(Slip Opinion) OCTOBER TERM, 2021 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

CONCEPCION v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIRST CIRCUIT 

No. 20–1650. Argued January 19, 2022—Decided June 27, 2022 

Congress passed the Fair Sentencing Act of 2010 to correct the wide disparity between crack and powder cocaine sentencing. Section 2 of that 

Act increased the amount of crack cocaine needed to trigger a 5-to-40-

year sentencing range from 5 grams to 28 grams. §2(a)(2), 124 Stat. 

2372. The Fair Sentencing Act did not apply retroactively, but in 2011, 

the Sentencing Commission amended the Sentencing Guidelines to

lower the Guidelines range for crack-cocaine offenses and applied that

reduction retroactively for some defendants. In 2018, Congress enacted the First Step Act, authorizing district courts to “impose a reduced sentence” on defendants serving sentences for certain crack-cocaine offenses “as if sections 2 and 3 of the Fair Sentencing Act . . . 

were in effect at the time the covered offense was committed.” Pub. L. 

115–391, §404(b), 132 Stat. 5222.

In 2007, petitioner Carlos Concepcion pleaded guilty to one count of 

distributing five or more grams of crack cocaine in violation of 21 

U. S. C. §841(a)(1), and he was sentenced in 2009 to 19 years (228 

months) in prison. When Concepcion was sentenced, he qualified for 

sentencing as a “career offender.” The career offender provision and 

other enhancements increased Concepcion’s Sentencing Guidelines 

range from 57 to 71 months to 262 to 327 months. Because Concepcion

was sentenced as a career offender, he was not eligible for relief under 

the Sentencing Commission’s 2011 amendment. 

In 2019, Concepcion filed a pro se motion for a sentence reduction 

under the First Step Act. He argued that he was serving a sentence 

for a “covered offense” because §2 of the Fair Sentencing Act “modified” 

the statutory penalties for his conviction under 21 U. S. C. §841(a)(1).

Concepcion contended that retroactive application of the Fair Sentencing Act lowered his Guidelines range from 262 to 327 months to 188 to 
 

 

 

 

 

2 CONCEPCION v. UNITED STATES 

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235 months. The Government conceded Concepcion’s eligibility for relief but opposed the motion, emphasizing that Concepcion’s original

sentence of 228 months fell within the new Guidelines range of 188 to 

235 months, and citing factors in Concepcion’s prison record that the 

Government believed counseled against a sentence reduction. In his 

reply brief, represented by counsel, Concepcion made two primary arguments in support of a reduced sentence. First, he argued that he 

would no longer be considered a career offender because one of his 

prior convictions had been vacated and his remaining convictions 

would not constitute crimes of violence that trigger the enhancement. 

Without the enhancement, Concepcion contended that his revised 

Guidelines range should be 57 to 71 months. Second, Concepcion

pointed to postsentencing evidence of rehabilitation. 

The District Court denied Concepcion’s motion. It declined to consider that Concepcion would no longer qualify as a career offender 

based on its judgment that the First Step Act did not authorize such 

relief. App. to Pet. for Cert. 72a. The District Court did not address 

Concepcion’s evidence of rehabilitation or the Government’s countervailing evidence of Concepcion’s disciplinary record. The Court of Appeals affirmed in a divided opinion, and added to the disagreement

among the Circuits as to whether a district court deciding a First Step 

Act motion must, may, or may not consider intervening changes of law 

or fact. 

Held: The First Step Act allows district courts to consider intervening 

changes of law or fact in exercising their discretion to reduce a sentence. Pp. 6–18.

(a) Federal courts historically have exercised broad discretion to 

consider all relevant information at an initial sentencing hearing, consistent with their responsibility to sentence the whole person before

them. That discretion also carries forward to later proceedings that 

may modify an original sentence. District courts’ discretion is bounded 

only when Congress or the Constitution expressly limits the type of

information a district court may consider in modifying a sentence. 

Pp. 6–11.

(1) There is a “long” and “durable” tradition that sentencing

judges “enjo[y] discretion in the sort of information they may consider”

at an initial sentencing proceeding. Dean v. United States, 581 U. S. 

62, 66. That unbroken tradition also characterizes federal sentencing 

history. Indeed, “[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted

person as an individual and every case as a unique study in the human

failings that sometimes mitigate, sometimes magnify, the crime and 

the punishment to ensue.” Koon v. United States, 518 U. S. 81, 113. 
 

 

 

 

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Accordingly, a federal judge in deciding to impose a sentence “may appropriately conduct an inquiry broad in scope, largely unlimited either 

as to the kind of information he may consider, or the source from which

it may come.” United States v. Tucker, 404 U. S. 443, 446. Pp. 6–8.

(2) The discretion federal judges hold at initial sentencings also 

characterizes sentencing modification hearings. The Court in Pepper 

v. United States, 562 U. S. 476, found it “clear that when a defendant’s 

sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing.” Id., at 490. Accordingly, federal courts resentencing individuals whose sentences were vacated on

appeal regularly consider evidence of rehabilitation, or evidence of rule

breaking in prison, developed after the initial sentencing. Where district courts must calculate new Guidelines ranges as part of resentencing proceedings, courts have also exercised their discretion to consider 

nonretroactive Guidelines changes. In some cases, a district court is 

prohibited from recalculating a Guidelines range to account for nonretroactive Guidelines amendments, but the court may nevertheless 

find those amendments to be germane when deciding whether to modify a sentence at all, and if so, to what extent. Pp. 8–9.

(3) The only limitations on a court’s discretion to consider relevant 

materials at an initial sentencing or in modifying that sentence are

those set forth by Congress in a statute or by the Constitution. See 

Pepper, 562 U. S., at 489, n. 8; Mistretta v. United States, 488 U. S. 

361, 364. Congress has placed such limits where it deems them appropriate. See 18 U. S. C. §§3582(a), 3583(c). Congress has further imposed express statutory limitations on one type of sentencing modification proceeding, expressly cabining district courts’ discretion by

requiring courts to abide by the Sentencing Commission’s policy statements. See also §3582(c)(1)(A) (compassionate release). Pp. 9–11.

(b) Congress in the First Step Act did not contravene well-established sentencing practices. Pp. 11–18. 

(1) Nothing in the text and structure of the First Step Act expressly, or even implicitly, overcomes the established tradition of district courts’ sentencing discretion. The text of the First Step Act does

not so much as hint that district courts are prohibited from considering

evidence of rehabilitation, disciplinary infractions, or unrelated Guidelines changes. The only two limitations on district courts’ discretion 

appear in §404(c): A district court may not consider a First Step Act 

motion if the movant’s sentence was already reduced under the Fair 

Sentencing Act or if the court considered and rejected a motion under 

the First Step Act. Neither limitation applies here. By its terms,

§404(c) does not prohibit district courts from considering any arguments in favor of, or against, sentence modification. In fact, §404(c) 
 

 

 

 

 

 

4 CONCEPCION v. UNITED STATES 

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only underscores that a district court is not required to modify a sentence for any reason. “Drawing meaning from silence is particularly

inappropriate” in the sentencing context, “for Congress has shown that 

it knows how to direct sentencing practices in express terms.” Kimbrough v. United States, 552 U. S. 85, 103. 

The “as if ” clause in §404(b) does not impose any limit on the information a district court can consider in exercising its discretion under 

the First Step Act. The term “as if ” simply enacts the First Step Act’s 

central goal: to make retroactive the changes in the Fair Sentencing

Act, necessary to overcome 1 U. S. C. §109, which creates a presumption that Congress does not repeal federal criminal penalties unless it 

says so “expressly.” The “as if ” clause also directs district courts to 

apply the Fair Sentencing Act as if it applied at the time of the commission of the offense, not at the time of the original sentencing, suggesting that Congress did not intend to constrain district courts to considering only the original sentencing record. Thus, the “as if ” clause 

requires district courts to apply the legal changes in the Fair Sentencing Act when recalculating a movant’s Guidelines, but it does not limit

the information a district court may use to inform its decision whether 

and how much to reduce a sentence. Pp. 11–14.

(2) Consistent with this text and structure, district courts deciding First Step Act motions regularly have considered evidence of postsentencing rehabilitation and unrelated Guidelines amendments 

when raised by the parties. First Step Act movants have amassed 

prison records of over a decade. See §404(a), 132 Stat. 5222 (requiring 

the movant to have been sentenced for an offense “committed before 

August 3, 2010”). Those records are naturally of interest to judges authorized by the First Step Act to reduce prison sentences or even to 

release movants immediately. Likewise, when deciding whether to 

grant First Step Act motions and in deciding how much to reduce sentences, courts have looked to postsentencing evidence of violence or 

prison infractions as probative. Moreover, when raised by the parties, 

district courts have considered nonretroactive Guidelines amendments to help inform whether to reduce sentences at all, and if so, by

how much. Nothing express or implicit in the First Step Act suggests 

that these courts misinterpreted the Act in considering such relevant

and probative information. Pp. 14–16. 

(3) The Court therefore holds that the First Step Act allows district courts to consider intervening changes of law or fact in exercising 

their discretion to reduce a sentence pursuant to the First Step Act.

When deciding a First Step Act motion, district courts bear the standard obligation to explain their decisions and demonstrate that they

considered the parties’ nonfrivolous arguments. See Golan v. Saada, 
 

 

 

 

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596 U. S. ___, ___. The district court is not required to articulate anything more than a brief statement of reasons. See Rita v. United 

States, 551 U. S. 338, 356. 

The broad discretion that the First Step Act affords to district courts 

also counsels in favor of deferential appellate review. See Solem v. 

Helm, 463 U. S. 277, 290, n. 16. Section 404(c) of the First Step Act

confers particular discretion because the Act does not “require a court 

to reduce any sentence.” Other than legal errors in recalculating the

Guidelines to account for the Fair Sentencing Act’s changes, see Gall 

v. United States, 552 U. S. 38, 51, appellate review should not be overly 

searching. Pp. 16–18. 

991 F. 3d 279, reversed and remanded. 

SOTOMAYOR, J., delivered the opinion of the Court, in which THOMAS, 

BREYER, KAGAN, and GORSUCH, JJ., joined. KAVANAUGH, J., filed a dissenting opinion, in which ROBERTS, C. J., and ALITO and BARRETT, JJ., 

joined. 
 

 

 

_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that 

corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 20–1650 

CARLOS CONCEPCION, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[June 27, 2022] 

JUSTICE SOTOMAYOR delivered the opinion of the Court. 

There is a longstanding tradition in American law, dating 

back to the dawn of the Republic, that a judge at sentencing 

considers the whole person before him or her “as an individual.” Koon v. United States, 518 U. S. 81, 113 (1996). In 

line with this history, federal courts today generally “exercise a wide discretion in the sources and types of evidence 

used” to craft appropriate sentences. Williams v. New York, 

337 U. S. 241, 246 (1949). When a defendant appears for 

sentencing, the sentencing court considers the defendant on 

that day, not on the date of his offense or the date of his

conviction. Pepper v. United States, 562 U. S. 476, 492 

(2011). Similarly, when a defendant’s sentence is set aside 

on appeal, the district court at resentencing can (and in

many cases, must) consider the defendant’s conduct and 

changes in the Federal Sentencing Guidelines since the

original sentencing. Ibid. 

Congress enacted the First Step Act of 2018 against that

backdrop. The First Step Act authorizes district courts to

reduce the prison sentences of defendants convicted of cer-
 

2 CONCEPCION v. UNITED STATES 

Opinion of the Court 

tain offenses involving crack cocaine. The Act allows a district court to impose a reduced sentence “as if ” the revised

penalties for crack cocaine enacted in the Fair Sentencing

Act of 2010 were in effect at the time the offense was committed. The question in this case is whether a district court

adjudicating a motion under the First Step Act may consider other intervening changes of law (such as changes to

the Sentencing Guidelines) or changes of fact (such as behavior in prison) in adjudicating a First Step Act motion. 

The Court holds that they may. It is only when Congress 

or the Constitution limits the scope of information that a 

district court may consider in deciding whether, and to 

what extent, to modify a sentence, that a district court’s discretion to consider information is restrained. Nothing in

the First Step Act contains such a limitation. Because district courts are always obligated to consider nonfrivolous

arguments presented by the parties, the First Step Act requires district courts to consider intervening changes when 

parties raise them. By its terms, however, the First Step

Act does not compel courts to exercise their discretion to reduce any sentence based on those arguments.

The District Court in this case declined to consider petitioner Carlos Concepcion’s arguments that intervening

changes of law and fact supported his motion, erroneously 

believing that it did not have the discretion to do so, and the 

Court of Appeals affirmed. The Court now reverses. 

I 

A 

In 2007, Concepcion pleaded guilty to one count of distributing five or more grams of crack cocaine in violation of 

21 U. S. C. §841(a)(1) (2006 ed.). Concepcion admitted that 

he sold 13.8 grams of crack cocaine, and he was sentenced 

in 2009 to 19 years (228 months) in prison. Two features of 

his sentencing are relevant here. First, Concepcion was

sentenced under a scheme that created a 100-to-1 disparity 
Cite as: 597 U. S. ____ (2022) 3 

Opinion of the Court 

between crack-cocaine and powder-cocaine offenders. At 

the time Concepcion was sentenced, an offense involving 

five or more grams of crack cocaine resulted in a statutory

sentencing range of 5 to 40 years’ imprisonment; it required 

100 times as much powder cocaine to trigger the same penalties. Second, when Concepcion was initially sentenced, 

he qualified as a “career offender.” The career offender provision, together with other enhancements, increased Concepcion’s Guidelines range from 57 to 71 months to 262 to 

327 months. 

Both of these features of Concepcion’s sentencing have

since been altered. Just one year after Concepcion was sentenced, Congress passed the Fair Sentencing Act of 2010 to

correct the harsh disparities between crack and powder cocaine sentencing. Section 2 of that Act increased the 

amount of crack cocaine needed to trigger the 5-to-40-year

sentencing range from 5 grams to 28 grams. §2(a)(2), 124 

Stat. 2372. The Sentencing Commission then retroactively

amended the Sentencing Guidelines to lower the Guidelines

range for crack-cocaine offenses, but that amendment did 

not benefit all prisoners serving sentences handed down 

during the 100-to-1 regime. See United States Sentencing 

Commission, Guidelines Manual App. C, Amdt. 750 (Supp.

Nov. 2011) (USSG). Concepcion was not eligible for retroactive relief under that 2011 Sentencing Commission’s

amendment because he was sentenced under the career offender enhancement, but he became eligible to have his sentence reduced in 2018, when Congress passed the First Step

Act. The First Step Act authorized district courts to “impose a reduced sentence” for qualifying movants “as if sections 2 and 3 of the Fair Sentencing Act . . . were in effect 

at the time the covered offense was committed.” Pub. L. 

115–391, §404(b), 132 Stat. 5222. 

B 

Concepcion filed a pro se motion under the First Step Act 
 

 

 

4 CONCEPCION v. UNITED STATES 

Opinion of the Court 

in 2019. He argued that he was serving a sentence for a 

“covered offense” because §2 of the Fair Sentencing Act 

“modified” the statutory penalties for his conviction under

21 U. S. C. §841(a)(1). Concepcion contended that retroactive application of the Fair Sentencing Act lowered his

Guidelines range from 262 to 327 months to 188 to 235

months. The Government conceded Concepcion’s eligibility 

for relief and his calculation of the Guidelines but opposed 

the motion, emphasizing that Concepcion’s original sentence of 228 months fell within the new Guidelines range of

188 to 235 months. While recognizing Concepcion’s participation in various programs in prison, the Government detailed “troubling behaviors such as ‘[f]ighting (12/19/2017); 

Interfering with Staff (11/15/2012); and Possession of a 

Weapon’” in Concepcion’s prison records that, in the Government’s view, counseled against a sentence reduction. 

Electronic Case Filing in No. 1:07–cr–10197 (Mass.) (ECF), 

Doc. 78, pp. 4–5, n. 4.

In his reply brief, represented by counsel, Concepcion

made two primary arguments in support of a reduced sentence. First, he argued that he would no longer be considered a career offender under the amended Guidelines, because one of his prior convictions had been vacated and his 

remaining convictions would no longer be considered crimes

of violence that trigger the enhancement.1 Without the career offender enhancement, Concepcion argued that his revised Guidelines range should be 57 to 71 months. Second, 

Concepcion pointed to postsentencing evidence of rehabilitation. Concepcion highlighted his successfully completed

drug and vocational programming, as well as his stable 

—————— 1 In 2015, this Court held that the Armed Career Criminal Act’s residual clause was unconstitutional, see Johnson v. United States, 576 U. S. 

591, prompting the Sentencing Commission to amend the identical 

clause of the career offender Guideline, see USSG App. C, Amdt. 798 

(Supp. Aug. 2016). The Sentencing Commission did not apply the 

amendment retroactively. 
 

Cite as: 597 U. S. ____ (2022) 5 

Opinion of the Court 

reentry plan. He also submitted a letter from a Bureau of 

Prisons chaplain who attested to Concepcion’s spiritual

growth while incarcerated. 

The District Court denied Concepcion’s motion. It 

adopted the Government’s argument that if the Court “considered only the changes in law that the Fair Sentencing

Act enacted, [Concepcion’s] sentence would be the same.” 

App. to Pet. for Cert. 71a. The court declined to consider 

that Concepcion would no longer qualify as a career offender on the ground that the First Step Act “does not authorize such relief.” Id., at 72a. In doing so, the District 

Court adopted the reasoning of the Fifth Circuit, which understood the First Step Act to require a district court to 

“‘plac[e] 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.’” Id., at 74a 

(quoting United States v. Hegwood, 934 F. 3d 414, 418 (CA5 

2019)). The District Court did not address Concepcion’s evidence of rehabilitation or the Government’s countervailing 

evidence of Concepcion’s disciplinary record. 

The Court of Appeals affirmed in a divided opinion. The 

court interpreted the First Step Act as requiring a “two-step

inquiry.” 991 F. 3d 279, 289 (CA1 2021). At the first step

of that inquiry, a district court decides whether a movant 

should be resentenced at all, considering only the changes

wrought by the Fair Sentencing Act. Ibid. If the district 

court answers in the affirmative at the first step, it may

then, in its discretion, consider new factual or legal developments in determining how to resentence the movant. Id., 

at 289–290. Judge Barron dissented, rejecting the panel’s 

bifurcated approach. In his view, the First Step Act requires only one step of analysis, at which district courts 

have “substantial discretion” to consider evidence of rehabilitation and Guidelines changes. Id., at 293, 309–310. 

The Court of Appeals opinion added to the disagreement 

among the Circuits as to whether a district court deciding a 
 

 

6 CONCEPCION v. UNITED STATES 

Opinion of the Court 

First Step Act motion must, may, or may not consider intervening changes of law or fact.2 This Court granted certiorari to resolve this disagreement. 594 U. S. ___ (2021). 

II 

“From the beginning of the Republic, federal judges were

entrusted with wide sentencing discretion.” K. Stith & J. 

Cabranes, Fear of Judging: Sentencing Guidelines in the

Federal Courts 9 (1998) (Stith & Cabranes). Federal courts 

historically have exercised this broad discretion to consider

all relevant information at an initial sentencing hearing,

consistent with their responsibility to sentence the whole 

person before them. That discretion also carries forward to 

later proceedings that may modify an original sentence.

Such discretion is bounded only when Congress or the Constitution expressly limits the type of information a district 

court may consider in modifying a sentence. 

A 

There is a “long” and “durable” tradition that sentencing 

judges “enjo[y] discretion in the sort of information they

may consider” at an initial sentencing proceeding. Dean v. 

United States, 581 U. S. 62, 66 (2017).3 This history dates 

—————— 2Compare United States v. Collington, 995 F. 3d 347, 355, 360 (CA4

2021) (must consider changed law and facts); United States v. Easter, 975 

F. 3d 318, 325–327 (CA3 2020) (same); United States v. Brown, 974 F. 3d 

1137, 1144–1145 (CA10 2020) (must consider intervening Circuit precedent); United States v. White, 984 F. 3d 76, 93 (CADC 2020) (must consider changed facts), with United States v. Maxwell, 991 F. 3d 685, 689 

(CA6 2021) (may consider); United States v. Moore, 975 F. 3d 84, 92, n. 

36 (CA2 2020) (same); United States v. Harris, 960 F. 3d 1103, 1106 (CA8 

2020) (same); United States v. Shaw, 957 F. 3d 734, 741–742 (CA7 2020) 

(same), with United States v. Denson, 963 F. 3d 1080, 1089 (CA11 2020) 

(may not consider); United States v. Kelley, 962 F. 3d 470, 475 (CA9 2020) 

(same); United States v. Hegwood, 934 F. 3d 414, 418–419 (CA5 2019) 

(same). 3The dissent invokes another background principle: the importance of 
 

 

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Opinion of the Court 

back to before the founding: “[B]oth before and since the 

American colonies became a nation, courts in this country 

and in England practiced a policy under which a sentencing 

judge could exercise a wide discretion in the sources and

types of evidence used to assist him in determining the kind 

and extent of punishment to be imposed within limits fixed 

by law.” Williams, 337 U. S., at 246. Early state and English courts broadly recognized this discretion. See, e.g., Rex 

v. Bunts, 2 T. R. 683, 100 Eng. Rep. 368 (K. B. 1788) 

(“[W]hen any defendant shall be brought up for sentence on

any indictment” the court shall hear evidence from the prosecution and the defense in determining an appropriate sentence); State v. Summers, 98 N. C. 702, 705, 4 S. E. 120, 121 

(1887) (“It was competent for [the trial judge] to hear such 

evidence as he might deem necessary and proper to aid his 

judgment and discretion in determining the punishment to

be imposed”); State v. Reeder, 79 S. C. 139, 141, 60 S. E. 434, 

435 (1908) (rejecting claim that trial court erred in considering aggravating evidence at sentencing, and explaining 

that “[t]he circuit judge merely permitted himself to be informed as to the character of the accused and the circumstances of the crime, so that he might be able to exercise his

discretion intelligently and pronounce a just sentence”).

That unbroken tradition characterizes federal sentencing 

history as well. “Federal judges exercising sentencing discretion have always considered a wide variety of aggravating and mitigating factors relating to the circumstances of 

both the offense and the offender.” Stith & Cabranes 14. 

Indeed, “[i]t has been uniform and constant in the federal 

judicial tradition for the sentencing judge to consider every 

convicted person as an individual and every case as a 

—————— 

“finality of criminal judgments.” Post, at 2 (opinion of KAVANAUGH, J.).

No one doubts the importance of finality. Here, however, the Court interprets a statute whose very purpose is to reopen final judgments. 
 

8 CONCEPCION v. UNITED STATES 

Opinion of the Court 

unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to

ensue.” Koon, 518 U. S., at 113; see, e.g., United States v. 

Randall, 27 F. Cas. 696, 708 (No. 16,118) (DC Ore. 1869) 

(considering the defendant’s “former good reputation” in

imposing sentence); United States v. Nye, 27 F. Cas. 210, 

211 (No. 15,906) (CC Mass. 1855) (considering “palliating 

circumstance[s],” including that the defendants were “sober, and fit for duty,” in imposing sentence); Lyon’s Case, 15 

F. Cas. 1183, 1185 (No. 8,646) (CC Vt. 1798) (considering 

the “reduced condition of [the defendant’s] estate” in imposing sentence). Accordingly, a federal judge in deciding to

impose a sentence “may appropriately conduct an inquiry 

broad in scope, largely unlimited either as to the kind of

information he may consider, or the source from which it 

may come.” United States v. Tucker, 404 U. S. 443, 446 

(1972). 

B 

The discretion federal judges hold at initial sentencings

also characterizes sentencing modification hearings. Relying on Williams and Koon, the Court in Pepper found it 

“clear that when a defendant’s sentence has been set aside 

on appeal and his case remanded for resentencing, a district 

court may consider evidence of a defendant’s rehabilitation 

since his prior sentencing.” 562 U. S., at 490. Pepper 

reached that conclusion in light of the “federal sentencing 

framework” that allows sentencing judges to consider the 

“‘fullest information possible concerning the defendant’s 

life and characteristics.’” Id., at 488, 490. 

Accordingly, federal courts resentencing individuals 

whose sentences were vacated on appeal regularly consider 

evidence of rehabilitation developed after the initial sentencing. See, e.g., United States v. Rodriguez, 2020 WL 

2521551, *5 (SDNY, May 18, 2020) (considering the mo-
Cite as: 597 U. S. ____ (2022) 9 

Opinion of the Court 

vant’s “exemplary conduct during a lengthy period of incarceration”); United States v. Raifsnider, 2020 WL 1503527, 

*3 (D Kan., Mar. 30, 2020) (considering that the movant 

“has completed his GED, taken hundreds of hours of programming offered by the Bureau of Prisons, and is taking 

college classes”). Similarly, district courts in resentencing

proceedings frequently consider evidence of violence and 

rule breaking in prison. See, e.g., United States v. Riley, 

785 Fed. Appx. 282, 285 (CA6 2019) (considering a “‘series 

of disciplinary violations while in the Bureau of Prisons’”); 

United States v. Diaz, 486 Fed. Appx. 979, 980 (CA3 2012) 

(considering “infractions while in prison, e.g., possession of 

marijuana”).

Where district courts must calculate new Guidelines 

ranges as part of resentencing proceedings, courts have also

considered unrelated Guidelines changes in their discretion. See, e.g., United States v. Frates, 896 F. 3d 93, 101– 

102 (CA1 2018) (distinguishing between recalculating a 

Guidelines range based on nonretroactive intervening 

changes of law and considering those changes as a matter 

of “discretion to select an appropriate sentence”); United 

States v. Taylor, 648 F. 3d 417, 425 (CA6 2011) (“[T]he district court can consider subsequent amendments to the 

Guidelines for purposes of fashioning an appropriate sentence [at resentencing]”); United States v. Gilmore, 599 

F. 3d 160, 166–167 (CA2 2010) (considering subsequently

updated Guidelines as “evidence of society’s judgment of the 

seriousness of [the movant’s] offense”). In many cases, a

district court is prohibited from recalculating a Guidelines 

range in light of nonretroactive Guidelines amendments, 

but the court may find those amendments to be germane

when deciding whether to modify a sentence at all, and if 

so, to what extent. 

C 

The only limitations on a court’s discretion to consider 
 

 

10 CONCEPCION v. UNITED STATES 

Opinion of the Court 

any relevant materials at an initial sentencing or in modifying that sentence are those set forth by Congress in a statute or by the Constitution. See Pepper, 562 U. S., at 489, 

n. 8 (“Of course, sentencing courts’ discretion . . . is subject

to constitutional constraints”); Mistretta v. United States, 

488 U. S. 361, 364 (1989) (“[T]he scope of judicial discretion 

with respect to a sentence is subject to congressional control”).

Congress is not shy about placing such limits where it

deems them appropriate. At an initial sentencing, Congress has provided generally that “[n]o limitation shall be

placed on the information concerning the background, character, and conduct of a person convicted of an offense” when

deciding what sentence to impose. 18 U. S. C. §3661. Congress has, however, expressly prohibited a district court in

crafting an initial sentence from considering a defendant’s 

need for rehabilitation in support of a prison sentence. See 

§3582(a); Tapia v. United States, 564 U. S. 319, 328 (2011). 

In other aspects of sentencing, Congress also has expressly limited district courts to considering only certain 

factors. For example, in determining whether to include a 

term of supervised release, and the length of any such term,

Congress has expressly precluded district courts from considering the need for retribution. See §3583(c); id., at 326. 

Congress has further imposed express statutory limitations on one type of sentencing modification proceeding. 

Section 3582(c)(2) provides that 

“in the case of a defendant who has been sentenced to 

a term of imprisonment based on a sentencing range 

that has subsequently been lowered by the Sentencing 

Commission . . . the court may reduce the term of imprisonment, after considering the factors set forth in

section 3553(a) to the extent that they are applicable, 

if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” 
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Opinion of the Court 

For those proceedings, Congress expressly cabined district 

courts’ discretion by requiring courts to abide by the Sentencing Commission’s policy statements. See also 

§3582(c)(1)(A) (permitting district courts to grant compassionate release in certain circumstances if “such a reduction 

is consistent with applicable policy statements issued by

the Sentencing Commission”).4 

III 

A 

Congress in the First Step Act simply did not contravene

this well-established sentencing practice. Nothing in the 

text and structure of the First Step Act expressly, or even 

implicitly, overcomes the established tradition of district

courts’ sentencing discretion. 

The first section of the First Step Act, §404(a), sets out 

who is eligible for relief: 

“In this section, the term ‘covered offense’ means a 

violation of a Federal criminal statute, the statutory 

penalties for which were modified by section 2 or 3 of 

the Fair Sentencing Act of 2010 . . . that was committed 

before August 3, 2010.” 132 Stat. 5222. 

The second section, §404(b), describes what relief is available for the parties who meet §404(a)’s criteria: 

“A court that imposed a sentence for a covered offense may, on motion of the defendant, the Director of 

the Bureau of Prisons, the attorney for the Government, or the court, impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 . . . 

—————— 4The dissent brushes aside this venerable tradition of discretion by 

emphasizing the differences between initial sentencings and sentence

modification proceedings. See post, at 2–3. Of course there are differences between the two, but the feature common to both is that only Congress and the Constitution limit the historic scope of district courts’ discretion. 
 

12 CONCEPCION v. UNITED STATES 

Opinion of the Court 

were in effect at the time the covered offense was committed.” 132 Stat. 5222. 

The third section, §404(c), places two explicit limitations

on available relief: 

“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 . . . 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.” 132 Stat. 5222. 

The text of the First Step Act does not so much as hint

that district courts are prohibited from considering evidence of rehabilitation, disciplinary infractions, or unrelated Guidelines changes. The only two limitations on district courts’ discretion appear in §404(c): A district court 

may not consider a First Step Act motion if the movant’s 

sentence was already reduced under the Fair Sentencing

Act or if the court considered and rejected a motion under

the First Step Act. Neither of those limitations applies

here. By its terms, §404(c) does not prohibit district courts

from considering any arguments in favor of, or against, sentence modification. In fact, §404(c) only underscores that a

district court is not required to modify a sentence for any 

reason. “Drawing meaning from silence is particularly inappropriate” in the sentencing context, “for Congress has

shown that it knows how to direct sentencing practices in

express terms.” Kimbrough v. United States, 552 U. S. 85, 
 

Cite as: 597 U. S. ____ (2022) 13 

Opinion of the Court 

103 (2007).5 

Nor did Congress hide any limitations on district courts’ 

discretion outside of §404(c). Section 404(b) does not erect 

any additional such limitations. The term “as if ” simply 

enacts the First Step Act’s central goal: to make retroactive 

the changes in the Fair Sentencing Act. That language is

necessary to overcome 1 U. S. C. §109, which creates a presumption that Congress does not repeal federal criminal

penalties unless it says so “expressly.” To defeat the presumption established by this statute, Congress needed to 

make clear that the Fair Sentencing Act applied retroactively. Notably, the “as if ” clause requires a district court 

to apply the Fair Sentencing Act as if it applied at the time 

of the commission of the offense, not at the time of the original sentencing. Had Congress intended to constrain district courts to consider only the record as it existed at the

time of the original sentencing, Congress would have written the “as if ” clause to refer to that sentencing, not the 

commission of the offense. Thus, the language Congress 

enacted in the First Step Act specifically requires district

courts to apply the legal changes in the Fair Sentencing Act 

when calculating the Guidelines if they chose to modify a 

—————— 5The dissent demands that Congress expressly specify the scope of information that a district court can consider in a sentencing modification

proceeding. See post, at 3. This gets it backward. The consistent historic 

norm is that a district court can consider any information in crafting a 

new or modified sentence, subject to congressional or constitutional limits. See supra, at 6–11. Moreover, the dissent’s reliance on 

§3582(c)(1)(B), post, at 3, misses the point. Section 3582(c)(1)(B) is 

simply a gateway provision that refers to whichever statute “expressly 

permit[s]” the sentencing modification. Ibid. It does not impose any substantive or procedural limits on a district court’s discretion; for those details, it refers to the statute authorizing the sentence modification. See 

United States v. Triestman, 178 F. 3d 624, 629 (CA2 1999) (“ ‘[S]ubsection 

(c)(1)(B) simply notes the authority to modify a sentence if modification 

is permitted by statute’ ” (quoting S. Rep. No. 98–225 (1984)). 
 

 

 

14 CONCEPCION v. UNITED STATES 

Opinion of the Court 

sentence.6 The “as if ” clause does not, however, limit the 

information a district court may use to inform its decision 

whether and how much to reduce a sentence. 

B 

Consistent with this text and structure, district courts deciding First Step Act motions regularly have considered evidence of postsentencing rehabilitation and unrelated 

Guidelines amendments when raised by the parties. By

definition, First Step Act movants have amassed prison records of over a decade. See §404(a), 132 Stat. 5222 (requiring 

the movant to have been sentenced for an offense “committed before August 3, 2010”). Those records are naturally of

interest to judges authorized by the First Step Act to reduce

prison sentences or even to release movants immediately. 

See, e.g., United States v. Crawford, 483 F. Supp. 3d 378, 

381 (ND W. Va. 2020) (considering that the movant earned 

his GED in prison, obtained a carpentry certification 

through a local community college, and was sanctioned for

only “two minor write-ups” in the nine years preceding his 

motion); United States v. Henderson, 399 F. Supp. 3d 648,

656 (WD La. 2019) (considering that the movant “ha[d] not 

seen his children in eight years,” that he had “possible employment opportunities . . . upon his release,” and that he

“ha[d] received only two incident reports” while incarcerated); United States v. Mitchell, 2019 WL 2647571, *8 (D 

DC, June 27, 2019) (considering that the movant “incurred 

—————— 6A district court cannot, however, recalculate a movant’s benchmark 

Guidelines range in any way other than to reflect the retroactive application of the Fair Sentencing Act. Rather, the First Step Act directs district courts to calculate the Guidelines range as if the Fair Sentencing 

Act’s amendments had been in place at the time of the offense. That 

Guidelines range “anchor[s]” the sentencing proceeding. Peugh v. United 

States, 569 U. S. 530, 541 (2013). The district court may then consider 

postsentencing conduct or nonretroactive changes in selecting or rejecting an appropriate sentence, with the properly calculated Guidelines 

range as the benchmark. 
 

Cite as: 597 U. S. ____ (2022) 15 

Opinion of the Court 

no disciplinary infractions over his last fourteen years in

prison” and that the movant would no longer be considered 

a career offender based on an intervening change of law). 

Likewise, when deciding whether to grant First Step Act

motions and in deciding how much to reduce sentences, 

courts have looked to postsentencing evidence of violence or 

prison infractions as probative. See, e.g., United States v. 

Rose, 841 Fed. Appx. 328, 329 (CA2 2021) (affirming partial 

denial of motion where the district court relied on the movant’s “lengthy history of prison disciplinary infractions, 

which included many recent violent infractions”); United 

States v. Barlow, 544 F. Supp. 3d 491, 505 (NJ 2021) (considering, in denying motion, that the movant was disciplined in prison seven times, including “three times for possessing a dangerous weapon,” “once for possessing 

marijuana,” and “once for fighting”); United States v. 

Slutzkin, 2019 WL 5696122, *8 (Conn., Nov. 4, 2019) (considering in denying motion the movant’s “behavior once incarcerated [as] perhaps the greatest concern to the Court,”

in light of “25 disciplinary citations while in state incarceration and six more in federal prison”).7 

Moreover, when raised by the parties, district courts have

considered nonretroactive Guidelines amendments to help 

inform whether to reduce sentences at all, and if so, by how 

much. See, e.g., United States v. Coachman, 2020 WL 

6939890, *3 (ND Fla., June 22, 2020) (considering that the 

movant “would not qualify for career offender status” at the 

time of his sentence modification hearing); United States v. 

—————— 7 In the dissent’s view, each of these District Courts erred in considering evidence outside of the original sentencing record. See post, at 1–2. 

Instead, the dissent’s interpretation would require a district court adjudicating a First Step Act motion to decide whether, and by how much, to 

reduce a sentence based only on the original sentencing record. But 

again, the text of the First Step Act does not require that counterfactual 

procedure. 
 

16 CONCEPCION v. UNITED STATES 

Opinion of the Court 

Frederick, 2020 WL 555302, *4 (WD Pa., Feb. 4, 2020) (considering “the fact that [the movant] would not qualify as a

career offender under the current version of the career offender provisions . . . as a factor favoring the exercise of the

discretionary relief that may be awarded”); United States v. 

Newton, 2019 WL 1007100, *5 (WD Va., Mar. 1, 2019) (considering that the movant, “if he were sentenced today,”

would no longer qualify for career offender status). Nothing 

express or implicit in the First Step Act suggests that these

courts misinterpreted the Act in considering such relevant

and probative information.8 

C 

The Court therefore holds that the First Step Act allows 

district courts to consider intervening changes of law or fact 

in exercising their discretion to reduce a sentence pursuant 

to the First Step Act.

It follows, under the Court’s sentencing jurisprudence,

that when deciding a First Step Act motion, district courts

bear the standard obligation to explain their decisions and 

demonstrate that they considered the parties’ arguments. 

—————— 8The dissent contends that permitting a district court to consider nonretroactive Guidelines amendments will create a disparity between First

Step Act-eligible movants and other defendants. See post, at 3–4. To 

reiterate, the First Step Act does not require a district court to recalculate a movant’s Guidelines in any respect other than applying the Fair

Sentencing Act. See n. 6, supra. In any event, it is a feature of our sentencing law that different judges may respond differently to the same 

sentencing arguments. Cf. Kimbrough v. United States, 552 U. S. 85, 110 

(2007) (permitting, but not requiring, district courts to consider certain 

policy arguments at sentencing). Moreover, disparities are always unavoidable when some, but not all, defendants are permitted to move for 

modifications of an original sentence. Even the dissent’s interpretation

would create disparities between First Step Act movants and defendants

eligible for a sentence reduction under the 2011 retroactive crack-cocaine

Guidelines, see supra, at 3, because the Commission permitted the latter

group to argue postsentencing developments, see USSG §1B1.10, comment, n. 1(B)(iii). 
 

 

 

 

Cite as: 597 U. S. ____ (2022) 17 

Opinion of the Court 

It is well established that a district court must generally 

consider the parties’ nonfrivolous arguments before it. See 

Golan v. Saada, 596 U. S. ___, ___ (2022) (slip op., at 11).

Of course, a district court is not required to be persuaded 

by every argument parties make, and it may, in its discretion, dismiss arguments that it does not find compelling 

without a detailed explanation. Nor is a district court required to articulate anything more than a brief statement 

of reasons. See Rita v. United States, 551 U. S. 338, 356 

(2007). Nothing in the First Step Act contravenes those 

background principles.

When it comes to that reasoned explanation, the First

Step Act “‘leaves much . . . to the judge’s own professional 

judgment.’” Chavez-Meza v. United States, 585 U. S. ___, 

___ (2018) (slip op., at 3) (quoting Rita, 551 U. S., at 356).

The First Step Act does not “require courts to expressly rebut each argument” made by the parties. United States v. 

Maxwell, 991 F. 3d 685, 694 (CA6 2021). In excising its discretion, the court is free to agree or disagree with any of the

policy arguments raised before it. Cf. Kimbrough, 552 

U. S., at 111. All that the First Step Act requires is that a 

district court make clear that it “reasoned through [the parties’] arguments.” 991 F. 3d, at 693. 

The broad discretion that the First Step Act affords to 

district courts also counsels in favor of deferential appellate 

review. As a general matter, “it is not the role of an appellate court to substitute its judgment for that of the sentencing court as to the appropriateness of a particular sentence.” Solem v. Helm, 463 U. S. 277, 290, n. 16 (1983).

Section 404(c) of the First Step Act confers particular discretion, clarifying that the Act does not “require a court to

reduce any sentence.” Other than legal errors in recalculating the Guidelines to account for the Fair Sentencing 

Act’s changes, see Gall v. United States, 552 U. S. 38, 51 

(2007), appellate review should not be overly searching.

Put simply, the First Step Act does not require a district 
 

 

18 CONCEPCION v. UNITED STATES 

Opinion of the Court 

court to accept a movant’s argument that evidence of rehabilitation or other changes in law counsel in favor of a sentence reduction, or the Government’s view that evidence of 

violent behavior in prison counsels against providing relief. 

Nor does the First Step Act require a district court to make 

a point-by-point rebuttal of the parties’ arguments. All that 

is required is for a district court to demonstrate that it has

considered the arguments before it. 

* * * 

The First Step Act does not require a district court to be

persuaded by the nonfrivolous arguments raised by the parties before it, but it does require the court to consider them.

The contrary judgment of the Court of Appeals for the First

Circuit is reversed, and the case is remanded for further 

proceedings consistent with this opinion. 

It is so ordered. 
 

 

_________________ 

_________________ 

Cite as: 597 U. S. ____ (2022) 1 

KAVANAUGH, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 20–1650 

CARLOS CONCEPCION, PETITIONER v. 

UNITED STATES 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIRST CIRCUIT 

[June 27, 2022] 

JUSTICE KAVANAUGH, with whom THE CHIEF JUSTICE, 

JUSTICE ALITO, and JUSTICE BARRETT join, dissenting. 

Beginning in the mid-1980s, Congress prescribed higher

criminal sentences for crack-cocaine offenses than for powder-cocaine offenses involving the same amounts of cocaine.

In 2010, Congress enacted the Fair Sentencing Act to narrow that crack/powder disparity by lowering the sentencing 

ranges for certain crack-cocaine offenses. But the Act lowered those crack-cocaine sentencing ranges only prospectively—that is, for crack-cocaine offenders who were sentenced on or after the Act’s effective date of August 3, 2010. 

The First Step Act of 2018 changed that. It provided that

the 2010 Fair Sentencing Act’s lower crack-cocaine sentencing ranges would also apply retroactively to offenders who 

were sentenced before August 3, 2010. But how to implement that change? Congress did not mandate a specific 

across-the-board reduction to all pre-August 3, 2010, crackcocaine sentences. Instead, the First Step Act authorized 

district courts, on motion, to “impose a reduced sentence as

if ” the lower sentencing ranges for crack-cocaine offenses 

“were in effect at the time the covered offense was committed.” §404(b), 132 Stat. 5222.

The straightforward question in this case is whether district courts in First Step Act sentence-modification proceedings may reduce sentences based not only on the changes to 
 

2 CONCEPCION v. UNITED STATES 

KAVANAUGH, J., dissenting 

the crack-cocaine sentencing ranges, but also on other unrelated legal or factual changes that have occurred since the 

original sentencing. For many crack-cocaine offenders who

were sentenced before August 3, 2010, the most significant 

such change is a non-retroactive 2016 Sentencing Guidelines amendment that substantially altered the career-offender guideline and would significantly lower many of 

those offenders’ Guidelines ranges. See United States Sentencing Commission, Guidelines Manual, App. C, Amdt. 

798 (Nov. 2021).

The Court today concludes that district courts in First 

Step Act sentence-modification proceedings may reduce

sentences based not only on the changes to the crack-cocaine sentencing ranges, but also on other unrelated legal

or factual changes that have occurred since the original sentencing.

I respectfully disagree. The text of the First Step Act authorizes district courts to reduce sentences based only on 

changes to the crack-cocaine sentencing ranges, not based 

on other unrelated changes that have occurred since the 

original sentencing. In other words, the First Step Act directs district courts to answer one fundamental question:

What would the offender’s sentence have been if the lower 

crack-cocaine sentencing ranges had been in effect back at 

the time of the original sentencing? 

The Court sidesteps the text of the Act and equates sentence-modification proceedings with plenary sentencing

proceedings. But as this Court has recognized, there are

“fundamental differences between sentencing and sentence-modification proceedings.” Dillon v. United States, 

560 U. S. 817, 830 (2010). The finality of criminal judgments is essential to the operation of the criminal justice 

system. See Calderon v. Thompson, 523 U. S. 538, 555–556 

(1998); United States v. Frady, 456 U. S. 152, 166 (1982). 

Once a federal sentence becomes final, a court may alter 

that sentence “only in very limited circumstances.” Pepper 
Cite as: 597 U. S. ____ (2022) 3 

KAVANAUGH, J., dissenting 

v. United States, 562 U. S. 476, 501–502, n. 14 (2011). As 

relevant here, Congress has made clear that courts may reduce “an imposed term of imprisonment to the extent” such

a reduction is “expressly permitted by statute.” 18 U. S. C. 

§3582(c)(1)(B) (emphasis added).

The First Step Act states that the district court “may . . .

impose a reduced sentence as if ” the lower sentencing

ranges for crack-cocaine offenses “were in effect at the time

the covered offense was committed.” §404(b), 132 Stat.

5222. By its terms, the First Step Act authorizes consideration only of the lower sentencing ranges for crack-cocaine 

offenses. The First Step Act does not authorize consideration of unrelated intervening legal or factual changes. Indeed, the relevant provision of the First Step Act does not 

mention changes other than the lower sentencing ranges for 

crack-cocaine offenses. Therefore, the First Step Act does 

not “expressly permi[t]” reductions based on those unrelated intervening changes. 18 U. S. C. §3582(c)(1)(B).

In support of its conclusion that district courts in First 

Step Act sentence-modification proceedings may consider 

other unrelated changes, the Court cites Pepper and similar 

decisions. See ante, at 8–9. But those decisions involved 

resentencings, not sentence-modification proceedings. See 

Pepper, 562 U. S., at 486–487. Those cases therefore do not 

support the Court’s approach here. To reiterate, for sentence-modification proceedings, Congress has declared that

courts may reduce a sentence only as “expressly permitted

by statute.” 18 U. S. C. §3582(c)(1)(B). And the First Step

Act does not authorize consideration of unrelated intervening legal or factual changes since the original sentencing. 

The Court’s disregard of the text of the First Step Act and

§3582(c)(1)(B) will create significant and inexplicable sentencing inequities. Consider the following. First Step Act

sentence-modification proceedings are available only for offenders who were sentenced before August 3, 2010. So a 
 

 

4 CONCEPCION v. UNITED STATES 

KAVANAUGH, J., dissenting 

crack-cocaine offender such as Concepcion who was sentenced before August 3, 2010, may now obtain the benefit

of the non-retroactive 2016 change to the career-offender 

guideline. But a crack-cocaine offender who was sentenced 

from August 3, 2010, to July 31, 2016, will not be able to

obtain the benefit of the non-retroactive 2016 change to the 

career-offender guideline. What sense does that make? 

That anomalous outcome will amount to a “haphazard

windfall” for crack-cocaine offenders sentenced before August 3, 2010. United States v. Lancaster, 997 F. 3d 171, 180 

(CA4 2021) (Wilkinson, J., concurring in judgment). 

Still more inequities will ensue because the Court affords

district courts blanket discretion to choose between two 

vastly different approaches to First Step Act proceedings.

To be sure, the Court properly notes that district courts

must begin a First Step Act proceeding by calculating the 

new Guidelines range based solely on the changes to the 

crack-cocaine sentencing ranges. See ante, at 14, n. 6. So 

far, so good. But district courts then have free rein either 

to take into account—or to completely disregard—other intervening changes since the original sentencing. 

Needless to say, different district courts will choose different approaches. The Court’s decision will therefore produce massive inequities in how the First Step Act is implemented on the ground. Those inequities further illustrate

why today’s decision is wrong as a matter of statutory interpretation: Congress enacted the First Step Act to provide a targeted retroactive reduction in crack-cocaine sentencing ranges, not to unleash a sentencing free-for-all in 

the lower courts. 

The Court’s disregard of the text of the First Step Act is

especially audacious because the Act was a heavily negotiated and vigorously debated piece of legislation. The Act 

reflects a compromise among competing interests. Not for 

the first time in a sentencing case, the Court’s decision today unravels the legislative compromise reflected in the 
 

Cite as: 597 U. S. ____ (2022) 5 

KAVANAUGH, J., dissenting 

statutory text. The Court in effect green-lights district

courts, if they wish, to make the 2016 amendment to the 

career-offender guideline retroactive in First Step Act proceedings—even though neither Congress nor the Sentencing Commission has made that amendment retroactive. 

Perhaps the Court’s decision represents better sentencing

policy. Perhaps not. But under the Constitution’s separation of powers, this Court may not simply rewrite the First 

Step Act as the Court thinks best. 

In sum, I would conclude that the First Step Act authorizes district courts to reduce a sentence based on changes to 

the crack-cocaine sentencing ranges, but not based on other 

unrelated legal or factual changes since the original sentencing. The Court holds otherwise. Therefore, I respectfully dissent.