US v. Kelley, No. 19-30066 (6-15-20)(Ikuta w/R. Nelson & Oliver). This is an important First Step Act decision. The 9th holds that a resentencing under First Step (crack disparity) does NOT permit a plenary resentencing proceeding in which a defendant’s career status can be reconsidered. The 9th concludes that the Act allows a defendant sentenced for a crack offense to move the court to “impose a reduced sentence as if the First Step Act had been in effect and gives the court discretion to do so. The 9th interprets the Act as only allowing a narrow counterfactual resentencing.

The defendant had argued that (1) the statute’s language fell under 3582; and (2) the Act’s use of “impose” a sentence grants authority for a plenary resentencing. The 9th rejects the arguments. The 9th holds that the specific controls over the general in the First Step Act text; and that “impose” is out of context and not plausible.

This decision “deepens” a circuit split. The 9th joins the 5th and 6th Circuits in their analysis. The 4th Circuit would allow a plenary resentencing. Thus, be aware of this split, calling for SCOTUS review.

Sadly, the defendant’s priors which had made her a career offender had been found not to qualify under a categorical approach.

Matt Campbell, Fed Def of E. Wa. & Idaho (Spokane) made a valiant effort on appeal.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/15/19-30066.pdf