37 F.4th 571
9th Cir.2022Background
- In 1996 Merrell, Berry, and Barbee committed bank robberies and bombings and were convicted in 1997, including four counts under 18 U.S.C. § 924(c) that produced consecutive "stacked" mandatory minimums (some based on destructive devices).
- At original sentencing the court imposed long consecutive terms (including life terms) under the pre‑First Step Act § 924(c) scheme; convictions and sentences were affirmed on direct appeal.
- After the Supreme Court’s decision in United States v. Davis (2019) invalidated § 924(c)’s residual clause, the district court vacated two § 924(c) convictions and resentenced the defendants on the remaining § 924(c) counts, again stacking sentences.
- The First Step Act (2018) amended § 924(c) to prevent stacking based on convictions from the same indictment unless a prior § 924(c) conviction "has become final," and § 403(b) provides the Act applies to pre‑Act offenses "if a sentence for the offense has not been imposed as of [enactment]."
- The central dispute: whether § 403(b) bars application of the First Step Act when a pre‑Act sentence was imposed on the enactment date but later vacated and a new sentence is imposed after enactment.
- The Ninth Circuit majority held the Act applies at resentencing after vacatur (vacating and remanding the defendants’ sentences); a dissent argued the statutory text forecloses retroactive application to defendants whose sentences were imposed as of December 21, 2018.
Issues
| Issue | Appellants' Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the First Step Act §403(b) applies when a pre‑Act sentence imposed before enactment is later vacated and resentencing occurs after enactment | Vacatur “wipes the slate clean”; after vacatur there is effectively no sentence as of enactment for purposes of §403(b), so the Act applies at the post‑vacatur resentencing | "A sentence" in §403(b) means any sentence imposed as of Dec. 21, 2018; because these defendants had sentences then, the Act does not apply | Majority: Act applies; vacated prior sentences are legal nullities so §403(b)’s condition is satisfied and resentencing must follow the First Step Act; sentences vacated and remanded |
| Proper reading of the phrase "a sentence" in §403(b) | Read in context and against vacatur doctrine, "a sentence" refers to an existing valid sentence; a vacated sentence is not an existing sentence | The indefinite article "a" and present‑perfect phrasing point to looking at whether any sentence had been imposed on Dec. 21, 2018; here sentences had been imposed | Majority: interpret "a sentence" to mean a presently existing valid sentence; vacated sentences do not count; resolution favors retroactivity in these circumstances |
| Role of interpretive aids (context, precedent, lenity) | Apply holistic statutory interpretation, recognized vacatur precedent (Pepper) and congressional purpose to reduce stacking; if doubt remains, apply rule of lenity in favor of defendants | Insists on textual plain meaning tied to the enactment date; defers to statutory text rather than policy arguments | Majority: uses context and vacatur principle; also invokes lenity as tie‑breaker; dissent emphasizes strict textual reading |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (invalidating §924(c)(3)(B) residual clause)
- Pepper v. United States, 562 U.S. 476 (2011) (vacatur "wipes the slate clean" at resentencing)
- Deal v. United States, 508 U.S. 129 (1993) (existing rule allowing §924(c) enhancements from same trial prior to First Step Act)
- United States v. Voris, 964 F.3d 864 (9th Cir. 2020) (held First Step Act does not apply on direct appeal of pre‑Act sentence)
- United States v. Uriarte, 975 F.3d 596 (7th Cir. 2020) (held First Step Act applies when original sentence vacated before resentencing)
- United States v. Hodge, 948 F.3d 160 (3d Cir. 2020) (declined to apply First Step Act to certain vacated‑sentence scenarios)
- United States v. Jackson, 995 F.3d 522 (6th Cir. 2021) (declined to apply the Act where sentence was vacated after enactment in a particular posture)
- United States v. Bethea, [citation="841 F. App'x 544"] (4th Cir. 2021) (applied First Step Act at resentencing where original sentence was vacated after enactment)