In United States v. Gonzalez, No. 19-14381 (Aug. 19, 2021) (Jordan, Newsom, Tjoflat), the Court affirmed the denial of a motion for a reduced sentence under Section 404 of the First Step Act.

Joining two other circuits, and accepting the government’s concession, the Court held that a sentence imposed upon revocation of supervised release can be reduced where the underlying offense is a “covered offense.”  However, the Court affirmed the denial of the motion because the district court’s alternative discretionary denial was supported by the record and 3553(a) factors.  The Court declined to follow a Seventh Circuit decision (and arguably Fourth and Sixth Circuit decisions) categorically requiring the district court to calculate and consider the defendant’s new guideline range before exercising discretion under Section 404(b).

Judge Tjoflat concurred because he was bound by precedent, but he believed that, because the text of Section 404 includes no standard guiding the district court’s discretion, the court of appeals cannot review discretionary denials at all.