Amended 924(c) by First Step Act Applies to Resentencing: Ninth Circuit

Resentencing in three consolidated appeals may use the Amended 924(c) statute as remanded by the Ninth Circuit Court. 

United States v. Merrell, No. 20-30183, 20-30189, 21-30043 (9th Cir. 2022)

Appeals Process with 924(c) Convictions

This case involves three consolidated appeals involving resentencing.  Each defendant had been resentenced following a successful 28 U.S.C. 2255 motion based on United States v. Davis. Each of the three defendants were convicted of various offenses. These included four “crimes of violence” that served as predicate offenses for 18 U.S.C. 924(c) convictions. Following the decision in Davis, the district court granted 2255 relief.  The court vacated two of the 924(c) convictions, and proceeded to resentence the defendants on the remaining two valid 924(c) charges. 

Resentencing with Amended 924(c)

The defendants argued on resentencing that the district court should apply 924(c) as amended by the First Step Act of 2018, which eliminated the “stacking” of 924(c) convictions and significantly harsh sentences. However, the district court declined to apply the First Step Act after finding that the Act only applied when sentenced imposed before the Act’s passage are vacated and defendants are resentenced after the Act’s passage. Here, each of the three defendant’s convictions were vacated after passage of the Act.

Section 403(b) of the First Step Act provides the amended 924(c) statute applies 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.”

Application of First Step Act and Amended 924(c) Clause.

The circuit courts are deeply split on how to interpret this clause. There are many variations on how this is held.

Sixth Circuit

The Sixth Circuit holds the First Step Act applies to a resentencing after the date of enactment when the original sentence was vacated before that date.  It has also declined to apply the Act in a case in which the sentence was vacated after enactment. 

Third Circuit

The Third Circuit has declined to apply the First Step Act to a sentence vacated prior to the enactment of the First Step Act. 

Seventh Circuit

In the Seventh Circuit, the Act applies only to those defendants whose sentences were vacated before enactment and who were awaiting resentencing. 

Fourth Circuit

The Fourth Circuit finds the Act applies to defendants whose original sentences were vacated after the First Step Act took effect.

Ninth Circuit

In a split decision, the Ninth Circuit holds that vacatur of an original sentence “wiped the slate clean.” As such, resentencing is an open record.  Then it should be conducted by the district court as if it were sentencing de novo. 

Amended 924(c) by First Step Act Applies to Resentencing

The Court found that a defendant who is waiting to be sentenced and a defendant whose sentence has been vacated both lack any sentence until the day of sentencing. Under this logic, the Ninth Circuit held that the most reasonable reading of section 403(b) is that “a sentence” means an existing valid sentence.  This would not be a prior invalid one.

The Ninth Circuit concludes a vacated sentence cannot bar application of the First Step Act, which was made retroactive under section 403(b). Accordingly, the court vacated the appellants’ sentences and remanded for re-sentencing using the amended 924(c) statute.

Jeremy’s Notes 

Since Davis and the enactment of the First Step Act, whether the question of whether the amended penalty provisions of the First Step Act applies to defendants resentenced after the Act has created a significant split among circuit courts. Most agree those defendants whose sentences were vacated prior to the Act, but pending resentencing after the Act, should receive the benefit of the amended statute. But the real issue is all the defendants whose convictions were vacated after the enactment. Many courts have held these defendants do not get the benefit of the amended penalty structure under the First Step Act.

I wholly agree with the Ninth Circuit’s approach here. The Supreme Court has long held that vacatur of an illegal sentence “wipes the slate clean.” As the Ninth Circuit interpreted, this means these defendants do not have a sentence and have yet to be sentenced. Therefore, they should receive the benefit of the FSA given section 403(b). Unfortunately, not all courts agree. This may be an issue that makes its way to the Supreme Court for a final say in the future.