FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

U NI T E D S TA T E S O F A ME R I C A , Plaintiff-Appellee
,

v.

E Z R AL E E J. KE L L EY , 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 W ashington Lonny R. Suko, District Judge, Presiding

Argued and Subm itted March 5, 2020 Seattle, W ashington

Filed June 15, 2020

B efore: Sandra S. Ikuta and Ryan D. Nelson, Circuit Judges, and Solom on Oliver, Jr., * District Judge.

Opinion by Judge Ikuta

* The Honorable Solom o n Oliver, Jr., United States D istrict Judge f o r the Northern District of Ohio, sitting by designation.U NI T E D S TA T E S V

. KE LL EY 2

SUMMARY * *

Criminal Law

Affi rm ing the sentence im posed on a m otion for a reduced sentence, the panel held that the First Step Ac t of 2018 does n o t perm it a plenary resentencing proceeding in which a defendant’s career offender status can be reconsidered.

The panel explained that the Fi rst Step Act perm its the
court to sentenc e as if p arts of the Fair Sentencing Act o f 2010 h ad been in place at the tim e the o ffe n s e occurred, not

as if every subsequent judicial opinion had b een rendered o r every subsequen t statute had been enacted. The panel concluded that the distr i c t c ourt in this case properly

e xercised its discretion when it applied the applicable la ws that existed whe n the defendant’s covered offense was

comm it t e d
, a s if the F air Sentencing Act was also in existence, resulting in a recalculated Sentencing Guidelines range of 188 to 255 m onths, and in im posing a reduced term of im prisonm ent o f 180 m onths at the second step o f resentencing.

** This summ ary constitutes no part o f the opinion of the court. It h as been prepared by court staff for the convenience of the reader.U NI T E D S TA T E S V

. KE LL EY 3

C OUNSEL

Matthew Cam

pbell (argued), Federa l D efenders of Eastern W ashington & Idaho, Spokane, W ashington, for DefendantAppellant.

Richar d Barker (argued), and R ussell E. Sm oot, Assistant United States Attorneys; W illiam D. Hyslop, United St a t es Attorney; United States Attorney’s Offic e , S pokane, W ashington; for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

This appeal requires u s to address whether the First Step Act, Pub. L. N o. 115-391, 132 Stat. 5 1 94 (2018), p erm its a p le nary resentencing proceeding in which a defendant’s

career offender status can be reconsidered. W e hold that it does not.

I

In 2010, Congress enacted the Fair S entencing A ct, Pub. L. No. 111-220, 124 Stat. 2372 (20 10), to reduce the disparate treatm ent o f offen d e rs who dealt crack cocaine

com pared to offenders who dealt powder cocaine, see Dorsey

v. United Stat es , 5 6 7 U.S. 2 60, 268–69 (2012). B efore the Fair S entencing Act, an offense involving 50 or m o re gram s of crack cocaine would be s ub j ect to a statutory sentencing range of 1 0 y e ars to life in prison, 21 U.S.C. § 84 1 ( b)(1)(A)(iii) (2006), and an offense involving 5 o r

m ore g ram s of crack cocaine w ould b e subject to a statutoryU NI T E D S TA T E S V

. KE LL EY 4

sen t e nc i n g range of 5 to 40 years in prison, 21 U.S.C. § 841(b)(1)(B)(iii) (2006). Section 2 of the F air S entencing Act am ended these sections so that a higher quantity of drugs would b e needed to trigger the sam e sentences; thus, an offense involving 2 80 or m ore gram s (rather than 50 or m ore gram s) o f crack cocaine was subject to a sentence of 10 years to life in p rison, and an o ffense in v ol v i n g 28 or m ore gram s (rather than 5 or m ore gram s) of crack cocaine w as subject to

a sentence of 5 to 40 years in prison. See Fair Sentencing A ct § 2. 1 These changes did not apply to offender s wh os e

co nvictions becam e final before Congress enacted the Fair Sentencing Act. S

ee Dorsey , 567 U.S. at 280–81.

Eight years after th e F air Sentencing Act, Congress enacted th e First Step A ct to im plem ent various crim inaljustice reform s. Section 4 0 4 of the F irst Step Act addresses how the Fai r Se n t encing Act applies to offenders whose
sentences were final before Congress enacted the Fair Sentencing Act. It states, in pertinent part:

A court that im

posed a sentence for a covered offense m ay, on m otion of the defendant,

. . . im pose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act

. . . were in effect
at the tim e th e covered offense was

comm itted.

First Step Act § 404(b). A covered offense is “a violation o f

a Federal crim inal statute, th e st atutory penalties for which

were m odified by section 2 or 3 of the F air Sentencing Ac t

. . . that was comm itted b efore Au g us t 3
, 2010.” First Step

1 Section 3 of the Fair Sente nc ing Act elim inated m andatory

m inim um sentences for simple possession of crack cocaine.U NI T E D S TA T E S V

. KE LL EY 5

Act § 404(a). Section 404(c) p rovides 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 purs u an t t o this section.” First Step Act § 404(c). 2 I n other words, the First Step Act perm its a defendant who was sentenced for a crack cocaine offense to m ove the court t o “ i m pose a reduced
sentence as if” the F ir st Step Act had been in effect at the tim e the d efendant comm itted the offens e , and it gives the district court discretion to do so.

II

In 2 007, three years before the Fa i r Sentencing Act was enacted, Ezralee Kelley pleaded guilty to o ne count o f conspiracy to distribute 50 or m ore gram s of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). Her offense inv o l v e d 262.2 g ram s of a m ixture containing 162.5 gram s of cocaine base. I n the plea agreem ent, the governm ent and Kelle y agreed that an appropriate sentence would range from 180 to 262 m onth s i n prison followed by five years of supervised release.

2 Section 404(c) provides, in full:

LIMITATIONS.—No court s hall entertain a m o tion

m ade under this section t o reduce a sentence if the
sentence was pr ev i o u sl y im posed or previously reduced in accordance with the am endm ents m ade by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111-220; 124 Stat. 2372) or if a previous m otion m ade under this section to reduce the sentence was, after the date of enactm ent of this Act, denied aft er a com plete review of the m otion on t he m erits. Nothing in t

h is section shall b e construed to r equire a court to reduce any sentence pursuant to this section.U NI T E D S TA T E S V

. KE LL EY 6

The United States Federal Sentencing Guidelines are the “starting p oint and the initial benchm ark” for the sentencing
process. Gall v. U

nited States
, 552 U.S. 38, 49 (2007). Before Kelley was sentenced, the probation officer prepared

a Presentence Investigation Report (PSR), which p r o ceeded through the s teps required by the then-current 2006 Guidelines. See U.S.S.G. § 1B1.1 (2006) (Applicat ion Instructions).

Pursuant to the Guidelines, the PSR first determ ined that the applicable offense Guideline wa s § 2D1.1 (Unlawful Manufacturing, Im

porting, E xporti n g, or Trafficking). See U.S.S.G. § 2D1.1 (2006). Applying this Guideline, the PSR calculated Kelley’s offense level, that is, the num ber of points associated with Kelley’s crim inal activity. Based on the quantity of cocaine base involved, Kelley’s base offense level (as determ ined 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 adjustm ents to the base offense l e v el. Because o f Kelley’s acceptance o f 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 determ i ned applicable adjustm ents under Chapter 4. See U.S.S.G. § 4 (2006 ) (Cr im inal History and Cri minal Livelihood). Kelley had two W ashington convictions for conspi r a c y to distribute a controlled substance. S

ee W ash

. R ev

. C o d e § § 6 9

. 5 0

. 4 0 7, 69.50.401(A). These offenses, com

bined with h er fed e r a l conviction and age, m ade her a career o ffe n d e r within the m eaning o fU NI T E D S TA T E S V

. KE LL EY 7

U.S.S.G. § 4B1.1 (2006). 3 Under C hapter 4, a career offender who com m its a crim e with a statutory m axim um sentence o f life im prisonm ent autom atically has an offense leve l o f 37 before accounting for any acceptance of respo nsibility adjustm ent. U.S.S.G. § 4 B1.1(b) (2006). Because the

s ta tu tory m axim

um for Kelley’s offense of conviction wa s life in prison at that tim e, sh e wa s assigned an offense level of 37. After redu c ing Kelley’s offense level by three points fo r acceptance of responsibility, the PSR determ ined th at Kelley had a total offense level of 34.

The PSR then d eterm ined Kelley’s crim inal history catego ry under Chapter 4

. This category is determ ined by adding p oints for each qualifying prior sentence according to the instructions in U.S.S.G. § 4A1.1 (2006). Kelley’s record would have put h er in Crim inal History Category IV. But as

a career o ffe nder, Kelley was autom atically assigned to Category VI. U.S.S.G. § 4B1.1(b) (2006).

Finally, the PSR applied the Sentencing T able, U.S.S.G. Chapter 5, Part A (2006). Based o n Kelley’s total o ffense level of 34, her assignm ent to C rim inal 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 t he tim e the defendant

committed the in s tant offense of conviction; ( 2) the instant offense of conviction is a felony that is either a crim e of violence or a controlled substance offense; and (3) the defendant has at least two pri o r felony convictions of either a crim e of violence or a controlled substance offense.

U.S.S.G. § 4B1.1 (2006).U NI T E D S TA T E S V

. KE LL EY 8

and the statutory m andatory m inimum , the Guidelines range

was 262 to 327 m o nths of im prisonm ent. The PSR also stated that th e p arties had agreed to a sentence between 180 and 262 m onths in the p lea agreem ent. Neither party objected to the PSR.

The district court adopted the PSR but im posed a belowGuidelines sentence of 192 m onths in prison f ollowed by five years of supervised release. The court stated it was im posing

a below-Guidelines sentence within the “range exp r essly
perm itted b y [the] term s of [the] Pl e a Agreem ent” based on its consideration o f the sentencing fa c tors set f o rth in 18 U.S.C. § 3553(a).

After the First Step A ct was enacted in 2018, Kelley

m oved for a reduced sentence. Kelley argued that under the Fair Sentencing Act’s revised sentencing ranges, her o ffense involving 262.2 gram s of a m ixture containing crack cocaine would subject her to 5 t o 4 0 y ears in prison, instead of 10 years to life. See 21 U .S.C. § 841(b)(1)(B)( i i i )

. Relying on the 2018 Guidelines, which were applicable in 2019, Kelley argued that her recalculated base offense level (as determ ined by reference to the Drug Q uantity Table) was 28, rather than 3 4

. See U.S.S.G. § 2 D1.1(c)(6) (2018). Further, Ke l l e y argued that under a recent N in th Ci rcuit opinion, the two prior W ashington offenses giving rise to her career offender status, W ash. Rev. Code §§ 69.50.407, 69.50 .401(A), no l o n ger qualified as career offender predicates, see United States v. Brown
, 8 79 F. 3 d 1043, 1047–48 (9th C ir. 2 018) (holding that because the W ashington drug conspiracy statute

covers conduct that would n o t be covered unde r fe d e ral conspiracy law, W ashington drug conspiracy is not a “controlled substance offense” under the Guidelines). Therefore, she argued, she was not a career o ffender and notU NI T E D S TA T E S V

. KE LL EY 9

subject to any upward adjustm ent b ased o n c areer offender
status. Kelley then argued that with a th r e e level reduction for acceptanc e of responsibility, her adjusted offense level would be 25. B ecause she would no longer be designated as

a career offender, she would retain the Crim inal History Category I V, instead of being autom atically assigned to Crim inal History Category VI. W ith an adjusted o ffense l evel of 25 and a C rim inal History C ategory of I V, th e Sentencing Table would give her a Guidelines range of 8 4 to 105 m onths. See U.S.S.G. Chapter 5, Part A (2018). Because Kelley had already served in excess of that tim e, she asked for imm ediate release.

The district court rejected this argum ent in part. F irst, the district court concluded the First Step Act did n ot give it authority to conduct a plenary resentencing or reconsider its original sente ncing determ inations. Therefore, the court recalculated K elley’s Guidelines ran ge as if the Fair Sentencing Act had b een in effect when she was originally sentenced but with out considering other changes in the law. According to the court, K elley’s recalculated Guidelines range dropped from 2 62–327 m onths t o 18 8 –235 m onths. Taking into account Kelley ’ s e v i dence that she had been a

m odel inm ate during her incarceration as a factor under 1 8 U. S.C. § 3553(a)(1), the district court exercised its discretion to im

p ose a reduce d term of im prisonm ent o f 180 m onths. 4 Like K elley’s o riginal sentence, this term was below Kelley’s Guidelines range but w ithin the range agreed

4 Because neither party challenges the district court’s consideration of the § 3553(a) factors, we do not address this issue. S ee United States v. Sineneng-Smith , 140 S. Ct. 1575, 1579 (2020).U NI T E D S TA T E S V

. KE LL EY 10

to by Kelley and the governm ent in Kelley’s plea agreem ent. Kelley appealed. 5

III

The only question on appeal is whether the First Step A ct authorizes a plenary resentencing. In other w ords, the parties dispute whether a court exercising its discretion to resentence

a d e fendant under the First Step Act has the authority t o

r e v isit all aspects of the defendant’s sentence and apply
current law, including our determ in a t i on in Brown that Kelley’s two W ashington dru g offenses are not career offender predicates. 6

As always, we start with the statute’s plain language. The Fir s t St e p Act gives a court d iscretion to “im pose a reduced
sentence as if sections 2 and 3 of the Fair Sentencing Act

. . . were in effect at the tim e the covered offe n se wa s

comm itted.” First St e p Act § 404(b). The phrase “as if”

m eans “as the case would be if” som e different condition h ad been in existence, e.g., “he laughed as if I had said som ething annihilatingly funny.” As
, Oxford Dict i o nary of English (3d ed. 2011)
, https://www.oed.com/view/Entry/11307#eid

5 Although K elley is now o ut of prison, her appeal i s not m oot because her sentence includes f ive years o f supervised release, a term t hat could be reduced by a ruling in her f avor o n appeal. See United States v. Verdin , 243 F.3d 1174, 1178 (9th Cir. 2001).

6 The governm ent d o e s not dispute that i f the district court could consider all current law, Kelley w ould not be considered a career offender,

see United S

tates v. Brown
, 879 F.3d 1043, 1046 (9th Cir. 2018), and her base o ffense level under t he G u i d e lines would be 28, see U.S.S.G. § 2D1.1(c)(6) (2018).U NI T E D S TA T E S V

. KE LL EY 11

383 18 8 7 6

. 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 tim e the defendant comm itted the covered offense, sections 2 and 3 of the Fair Sente n c i n g Act w ere in effect. First Step Act § 404(b). In other words, the First Step Act authorize s the district court to consider the state of the law at the tim e th e defendant comm itted the offense, and change only one variable: the addition o f sections 2 and 3 o f the Fair Sentencing Act as part o f the legal landscap e. S ee United States v. Hegwood
, 934 F.3d 414, 418 (5th C ir. 2 019) (interpreting the First Step Act as authorizing a district court to decide “on a new sentence b y placing itself in the tim e fram e of the original sentencing, alterin g the relevant legal l an d s cape only by the changes m andated by the 2 010 Fa i r Sentencing Act”). W ith this counterfactual situation in m ind, the court m

ust then determi ne h ow changing this single variable would affect the defendant’s sentence. Then the
court m ay exercise i t s d iscretion to im pose a reduced sentence consistent with that change.

Because the Fi r st St e p Act asks the court to consider a counterfactual situation where only a single v ariable is altered, it does not au th o r i z e the district court to consider other legal changes that m ay have occurred after the defendant comm itted the o ffense. I n other words, the First Step Act perm its the court to sentence “as if” p arts of the Fair Sentencing A ct had been i n p l a c e at the tim e the o ffense occurred, not “as if” every subsequent judicial opinion h ad been rendered or every subsequent statute had been enacted.

Accordingly, we hold that a district court that decides to exercise its discretion under the Fi rst S tep Act m u st:U NI T E D S TA T E S V

. KE LL EY 12

(1) place itsel f in the counterfactual situation where all the applicable laws that ex i s t e d at the tim e the covered o ffense

was comm itted are in place, m aking on l y the changes required by sections 2 and 3 of the Fair Sentencing Act; and (2) determ ine the app r opriate sentence un der this counterfactual legal regim e.

In reaching this conclusion, we deepen a circuit split. W e join th e we ll-reasoned opinions of the Fifth and Sixth Circuits, which have interpreted the Fi r s t Step Act as not perm itting a ple n ary resentencing hearing but instead allowing a court to engage in the l im ited counterfactual inquiry we have d escribed. S ee Hegwood
, 934 F.3d at 418; United States v. Smith
, 958 F. 3d 494, 498 (6th C ir. 2020). The Fourth Circuit, b y contrast, has concluded that the First Step Act perm its a court to consider at least som e intervening changes in case law in recalculating a pr isoner’s sentence. See United Stat es v. C

hambers
, 956 F.3d 667, 672–73 (4th Cir. 2020). Despite r ec o gnizing that the “as if” clause “directs the sentencing court to apply section 2 or 3 of the Fair Sentencing Act, and not som e o th e r section, or som e oth e r statute,” Chambers n evertheless held that “there is no lim iting language to p re clude 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 W e reject this conclusion bec au se it

7The Fourth Circuit distinguished Hegwood and further justified its

co n c lusion that its intervening case law, United States v. Simmons
, 6 4 9 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
, 9 56 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 sente n c e reduction under the First Step Act, we find this reasoning unpersuasive.U NI T E D S TA T E S V

. KE LL EY 13

fails to account for the First Step Act’s “lim iting language,”

nam ely, the “as if” clau se, which expressly lim its the scope of the counterfactual situation a court m ay consider. Neither the F irst Step Act, n or any other statute i d e nt i fied by Chambers
, authorizes a court to reduce a senten ce “as if” changes in law othe r th an sections 2 and 3 of the Fair Sentencing Act had been in effect ; th e refore, a court h as no authority to do so. See 18 U.S.C. § 3582(c).

IV

In o pposing this conclusion, Kelley raises two pr i mary argum ents.

A

First, Ke l l ey argues that a proper analysis of 18 U.S.C. § 3582(c), which a ddresses m o d ifications of im p osed term s of im p risonm ent, leads to the con clusion that the First Step Act requires plenary resentencing. S ection 3582(c) p rovides that a court generally m ay “ no t m odify a term o f im prisonm ent o n c e it has been im posed,” subject to certain exceptions, two of which are relevant her e. T he first exception, § 3582(c)(1)(B), states that “the court m ay m odify

an im posed term of im

prisonm ent to th e extent otherwise expressly perm itted b y statute or by Rule 3 5 of the Federal Ru les of C rim inal Procedure.” 8 The second exceptio n , § 3582(c)(2), states that if a defendant “has been sentenced to

8 Subject to ce rtain requirem ents, Rule 35 of the Federal Rules o f Crim inal Procedure authorizes a court to correct an error in sentencing t hat “resulted from arithm etical, technical, or other clear error,” Fed. R. Crim

. P. 35(a), and t o reduce a sentence when t he defendant has p rovided substantial assistance to the governm ent, Fed. R. Crim . P. 35(b).U NI T E D S TA T E S V

. KE LL EY 14

a term of im

prisonm ent based on a sentencing range that has subsequently been lowered by the Sentencing Comm ission,” then the court m ay reduce the term of im prisonm ent “if such

a reduction is consistent with applicable policy stateme nts issued by the Sentencing Com m ission.”

Kelley’s argum ent proceeds in several step s. F irst, Kelley argues that the First Step Act is not a stand-alone statute, but is im plem ented through § 3582(c)(1)(B). Second, Kelley arg u e s that because § 3582(c)(2) contains language
perm itting a court to apply a Guidelines change to previously sentenced offe n d ers o n ly when the Sentencing Comm ission issues an applicable policy sta tem ent, and § 3582(c)(1)(B) contains no such language, we should read § 3582(c)(1)(B) as requiring a plenary resentencing. Th e r efore, Kelley concludes, the Fir st Step Act also requires plenary resentencing.

W e reject this argum ent because § 3582(c)(1)(B) does not “im plem ent” the First Step Act. Although both § 3582(c) and the First Step Ac t relate to a court’s authority to revise
sentences due to changes i n the law, § 3582(c)(1)(B) is a general provi s i o n which m erely acknowledges that courts

m ay m o dify sentences “t o the extent o therwise expressly
perm itted by statute” or rule. By contrast, the First S tep A ct expressly perm its a spe c ific type of sentence reduction, and

we i nterpret and im plem ent such an indepe n d e n t congressional enactm ent o n its own term s. See Morton v. Mancari
, 417 U.S. 535, 55 0

– 5 1 (1974) (“Where there is no clear intention otherwise, a specific st a tute will not be controlled

. . . by a g eneral one .”). Moreover, we disagree with Kelley’s argum ent that § 3582(c)(1)(B) requires a plenary resentencing. Because § 3 582(c)(1)(B) m erely authorizes a court to im

plem ent another statute allowing forU NI T E D S TA T E S V

. KE LL EY 15

a sentence m od i fi c a t ion, it does no m ore than point us back
to where we began: the First Step A ct’s text, which does not perm it a plenary resentencing.

B

Second, Kelley argues that the use of the word “im pose” in the First Step Act’s statem e nt that a district court m ay

“ impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2 01 0

. . . were in effect at the tim e the

cov e r ed o ffense w as comm itted,” First Step Act § 404(b) (em phasis add e d), signals Congress’s intent to perm it a plenary resentencing. According to Kelley, whenever a court im poses a sentence, it i s required to m ake certain determ inations based on the Sentenc ing Guidelines and

s tatutory law. See 18 U.S.C. § 3553(a)(4); 1 8 U.S.C. § 3 5 82(a )

. Kelley argues that if a court resentences a defendant under the Fi rst Step Act but ignores intervening caselaw regarding the construction of the Guidelines, it fails
to calculate the applic ab l e Guidelines range correctly. See Gall v. U nited Sta t es , 5 5 2 U.S. 3 8, 49 (2007) (“[A] district
court should begin all sentencing proceedings by correctly

c a l c ulating the applicable Guidelines range.”). T h erefore, when a di s tr i c t court “im poses” a sentence under the First Step Act, Kelley argues, it m u s t likewise recalculate the applicab l e Guidelines range and reconsider the § 3553(a) factors under current law.

W e d isagree. Although C ongress has used the term “im pose” in describing the initial im positi on of a sentence, Kelley has cited no statute or case establishing that wh e n Congress u ses the word “impose” in any resentencing context, Congress n ecessarily m eans to authorize a plenaryU NI T E D S TA T E S V

. KE LL EY 16

r e s e n t e n c i n g

. 9 B e c a u s e “ [ t ] h e b e s t e v i d e n c e o f [congressional] purpose i s the statutory text,” W. Va. U niv. Hosps., Inc. v. Casey , 499 U.S. 83, 98 (1991), we are bound by the language of the F irst Step Act, which plainly indicates tha t Congress intended to lim it courts engaging in resentencing to considering a single changed variable.

In a related context, the Suprem e C ourt rejected the rule that a district court m

ust always consider intervening caselaw whenever it revisits a sentence. See Dillon v. United States
, 560 U.S. 817, 826 (2010). D illon held that § 3582(c)(2)’s
text pe rmi tting courts to “reduce the term of im p risonm ent” consistent with the Sentencing Comm ission’s policy
statem ents, “together with its narr o w scope, shows that Congress intended to authorize only a lim ited ad justm ent to

an otherwise final senten c e an d not a plenary resentencing proceeding.” Id

. The Suprem e Court rejected the argum ent that the district court should have the discretion to correc t “any m istakes comm itt ed at the initial sentencing.” Id

. at 831. Because the “aspects of h is sentence” that the defendant in Di l lon sought to correct “were n o t affected by the Comm ission’s am endm ent” at issue, th e y 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 p e rm i ts courts (in certain circum stances) to “m odify an im posed term of im

prisonm ent.” Ke l l ey claim s that the use of “m o dify” and “im posed” in this section im

p l ies t hat modifying a previously im posed sentence is a m ore limited exercise than imposing a s e n tence i n the first place. This argum ent falls far short o f establishing t

hat Congress’s use of the term “im p osed” necessarily m eans that Congress intended to require a plenary r esentencing notwithstanding
the lim iting language of the F irst Step A ct. Kelley’s reference to other
statutes using the term “im pose” in t he sentencing context, see 18 U.S.C. §§ 3553, 3661, are equally unpersuasive.U NI T E D S TA T E S V

. KE LL EY 17

o t h e r w o r d s , Di l l o n c o n c l u d e d t h a t c o n g r e s s i o n a l authorization to reduce a term of im prisonm ent does not necessarily carry w ith it authorization to correct any errors in the original sentencing proceeding.

Relying on this conclusion, Dill on adopted a two-step approach to a § 3582(c)(2) resentencing. Id. at 827. First, a court determ ines the Guidelines range applicable “had the relevant am en dme n t b een in effect at the tim e of the initial

senten cin g , ” leav in g “all other gu id elin e a p p licatio n d ecisio n s unaffected.” Id . (citation om itted). Second, it considers the § 3553(a) statutory sentencing factors and determ ines, “whether, in its discretion
, the reduction

. . . is warranted.” Id

. This approach, which requires the court to consider only

a single c hanged variable, is sim ilar to the one we adopt today.

Kelley’s argum ent that any sentencin g under the First Step A ct m

ust be plenary n o t only contradicts the statutory text, but also lacks plausibility in context. The im port of the First S tep Ac t is to give offenders the benefit o f the Fair Senten cin g Act, even though their sentences were final before it was enacted. And the p oint of the Fair Sentencing Act was to lessen the disparity between sentences for crack co c a i ne

o ffenses and sentences for powder cocaine offenses. B ut Kelley’s interpretation would pu t d efendants convicted o f crack cocaine o ffenses in a far better position than defendants convicted of o ther drug offenses: The crack cocaine defendants could h ave their caree r offender statuses reevaluated, and be eligible for other positive changes in their Guidelines calculations, while other c r im inal defendants would be deprived of su c h a benefit. There is no indication i n th e statute that Congress intended this lim ited class of crack cocaine offenders to enjoy such a windfall. Further,U NI T E D S TA T E S V

. KE LL EY 18

Kelley’s interpretation would arbitrarily deprive som e defendants of the “redu c ed sentence” the First S tep A ct perm its: If the court were bound to e n g a ge in a plenary reconsideration of all c h an g e s 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 p erm it a court to enhance a d efendant’s sentence, an increased Guidelines range mi g h t preclude the court from g ranting the d efendant a reduced

sen t e nc e

. 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 F irst Step A ct does not authorize p lenary resentencing, the d i strict court properly exercised its discr e ti on. It acknowledged that the First Step Act did not authorize it to conduct a plenary resentencing o f Kelley and instead recalculated K elley’s Guidelines range to be 188–235 m onth s

. Although the court did n ot provide its calculations, this recalculation confirm s that the court correctly applied the applicable laws existing when Kelley’s covered o ffe n se was comm itted, “as if” the Fair S entencing Act was also in existence. Because Kelley’s offense involved 262.2 gram s of a m ixture containing crack cocaine, she would have been sub

j e ct to 5 to 40 years in prison, instead of ten year s t o life in prison, had the Fair Sentencing Act been in

e ffe ct when she was originally sentenced. Fair Sentencin g Act § 2. This change would not affect h er base offense level, which under the version of § 2D1.1 then in effect w ould have

rem ained at 34. See U.S.S.G. § 2D1.1 (2006). Nor would the Fair Sentencing Act a ffect her designation as a career offender. U.S.S.G. § 4B1.1 (2006). However, Kelley wouldU NI T E D S TA T E S V

. KE LL EY 19

no longer be subject to the autom atic adjustm ent to an o ffense level o f 37 for offenders who comm it a crim e with a statutory

m aximum sentence o f life im p rison m ent. S

ee U.S.S.G. § 4B1.1(b) (2006). Instead, her offense level would re ma i n at 3 4. Id. (a career offender who comm its an offense with a

s ta tu t ory m axim

um sentence of 25 years or m ore, but les s than life, is subject to an offense level of 34). After her three level downward adjustm ent for acceptance of responsibility, Kelley’s final offense level would be 3 1. Based on that and h er crim inal history category o f VI, her recalculat e d Guidelines range would be 188 to 235 m onths, as the district
court d e t erm ined. The district court then proceeded to the second step of the resentencing and exercised its discretion to im pose a reduced term of im p risonm ent of 180 m onths. W e see no error in the district court’s approach.

AFFIRMED

.