United States v. Timothy Carpenter, 80 F.4th 790

Defendant Timothy Carpenter was resentenced after his pre-First Step Act sentence (imposed before Dec. 21, 2018) was vacated; the question was whether the First Step Act §403(b) applies at resentencing.
Section 403(b) makes the Act’s amendments applicable to offenses committed before enactment “if a sentence for the offense has not been imposed as of such date of enactment.”
A Sixth Circuit panel applied binding precedent (United States v. Jackson) holding that the statute’s reference to “a sentence” is a historical inquiry: any sentence imposed before the Act’s effective date (even later-vacated sentences) precludes §403(b) relief.
Carpenter sought rehearing en banc; the petition was denied (less than a majority voted for rehearing). Several judges filed separate opinions: Kethledge concurred in the denial (defending Jackson); Griffin and Bloomekatz dissented from the denial and argued Jackson was wrongly decided and en banc review was warranted.
The government agreed (in briefing) that Jackson was wrongly decided and supported rehearing; dissents emphasized circuit split and the substantial sentencing consequences of the interpretation.

Issue	Carpenter's Argument	Government/Panel Argument	Held
Whether §403(b)’s phrase “a sentence ... has not been imposed as of such date of enactment” excludes sentences that were later vacated (i.e., whether vacated sentences count)	A vacated sentence is void ab initio and thus no sentence existed as of the Act’s effective date, so §403(b) applies at resentencing	The statute asks about the historical fact of whether any sentence had been imposed by the enactment date; any sentence imposed before Dec. 21, 2018 (even if later vacated) bars §403(b) relief	Panel applied Jackson: vacated pre-Act sentences count; petition for rehearing en banc denied (majority declined to revisit Jackson)
Whether the present-perfect wording (“has been imposed”) refers to an ongoing legal condition (a sentence with continuing legal effect) or merely a past imposition	The present-perfect contemplates a sentence’s continuing legal effect; vacatur eliminates that effect so the statute applies	The ordinary meaning focuses on the historical act of imposition; present-perfect here marks the state as of enactment, not whether the sentence survives later vacatur	Majority followed historical-imposition reading (per Jackson); concurrence defends that reading; dissents favor reading that vacatur negates the sentence for §403(b) purposes

Dorsey v. United States, 567 U.S. 260 (Sup. Ct. 2012) (clear-statement rule on retroactivity of ameliorative sentencing changes)
United States v. Jackson, 995 F.3d 522 (6th Cir. 2021) (Sixth Circuit precedent holding pre-Act sentences bar §403(b) relief)
United States v. Uriarte, 975 F.3d 596 (7th Cir. 2020) (en banc) (discussion of vacatur and interpretation of §403(b))
United States v. Hughes, 733 F.3d 642 (6th Cir. 2013) (statutory retroactivity principles)
United States v. Henry, 983 F.3d 214 (6th Cir. 2020) (treatment of a sentence remaining “imposed” until vacatur)
United States v. Merrell, 37 F.4th 571 (9th Cir. 2022) (holds vacated sentences do not count for §403(b) purposes)
United States v. Mitchell, 38 F.4th 382 (3d Cir. 2022) (holds vacated sentences do not count for §403(b) purposes)
Johnson v. United States, 559 U.S. 133 (Sup. Ct. 2010) (rejecting forced term-of-art definitions where context does not fit)
Pepper v. United States, 562 U.S. 476 (Sup. Ct. 2011) (vacatur described as ‘‘wiping the slate clean’’)