Case Information
R IPPLE B ARRETT B RENNAN Circuit Judges . B ARRETT Circuit Judge
Section certain fi rearm o ff enses. Sentencing reform generally prospective, but these amendments also o ff ense commi tt ed fore “if o ff ense im posed such enactment.” Pub. L. 403(b), Stat. (codi fi ed U.S.C. § note). Tony was of and, sees it, means is entitled to bene fi t of statute’s reforms. But circuit rejected very argu ment in Pierson which holds “a is ‘imposed’ in district court, regardless appeals.” The sentenced passed, so First Step Act him.
I.
Tony belonged a gang conspired kid nap and rob drug dealers for money and drugs. gang was responsible for murders, kidnappings, and robberies, and directly involved least two kidnappings firearms were used threaten victims. indicted convicted several federal includ racketeering, crimes, two counts using a fire arm commit a kidnapping violation § 924(c).
A conviction a single count using a firearm com mit a crime violence like kidnapping carries a mandatory minimum penalty five years’ imprisonment. Id. § 924(c)(1)(A)(i). That mandatory elevated seven years if “brandished” during course crime. Id. § 924(c)(1)(A)(ii). First Step Act, second violation § 924(c) triggered much higher year minimum, even if two counts were asserted single indictment. § 924(c) only 924(c) violation committed after prior conviction same will trigger year mini mum. 403(a); Davis n.1 17 3318 3
Sparkman initially sentenced 2012—years the the Act. court calculated subject mandatory minimum 42 years’ impris onment: years for the various racketeering and charges, years for first firearm offense because the court determined involved brandishing weapon, and years firearm offense. district court tenced Sparkman years.
Sparkman and several his codefendants appealed their convictions sentences. Cardena Among arguments, reviewed challenge their sentences based Court’s de cision Alleyne brandishing element 924(c) be found by jury. In case, court ra ther than found element brandishing. Car dena 1000–02. vacated remanded could be resentenced without brandishing enhancement first firearm
In October resentenced following instructions Cardena Without brandish enhancement first offense, tal dropped years. November filed notice filed opening appellate brief, became law. now should yet again benefit
II. we turn his sentencing challenge, we
briefly address challenge his underlying ‐ viction. Among other Sparkman was convicted two counts using commit “crime violence,” defined in 924(c)(3). his first appeal, Spark ‐ man argued that residual clause statutory defi ‐ nition “crime violence” was unconstitutionally vague. He not raised issue at trial before instructed jury, we reviewed plain error. Cardena F.3d at 997; v Olano agreed that residual clause was unconstitu ‐ tional, but concluded failed show court’s erroneous instructions affected substantial rights. Cardena at Now first time court’s error structural inherently prejudicial. time has long passed introduce
new argument. law doctrine bars parties changing their litigation positions successive appeals “ex cept where justified by intervening authority, new previ ously undiscoverable evidence, changed circum stances.” Sumner concedes has never argued error structural but asserts “interven authority” side. points Court’s decision Davis validated conclu sion Cardena residual clause 924(c)(3) uncon stitutionally vague. Davis however, does add any force claim structural error; fact, men tion structural error all. Davis intervening authority *5 No.
that justifies Sparkman’s change litigation position. law of case bars new argument.
We note, though, would fail on merits any event. has when instructs on alternative theories of guilt one theory is invalidated, no structural error has occurred. Hedgpeth Pulido U.S. 61–62 Sparkman’s viction stands.
III. now turn Sparkman’s primary argument: be third time can receive
benefit of section of general, adopting new, more lenient penalties pre offenses unless retroactive application is “plain import” “fair implication” new statute. Dorsey (2012); 109. Ret roactive application “plain import” cause it explicitly covers pre conduct—but only “if tence been imposed as such date enactment.” Pub. L. 403(b), Stat. eligibility resen tencing rides whether language applies argues sentence “imposed” until reaches final disposition highest reviewing court. As date initial been vacated, been resentenced, pending means no “imposed” enact ment.
6 17 3318
We rejected reading the statute United States v. Pierson , 925 F.3d 913, 927–28 (7th Cir. 2019), vacated on other grounds , S. Ct. (2020). [1] Pierson’s case pend ‐ on on claimed been “imposed” because case reached final disposition. We disagreed. Focusing or ‐ dinary legal usage word “imposed,” sen ‐ tence “imposed” when sentences de ‐ fendant, “regardless appeals.” Id. 927. concluded imposed Pierson’s case, notwithstanding See also United States v. Jackson F.3d (7th Cir. 2019) (reaching same ‐ clusion). efforts distinguish Pierson are unpersua
sive. points out Pierson dealt with different provi sion First Step Act—section which tences certain rather than section applies firearms. But both sections use identical language address sentencing pre offenses. See §§ 401(c), 403(b). And “identical words used dif ferent parts same are generally presumed have same meaning.” IBP, Inc. v. Alvarez (2005). offers no reason deviate pre sumption part ways circuits have ap plied reasoning Pierson See, e.g. Jordan (4th Cir. 2020); Richardson 748–50 Precedent forecloses entitled Act’s more lenient penalty
* * *
Because Sparkman, AFFIRM court’s judgment.
[1] granted certiorari Pierson vacated judg ment, remanded based entirely separate ground. vacatur did call into question Pierson ’s analysis