92 F.4th 304
5th Cir.2024Background
- Corey Deyon Duffey, Jarvis Dupree Ross, and Tony R. Hewitt were convicted in 2009 on multiple bank robbery and § 924(c) firearm charges, resulting in lengthy mandatory minimum sentences due to "stacking" under prior law.
- On direct appeal, some convictions and firearm predicates were reversed; others affirmed, necessitating a resentencing, which occurred in 2012.
- All three defendants later filed § 2255 motions after the Supreme Court ruled conspiracy to commit bank robbery was not a crime of violence for § 924(c) purposes (United States v. Davis), leading to successful vacatur of certain convictions and another resentencing.
- At resentencing (post-First Step Act), defendants argued § 403 of that Act—which eliminated stacking of multiple § 924(c) charges—should apply to their new sentences.
- Additional arguments included whether Duffey’s sentencing enhancement for physical restraint and Hewitt’s motion to dismiss remaining bank robbery-related § 924(c) counts were valid.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether First Step Act § 403 applies to resentencing after pre-Act sentences are vacated | Duffey et al: Should apply, as new sentences imposed after Act | U.S.: Initially opposed, later agreed (government changed position) | No; § 403 does not apply where any sentence imposed pre-Act, even if vacated |
| Physical restraint enhancement (Duffey) | Not physically restrained per guidelines | Victim was held at gunpoint/moved to vault | Yes; enhancement properly applied |
| Dismissal of remaining bank robbery-based § 924(c) convictions (Hewitt) | Motion should be granted as initial predicate vacated | Court can’t grant without new § 2255 motion | No; district court lacked jurisdiction; claim over limit of § 2255 authorization |
Key Cases Cited
- Deal v. United States, 508 U.S. 129 (stacking of § 924(c) sentences permitted under prior law)
- Pepper v. United States, 562 U.S. 476 (effect of sentence vacatur is prospective only)
- Carcieri v. Salazar, 555 U.S. 379 (statutory construction begins and ends with unambiguous text)
- Robinson v. Shell Oil Co., 519 U.S. 337 (plainness or ambiguity based on statutory text and context)
- BedRoc Ltd. v. United States, 541 U.S. 176 (unambiguous statutory text governs outcome)
- Shular v. United States, 140 S.Ct. 779 (rule of lenity applies only to ambiguous statutes)
- United States v. Gomez, 960 F.3d 173 (sentence imposed when district court pronounces it)
- United States v. Rodriguez, 630 F.3d 377 (standard of review for district court’s findings at sentencing)