was § 2D1.1 (Unlawful
Manufacturing, Importing, Exporting, or Trafficking). See
U.S.S.G. § 2D1.1 (2006). Applying this Guideline, the PSR
calculated Kelley’s offense level, that is, the number of points
associated with Kelley’s criminal activity. Based on the
quantity of cocaine base involved, Kelley’s base offense level
(as determined by reference to the Drug Quantity Table) was
34. See U.S.S.G. § 2D1.1(c)(3) (2006).
The PSR then calculated the applicable adjustments to the
base offense level. Because of Kelley’s acceptance of
responsibility, the base offense level was adjusted downward
by three points. See U.S.S.G. § 3E1.1 (2006). This gave her
an adjusted offense level of 31.
Next, the PSR determined applicable adjustments under
Chapter 4. See U.S.S.G. § 4 (2006) (Criminal History and
Criminal Livelihood). Kelley had two Washington
convictions for conspiracy to distribute a controlled
substance. See Wash. Rev. Code §§ 69.50.407, 69.50.401(A).
These offenses, combined with her federal conviction and
age, made her a career offender within the meaning of

UNITED STATES V. KELLEY7
U.S.S.G. § 4B1.1 (2006).
3
Under Chapter 4, a career offender
who commits a crime with a statutory maximum sentence of
life imprisonment automatically has an offense level of 37
before accounting for any acceptance of responsibility
adjustment. U.S.S.G. § 4B1.1(b) (2006). Because the
statutory maximum for Kelley’s offense of conviction was
life in prison at that time, she was assigned an offense level
of 37. After reducing Kelley’s offense level by three points
for acceptance of responsibility, the PSR determined that
Kelley had a total offense level of 34.
The PSR then determined Kelley’s criminal history
category under Chapter 4. This category is determined by
adding points for each qualifying prior sentence according to
the instructions in U.S.S.G. § 4A1.1 (2006). Kelley’s record
would have put her in Criminal History Category IV. But as
a career offender, Kelley was automatically assigned to
Category VI. U.S.S.G. § 4B1.1(b) (2006).
Finally, the PSR applied the Sentencing Table, U.S.S.G.
Chapter 5, Part A (2006). Based on Kelley’s total offense
level of 34, her assignment to Criminal History Category VI,
3
Section 4B1.1 provides:
(a) A defendant is a career offender if (1) the defendant
was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.
U.S.S.G. § 4B1.1 (2006).

UNITED STATES V. KELLEY8
and the statutory mandatory minimum, the Guidelines range
was 262 to 327 months of imprisonment. The PSR also
stated that the parties had agreed to a sentence between 180
and 262 months in the plea agreement. Neither party
objected to the PSR.
The district court adopted the PSR but imposed a below-
Guidelines sentence of 192 months in prison followed by five
years of supervised release. The court stated it was imposing
a below-Guidelines sentence within the “range expressly
permitted by [the] terms of [the] Plea Agreement” based on
its consideration of the sentencing factors set forth in
18 U.S.C. § 3553(a).
After the First Step Act was enacted in 2018, Kelley
moved for a reduced sentence. Kelley argued that under the
Fair Sentencing Act’s revised sentencing ranges, her offense
involving 262.2 grams of a mixture containing crack cocaine
would subject her to 5 to 40 years in prison, instead of 10
years to life. See 21 U.S.C. § 841(b)(1)(B)(iii). Relying on
the 2018 Guidelines, which were applicable in 2019, Kelley
argued that her recalculated base offense level (as determined
by reference to the Drug Quantity Table) was 28, rather than
34. See U.S.S.G. § 2D1.1(c)(6) (2018). Further, Kelley
argued that under a recent Ninth Circuit opinion, the two
prior Washington offenses giving rise to her career offender
status, Wash. Rev. Code §§ 69.50.407, 69.50.401(A), no
longer qualified as career offender predicates, see United
States v. Brown, 879 F.3d 1043, 1047–48 (9th Cir. 2018)
(holding that because the Washington drug conspiracy statute
covers conduct that would not be covered under federal
conspiracy law, Washington drug conspiracy is not a
“controlled substance offense” under the Guidelines).
Therefore, she argued, she was not a career offender and not

UNITED STATES V. KELLEY9
subject to any upward adjustment based on career offender
status. Kelley then argued that with a three level reduction
for acceptance of responsibility, her adjusted offense level
would be 25. Because she would no longer be designated as
a career offender, she would retain the Criminal History
Category IV, instead of being automatically assigned to
Criminal History Category VI. With an adjusted offense
level of 25 and a Criminal History Category of IV, the
Sentencing Table would give her a Guidelines range of 84 to
105 months. See U.S.S.G. Chapter 5, Part A (2018). Because
Kelley had already served in excess of that time, she asked
for immediate release.
The district court rejected this argument in part. First, the
district court concluded the First Step Act did not give it
authority to conduct a plenary resentencing or reconsider its
original sentencing determinations. Therefore, the court
recalculated Kelley’s Guidelines range as if the Fair
Sentencing Act had been in effect when she was originally
sentenced but without considering other changes in the law.
According to the court, Kelley’s recalculated Guidelines
range dropped from 262–327 months to 188–235 months.
Taking into account Kelley’s evidence that she had been a
model inmate during her incarceration as a factor under
18 U.S.C. § 3553(a)(1), the district court exercised its
discretion to impose a reduced term of imprisonment of
180 months.
4
Like Kelley’s original sentence, this term was
below Kelley’s Guidelines range but within the range agreed
4
Because neither party challenges the district court’s consideration
of the § 3553(a) factors, we do not address this issue. See United States
v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).

UNITED STATES V. KELLEY10
to by Kelley and the government in Kelley’s plea agreement.
Kelley appealed.
5
III
The only question on appeal is whether the First Step Act
authorizes a plenary resentencing. In other words, the parties
dispute whether a court exercising its discretion to resentence
a defendant under the First Step Act has the authority to
revisit all aspects of the defendant’s sentence and apply
current law, including our determination in Brown that
Kelley’s two Washington drug offenses are not career
offender predicates.
6
As always, we start with the statute’s plain language. The
First Step Act gives a court discretion to “impose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act . . .
were in effect at the time the covered offense was
committed.” First Step Act § 404(b). The phrase “as if”
means “as the case would be if” some different condition had
been in existence, e.g., “he laughed as if I had said something
annihilatingly funny.” As, Oxford Dictionary of English
(3d ed. 2011), https://www.oed.com/view/Entry/11307#eid
5
Although Kelley is now out of prison, her appeal is not moot
because her sentence includes five years of supervised release, a term that
could be reduced by a ruling in her favor on appeal. See United States v.
Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001).
6
The government does not dispute that if the district court could
consider all current law, Kelley would not be considered a career offender,
see United States v. Brown, 879 F.3d 1043, 1046 (9th Cir. 2018), and her
base offense level under the Guidelines would be 28, see U.S.S.G.
§ 2D1.1(c)(6) (2018).

UNITED STATES V. KELLEY11
38318876. In other words, the phrase “as if” requires
consideration of a counterfactual situation.
The First Step Act describes the counterfactual situation
as follows: At the time the defendant committed the covered
offense, sections 2 and 3 of the Fair Sentencing Act were in
effect. First Step Act § 404(b). In other words, the First Step
Act authorizes the district court to consider the state of the
law at the time the defendant committed the offense, and
change only one variable: the addition of sections 2 and 3 of
the Fair Sentencing Act as part of the legal landscape. See
United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019)
(interpreting the First Step Act as authorizing a district court
to decide “on a new sentence by placing itself in the time
frame of the original sentencing, altering the relevant legal
landscape only by the changes mandated by the 2010 Fair
Sentencing Act”). With this counterfactual situation in mind,
the court must then determine how changing this single
variable would affect the defendant’s sentence. Then the
court may exercise its discretion to impose a reduced
sentence consistent with that change.
Because the First Step Act asks the court to consider a
counterfactual situation where only a single variable is
altered, it does not authorize the district court to consider
other legal changes that may have occurred after the
defendant committed the offense. In other words, the First
Step Act permits the court to sentence “as if” parts of the Fair
Sentencing Act had been in place at the time the offense
occurred, not “as if” every subsequent judicial opinion had
been rendered or every subsequent statute had been enacted.
Accordingly, we hold that a district court that decides to
exercise its discretion under the First Step Act must:

UNITED STATES V. KELLEY12
(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.
In reaching this conclusion, we deepen a circuit split. We
join the well-reasoned opinions of the Fifth and Sixth
Circuits, which have interpreted the First Step Act as not
permitting a plenary resentencing hearing but instead
allowing a court to engage in the limited counterfactual
inquiry we have described. See Hegwood, 934 F.3d at 418;
United States v. Smith, 958 F.3d 494, 498 (6th Cir. 2020).
The Fourth Circuit, by contrast, has concluded that the First
Step Act permits a court to consider at least some intervening
changes in case law in recalculating a prisoner’s sentence.
See United States v. Chambers, 956 F.3d 667, 672–73 (4th
Cir. 2020). Despite recognizing that the “as if” clause
“directs the sentencing court to apply section 2 or 3 of the
Fair Sentencing Act, and not some other section, or some
other statute,” Chambers nevertheless held that “there is no
limiting language to preclude the court from applying
intervening case law,” and therefore a court is free to consider
intervening changes in case law in recalculating a prisoner’s
sentence. Id. at 672.
7
We reject this conclusion because it
7
The Fourth Circuit distinguished Hegwood and further justified its
conclusion that its intervening case law, United States v. Simmons, 649
F.3d 237 (4th Cir. 2011), applied in the First Step Act resentencing on the
ground that Simmons applied to cases pending on collateral review. See
Chambers, 956 F.3d at 669 (citing Miller v. United States, 735 F.3d 141,
146 (4th Cir. 2013)). Given that the applicability of precedent to habeas
proceedings is not relevant to a sentence reduction under the First Step
Act, we find this reasoning unpersuasive.

UNITED STATES V. KELLEY13
fails to account for the First Step Act’s “limiting language,”
namely, the “as if” clause, which expressly limits the scope
of the counterfactual situation a court may consider. Neither
the First Step Act, nor any other statute identified by
Chambers, authorizes a court to reduce a sentence “as if”
changes in law other than sections 2 and 3 of the Fair
Sentencing Act had been in effect; therefore, a court has no
authority to do so. See 18 U.S.C. § 3582(c).
IV
In opposing this conclusion, Kelley raises two primary
arguments.
A
First, Kelley argues that a proper analysis of 18 U.S.C.
§ 3582(c), which addresses modifications of imposed terms
of imprisonment, leads to the conclusion that the First Step
Act requires plenary resentencing. Section 3582(c) provides
that a court generally may “not modify a term of
imprisonment once it has been imposed,” subject to certain
exceptions, two of which are relevant here. The first
exception, § 3582(c)(1)(B), states that “the court may modify
an imposed term of imprisonment to the extent otherwise
expressly permitted by statute or by Rule 35 of the Federal
Rules of Criminal Procedure.”
8
The second exception,
§ 3582(c)(2), states that if a defendant “has been sentenced to
8
Subject to certain requirements, Rule 35 of the Federal Rules of
Criminal Procedure authorizes a court to correct an error in sentencing that
“resulted from arithmetical, technical, or other clear error,” Fed. R. Crim.
P. 35(a), and to reduce a sentence when the defendant has provided
substantial assistance to the government, Fed. R. Crim. P. 35(b).

UNITED STATES V. KELLEY14
a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission,”
then the court may reduce the term of imprisonment “if such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”
Kelley’s argument proceeds in several steps. First, Kelley
argues that the First Step Act is not a stand-alone statute, but
is implemented through § 3582(c)(1)(B). Second, Kelley
argues that because § 3582(c)(2) contains language
permitting a court to apply a Guidelines change to previously
sentenced offenders only when the Sentencing Commission
issues an applicable policy statement, and § 3582(c)(1)(B)
contains no such language, we should read § 3582(c)(1)(B) as
requiring a plenary resentencing. Therefore, Kelley
concludes, the First Step Act also requires plenary
resentencing.
We reject this argument because § 3582(c)(1)(B) does not
“implement” the First Step Act. Although both § 3582(c) and
the First Step Act relate to a court’s authority to revise
sentences due to changes in the law, § 3582(c)(1)(B) is a
general provision which merely acknowledges that courts
may modify sentences “to the extent otherwise expressly
permitted by statute” or rule. By contrast, the First Step Act
expressly permits a specific type of sentence reduction, and
we interpret and implement such an independent
congressional enactment on its own terms. See Morton v.
Mancari, 417 U.S. 535, 550–51 (1974) (“Where there is no
clear intention otherwise, a specific statute will not be
controlled . . . by a general one.”). Moreover, we disagree
with Kelley’s argument that § 3582(c)(1)(B) requires a
plenary resentencing. Because § 3582(c)(1)(B) merely
authorizes a court to implement another statute allowing for

UNITED STATES V. KELLEY15
a sentence modification, it does no more than point us back
to where we began: the First Step Act’s text, which does not
permit a plenary resentencing.
B
Second, Kelley argues that the use of the word “impose”
in the First Step Act’s statement that a district court may
“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,” First Step Act § 404(b)
(emphasis added), signals Congress’s intent to permit a
plenary resentencing. According to Kelley, whenever a court
imposes a sentence, it is required to make certain
determinations based on the Sentencing Guidelines and
statutory law. See 18 U.S.C. § 3553(a)(4); 18 U.S.C.
§ 3582(a). Kelley argues that if a court resentences a
defendant under the First Step Act but ignores intervening
caselaw regarding the construction of the Guidelines, it fails
to calculate the applicable Guidelines range correctly. See
Gall v. United States, 552 U.S. 38, 49 (2007) (“[A] district
court should begin all sentencing proceedings by correctly
calculating the applicable Guidelines range.”). Therefore,
when a district court “imposes” a sentence under the First
Step Act, Kelley argues, it must likewise recalculate the
applicable Guidelines range and reconsider the § 3553(a)
factors under current law.
We disagree. Although Congress has used the term
“impose” in describing the initial imposition of a sentence,
Kelley has cited no statute or case establishing that when
Congress uses the word “impose” in any resentencing
context, Congress necessarily means to authorize a plenary

UNITED STATES V. KELLEY16
resentencing.
9
Because “[t]he best evidence of
[congressional] purpose is the statutory text,” W. Va. Univ.
Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991), we are bound
by the language of the First Step Act, which plainly indicates
that Congress intended to limit courts engaging in
resentencing to considering a single changed variable.
In a related context, the Supreme Court rejected the rule
that a district court must always consider intervening caselaw
whenever it revisits a sentence. See Dillon v. United States,
560 U.S. 817, 826 (2010). Dillon held that § 3582(c)(2)’s
text permitting courts to “reduce the term of imprisonment”
consistent with the Sentencing Commission’s policy
statements, “together with its narrow scope, shows that
Congress intended to authorize only a limited adjustment to
an otherwise final sentence and not a plenary resentencing
proceeding.” Id. The Supreme Court rejected the argument
that the district court should have the discretion to correct
“any mistakes committed at the initial sentencing.” Id.
at 831. Because the “aspects of his sentence” that the
defendant in Dillon sought to correct “were not affected by
the Commission’s amendment” at issue, they were “outside
the scope of the proceeding authorized by § 3582(c)(2), and
the District Court properly declined to address them.” Id. In
9
Kelley points to § 3582(c)(1)(B), which permits courts (in certain
circumstances) to “modify an imposed term of imprisonment.” Kelley
claims that the use of “modify” and “imposed” in this section implies that
modifying a previously imposed sentence is a more limited exercise than
imposing a sentence in the first place. This argument falls far short of
establishing that Congress’s use of the term “imposed” necessarily means
that Congress intended to require a plenary resentencing notwithstanding
the limiting language of the First Step Act. Kelley’s reference to other
statutes using the term “impose” in the sentencing context, see 18 U.S.C.
§§ 3553, 3661, are equally unpersuasive.

UNITED STATES V. KELLEY17
other words, Dillon concluded that congressional
authorization to reduce a term of imprisonment does not
necessarily carry with it authorization to correct any errors in
the original sentencing proceeding.
Relying on this conclusion, Dillon adopted a two-step
approach to a § 3582(c)(2) resentencing. Id. at 827. First, a
court determines the Guidelines range applicable “had the
relevant amendment been in effect at the time of the initial
sentencing,” leaving “all other guideline application decisions
unaffected.” Id. (citation omitted). Second, it considers the
§ 3553(a) statutory sentencing factors and determines,
“whether, in its discretion, the reduction . . . is warranted.”
Id. This approach, which requires the court to consider only
a single changed variable, is similar to the one we adopt
today.
Kelley’s argument that any sentencing under the First
Step Act must be plenary not only contradicts the statutory
text, but also lacks plausibility in context. The import of the
First Step Act is to give offenders the benefit of the Fair
Sentencing Act, even though their sentences were final before
it was enacted. And the point of the Fair Sentencing Act was
to lessen the disparity between sentences for crack cocaine
offenses and sentences for powder cocaine offenses. But
Kelley’s interpretation would put defendants convicted of
crack cocaine offenses in a far better position than defendants
convicted of other drug offenses: The crack cocaine
defendants could have their career offender statuses
reevaluated, and be eligible for other positive changes in their
Guidelines calculations, while other criminal defendants
would be deprived of such a benefit. There is no indication
in the statute that Congress intended this limited class of
crack cocaine offenders to enjoy such a windfall. Further,

UNITED STATES V. KELLEY18
Kelley’s interpretation would arbitrarily deprive some
defendants of the “reduced sentence” the First Step Act
permits: If the court were bound to engage in a plenary
reconsideration of all changes in the law, it is possible that
the defendant would be subject to a higher Guidelines range,
notwithstanding the Fair Sentencing Act’s effect. While the
First Step Act does not permit a court to enhance a
defendant’s sentence, an increased Guidelines range might
preclude the court from granting the defendant a reduced
sentence. See First Step Act § 404(b). Our straightforward
interpretation better fits the language of the statute and avoids
these incongruous results.
V
Given our conclusion that the First Step Act does not
authorize plenary resentencing, the district court properly
exercised its discretion. It acknowledged that the First Step
Act did not authorize it to conduct a plenary resentencing of
Kelley and instead recalculated Kelley’s Guidelines range to
be 188–235 months. Although the court did not provide its
calculations, this recalculation confirms that the court
correctly applied the applicable laws existing when Kelley’s
covered offense was committed, “as if” the Fair Sentencing
Act was also in existence. Because Kelley’s offense involved
262.2 grams of a mixture containing crack cocaine, she would
have been subject to 5 to 40 years in prison, instead of ten
years to life in prison, had the Fair Sentencing Act been in
effect when she was originally sentenced. Fair Sentencing
Act § 2. This change would not affect her base offense level,
which under the version of § 2D1.1 then in effect would have
remained at 34. See U.S.S.G. § 2D1.1 (2006). Nor would the
Fair Sentencing Act affect her designation as a career
offender. U.S.S.G. § 4B1.1 (2006). However, Kelley would

UNITED STATES V. KELLEY19
no longer be subject to the automatic adjustment to an offense
level of 37 for offenders who commit a crime with a statutory
maximum sentence of life imprisonment. See U.S.S.G.
§ 4B1.1(b) (2006). Instead, her offense level would remain
at 34. Id. (a career offender who commits an offense with a
statutory maximum sentence of 25 years or more, but less
than life, is subject to an offense level of 34). After her three
level downward adjustment for acceptance of responsibility,
Kelley’s final offense level would be 31. Based on that and
her criminal history category of VI, her recalculated
Guidelines range would be 188 to 235 months, as the district
court determined. The district court then proceeded to the
second step of the resentencing and exercised its discretion to
impose a reduced term of imprisonment of 180 months. We
see no error in the district court’s approach.
AFFIRMED.