by Douglas Ankney

The U.S. Court of Appeals for the Sixth Circuit held that the First Step Act’s (“FSA”) amendments to 18 U.S.C. § 924(c) are inapplicable to defendants who were sentenced on or before the enactment date of the FSA even when a defendant’s sentence is later vacated and remanded for resentencing.

In 2017, Kenneth Jackson was sentenced on three counts of carjackings and three counts of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). At the time of his sentencing, § 924(c)(1)(C) required a mandatory seven-year sentence on the first count and an enhanced term of 25 years based upon the second count. But while Jackson’s appeal was pending, Congress passed the FSA which amended § 924(c)(1)(C). Under the FSA, the enhancement to 25 years for the second conviction only applies if it is imposed after the conviction for the first count has become final. Congress made the FSA changes retroactive to only those whom “a sentence for the first offense has not been imposed as of such date of enactment.” FSA § 403(b). The date of enactment was December 21, 2018.

In 2019, the Sixth Circuit vacated one of Jackson’s three § 924(c) convictions and remanded for resentencing. The district court concluded that the FSA’s amendments apply retroactively to Jackson because his sentence had been vacated after the FSA became law. The district court reduced the 32-year mandatory minimum sentence he previously faced under § 924(c) to 14 years. But the court then increased his sentence on the carjackings from 87 months’ imprisonment to 108 months. Jackson appealed.

The Court observed “[t]he 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.’” FSA § 403(b). Congress’ use of the present-perfect tense “denotes an act, state, or condition that is now completed or continues up to the present.” The Chicago Manual of Style (17th ed. 2017). And Congress’ use of the indefinite article “a” indicates that the statute does not refer only to the final sentence a defendant receives, according to the Court. Bryan A. Garner, Garner’s Modern English Usage (4th ed. 2016). Consequently, the Court concluded that it must look at Jackson’s status as of December 21, 2018 and ask whether—at that point—any sentence had been imposed on him.

In United States v. Richardson, 948 F.3d 733 (6th Cir. 2020), the defendant argued he should receive the benefit of the FSA changes because the sentence he had received for his § 924(c) violations had not yet been made final on appeal. The Richardson Court rejected that argument, holding that a sentence was imposed upon him when the district court sentenced him.

In United States v. Henry, 983 F.3d 214 (6th Cir. 2014), the defendant had been sentenced, but that sentence had been vacated before the FSA’s enactment date. The Henry Court held that Henry’s pre-FSA vacatur meant that on December 21, 2018, it was as if no sentence had been imposed upon him.

The Court concluded the instant case is materially similar to Richardson. On the relevant date for retroactivity, Jackson was in exactly the same situation as the defendant in Richardson—under sentence pending appeal. That Jackson’s first appeal went better than the defendant in Richardson did not alter the Court’s inquiry under the retroactivity provision.

The Court rejected the Fourth Circuit’s reasoning in United States v. Bethea, 841 Fed. Appx. 544 (4th Cir. 2021) (unpublished). The Bethea Court determined that because the district court had vacated Bethea’s sentence, “a sentence cannot legally be said to have been imposed.”
But the Sixth Circuit observed “[v]acatur merely ‘make[s] void’ the thing vacated.” Black’s Law Dictionary (11th ed. 2019). When that thing becomes void, it is “of no legal effect” anymore. Id. Eliminating a sentence’s prospective legal effect only wipes the slate clean looking forward but does not change the defendant’s status (i.e., that he was sentenced) in the prior months. Pepper v. United States, 562 U.S. 476 (2011).

Accordingly, the Court vacated Jackson’s sentence and remanded for the district court to sentence him under the version of § 924(c) that predated the FSA. See: United States v. Jackson, 995 F.3d 522 (6th Cir. 2021).

Writer’s note: Despite the Sixth Circuit’s linguistic gymnastics, in using Jackson’s first sentence to deny him benefit of the FSA, the Court is giving legal effect to a sentence that they themselves had determined was illegal when they vacated it on Jackson’s first appeal. Judge Karen Nelson Moore’s dissenting opinion persuasively argues that the majority opinion wrongly decided this case “because the plain language, structure, and purpose of First Step Act § 403 suggest that this provision applies to Jackson’s resentencing.” 

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