Third Circuit Announces Prohibition Against Second Resentencing Under First Step Act Can Be Waived by Government
The U.S. Court of Appeals for the Third Circuit handed down an opinion on December 21, 2020, holding that the prohibition against a subsequent resentencing in § 404(c) of the First Step Act can be waived by the Government. Therefore, the U.S. District Court for the Eastern District of Pennsylvania had jurisdiction to resentence a man where that court erroneously failed to consider mitigation factors set forth in 18 U.S.C. § 3553(a) when he was originally resentenced under the First Step Act.
Javier Hart was convicted of possession of crack cocaine with intent to distribute in 2005. At that time, the federal Sentencing Guidelines recommended a sentence of 35 years to life. The amount of crack and Hart’s extensive criminal history made life the mandatory minimum sentence. The mandatory minimum overrode the Guidelines, and he was sentenced to life.
The Fair Sentencing Act of 2010 lowered the mandatory minimum for Hart’s crime to 10 years. In 2018, the First Step Act made the new mandatory minimums retroactive and made Hart eligible for resentencing. However, § 404(c) of the First Step Act states that, ‘‘No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduced in accordance with ... the Fair Sentencing Act of 2010.”
In the wake of the First Step Act’s passage, the Federal Community Defender’s and U.S. Attorney’s Offices for the Eastern District of Pennsylvania formed a screening committee to identify prisoners with eligible sentences and work out new sentences for them subject to the district court’s approval. The committee made quick work of it because it believed that prisoners could only be resentenced within their new Guidelines range.
The committee negotiated a new, 35-year sentence for Hart, the bottom of the new Guidelines range. Hart accepted it without asking for a lower sentence. He was resentenced in March 2019.
Subsequent case law determined that prisoners could ask for sentences below the range recommended in the Guidelines. Therefore, Hart filed a motion for the district court to take into account § 3553(a) factors and Hart’s personal growth and lower his sentence. The Government opposed the motion on the ground that Hart’s sentence was fitting but did not oppose the motion on the ground that he had already received a sentence reduction.
The court denied the motion. It explained that Hart’s extensive criminal history was the central reason for his sentence, not the amount of cocaine he possessed. It also cited the prohibition against another resentencing.
Aided by federal community defender Christy Martin, Hart appealed. The Third Circuit agreed that a court ruling on a First Step Act motion must consider the § 3553(a) factors as it had decided in United States v. Easter, 975 F.3d 318 (3d Cir. 2020). After Easter was decided, the Government conceded that Hart should win the appeal and be resentenced.
There remained the issue of the § 404(c) prohibition on resentencing. Although the Government agreed to waive the prohibition, the Court noted that not all rules are waivable. Citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), it explained, “Some are jurisdictional limits on courts’ power and so cannot be waived.” However, the Court further explained that a rule is jurisdictional only if Congress say so “clearly.” Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).
The Court noted that the statute’s language is inconclusive as to whether it is jurisdictional. However, the fact that § 404(c) eliminates only one remedy, not an entire case, raises a strong presumption that it is not jurisdictional, the Court reasoned. The statute’s language sends only a moderate signal that it is jurisdictional, but this is weakened by the statutory context and purpose, which indicate it is not jurisdictional, explained the Court. Thus, the Court announced: “We hold that § 404(c) is not jurisdiction.” As such, the Court concluded that the prohibition against a subsequent resentencing in § 404(c) of the First Step Act can be waived by the Government.
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Related legal case
United States v. Hart
|Cite||983 F.3d 638 (3d Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|