First Step Act § 404(b) Resentencing Cannot Reduce Statutory Mandatory-Minimum Supervised Release Using Nonretroactive § 401 Changes or Related Guidelines (Post-Concepcion)

Introduction

United States v. VanHoesen (2d Cir. Aug. 24, 2026) addresses a narrow but recurring question in First Step Act litigation: when a defendant is resentenced under § 404(b) of the First Step Act (the Fair Sentencing Act retroactivity provision), may the district court reduce a mandatory minimum term of supervised release by invoking § 401 of the First Step Act (which narrows certain recidivist triggers) or Sentencing Guideline amendments reflecting § 401—despite Congress’s express decision to make § 401 largely nonretroactive?

The parties were the United States (appellee) and John VanHoesen (defendant-appellant), convicted in 2009 of crack-cocaine conspiracy and possession offenses under 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. VanHoesen originally received a mandatory life sentence (based on pre–Fair Sentencing Act crack thresholds and prior drug convictions) and “supervised release for life” if ever released.

After remand to consider Concepcion v. United States, the district court reduced his prison sentence to time served but imposed eight years of supervised release. VanHoesen appealed only the supervised release term, arguing the district court had discretion to go below eight years in light of § 401 and Concepcion.

Summary of the Opinion

The Second Circuit affirmed. It held that, in a § 404(b) resentencing, the district court must apply the statutory penalties “as if” only sections 2 and 3 of the Fair Sentencing Act were in effect at the time of the offense. The court may consider intervening legal and factual developments when exercising discretion under § 3553(a), but it may not use nonretroactive changes in § 401 of the First Step Act—or Guidelines amendments implementing § 401—to reduce a statutory mandatory minimum term of supervised release.

The panel further held that Concepcion v. United States concerns the scope of discretionary sentencing considerations and does not authorize deviation from statutory mandatory minimums. Although the district court mistakenly believed it had discretion to impose less than eight years, the error was harmless because the law required eight years anyway, and the court imposed eight years.

Analysis

Precedents Cited

  • Concepcion v. United States, 597 U.S. 481 (2022)
    Role in VanHoesen: VanHoesen relied on Concepcion to argue that intervening legal changes (including nonretroactive ones) could be used to recalibrate the supervised-release minimum. The Second Circuit read Concepcion more narrowly: it expands what courts may consider in exercising discretion, but does not permit courts to ignore statutory minimums. Concepcion’s key contribution here is the distinction between (a) discretionary selection of a sentence within lawful bounds and (b) recalculating or overriding statutory floors set by Congress.
  • Rutherford v. United States, 146 S. Ct. 1320 (2026)
    Role in VanHoesen: Rutherford supplies the controlling principle that, for defendants sentenced before the First Step Act, “the general rule of nonretroactivity remains in place,” and that courts are never free to reject a sentencing term Congress has required. The panel uses Rutherford both to reinforce § 401(c)’s nonretroactivity and to rebut the notion that Concepcion impliedly authorizes courts to bypass mandatory minimums.
  • United States v. Bryant, 991 F.3d 452 (2d Cir. 2021), vacated and remanded on other grounds, 142 S. Ct. 2900 (2022)
    Role in VanHoesen: Bryant is cited for the proposition that “the plain text of Section 401(c) limits the retroactive applicability of Section 401(a)” to defendants not yet sentenced when the Act became law. The panel treats Bryant’s statutory reading as still valid after Concepcion because the vacatur was “on other grounds.” The opinion also references the post-remand district court decision in Bryant, which concluded Concepcion did not permit reducing an eight-year supervised release term required by statute.
  • United States v. Echeverry, 978 F.3d 857 (2d Cir. 2020)
    Role in VanHoesen: Echeverry underscores that § 404(b) relief is available only where the Fair Sentencing Act’s changes could actually lower the defendant’s sentence. It supports the idea that § 404(b)’s “as if” clause is tied to Fair Sentencing Act modifications, not to other unrelated statutory reforms (like § 401) that Congress declined to make retroactive.
  • United States v. Reed, 7 F.4th 105 (2d Cir. 2021)
    Role in VanHoesen: Reed reinforces that where a sentence is already at the mandatory minimum and cannot be reduced regardless of Fair Sentencing Act changes, § 404(b) provides no relief. In VanHoesen, the logic is adapted: once the applicable Fair Sentencing Act-adjusted statutory minimum is identified, courts cannot go below it.
  • United States v. Sterkaj, 138 F.4th 95 (2d Cir. 2025)
    Role in VanHoesen: Sterkaj is used to characterize Concepcion’s discussion of sentencing discretion as reaffirming a “settled principle,” not creating new authority to rewrite statutory constraints.
  • United States v. Jackson, 58 F.4th 1331 (11th Cir. 2023)
    Role in VanHoesen: Jackson is cited for the sequencing point: Concepcion’s discretionary considerations come into play only after drug quantity and corresponding statutory penalties are established; they do not alter the statutory penalty determination itself.
  • United States v. Caver, 101 F.4th 422 (6th Cir. 2024)
    Role in VanHoesen: Caver provides persuasive authority for the precise rule adopted: nonretroactive § 401 changes may be considered only during discretionary § 3553(a) balancing, not to recalculate statutory mandatory minimums, and Guidelines amendments cannot be used to circumvent statutory floors.
  • United States v. Clowers, 62 F.4th 1377 (11th Cir. 2023)
    Role in VanHoesen: Clowers is cited for the categorical statement that the First Step Act does not authorize a reduction below the statutory minimum that would have applied had the Fair Sentencing Act been in effect at the time of the offense.
  • United States v. Runner, 143 F.4th 146 (2d Cir. 2025)
    Role in VanHoesen: Runner supplies the harmless-error framing: even though the district court believed it had discretion, the error is harmless when the same sentence necessarily follows from a statutory mandate.
  • United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007)
    Role in VanHoesen: Villafuerte supports applying plain-error review due to VanHoesen’s failure to raise the specific procedural objection (including a developed § 3553(a) challenge) in the district court.
  • United States v. VanHoesen, 450 F. App’x 57 (2d Cir. 2011), cert. denied, 568 U.S. 890 (2012)
    Role in VanHoesen: This is the prior appeal affirming VanHoesen’s conviction and original sentence, providing procedural history and context for the later resentencing under § 404(b).

Legal Reasoning

  1. Step 1: Identify the lawful resentencing framework under § 404(b).
    Section 404(b) authorizes a court to “impose a reduced sentence as if sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect” when the offense was committed. The Second Circuit treats this “as if” clause as a targeted retroactivity instruction: apply Fair Sentencing Act crack-quantity threshold changes retroactively, but do not treat § 404(b) as a general resentencing portal for other nonretroactive statutory reforms.
  2. Step 2: Apply Fair Sentencing Act thresholds to VanHoesen’s offense to determine the new statutory range.
    The jury found the conspiracy involved 50 grams or more of crack. Under the Fair Sentencing Act’s adjusted thresholds, that quantity falls under 21 U.S.C. § 841(b)(1)(B) (28 grams or more), not § 841(b)(1)(A) (280 grams or more). As a result, the applicable minimum imprisonment term becomes 10 years (not life), and the supervised-release minimum becomes eight years if there was a qualifying prior “felony drug offense” under the version applicable via the Fair Sentencing Act “as if” instruction.
  3. Step 3: Reject the attempt to import § 401’s narrower recidivist trigger into the statutory minimum calculation.
    VanHoesen argued that § 401(a)(2)(B) changed the trigger for the eight-year supervised-release minimum from a prior “felony drug offense” to a prior “serious drug felony or serious violent felony,” and that Concepcion permits considering that change. The panel’s answer is statutory: Congress expressly limited § 401’s retroactivity in § 401(c). Because VanHoesen was sentenced long before enactment, § 401 does not apply to him. Under Rutherford v. United States and United States v. Bryant, courts must respect that legislative choice.
  4. Step 4: Clarify what Concepcion does—and does not—do.
    Concepcion permits district courts to consider intervening changes in law and fact (including unrelated Guidelines changes) in deciding whether, and how much, to reduce a sentence under § 404(b). But Concepcion operates within “statutory and constitutional limits.” A mandatory minimum is the paradigmatic statutory limit: it removes judicial discretion to go lower. Accordingly, Concepcion cannot be read to authorize a sentence below an applicable mandatory minimum, including a mandatory minimum term of supervised release.
  5. Step 5: Disallow using Guidelines amendments as a backdoor around statutory minimums.
    The district court had relied on the idea that Guidelines amendments implementing § 401 could support a lower supervised-release minimum. The Second Circuit rejects this: even if Guidelines policy shifts, the statute controls. Guidelines cannot override Congress’s command that supervised release “shall” be at least eight years under the applicable version of § 841(b)(1)(B).
  6. Step 6: Address standard of review and harmlessness.
    The court applied plain-error review because VanHoesen did not preserve the procedural challenge below. In any event, it affirmed because the district court was required to impose eight years; its mistaken belief that it had discretion was harmless under United States v. Runner since the same outcome was legally compelled and was in fact imposed.

Impact

1) Clear boundary on Concepcion in the Second Circuit. VanHoesen crystallizes a limiting principle: Concepcion expands the universe of considerations in the discretionary phase of § 404(b) resentencing, but it does not alter the statutory-penalty phase. This matters because many First Step Act motions attempt to blend nonretroactive reforms into the “as if” construct.

2) Mandatory minimum supervised release is treated like mandatory minimum imprisonment. The opinion treats mandatory supervised release terms as equally binding statutory floors. That framing discourages litigants from treating supervised release as more pliable than incarceration.

3) Reinforces Congress’s “selective retroactivity” architecture. By insisting that § 404(b) does not “countermand” § 401(c)’s nonretroactivity, the Second Circuit strengthens the interpretive approach that different First Step Act sections have distinct retroactivity instructions that courts must respect rather than harmonize toward maximal retroactivity.

4) Practical litigation consequence: arguments shift to § 3553(a), not statutory recalculation. Defendants may still cite nonretroactive legal developments (including § 401) as equitable considerations bearing on the discretionary decision within lawful bounds, but VanHoesen closes the door on using such developments to lower statutory minimums.

Complex Concepts Simplified

  • Section 404(b) “as if” resentencing: The court may resentence as though the Fair Sentencing Act’s crack thresholds were in effect at the time of the offense. It is not a full legislative update of every later change in sentencing law.
  • Mandatory minimum (imprisonment vs. supervised release): A mandatory minimum is a floor set by Congress. Judges can sentence above it (up to the maximum) but cannot go below it absent a specific statutory mechanism. This applies to supervised release terms too when the statute says “at least” a specified number of years.
  • Nonretroactivity (and § 401(c)): When Congress makes a reform nonretroactive, it means the reform does not apply to people already sentenced—except for any limited exception Congress expressly provides. Section 401(c) provides such a limited exception only for offenses committed before enactment where sentence had not yet been imposed.
  • Guidelines vs. statutes: The Sentencing Guidelines are advisory and cannot override statutes. If a Guideline recommendation conflicts with a statutory minimum, the statute wins.
  • Categorical approach (mentioned in the district court’s analysis): A method of comparing state offenses to federal definitions by looking at the statute’s elements, not the defendant’s actual conduct. Even if relevant to whether a prior conviction counts as a “serious drug felony,” VanHoesen holds that this inquiry cannot matter for statutory minimums when § 401 is nonretroactive.
  • Plain error review: Appellate courts apply a stricter standard when a party did not properly preserve an objection in the trial court. Here, the panel noted plain error, but ultimately held the outcome would be the same under any standard because the eight-year term was mandatory.

Conclusion

United States v. VanHoesen establishes (and in the Second Circuit, squarely reaffirms) a bright-line rule for First Step Act resentencings: § 404(b) allows discretionary consideration of intervening changes under Concepcion, but it does not permit courts to reduce statutory mandatory minimums—including mandatory minimum supervised release—by importing nonretroactive § 401 changes or Guidelines amendments reflecting those changes.

The decision is significant because it clarifies the post-Concepcion landscape: courts may think broadly about what they can consider, but they must sentence within the statutory limits Congress preserved. In short, Concepcion opens the door to fuller discretionary reasoning; VanHoesen closes the door on using that discretion to cross a statutory floor.