United States v. Kenneth Jackson, Jr., 19-3711

Background

Kenneth Jackson Jr. was convicted in 2017 of multiple carjackings and three counts under 18 U.S.C. § 924(c) for brandishing a firearm; the district court imposed mandatory minimums and he appealed.
While his appeal was pending, Congress enacted the First Step Act (Dec. 21, 2018), amending § 924(c) and making the amendment retroactive for offenses "if a sentence for the offense has not been imposed as of" enactment.
This court vacated one of Jackson’s § 924(c) convictions on appeal and remanded for resentencing in 2019. At resentencing the district court applied the First Step Act and reduced the § 924(c) exposure, but increased the carjacking terms, producing a net change Jackson appealed and the government cross‑appealed.
The central legal question: whether § 403(b) of the First Step Act applies when a defendant was sentenced before enactment but that sentence was later vacated and resentencing occurs after enactment.
The Sixth Circuit majority held that the relevant inquiry is Jackson’s status on Dec. 21, 2018 (the Act’s enactment date); because a sentence had been imposed on him as of that date, the statutory retroactivity does not apply.
Judge Moore dissented, arguing vacatur rendered the original sentence a legal nullity and that the Act should apply at resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §403(b)’s phrase "if a sentence for the offense has not been imposed as of such date of enactment" looks to the defendant’s status on the enactment date or to whether any sentence later remains valid	Jackson: Vacatur of the original sentence means no valid sentence existed for resentencing, so he falls within §403(b) at the time of resentencing	Government: The present‑perfect wording directs inquiry to status on Dec. 21, 2018; Jackson had a sentence then, so §403(b) does not apply	Court: Reference date is enactment; because a sentence had been imposed on Jackson as of Dec. 21, 2018, §403(b) does not apply
Whether a later vacatur retroactively erases the fact that a sentence existed on the enactment date for purposes of §403(b)	Jackson: Vacatur makes the prior sentence a legal nullity, so it should not count for retroactivity purposes	Government: Vacatur eliminates prospective legal effect but does not change historical fact that a sentence existed on the enactment date	Court: Vacatur does not retroactively change the defendant’s status as of enactment; the historical sentence remains dispositive
Whether the general rule that courts apply the law in effect when they render decisions requires applying the First Step Act at resentencing	Amici/Jackson: Courts should apply law in effect at the time of resentencing (Bradley principle)	Government: The savings statute and Dorsey show Congress can and did limit retroactivity; the Act’s specific text controls	Court: The Bradley principle yields to Congress’s explicit retroactivity directive; the Act’s phrasing governs

Key Cases Cited

FNU Tanzin v. Tanzir, 141 S. Ct. 486 (2020) (textualist starting point: interpret statute by its text)
Rotkiske v. Klemm, 140 S. Ct. 355 (2019) (statutory interpretation begins with the text)
United States v. Davis, 139 S. Ct. 2319 (2019) (context on §924(c) application before First Step Act)
Dorsey v. United States, 567 U.S. 260 (2012) (explains effect of savings statute on retroactivity of criminal‑penalty changes)
Pepper v. United States, 562 U.S. 476 (2011) (vacatur and resentencing do not retroactively alter prior status for all purposes)
Bradley v. School Bd. of Richmond, 416 U.S. 696 (1974) (courts generally apply law in effect when they act, subject to statutory directives)
United States v. Jackson, 918 F.3d 467 (6th Cir. 2019) (this court’s prior opinion vacating one §924(c) count and remanding for resentencing)
United States v. Richardson, 948 F.3d 733 (6th Cir. 2020) (held a sentence is "imposed" when the district court sentences the defendant)
United States v. Henry, 983 F.3d 214 (6th Cir. 2020) (distinguished defendants whose sentences were vacated before enactment from those vacated after enactment)
United States v. Uriarte, 975 F.3d 596 (7th Cir. 2020) (en banc) (interpreting the Act’s applicability and noting different results where a defendant was sentence‑less at enactment)
United States v. Hodge, 948 F.3d 160 (3d Cir. 2020) (discussing textual readings of §403(b))
United States v. McFalls, 675 F.3d 599 (6th Cir. 2012) (vacatur and remand "wipe the slate clean" for prospective sentencing authority)