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Third Circuit Announces First Step Act Applies Retroactively to Defendant Whose Pre-Act Sentence Vacated After Act’s Enactment

by Harold Hempstead

The U.S. Court of Appeals for the Third Circuit joined the Fourth, Seventh, and Ninth Circuits regarding the retroactivity of the First Step Act of 2018 (“FSA”) in holding that defendants who have their sentences imposed prior to the enactment of the FSA and vacated after its enactment are entitled to the benefits of the FSA. See United States v. Merrell, 2022 U.S. App. LEXIS 16010 (9th Cir. 2022); United States v. Uriarte, 975 F.3d 596 (7th Cir. 2020); United States v. Bethea, 841 F. App’x 544 (4th Cir. 2021). But see United States v. Jackson, 995 F.3d 522 (6th Cir. 2021) (holding version of § 924(c) that pre-dates the FSA applies where sentence imposed prior to the enactment of the FSA but vacated afterwards).  

After Tyrone Mitchell was convicted by jury in October 2015 on 17 gun-and-drug related offenses, the U.S. District Court for the Eastern District of Pennsylvania sentenced him to 1,020 months’ imprisonment.

On direct appeal, the Third Circuit vacated Mitchell’s judgment of sentence and remanded the case for resentencing, ruling that the District Court violated his procedural due process rights by identifying his “extensive criminal history as the sole justification for his sentence.”

In July 2020, the District Court determined that since Mitchell’s resentencing was held after the enactment of the FSA, he could not receive its benefits. Thus, the District Court sentenced him to a mandatory minimum sentence of 55 years’ imprisonment on his three offenses (Counts 8, 12, and 16) in violation of 18 U.S.C. § 924(c), rather than the 15 years that he could have received for those offenses under the FSA. The total sentence imposed for all Counts was 895 months’ imprisonment. Mitchell appealed.

On plenary review, the Court observed that sister circuits have split on what “impose a sentence” means when interpreting § 403(b) of the FSA, which states that it “shall apply to any offense that was committed before the date of enactment of th[e] Act, if a sentence for the offense has not been imposed as of such date of enactment.” In light of the fact that the circuits are split on the proper interpretation of “impose a sentence,” the Court acknowledged that the statute can reasonably be read in more than one way, so “the statute is genuinely ambiguous.”

The Court rejected the interpretation of “impose a sentence” as meaning “any sentencing, regardless of whether the sentencing is vacated for violating the defendant’s constitutional rights” in favor of the interpretation of “impose a sentence” as meaning “a valid sentence that survives constitutional challenges on direct appellate review and is therefore not subject to vacatur and full remand for resentencing.”

The Court agreed with the broad construction of the statute and reasoning of the Fourth, Seventh, and Ninth Circuits “that the defendant’s sentence is best understood as ‘imposed’ for purposes of the Act on the date of the sentence’s reimposition, because the district court’s vacatur render[ed] the defendant’s first sentence a legal nullity.” See Merrell, Uriarte, Bethea. The Court concluded that its interpretation is “more natural” because “there is no reason to think that Congress excluded from its remedy pre-Act offenders facing plenary resentencing. ... [Section 403(b) makes] no distinction between defendants who had never been sentenced and those whose sentence had been vacated fully and who were awaiting the imposition of a new sentence” Uriarte. Consequently, the Court announced: “We will interpret it broadly to allow the Act’s provisions to apply to a defendant whose pre-Act unconstitutional sentence is vacated after the Act’s enactment.”

Turning to the present case, the Court explained that when it “vacated” Mitchell’s original sentence, it wiped his sentencing record clean, so he didn’t have a sentence as of the date of his resentencing. Thus, the Court held that he was entitled to the benefits of the FSA and that the District Court erred by denying Mitchell the benefits of the FSA.

Accordingly, the Court vacated Mitchell’s sentences on Counts 8,12, and 16 and remanded for resentencing consistent with its opinion. See: United States v. Mitchell, 38 F.4th 382 (3d Cir. 2022). 

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