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Date: 09-28-2021
Case Style:
United States of America v. Kenneth Jackson, Jr.
Case Number: 19-3623
Judge: JOHN K. BUSH
Court: UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Plaintiff's Attorney: Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE
Defendant's Attorney:
Description:
Cincinnati, Ohio - Criminal defense lawyer represented defendant with three counts of carjacking and, as relevant here, three counts of brandishing a firearm during a crime of violence charges.
In May of 2017, a jury convicted Jackson and the district court sentenced him on three
counts of carjacking and, as relevant here, three counts of brandishing a firearm during a crime
of violence under 18 U.S.C. § 924(c). United States v. Jackson, 918 F.3d 467, 476–77 (6th Cir.
2019). While Jackson’s appeal was pending, Congress enacted the First Step Act. Three months
later, we vacated one of his three § 924(c) convictions and remanded the case for resentencing.
Nos. 19-3623/3711 United States v. Jackson Page 3
Id. at 494. At the resentencing hearing, the district court determined that the First Step Act’s
amendments to § 924(c) apply retroactively to someone who, like Jackson, had his sentence
vacated after the Act became law. United States v. Jackson, No. 1:15 CR 453-001, 2019 WL
2524786, at *1 (N.D. Ohio, June 18, 2019). It sentenced him accordingly, reducing the 32-year
mandatory minimum sentences he faced under § 924(c) to 14 years. But because Jackson no
longer faced 57 years of mandatory minimum sentences, the district court increased his sentence
for the three carjackings from 87 months’ imprisonment to 108 months. Jackson appealed,
challenging that 21-month increase, and the government cross-appealed, challenging the district
court’s decision to apply the First Step Act to Jackson’s § 924(c) convictions. Because we
conclude that the district court should not have applied the amended § 924(c), we do not reach
Jackson’s arguments.
II.
We interpret statutes de novo. United States v. Jeffries, 958 F.3d 517, 519 (6th Cir.
2020). Our task begins with the statutory text. Rotkiske v. Klemm, 140 S. Ct. 355, 360 (2019).
When, as here, the text is clear, it ends there as well. Id.
The 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.” First Step
Act § 403(b). The date of enactment was December 21, 2018. Two textual clues clarify that
provision’s meaning. First, Congress’s decision to use the present-perfect tense makes
December 21, 2018 the date of inquiry. The present perfect “denotes an act, state, or condition
that is now completed or continues up to the present.” The Chicago Manual of Style ¶ 5.132
(17th ed. 2017). So the question whether a sentence “has been imposed” requires us to ask if the
sentencing process ended by the date of enactment. Second, Congress’s use of the indefinite
article “a” indicates that the statute does not refer only to the final sentence a defendant receives.
See Bryan A. Garner, Garner’s Modern English Usage 991 (4th ed. 2016). Thus, the
retroactivity provision’s text creates a straightforward test for retroactivity. We must look at
Jackson’s status as of December 21, 2018 and ask whether—at that point—a sentence had been
imposed on him.
Nos. 19-3623/3711 United States v. Jackson Page 4
We have applied that test in two published opinions. In United States v. Richardson,
Richardson argued that a sentence had not been imposed for his § 924(c) violations because he
had not yet exhausted his direct appeals. 948 F.3d 733, 748 (6th Cir. 2020). We rejected that
argument, holding instead that a sentence was imposed when the district court sentenced him.
Id. at 748–50. In United States v. Henry, we had to decide whether the same held true for a
defendant whose sentence had been vacated before the First Step Act became law. 983 F.3d 214,
216–17 (6th Cir. 2020). We determined that Henry’s pre-Act vacatur meant that on December
21, 2018, it was as if a sentence had never been imposed on him, so the retroactivity provision
applied to him. Id. at 222–23, 228. But in Henry, we recognized the crucial difference between
the question presented there and this exact case: Jackson’s sentence was vacated and his case
remanded “after the First Step Act’s enactment.” Id. at 222 & n.2 (citing the district court’s
opinion in this case).1
For that reason, this case follows Richardson. On the relevant date for retroactivity,
Jackson was in the exact same situation as Richardson: under sentence pending appeal.
Richardson, 948 F.3d at 738. That Jackson’s first appeal went better than Richardson’s does not
alter our inquiry under the retroactivity provision.
In arguing to the contrary, Jackson contends that when his sentence was vacated “his
sentence was rescinded, and there was no longer a sentence imposed on him until he was
resentenced.” That argument misconstrues the First Step Act’s retroactivity inquiry. That
Jackson was without a sentence for three months in 2019 does not change the fact that as of
December 21, 2018, a sentence had been imposed on him. After all, vacatur does not erase
Jackson’s prior sentence from history. Vacatur merely “make[s] void” the thing vacated.
Vacate, Black’s Law Dictionary (11th ed. 2019). When that thing becomes void, it is “of no
legal effect” anymore. Void, Black’s Law Dictionary (11th ed. 2019). But eliminating a
1
In United States v. Uriarte, on which we relied heavily in Henry, 983 F.3d at 220–21, the en banc Seventh
Circuit offered a similar caveat. It explained that “[a]lthough Mr. Uriarte, who was sentence-less when the First
Step Act was enacted, falls neatly within the statute’s language, the same would not be true for a defendant who was
under a sentence at the time of enactment, but subsequently had his sentence vacated,” 975 F.3d 596, 602 n.3 (7th
Cir. 2020) (en banc). In dissent, then-Judge Barrett emphasized that nothing in the Uriarte majority’s logic
addressed the factual scenario we face. Id. at 606 n.1 (Barrett, J., dissenting) (citing the district court’s decision in
this case).
Nos. 19-3623/3711 United States v. Jackson Page 5
sentence’s prospective legal effect only “wipe[s] the slate clean” looking forward. Pepper v.
United States, 562 U.S. 476, 507 (2011). It does not retroactively change Jackson’s status in the
prior months.
For that reason, we part ways with the Fourth Circuit’s contrary conclusion in United
States v. Bethea, --- F. App’x ---, 2021 WL 219201 (4th Cir. Jan. 21, 2021). There, our sister
circuit reasoned that because a district court vacated Bethea’s sentence, “a sentence cannot
legally be said to have been imposed until 2019.” Id. at *5. Based on that logic, it decided that
Bethea’s case did not meaningfully differ from our decision in Henry and the Seventh Circuit’s
Uriarte decision. Id. (“[I]t matters not when that vacatur occurred, because his only legally
effective sentence was imposed after the FSA’s enactment.”). But that analysis misconstrues our
Henry decision, where we explained that “[t]he better reading of ‘a sentence’ requires the
defendant to have a valid sentence at the time of the First Step Act’s enactment, not a sentence at
some point.” Henry, 983 F.3d 214 at 222. The Bethea majority also thought that if “Congress
intended to draw the line at individuals ‘initially sentenced’ before the FSA’s enactment, it
surely could have said so.” 2021 WL 219201, at *6. But Congress equally could have said “the
sentence,” or, clearer still, “the final sentence” or “an ultimate sentence.” See United States v.
Hodge, 948 F.3d 160, 163 (3d Cir. 2020). The mere observation that the statutory language
could be made clearer does not make it unclear in the first place.
In addition to the vacatur argument, amici2 contend that the First Step Act’s amendments
should apply to all resentencing hearings that occur after the date of enactment based on the
general “principle that a court is to apply the law in effect at the time it renders its decision.”
Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711 (1974). But Bradley qualified that general
principle in the rest of that sentence, noting that it applies only when there is no statutory
directive to the contrary. Id. More recently, in Dorsey v. United States, the Supreme Court
explained that the general savings statute that has been in place since 1871 provides the statutory
directive to the contrary for all statutory changes. 567 U.S. 260, 272 (2012). That statute
2The American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the
American Civil Liberties Union of Ohio Foundation, Due Process Institute, R Street Institute, and Americans for
Prosperity Foundation.
Nos. 19-3623/3711 United States v. Jackson Page 6
provides that Congress’s amendments to “an older criminal statute shall not change the penalties
‘incurred’ under that older statute ‘unless the repealing Act shall so expressly provide.’” Id. at
272 (quoting 1 U.S.C. § 109). Here, the First Step Act did so expressly provide—but only for
defendants on whom a sentence had not been imposed as of December 21, 2018
Outcome: For those reasons, we vacate Jackson’s sentence and remand for the district court to
sentence him under the version of § 924(c) that pre-dates the First Step Act of 2018.
Plaintiff's Experts:
Defendant's Experts:
Comments: