UNITED STATES OF AMERICA v. KENNETH J. JACKSON, JR.
Nos. 19-3623/3711
United States Court of Appeals, Sixth Circuit
Decided and Filed: April 22, 2021
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0091p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant,
v.
KENNETH J. JACKSON, JR.,
Defendant-Appellant/Cross-Appellee.
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:15-cr-00453-1—Patricia A. Gaughan, District Judge.
Decided and Filed: April 22, 2021
Before: BATCHELDER, MOORE, and BUSH, Circuit Judges.
COUNSEL
ON BRIEF: Kevin M. Cafferkey, Cleveland, Ohio, for Appellant/Cross-Appellee. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee/Cross-Appellant. Alec Schierenbeck, O’MELVENY & MYERS LLP, New York, New York, Nathan Freed Wessler AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York for Amici Curiae.
BUSH, J., delivered the opinion of the court in which BATCHELDER, J., joined. MOORE, J. (pp. 7–9), delivered a separate dissenting opinion.
JOHN K. BUSH, Circuit Judge. As judges, we assume that Congress says what it means and means what it says. That is why statutory interpretation begins with the text. FNU Tanzin v. Tanzir, 141 S. Ct. 486, 489 (2020). When Congress reduced the scope of
I.
A. STATUTORY BACKGROUND
B. PROCEDURAL BACKGROUND
In May of 2017, a jury convicted Jackson and the district court sentenced him on three counts of carjacking and, as relevant here, three counts of brandishing a firearm during a crime of violence under
Id. at 494. At the resentencing hearing, the district court determined that the First Step Act’s amendments to
II.
We interpret statutes de novo. United States v. Jeffries, 958 F.3d 517, 519 (6th Cir. 2020). Our task begins with the statutory text. Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019). When, as here, the text is clear, it ends there as well. Id.
The relevant retroactivity provision reads: “This section, and the amendments made by this section, shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” First Step Act § 403(b). The date of enactment was December 21, 2018. Two textual clues clarify that provision’s meaning. First, Congress’s decision to use the present-perfect tense makes December 21, 2018 the date of inquiry. The present perfect “denotes an act, state, or condition that is now completed or continues up to the present.” The Chicago Manual of Style ¶ 5.132 (17th ed. 2017). So the question whether a sentence “has been imposed” requires us to ask if the sentencing process ended by the date of enactment. Second, Congress’s use of the indefinite article “a” indicates that the statute does not refer only to the final sentence a defendant receives. See Bryan A. Garner, Garner’s Modern English Usage 991 (4th ed. 2016). Thus, the retroactivity provision’s text creates a straightforward test for retroactivity. We must look at Jackson’s status as of December 21,
We have applied that test in two published opinions. In United States v. Richardson, 948 F.3d 733 (6th Cir. 2020), Richardson argued that a sentence had not been imposed for his
For that reason, this case follows Richardson. On the relevant date for retroactivity, Jackson was in the exact same situation as Richardson: under sentence pending appeal. Richardson, 948 F.3d at 738. That Jackson’s first appeal went better than Richardson’s does not alter our inquiry under the retroactivity provision.
In arguing to the contrary, Jackson contends that when his sentence was vacated “his sentence was rescinded, and there was no longer a sentence imposed on him until he was resentenced.” That argument misconstrues the First Step Act’s retroactivity inquiry. That Jackson was without a sentence for three months in 2019 does not change the fact that as of December 21, 2018, a sentence had been imposed on him. After all, vacatur does not erase Jackson’s prior sentence from history. Vacatur merely “make[s] void” the thing vacated. Vacate, Black’s Law Dictionary (11th ed. 2019). When that thing becomes void, it is “of no legal effect” anymore. Void, Black’s Law Dictionary (11th ed. 2019). But eliminating a
sentence’s prospective legal effect only “wipe[s] the slate clean” looking forward. Pepper v. United States, 562 U.S. 476, 507 (2011). It does not retroactively change Jackson’s status in the prior months.
For that reason, we part ways with the Fourth Circuit’s contrary conclusion in United States v. Bethea, --- F. App’x ---, 2021 WL 219201 (4th Cir. Jan. 21, 2021). There, our sister circuit reasoned that because a district court vacated Bethea’s sentence, “a sentence cannot legally be said to have been imposed until 2019.” Id. at *5. Based on that logic, it decided that Bethea’s case did not meaningfully differ from our decision in Henry and the Seventh Circuit’s Uriarte decision. Id. (“[I]t matters not when that vacatur occurred, because his only legally effective sentence was imposed after the FSA’s enactment.”). But that analysis misconstrues our Henry decision, where we explained that “[t]he better reading of ‘a sentence’ requires the defendant to have a valid
In addition to the vacatur argument, amici2 contend that the First Step Act’s amendments should apply to all resentencing hearings that occur after the date of enactment based on the general “principle that a court is to apply the law in effect at the time it renders its decision.” Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711 (1974). But Bradley qualified that general principle in the rest of that sentence, noting that it applies only when there is no statutory directive to the contrary. Id. More recently, in Dorsey v. United States, the Supreme Court explained that the general savings statute that has been in place since 1871 provides the statutory directive to the contrary for all statutory changes. 567 U.S. 260, 272 (2012). That statute
provides that Congress’s amendments to “an older criminal statute shall not change the penalties ‘incurred’ under that older statute ‘unless the repealing Act shall so expressly provide.’” Id. at 272 (quoting
III.
For those reasons, we vacate Jackson’s sentence and remand for the district court to sentence him under the version of
UNITED STATES OF AMERICA v. KENNETH J. JACKSON, JR.
Nos. 19-3623/3711
United States Court of Appeals, Sixth Circuit
Decided and Filed: April 22, 2021
DISSENT
KAREN NELSON MOORE, Circuit Judge, dissenting. The majority contends that because Jackson was originally sentenced prior to the First Step Act’s enactment and we did not vacate his sentence until afterwards, First Step Act § 403 does not apply at Jackson’s resentencing in 2019. I disagree because the plain language, structure, and purpose of First Step Act § 403 suggest that this provision applies to Jackson’s resentencing.
Two things changed between Jackson’s initial sentencing and now. In 2018, Congress passed the First Step Act. With the First Step Act, the escalating mandatory-minimum sentences for a second or subsequent
When we vacate a defendant’s sentence and remand for resentencing, the vacated sentence is not “a sentence” for the purposes of the First Step Act. Our order vacating Jackson’s sentence rendered Jackson’s initial sentence “in essence, a nullity.” Jackson, No. 1:15 CR 453-001, 2019 WL 2524786, at *2; see also Black’s Law Dictionary (11th ed. 2019) (defining “vacate” as “[t]o nullify or cancel; make void; invalidate”). We have clearly stated that a general remand “effectively wipes the slate clean,” and “gives the district court authority to redo the
entire sentencing process.” United States v. McFalls, 675 F.3d 599, 606 (6th Cir. 2012). We must “assum[e] [that] Congress is well aware of the background principle[s]” including the effects of a vacatur and general remand, “when it enacts new criminal statutes.” Dorsey v. United States, 567 U.S. 260, 274 (2012). The Fourth Circuit in United States v. Bethea, No. 19-4618, -- F. App’x --, 2021 WL 219201 (4th Cir. Jan. 21, 2021), interpreted First Step Act § 401, which includes an identical applicability provision to § 403, to cover a defendant whose sentence had been vacated after the First Step Act’s enactment. The Fourth Circuit concluded that the defendant’s “sentence is best understood as ‘imposed’ for purposes of the FSA on the date of its reimposition, because the district court’s vacatur rendered his 2015 sentence a legal nullity.” Id. at *4.
The majority contends that, although this court vacated Jackson’s prior sentence, “vacatur does not erase Jackson’s prior sentence from history.” (Maj. Op. at 4). Taken to its logical conclusion, however, this interpretation of vacatur “would put us in the unusual position of giving effect to legal judgments subsequently vacated.” United States v. Henry, 983 F.3d 214, 223 (6th Cir. 2020). Extending First Step Act § 403 to Jackson avoids this illogical conclusion. Further, the majority’s analysis of the retroactivity provision of First Step Act § 403 adopts a reading of the text that we rejected in Henry. Specifically, the majority contends that “Congress’s use of the indefinite article ‘a’ indicates that the statute does not refer only to the final sentence a defendant receives.” (Maj. Op. at 3). In Henry, however, we cautioned against “plac[ing] undue emphasis on this one-letter article.” 983 F.3d at 223; see also United States v. Uriarte, 975 F.3d 596, 603–04 (7th Cir. 2020) (en banc) (analyzing and rejecting grammar argument).
Moreover, the majority misconstrues the import of our recent decision in Henry. In Henry, we did not reach the question of whether First Step Act § 403 applied to defendants whose sentences were vacated after the First Step Act’s enactment because that question was not before us. 983 F.3d at 222 & n.2. Nonetheless, the majority reads Henry’s statement that “[t]he better reading of ‘a sentence’ requires the defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at some point” to preclude Jackson from relief under First Step Act § 403. (Maj. Op. at 5) (quoting 983 F.3d at 222). To the extent that Henry is
relevant to Jackson’s case, it supports relief. We emphasized in Henry that § 403
Finally, the government argues that applying First Step Act § 403 to Jackson would lead to inequitable outcomes. As we reasoned in Henry, however, “[s]entencing disparities are the consequence of Congress’s decision to refrain from making § 403 fully retroactive. Given that some disparities will exist in any event, they should not prevent [a defendant] from benefiting from First Step Act § 403.” 983 F.3d at 228.
When we vacated Jackson’s sentence in 2019, we rendered Jackson’s sentence a legal nullity for the purposes of First Step Act § 403. For this reason, I would affirm the district court, which properly resentenced Jackson. I respectfully dissent.