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Date: 10-14-2021

Case Style:

United States of America v. BLAKE FIELDS

Case Number: 19-1300 19-1298 19-1296

Judge: Ojetta Rogeriee Thompson

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney: Jennifer H. Zacks, Assistant United States Attorney,
with whom Andrew E. Lelling, United States Attorney

Defendant's Attorney:

Boston, MA - Criminal defense Lawyer Directory


Boston, MA - Criminal defense lawyer represented defendant with a distributing more than five grams of cocaine base charge.

At the time of sentencing, the district court calculated
Fields's guidelines sentencing range to be between 262 and 327
months. This sentencing range was ultimately dictated by the fact
that Fields's prior convictions for violent felonies qualified him
as a career offender, which yielded a total offense level of 34
and a criminal history category of VI. See U.S.S.G. § 4B1.1 (total
offense level of 34 applies to career offender where maximum
statutory term of imprisonment is 25 years or more; career offender
status equates to category VI). At trial, a government witness
testified that the drug distribution took place within 1,000 feet
of a school, which doubled the statutory maximum sentence from 40
years to 80 years, per 21 U.S.C. § 860. At the time, Fields did
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not contest that the sale took place within a school zone. After
hearing from Fields and considering the sentencing factors per 18
U.S.C. § 3553(a), the district court sentenced Fields to 216
months' (18 years) imprisonment.
The History
In 1986, Congress passed the Anti–Drug Abuse Act of 1986,
Pub. L. No. 99-570, 100 Stat. 3207 (the "1986 Act"). Kimbrough v.
United States, 552 U.S. 85, 95-96 (2007). Relevant to our
discussion, "the 1986 Act adopted a '100-to-1 ratio' that treated
every gram of crack cocaine as the equivalent of 100 grams of
powder cocaine." Id. at 96.1 The Sentencing Commission also
incorporated the 100-to-1 ratio into the sentencing guidelines,
which went into effect the following year. Id. at 96-97 n.7. The
100-to-1 differential led to the imposition of serious sentences
"primarily upon black offenders" and gave rise to a widely held
perception that the differential "promote[d] unwarranted disparity
based on race." Id. at 98.
By the mid-1990s, the Sentencing Commission realized the
error of its ways and began proposing changes to the ways the
sentencing guidelines treated crack and powder cocaine quantities.
1 This meant that a "five-year mandatory minimum applie[d]
to any defendant accountable for 5 grams of crack or 500 grams of
powder, 21 U.S.C. § 841(b)(1)(B)(ii), (iii); [and a] ten-year
mandatory minimum applie[d] to any defendant accountable for 50
grams of crack or 5,000 grams of powder, § 841(b)(1)(A)(ii),
(iii)." Kimbrough, 552 U.S. at 96.
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See id. at 97-100 (explaining the Sentencing Commission's
criticisms of the 100-to-1 ratio and detailing the Commission's
efforts to amend the guidelines and to prompt congressional action
on the issue). In 2007, the Sentencing Commission acted on its
own and amended the drug sentencing tables in the guidelines to
make the crack-to-powder-cocaine ratio less stark. See id. at 99-
In 2010, (after Fields's conviction and sentencing in
this case) Congress got the message and passed the Fair Sentencing
Act which reduced the punishment ratio to 18-to-1 in the relevant
criminal statutes. See Fair Sentencing Act, § 2. Congress also
instructed the Sentencing Commission to amend the drug quantity
tables in the guidelines to reflect that change. The Commission
complied and made the changed guidelines retroactive.
These changes helped a lot of defendants have the
opportunity for shorter prison sentences, but not all. For
example, a defendant who committed a crack cocaine offense and
also qualified as a career offender at sentencing (like Fields)
was ineligible for relief because the amendments to the guidelines
did not change the career offender provisions which ultimately
dictated the defendant's guidelines range. See United States v.
Caraballo, 552 F.3d 6, 11 (1st Cir. 2008).
In an effort to address more of those cases, Congress
passed the First Step Act. Section 404 of the First Step Act
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specifically addressed the sections of the Fair Sentencing Act
that amended the applicable drug statutes. Section 404 says that
"[a] court that imposed a sentence for a covered offense may . . .
impose a reduced sentence as if sections 2 and 3 of the Fair
Sentencing Act of 2010 (Public Law 111–220; 124 Stat. 2372) were
in effect at the time the covered offense was committed." First
Step Act, § 404(b).2 The First Step Act is also clear that
"[n]othing in this section shall be construed to require a court
to reduce any sentence pursuant to this section." Id. § 404(c).
The District Court's Decision(s)
Seeing those statutory changes, in 2019, Fields filed a
motion in the district court to reduce his sentence. In that
motion, Fields argued that, if he were sentenced today, there would
be no mandatory minimum for his conviction; the First Step Act
lowered the maximum statutory sentence; and the sentencing factors
in § 3553(a), especially his post-conviction rehabilitation, would
counsel toward a shorter sentence.
Fields also argued that, because of a change in the
sentencing guidelines since his conviction, he would not be deemed
a career offender if convicted today. That change took place in
2 For its part, a "'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
(Public Law 111–220; 124 Stat. 2372), that was committed before
August 3, 2010." First Step Act, § 404(a). All agree that Fields
committed a "covered offense."
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2016, when, after the Supreme Court held the so-called "residual
clause" of the Armed Career Criminal Act to be unconstitutionally
vague, Johnson v. United States, 576 U.S. 591 (2015), the
Sentencing Commission removed the residual clause from the
guidelines' definition of a career offender. See U.S.S.G. App. C,
amend. 798 (U.S. Sentencing Comm'n Supp. Nov. 1, 2016); also check
this out Beckles v. United States, 137 S. Ct. 886 (2017) (declining
to hold that the residual clause of the career offender guideline
was unconstitutionally vague). Further, Fields contended, if he
were sentenced today, he would contest that the drug sale took
place within 1,000 feet of a school. All of these things together,
Fields told the court, counseled toward a reduced sentence. The
government opposed the motion, arguing that, at the time of
sentencing, the district court carefully considered Fields's
sentence and determined that an 18-year sentence was appropriate.
The government contended that, despite Fields's claim otherwise,
his guidelines sentence range would still be the same if he were
sentenced today because he would still qualify as a career offender
and the maximum statutory sentence would be 40 years because the
fact of Fields selling drugs within 1,000 feet of a school would
still be a part of the record.
The district court denied Fields's motion in a brief
order, explaining that "[t]he First Step Act does not sweep as
broadly as is here claimed" and, in support, cited to another
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decision, authored by the same district court judge, published the
prior day, United States v. Concepcion, No. 07-10197, 2019 WL
4804780 (D. Mass. Oct. 1, 2019).
In that case, the district court considered another
First Step Act motion for a reduced sentence. Id. at *1. The
district court denied the motion saying that, if Concepcion, the
defendant in that case, "came before the [c]ourt today and the
[c]ourt considered only the changes in law that the Fair Sentencing
Act enacted, his sentence would be the same." Id. at *2. The
district court further explained that, at the time of sentencing,
it considered the § 3553(a) factors and made an appropriate
decision based upon the specific facts of the case, not only the
sentencing guidelines. Id.
Concepcion had argued that he would not be considered a
career offender now that the guidelines' definition did not include
the residual clause. The district court refused to recalculate
Concepcion's sentencing guidelines range as if he was not a career
offender because the district court believed that considering that
change to the guidelines was beyond the scope of the its authority
to resentence a defendant under the First Step Act. Overall, the
court noted that the original sentence "was fair and just" at the
time of sentencing and "remain[ed] so." Id.
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The Relevant Precedent
Like Fields, Concepcion appealed the denial of his
motion for a reduced sentence to this court. Another panel of
this court issued an opinion in Concepcion's case in March of 2021.
United States v. Concepcion, 991 F.3d 279 (1st Cir. 2021). In
issuing that decision, a divided panel of this court affirmed the
denial of Concepcion's motion and laid out a two-step process by
which district courts ought to analyze First Step Act cases.3
First, the district court answers the question of whether a
defendant should be resentenced and then, if the answer is yes,
the district court determines what the new sentence should be.
Id. at 289.
In step one, the district court "place[s] itself at the
time of the original sentencing and keep[s] the then-applicable
legal landscape intact, save only for the changes specifically
authorized by sections 2 and 3 of the Fair Sentencing Act." Id.4
"If that determination is in the negative, the inquiry ends and
any sentence reduction must be denied." Id. If, however, the
3 As Concepcion makes clear, this process applies only to
those who qualify for relief under the First Step Act's provisions.
991 F.3d at 289. All agree that the First Step Act applies to
4 This is the core of the disagreement among the Concepcion
panel. Judge Barron would hold that the district court would also
be "free to consider intervening developments (both factual and
legal)" at this stage of the process. Concepcion, 991 F.3d at 310
(Barron, J., dissenting).
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district court calculates that the defendant is eligible for a
reduced sentence, the district court may consider other factors
not among those named in sections 2 and 3 of the Fair Sentencing
Act, such as changes in the sentencing guidelines or the § 3553(a)
factors. Id. at 289-90. At no point is the district court required
to reduce a defendant's sentence.
The Analysis
Fields argues that we are free to ignore Concepcion's
holding and approach his case with a clean slate (and then decide
in his favor). Alternatively, Fields tells us that, even if
Concepcion applies to this case's resolution, the district court
still erred by not recalculating Fields's sentencing range as if
he were not convicted of selling drugs in a school zone. Finally,
Fields claims that, no matter our approach to Concepcion, remand
is appropriate because the district court made a legal error when
it, in Fields's words, determined it had no discretion to reduce
Fields's sentence.
Does Concepcion Apply Here?
We begin with Fields's argument that Concepcion does not
govern this case and we are therefore free to ignore its mandates.
We review Fields's argument about the proper construction of the
First Step Act just as we do any question of statutory
interpretation, with fresh eyes and with no deference to the
district court's decision.
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Generally, we "are bound by prior panel decisions that
are closely on point," a concept commonly referred to as the "law
of the circuit." United States v. Wurie, 867 F.3d 28, 34 (1st
Cir. 2017) (quoting San Juan Cable LLC v. P.R. Tel. Co., 612 F.3d
25, 33 (1st Cir. 2010)).5 There are two, rare exceptions to this
rule. First, we may deviate from a prior panel's holding when it
is "contradicted by controlling authority, subsequently announced
(say, a decision of the authoring court en banc, a Supreme Court
opinion directly on point, or a legislative overruling)." San
Juan Cable LLC, 612 F.3d at 33 (quoting United States v. Rodríguez,
527 F.3d 221, 225 (1st Cir. 2008)). No such contradicting,
controlling decision exists (and Fields does not claim it does).
Second, we may chart our own course in the "rare instances in which
authority that postdates the original decision, although not
directly controlling, nevertheless offers a sound reason for
believing that the former panel, in light of fresh developments,
would change its collective mind." Id. (quoting Williams v.
Ashland Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995)). If such
authority were to exist, we doubt that it would persuade the
5 Fields also argues that Concepcion was not technically
decided by a "prior panel" of this court because Fields's notice
of appeal was filed before Concepcion's and so, to Fields, the
panel in this case came to be before the panel in Concepcion. This
novel construction is unsupported by our precedent.
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majority in Concepcion to change its collective mind a mere six
months after issuing this decision.6
Fields's primary reason for why we should ignore
Concepcion's holding is that the opinion is incorrect. It is not
the place of another panel of this court to make that determination
and we will not do so here. See Wurie, 867 F.3d at 35.
Did the District Court Err?
Moving on, we turn to Fields's argument that even under
Concepcion's two-step process, the district court abused its
discretion when it did not reduce Fields's sentence. "An abuse of
discretion occurs when a material factor deserving significant
weight is ignored, when an improper factor is relied upon, or when
all proper and no improper factors are assessed, but the court
makes a serious mistake in weighing them." Concepcion, 991 F.3d
at 292 (quoting United States v. Soto-Beníquez, 356 F.3d 1, 30
(1st Cir. 2003)).
Imputing the district court's reasoning in Concepcion's
case, the district court concluded that Fields would receive the
same sentence if he "came before the court today and the court
6 We do note, as did the panel in Concepcion, that we are
not the first court to consider this issue. 991 F.3d at 285-86
(collecting cases from sister circuits who have considered whether
a defendant's eligibility for resentencing under the First Step
Act entitles him to plenary resentencing). The circuits appear
divided as to the appropriate interpretation of the First Step
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considered only the changes in law that the Fair Sentencing Act
enacted." Applying Concepcion's parlance, the district court made
the discretionary determination that Fields did not pass the first
step of the assessment, so no resentencing was called for. Fields
argues that the district court erred by not recalculating Fields's
sentencing range as if he were not convicted of selling drugs
within a school zone and as if he were not a career offender.
Fields contends that, if he were sentenced today, he
would have contested that he sold cocaine base within 1,000 feet
of a school because, if that challenge was successful, it would
give him a lower sentencing range under the current guidelines.7
Therefore, Fields appears to tell us, the district court should
have presumed Fields's successful challenge to the school zone
augmentation of his sentence and then recalculated his guideline
range using today's guidelines. That recalculation, in Fields's
eyes, satisfies Concepcion's first step and so, the district court
should have moved to the second step and evaluated whether it
should modify Fields's sentence. This simply does not align with
the clear first step in Concepcion, which solely permits
consideration of changes listed by sections 2 and 3 of the Fair
7 Fields argues that the school in question was 1,000 feet
from the site of the drug sale "as the crow flies" but could not
have been directly reached within 1,000 feet. He claims he did
not pursue this argument at sentencing because, even if he
prevailed, it would not have altered his sentencing guidelines
range at the time.
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Sentencing Act and does not authorize the district court to assume
different facts from those in place at the time of sentencing when
determining if resentencing is appropriate. See id. at 289-90.
The same reasoning applies to Fields's contention that
the district court should have recalculated his sentencing
guidelines range as if he were not a career offender. Like the
hypothetical school zone change, this change is not included in
sections 2 and 3 of the Fair Sentencing Act and is therefore not
called for in Concepcion's first step.
Accordingly, the district court did not err when it
relied on the facts as they were at the time of sentencing,
concluded Fields's sentencing guidelines range would be unchanged
by the changes in the Fair Sentencing Act, and declined to modify
Fields's sentence.
Finally, Fields argues that the district court made an
error of law because it misapprehended its own power to modify a
sentence under the First Step Act and mistakenly thought that it
was forbidden to modify Fields's sentence. Fields hangs his hat
on the district court's brief order denying Fields's motion where
it said that "[t]he First Step Act does not sweep as broadly as is
here claimed." Though the district court's order denying Fields's
motion is short, the district court made its reasoning plain in
its more thorough analysis of Concepcion's case. This court
already affirmed the district court's reasoning there, noting that
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"the district court carefully analyzed the First Step Act" and
used its discretion to determine whether resentencing was
appropriate. Id. at 292.

Outcome: Seeing no issues left to resolve, we affirm the district
court's denial of Fields's motion

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