United States of America v. Carlos Cruz-Rivera

Boston, MA - Criminal defense lawyer represented defendant with

three counts of carjacking, and three counts of using or carrying a firearm during a crime of violence charges.

In September 2018, we affirmed Carlos Cruz-Rivera's convictions for three counts of

carjacking, see 18 U.S.C. § 2119, and three counts of using or carrying a firearm during a crime

of violence, see 18 U.S.C. § 924(c), for which he was sentenced to 872 months in prison. See

United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir. 2018). At the time, § 924(c)(1)(C)(i)

required courts to impose a sentence of at least twenty-five years for each "second or subsequent"

§ 924(c) conviction, even if all the defendant's § 924(c) convictions stemmed from the same

indictment. See Deal v. United States, 508 U.S. 129, 137 (1993). So the district court had to stack

a twenty-five-year term for each of Cruz's second and third § 924(c) convictions atop the sevenyear minimum for the first such count and Cruz's 188-month sentence for the car-jackings. After

our mandate issued, however, Congress changed the law so that contemporaneous § 924(c)

convictions no longer trigger the twenty-five-year mandatory minimum, which now applies only

to defendants who violate § 924(c) after "a prior conviction under [that] subsection has become

final." First Step Act of 2018, § 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 5221–5222 (Dec.

21, 2018). Cruz, who had no § 924(c) convictions when he committed the instant offenses, would

not have qualified for the recidivist minimum under the new law if it had applied at his sentencing.

Soon after the First Step Act took effect, Cruz filed a timely petition for certiorari in the

United States Supreme Court, arguing that the change entitled him to resentencing. Petition for

Writ of Certiorari, No. 18-7974 (U.S. Feb. 11, 2019).1

The Supreme Court denied it. See CruzRivera v. United States, No. 18-7974, 139 S. Ct. 1391 (Mar. 25, 2019). Months later, however,

the Court vacated the Sixth Circuit's judgment in a similar case — which was pending on direct

review when the First Step Act was enacted — and remanded the matter to the court of appeals to

"consider" the new Act. Richardson v. United States, No. 18-7036, 139 S. Ct. 2713 (June 17,

2019). Encouraged, Cruz moved us to recall our mandate in his case and remand it for resentencing

under the Act. Though we sympathize with Cruz's position, we have carefully considered his and

the government's submissions and find we must deny his motion.

As a default rule, a statute reducing criminal penalties does not apply to crimes committed

before its enactment unless it says otherwise. See Dorsey v. United States, 567 U.S. 260, 264,

272–73 (2012); 1 U.S.C. § 109. Section 403(b) of the First Step Act says otherwise: that § 403(a)'s

amendment "shall apply to any offense that was committed before the date of enactment of this

Act," with a limitation: "if a sentence for the offense has not been imposed as of such date of

enactment" (emphasis added). Cruz urges us to read this sentence to mean the amendment applies

to cases (like his) that were pending on direct review, and so were not final, when the Act was

passed. At the time, the Sixth Circuit's decision in United States v. Clark gave him grist for his

claim that a "sentence has not been finally 'imposed'" within the meaning of the Act until the appeal

is complete. 110 F.3d 15, 17 (6th Cir. 1997) (reaching that conclusion in the context of the safety

valve statute, 18 U.S.C. §3553(f), which similarly applied "to all sentences imposed" more than

ten years after the enactment date). Soon after Cruz filed his motion, however, the Sixth Circuit's

decision in Richardson on remand limited Clark to its statutory context and even suggested it was

wrongly decided. See United States v. Richardson, 948 F.3d 733, 750–53 (6th Cir. 2020) (holding

that § 403 of the First Step Act does not apply to cases that were pending on appeal at the time of

its enactment). And the only other circuits to have addressed this issue now agree with the Sixth.

See United States v. Jordan, 952 F.3d 160, 171–74 (4th Cir. 2020); United States v. Hodge, 948

F.3d 160, 162–64 (3d Cir. 2020).

Undeterred, Cruz urges us to split from these circuits. He points out that Congress titled

§ 403 a "clarification" of § 924(c), which suggests that despite the Supreme Court's interpretation

in Deal, 508 U.S. at 131–37, Congress never intended courts to sentence defendants like him —

who had no prior § 924(c) convictions before he committed the crimes in this case — as repeat

offenders subject to the twenty-five-year mandatory minimum. But § 403's title (which lacks the

force of law) can't overcome its operative text, which demonstrates that Congress intended § 403

to put a stop to unreasonably harsh stacked sentences without requiring courts to redo sentences

imposed while the old law was in effect. See Richardson, 948 F.3d at 747–48 (citing Fla. Dep't of

Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008)); Jordan, 952 F.3d at 173–74

(reaching the same conclusion). We have already held that an identical provision in § 401(c) of

the First Step Act means that § 401, which lowered the mandatory minimum sentences for certain

repeat drug traffickers, applies only to defendants who were sentenced after enactment. See United



1 The Supreme Court granted Cruz's request for an extension of time until February 11,

2019 to file the petition. Cruz-Rivera v. United States, No. 18-7974 (U.S. Oct. 2, 2018).

States v. Gonzalez, 949 F.3d 30, 42 (1st Cir. 2020). We cannot conclude that Congress used the

same incantation two sections later to mean the opposite when it comes to repeat § 924(c)

offenders: that § 403 is fully retroactive. See Envtl. Def. v. Duke Energy Corp., 549 U.S. 561,

574 (2007) ("We presume that the same term has the same meaning when it occurs here and there

in a single statute.").

To be sure, the presumption of consistent usage yields when dissimilar contexts cast

"different shades of meaning" on the same phrase. Id. But that is not the case here. Both

subsections serve the same purpose: to determine the new, more lenient mandatory minima's

"applicability to pending cases." First Step Act, §§ 401(c), 403(b), 132 Stat. at 5221–5222. And

"in federal sentencing" under the guidelines system, "the ordinary practice is to apply new penalties

to defendants not yet sentenced, while withholding the change from defendants already sentenced."

Dorsey, 567 U.S. at 280. As we held in Gonzalez, Congress's word choice signals its intent to

follow that practice in §§ 401 and 403: "[a] sentence is customarily understood to be imposed

either when it is pronounced or entered in the trial court, regardless of subsequent appeals." 949

F.3d at 42; see also Richardson, 948 F.3d at 748 (noting that "Congress has repeatedly used

derivations of the word 'impose' to denote the moment that the district court delivers the

defendant's sentence" and listing examples). If Congress meant § 403 to apply to all cases pending

on direct appeal, instead of using the word "impose" to mean something other than it does

elsewhere, Congress more likely would have written that § 403 applies to pending cases "if a

sentence for the offense has not become final as of such date of enactment," using the phrase it did

in the amendment itself and in many other provisions throughout the Act that make finality the

key. See First Step Act, § 403(a), 132 Stat. at 5222 (striking "second or subsequent conviction

under this subsection" and inserting "violation of this subsection that occurs after a prior conviction

under this subsection has become final" (emphasis added)); id. § 401(a)(2)(A)(i)–(ii) & (b)(1), 132

Stat. at 5220–21; see also Jordan, 952 F.3d at 173 (refusing to read "imposed" to mean "became

final" because "[w]here Congress wanted to make finality a benchmark . . . it did so"); Hodge, 948

F.3d at 163 (same).

Thus, we can only conclude that, consistent with the usual practice in the federal system, Congress did not intend the amendment in § 403(a) of the First Step Act to compel the "re-opening [of] sentencing proceedings concluded prior to [the] new law's effective date." Dorsey, 567 U.S. at 280. Accordingly, the motion to recall our mandate is denied. See United States v. Fraser, 407 F.3d 9, 10 (1st Cir. 2005) (explaining that we may only recall our mandate "upon a showing of 'extraordinary circumstances'" (quoting Calderon v. Thompson, 523 U.S. 538, 550 (1998)).