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Criminal Practice – First Step Act sentences subject to reasonableness review

In an issue of first impression, the court joined the Sixth Circuit and D.C. Circuit in holding that when a district court exercises discretion to reduce a sentence under the First Step Act, the imposition of the sentence must be procedurally and substantively reasonable.


Chuck Collington was sentenced in 2010 to 30 years’ imprisonment after pleading guilty to various federal narcotics and firearm offenses. In 2019, Collington moved for a reduced sentence under section 404(b) of the First Step Act, contending that his sentence was 10 years longer than the current statutory maximum. The district court denied Collington’s motion.


This court both allows and requires more of a sentencing judge in the First Step Act context than the § 3582(c)(2) context. First, district courts must accurately recalculate the guidelines sentence range. Second, district courts must correct original guidelines errors and apply intervening case law made retroactive to the original sentence.

Third, the court must consider the § 3553(a) factors to determine what sentence is appropriate. Unlike sentence modification proceedings under § 3582(c)(2), this court permits district courts to use the § 3553(a) factors to more comprehensively shape sentencing decisions and even depart downward from the new guidelines range.


Collington first argues that the district court was obligated to impose a reduced sentence within the Fair Sentencing Act’s statutory maximum sentence of 20 years. As stated above, First Step Act resentencing decisions require the district court to determine whether and to what extent it should impose a new sentence under this retroactive statutory range.

Accordingly, this exercise of the court’s sentencing authority must take place within the boundaries of the minimum and maximum sentences set by Congress. So while the First Step Act provides that a district court “may … impose a reduced sentence,” it abuses its discretion when it “[imposes] a reduced sentence” that exceeds the maximum established by the Fair Sentencing Act.

The government argues that the district court in this case did not impose a new sentence but merely declined to reduce a sentence that was legal at the time it was imposed. The government contends that because section 404(b) instructs courts to resentence “as if” the Fair Sentencing Act were in effect, Congress gave district courts the discretion to decide whether to apply those statutory ranges. This reading of section 404 would produce results clearly at odds with Congress’s intent and this court’s background sentencing principles.

The government also argues that the plain language of section 404 compels the opposite conclusion. In particular, the government directs this court to section 404(b)— which states that a district court “may … impose a reduced sentence”—as well as section 404(c)—which states that “nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section.” The government suggests this language compels a holding that no sentence—even one outside of current statutory maximums—need be reduced.

To be sure, this language confers wide latitude on district courts when resolving First Step Act motions. However, this court has not yet had to decide whether a district court can, as a matter of discretion, retain a sentence above the statutory maximum. And it is those statutory maximums made retroactive by the First Step Act, not section 404(c) itself, that require a reduction in sentence.

Section 404(c) only makes clear that district courts retain broad authority to decide, following a resentencing analysis, that the originally imposed sentence remains appropriate under the Fair Sentencing Act. It does nothing to alter the usual understanding that a sentence may not exceed the applicable statutory range. The district court erred by not resentencing Collington to—at most—20 years’ imprisonment.


Because this court remands to the district court for further proceedings, it must resolve an open question in this circuit—whether First Step Act resentencing decisions must be procedurally and substantively reasonable.

At least five circuits have not applied a reasonableness requirement to First Step Act determinations. The Sixth and D.C. Circuits, by contrast, have each adopted some form of reasonableness review. The court concludes that the holdings of the Sixth and D.C. Circuits are more convincing and in-line with this court’s understanding of section 404. As a result, the court now holds that when a court exercises discretion to reduce a sentence, the imposition of the reduced sentence must be procedurally and substantively reasonable.

Vacated and remanded with instructions.

United States v. Collington (Lawyers Weekly No. 001-086-21, 23 pp.) (Henry Franklin Floyd, J.) Case No. 19-6721. April 26, 2021. From D.S.C. (R. Bryan Harwell, C.J.) Kimberly Harvey Albro for Appellant. Lauren L. Hummel for Appellee.

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