FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EZRALEE J. KELLEY,

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 Washington

Lonny R. Suko, District Judge, Presiding

Argued and Submitted March 5, 2020

Seattle, Washington

Filed June 15, 2020

Before: Sandra S. Ikuta and Ryan D. Nelson, Circuit

Judges, and Solomon Oliver, Jr.,* District Judge.

Opinion by Judge Ikuta

* The Honorable Solomon Oliver, Jr., United States District Judge for

the Northern District of Ohio, sitting by designation.
2 UNITED STATES V. KELLEY

SUMMARY**

Criminal Law

Affirming the sentence imposed on a motion for a

reduced sentence, the panel held that the First Step Act of

2018 does not permit a plenary resentencing proceeding in

which a defendant’s career offender status can be

reconsidered.

The panel explained that the First Step Act permits the

court to sentence as if parts of the Fair Sentencing Act of

2010 had been in place at the time the offense occurred, not

as if every subsequent judicial opinion had been rendered or

every subsequent statute had been enacted. The panel

concluded that the district court in this case properly

exercised its discretion when it applied the applicable laws

that existed when the defendant’s covered offense was

committed, as if the Fair Sentencing Act was also in

existence, resulting in a recalculated Sentencing Guidelines

range of 188 to 255 months, and in imposing a reduced term

of imprisonment of 180 months at the second step of

resentencing.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. KELLEY 3

COUNSEL

Matthew Campbell (argued), Federal Defenders of Eastern

Washington & Idaho, Spokane, Washington, for DefendantAppellant.

Richard Barker (argued), and Russell E. Smoot, Assistant

United States Attorneys; William D. Hyslop, United States

Attorney; United States Attorney’s Office, Spokane,

Washington; for Plaintiff-Appellee.

OPINION

IKUTA, Circuit Judge:

This appeal requires us to address whether the First Step

Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), permits a

plenary resentencing proceeding in which a defendant’s

career offender status can be reconsidered. We hold that it

does not.

I

In 2010, Congress enacted the Fair Sentencing Act, Pub.

L. No. 111-220, 124 Stat. 2372 (2010), to reduce the

disparate treatment of offenders who dealt crack cocaine

compared to offenders who dealt powder cocaine, see Dorsey

v. United States, 567 U.S. 260, 268–69 (2012). Before the

Fair Sentencing Act, an offense involving 50 or more grams

of crack cocaine would be subject to a statutory sentencing

range of 10 years to life in prison, 21 U.S.C.

§ 841(b)(1)(A)(iii) (2006), and an offense involving 5 or

more grams of crack cocaine would be subject to a statutory
4 UNITED STATES V. KELLEY

sentencing range of 5 to 40 years in prison, 21 U.S.C.

§ 841(b)(1)(B)(iii) (2006). Section 2 of the Fair Sentencing

Act amended these sections so that a higher quantity of drugs

would be needed to trigger the same sentences; thus, an

offense involving 280 or more grams (rather than 50 or more

grams) of crack cocaine was subject to a sentence of 10 years

to life in prison, and an offense involving 28 or more grams

(rather than 5 or more grams) of crack cocaine was subject to

a sentence of 5 to 40 years in prison. See Fair Sentencing Act

§ 2.1 These changes did not apply to offenders whose

convictions became final before Congress enacted the Fair

Sentencing Act. See Dorsey, 567 U.S. at 280–81.

Eight years after the Fair Sentencing Act, Congress

enacted the First Step Act to implement various criminaljustice reforms. Section 404 of the First Step Act addresses

how the Fair Sentencing Act applies to offenders whose

sentences were final before Congress enacted the Fair

Sentencing Act. It states, in pertinent part:

A court that imposed a sentence for a covered

offense may, on motion of the defendant, . . .

impose a reduced sentence as if sections 2 and

3 of the Fair Sentencing Act . . . were in effect

at the time the covered offense was

committed.

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

a Federal criminal statute, the statutory penalties for which

were modified by section 2 or 3 of the Fair Sentencing Act

. . . that was committed before August 3, 2010.” First Step

1 Section 3 of the Fair Sentencing Act eliminated mandatory

minimum sentences for simple possession of crack cocaine.
UNITED STATES V. KELLEY 5

Act § 404(a). Section 404(c) provides 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 pursuant to this

section.” First Step Act § 404(c).2In other words, the First

Step Act permits a defendant who was sentenced for a crack

cocaine offense to move the court to “impose a reduced

sentence as if” the First Step Act had been in effect at the

time the defendant committed the offense, and it gives the

district court discretion to do so.

II

In 2007, three years before the Fair Sentencing Act was

enacted, Ezralee Kelley pleaded guilty to one count of

conspiracy to distribute 50 or more grams of cocaine base in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2006). 

Her offense involved 262.2 grams of a mixture containing

162.5 grams of cocaine base. In the plea agreement, the

government and Kelley agreed that an appropriate sentence

would range from 180 to 262 months in prison followed by

five years of supervised release.

2

 Section 404(c) provides, in full:

LIMITATIONS.—No court shall entertain a motion

made under this section to reduce a sentence if the

sentence was previously imposed or previously reduced

in accordance with the amendments made by sections

2 and 3 of the Fair Sentencing Act of 2010 (Public Law

111-220; 124 Stat. 2372) or if a previous motion made

under this section to reduce the sentence was, after the

date of enactment of this Act, denied after a complete

review of the motion on the merits. Nothing in this

section shall be construed to require a court to reduce

any sentence pursuant to this section.
6 UNITED STATES V. KELLEY

The United States Federal Sentencing Guidelines are the

“starting point and the initial benchmark” for the sentencing

process. Gall v. United States, 552 U.S. 38, 49 (2007). 

Before Kelley was sentenced, the probation officer prepared

a Presentence Investigation Report (PSR), which proceeded

through the steps required by the then-current 2006

Guidelines. See U.S.S.G. § 1B1.1 (2006) (Application

Instructions).

Pursuant to the Guidelines, the PSR first determined that

the applicable offense Guideline was § 2D1.1 (Unlawful

Manufacturing, Importing, Exporting, or Trafficking). See

U.S.S.G. § 2D1.1 (2006). Applying this Guideline, the PSR

calculated Kelley’s offense level, that is, the number of points

associated with Kelley’s criminal activity. Based on the

quantity of cocaine base involved, Kelley’s base offense level

(as determined 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 adjustments to the

base offense level. Because of Kelley’s acceptance of

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 determined applicable adjustments under

Chapter 4. See U.S.S.G. § 4 (2006) (Criminal History and

Criminal Livelihood). Kelley had two Washington

convictions for conspiracy to distribute a controlled

substance. See Wash.Rev.Code §§ 69.50.407, 69.50.401(A). 

These offenses, combined with her federal conviction and

age, made her a career offender within the meaning of
UNITED STATES V. KELLEY 7

U.S.S.G. § 4B1.1 (2006).3 Under Chapter 4, a career offender

who commits a crime with a statutory maximum sentence of

life imprisonment automatically has an offense level of 37

before accounting for any acceptance of responsibility

adjustment. U.S.S.G. § 4B1.1(b) (2006). Because the

statutory maximum for Kelley’s offense of conviction was

life in prison at that time, she was assigned an offense level

of 37. After reducing Kelley’s offense level by three points

for acceptance of responsibility, the PSR determined that

Kelley had a total offense level of 34.

The PSR then determined Kelley’s criminal history

category under Chapter 4. This category is determined by

adding points for each qualifying prior sentence according to

the instructions in U.S.S.G. § 4A1.1 (2006). Kelley’s record

would have put her in Criminal History Category IV. But as

a career offender, Kelley was automatically assigned to

Category VI. U.S.S.G. § 4B1.1(b) (2006).

Finally, the PSR applied the Sentencing Table, U.S.S.G.

Chapter 5, Part A (2006). Based on Kelley’s total offense

level of 34, her assignment to Criminal 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 the time the defendant

committed the instant offense of conviction; (2) the

instant offense of conviction is a felony that is either a

crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony

convictions of either a crime of violence or a controlled

substance offense.

U.S.S.G. § 4B1.1 (2006).
8 UNITED STATES V. KELLEY

and the statutory mandatory minimum, the Guidelines range

was 262 to 327 months of imprisonment. The PSR also

stated that the parties had agreed to a sentence between 180

and 262 months in the plea agreement. Neither party

objected to the PSR.

The district court adopted the PSR but imposed a belowGuidelines sentence of 192 months in prison followed by five

years of supervised release. The court stated it was imposing

a below-Guidelines sentence within the “range expressly

permitted by [the] terms of [the] Plea Agreement” based on

its consideration of the sentencing factors set forth in

18 U.S.C. § 3553(a).

After the First Step Act was enacted in 2018, Kelley

moved for a reduced sentence. Kelley argued that under the

Fair Sentencing Act’s revised sentencing ranges, her offense

involving 262.2 grams of a mixture containing crack cocaine

would subject her to 5 to 40 years in prison, instead of 10

years to life. See 21 U.S.C. § 841(b)(1)(B)(iii). Relying on

the 2018 Guidelines, which were applicable in 2019, Kelley

argued that her recalculated base offense level (as determined

by reference to the Drug Quantity Table) was 28, rather than

34. See U.S.S.G. § 2D1.1(c)(6) (2018). Further, Kelley

argued that under a recent Ninth Circuit opinion, the two

prior Washington offenses giving rise to her career offender

status, Wash. Rev. Code §§ 69.50.407, 69.50.401(A), no

longer qualified as career offender predicates, see United

States v. Brown, 879 F.3d 1043, 1047–48 (9th Cir. 2018)

(holding that because the Washington drug conspiracy statute

covers conduct that would not be covered under federal

conspiracy law, Washington drug conspiracy is not a

“controlled substance offense” under the Guidelines). 

Therefore, she argued, she was not a career offender and not
UNITED STATES V. KELLEY 9

subject to any upward adjustment based on career offender

status. Kelley then argued that with a three level reduction

for acceptance of responsibility, her adjusted offense level

would be 25. Because she would no longer be designated as

a career offender, she would retain the Criminal History

Category IV, instead of being automatically assigned to

Criminal History Category VI. With an adjusted offense

level of 25 and a Criminal History Category of IV, the

Sentencing Table would give her a Guidelines range of 84 to

105 months. See U.S.S.G. Chapter 5, Part A (2018). Because

Kelley had already served in excess of that time, she asked

for immediate release.

The district court rejected this argument in part. First, the

district court concluded the First Step Act did not give it

authority to conduct a plenary resentencing or reconsider its

original sentencing determinations. Therefore, the court

recalculated Kelley’s Guidelines range as if the Fair

Sentencing Act had been in effect when she was originally

sentenced but without considering other changes in the law. 

According to the court, Kelley’s recalculated Guidelines

range dropped from 262–327 months to 188–235 months. 

Taking into account Kelley’s evidence that she had been a

model inmate during her incarceration as a factor under

18 U.S.C. § 3553(a)(1), the district court exercised its

discretion to impose a reduced term of imprisonment of

180 months.4 Like Kelley’s original sentence, this term was

below Kelley’s Guidelines range but within the range agreed

4 Because neither party challenges the district court’s consideration

of the § 3553(a) factors, we do not address this issue. See United States

v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020).
10 UNITED STATES V. KELLEY

to by Kelley and the government in Kelley’s plea agreement. 

Kelley appealed.5

III

The only question on appeal is whether the First Step Act

authorizes a plenary resentencing. In other words, the parties

dispute whether a court exercising its discretion to resentence

a defendant under the First Step Act has the authority to

revisit all aspects of the defendant’s sentence and apply

current law, including our determination in Brown that

Kelley’s two Washington drug offenses are not career

offender predicates.6

As always, we start with the statute’s plain language. The

First Step Act gives a court discretion to “impose a reduced

sentence as if sections 2 and 3 of the Fair Sentencing Act . . .

were in effect at the time the covered offense was

committed.” First Step Act § 404(b). The phrase “as if”

means “as the case would be if” some different condition had

been in existence, e.g., “he laughed as if I had said something

annihilatingly funny.” As, Oxford Dictionary of English

(3d ed. 2011), https://www.oed.com/view/Entry/11307#eid

5 Although Kelley is now out of prison, her appeal is not moot

because her sentence includes five years of supervised release, a term that

could be reduced by a ruling in her favor on appeal. See United States v.

Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001).

6 The government does not dispute that if the district court could

consider all current law, Kelley would not be considered a career offender,

see United States v. Brown, 879 F.3d 1043, 1046 (9th Cir. 2018), and her

base offense level under the Guidelines would be 28, see U.S.S.G.

§ 2D1.1(c)(6) (2018).
UNITED STATES V. KELLEY 11

38318876. 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 time the defendant committed the covered

offense, sections 2 and 3 of the Fair Sentencing Act were in

effect. First Step Act § 404(b). In other words, the First Step

Act authorizes the district court to consider the state of the

law at the time the defendant committed the offense, and

change only one variable: the addition of sections 2 and 3 of

the Fair Sentencing Act as part of the legal landscape. See

United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019)

(interpreting the First Step Act as authorizing a district court

to decide “on a new sentence by placing itself in the time

frame of the original sentencing, altering the relevant legal

landscape only by the changes mandated by the 2010 Fair

Sentencing Act”). With this counterfactual situation in mind,

the court must then determine how changing this single

variable would affect the defendant’s sentence. Then the

court may exercise its discretion to impose a reduced

sentence consistent with that change.

Because the First Step Act asks the court to consider a

counterfactual situation where only a single variable is

altered, it does not authorize the district court to consider

other legal changes that may have occurred after the

defendant committed the offense. In other words, the First

Step Act permits the court to sentence “as if” parts of the Fair

Sentencing Act had been in place at the time the offense

occurred, not “as if” every subsequent judicial opinion had

been rendered or every subsequent statute had been enacted.

Accordingly, we hold that a district court that decides to

exercise its discretion under the First Step Act must: 
12 UNITED STATES V. KELLEY

(1) place itself in the counterfactual situation where all the

applicable laws that existed at the time the covered offense

was committed are in place, making only the changes

required by sections 2 and 3 of the Fair Sentencing Act; and

(2) determine the appropriate sentence under this

counterfactual legal regime.

In reaching this conclusion, we deepen a circuit split. We

join the well-reasoned opinions of the Fifth and Sixth

Circuits, which have interpreted the First Step Act as not

permitting a plenary resentencing hearing but instead

allowing a court to engage in the limited counterfactual

inquiry we have described. See Hegwood, 934 F.3d at 418;

United States v. Smith, 958 F.3d 494, 498 (6th Cir. 2020). 

The Fourth Circuit, by contrast, has concluded that the First

Step Act permits a court to consider at least some intervening

changes in case law in recalculating a prisoner’s sentence. 

See United States v. Chambers, 956 F.3d 667, 672–73 (4th

Cir. 2020). Despite recognizing that the “as if” clause

“directs the sentencing court to apply section 2 or 3 of the

Fair Sentencing Act, and not some other section, or some

other statute,” Chambers nevertheless held that “there is no

limiting language to preclude 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 We reject this conclusion because it

7

 The Fourth Circuit distinguished Hegwood and further justified its

conclusion that its intervening case law, United States v. Simmons, 649

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, 956 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 sentence reduction under the First Step

Act, we find this reasoning unpersuasive.
UNITED STATES V. KELLEY 13

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

namely, the “as if” clause, which expressly limits the scope

of the counterfactual situation a court may consider. Neither

the First Step Act, nor any other statute identified by

Chambers, authorizes a court to reduce a sentence “as if”

changes in law other than sections 2 and 3 of the Fair

Sentencing Act had been in effect; therefore, a court has no

authority to do so. See 18 U.S.C. § 3582(c).

IV

In opposing this conclusion, Kelley raises two primary

arguments.

A

First, Kelley argues that a proper analysis of 18 U.S.C.

§ 3582(c), which addresses modifications of imposed terms

of imprisonment, leads to the conclusion that the First Step

Act requires plenary resentencing. Section 3582(c) provides

that a court generally may “not modify a term of

imprisonment once it has been imposed,” subject to certain

exceptions, two of which are relevant here. The first

exception, § 3582(c)(1)(B), states that “the court may 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.”8 The second exception,

§ 3582(c)(2), states that if a defendant “has been sentenced to

8 Subject to certain requirements, Rule 35 of the Federal Rules of

Criminal Procedure authorizes a court to correct an error in sentencing that

“resulted from arithmetical, technical, or other clear error,” Fed. R. Crim.

P. 35(a), and to reduce a sentence when the defendant has provided

substantial assistance to the government, Fed. R. Crim. P. 35(b).
14 UNITED STATES V. KELLEY

a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission,”

then the court may reduce the term of imprisonment “if such

a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.”

Kelley’s argument proceeds in several steps. First,Kelley

argues that the First Step Act is not a stand-alone statute, but

is implemented through § 3582(c)(1)(B). Second, Kelley

argues that because § 3582(c)(2) contains language

permitting a court to apply a Guidelines change to previously

sentenced offenders only when the Sentencing Commission

issues an applicable policy statement, and § 3582(c)(1)(B)

contains no such language, we should read § 3582(c)(1)(B) as

requiring a plenary resentencing. Therefore, Kelley

concludes, the First Step Act also requires plenary

resentencing.

We reject this argument because § 3582(c)(1)(B) does not

“implement” the First Step Act. Although both § 3582(c) and

the First Step Act relate to a court’s authority to revise

sentences due to changes in the law, § 3582(c)(1)(B) is a

general provision which merely acknowledges that courts

may modify sentences “to the extent otherwise expressly

permitted by statute” or rule. By contrast, the First Step Act

expressly permits a specific type of sentence reduction, and

we interpret and implement such an independent

congressional enactment on its own terms. See Morton v.

Mancari, 417 U.S. 535, 550–51 (1974) (“Where there is no

clear intention otherwise, a specific statute will not be

controlled . . . by a general one.”). Moreover, we disagree

with Kelley’s argument that § 3582(c)(1)(B) requires a

plenary resentencing. Because § 3582(c)(1)(B) merely

authorizes a court to implement another statute allowing for
UNITED STATES V. KELLEY 15

a sentence modification, it does no more than point us back

to where we began: the First Step Act’s text, which does not

permit a plenary resentencing.

B

Second, Kelley argues that the use of the word “impose”

in the First Step Act’s statement that a district court may

“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,” First Step Act § 404(b)

(emphasis added), signals Congress’s intent to permit a

plenary resentencing. According to Kelley, whenever a court

imposes a sentence, it is required to make certain

determinations based on the Sentencing Guidelines and

statutory law. See 18 U.S.C. § 3553(a)(4); 18 U.S.C.

§ 3582(a). Kelley argues that if a court resentences a

defendant under the First Step Act but ignores intervening

caselaw regarding the construction of the Guidelines, it fails

to calculate the applicable Guidelines range correctly. See

Gall v. United States, 552 U.S. 38, 49 (2007) (“[A] district

court should begin all sentencing proceedings by correctly

calculating the applicable Guidelines range.”). Therefore,

when a district court “imposes” a sentence under the First

Step Act, Kelley argues, it must likewise recalculate the

applicable Guidelines range and reconsider the § 3553(a)

factors under current law.

We disagree. Although Congress has used the term

“impose” in describing the initial imposition of a sentence,

Kelley has cited no statute or case establishing that when

Congress uses the word “impose” in any resentencing

context, Congress necessarily means to authorize a plenary
16 UNITED STATES V. KELLEY

resentencing.

9 Because “[t]he best evidence of

[congressional] purpose is the statutory text,” W. Va. Univ.

Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991), we are bound

by the language of the First Step Act, which plainly indicates

that Congress intended to limit courts engaging in

resentencing to considering a single changed variable.

In a related context, the Supreme Court rejected the rule

that a district court must always consider intervening caselaw

whenever it revisits a sentence. See Dillon v. United States,

560 U.S. 817, 826 (2010). Dillon held that § 3582(c)(2)’s

text permitting courts to “reduce the term of imprisonment”

consistent with the Sentencing Commission’s policy

statements, “together with its narrow scope, shows that

Congress intended to authorize only a limited adjustment to

an otherwise final sentence and not a plenary resentencing

proceeding.” Id. The Supreme Court rejected the argument

that the district court should have the discretion to correct

“any mistakes committed at the initial sentencing.” Id.

at 831. Because the “aspects of his sentence” that the

defendant in Dillon sought to correct “were not affected by

the Commission’s amendment” at issue, they 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 permits courts (in certain

circumstances) to “modify an imposed term of imprisonment.” Kelley

claims that the use of “modify” and “imposed” in this section implies that

modifying a previously imposed sentence is a more limited exercise than

imposing a sentence in the first place. This argument falls far short of

establishing that Congress’s use of the term “imposed” necessarily means

that Congress intended to require a plenary resentencing notwithstanding

the limiting language of the First Step Act. Kelley’s reference to other

statutes using the term “impose” in the sentencing context, see 18 U.S.C.

§§ 3553, 3661, are equally unpersuasive.
UNITED STATES V. KELLEY 17

other words, Dillon concluded that congressional

authorization to reduce a term of imprisonment does not

necessarily carry with it authorization to correct any errors in

the original sentencing proceeding.

Relying on this conclusion, Dillon adopted a two-step

approach to a § 3582(c)(2) resentencing. Id. at 827. First, a

court determines the Guidelines range applicable “had the

relevant amendment been in effect at the time of the initial

sentencing,” leaving “all other guideline application decisions

unaffected.” Id. (citation omitted). Second, it considers the

§ 3553(a) statutory sentencing factors and determines,

“whether, in its discretion, the reduction . . . is warranted.” 

Id. This approach, which requires the court to consider only

a single changed variable, is similar to the one we adopt

today.

Kelley’s argument that any sentencing under the First

Step Act must be plenary not only contradicts the statutory

text, but also lacks plausibility in context. The import of the

First Step Act is to give offenders the benefit of the Fair

Sentencing Act, even though their sentences were final before

it was enacted. And the point of the Fair Sentencing Act was

to lessen the disparity between sentences for crack cocaine

offenses and sentences for powder cocaine offenses. But

Kelley’s interpretation would put defendants convicted of

crack cocaine offenses in a far better position than defendants

convicted of other drug offenses: The crack cocaine

defendants could have their career offender statuses

reevaluated, and be eligible for other positive changes in their

Guidelines calculations, while other criminal defendants

would be deprived of such a benefit. There is no indication

in the statute that Congress intended this limited class of

crack cocaine offenders to enjoy such a windfall. Further,
18 UNITED STATES V. KELLEY

Kelley’s interpretation would arbitrarily deprive some

defendants of the “reduced sentence” the First Step Act

permits: If the court were bound to engage in a plenary

reconsideration of all changes 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 permit a court to enhance a

defendant’s sentence, an increased Guidelines range might

preclude the court from granting the defendant a reduced

sentence. 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 First Step Act does not

authorize plenary resentencing, the district court properly

exercised its discretion. It acknowledged that the First Step

Act did not authorize it to conduct a plenary resentencing of

Kelley and instead recalculated Kelley’s Guidelines range to

be 188–235 months. Although the court did not provide its

calculations, this recalculation confirms that the court

correctly applied the applicable laws existing when Kelley’s

covered offense was committed, “as if” the Fair Sentencing

Act was also in existence. Because Kelley’s offense involved

262.2 grams of a mixture containing crack cocaine, she would

have been subject to 5 to 40 years in prison, instead of ten

years to life in prison, had the Fair Sentencing Act been in

effect when she was originally sentenced. Fair Sentencing

Act § 2. This change would not affect her base offense level,

which under the version of § 2D1.1 then in effect would have

remained at 34. See U.S.S.G. § 2D1.1 (2006). Nor would the

Fair Sentencing Act affect her designation as a career

offender. U.S.S.G. § 4B1.1 (2006). However, Kelley would
UNITED STATES V. KELLEY 19

no longer be subject to the automatic adjustment to an offense

level of 37 for offenders who commit a crime with a statutory

maximum sentence of life imprisonment. See U.S.S.G.

§ 4B1.1(b) (2006). Instead, her offense level would remain

at 34. Id. (a career offender who commits an offense with a

statutory maximum sentence of 25 years or more, but less

than life, is subject to an offense level of 34). After her three

level downward adjustment for acceptance of responsibility,

Kelley’s final offense level would be 31. Based on that and

her criminal history category of VI, her recalculated

Guidelines range would be 188 to 235 months, as the district

court determined. The district court then proceeded to the

second step of the resentencing and exercised its discretion to

impose a reduced term of imprisonment of 180 months. We

see no error in the district court’s approach.

AFFIRMED.