Whether the district court ruled directly contrary to the Court's direction in Concepcion by finding that Petitioner was eligible for relief but refusing to consider intervening facts

QUESTIONS PRESENTED FOR REVIEW A longstanding and durable tradition for federal sentencing in this nation is that judges have broad discretion in the kind of information and sources of information that may be considered at sentencing. Dean v. United States, 581 U.S. 62, 66 (2017); United States v. Tucker, 404 U. S. 443, 446 (1972); Williams v. New York, 337 U. S. 241, 246 (1949). Whether a defendant appears for sentencing or resentencing, the sentencing court considers the defendant on that day, not on the date the offense occurred or the date of conviction. Pepper v. United States, 562 U. S. 476, 492 (2011). Due process requires that a defendant’s sentence rest on accurate facts. Koon v. United States, 518 U.S. 81, 113 (1996); Townsend v. Burke, 334 U.S. 736, 741 (1948). With this backdrop, Congress passed the First Step Act of 2018 which, among other things, gave the Fair Sentencing Act of 2010 retroactive effect, permitting incarcerated persons to petition the district court to impose a reduced sentence as if certain portions of the Fair Sentencing Act were in effect at the time the covered offense was committed. The Act does not require the district court to reduce any sentence. But in Concepcion v United States, 142 S. Ct. 2389 (2022), the Court held that the First Step Act allows district courts to consider intervening changes of law or fact in exercising their discretion to reduce a sentence pursuant to the First Step Act. Id. at 2396, 2404. Petitioner had been charged with use of a firearm in relation to a drug sentencing crime resulting in a murder. The jury did not reach a verdict on that count, and the government later dismissed it. Despite that lack of jury finding, the district court ordered Petitioner to serve life in prison largely based on a murder cross-reference. In his First Step Act motion, Petitioner cited changed circumstances including that, after a jury was unable to reach a verdict on murder, the original judge made factual findings that contradicted trial testimony, as later shown when the trial transcripts were prepared. The district court partially granted First Step Act “relief” in name only, agreeing to reduce Petitioner’s life sentence to a total sentence of 80 years—effectively reimposing a life sentence. In failing to grant further relief, the district court agreed that the original sentencing court did not have access to the trial transcripts at sentencing, Pet. App. 23a, but refused to consider intervening facts surrounding the murder cross-reference, stating, “the Court cannot, and will not, review the facts underlying the sentencing court’s decision from twenty years ago that the” murder cross-reference applied. Pet. App. 24a. Accordingly, the first question is whether the district court ruled directly contrary to the Court’s direction in Concepcion by finding that Petitioner was eligible relief but refusing to consider intervening facts—the availability of a transcript to question the validity of the murder cross-reference. The second question is whether the district court failed to follow the Court’s directives to sentence based on accurate information available from a variety of courses. The third question is whether the re-imposition of a life sentence based on a murder cross-reference, following a jury’s failure to reach a verdict, violates the Fifth and Sixth Amendment rights to due process, fair trial and trial by jury. i