UNITED STATES OF AMERICA v. TYRONE MITCHELL, a/k/a Fox
No. 20-2493
United States Court of Appeals for the Third Circuit
June 29, 2022
Before: AMBRO, BIBAS, and ROTH, Circuit Judges
PRECEDENTIAL. Argued on January 11, 2022. Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal Action No. 2-12-cr-00172-001). District Judge: Honorable Paul S. Diamond.
Peter Goldberger [ARGUED]
Pamela A. Wilk
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellant
Emily McKillip
Robert A. Zauzmer [ARGUED]
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
ROTH, Circuit Judge.
In 2018, the President signed the First Step Act, bipartisan legislation implementing long-sought-after criminal-justice reform. In this appeal, we must decide how the First Step Act affects Tyrone Mitchell‘s sentence for various drug and gun-related offenses in violation of
Generally, when Congress passes a statute that imposes a more lenient penalty, the retroactivity of that statute will be explicitly set forth in the statute‘s text.2 In this regard, Congress chose to limit the benefits of the First Step Act. The Act applies, prospectively, to all offenses committed after the Act‘s enactment but, retroactively, “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 [that] date.”3 We have interpreted this provision twice.4 Both times, however, we declined to decide the full reach of the statute‘s retroactivity. Rather, we expressly left open the question: “Whether § 403 applies to a defendant
This appeal requires that we answer that question.
A jury convicted Tyrone Mitchell of various drug-and-gun-related offenses, including two counts of possession of a firearm in furtherance of a drug-trafficking crime, and aiding and abetting such possession, in violation of
Mitchell now asks us to decide whether the Act‘s provisions may apply to a criminal defendant when a district court has imposed an unconstitutional sentence before the Act‘s enactment that we then vacated after its enactment. For the reasons set out below, we hold that in these circumstances, the provisions of the First Step Act do apply to the resentencing.6
I.
In October 2015, a jury convicted Mitchell of seventeen drug-and-gun related offenses.7 The District Court sentenced Mitchell to 1,020 months’ imprisonment.8
Mitchell appealed his conviction and sentencing; in his appeal, he raised eight issues.9 We rejected seven.10 However, we held that one of Mitchell‘s arguments had merit: The District Court had violated Mitchell‘s procedural-due-process rights when it sentenced him.11 In coming to this conclusion, we determined that a criminal “defendant cannot be deprived of liberty based upon mere speculation.”12 Here, the District Court plainly erred by imposing a sentence on Mitchell based on his arrest record: “a bare arrest record—without more—does not justify an assumption that a defendant has committed other crimes.”13 Because the District Court “explicitly referred to Mitchell‘s arrest[ record] when describing his long and serious criminal record and identified Mitchell‘s extensive criminal history as the sole justification for his sentence[,]”14 the District Court‘s sentence violated Mitchell‘s constitutional right to due process of the law.15 Accordingly, since the District Court had imposed an unconstitutional sentence, we vacated the judgment of sentence in 2019 and remanded the case to the District Court for resentencing.16
The District Court resentenced Mitchell in July 2020, after the passage of the Act. Due to the fact that the resentencing was
II.18
A.
Our first issue is whether
of enactment.”21 What does “impose a sentence” mean? Interpreting that language has vexed, and split, our sister circuits.22 Courts have interpreted these words in at least two ways. One interpretation is that “impose a sentence” means any sentence, regardless of whether the sentence is vacated for violating the defendant‘s constitutional rights. Another interpretation is that “impose a sentence” means a valid sentence that survives constitutional challenge on direct appellate review and is therefore not subject to a vacatur and full remand for resentencing.
We see how the statute plausibly could be read either
way.23 For that reason, the statute is genuinely ambiguous.24,25
Because the statute is ambiguous, we must decide how best to interpret it. As we explain below, we interpret “impose a sentence” to mean a valid sentence, one that survives a constitutional challenge on direct appellate review and is therefore not
First, our reading of the statute is more natural.26,27 Reading
interest.”30 For these reasons, we agree with the Fourth, Seventh, and Ninth Circuit Courts of Appeals and join them in construing
Second, we look to the legislative purpose of the Act.32 The Act‘s purpose is obvious: to reduce the harsh length of sentences for certain crimes—in the case of
Finally, our vacatur of Mitchell‘s sentence shows that Mitchell himself had no sentence at the time of his post-Act sentencing; thus, he should have received the Act‘s benefits. As we explained earlier, we
because, when the District Court sentenced him the first time, it violated his procedural-due-process rights.36 Understanding the meaning of a vacatur is imperative to interpreting
What is a vacatur? To vacate is “to cancel or rescind” and to “render an act void.”39 Thus, a vacatur “cancels” the previous sentence. A vacatur of a criminal sentence serves two functions. First, it recognizes that a district court violated the law by imposing the sentence. Second, it remedies the district court‘s ultra vires act by canceling the unlawful sentence and rendering the defendant unsentenced.
Supreme Court precedent supports this conclusion. As the Court said in Pepper, the act of vacating a sentence washes away the original sentence.40 There, the United States Court of Appeals for the Eighth Circuit “set aside [the defendant‘s] entire sentence and remanded for a de novo resentencing.”41 The Supreme Court held that the full remand “effectively
wiped the slate clean.”42 That makes sense, the Court explained, because “a district court‘s original sentencing intent may be undermined by altering one portion of the calculus,” and “an appellate court when reversing one part of a defendant‘s sentence may vacate the entire sentence . . . so that, on remand, the trial court can reconfigure the sentencing plan.”43
What‘s more, our own precedent distinguishes between limited remands for resentencing and a vacatur that involves a full remand. We explained that “to the extent that a court remands for a limited resentencing proceeding, and not a de novo proceeding, limitations on the consideration of post-sentencing rehabilitation may continue to be appropriate.”44 The Seventh Circuit Court of Appeals has explained that point very aptly: “When we vacate a sentence and order a full remand, the defendant has a ‘clean’ slate—that is, there is no sentence until the district court imposes a new one.”45 We agree that a vacatur of a sentence and order of a full remand cancels the original sentence and renders the defendant unsentenced until the district court imposes a new sentence.
Here, we “vacate[d Mitchell‘s] judgment of sentence and remand[ed] to the District Court for resentencing.”46 Our
vacatur of Mitchell‘s original sentence washed away that unconstitutional sentence, rendering it
In conclusion,
B.
Next, Mitchell contends that the District Court erred by applying to his Count One and Count Fifteen convictions the recidivist-drug-offender enhancement under
imprisonment of more than 12 months” and for which the “offender‘s release from any term of imprisonment was within 15 years of the commencement of the instant offense.”50
To begin, we note that the retroactivity-governing provision of
Mitchell claims that the government did not prove beyond a reasonable doubt that he was released from any of his prior drug offenses within fifteen years of the commencement of his Count One and Count Fifteen offenses.52 Count One charged him with conspiracy from January 2009 to March 2011 to distribute 500 grams or more of cocaine; Count Fifteen charged him with possession in October 2011 of at least 28 grams of crack and 506 grams of cocaine with intent to distribute. The parties agree that the government provided two prior drug convictions in its
However, as for his Count Fifteen conviction, the record is less clear about whether Mitchell was released from imprisonment for his 1993 conviction within fifteen years of the beginning of his Count Fifteen offense. Mitchell was initially released from prison for his 1993 conviction in 1995, but he was later sentenced to an additional six weeks of “custody” for violating the terms of his supervised release in 1998. Count Fifteen charged him with possession with intent to distribute on or about October 13, 2011. Mitchell‘s 1995 initial release for his 1993 conviction is not within fifteen years of the conduct charged in his Count Fifteen offense. Thus, for the Count Fifteen conduct to have begun within fifteen years of Mitchell‘s release from his 1993 conviction, Mitchell‘s 1998 time in “custody” for violating the terms of his supervised release would have to count as “imprisonment” for purposes of
Confinement for violations of supervised release count when deciding whether to apply the recidivist-drug-offender enhancement under
Here, the government does not seem to have met its burden. The best evidence that Mitchell served any “imprisonment” for his 1998 supervised-release violation is the presentence-investigation report, which explains that Mitchell was arrested in January 1998 and was sentenced to six weeks in custody in February 1998.55 That is all. The record before us includes no prison records, court records, or any other documentary evidence to show what type of punishment Mitchell was actually subjected to in 1998 for the supervised-release violation.
At sentencing, the District Court appeared not to have reviewed the record to determine whether Mitchell served any confinement for his 1998 supervised-release violation because the court refused to apply the Act to Mitchell. For that reason, the record is incomplete. We will vacate the order enhancing Mitchell‘s Count Fifteen sentence and remand for the District Court to consider in the first instance whether the government demonstrated that Mitchell‘s 1998 supervised release violation involved a term of confinement.
C.
Finally, Mitchell asserts three other arguments in his appeal. These arguments all lack merit.
First, Mitchell contends that the District Court plainly erred by incorrectly
conviction did not affect his substantial rights. That is so because the jury convicted Mitchell of two other offenses that carried the same sentencing range as his Count One conviction. We have previously held that, when a plain error at sentencing would not affect a defendant‘s ultimate sentence, that plain error does not affect the defendant‘s substantial rights.58 Thus, Mitchell‘s argument fails because any plain error did not affect his substantial rights.
Second, Mitchell argues that, when the District Court sentenced him, it failed to adequately explain its sentence, in violation of
justified the sentence it imposed by noting that Mitchell committed serious crimes, that he had a strong likelihood of recidivism, and that the sentence would deter future crimes. Thus, the District Court gave “concrete reasons” for imposing the sentence on Mitchell.61
Lastly, Mitchell challenges the substantive reasonableness of his sentence. However, because we are remanding this case for resentencing, this contention is moot.
III.
The District Court erred by failing to afford Mitchell the benefits of the First
BIBAS, Circuit Judge, concurring in the judgment.
I agree with my colleagues that
My colleagues find the First Step Act‘s text ambiguous, so they lean on the Act‘s lenient purpose. These arguments do not persuade me. We are governed by laws, not Congress‘s intent. And Congress‘s concern for workability may favor leaving past sentences alone.
Then-Judge Barrett framed the issue correctly: had “a sentence . . . been imposed on [Mitchell] before the date of [the First Step Act‘s] enactment“? United States v. Uriarte, 975 F.3d 596, 610 (7th Cir. 2020) (en banc) (Barrett, J., dissenting). The hard issue here is whether a sentence has been “imposed” if that sentence was later vacated.
At first, I was going to dissent. Then-Judge Barrett‘s opinion had persuaded me that, as a historical matter, a sentence was imposed on Mitchell, even though it was later vacated. Id. at 606–08. It would seem odd to say otherwise. So the Act would not help Mitchell.
But a closer look at the nature of vacatur changed my mind. We should ask not whether a sentence was imposed as a historical fact, but whether the law treats it as imposed.
When a district court has made a reversible sentencing error, we vacate its judgment. That vacatur “void[s]” the sentence. United States v. Jackson, 995 F.3d 522, 525 (6th Cir. 2021) (quoting Vacate, Black‘s Law Dictionary (11th ed. 2019)). The key question is this: Does the vacatur void the sentence ab initio, as if it had never happened? See Ab Initio, Black‘s Law Dictionary (11th ed. 2019) (“From the beginning“). Or does it just erase the sentence‘s legal effect going forward? Our sister circuits have split on this question under the Act. Compare Uriarte, 975 F.3d at 602 (void from the beginning), and United States v. Bethea, 841 F. App‘x 544, 550 (4th Cir. 2021) (same), with Jackson, 995 F.3d at 525 (void going forward).
Historical treatment, modern precedent, and a narrow immigration exception reveal that vacatur makes a sentence void from the start. And since we assume that Congress legislates against background legal principles, we cannot count Mitchell‘s vacated sentence as one imposed at the time Congress enacted the First Step Act. See Bond v. United States, 572 U.S. 844, 857 (2014).
Historical practice. Nineteenth- and early twentieth-century courts uniformly understood that, under the law, a vacated order never happened. In 1829, the Connecticut Supreme Court explained that vacatur “puts the parties in the state, in which they were, immediately before the [vacated] judgment was rendered.” Lockwood v. Jones, 7 Conn. 431, 436 (1829). Likewise, the North Carolina Supreme Court explained that a court may no longer consider its prior “stricken” order because “it is the same as if the [order] had never been made.” Williams v. Floyd, 27 N.C. (5 Ired.) 649, 656 (1845). And the Supreme Court of South Carolina held that when a judge “revoke[s] his order, the case [stands] just as if no order had been made.” Green v. McCarter, 42 S.E. 157, 158 (S.C. 1902). So too, the Second Circuit recognized “[t]he general rule” that when a court “stri[kes] out” its own order, “it is the same as if such order had never existed.” In re Rochester Sanitarium & Baths Co., 222 F. 22, 26 (2d Cir. 1915).
The immigration exception. I have found only one line of cases that diverges from that rule. When deciding whether a criminal conviction makes an alien inadmissible, we sometimes consider vacated convictions. See
But this exception proves the rule. Even in immigration, if a conviction is legally defective, it is void from the start. When “a conviction is vacated based on a defect in the underlying criminal proceeding[],” it no longer counts “as a conviction for immigration purposes.” Id. (emphasis added; internal quotation marks omitted). Vacaturs to cure legal errors still wipe convictions and sentences off the books. And that is what happened here.
Vacatur thus resolves this case.