# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted January 21, 2020 *

Decided January 22, 2020

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL B. BRENNAN, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 19-1914

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

CHRISTOPHER HAMILTON Defendant-Appellant

. Appeal from the United States District
Court for the Central District of Illinois.

No. 96-20044

Harold A. Baker, J udge

.

O R D E R

Christopher Hamilton, who had been conv icted of serious drug charges, jointly moved with the government under the First Step Act to reduce his life sentence to time served. The district court granted the motion and, over Hamilton’s objection, imposed eight years of supervised rele ase. Hamilton appeals, arguing for the first time that the First Step Act mandates the district court to conduct a plenary resentencing hearing. We affirm the judgment.

* We have agreed to decide this case without oral argument because the briefs and record adequately present the facts an d legal arguments, and oral argument would not significantly aid the court. F ED

. R. A PP

. P. 34(a)(2)(C). NONPRECEDENTIAL DISPOSITION
To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 19-1914 Page 2

Hamilton was convicted in 1996 of posse ssing 250 grams of crack-cocaine with
intent to distribute. See 21 U.S.C. § 841(a)(1). Because he had two prior felony drug convictions, the district court sentenced hi m to a statutory minimum term of life in prison. See id. § 841(b)(1)(A)(iii) (1994).

In 2010, Congress enacted the Fair Sentenci ng Act, which reduced the sentencing disparity in § 841 between offenses involv ing powder cocaine and those involving cocaine base (“crack”). Fair Sentencing Ac t, sec. 2, 3, § 401(b)(1 ), 124 Stat. 2372 (2010) (codified in 21 U.S.C. § 841(b)(1)(A)(iii)). The Act modified § 841(b)(1)(A) to increase the quantity of crack—from 50 to 280 grams—necessary to trigger the subsection’s statutory penalties. In 2018, passage of the First Step Act made this provision of the Fair Sentencing Act retroactive to crack-offens e defendants sentenced before August 3, 2010.

See Pub. L. No. 115-391, 132 Stat. 5194, § 404 (2018). Sp ecifically, § 404(b) of the First Step Act provides that the district court “may , on motion of the defendant ... impose a
reduced sentence” as if the defendant had been sentenced with the benefit of the higher threshold drug quantities. Because Hamilt on’s 1996 conviction involved less than 280 grams of crack, § 404(b) rendered hi m eligible for a sentence reduction.

Hamilton, assisted by recruited counsel, and the government then jointly moved to reduce his sentence to time served (23 years), but they disagreed over the appropriateness of supervised release. The government sought eight years of supervision based on Hamilton’s disciplinary record in prison; Hamilton countered that he should have no supervised release beca use his time served already had extended beyond the high end of his revised guide lines range by more than eight years.

To resolve the disagreement, the district court held a hearing, with Hamilton appearing telephonically and his recruited lawyer appearing in person. (Hamilton did not object to this arrangement.) The court g ranted the parties’ joint motion and reduced
Hamilton’s sentence to time served. But th e court also imposed an eight-year term of supervised release—not to punish Hamilt on, but to “afford an opportunity for
rehabilitation and behavior modification.”

Hamilton devotes most of his appellate br ief to arguing, for the first time, that the district court, under the First Step Ac t, should have conducted a full, plenary resentencing hearing. Had it done so, he continues, the court would have had to analyze anew whether any of his prior state dr ug convictions constituted a serious drug felony under § 841(b)(1)(B). (Under § 841(b)(1)(B), a defendant who was previouslyNo. 19-1914 Page 3

convicted of a serious drug felony is subject to at least eight years of supervised release in addition to the prison term). The court, Hamilton maintains, necessarily would have found that none of his prior convictions qual ified as a serious felony, and therefore he should not have been subject to the statut ory minimum term of supervised release.

But Hamilton forfeited this argument by not raising it first in the district court, so we review it only for plain error. See United States v. Olano , 507 U.S. 725, 732–37 (1993);
United States v. Pankow , 884 F.3d 785, 790–91 (7th Cir. 2018). Under that standard of review, we will reverse only if the district co urt committed a clear or obvious error that affected a defendant’s substantial rights and impugns the fairness, integrity, or public reputation of the proceedings. See Pankow , 884 F.3d at 791.

Whether a sentence modification under the First Step Act requires a plenary resentencing hearing, however, is an argumen t we have yet to address, and we “rarely” find plain error on matters of first impre ssion because they “are unlikely to be that
obvious.” United States v. Ramirez , 783 F.3d 687, 695 (7th Cir. 2015). Nevertheless, nothing in the First Step Act requires a distri ct court to hold any sort of hearing. Case law on the matter is sparse, but one circuit ha s held that a plenary resentencing is not
allowed. S ee United States v. Hegwood , 934 F.3d 414, 418 (5th Cir. 2019) (The district court “plac[es] itself in the time frame of the orig inal sentencing, altering the relevant legal landscape only by the changes mandated by the 2010 Fair Sentencing Act.”). Two other

circuits leave the choice whether to resent ence to the district court’s discretion.

See United States v. Beamus , 943 F.3d 789, 792 (6th Cir. 2019) (district court’s discretion to
resentence allows consideration of a defe ndant’s criminal history as reflected in presentence report); United States v. Wirsing , 943 F.3d 175, 186 (4th Cir. 2019). Based on the language of § 404(b) of the First Step Ac t that “[a] court ... may ... impose a reduced sentence,” the district court did not plainl y err by reducing Hamilton’s sentence without a plenary resentencing.

To the extent Hamilton challenges his ei ght-year term of supervised release, the
district court did not err because that is the statutory minimum term under 21 U.S.C. § 841(b)(1)(B).

We have considered Hamilton’s remaining arguments, and none has merit.

AFFIRMED