Read Full Article (PDF)





In a rare bipartisan moment under the Trump presidency, Congress passed a celebrated criminal justice reform package, the First Step Act of 2018. The law was necessary to begin remedying decades of an unduly harsh and discriminatory drug sentencing regime, which ushered in the era of mass incarceration. Section 404 of the First Step Act mitigates that injustice by allowing prisoners sentenced under the 100:1 crack cocaine to powder cocaine sentencing ratio to move to be resentenced under the Fair Sentencing Act of 2010’s 18:1 sentencing ratio.

This reform holds great promise. Take, for example, the story of Gary Rhines, who is heralded as the face of the First Step Act.  Mr. Rhines was a victim of society, forced to traffic drugs as a pre-teen to support parents struggling with addiction, who garnered a criminal record at a young age. Those prior offenses earned him a mandatory life sentence at the age of twenty-eight, when he was convicted as a participant in the sale of sixty-six grams of crack cocaine. Though he stood no chance of regaining his freedom, Mr. Rhines bettered himself over fourteen years in prison through drug treatment, education, and professional training. In 2019, under section 404 of the First Step Act, Mr. Rhines’s remaining sentence was vacated, and he was resentenced to time served. Unfortunately, because of the law’s problematic and arbitrary implementation, Mr. Rhines’s story is not representative of most offenders petitioning to be resentenced under section 404.

Section 404 is arbitrarily implemented because it is written ambiguously. The law leaves two open questions for courts to decide: (1) the authority of the court to impose a new sentence or modify the existing sentence, and (2) what updates in sentencing guidelines and caselaw to apply, if any. Regarding the first question, if the court decides to impose a new sentence, it conducts a comprehensive review of the prisoner’s character, background, and rehabilitation, allowing the prisoner to fully present his case to the court, as the court did in resentencing Mr. Rhines. In contrast, if the court decides merely to modify the existing sentence, it defaults to the findings of the original court, and denies the prisoner the basic human dignity to be present at his own hearing and address the court.

In answering the second question, the court must decide whether it will conduct a “time machine” resentencing and return to the legal landscape at the time of the original conviction to re-sentence, or resentence according to present law at the time of defendant’s motion. Mr. Rhines was eligible for full relief because the court chose not to use the time machine method. The court’s choice to apply the time machine method or present law weighs especially heavily on defendants who were originally sentenced as “career offenders,” and those who had drug weights attributed to them in the presentence report that were significantly greater than the amount of the offense. These issues are particularly salient be- cause they are legal issues which greatly enhance a defendant’s sentence and are areas of law that have seen significant change in the last decade.

The overlap of these two open questions has led to four different methods of resentencing prisoners under section 404. In Method I, the court imposes a new sentence, but applies the time machine approach. Method II applies the more limited procedure of a sentence modification and the same time machine approach. Method III again applies the more limited sentence modification, but rejects the time machine approach and modifies following current law. Finally, in Method IV, courts impose a new sentence and apply all current sentencing guidelines and caselaw; this amounts to a full plenary resentencing.

Daniel P. Peyton*

J.D. Candidate, 2021, University of Richmond School of Law; M.A. Theology, 2017,

Fuller Theological Seminary; B.B.A., 2013, The College of William and Mary. I am grateful to Professors Mary Kelly Tate, Rachel J. Suddarth, and Erin R. Collins for their formative comments, expertise, and guidance. I am also thankful to my fellow members of the University of Richmond Law Review for their outstanding work in editing and publishing this Comment in spite of a pandemic. Above all, I would like to thank Kristen Peyton, for her continued support and encouragement, and Clair Peyton, my first editor.