### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1754
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

R ASHOD B ETHANY , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Northern District of Il linois, Eastern Division. No. 1:06-cr-00346-1 — Harry D. Leinenweber
, Judge

.

____________________
A RGUED J UNE 1, 2020

— D ECIDED S EPTEMBER 15, 2020

____________________

Before R IPPLE , W OOD , and S CUDDER , Circuit Judges

. R IPPLE , Circuit Judge . Rashod Bethany participated in a conspiracy to distribute crack cocaine in Chicago. He was sentenced originally in 2013, but that sentence was vacated, and he was resentenced in 2019 after the enactment of the First Step Act of 2018. He now appeals from that sentence. He submits that, in imposing the 2019 sentence, the district court should have applied to him two sections of the First Step Act, as well as three retroactive amendments to the Sen-2 No. 19-1754

tencing Guidelines. We hold that Mr. Bethany is entitled to the benefit of § 401 of the First Step Act, but the record leaves us in doubt as to whet her he would have received thesame sentence if he had the benefit of that provision. Accordingly, we order a limited remand to the district court to ascertain whether the district court is inclined to impose a different sentence in light of our decision today. See United States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).

I

BACKGROUND

A.In 2008, Mr. Bethany was charged by a second superseding indictment with one count of conspiracy to distribute and to possess with intent to di stribute 50 grams or more of a substance containing cocaine ba se in the form of crack cocaine, in violation of 21 U.S.C. §§ 841 and 846, and three counts of distributing 50 grams or more of cocaine base in the form of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). In 2009, Mr. Bethany pleaded guilty to the conspiracy count. At the time, a conviction involving 50 grams or more of crack cocaine triggered a ten-year mandatory minimum and a maximum of life imprisonment. Prior to the plea, the Government filed an informatio n under 21 U.S.C. § 851, notifying the court of two prior convictions for felony drug offenses. It agreed to rely on on ly one of the prior convictions, which elevated the statutory range to twenty years’ to life imprisonment

. At the plea colloquy, Mr. Bethany admitted guilt but did not admit the amount of cocaine or the fact that it was crack cocaine. Subseq uently, Mr. Bethany moved toNo. 19-1754 3

withdraw his guilty plea, but the district court denied his motion. After Mr. Bethany’s plea but before sentencing, Congress enacted the Fair Sentencing Act of 2010, Pub. L. 111-220, 124Stat. 2372. Among other things, the Fair Sentencing Act reduced statutory penalties for crack cocaine offenses. When Mr. Bethany pleaded guilty, an offense involving 50 gramsor more of cocaine triggered a twenty-year mandatory minimum. The Fair Sentencing Act raised that bar to 280 grams.

1.In early 2011, the Probation Office prepared a presentence investigation report (“PSR”), using the 2010 version of the United States Sentencing Guidelines, which would be in effect at the time of Mr. Beth any’s sentencing, scheduled for June 2011. 1 It employed a base offense level of 36 because,

1 The calculations in the PSR were as follows:

PSR Guidelines Calculations

Rationale Level Base Offense Over 7 kg of crack cocaine 36

Enhancements Use of violence +2 Criminal conduct engaged in as a livelihood +2 Organizer/leader in a criminal activity +4 Obstruction of justice +2 Reduction Acceptance of responsibility -2

Total 43

(continued ... )4 No. 19-1754

according to the PSR, Mr. Bethany’s offense had involvedover 7 kilograms of cocaine base. The Government maintained that Mr. Bethany had trafficked more than 8.4 kilograms of cocaine and thus shou ld have a base offense levelof 38. Mr. Bethany maintained that he could be found responsible for only 160 grams of cocaine, the amount involved in the controlled drug transactions for which he was apprehended. In his view, beca use he had been charged only with an offense involving “50 grams or more” of cocaine, the court could not sentence him based on a higher quantity. Mr. Bethany based his argument on the issue then before the Supreme Court in United States v. Alleyne , 457 F. App’x 348 (4th Cir. 2011), cert. granted , 568 U.S. 936 (2012). After Mr. Bethany’s sentencing, the Supreme Court held that any fact that increases the mandatory minimum sentence must be submitted to a jury. Alleyne v. United States , 570 U.S. 99, 103 (2013).

2. In March 2013, after a three-day sentencing hearing, the court found that Mr. Bethany pl ayed a leadership role in a drug dealing operation, including controlling two “stash houses.” 2 Based on the evidence presented, it determined

( ... continued)R.324 at 11–13. The mathematical calculations add up to 44 levels; however, because 43 is the maximum total offense level, the PSR concluded that the total offense level was 43.

2 Section 2D1.1(b)(12) of the United States Sentencing Guidelines enhances a defendant’s base offense level by two levels “[i]f the defendant maintained a premises for the purpos e of manufacturing or distributing (continued ... )No. 19-1754 5

that the offense involved at least 280 grams of cocaine. The court then calculated the guidelines range, using the 2012 Guidelines then in effect. It began with a base offense level of 32, corresponding to the 280-gram amount, and added 4levels for Mr. Bethany’s role as the leader of a criminal activity. It further added 2 levels each for use of violence, engaging in criminal conduct as a liv elihood, obstruction of justice, and maintaining the “stash ho uses.” After a 2-level reduction for acceptance of responsibility, the total offense level was 42, which, paired with a crim inal history category of IV,resulted in a guidelines range of 360 months’ to life imprisonment. The district court ultimately imposed a below-guidelines sentence of 300 months’ imprisonment, noting that the “stash house” enhancement was not in the Guidelines at the time Mr. Bethany committed the offense and that there was a sentenci ng disparity between powder and crack cocaine.

3. Mr. Bethany appealed his conviction and sentence to this
court. United States v. Bethany , 569 F. App’x 447 (7th Cir. 2014) (“ Bethany I ”). He contended that the district court had committed three errors: it (1) denied his motion to withdraw his guilty plea; (2) made a factual finding that resulted in an increased mandatory minimum, in violation of Alleyne ; and (3) applied certain sentencing enhancements in violation of the Ex Post Facto Clause. We concluded that the district court’s failure to discuss the Guidelines at sentencing was

( ... continued) a controlled substance.” The “stash house” enhancement became effective on November 1, 2010.6 No. 19-1754

harmless, and therefore the district court did not abuse its discretion in denying his motion to withdraw his guilty plea. We held that there was no Alleyne error: although the court determined that Mr. Bethany faced a statutory minimum of twenty years in prison, his sentence of twenty-five years was a downward departure from the guidelines range. Thus,“the statutory minimum had absolutely no effect on his ultimate sentence.” Id. at 452. Finally, we concluded that it was not reversible error for the district court to apply enhancements for maintaining a “stash house” and for use of violence, even though those provisions did not exist when Mr. Bethany committed the crime. We observed that the application of Guidelines that came into effect after an o ffense was committed violates theEx Post Facto Clause if it increases the defendant’s guidelines range. See Peugh v. United States , 569 U.S. 530, 544(2013). We concluded, however, that our precedent foreclosed Mr. Bethany from arguing “that he is entitled to pickand choose between portions of the 2005 Sentencing Guidelines and the 2012 Sentencing Guidelines.” Bethany I , 569 F. App’x at 452. Reasoning that the district court “must apply either the entire 2005 manual or the entire 2012 manual,” we noted that Mr. Bethany had not contended that he should have been sentenced using the 2005 Guidelines. 3 Id. Accordingly, we rejected Mr. Bethany’s argument.

3 The Sentencing Guidelines use a “o ne-book rule.” United States Sentencing Guidelines § 1B1.11. “The Guidelines Manual in effect on a particular date shall be applied in its entirety.” § 1B1.11(b)(2). Mr. Bethany’s counsel erroneously advocated a “split-book” approach, attempting to obtain the benefit of the most favorable portions of each version of the (continued ... )No. 19-1754 7

B. In 2016, Mr. Bethany filed a petition under 28 U.S.C. § 2255, attacking his sentence on multiple grounds. First, he reiterated that the district court committed an Alleyne errorwhen it found that his offense involved 280 grams of cocaine. Second, he contended that he received ineffective assistance of counsel when his de fense counsel failed to object to portions of the PSR and presented poorly an argument regarding three enhancements that, in Mr. Bethany’s view, violated the Ex Post Facto Clause. 4 Third, Mr. Bethany asserted that he received ineffective assistance when his defense counsel argued in favor of a “split-book” sentencing approach. The district court rejected the first two arguments but agreed that counsel’s failure to argue in favor of a “one-book rule” constituted ineffective assi stance of counsel. Not only

( ... continued) Guidelines. As we explained, “that is not the law of this Circuit.” United States v. Bethany , 569 F. App’x 447, 452 (7th Cir. 2014) (“ Bethany I ”).

4 Mr. Bethany’s sentence had incorp orated three enhancements that were contained in the 2012 Guidelines but not the 2005 Guidelines: the use of violence, criminal livelihood , and “stash house” enhancements. Mr. Bethany’s counsel challenged the legitimacy of the “stash house” enhancement at sentencing, and amended his argument on appeal toinclude the use of violence enhancement, but never mentioned the criminal livelihood enhancement. Applying Strickland v. Washington , 466 U.S. 668, 687 (1984), the district court reviewing the 28 U.S.C. § 2255 motion acknowledged that counsel’s performance was deficient, but concluded that Mr. Bethany had not suffered any prejudice as a result.8 No. 19-1754

was counsel’s argument “verboten,” but the error also prejudiced Mr. Bethany. 5 The district court concluded that “a 2005-only application would have been to Bethany’s benefit” because the range was lower under that version of the Guidelines and because, “had Bethany’s appellate counsel ... argued that Bethany would have faced a lower sentencing guideline range via a single-book application of the 2005 manual, there is a reasonable probability the Seventh Circuit would have reversed this Court’s pre- Peugh sentence and remanded.” 6 Accordingly, the district court granted Mr. Bethany’s petition for resentencing under the 2005 Guidelines. 7Both parties filed position statements addressing the appropriate guidelines range upon resentencing. The Government’s proposed calculations began with a base offense levelof 34, based on an amount of 280 grams of cocaine. It proposed enhancements for a leadersh ip role in a criminal activity and obstruction of justice and a reduction for acceptance of responsibility. The total offense level of 38 and criminal history category of IV result ed in a range of 324 to 405 months. The Government asked the court to reimpose the sentence of 300 months’ imprisonment.

5 R.17 (1:16-cv-03095) at 10–14.

6 Id. at 13.

7 In this appeal, the Government does not contend that the district court engaged in a limited resentencing. We therefore consider the matter waived. In any event, after careful ex amination of the record, we are confident that the district court did order a plenary resentencing.No. 19-1754 9

On December 21, 2018, Congress enacted the First Step Act of 2018, Pub. L. 115-391, 132 Stat. 5194. Relevant here, the First Step Act reduced an d restricted mandatory minimum sentences for certain defendants for whom “a sentence ... has not been imposed as of such date of enactment.” § 401(c). It also made retroactive certain provisions of the Fair Sentencing Act. Id. §§ 401, 404. Both parties filed submissions addressing the First Step Act’s impact on the proceedings. The Government submitted that the First Step Act did not apply to Mr. Bethany because a sentence had beenimposed upon him long before the Act was enacted and because he had already received the benefit of the Fair Sentencing Act. Mr. Bethany disagreed. In his view, the First Step Actapplied to him because it was enacted before his resentencing and, at the time of its enactment, he had been a convicted, but unsentenced, defendant. He contended that an alleged Alleyne error by the district court at his original sentencing had prevented him from benefiting from the Fair Sentencing Act. He also submi tted that in addition to a resentencing under the 2005 Guide lines, he should receive the benefit of three retroactive amendments to the Guidelines. Under one of these amendmen ts, Amendment 750, offenses involving 280 grams or more of crack cocaine are assigned a base offense level of 32; Mr. Bethany maintained that this should be the starting point fo r calculating his sentence. He proposed the same adjustments to the base offense level as the Government with some exceptions: First, he requested a three-level reduction for acceptance of responsibility rather than the two-level reduction proposed by the Government. Second, his calculation included two two-level reductions for Amendments 706 and 782, which adjusted offense levels10 No. 19-1754

for certain drug quantities. Mr. Bethany’s calculations resulted in a total offense level of 31, which, combined with a criminal history category of IV, produced a guidelines range of 151 to 188 months. Further, he contended that the mandatory minimum should be ten years rather than twenty because, under the First Step Act, his prior convictions no longer qualified as predicate of fenses that would trigger an enhanced sentence. At resentencing, the district court calculated a total offense level of 37. It appears th at the court tracked the Government’s proposed calculations, except that it gave Mr. Bethany the three-level redu ction for acceptance of responsibility, rather than the two-level reduction requested by the Government. 8 During the hearing, the court heard arguments from both parties reg arding the applicability of the First Step Act. It then stated: [C]urrent law provides that ... those who were sentenced prior to the Fair Sentencing Act can obtain benefits of the Fair Sentencing Act. That’s, as I understand, what the First Step Act is ... if they were sentenced prior to [the Fair Sentencing Act], so they could not benefit by the Fair Sentencing Act because it hadn’t been enacted, then under the ... First Step Act, the Court can go back and give him the benefit of the Fair Sentencing Act. But if he had the benefit of the Fair Sentencing Act even if he didn’t receive a—it didn’t apply to his sentence but

8 R.357 (1:06-cr-00346) at 11–12.No. 19-1754 11

he had the benefit because he could have urgedthe Court, that’s my understanding of the government’s position, and th at’s kind of my understanding of the way that the [A]ct operates. He was sentenced after the Fair Sentencing Act so that he did get the benefit. 9When Mr. Bethany had the opportunity to speak, he reiterated his contention that unde r § 401 of the First Step Act,his prior convictions no longer qualified as predicate offenses. The court, however, did not respond to this statement. Ultimately, the district court ca lculated a guidelines range of 292 to 365 months’ imprisonment . After making an adjustment based on Mr. Bethany’s post-incarceration conduct, the court imposed a sentence of 250 months’ imprisonment. Mr. Bethany then filed a timely appeal to this court.

II

DISCUSSION This case presents three dist inct questions: First, we examine whether § 401 of the First Step Act applies to Mr. Bethany. Second, we consider whether § 404 applies to him. Finally, we must decide whether the district court erred in declining to give Mr. Bethan y the benefit of certain retroactive amendments to th e Sentencing Guidelines.

A. Section 401 of the First Step Act narrowed the range ofoffenses that qualify as predicate offenses triggering en9 Id. at 15–16.12 No. 19-1754

hanced mandatory minimum sentences. If § 401 applies to Mr. Bethany, his prior drug convictions no longer constitute predicate offenses.By its terms, § 401 applies “to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been impo sed as of such date of enactment.” § 401(c). Whether Mr. Bethany is entitled to the benefit of § 401 hinges on whether a sentence for his offense was imposed as of the date the First Step Act was enacted, while he awaited resentencing. The answer to this question is dictated largely by our recent en banc opinion in United States v. Uriarte , No. 19-2092. Uriarte originally was sentenced for violations of 18 U.S.C. § 924(c) in 2013; at the time, a second violation of § 924(c) triggered a 25-year minimum sentence, even if the second violation was part of the same indictment as the first. Thesentencing court acknowledged these mandates and imposed a 50-year sentence. On appeal, we vacated Uriarte’s sentence. Prior to resentencing, Congress enacted the First Step Act, which provides that contemporaneous § 924(c) convictions no longer trigge r a 25-year mandatory minimum sentence. First Step Act of 2018, § 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 5221–5222 (Dec. 21, 2018). Moreover, as with § 401(c), the amendment is appl icable “to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of suchdate of enactment.” The district court gave Uriarte the benefit of the amendments, and we affirmed. We observed that, when we vacated the original sentence, we “render[ed] it a nullity.” Uriarte , slip op. at 7. At the time the First Step Act was enacted, therefore, Uriarte “was a convicted, but unsen-No. 19-1754 13

tenced, federal defendant.” Id. “Nothing in the text of the statute,” we explained, suggests that Congress intended to create an exception to the ordinary effect of the vacatur of a sentence. Indeed, it is clear that the statute reflects a congressional intention that its policy decision apply to both pre-Act offenders whohave never been sentenced and to pre-Act offenders whose sentences had been vacated before the date of the enactment, but who had not been resentenced as of that date.
Id . at 9–10. We reach the same conclusion with respect to Mr. Bethany. Mr. Bethany was initially sentenced before the First Step Act was enacted, but he later filed a motion under 28 U.S.C. § 2255, asking the court to vacate his sentence and resentence him. 10 The district court granted his § 2255 motion, rendering his initial sentence null and void. 11 “[T]he effect of the order to vacate wa s to nullify [Mr. Bethany’s] sen10 R.1 (1:16-cv-03095) at 7.

11 The district court concluded that at the time of the original sentencing, our case law bound it to apply the Guidelines in effect at the time Mr. Bethany was sentenced—the 2012 manual. See R.17 (1:16-cv-03095) at 14. It granted Mr. Bethany’s § 2255 motion for resentencing in order to resentence Mr. Bethany under the 2005 version of the Guidelines. The court declared that it would “entertain [18 U.S.C.] § 3553 arguments from both parties” and make fresh guidelines calculations. Id. Thus,when the court granted the § 2255 motion, it rendered invalid Mr. Bethany’s original sentence.14 No. 19-1754

tence.” United States v. Barnes , 948 F.2d 325, 330 (7th Cir. 1991). When the First Step Act was enacted, Mr. Bethany was awaiting resentencing. He was resentenced in 2019, after the Act became law. By the plain language of the statute, § 401 applies to him, just as § 403 applied to Uriarte. In short, Mr. Bethany, who did not have a valid sentence and who was awaiting sentencing at the time the First StepAct was enacted, is entitled to benefit from § 401. Accordingly, the district court erred in failing to apply § 401. We have considered the possibility that any error in the failure to apply § 401 was harm less error because the district court made it clear during the resentencing proceeding that it did not rely on the mandatory minimum in resentencingMr. Bethany. Our examination of the record reveals a significant possibility that Mr. Beth any would have received the same sentence regardless of whether § 401 applied. At the same time, the district court did refer to the twenty-year mandatory minimum and, in a colloquy with the defendant during resentencing, said, “It seems to me that based upon the legal issues in front of me now that you’re stuck with the ... 20-year mandatory minimum.” 12Because some ambiguity exists in the resentencing transcript and because of the very significant difference in the mandatory minimum now applicable under the First StepAct, we believe that the proper course, while retaining appellate jurisdiction, is to inquir e of the district court whether, in light of our ruling today, it is inclined to resentence

12 R.357 (1:06-cr-00346) at 24–25.No. 19-1754 15

Mr. Bethany. If the court informs us that it is so inclined, wewill vacate the sentence and remand the case for resentencing. If the district court tells us that it is not inclined to resentence Mr. Bethany, we will address whether the present sentence is reasonable and then enter a final judgment. See Paladino , 401 F.3d at 484.

B. We next address whether § 404 of the First Step Act should have applied to Mr. Bethany at resentencing. Section404 makes retroactive certain provisions of the Fair Sentencing Act. As relevant here, it makes retroactive the provisions that raised the threshold amounts of controlled substances required to trigger enhanced penalties.

Before the enactment of the Fa ir Sentencing Act, a quantity of 50 grams of crack cocaine made a defendant eligible for higher penalties. The enactmen t of the Fair Sentencing Act elevated the threshold to 280 grams. The Fair Sentencing Act, however, did not apply to those sentenced before its enactment; the First Step Act remedied this situation by extending the Fair Sentencing Ac t’s application to those whose offenses were committed before August 3, 2010. Section 404 provides that a defendant who committed a “covered offense” is eligible for relief. A “covered offense” is defined as an offense (1) committed before the enactment of the FairSentencing Act on August 3, 2010, and (2) involving a quantity of drugs that no longer triggers enhanced penalties. § 404(a). A defendant who committe d such an offense is entitled to “a reduced sentence as if sections 2 and 3 of the FairSentencing Act ... were in effect at the time the covered offense was committed.” § 404(b) (citations omitted).16 No. 19-1754

We therefore must inquire whether Mr. Bethany’s conviction is a “covered offense” wi thin the meaning of § 404. The answer to the first part of this inquiry is clear. The offense, conspiracy to distribute and to possess with intent to distribute cocaine, was committed before August 3, 2010, the enactment date of the Fair Sentencing Act. The second part of the question, whether Mr. Bethany’s offense involved a quantity of drugs that no longer triggers enhanced penalties, is somewhat complicated. Our case law provides a helpfulpath. We already have said that “whether an offense is covered simply depends on the st atute under which a defendant was convicted.” United States v. Shaw , 957 F.3d 734, 739 (7th Cir. 2020). We therefore look to the statute of conviction alone to determine Mr. Bethan y’s eligibility for relief under § 404 . Id. Mr. Bethany pleaded guilty to count one of the second superseding indictment, which charged Mr. Bethany and others with conspiring “to knowingly and intentionally possess with intent to distribu te and to distribute a controlled substance, namely, 50 grams or more of ... crack cocaine ...” in violation of 21 U.S.C. § 841(a)(1). 13 When Mr. Bethany pleaded guilty, 50 grams of cocaine was sufficient to trigger enhanced penalties, but by the time he was sentenced, the Fair Sentencing Act had raised the threshold to 280 grams. Afte r an extensive hearing at Mr. Bethany’s original sentenci ng, the court made a finding that the offense involved 280 gr ams. But the district court’s factual finding at sentencing do es not affect the statute of conviction; regardless of what the court determined in later

13 R.87 at 1.No. 19-1754 17

proceedings, Mr. Bethany was convicted of an offense involving 50 grams or more of cocaine. “The relevant provision of the Fair Sentencing Act of 2010, section 2, did not modify the penalties on an individual basis. Instead, it broadly modified penalties for entire categories of offenses that include fixed aggravating elements, such as the weight of the drug.” Id. at 739. Accordingly, Mr. Bethan y committed a “covered offense” within the meaning of § 404 of the First Step Act.But that is not the end of the matter. Section 404(b) authorizes a court 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,” but Mr. Bethany has already been sentenced as if the Fair Sentencing Act were in effect at the time of his o ffense. The Fair Sentencing Act was already in effect at the time he was sentenced in 2013 and at the time he was resent enced in 2019. Thus, it was notthe First Step Act that rendered Mr. Bethany eligible to receive the benefit of the Fair Sentencing Act; the Fair Sentencing Act applied to him by its own terms. What Mr. Bethany appears to be contesting here is the Alleyne violation that he believes occurred at the initial sentencing. He raised this question before in his first appeal when he contended that, absent the district court’s finding at his initial sentencing, he would have been eligible for a lower mandatory minimum. We disagreed, explaining that because the district court had determined a mandatory minimum of twenty years and sentenced him to twenty-five years (a downward departure from the guidelines range),“the statutory minimum had absolutely no effect on his ultimate sentence.” Bethany I, 569 F. App’x at 452. In the present appeal, Mr. Bethany cannot overcome the hurdle pre-18 No. 19-1754

sented by our previous decision. The ruling in Bethany Iconclusively decided the question, and “the courts ... forbid a prisoner to relitigate in a collateral proceeding an issue that was decided on his direct appeal.” White v. United States , 371 F.3d 900, 902 (7th Cir. 2004). Mr. Bethany’s argument here— that the district court that in itially sentenced him violated the rule of Alleyne —is no different than the argument he made before us in Bethany I . The issue is foreclosed.

C. Finally, we examine whether th e district court erred in declining to apply certain retroactive amendments to the Guidelines when calculatin g Mr. Bethany’s sentence.

Recall that the use of the 2005 version of the Guidelines(rather than the 2012 version) was the purpose of Mr. Bethany’s resentencing. He does not, of course, contest the use of the 2005 Guidelines; instead, he contends that the district court should have applied three retroactive amendments promulgated in the intervening years. 14 Amendments 706,

14 The Government asks us to construe Mr. Bethany’s argument as an attempt to benefit from a “split-book” approach to sentencing. In itsview, Mr. Bethany “was not entitled to benefit from subsequent amendments that favored him, while avoiding application of subsequent amendments that did not.” Government’s Br. 35.
If that were the case, the answer would be clear: a sentencing court must apply a “one-book” approach, us ing one version of the Guidelines in its entirety. Bethany I, 569 F. App’x at 452. But Mr. Bethany is not asking us to require a split-book approach. We understand his argument to be that the district court should have granted him the reductions for which he may have been eligible under 18 U.S.C. § 3582(c)(2). Under that (continued ... )No. 19-1754 19

750, and 782 reduced the offense levels for certain crack cocaine offenses. 15 Each applies retroactively. 16 In an ordinary situation, a defendant sentenced under the 2005 Guidelines may receive a sentence reduction under certain conditions:[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently beenlowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994( o ), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court mayreduce the term of imprisonment, after considering the factors set forth in section 3553(a) tothe extent that they are applicable, if such a reduction is consistent with applicable policystatements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2). At resentencing, Mr. Bethany effectively asked the district court to grant him the sentence re-

( ... continued)section, courts may reduce the sentences of defendants convicted of offenses for which the guidelines sentence was subsequently lowered.

15 By Mr. Bethany’s calculations, the application of these amendments would result in a guidelines range of 151 to 188 months, significantly less than the range calculated by the resentencing court and significantly less than the sentence he received.

16 Amendments 706, 750, and 782 were given retroactive application by Amendments 713, 759, and 788, respectively.20 No. 19-1754

ductions directly, rather than requiring him to go through the extra step of filing a motion under § 3582(c)(2). The statute itself provides that a court may on its own motion reduce the term of imprisonment. Id. In some cases, it may be preferable to do so for reasons of judicial economy. The question before us, howeve r, is not whether the district
court could have done so, but instead whether it was required to do so. The text of § 3582(c)(2) is clear: a court “ may reduce the term of imprisonment” (emphasis added). See United States v. Purnell , 701 F.3d 1186, 1190 (7th Cir. 2012) (explaining that “[i]n any individual case, ... su ch a reduction is discretionary”). In evaluating a § 3582(c)(2) motion, a court considers the § 3553(a) factors and whether th e result is consistent with the policy of the Sentencing Commission. The court was not required to reduce Mr. Bethany’s sentence even if he had filed a motion under § 3582(c)(2). Mr. Bethany points to nothing in the language of the statute or the case law mandating a court to consider a sentence reduction on its own motion. Accordingly, although the district court could have exercised its discretion to apply the retroactive amendments to the Guidelines, it was not required to do so.
Conclusion We hold that Mr. Bethany is entitled at this point to the benefit of § 401 of the First Step Act. The record raises a substantial question, however, as to whether the district court would have imposed a different sentence if it had knownthat § 401 is applicable. Accordingly, while retaining appellate jurisdiction, we order a limited remand to the district court to ascertain whether the court is inclined to imposeNo. 19-1754 21

another sentence in light of our holding today. Following the procedure set forth in Paladino , 401 F.3d at 484, the district court will consider the views of counsel, at least in writing, and then reply to this court’s inquiry.

If the district court informs us that it is not inclined to resentence Mr. Bethany, we will consider whether the adjudicated sentence is reasonable and then enter judgment accordingly. The district court w ill remain free to consider any motion under 18 U.S.C. § 3582(c) that Mr. Bethany may file. If the district court indicates that it is inclined to resentenceMr. Bethany, we will remand the case to that court for resentencing. If Mr. Bethany files any motion under 18 U.S.C. § 3582(c), the district court may entertain such a motion at the same time as the resentenci ng, or it may decide, in its discretion, to adjudicate the motion as a separate matter.

IT IS SO ORDERED22 No.19-1754

S CUDDER , Circuit Judge , concurring. This appeal, much like United States v. Uriarte , No. 19-2092, presents a di ffi cult question of statutory interpretation regarding the application of § 401 of the First Step Act to Rashod Bethany’s resentencing. For the reasons Judge Barre tt articulated in her Uriarte dissent, I believe the government had the be tt er end of the argument. And I thought that was especially so where, as in Bethany’scase, resentencing followed his receipt of post-conviction relief almost a decade after being or iginally sentenced. It is too

a tt enuated, in my view, to say that Bethany’s case was “pending” or that “a sentence” had no t been “imposed” on the date the First Step Act became e ff ective. See § 401(c) of the First Step Act of 2018. But Uriarte is now the law of the Circuit and requires me to conclude, as the majority opinion does, that Bethany is entitled to the bene fi t of § 401 of the First Step Act.I otherwise agree in full with all other aspects of today’s opinion.