Mixed Signals on Reviewing First Step Act Denials

The Sixth Circuit has recently spent some time addressing 18 U.S.C. § 3742. That statute specifies the situations in which appellate courts can grant relief in sentencing appeals, such as when a sentence is “imposed in violation of law.” In three decisions last week, the Sixth Circuit touched on whether § 3742 applies to the review of denials of sentence modifications under the First Step Act (and thus provides grounds for granting relief in those appeals). In United States v. Smithers, the court avoided answering the question because the government had forfeited any argument that the statute did not apply. In United States v. Richardson, the Sixth Circuit assumed that § 3742 applied to denials of First Step Act relief, which the court could do because it was affirming the district court’s decision on the merits. Concurring in Richardson, Judge Kethledge contended that the statute did not apply to denials of sentencing modifications at all; it applies only to new sentences. And in the unpublished (and thus non-precedential) United States v. Hunnicutt, the Sixth Circuit held that a defendant could not appeal the denial of First Step Act relief because § 3742 does not apply to those denials.

Sentencing appeals, § 3742 & the First Step Act

Section 3742 says that courts of appeals can review criminal sentences for four errors: (1) the sentence violated the law, (2) the sentence was due to a guidelines error, (3) the sentence exceeded the guidelines-recommended range, and (4) there was no guideline for the offense and the sentence is “plainly unreasonable.” The Sixth Circuit once saw § 3742 as a limit on its appellate jurisdiction. But in March, the Sixth Circuit held that § 3742 is a claims-processing rule, not a jurisdictional one. The statute thus specifies the type of relief that an appellate court can grant, not its jurisdiction.

In a series of recent decisions, the Sixth Circuit has addressed § 3742’s application to appeals from the denial of relief under the First Step Act. That Act made the Fair Sentencing Act retroactive. And the Fair Sentencing Act reduced the sentencing disparity between crack and powdered cocaine. Under the First Step Act, defendants who were sentenced before the Fair Sentencing Act can petition the district court to reduce their sentence. The decision to reduce a sentence is discretionary.

Last month, in United States v. Foreman, the Sixth Circuit held that § 3742 allowed it to review the imposition of a new sentence under the First Step Act. The district court in Foreman had reduced the defendant’s sentence, but the defendant appealed to seek an lower one. The Sixth Circuit concluded “that an allegation of unreasonableness in a First Step Act proceeding constitutes a cognizable ‘violation of law’ that is reviewable under § 3742(a)(1).” And in a footnote, the court suggested that § 3742 review would also be available for denials of relief under the First Step Act:

[B]ecause both a grant and denial of a First Step Act motion entail acts of discretion, denials could presumably also be reviewed for abuse of discretion.

A spate of First Step Act appeals

Last week, the Sixth Circuit decided three cases involving review of district court decisions denying sentencing reductions under the First Step Act. Each approached § 3742 differently.

Forfeiture: United States v. Smithers

In United States v. Smithers, the Sixth Circuit avoided deciding whether § 3742 applies to appeals from denials of relief under the First Step Act because the issue had been forfeited. Recall that the Sixth Circuit recently held that § 3742 is a claims-processing rule, not a jurisdictional one. That means that parties can forfeit any argument about the statute’s application. The government in Smithers had not addressed whether review was available under § 3742. The court accordingly deemed the issue forfeited. On the merits, the court affirmed the denial of the sentencing reduction.

Avoiding and affirming: United States v. Richardson

In United States v. Richardson, the Sixth Circuit assumed that it could review a substantive-reasonableness challenge to the denial of First Step Act relief. The court noted the mixed signals on the matter. The First Step Act provides that “[n]othing in this section shall be construed to require a court to reduce any sentence pursuant to this section,” which the Sixth Circuit took as a suggestion that no review under § 3742 was allowed. But in the above-mentioned Foreman, the Sixth Circuit had suggested “that even a denial of a sentence-reduction motion is subject to review for substantive reasonableness.” This of course suggested that § 3742 did apply. Richardson avoided addressing the issue, however, as the court ultimately affirmed the district court’s denial of relief.

Judge Kethledge concurred to say that § 3742—by its plain terms—does not apply to denials of sentence modifications. The statute governs the relief available only in certain kinds of sentencing appeals: those that involve the “review of an otherwise final sentence.” So when a district court grants a motion to reduce a sentence, that decision can be reviewed (as it was in Foreman) under § 3742; the reduced sentence is a new sentence. But § 3742, Judge Kethledge explained, is irrelevant to appeals from denials of sentence modifications. When the district court denies a modification, “then the defendant seeks review of the denial, rather than ‘review of [the] otherwise final sentence’ imposed years before.” That makes § 3742 inapplicable:

[W]hen a defendant seeks review of a district court’s denial of a sentence-reduction motion, § 3742 neither limits our “jurisdiction” over the appeal, nor confines our power to grant certain types of relief. Instead, in appeals like this one, § 3742 simply does not apply at all.

Holding § 3742 inapplicable in an unpublished decision: United States v. Hunnicutt

Finally, in United States v. Hunnicutt, the Sixth Circuit dismissed an appeal because “it [did] not fall within the narrow class of cases for which [the court] may order relief under 18 U.S.C. § 3742.” The defendant in Hunnicutt argued that the district court “erred by failing to recognize the full extent of its discretion” in denying relief under the First Step Act. But this, the Sixth Circuit concluded, was not a “challenge to a sentence ‘imposed in violation of law,’ as permitted by 18 U.S.C. § 3742(a)(1).” The district court denied a discretionary sentence reduction. So no new sentence was imposed, as required for relief under § 3742. The court also rejected Foreman’s statement on reviewing denials as dicta. The appeal was thus “non-justiciable,” and the Sixth Circuit dismissed it.

Concurring, Judge Larsen would not have addressed whether § 3742 permitted review of denials of motions for sentence reductions. On the merits, the defendant was not entitled to any relief. So there was no need to address the scope of § 3742.

Three panels, three approaches

Smithers, Richardson, and Hunnicutt were all issued within a week of one another. Each involved a unique panel; no judges overlapped on any of the decisions. And the only decision to squarely hold whether § 3742 applies in this context—Hunnicutt—is unpublished and thus nonprecedential. The Sixth Circuit will likely have to definitively resolve this issue before long.

United States v. Smithers, 2020 WL 2702500 (6th Cir. May 26, 2020), available at the Sixth Circuit and Westlaw.

United States v. Richardson, 2020 WL 2781306 (6th Cir. May 29, 2020), available at the Sixth Circuit and Westlaw.

United States v. Hunnicutt, 2020 WL 2787699 (6th Cir. May 29, 2020), available at the Sixth Circuit and Westlaw.