                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 20a0112p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                   ┐
                                    Plaintiff-Appellee,      │
                                                             │
                                                              >        No. 19-3606
        v.                                                   │
                                                             │
                                                             │
 JOHN D. ALLEN,                                              │
                                 Defendant-Appellant.        │
                                                             ┘

                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
                  No. 1:07-cr-00081-1—Christopher A. Boyko, District Judge.

                               Decided and Filed: April 14, 2020

                   Before: CLAY, ROGERS, and GRIFFIN, Circuit Judges.

                                      _________________

                                            COUNSEL

ON BRIEF: Christian J. Grostic, FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for
Appellant. Kathryn Andrachik, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio,
for Appellee.
                                      _________________

                                             OPINION
                                      _________________

       ROGERS, Circuit Judge. The First Step Act provision regarding retroactivity of the Fair
Sentencing Act does not prohibit courts from considering a defendant’s post-sentencing conduct
when deciding whether to reduce his sentence. As the Government concedes, the district court in
this case erred in ruling that, in making such a determination under the First Step Act, the court
could not consider post-sentencing conduct. A remand is accordingly required.
 No. 19-3606                           United States v. Allen                              Page 2


       Defendant Allen pleaded guilty to possession with intent to distribute cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) on May 7, 2007. The court determined that
Allen was a career offender under U.S.S.G. § 4B1.1 and sentenced him to 210 months’
imprisonment and ten years’ supervised release. On March 6, 2019, Allen filed a motion to
reduce his sentence under § 404 of the First Step Act of 2018.

       Allen argued that the court should reduce his prison sentence and term of supervised
release. First, Allen asserted that the “Fair Sentencing Act reduced [his] mandatory supervised-
release term from ten years to eight years,” so the court “should reduce his supervised-release
term accordingly.” Second, Allen contended that because the statutory minimum penalty for his
drug offense had been lowered, the district court should reduce his prison sentence to 151
months based on relevant sentencing factors, including his age and participation in numerous
Bureau of Prisons classes and programs. The Government opposed Allen’s request to reduce his
sentence, arguing that his sentencing guidelines range remained unchanged even though the
statutory mandatory minimum penalty had been lowered. But the Government did not oppose
Allen’s request for a lower term of supervised release.

       The district court denied Allen’s request for a reduced prison sentence, but granted his
request to reduce his supervised-release term to eight years. In denying Allen’s request to reduce
his prison sentence, the district court reasoned that the First Step Act precluded it from
considering Allen’s post-sentencing conduct. The court relied upon the difference between
18 U.S.C. § 3582(c)(1)(B), which empowers courts to modify imposed terms of imprisonment
when such modification is expressly permitted by statute, and 18 U.S.C. § 3582(c)(2), which
empowers courts to modify imposed terms of imprisonment when the Sentencing Commission
lowers the sentencing guidelines range and which, unlike § 3582(c)(1)(B), specifically directs
courts to consider the § 3553(a) factors. The court asserted that although Allen’s “behavior
during confinement is commendable,” the court was “restrained from considering those facts.”
The court further elaborated that “the Court’s authority to reduce Defendant’s sentence is strictly
limited to statutory authority. The First Step Act in this instance limits the Court’s review to the
time Defendant committed the covered offense. Thus, any good behavior that occurred after the
 No. 19-3606                           United States v. Allen                               Page 3


covered offense is immaterial.” Allen now appeals from the denial of his motion for a sentence
reduction, challenging solely the district court’s refusal to consider post-sentencing conduct.

       We have jurisdiction over Allen’s appeal under 28 U.S.C. § 1291. See United States v.
Marshall, No. 18-2267, --- F.3d ----, 2020 WL 1467210, at *5 (6th Cir. Mar. 26, 2020).
Although our review may arguably be confined by 18 U.S.C. § 3742(a), the Government admits
error in this case and does not contend that § 3742(a) imposes a barrier to our power to grant
relief. See Marshall, 2020 WL 1467210, at *2–5.

       The Government concedes that the district court erred in concluding that the First Step
Act barred it from considering Allen’s post-sentencing conduct when deciding whether to
exercise its discretion to reduce his sentence. Section 3582(c)(1)(B) serves as the vehicle for a
proceeding under § 404 of the First Step Act, which empowers courts to modify the defendant’s
sentence. See 18 U.S.C. § 3582(c)(1)(B). Unlike §§ 3582(c)(1)(A) and (c)(2), which contain
substantive standards that constrain the district court’s review of sentence modification motions,
§ 3582(c)(1)(B) simply authorizes courts to “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.” “Section 3582(c)(1)(B) is, therefore, not itself a source of authority for sentence
modifications, nor does it delineate the scope of what the district court should consider when
resentencing is authorized by another provision.” United States v. Rose, 379 F. Supp. 3d 223,
232 (S.D.N.Y. 2019). Any substantive limit on the district court’s authority to modify the
defendant’s sentence here must come from § 404 of the First Step Act. It would be inappropriate
to impute the substantive standards contained in §§ 3582(c)(1)(A) and (c)(2) to § 3582(c)(1)(B)
or to draw a negative inference from the fact that §§ 3582(c)(1)(A) and (c)(2) specifically direct
courts to consider the § 3553(a) factors while § 3582(c)(1)(B) does not contain any substantive
standard.   Section 3582(c)(1)(B)’s silence on the appropriate standard for the exercise of
discretion does not preclude the district court from considering the § 3553(a) factors.

       The First Step Act does not prohibit courts from considering the factors outlined in
§ 3553(a), which include the applicable sentencing guidelines range and other relevant
information about the defendant’s history and conduct. See First Step Act of 2018, Pub. L. No.
115-391, § 404, 132 Stat. 5194, 5222 (2018). The First Step Act grants courts the authority to
 No. 19-3606                          United States v. Allen                              Page 4


“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.” Id. § 404(b). This authorizes courts to
reduce sentences as if the Fair Sentencing Act’s lowered mandatory minimums were in effect
earlier. Section 404’s silence regarding the standard that courts should use in determining
whether to reduce a defendant’s sentence cannot be read to limit the information that courts may
consider. Instead, courts may consider all relevant factors when determining whether to reduce a
defendant’s sentence under § 404. Id.; see 18 U.S.C. § 3553(a); 18 U.S.C. § 3661. Further,
§ 404’s language does not require courts to ignore all developments that occurred after the
defendant committed the covered offense when considering whether to reduce a defendant’s
sentence. See, e.g., Rose, 379 F. Supp. 3d at 231–35.

       Moreover, as the district court in Rose explained, consideration of the § 3553(a) factors
makes sense. If the § 3553(a) factors did not apply to a motion for a sentence reduction under
the First Step Act, then courts would have to develop new standards to guide their discretionary
decision regarding the defendant’s appropriate sentence. Rose, 379 F. Supp. 3d at 235; cf.
United States v. Christie, 736 F.3d 191, 196 (2d Cir. 2013); United States v. Metcalfe, 581 F.3d
456, 459 (6th Cir. 2009). “[T]he more likely scenario is that Congress intended district courts to
apply, by default, existing sentencing standards when exercising their discretion.” Rose, 379 F.
Supp. 3d at 235. Also, applying the § 3553(a) factors to the current facts that include the
defendant’s post-sentencing conduct is more manageable for district courts.           The judges
considering First Step Act motions will frequently not be the original sentencing judges because
of the length of sentences in crack-cocaine and cocaine-base cases. If courts were precluded
from assessing the § 3553(a) factors, including the defendant’s post-sentencing conduct, then the
new judge would be heavily reliant on the previous judge’s (perhaps conclusory) explanation of
the original sentence and the ability to recreate the record that was before the previous judge
after a potentially significant amount of time has passed. See id. Further, “because the original
sentences in these cases were largely dictated by the high mandatory minimums, defense counsel
may have prioritized or raised different arguments than he or she would have if the defendant
had been subject to a lower mandatory minimum sentence or no mandatory minimum at all.” Id.
Thus, prohibiting courts from assessing the § 3553(a) factors would require the courts to exercise
their discretion “based on a record that was not created with the current statutory framework in
 No. 19-3606                              United States v. Allen                                   Page 5


mind.” Id. These factors all support the conclusion that Congress contemplated that district
courts may look to § 3553(a)’s familiar framework when deciding whether to reduce a
defendant’s sentence under the First Step Act.

        Finally, the Supreme Court has determined that courts may consider post-sentencing
conduct in assessing the § 3553(a) factors when considering whether to adjust a previously
imposed sentence. Pepper v. United States, 562 U.S. 476, 487–93 (2011). Although Pepper
dealt with plenary resentencing procedure, whereas the First Step Act § 404 in contrast only
granted courts the power to modify sentences, United States v. Alexander, 951 F.3d 706, 708 (6th
Cir. 2019), such a distinction does not logically prevent courts from considering post-sentencing
conduct in assessing the § 3553(a) factors during a § 3582(c)(1)(B) sentence-modification
proceeding.1

        Other issues that the parties may dispute with respect to Allen’s First Step Act motion
have not been raised by Allen in this appeal, and we accordingly do not address them.
We reverse the district court’s order and remand for the court to consider Allen’s First Step Act
motion consistently with this opinion.




        1
          The Sentencing Commission has informally advised that regardless of whether resentencing under the
First Step Act constitutes a plenary resentencing proceeding or a more limited sentence modification
proceeding, “the Act made no changes to 18 U.S.C. § 3553(a), so the courts should consider the guidelines
and policy statements, along with the other 3553(a) factors, during the resentencing.” First Step Act,
ESP Insider Express (U.S. Sentencing Comm’n, Washington, D.C.), Feb. 2019, at 1, 8,
https://www.ussc.gov/sites/default/files/pdf/training/newsletters/2019-special_FIRST-STEP-Act.pdf.
