T

he Supreme Court of the United States held that when an offender convicted under § 924(c) had been sentenced prior to the enactment of the First Step Act but the sentence was subsequently vacated, a sentence “has not been imposed” for purposes of the retroactivity provision of § 403(b), and thus, § 403(a)’s more lenient penalties apply to such an offender upon resentencing. 

Procedural History

In 2009, Tony Hewitt, Corey Duffey, and Jarvis Ross (collectively, “Petitioners”) were convicted in the U.S. District Court for the Northern District of Texas on several counts of bank robbery, conspiracy to commit bank robbery, and corresponding 18 U.S.C. § 924(c) offenses based on the use of a firearm during a crime of violence. Petitioners were sentenced to a mandatory five-year prison term with respect to their first § 924(c) count of conviction. In addition, they each received 25-year mandatory sentences for each subsequent § 924(c) count, resulting in each Petitioner being sentenced to over 325 years in prison. Only about 25 years were attributable to the robbery offenses, and the remainder due to the stacked § 924(c) counts. 

On direct appeal to the U.S. Court of Appeals for the Fifth Circuit, Petitioners were successful in challenging some of their convictions, so the appellate court vacated their sentences. In 2012, the District Court resentenced Petitioners to between 285 and 305 years on the remaining counts, which the Fifth Circuit affirmed on direct review. Petitioners filed for habeas relief under 28 U.S.C. § 2255, which was denied. 

Following passage of the First Step Act in 2018, the Supreme Court held that the “crime of violence” definition typically used by the Government to support some § 924(c) convictions was unconstitutionally vague. See United States v. Davis, 588 U.S. 445 (2019). Davis potentially affected some of Petitioners’ remaining convictions, so the Fifth Circuit granted them authorization to file a second or successive § 2255 petition. The District Court then vacated the affected § 924(c) convictions together with their sentences. 

During the resentencing hearing before the District Court, Petitioners argued that the First Step Act’s five-year mandatory minimum penalties applied, not the 25-year mandatory minimum, because they were entitled to the retroactive application of the First Step Act’s reduced penalties based on the fact that a vacated prior sentence does not constitute a sentence that “has … been imposed” for purposes of § 403(b) of the First Step Act. The District Court rejected the argument and resentenced Petitioners in accordance with the pre-Act sentencing framework, imposing stacked 25-year mandatory minimum sentences for each § 924(c) count of conviction after the initial one. Consequently, they each received sentences of more than 130 years in prison, with 105 years attributable to the stacked § 924(c) penalties. 

On appeal, both Petitioners and the Government argued that the First Step Act should have applied retroactively to the resentencing. The parties jointly requested vacatur of the sentences, but the Fifth Circuit denied the request, stating that § 403(b) applies only “to defendants for whom ‘a sentence … ha[d] not been imposed’ as of the enactment date.” Since each Petitioner had been sentenced twice before the enactment of the First Step Act, the appellate court concluded that they were not eligible for First Step Act relief. 

The Supreme Court granted certiorari to decide the question of whether § 403(b) applies to offenders facing post-Act resentencing after vacatur of their pre-Act sentence. The Government agreed with Petitioners’ position, so the Court appointed Michael H. McGinley as amicus curiae to defend the judgment below. 

Analysis

Before the First Step Act was enacted in 2018, federal judges were required to sentence certain first-time offenders who were convicted of violating § 924(c), which criminalizes possessing a firearm while committing a “crime of violence” or drug-trafficking crime, to “stacked” 25-year terms of imprisonment. That is, § 924(c)(1)(C)(i) (2006 ed.) contained a recidivism enhancement that mandated the imposition of an additional 25-year prison term for any “second or subsequent conviction” under § 924(c). The Supreme Court interpreted that enhancement to require an enhanced 25-year penalty for each § 924(c) count of conviction after the offender’s first, even if those additional convictions were part of the same criminal prosecution. Deal v. United States, 508 U.S. 129 (1993). Under the “stacking” interpretation of the enhancement, § 924(c) sentences could quickly balloon to hundreds of years. 

The First Step Act eliminated this harsh mandatory minimum framework, and its more lenient penalties were made partially retroactive via § 403(b), which provides that such penalties apply if a sentence “has not been imposed” upon an eligible § 924(c) offender as of the date of the First Step Act’s enactment. Importantly, § 403(a) of the First Step Act provides that “district court judges are not required to impose stacked 25-year sentences when sentencing first-time § 924(c) offenders,” thereby statutorily abrogating Deal. 

Ordinarily, statutory changes to federal sentencing provisions are not retroactive, 1 U.S.C. § 109, and thus benefit only future offenders. However, § 403(b)—titled “APPLICABILITY TO PENDING CASES”—expressly makes § 403(a)’s more lenient penalties retroactive to certain existing § 924(c) offenders: “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.” 

Turning to the present case, the Court observed that the Fifth Circuit concluded that § 403(b) does not apply to any offender who was sentenced before the enactment of the First Step Act, regardless of whether the sentence was subsequently vacated, because in such cases, a sentence has been imposed as a matter of historical record. Consequently, the determinative issue in the case was whether a pre-Act sentence that is subsequently vacated nevertheless constitutes a sentence “imposed” prior to the enactment of the First Step Act. The Fifth Circuit answered this question in the affirmative, and thus, it ruled that Petitioners were ineligible for resentencing under the First Step Act’s more lenient sentencing framework. 

However, the Court rejected the Fifth Circuit’s position, announcing “we conclude that a sentence has been imposed for purposes of [§ 403(b)] if, and only if, the sentence is extant—i.e., has not been vacated.” The Court’s first basis for its conclusion was the statute’s use of the present-perfect tense (a sentence has not been imposed) rather than the past-perfect tense (a sentence had not been imposed). See United States v. Wilson, 503 U.S. 329 (1992) (“Congress’ use of a verb tense is significant in construing statutes”). It explained that the present-perfect tense refers to either (1) “an act, state, or condition that is now completed” or (2) “a past action that comes up to and touches the present.” The Chicago Manual of Style § 5.132, p. 268 (17th ed. 2017) (emphasis added). The present-perfect tense describes events that involve “a specific change of state,” producing a “continuing result.” R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 143 (2002). 

The Court used an example of an Olympic sprinter to help illustrate the significance of the present-perfect tense in § 403(b). In the example, sprinters may call themselves Olympic champions if a gold medal “has been awarded” to them. Under that rule, a sprinter who finished in first place in a previous Summer Olympics is allowed to describe himself as an Olympic champion today. But if the sprinter is stripped of his first-place finish due to the use of performance-enhancing drugs, he can no longer rightfully call himself an Olympic champion because he had that title, but it was revoked. Accordingly, he cannot refer to himself as an Olympic champion today. On the other hand, he would still be allowed to call himself an Olympic champion if the rule were a gold medal “had been awarded” to sprinters because he had been awarded a gold medal regardless of whether it was subsequently taken away from him. 

The Court stated: “When used in this way, the present-perfect tense conveys to a listener that the event in question continues to be true or valid.” The sprinter could call himself an Olympic champion up until the moment he was stripped of his first-place finish but cannot do so afterwards because of the use of the present-perfect tense in the governing rule. Similarly, an offender could be treated as sentenced prior to the First Step Act up until the moment his sentence was vacated but cannot be treated that way afterwards because of the use of the present-perfect tense in § 403(b). 

Next, the Court relied on the legal principle that “vacated court orders are void ab initio and thus lack any prospective legal effect.” See United States v. Ayres, 76 U.S. 608 (1870) (“[V]acating the former judgment … render[s] it null and void, and the parties are left in the same situation as if no trial had ever taken place in the cause”). The Court stated that by “operation of legal fiction, the law acts as though the vacated order never occurred.” See Fiswick v. United States, 329 U.S. 211 (1946) (confirming that one whose conviction is vacated “stand[s] in the position of any [person] who has been accused of a crime but not yet shown to have committed it”). Thus, the Court concluded that § 403(b) “reflects this ‘common-sense’ understanding of background vacatur principles. Lewis v. United States, 445 U.S. 55 (1980). 

Finally, the Court discussed the intense criticism of the practice of “stacking” 25-year sentences in accordance with Deal and the legislative history of the First Step Act and concluded that they militated in favor of its interpretation of § 403(b).

The Court explained: “The reading of § 403(b) that petitioners and the Government promote thus coheres with the text, context, and history of that provision. Under this view, First Step Act sentencing benefits apply to all first-time § 924(c) offenders sentenced after the Act’s enactment date (whether it is an initial sentencing or a resentencing). This means that § 403(b)’s retroactivity line falls between those past § 924(c) offenders with final sentences that are still in effect, on the one hand, and those who still need to be sentenced for their § 924(c) offense, on the other. The former are stuck with their old sentences, for finality reasons, while the latter are eligible for First Step Act benefits at resentencing, since they have to be sentenced regardless.”

Conclusion

Accordingly, the Court reversed the judgment of the Fifth Circuit and remanded the case for further proceedings consistent with its opinion. See: Hewitt v. United States, 2025 U.S. LEXIS 2494 (2025).   

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